Anees v Minister for Immigration and Border Protection

1. The First Respondent pay the Appellant's costs of the appeal as agreed or as taxed.
2. The order made on 8 February 2019 by the primary judge for costs in that proceeding not be disturbed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 2 March 2020 this Court made the following orders for the reasons it published as Anees v Minister for Immigration and Border Protection [2020] FCAFC 28: 1. The Appellant have leave to file a Further Amended Notice of Appeal and to rely on an appeal ground particular not advanced before the primary judge. 2. The appeal is upheld. 3. The orders of the primary judge made on 8 February 2019 save for the orders as to costs are set aside, and in lieu thereof the decision of the Second Respondent is quashed and the matter is remitted to the Second Respondent for determination according to law. 4. In the absence of agreement between the parties on the question of the costs of the appeal and the order as to costs made by the primary judge, each party file and serve a short written submission (of 2 pages or less) on or before 10 days after the making of this order. 2 These reasons should be read in conjunction with that judgment. 3 Consistently with the opportunity provided to them, each party has filed written submissions in relation to the issue of costs. 4 The orders sought by the Appellant are as follows: 1. The Appellant submits that the following orders are appropriate: (a) The Costs Order from the first instance decision of Allsop CJ in favour of the Respondents be set aside with no further order as to costs; and (b) Costs of the appeal be awarded to the Appellant. 2. If the Court does not consider that the Appellant should be entitled to all of his costs, the Appellant submits that an appropriate alternative would be to order the costs of the appeal to the Appellant from 14 November 2019, with the costs of the parties prior to this date borne by each party separately. 5 Those sought by the Minister are that Order 3 of the orders made by this Court on 2 March 2020 should not be disturbed, and that: a) the Appellant should pay the costs of day 1 (14 November 2019) [occupied by argument on the ground of appeal upon which the Minister was ultimately successful, and consideration as to whether leave to add a new ground might be given] b) otherwise, the Minister should pay the Appellant's costs of the appeal. 6 In support of the orders for which the Appellant contends, he submits that the ordinary rule is that a successful party is entitled to its costs. If an appeal succeeds then the court will order the respondent to pay the costs of the appeal and of the proceeding at first instance unless there are special circumstances justifying some other order. 7 In that regard the Appellant's counsel, Mr Burnside QC and Mr Watkins, submit: 5. The original and amended grounds all shared a common basis with substantial overlap - one was focused on a single piece of character evidence, and the successful ground was concerned with the absence of consideration of the character evidence more generally in the assessment of risk of future offending. The costs should not be split among the grounds in circumstances where the underlying complaint - jurisdictional error for failure to consider relevant, significant and material evidence - was established. 6. While the court may depart from the ordinary rule that costs follow the event where a new ground is raised on appeal, this is a discretionary matter that is not appropriate in this case: (a) Appellant's conduct of the case: The new ground was not raised before the Federal Court as it had not been identified by the Appellant's legal representatives at the time. The ground was not intentionally withheld; the decision to raise the additional ground was only made after questioning from the Court on 14 November 2019. It does not adversely affect the integrity of the appellate process. After the Court raised the additional ground with the parties, the Respondent did not concede it and the Appellant was required to raise argument in respect of it (that was ultimately persuasive). (b) Migration Matter: Awarding costs against the successful Appellant in any form is not in the interest of justice. An award of costs against the Appellant may deprive him of a benefit what would otherwise be a potential concomitant of his success on appeal, namely the grant of a visa (other than under s. 195A of the Act). This is because, the Appellant's visa has been cancelled and a costs order would result in a debt to the Commonwealth. This in turn would mean that if the matter were to be remitted from the AAT to the Department he would need to meet PIC 4004 in circumstances that would very likely preclude him from being able to do so. He will remain in detention (he has already been detained for a lengthy period without the capacity to work and with no savings to pay the debt. As such would be unable to satisfy the debt. If he were to fail to meet this criterion, his application would be at considerable risk of refusal. This prejudice to the Appellant weighs against an award of costs in the Respondents' favour. (c) Ambiguous Exhibits and New Facts: In relation to the unsuccessful grounds, it was not clear until after the hearing that the letter of Dr Salter dated 5 December 2016 (AB1163) was not annexed to the Report of Mr Warren Simmons. The lack of clarity regarding this document was caused by: the way in which documents were tendered at the AAT (the transcript did not assist in clarifying this matter) and the fact that neither the court book at first instance nor the appeal book contained a list of tendered exhibits (in circumstances in which the Respondents' representatives prepared both books, the latter around May 2019). The issue was not resolved until after the hearing, as noted in the Joint Note on the provision of Dr Salter's letter dated 15 January 2020. (Footnotes omitted). 8 Conversely, in support of the order sought by the Minister that the orders of the court below not be disturbed Ms Whittemore submits: 3. On 8 February 2019, the primary Judge (Chief Justice Allsop) made an order that the application for judicial review be dismissed with costs. The Full Court should not disturb the costs order made in the Minister's favour by the primary judge on the basis that the appellant succeeded in the Full Court proceedings on a new ground which was not raised by the represented appellant in the proceedings before the primary Judge. The Full Court has taken this approach previously (see Uriaere v Minister for Home Affairs [2019] FCAFC 235 (Flick, Bromwich, Burley JJ), at [23] and Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173 (Besanko, Perry and Stewart JJ), at [55]). 9 As to the costs of the appeal, Ms Whittemore submits: 6. Because of the appellant's amendment on the first day of the hearing, it was not possible for the Minister fairly to respond on that day. In effect, the appellant's late application to amend on that day caused the adjournment. The appellant should pay the costs of that day (cf. Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91 at [85]), especially when he was ultimately unsuccessful on the ground of appeal that had up to that point advanced (cf. Parker v Minister for immigration and Border Protection [2017] FCAFC 115 at [24]). 7. Put alternatively, but for the late application to amend, the matter clearly would have been heard on one day only. Accordingly, it can be seen that the consequence of the appellant's late amendment is that the Minister unnecessarily bore costs of appearance at a second day that he would not otherwise have had to. The appellant should bear those costs.