Introduction
After a successful migration appeal, many applicants wonder if they can recover their legal costs from the Department of Home Affairs. While it seems like a fair question, the answer is nuanced and depends heavily on which court or tribunal heard the case, as the general rule in Australian litigation is that each party is responsible for their own legal expenses.
This guide provides essential information on the recovery of costs, clarifying the critical differences between appeals heard in the Administrative Review Tribunal (ART), which cannot award costs, and those in the Federal Courts. We will explore the exceptional circumstances where a court might use its discretionary power to order the Department to pay legal costs, helping you understand the application process and manage expectations for your case.
The General Rule: Each Party Bears Their Legal Costs
In Australian litigation, including migration matters, the foundational principle is that each party is responsible for paying their own legal fees. This means that even if you win your visa appeal, you cannot automatically expect the Department of Home Affairs to reimburse the costs associated with your legal representation.
The recovery of legal expenses is not an automatic entitlement. Instead, it depends entirely on whether a court or tribunal makes a specific order for one party to pay the other’s costs. This approach is often considered promoting access to justice, as it can reduce the financial risk for individuals challenging government decisions, particularly in tribunal settings.
While courts sometimes operate on a “loser pays” principle, where costs “follow the event,” this is not absolute and is always subject to the court’s discretion. The starting point remains that you should be prepared to cover your own legal expenses, as obtaining a costs order is the exception rather than the rule.
Administrative Review Tribunal Appeals: Why Costs Orders Are Unavailable
If your visa appeal is reviewed by the ART, it is important to understand that this body does not have the legal authority to order the Department of Home Affairs to pay your legal costs. This rule applies to all migration matters, meaning that even if you have a successful outcome, you cannot recover the fees you paid for legal representation from the Commonwealth government.
The ART is designed to be an accessible and less formal avenue for challenging government decisions. As a merits review body, it operates under specific limitations established by its governing legislation, the Administrative Review Tribunal Act 2024 (Cth), which does not grant it the power to award costs.
Consequently, every party involved in an ART appeal is responsible for their expenses incurred during the application process. This includes:
- Applicants represented by a lawyer
- Those using a migration agent
- Self-represented applicants
While you cannot be reimbursed for legal work, a successful appeal at the ART may result in a partial refund of the application fee you paid to the tribunal. Depending on the type of decision reviewed and your financial circumstances, you might receive a 50% refund of the filing fee. However, this refund does not cover any of the other costs associated with your appeal, such as the total cost of professional legal support.
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Federal Court Appeals & Recovering Legal Costs
The Legal Test for a Costs Order: Proving Unreasonable Conduct
Winning your judicial review appeal is not enough to guarantee the recovery of costs. In court appeals, the Federal Courts have the discretionary power to award costs, but this power is typically reserved for cases where the Department of Home Affairs has acted unreasonably during the litigation process. The focus is not on the original flawed decision, but on the Department’s conduct in defending that decision in court.
The standard for what constitutes “unreasonable conduct” is high. This legal test is informed by the Commonwealth’s Model Litigant Obligations, which require government parties to act with fairness and efficiency. A failure to meet this heightened standard can be a strong basis for a costs order.
Examples of conduct that a court might consider unreasonable include:
| Type of Unreasonable Conduct | Description |
|---|---|
| Defending a hopeless case | Persisting with a defence despite irrefutable evidence or clear legal authority showing the decision was based on a jurisdictional error. |
| Causing unnecessary delays | Unreasonably prolonging proceedings, which forces the applicant to incur additional legal expenses. |
| Failing to concede error | Refusing to accept a clear legal mistake early in the process, forcing the matter to proceed further than necessary. |
| Breaching Model Litigant Obligations | Failing to act promptly or efficiently, or not making an early, candid assessment of the case’s prospects of success. |
The case of EGH19 v Minister for Home Affairs (No 2) [2021] FCA 903 illustrates this principle, where costs were awarded because the Minister’s flawed reasoning and failure to properly engage with evidence unnecessarily prolonged the litigation.
Fixed Cost Orders Explained
When a Federal Court does award costs in a migration matter, the amount is usually determined by a “fixed cost order.” These are predetermined amounts set out in court rules, specifically Part 3 of Schedule 2 to the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021. This system is designed to provide certainty and avoid lengthy disputes over the calculation of legal fees.
The amount you may recover depends on the stage at which the legal action concludes. For instance, the fixed amounts for concluded proceedings are structured as follows:
| Stage of Proceeding (Concluded) | Fixed Amount (incl. GST) |
|---|---|
| At or before the first court date | $1,821.21 |
| After the first court date but before the final hearing | $4,553.02 |
| At a final hearing | $9,097.93 |
A different schedule applies if the Department concedes and the case is discontinued. It is important to understand that these fixed amounts are for “party-party costs,” which typically represent only a portion of the total cost billed by your solicitor. In most cases, a fixed cost order will be less than your actual legal bill.
The Application Process for a Costs Order
To seek the recovery of costs from the Department, a formal application must be made to the court. This request is generally included in your initial judicial review application, or can be filed as a separate notice after you receive a successful judgment. You must be given a reasonable opportunity to present arguments for why a costs order should be made.
The application process typically involves these steps:
| Step | Description |
|---|---|
| 1. Making the Request | Your lawyer will formally ask the court to make a costs order in your favour, either at the final hearing or through written submissions. |
| 2. Providing Justification | You must present arguments explaining why the Department’s conduct was unreasonable, potentially providing evidence of delays or failure to adhere to Model Litigant Obligations. |
| 3. Court’s Decision | The judge will consider arguments from both sides and use judicial discretion to decide whether to award costs, typically for a fixed amount. |
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Managing Expectations: Why Recovering Legal Costs Is Rare
It is crucial to understand that securing a costs order against the Department of Home Affairs is the exception, not the rule. Even after a successful judicial review in a Federal Court, the recovery of costs is not an automatic entitlement.
The court’s power to award costs is entirely discretionary, and judges are often cautious about making such orders against a government department. This caution stems from several important factors:
| Factor | Explanation |
|---|---|
| High legal standard required | You must prove the Department’s conduct during litigation was unreasonable, not just that its original decision was flawed. This is a difficult threshold to meet. |
| Public interest considerations | Courts may decide against awarding costs if the case involved a genuine legal dispute or if the Department’s defence, while unsuccessful, was considered arguable. |
Even in the rare event that a costs order is granted, it is important to manage expectations about the amount you can recover. The court will typically award costs on a fixed scale, which provides for predetermined amounts that are almost always less than the total cost of your legal bill. This means a successful application will likely only cover a portion of the expenses incurred for legal support.
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Conclusion
After a successful migration appeal, recovering legal costs depends entirely on where your case was heard, as the ART cannot award them. While Federal Courts possess the discretionary power to order the Department of Home Affairs to pay, this is a rare exception reserved for cases involving unreasonable conduct during the litigation process.
Given the complexities of judicial review and the high threshold for recovering costs, seeking specialised legal advice is crucial to understanding your position. Contact the expert migration appeal lawyers at Moya Migration Law in Adelaide today for trusted expertise and tailored strategies to help secure your best possible outcome.
