consideration
13 It is clear that Mr Moss has not attended today and, given the conversation Ms Burnett had with the person who identified herself as Ashley at the Villawood Immigration Detention Centre, does not intend to appear today despite arrangements having been made on behalf of the Minister for him to do so.
14 The Minister made an application that the proceeding be dismissed for want of jurisdiction, that is, because the Court has no jurisdiction to hear the matter. The question of jurisdiction was raised with Mr Moss and he was invited, and given an opportunity, to file an amended application. He has not done so.
15 The originating application filed by Mr Moss seeks judicial review of a decision made by a delegate of the Minister on 5 August 2016 not to revoke, under s 501CA(4) of the Act, the mandatory decision under s 501(3A) to cancel the Visa. The delegate's decision was affirmed by the Tribunal on 12 July 2017.
16 This Court does not have jurisdiction to review the delegate's decision. Section 476A(1)(c) of the Act gives this Court jurisdiction in relation to a migration decision if, and only if, the decision is a privative clause decision, or a purported privative clause decision, made personally by the Minister under ss 501, 501A, 501B, 501BA, 501C or 501CA. The decision that is sought to be reviewed is not within the confines of s 476A of the Act.
17 In those circumstances, the Court having no jurisdiction, I would accede to the application made by the Minister that the originating application should be dismissed.
18 The Minister also made an application for payment of his costs and for those costs to be fixed in the amount of $10,500 or such other sum as the Court deems fit pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).
19 An affidavit sworn by Ms Burnett on 20 October 2017 was relied on by the Minister in support of that application. That affidavit has not been served on Mr Moss as it was intended to provide a copy of it to him this morning. Despite that fact, given Mr Moss' refusal to attend this morning, I am prepared to consider the application for a fixed sum costs order.
20 Ms Burnett has set out those tasks undertaken in preparation of this matter for hearing and the costs incurred by the Minister in undertaking those tasks, as well as disbursements, being counsel's fees, that have or will be incurred in respect of the proceeding. Ms Burnett has also indicated that, upon a taxation of costs in this Court, the Minister generally recovers between 65% and 75% of his professional costs incurred. On that basis she has calculated that the Minister would recover a sum within the range of $10,049 and $11,257 by applying those percentages to the professional fees incurred and adding counsel's fees. In those circumstances, the Minister effectively seeks the midpoint of those amounts, being $10,500.
21 I am satisfied that it is appropriate to make a lump sum costs order, that the calculation reflects a reasonable amount that the Minister would recover and that an order for payment of costs fixed in the amount of $10,500 should be made.
22 In those circumstances, I will make the orders sought by the Minister today.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.