BVZ22 v Minister for Immigration and Citizenship

[3]

In addition, the applicant has not explained why he only arrived outside the court building at 10:15 am when he was aware that his hearing commenced at 10:15 am.

BVZ22 v Minister for Immigration and Citizenship | Case summary | Zoe

[6]

At the conclusion of the hearing, I invited submissions from the parties on costs. If the Reinstatement Application was dismissed, Ms Liu sought an order that the applicant pay the first respondent's costs in the sum of $4,553.02 which was the scale amount in Schedule 2 of the Rules for a proceeding concluded at an interlocutory hearing. In circumstances where the first respondent obtained a costs order in the scale amount of $9,097.93 in the First Judgment for its work up to 23 February 2026 and the Reinstatement Application was not accepted for filing until 17 March 2026, the amount sought by the first respondent for its work between 17 March 2026 (date of presumed service of Reinstatement Application) and 30 March 2026 (date of hearing of Reinstatement Application) appeared high. Ms Liu stated that the first respondent's solicitor/client costs in this period were $7,599.90.
On the one hand, the first respondent's written submission filed on 26 March 2026 is detailed and well-prepared, Ms Liu was well-prepared for the hearing on 30 March 2026, and Ms Liu travelled from the Sydney Central Business District to Parramatta for the hearing. On the other hand, the usual rule is that the successful party is only entitled to recovery of its reasonable legal costs. I propose to order that the applicant pay the first respondent's costs in the sum of $3,000. I consider this amount is reasonable.
In reaching a conclusion about costs, I have read a post-hearing submission on costs which the applicant, without leave, emailed to my Chambers on the evening of 30 March 2026. The applicant says that, in circumstances where his interlocutory application was brought promptly, was genuine, and was not frivolous or vexatious, the Court should not make a further costs order in the first respondent's favour against the applicant. The matters identified by the applicant are not reasons to not make an order seeking to compensate the successful party for reasonable legal costs incurred. The applicant chose to commence and prosecute the Reinstatement Application and thereby force the first respondent to incur costs. Further, he was aware from the First Judgment of the risks he faced if he did not identify an arguable jurisdictional error in the Tribunal's decision with reasonable prospects of success. As stated in Northern Territory of Australia v Sangare [2019] HCA 25; 265 CLR 164 at [27], "the statutory power to order costs affords the successful party necessary protection against unmeritorious litigation".

Parties

Applicant/Plaintiff:

BVZ22

Respondent/Defendant:

Minister for Immigration and Citizenship

Legislation Cited (1)

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025

Cases Cited (5)

...

Second, the grounds in the Application are generic and lack particulars. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. The Court is unlikely to reinstate a proceeding if the applicant cannot identify a ground of review with reasonable prospects of success. As stated in CAL15 v Minister for Home Affairs [2016] FCA 1344 at [4], "if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant". If the applicant genuinely wants to reinstate the Application, he should file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal's decision.

In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] Ryan J stated:

In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out;

the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:

In FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] the Full Court stated that the primary judge is required to consider "whether or not it was in the interests of justice to reinstate the applicant's application". The Full Court at [53] added that "the factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case". The Full Court at [60] stated that there was nothing in MZYEZ at [7] which was inconsistent with the Full Court's approach.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] Mortimer J stated:

Following on from my discussion with the applicant explained in the above paragraph, it appears that the applicant's complaint, the subject of paragraph 22 of his written submission, shifts to whether it was reasonably open to the Tribunal to find that the applicant's narrative relating to harm and threats he claims to have received from M was "implausible". The Tribunal, in paragraph 60(a) and (b) of its decision, set out reasons in support of its conclusion that the applicant's narrative was implausible. The applicant has not cavilled with any part of this reasoning. I consider that the Tribunal's reasons in paragraph 60(a) and (b) provide "an evident and intelligible justification" (Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 (Singh) at [61]) for its findings that the applicant's narrative was implausible. I consider that it was comfortably open to the Tribunal, for reasons explained in paragraph 60(a) and (b), to describe in paragraph 60(e) the applicant's narrative as implausible.
It appeared from my discussion with the applicant that, in attempting to identify a jurisdictional error in paragraph 60(f) of the Tribunal's decision, he no longer relied on the formulation of the error described in paragraph 22 of his written submission. In case I am wrong, the applicant's complaint in paragraph 22 is that "the Tribunal rejected documentary evidence". But the Tribunal, in paragraph 60(f) of its decision, did not reject the authenticity of documents. The Tribunal merely, for reasons which provide "an evident and intelligible justification" (Singh at [61]), was not satisfied "that the incidents described in the reports occurred".
In relation to paragraph 23 of the applicant's written submission:

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)