Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB

• Jurisdiction: Australia Federal only
• Judgment Date: 05 November 2021
• Neutral Citation: [2021] FCAFC 194
• Date: 05 November 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194

Appeal from:	Application for extension of time and leave to appeal from: MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)[2021] FCA 559
File number(s):	VID 324 of 2021
Judgment of:	GRIFFITHS, THOMAS AND STEWART JJ
Date of judgment:	5 November 2021
Date of publication of reasons:	8 November 2021
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from costs order made in relation to failure of respondent below to obtain an order in the nature of habeas corpus – interlocutory application to adduce fresh evidence – where the primary judge ordered there be no order as to costs – whether arguable case primary judge proceeded on mistake of fact, took into account irrelevant considerations or incorrectly applied Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 – discretionary costs judgment turning on particular circumstances of the case – no arguable grounds of appeal – no substantial injustice if leave to appeal refused – held: applications dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24(1A), 27
Cases cited:	Aldi Foods Pty Ltd v Transport Workers’ Union of Australia [2020] FCAFC 231; 282 FCR 174 Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306 CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1441 Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 Décor Corporation Pty Ltd v Dart Industrial Inc (1991) 33 FCR 397 District Council of Streaky Bay v Wilson [2021] FCAFC 181 Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 7 House v King [1936] HCA 40; 55 CLR 499 Hudson v Sigalla [2016] FCA 1204 MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 Northern Land Council v Quall (No 3) [2021] FCAFC 2 Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 Snowside Pty Ltd atf Snowside Trust, in the matter of Boart Longyear Ltd [2019] FCA 2159 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 Tenser v Quigley [2016] FCAFC 178 Zreika v Royal [2019] FCAFC 82; 271 FCR 65
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	35
Date of hearing:	5 November 2021
Counsel for the Applicants:	Mr C Tran with Ms N Wootton
Solicitor for the Applicants:	Australian Government Solicitor
Counsel for the Respondent:	Mr M Albert with Mr J Barrington
Solicitor for the Respondent:	Russell Kennedy Lawyers

ORDERS

		VID 324 of 2021
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Applicant ; COMMONWEALTH OF AUSTRALIA Second Applicant
AND:	MB Respondent

order made by:	GRIFFITHS, THOMAS AND STEWART JJ
DATE OF ORDER:	5 November 2021

THE COURT ORDERS THAT:

1. The application for an extension of time and leave to appeal filed on 15 June 2021 be dismissed.

2. The interlocutory application filed on 15 June 2021 be dismissed.

3. The applicants pay the respondent’s costs of the application and interlocutory application as agreed or taxed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

GRIFFITHS J:

1. The applicants seek an extension of time and leave to appeal from a costs judgment and orders made by a Judge of this Court on 26 May 2021, whose reasons for judgment are reported as MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 (Costs Judgment). After hearing argument, the primary judge ordered that there by no order as to costs in relation to the now respondent’s failure below to obtain an order in the nature of habeas corpus: see MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442.

2. By way of an interlocutory application filed on 15 June 2021, the applicants also seek leave to adduce further evidence on the application for leave to appeal and any appeal, being annexures HDD-1 and HDD-2 to the affidavit of Hervee Dupont Dejean affirmed on 9 June 2021.

3. The primary judge referred at [4] of the Costs Judgment to the Full Court’s decision in Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497. There, the Full Court (French, Sackville and Hely JJ) referred to the principle stated by Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22], to the effect that there is a public interest in ensuring that persons who are detained against their will are not inhibited from seeking their liberty, including by the impediment of an adverse costs order. The primary judge in the present proceeding noted at [4] MB’s concession that Te makes clear that the Cabal principle should not be applied as an “inflexible rule of law”. In my view that is undoubtedly correct. The primary judge proceeded to determine the issue of costs on the basis that the Cabal principle was nevertheless relevant to the exercise of the Court’s discretion, along with other factors. This approach was consistent with the now applicants’ position as summarised by the primary judge at [5], where they are recorded as accepting that the Cabal principle was a relevant, but not determinative, factor.

4. The primary judge gave detailed reasons for rejecting each of the contentions advanced by the now applicants in favour of an order of costs being made in their favour. In particular, the primary judge addressed their contention below that the proceedings were “significantly analogous to that in Te”. At [6], the primary judge noted the applicants’ proposition that, consistently with Te, there was no evidence contrary to the applicants’ primary case which had been accepted by the Court in the substantive proceeding. His Honour then noted the applicants’ separate submission concerning costs that delay in providing MB with medical attention had not been an issue in the case. The primary judge explained why he rejected both those contentions at [8]-[14].

5. His Honour stated at [8] that the question of delay in MB’s medical treatment and proposition that there was no conflicting evidence “are inherently interrelated in the facts in MB”. His Honour noted at [9] that MB had been brought to Australia from Nauru for the temporary purpose of receiving medical treatment for his gastrointestinal condition and that, in the light of affidavit evidence in the substantive proceeding that MB had been provided with some basic medical treatment, he still needed further medical treatment (at [11]). Accordingly, the primary...