CCU21 v Minister for Home Affairs (Costs)

• Jurisdiction: Australia Federal only
• Judgment Date: 19 July 2023
• Neutral Citation: [2023] FCAFC 112
• Date: 19 July 2023
• Court: Full Federal Court (Australia)

Federal Court of Australia

CCU21 v Minister for Home Affairs (Costs) [2023] FCAFC 112

Appeal from:	CCU21 v Minister for Home Affairs [2022] FCA 28
File number:	NSD 72 of 2022
Judgment of:	PERRAM, HALLEY AND GOODMAN JJ
Date of judgment:	19 July 2023
Catchwords:	COSTS – application for each party to bear its own costs on appeal and at trial – where Appellant successful on appeal in relation to non-revocation decision but not initial cancellation decision
Legislation:	Migration Act 1958 (Cth) ss 501(3), 501(6) Federal Court Rules 2011 (Cth) r 39.04
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 Ashby v Slipper (No 2) [2014] FCAFC 67; 314 ALR 84 CCU21 v Minister for Home Affairs [2023] FCAFC 87 ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	15
Date of last submissions:	3 July 2023
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Mr T Brennan SC, Ms K Heath and Ms C Brain
Solicitor for the Appellant:	SBA Lawyers
Counsel for the Respondent:	Mr P Herzfeld SC and Mr J Wherrett
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 72 of 2022
BETWEEN:	CCU21 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	PERRAM, HALLEY AND GOODMAN JJ
DATE OF ORDER:	19 July 2023

THE COURT ORDERS THAT:

1. The Minister’s interlocutory application dated 13 June 2023 be dismissed.

2. The Minister pay the Appellant’s costs of that application as taxed, assessed or otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. The question for determination is whether the appropriate costs order is that the Minister pay the Appellant’s costs of the appeal or whether each party should pay its own. There is a related question about the costs of the trial. These reasons assume a familiarity with the Court’s reasons in CCU21 v Minister for Home Affairs [2023] FCAFC 87.

2. On 31 May 2023 the Full Court allowed the Appellant’s appeal and ordered that the Minister pay the Appellant’s costs before the Full Court and in the Court below. When the matter was argued the Minister had indicated that she wished to be heard on the question of costs regardless of the result from which the Appellant did not demur. In its reasons, the Full Court overlooked this by making the costs orders it did without hearing from the parties.

3. On 13 June 2023 the Minister filed an interlocutory application seeking a variation of the costs orders. On 14 June 2023 Perram J directed that the Court’s orders not be entered until the determination of that application. The Court therefore retains the power to vary the orders because they have not been entered: Federal Court Rules 2011 (Cth) r 39.04. The relevant principles applying to the exercise of that power are as follows: having indicated to the parties that the Court would hear argument before proceeding to make any costs order the Court denied the Minister procedural fairness in making orders adverse to her interests without first hearing from her. The circumstances in which it will be appropriate to recall an order which has not been entered under r 39.04 are not confined but one such circumstance is where it is in the interests of justice to do so: Ashby v Slipper (No 2) [2014] FCAFC 67; 314 ALR 84 at [14]-[15]. The denial of procedural fairness which has occurred necessarily dictates that the interests of justice require that the Minister now have an opportunity to argue for the costs orders she says should have been made.

4. What the Minister proposes is that in both this Court and the Court below the appropriate order would be that each party pay its own costs. She submits that there were six grounds of appeal and the Appellant succeeded on only grounds 4(a) and 5. The appeal was concerned with a challenge to two decisions by two different Ministers. The first of these was a decision to cancel the Appellant’s visa on national security grounds and the second was a decision not to revoke that cancellation. The Court upheld the cancellation decision but set aside the non-revocation decision.

5. In substance, the Minister’s point is that most of the hearing of the appeal was taken up with submissions about the cancellation decision on which the Appellant failed, and little was devoted to the non-revocation decision on which he succeeded.

6. This is an incomplete statement of what occurred. Whilst it is true that much of the hearing was devoted to the cancellation decision, most of that argument centred on the Minister’s contention that the reasoning in this Court’s decisions in ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100 (‘ENT19’) and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 (‘CWY20’) was not applicable to s 501(3) of the Migration Act 1958 (Cth) (‘the Act’). On that issue, the Minister was unsuccessful and the Court upheld the Appellant’s construction of the provisions. The Appellant failed on the issue only because the Court concluded that the factual situation of the Appellant was not the same as in ENT19 and CWY20. Thus whilst it is true that the Minister was successful in defending the cancellation decision, it was not because of the construction she advanced about s 501(3) to which most of the argument was addressed. The Minister therefore lost on the facts and the law in relation to the non-revocation decision and also lost on the law in relation to the cancellation decision.

7. The Appellant was successful on the appeal and the ordinary rule is that costs follow the event. In some cases apportionment may be appropriate. However, the basis on which the Minister seeks to apportion the costs of the appeal impermissibly conflates the Minister’s success on the facts of the cancellation decision with success on the facts and the law. If apportionment were appropriate it would involve an examination of the amount of time spent in oral argument and in the written submissions on the facts rather than the law. However, this was not the apportionment which the Minister advanced. In that circumstance, we do not accept that the costs of the appeal should be apportioned in the manner suggested by the Minister. We remain of the view that the appropriate order is that the Minister pay the Appellant’s costs of the appeal.

8. In relation to the costs of the trial the Minister contends that the Appellant did not seek to appeal from that aspect of the trial which had concerned a challenge to the decision by the Australian Security Intelligence Organisation (‘ASIO’) to issue the qualified security assessment in relation to the Appellant. The Director-General of Security was a party in the proceeding below.

9. The Minister submitted that two factors made it appropriate that there be no order as to the trial costs. The first was that the Appellant had failed against the Director-General. By ordering the Minister to pay the Appellant’s costs, it followed that the Court had ordered the Minister to pay his costs of pursuing the Director-General. We do not agree that this is the effect of the order. It is common for a court in a multi-respondent case to order a particular respondent to pay the costs of the applicant. Such an order...