Markova v Minister for Immigration and Citizenship [2026] FedCFamC2G 470

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 applicants seek an order that the respondent pay their costs of a proceeding that was commenced by way of originating application lodged on 27 January and accepted for filing on 28 January 2026. By that application, the applicants sought a writ of mandamus requiring the respondent Minister to determine the applicants' application for a Carer (subclass 836) visa (Carer visa), which application had been made on 16 March 2021.
2. The application to the Court was made on an urgent basis because of the prospect that one of the applicants, who was soon to turn 23, would no longer be able to satisfy the age criterion for the grant of the Carer visa.
3. The Court accommodated the applicants' request for expedition and the application was listed for hearing on 19 February 2026.
4. However, on 6 February 2026, the respondent sent each applicant an email notifying them that they had been granted a Carer visa. On 11 February 2026 the applicants' lawyer notified the Court of this development.
5. On 13 February 2026, the Court made orders by consent that the hearing be vacated and that the parties exchanges submissions and evidence on the question of costs. This produced the following material:
6. For the applicants - an affidavit of lawyer Mr Jun Hwang Chan filed on 20 February 2026 (second Chan affidavit), submissions on costs filed on 20 February 2026 and reply submissions on costs filed on 2 March 2026. In support of their costs application, the applicants also relied on an affidavit of Mr Chan dated 27 January 2026 that had been filed in support of the relief sought in the originating application.
7. The Minister filed submissions on costs on 27 February 2026 and an affidavit of lawyer Mr Adam Cunynghame affirmed on the same day.

1. The applicants assert an entitlement to costs on the basis that the chronology of events leading up to and post-dating the application to this Court supports an inference that the respondent granted the visa only after and because of the commencement of these proceedings.
2. The chronology and other factual matters upon which the applicants rely is as follows, noting that in some respects (and where indicated) the respondent takes a different view of things.
3. First, the applicants applied for a Carer visa on 16 March 2021. Visas of this kind are subject to "queuing" arrangements, meaning that they are batched up by order of date of application and placed in a "queue" until sufficient visas are available for grant, relying ostensibly on ss 85-86 and 90-91 of the Migration Act 1958 (Cth) (Act).
4. Second, on 16 January 2024, the applicants were assigned a "queue date" by the Department of Home Affairs (Department) of 27 December 2023.
5. Third, on 18 November 2025, the applicants requested priority processing of their application based on their apprehension that one of the applicants would "age out" by the time their application was reached for consideration. In their communication to the Department, the applicants noted that section 9 of Ministerial Direction 102 contemplated special circumstances of a compassionate nature in which Carer visa applications might be processed out of date-queue order, and the applicants submitted that they fell within those exceptions.
6. Fourth, by email sent on 5 December 2025, the Department refused the applicants' request for priority processing. The email stated that the Carer visa applications of Ms Markova and her family had passed initial assessment and had been placed in queue with a queue date of 27 December 2023. They were yet to be released from the queue for final processing. The email noted that as at 31 October 2025, the Department was assessing Carer visa applications with queue dates of up to 31 October 2023.
7. Fifth, on 27 January 2026, the applicants commenced this proceeding.
8. The applicants submit that thereafter a "flurry of processing activity" occurred within the Department which it can be inferred was responsive to the commencement of the proceeding. This activity led to the grant of the Carer visas, being the remedy sought by the applicants.
9. The applicants describe the processing activity as conspicuous for occurring after the earlier refusal to alter the date-order processing and because no explanation for the change in position was provided.
10. The applicant submit it to be significant that even now the Department's website still states that the applicants' queue date has not been reached.
11. The applicants invite the Court to draw the inference from the above sequence of events that the conduct of the respondent involves a capitulation. The applicants submit that this is a discretionary basis for the award of costs, relying on GPBL v Commonwealth of Australia [2024] FCA 830 at [10], [40].
12. The applicants make the further submission that they only had to incur the expense of these proceedings after being told on 5 December 2025 that they would remain queued. The applicants refer to Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201 where it was said that "[i]n a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation". The applicants submit that this is a separate and further basis for costs (referring to Miller v Kristen (No 2) [2023] FCA 1034 at [92]- [96] which was upheld on appeal).

1. The respondent submits that the applicants' case for costs is factually incorrect.
2. The respondent relies on the following chronology of events to defeat the premise of the applicants' case, being that its conduct necessitated the bringing of this application.
3. First, on 21 January 2026, one week before the judicial review application was filed, the Child, Other Family, and Temporary Visa Section of the Department supported the release of Carer visa applications queued in the November/December 2023 cohort. This followed an internal email from the Manager of the section dated 20 January 2026 which stated that it was anticipated they could "get the RFIs [being, Requests for Information] out in a week or two".
4. Second, the respondent observed that at 4.54 pm on 28 January 2026, "a week or two after" this email was sent, an RFI was sent to the applicants, care of their legal representatives. The respondent submits it to be significant that the RFI was sent only a couple of hours after service of the judicial review application, with there being no evidence to support an inference that the sender of the RFI was aware of the judicial review application.
5. The respondent submits that the applicants' reliance on GPBL is misplaced describing the case as "plainly distinguishable" from the current application. The respondent notes that in GPBL, the Minister granted the applicant a protection visa within a day of the habeas corpus application being brought and in circumstances where the Minister conceded that "the applicant was likely to be entitled to mandamus" (at [39]). The respondent submits that in this case instead, he makes no concession that the applicants would have been successful had the matter been fully tried (referring to GPBL at [7], which in turn refers to Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622).
6. The respondent submits that the applicants are not assisted by Miller v Kristen in circumstances where the Court accepted in that case that the relevant party had acted unreasonably and where the successful costs applicant almost certainly would have been successful in her application (Miller v Kristen at [93]). The respondent submits that there is no evidence to support a finding that he has acted unreasonably in this case.
7. The respondent also makes the observation that there is a lack of clarity from the applicants as to what precisely they seek by way of costs. He asks, rhetorically, whether it is an amount in accordance with the scale or instead, some or all of the figure set out in the second Chan affidavit at paragraph [16].
8. The respondent submits that no amount of costs should be awarded in favour of the applicant and instead an order should be made that the applicants pay the respondent's costs fixed in the sum of $905.96, being the applicable scale amount for a matter discontinued within 30 days of having been filed.

1. The applicants submit that the evidence relied upon by the respondent to defeat their costs argument, being primarily an email chain from 20 and 21 January 2026, fails to confront the applicants' evidence that the Department's own website - as at 6 February 2026 - still recorded that the queue release date was 31 October 2023.
2. The applicants submit that the emails of 20 and 21 January 2026 reveal only that at this time bureaucrats were discussing "our current thinking" about the possibility of processing applications with December 2023 queue dates. The discussion in the email chain was described as no more than a "tentative contemplation". The higher-ranking "Leonie" did not say that December 2023 applications were to begin being processed; she only said she was "highly supportive" of the idea.
3. The applicants submitted that the emails were unhelpful in any case because they were far too generalised. The applicants noted that the respondent had not put forward any evidence that any processing step for the applicants was in train at the time that the proceeding was commenced.
4. The applicants are critical of the failure of the respondent to identify any authority for the assertion said to arise implicitly from its submissions, that knowledge of the proceeding is a relevant consideration. The applicants submit that the question of awareness and its attribution to senior officers is not explored or evidenced in any case such that it cannot inform the costs question.
5. The applicants confirm that the order they seek is an order that the respondent pay their costs of the proceeding which amount is $17,095. They acknowledge that this amount exceeds that prescribed under the Court scale but submit that scale is not appropriate in this case because of the unusual features relating to the subject matter and expedition. The applicants submit that theirs was not "a simple run-of-the-mill migration judicial review proceeding" (referring to Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 at [97]) and the Minister has not contended that the incurred costs are unreasonable (Gehlert at [99]). The applicants submit that if the Court was minded to award scale costs, that scale amount should be in addition to the filing fee, which is a sum the applicants are entitled to have separately (Gehlert at [100]).

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) which relevantly provides:

(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. The amount sought by the applicants is above what is commonly referred to as the Court's "scale". Rule 25.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (FCFCOA Rules) provides in respect of proceedings under the Migration Act as follows:

(1) When the Court determines that a party is entitled to costs in a proceeding to which this Part applies, the party may seek costs and disbursements up to, and including, the amounts specified by Division 1 of Part 3 of Schedule 2, together with the amount of any filing or Court fees paid in relation to the proceeding.

(2) The Court may order costs in excess of those specified in Division 1 of Part 3 of Schedule 2 if, in the Court's opinion, there is sufficient reason and it is in the interests of justice to do so.

(3) The Court may by order specify the maximum costs that may be recovered as between party and party.

(4) If:

(a) the applicant files a notice of discontinuance in a proceeding in which a respondent has sought costs in the response; and

(b) the applicant does not file with the notice an application as to costs;

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

Note 1: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).

Note 2: Disbursements include counsel's fees.

Note 3: For discontinuance, see Division 23.1 of these Rules.

Note 4: For the exercise of jurisdiction in Chambers, see section 136 of the Act.

1. Division 32.2 (calculation of costs) of Part 32 (Costs) of the Rules applies to costs payable, or to be taxed, under an Act, these Rules or an order of the Court, in a proceeding.
2. Rule 32.07 (which appears in this Division) provides that:

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 1: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).

Note 2: For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.

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

1. Where a party's case is vindicated through a process of judicial determination, it is generally a straightforward matter to evaluate where there has been success and to fix costs according to the general principle that "costs follow the event". The question is more complicated in a proceeding such as this one where the relief sought in the application is granted without the need for a hearing on the merits.
2. In Lai Qin, an application for judicial review of the Refugee Review Tribunal's decision to affirm a decision not to grant the applicant a protection visa, was rendered moot by the Minister exercising a personal discretion to grant the applicant a protection visa under s 417 of the Act. McHugh J explained at 624-625:

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties...To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties had acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation.

...

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried...

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.

1. A more recent exposition of the principles to be applied where a case is finalised before there is an adjudication of the merits can be found in FCA US LLC v Mahindra Automotive Australia Pty Ltd [2021] FCA 1091 where at [33] and [35] Halley J identified two circumstances where it might be appropriate to depart from the usual course that the Court make no order for costs.
   1. First, the Court may make an order for costs in favour of a party notwithstanding that there has been no hearing on the merits in circumstances where one party has had a substantial victory and the other a substantial loss, or there has been a marked different in the reasonableness of the actions taken by the parties: Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 at [5] (Davies AJA with whom Mason P and Meagher agreed).

...

1. Second, where the Court is satisfied that one party has effectively surrendered or capitulated it may also make a costs order in favour of the other party notwithstanding there has no determination of the merits of the proceeding. The following principles emerge from the authorities with respect to surrender or capitulation:

(a) either an applicant or respondent might be found to have effectively surrendered or capitulated;

(b) it is necessary to have regard to the conduct of the parties not to determine whether a party has acted in a manner that can objectively be characterised as unreasonable, but rather to determine whether by their respective conduct one party has, in substance, capitulated or surrendered to the other party: see generally Chapman v Luminis Pty Ltd [2003] FCAFC 162 (Chapman) at [5]-[8] (Beaumont, Sundberg and Hely JJ); Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34 at [19]- [20] (Tate, McLeish and Hargrave JJA); cf Diamond Ace Super Fund Pty Ltd v Rodapa Development Pty Ltd [2020] FCA 1582 (Diamond Ace) at [65]-[68] (Griffiths J);

(c) it is necessary to distinguish between cases in which a party seeking to discontinue proceedings can be said to have effectively surrendered or capitulated and cases in which a supervening event renders the proceedings futile or moot: Diamond Ace at [59] (Griffiths J) citing Travaglini v Raccuia [2012] FCA 620 at [13] (McKerracher J); and Chapman at [7], citing ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) at [6] (Burchett J);

(d) an assessment of the degree to which the outcome achieves the relief sought is a threshold issue of significant weight in determining whether a party has effectively surrendered or capitulated. A party does not have to achieve complete success in order to establish that the other party effectively surrendered or capitulated. It is enough to demonstrate that the outcome secured sufficiently achieves the party's purpose in bringing the proceedings: Diamond Ace at [67]; Balangarra Aboriginal Corporation v State of Western Australia [2018] FCA 1538 (Balangarra) at [50] (Barker J); Stephens v Sena, in the matter of Vtara Solar Pty Ltd [2020] FCA 1179 at [30] (Stewart J);

(e) generally it is not the function of the Court to make a prediction as to the outcome of a hypothetical case in assessing the degree of success or failure achieved by a party in proceedings in which there has been no determination of the merits: Elevate Brandpartners Ltd v Hammond (No 4) [2020] FCA 421 (Elevate Brandpartners (No 4)) at [20] (Stewart J); Clark v ING Life Limited [2007] FCA 1960 at [16] (Rares J); Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited (2010) 265 ALR 112; [2020] FCAFC 16 at [118]- [119] (Jacobson, Siopis and Foster JJ); Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 at 6 (Lee, Tamberlin and R D Nicholson JJ); and

(f) in some cases it is relevant to have regard to the likelihood of success, but only insofar as it is possible to identify a likely "clear winner": ONE.TEL at [7]; and Balanggarra at [71]-[73].

1. Here, the applicants submit that the conduct of the respondent was both unreasonable and involved a capitulation, which in turn implies a concession as to the merits of their case.
2. The applicants rely on GPBL as supporting the capitulation analysis. In that case, the applicant had brought proceedings by which he claimed that his ongoing detention while his application for a protection visa was pending, was unlawful. He sought the issue of a writ of habeas corpus to bring his detention to an end.
3. Within a few days of bringing the application (and on the day before the application had been scheduled for urgent hearing), the Minister decided to grant the applicant a protection visa. The hearing did not proceed.
4. The applicant sought an order that the respondents pay his costs on an indemnity basis of his application up until the making of the decision to grant him a visa. The Court (Colvin J) found that the respondents should pay the applicant's costs up until the date the visa was granted but on the usual basis, rather than to provide a full indemnity.
5. The respondents had put before the Court evidence as to the usual steps that might occur when a protection visa matter was remitted from the Tribunal for redetermination. However, in circumstances where the remitter had been circumscribed by findings as to the ability of the applicant to satisfy certain visa requirements, which the Court inferred would have expedited the remittal process, Colvin J rejected the contention that the grant of the protection visa was an intervening event that was the culmination of the ordinary course of events. Instead, his Honour found that "upon commencement of proceedings urgent steps were taken to prepare a VAPA [Visa Applicant Primary Assessment] and that resulted in the determination of the protection visa application within a day. The taking of those steps involved a concession by the Minister that, by the time of the proceedings, the applicant was likely to be entitled to mandamus".[1]
6. Here, the question devolves to whether the grant of a Carer visa to the applicants should be construed as evidence of surrender or capitulation by the respondent or instead, the interposition of a supervening event which removed the necessity for the Court to determine the applicants' application. Resolution of the question directs attention to the conduct of the respondent.
7. Some of this conduct has been identified by reference to the parties' submissions above. However, it is necessary to draw out some of that conduct, including that which occurred at a time proximate to the date of filing the application and the decision to grant the Carer visas.
8. While the applicants suggest that the "flurry of activity" is tantamount to the waving of a white flag, the respondent invites the Court to consider the activity more benevolently and involving the implementation of standard and uniform processing decisions for the Carer visa applicant cohort.
9. The evidence before the Court is that within two hours of the applicants serving sealed copies of their application and supporting material on the respondent's litigation section the applicants' lawyer had been contacted by a representative from the Department with a request for information. A further request for information was made by the Department on 4 February 2026. It is clear that the applicants' lawyers acted with expedition to get information back to the Department to assist with the processing and the visas were then granted on 6 February 2026.
10. The respondent invites the Court to assess this processing activity in context which it says includes email correspondence sent by officers of the Department in January 2026.
11. The first email was sent on 20 January 2026 by a person identified as "Daniel" and described as Manager, Other Family Visas and SPTV, Citizenship, Humanitarian, Family Visa Programs & Support Division, Immigration Programs Group. It reads (as to those parts that are not redacted):

Hi Leonie,

Here is a summary of our current thinking with respect to Other Family queue releases - I'd appreciate your thoughts.

The Carer release is needed to bring in the program. We anticipate we can get RFIs out in a week or two as there are only about 25 letters to go out.

Queued Applications in Upcoming Months

1. The second email was sent on 21 January 2026 by a person identified as "Leonie" and described as the Asst Director Child, Other Family and Temporary Parent Visa Section, Family & Offshore Humanitarian Delivery Branch, Citizenship, Humanitarian, Family Visa Programs & Support Division - Immigration Programs Group. It reads (as to those parts that are not redacted):

Thanks Daniel,

I am highly supportive of the carer's release to include the December 2023 cases, this release will take the pressure off many stakeholders in the Department. [REDACTED]

Leonie

1. The applicants submit that these general emails stand in contrast to the information published on the Department's website and accessed on 20 February 2026 which records that "as at 31 December 2025" only applications queued up to 30 October 2023 have been released from the queue.

1. The applicants ask the Court to depart from the usual approach to costs in a case where there has been no adjudication of the merits of the substantive claim. They bear the persuasive onus on the balance of probabilities that there are circumstances about this case, and in particular arising from the conduct of the respondent, that justifies this departure.
2. Having reflected carefully on the evidence and submissions of the parties I am not satisfied that they have discharged this onus.
3. While the material provided by the respondent is somewhat glib and does not descend to the particulars of the applicants' individual circumstances, I do not accept that it is incapable of shedding light on what was occurring vis à vis the progression of the applicants' Carer visa applications.
4. The emails that are before the Court involve an exchange between officers of the Department with titles that suggest they occupy positions of relative seniority. These emails indicate that the Department was considering a proposal for the release and processing of a cohort of visa applicants, to which the applicants belong, and that this proposal was subsequently endorsed. These communications were exchanged before the applicants filed their application with the Court.
5. The emails foreshadow that RFIs will be sent within a timeframe of a week or two and this timeframe was given effect with respect to the applicants, who received an RFI on 28 January 2026. While it might be serendipity that these steps were taken so close to the making of the application, the fact that processing of the applicants' visas did take place in this timeframe is not altogether surprising, given that their cohort (along with November 2023) were the "next in line" for release.
6. I acknowledge the applicants' reliance on information published on the Department website, but that information is consistent with the messages conveyed in the internal Department emails. In other words, as at 31 December 2025, only applications queued up to 30 October 2023 had been released from the queue, with the release of the November and December 2023 cohort apparently happening in the new year.
7. It is also unsurprising that in circumstances where the applicants had passed the initial assessment and information was provided efficiently by their legal representatives, that visas were approved before the hearing date. On one view, the efficient process saved the parties the expense of filing material directed at the substantive application.
8. As far as the applicants also submit that the respondent engaged in unreasonable conduct that precipitated the litigation by communicating on 5 December 2025 that they (the applicants) were to retain their place in the queue, I do not accept this characterisation. The communication reflected the state of affairs at the time it was communicated. It did not preclude the possibility that (as apparently happened) the applicants' Carer visa applications would be processed within a relatively short period of time, with the release of their cohort from the queue for processing.
9. In these circumstances, where there is no reason to depart from the usual course, it is appropriate that there be no order as to costs, including, for the avoidance of doubt, any order that the applicants' pay the Minister's costs at scale.
10. Where the application has not formally been discontinued, I will also order that this occur so that it can be administratively finalised.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.