Federal Court of Australia BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 8 Appeal from: Application for an extension of time and leave to appeal: BJH17 & Ors v Minister for Immigration & Anor [2017] FCCA 2932; BYI18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2222 File numbers: NSD 2002 of 2019 NSD 59 of 2020 Judgment of: ALLSOP CJ, BURLEY AND O'CALLAGHAN JJ Date of judgment: 16 February 2023 Catchwords: COSTS – where the Minister succeeded on the event but where the applicants are minor children – where litigation guardian appointed – where the matter litigated raised questions of public importance Cases cited: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1 Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 7 Date of last submissions: 5 February 2023 Date of hearing: 2 March 2022, 31 May 2022 Counsel for the Applicants Mr D Taylor Solicitor for the Applicants Sydney West Legal and Migration Counsel for the First Respondent Mr S Lloyd and Ms R Graycar Solicitor for the First Respondent MinterEllison Counsel for the Second Respondent The Second Respondent filed submitting notices in each matter save as to costs. Counsel for the Third to Sixth Respondents in NSD 2002 of 2019 The Third to Sixth Respondents did not appear. Counsel for the Third and Fourth Respondents in NSD 59 of 2020 The Third and Fourth Respondents did not appear. ORDERS NSD 2002 of 2019 BETWEEN: BKW17 First Applicant BKX17 Second Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent BJH17 Third Respondent BKV17 Fourth Respondent BKZ17 Fifth Respondent BLA17 Sixth Respondent order made by: ALLSOP CJ, BURLEY AND O'CALLAGHAN JJ DATE OF ORDER: 16 FEBRUARY 2023 THE COURT ORDERS THAT: 1. The applicants' litigation representative, being BJH17, pay 50% of the first respondent's costs of the proceedings in an amount as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 59 of 2020 BETWEEN: BYK18 First Applicant BYL18 Second Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent BYI18 Third Respondent BYJ18 Fourth Respondent order made by: ALLSOP CJ, BURLEY AND O'CALLAGHAN JJ DATE OF ORDER: 16 february 2023 THE COURT ORDERS THAT: 1. The applicants' litigation representative, being BYI18, pay 50% of the first respondent's costs of the proceedings in an amount as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 The Full Court delivered its substantive reasons for judgment in these matters on 20 January 2023: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1. The Full Court sought submissions on costs. The Full Court stated in its reasons for judgment at [45] that "[t]he Minister's costs should be paid." 2 The Minister contends that the applicants' fathers, as litigation guardians, should pay the Minister's costs. 3 The applicants (in proceeding NSD2002/2019 (proceeding 17), the two youngest, minor daughters, and in proceeding NSD59/2020 (proceeding 18), the minor son and daughter) do not dispute this, but submit that the Minister's costs should be reduced by 50% due to an "unexplained failure" on the part of the Minister to provide ESP interviews. 4 There are difficulties with both submissions. The case was conducted by the applicants on the basis that there was no litigation guardian appointed in the earlier Federal Court and High Court proceedings. The applicants' solicitor, Mr Taylor, put those submissions and it can be inferred that the fathers believed themselves not to be acting as litigation guardians. One daughter in proceeding 17 was a teenager (short of her majority) while instructions were being given for this Federal Court proceeding. The youngest daughter in proceeding 17 and the son and daughter in proceeding 18 were young children at this time. One could perhaps assume that Mr Taylor obtained instructions from the family and in all likelihood the parents, including the two fathers. There is no evidence one way or the other about who gave instructions. The fathers were respondents to the applications. Secondly, at no time did the Minister press this costs question or make it clear that he would press for costs from the fathers if successful. Thirdly, the so-called unexplained failure was the subject of excessive submissions by Mr Taylor and does not justify a halving of the costs. 5 Nonetheless, it can only be assumed that Mr Taylor must have recognised the possibility that he may be wrong in the argument and, given the age of the applicants, must have raised the possibility of the fathers' liability for costs in light of the (well-known) purpose of an order for the appointment of a litigation representative: see Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [18]. 6 We consider that, in the circumstances, the Court should make an order for costs against the applicants' litigation guardians, being the fathers. However, we are also of the view that the order for payment of the Minister's costs should be reduced by 50%. The order for reduction in costs is appropriate, not for the reasons adverted to in the applicants' submissions, but rather because of the importance of the question raised in these proceedings to the administration of migration matters in the Federal Circuit and Family Court, the Federal Court and the High Court, and the broader public interest at large in such a question being litigated. 7 We consider that Mr Taylor's approach to the argument and conduct of the matter undoubtedly increased the costs incurred by the parties. Notwithstanding this, the arguments thrown up did ventilate and resolve an important question of practice and the Minister does not seek any costs from Mr Taylor. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Burley and O'Callaghan. Associate: Dated: 16 February 2023