Islam v Minister for Immigration and Multicultural Affairs

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The first respondent (Minister) seeks an order fixing costs in the amount of $14,444.91. This follows delivery of judgment today in Islam v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1047.

1. The principles that inform the award of costs in a migration matter have been considered in a number of cases, including Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 (Gehlert) at [23]-[78] (Mortimer CJ, Colvin and Dowling JJ).
2. Subsections 214(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provide 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. Rule 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides:

22.02 Order for costs

(1) An application for an order for costs may be made:

(a) at any stage in a proceeding; or

(b) within 28 days after a final decree or order is made; or

(c) within any further time allowed by the Court.

(2) In making an order for costs in a proceeding, the Court may:

(a) set the amount of the costs; or

(b) set the method by which the costs are to be calculated; or

(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or

(d) set a time for payment of the costs, which may be before the proceeding is concluded.

22.09 Costs and disbursements

Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

(a) costs in accordance with Schedule 2; and

(b) disbursements properly incurred...

Note 2: For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.

(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2...

(3) This rule does not limit a party's right to apply, under Part 22, for an order as to costs of the application.

1. Part 2 of Schedule 2 to the GFL Rules contains what is commonly referred to as the Court's "scale" in relation to migration proceedings. It states the following:

Division 1 - Migration proceedings that have concluded

Costs for migration proceedings that have concluded

A proceeding concluded at or before the first court date for the proceeding

(a) after the first court date for the proceeding; and

Division 2 - Migration proceedings that have been discontinued

Costs for migration proceedings that have been discontinued

A proceeding in which the notice of discontinuance is filed and served at least 14 days before the first court date for the proceeding

A proceeding in which the notice of discontinuance is filed and served:

(a) less than 14 days before the first court date for the proceeding; and

(b) at least 15 days before an interlocutory hearing

A proceeding in which the notice of discontinuance is filed and served:

(a) less than 15 days before an interlocutory hearing; and

1. Whilst regard may be had to the Court's scale, the Court is not bound to impose it. In an application such as the present, the Court will consider what represents, "in the particular circumstances proven before it, what is a fair and just amount to fix" for costs: Gehlert at [94].

1. The Minister relies upon an affidavit of Alvin Sharma dated 10 July 2025. That affidavit details solicitor-client costs incurred by the Minister in these proceedings, which were estimated at $13,572 (excluding GST and Counsel's fees). An estimate of $900 was provided in relation to the issue of costs. Counsel fees have been incurred by the Minister in this proceeding in the amount of $3,590.91.
2. A proportion of the costs incurred relate to the Minister's summary dismissal application ($2,257) and response to the applicant's application for review of a Registrar's decision summarily dismissing his substantive application ($5,010). That application for review was successful. Considering this, I do not consider that the associated costs ought to form part of the costs awarded to the Minister.
3. Subtracting the total of those costs ($7,267) results in a figure of $7,205. Applying a discount to reduce them to what I consider is a reasonable estimate of party-party costs (in this case, a discount of 25%), and adding Counsel's fees, this results in a figure of $8,994.66. From that, I subtract the filing fee paid by the applicant in relation to the application for review in which he was successful ($475). The resulting total is $8,519.
4. The applicant submitted that the costs sought by the Minister would cause financial hardship. As was explained at the listing today, however, impecuniosity is not usually regarded as a sufficient reason not to make a costs order. However, the applicant may raise any difficulties paying with the Minister's Department and make a request for waiver or accommodation. The response to any such request will be a matter for the Minister.
5. Having regard to the circumstances of this matter as a whole, I consider that a costs award of $8,519 represents a fair and just amount to fix in relation to costs. I will so order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.