ADP19 v Minister for Immigration and Citizenship

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The first respondent, Minister for Immigration and Citizenship (Minister), seeks an order that the applicant pay the first respondent's costs and disbursements fixed in the amount of $39,564.28. In support of this application, the Minister relied on the affidavit of Kerrie Pieri affirmed on 5 December 2025 (Costs Affidavit). The applicant was sent a copy of the Costs Affidavit at 2:53pm on 5 December 2025. The applicant confirmed that she had received a copy of the Costs Affidavit.
2. The Costs Affidavit set out that the Minister's solicitor's costs on a solicitor/client basis are in the sum of $25,419.70.
3. The Minister has also set out in the Costs Affidavit that the disbursements are in the sum of $19,228.52, which are made up as follows:

(a) $2,363.64 (excluding GST) for Mr Cleary, Counsel fees;

(b) $12,954.45 (excluding GST) for Ms Maddocks, Counsel fees;

(c) $3,720.43 (excluding GST) for the transcripts; and

(d) $190.00 for the lodging of the subpoenas.

1. I invited the applicant to make submissions as to the costs that should be ordered, and the applicant said "the costs are very high" and she should not have to pay for the third hearing on 3 December 2025 because the Minister made submissions and answered the Court's questions at the hearing.

1. The Court has a broad discretion to award costs pursuant to s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which relevantly provides as follows:

(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

1. Further, r 32.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules) relevantly provides as follows:

32.07 Costs and disbursements

Where the Court determines that a party is entitled to costs in a proceeding to which these Rules apply (other than a proceeding to which the Bankruptcy Act 1966 applies), that party may seek:

(a) costs calculated in accordance with Schedule 2; and

(b) disbursements properly incurred.

...

Note 3: For costs in a migration proceeding, see rule 25.14 of and Part 3 of Schedule 2 to these Rules.

1. Part 3 of Schedule 2 to the GFL Rules contains what is commonly referred to as the Court's 'scale' in relation to migration proceedings. Under Division 1, Item 3 it states that where a proceeding has been concluded at a final hearing, the scale amount is $9,097.93.
2. Rule 25.14(5) of the GFL Rules provides that:

(5) This rule does not limit a party's right to apply, under Part 32, for an order as to costs of the application.

1. Part 32 of the GFL Rules relevantly provides under rr 32.01(2) and 32.02 as follows:

32.01 Order for costs

...

(2) In making an order for costs, the Court may set a time for payment of the costs, which may be before the proceeding is concluded.

32.02 Determining costs

In making an order for costs, the Court may:

(a) award costs as between party and party; or

(b) award costs other than as between party and party; or

(c) award costs in a lump sum; or

(d) refer the costs for taxation under Part 40 of the Federal Court Rules.

1. The usual rule is that costs will be awarded to the successful party in the absence of special circumstances justifying some other order: Richards v Han (Costs) [2023] FCA 211 at [9] per Halley J. In that decision, his Honour said (emphasis added):

In the ordinary course, in the absence of special circumstances justifying some other order, the general rule is that costs will be awarded to the successful party, that is, costs will follow the event: Summers at [14] citing Ritter v Godfrey [1920] 2 KB 47 at 52-53 (Lord Sterndale MR) and 54 (Atkin LK); Gladstone Park Shopping Centre Pty Ltd v Ross Willis [1984] FCA 166; (1984) 6 FCR 496 at 505 (Davies J); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J).

1. The Federal Circuit and Family Court of Australia has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29], per Griffiths J. Fixed costs orders are frequently made by this Court, particularly in migration matters: ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658 at [40], per Laing J.
2. In Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129, the Full Federal Court (Mortimer CJ, Colvin and Dowling JJ) at [94] made clear that "the question for the Court is, in the particular circumstances proven before it, what is a fair and just amount to fix for the costs of a successful party".

1. The applicant made serious allegations as to fraud, which the applicant was given every opportunity to present to the Court. The applicant sought leave to amend the application to plead fraud, and she was put on notice that if she was unsuccessful, there may be additional costs incurred because of the amended pleading.
2. The matter was listed for hearing over three days, being 14 October 2025 at 10:15am to 3:47pm, 7 November 2025 at 10:15am to 4:22pm, and 3 December 2025 at 10:40am to 12:18pm. I also note that Ms N Maddocks of Counsel appeared at each of the hearings.
3. I am satisfied that it is fair and just to order the applicant to pay the Minister's disbursements in the sum of $19,228.52, which disbursements were properly incurred as identified at [3] of this judgment. Given the serious allegations of fraud, it was reasonable for the Minister to brief Counsel in this matter, obtain transcripts and issue a subpoena against the migration agent for production of documents and attendance at the hearing.
4. Mr Matthew Wong, who is representing the Minister, informed me that the solicitor/client costs sought in the sum of $25,419.70, as set out in the Costs Affidavit, does not include the costs associated with the summary dismissal application heard before Judicial Registrar Cummings on 11 July 2024 and 23 July 2024.
5. In relation to the solicitor/client costs, I note that the Court Book is 151 pages, which was prepared by the Minister. The Minister also prepared a number of written submissions associated with the hearing of the matter before me dated 8 October 2024, 13 October 2025 and 21 November 2025. Further, the Minister attended the hearing of the matter on 14 October 2025, 7 November 2025 and 3 December 2025.
6. In these circumstances, given the serious allegations made of fraud and that the hearing went over two and a half days, costs should be awarded above the scale amount. I am satisfied that it is fair and just that the applicant pay, in addition to the disbursements of $19,228.52, the additional solicitor's costs of $20,335.76, which is 80% of the solicitor/client costs. Therefore, the applicant pay the Minister's costs and disbursements fixed in the amount of $39,564.28.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.