DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs

1. On 18 November 2025, I published my reasons for judgment in DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1414 (appeal) and made orders that, inter alia, the parties provide submissions on the question of costs, to be determined on the papers.
2. The appellant unsuccessfully appealed from a Federal Circuit and Family Court of Australia (Division 2) decision, dismissing (with costs) an application for judicial review of a decision made by the Immigration Assessment Authority, which affirmed a decision by a delegate of the first respondent not to grant the appellant a Safe Haven Enterprise Visa (subclass 790) under s 65 of the Migration Act 1958 (Cth): DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 755 (primary judgment).
3. The appellant demonstrated the illogicality of an aspect of the Authority's reasoning, which, given what I determined to be a separate basis of the decision, was not material to the outcome of the appeal.
4. The first respondent seeks an order that the appellant pay the first respondent's costs of the appeal, as agreed or assessed, and opposes any order which disturbs the order for costs made by the primary judge.
5. The appellant requests that the order for costs made by the primary judge be set aside, and that there be no order for costs with respect to that proceeding. The appellant makes no submission in relation to the costs of the appeal.

1. The factual background to this matter is set out at paragraphs [2]-[4] of the primary judgment. The primary judge dismissed the judicial review application, and ordered that the appellant pay the first respondent's costs, fixed in the sum of $8,371.30.

1. The Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, provided it is exercised judicially: Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). There is no contest on the legal principles to be applied.
2. The 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, generally linked to disentitling conduct of the successful party, a successful party in litigation is entitled to an award of costs: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [66] (McHugh J; Brennan CJ agreeing at [3]). Costs are not awarded to punish an unsuccessful party: Sangare at [25]; Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61; [2016] FCAFC 27 at [303] (Bennett, Besanko and Beach JJ).
3. There is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated by an unsuccessful party. Nor is there a rule that there is no jurisdiction to order a successful party to bear the costs of an unsuccessful party: Oshlack at [40] (Gaudron and Gummow JJ). The costs discretion is guided by what the Court considers fair and just.
4. However, courts have been slow to order a successful party to pay costs where it has been unsuccessful on some issues. In Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81; [1993] FCA 650, Keely J was of the view (at 84) that, without attempting to fetter the discretion, the power ought to be exercised only where the Court, on a consideration of all of the circumstances, has concluded that the raising of an issue by the applicant on which it has failed was so unreasonable that it is fair and just to make the order: Apotex at [303].
5. Furthermore, where there is a mixed outcome, the authorities caution against apportioning the costs of a successful party by some kind of division into the issues on which the party succeeded and those on which the party did not: Plaintiff S111A/2018 v Minister for Home Affairs (No 5) [2022] FCA 603 at [42] (Mortimer J); Fanatics, LLC v FanFirm Pty Ltd (Costs) [2025] FCAFC 111 at [7] (Burley, Jackson and Downes JJ).
6. The question of whether costs can, or should, be apportioned on an 'issues' basis was addressed in Commissioner of Taxation v Bosanac (No 2) [2022] FCAFC 5 at [16] (Kenny, Davies and Thawley JJ):

Of course, a successful appellant who has failed on some issues may be deprived of the costs of the issues on which the party failed or ordered to pay the costs of them to the other party. The determination of costs on an issue by issue basis is ordinarily not desirable, however; and the fact that a court does not accept all of a successful party's submissions does not necessarily make it appropriate to deal with costs on an issue by issue basis: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270; 327 ALR 192 at [6] and Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124 at [23].

1. Where an appeal is dismissed, the appellant must satisfy the Court that there are "good reasons" why an order for costs in favour of the respondent should not be made: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394 at 407 (Mason CJ, Wilson, Brennan, Dawson, Toohey and Gaudron JJ). The standard of satisfaction does not alter in a case of apportionment: see Roadshow Films Pty Ltd v iiNet Ltd (No 4) (2010) 269 ALR 606; [2010] FCA 645 at [37] (Cowdroy J).

1. In costs submissions filed on 26 November 2025, the appellant submits that the costs order made by the primary judge should be set aside, and that there should be no order as to costs in relation to the primary proceeding, on two bases:

(1) The first respondent's arguments on appeal differed from those at first instance.

(2) There was "clearly error" on the part of the primary judge, who did not accept an argument that was accepted on appeal: namely, that there was unreasonableness in the way the Authority "relied on general country information alone" to support a conclusion that Mr X would not be interested in seeking revenge against the appellant.

1. The appellant's submissions do not address the issue of costs in relation to the appeal, notwithstanding that they are otherwise responsive to the first respondent's costs submissions, filed on 25 November 2025, which do.

1. The first respondent seeks an order that the appellant pay the first respondent's costs of the appeal, as agreed or assessed, and opposes any order disturbing the costs orders at first instance, on the following bases:

(1) Any development in the first respondent's argument on appeal was not incongruent with the argument made before the primary judge, namely that the Authority's conclusion was open based on a combination of the country information and the passage of time since the appellant received threats from Mr X.

(2) The primary judge did not make a finding as to the unreasonableness of the Authority using country information alone to reach its conclusion, and found the Authority had relied on both country information and "'the fact that Mr X had done nothing to fulfil his vow of revenge in the six years since 2013'".

(3) Even if the respondent's position differed on appeal, this is not a proper basis on which to set aside the costs order made by the primary judge in circumstances where the appeal has been successful.

(4) There is no allegation of misconduct on the part of the first respondent at first instance or on appeal.

(5) There is no allegation that the first respondent's conduct unduly protracted the length of, or costs incurred in, the proceeding before the primary judge or on appeal.

(6) It is not appropriate to "deny [the first respondent] his costs of the appeal" on the basis that the appellant has partly proven his point. The Court's finding that the Authority's conclusion was not open on the basis of the country information, on which the Authority relied, is not analogous to a situation where a party makes out their case but is nonetheless unsuccessful.

1. The appeal was dismissed on 18 November 2025. As such, the orders of the primary judge, which include an order that the appellant pay the first respondent's costs in a fixed amount, stand.
2. The appellant has not proffered any proper basis on which to set aside those orders, including the costs order.
3. Moreover, the error that the appellant claims on the part of the primary judge assumes that which I have rejected on appeal, i.e., that the Authority "relied on general country information alone" in reaching its conclusion that the appellant would no longer be of interest to Mr X.
4. The appellant's submission in this regard is at odds with my orders of 18 November 2025.

1. The first respondent says that the argument on appeal was not incongruent with the argument made before the primary judge, namely that the Authority's conclusion was open based on a combination of the country information and the passage of time since the appellant received threats from Mr X.
2. The premise of that argument is that the country information was capable of supporting the finding, in combination with the passage of time.
3. The first respondent's argument on appeal was different.
4. The first respondent accepted at the outset of the hearing of the appeal that the general country information on which the Authority relied was not a rational basis for the conclusion that the appellant would no longer be of interest to Mr X, who held a personal grudge against the appellant.
5. While I accept that the first respondent did not argue that the Authority's decision was based on this general country information alone, the first respondent's written submissions filed on 27 October 2025, contested the appellant's argument that the country information "was not probative of its conclusions concerning Mr X". The first respondent argued that: "Given Mr X's role with the Mahdi Army the country information was probative of his interest in the appellant because of this role".
6. The appellant addressed the Court at the hearing of the appeal on that basis. It was only at the hearing that the first respondent submitted that the country information could not bear on what was motivating Mr X on a personal level, and that the country information alone does not rationally support the finding made by the Authority.
7. While I accept that a difference in the argument run on appeal is not necessarily a reason to dispense with the usual order, or to apportion and reduce costs, the difference was incongruous with the argument run at first instance, which proceeded on the basis of the relevance of the country information to the Authority's finding.
8. Furthermore, the incongruity is material to a discrete and significant aspect of the appellant's case. While no specific allegation was made by the appellant that the first respondent's conduct had unduly protracted the length of, or costs incurred in, the proceeding before the primary judge or on appeal, I cannot (and should not) ignore that circumstance on appeal in the absence of such a submission, and in circumstances where the appellant otherwise invokes the incongruity in aid of his submissions on costs.
9. This is not a criticism of the fact that the first respondent made the concession, which was appropriate in the circumstances and therefore welcome. This is distinct from any allegation of misconduct, which was not made. However, the concession came at a time after preparation of the appeal, and the conduct of the appellant's case in chief, in relation to a discrete and significant aspect of the appellant's case, such that it is reasonable to infer that it was productive of wasted time and therefore costs.
10. The first respondent argues further that the present case is not analogous to a situation where a party makes out their case, but is nonetheless unsuccessful. The fact remains that the appellant has made out a discrete part of his case, which part was defended by the first respondent up until the hearing of the appeal. The appellant did not make out the materiality of the claimed error, given a separate basis for the primary judge's decision, which explains the outcome of the appeal.
11. The order for costs is not a mathematical equation that counts the number of successes and failures on the part of each party: cf. Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481 at [13] (Bennett J). In this case, it reflects the time wasted on a point that was not conceded until the hearing of the appeal, and therefore productive of wasted costs in the preparation and conduct of the appeal.
12. While I am not guided by any submission from the appellant on the manner of any apportionment, I gauge the waste on the basis of the significance of the discrete issue in question to the appellant's case, and the proportion of time spent by the appellant addressing the Court on that discrete issue.

1. Accordingly, I am of the view that the appellant should pay 70% of the first respondent's costs of the appeal.
2. Consistently with my orders of 18 November 2025, I will make no order that disturbs the order of costs made by the primary judge.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Younan.