BCR16 v Minister for Immigration and Border Protection

THE COURT: 1 On 13 June 2017, the Full Court, by majority, allowed the appeal from the orders of the primary judge made on 17 August 2016. The Full Court's orders set aside the orders made by the primary judge and substituted orders setting aside the Assistant Minister's decision and remitting the matter for determination by the Minister according to law. 2 The Minister was ordered to pay the costs of the appellant in relation to the appeal to the Full Court. 3 The Full Court's orders and reasons for judgment did not deal with any specific orders in relation to the costs of the proceeding before the primary judge. The appellant accepted, as Bromberg and Mortimer JJ noted in their Honours' reasons for judgment at [19], that the appellant's submissions and grounds of appeal were "more finely developed", and contained some new aspects, compared to those put to the primary judge. In those circumstances, the Full Court invited the parties to make written submissions about the appropriate orders as to costs, which has now occurred. 4 In our view, for the reasons set out below, the appropriate order in the circumstances of this appeal is substantively as the Minister submits: namely, that there should be no order as to the costs of the proceeding before the primary judge. 5 As Bromberg and Mortimer JJ set out at [95] of their Honours' reasons, the primary judge was asked to deal with the asserted error in the Assistant Minister's reasons in a different context to the Full Court. That context involved, as the Minister's costs submissions point out, less focus on s 197C of the Migration Act 1958 (Cth), and more focus on s 65, the general decision-making scheme of the Act, and the differences between the decision-making process under s 65 and that under s 501CA(4). 6 Further, we accept the Minister's submissions that one of the grounds on which the appellant succeeded was a ground that was not raised before the primary judge, and indeed depended on the analysis of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, a judgment not handed down until after the judgment of the primary judge. 7 Relying on a number of authorities, including an extract from the Victorian Court of Appeal's decision in Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG (No 2) [2015] VSCA 123, the appellant submitted that where an appeal is allowed, in the ordinary course, a successful applicant is awarded costs in both the appellate court and the court below, because it is "usually demonstrable that the party in the court below should have won, and that the order for costs should therefore have been in his favour" (see the Court of Appeal's reasons at [44], quoting Leggatt LJ in Kuwait Airlines Corp v Iraqi Airways Co (No 2) [1995] 1 All ER 790 at 792). The appellant then contended that if an appellant succeeds on a point that was not raised below, it may in some cases be appropriate to depart from the usual approach, although not necessarily where the appeal turns on issues of statutory construction and the "new" point had a broad connection with the points run below. For this proposition, the appellant relied on the NSW Court of Appeal decision in Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue (No 2) [2014] NSWCA 128 at [29]. The appellant submitted the correct question was whether the "usual" order would lead to injustice. 8 The appellant contended there was no injustice in the present appeal because the Assistant Minister's "misunderstanding" that non-refoulement obligations would "necessarily" be considered in the event that the appellant was to make an application for a protection visa was an argument that had been put to the primary judge. Further, the characterisation of the jurisdictional error of the Assistant Minister by Bromberg and Mortimer JJ (a "failure to carry out the task required under s 501CA(4)": see [62] of their Honours' reasons) was a characterisation asserted by the appellant before the primary judge. The appellant further submitted that the Goundar point had a "broad connection" to the way the arguments had been run before the primary judge. 9 We do not accept the appellant's submissions. Unlike Bondi Beachside (No 2) (see Bondi Beachside (No 2) at [27]), this was not an appeal where the issues turned on statutory construction alone. The issues were more wide-ranging than that, involving an analysis of different aspects of the statutory scheme of the Migration Act, the nature of the Minister's reasoning and the nature of the issues put forward to the Minister by the appellant, as well as consideration of a recently decided authority in Goundar. The appeal also required substantial consideration of a number of other Full Court authorities. In short, there was much more to this appeal than a discrete issue of statutory construction. 10 The NSW Court of Appeal's reasoning in Bondi Beachside (No 2) recognised that, costs orders being compensatory in nature, where a successful appellant succeeds on a ground involving statutory construction which is "broadly connected" with a ground advanced at first instance, the appropriate order may be that the successful appellant should still receive the costs of the trial. That is, the connection between the arguments below and the successful argument on appeal was seen to be sufficient to justify the losing party being ordered to compensate the successful party for its costs at first instance. 11 The exercise of the costs discretion in s 43 of the Federal Court of Australia Act 1976 (Cth) (like similar statutory powers given to other courts) is one in which reasonable judicial minds may differ, and will invariably be dependent on the particular circumstances of each case. 12 The appellant succeeded on the appeal and has been compensated for his costs of the appeal in the usual course. However, in this case, we consider that the way the appellant's grounds and submissions were put to the primary judge was sufficiently different to the grounds and submissions on the appeal that it is not appropriate for the Minister to be ordered to compensate the appellant for the costs incurred before the primary judge. Each party should bear his own costs of the proceeding before the primary judge. 13 As each of the primary judge's orders was already set aside by the Full Court on 13 June 2017, there are no standing costs orders in relation to the proceeding at first instance. The outcome of this conclusion is that the orders made by the Full Court on 13 June 2017 need not be varied, or supplemented.