CCU21 v Minister for Home Affairs

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.

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 does not entail that an applicant is entitled to recover from that respondent the costs it has incurred in pursuing another respondent. Of course, on an assessment or taxation it may be necessary for certain costs which were incurred in the pursuit of more than one respondent to be apportioned in some way. But that is a question for the costs assessor or taxing officer. 10 The Minister's second point was that the Appellant had failed on another point not pursued on appeal. This was that, when making the non-revocation decision, the Minister was not permitted to rely on a character ground different to that on which the other Minister had relied in making the initial cancellation decision. That issue was one of statutory construction but, as the proceedings in this Court showed, that does not entail that it did not involve substantial argument. 11 Were this all in play there might be some reason to examine the course of the trial before the primary judge. However, there is a temporal aspect of the events leading to the trial which should be brought to account. Initially, the Appellant challenged the decision to revoke his visa. The initial cancellation decision was made on 30 September 2019 by the former Minister. The Appellant was taken into immigration detention on 4 October 2019 where he has since remained. The cancellation decision was based on an adverse security assessment dated 17 September 2019 in which ASIO advised that the Appellant was a risk to security. The Appellant indicated that he wished to challenge the adverse security assessment and the Minister agreed to postpone consideration of his revocation application pending that challenge. ASIO then issued a qualified security assessment in which it advised that the Appellant was not a risk to security. Had that been the form of the initial assessment his visa could never have been cancelled for the reason that it was; being that he failed the character test by reference to s 501(6)(g) of the Act. But the effect of the provisions is such that the fact that ASIO subsequently changed its mind did not entail that his visa cancellation was thereby itself revoked. 12 In light of the change of heart at ASIO the Appellant then pursued his revocation application on and from 9 July 2020. On 7 June 2021, after the Appellant had been in immigration detention for nearly a year after the qualified security assessment replaced the initial adverse security assessment, the Appellant indicated that he would sue the Minister for a writ of mandamus to compel her to make a decision on his revocation application. The mandamus proceeding was commenced on 9 July 2021 and set down for hearing on 10 September 2021. 13 On the afternoon of 9 September 2021, the day before the mandamus trial was due to commence, the Minister decided the revocation application by refusing it. This made the claim for mandamus moot and made it necessary for the proceeding to be amended to challenge the non-revocation decision which the Minister had delayed nearly a year in making. On that occasion, the costs of the proceedings to that date were reserved (by order 5 of the orders dated 10 September 2021). 14 The trial was eventually conducted on 26 November 2021 by which time the Appellant had been in immigration detention for two years. Whilst we accept that the Minister was more successful at trial than she was on the appeal and that aspects of that success remain untouched, we do not think that the commencement of mandamus proceedings to force the Minister into making a decision which she did only the day before the trial should be erased from the picture either, particularly having regard to the impact that delay has had upon the detention of the Appellant. Taking both into account, we remain of the view that the appropriate order is that the Minister pay the Appellant's costs of the trial. 15 Accordingly, whilst we accept that the Court has jurisdiction to revise the costs orders and that the Minister was denied the opportunity to make submissions about costs when the Court gave its decision, we do not think it appropriate to vary the costs orders which were made. The appropriate orders are: (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. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Halley and Goodman.