GOS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appellant's application by submission dated 2 July 2021 to vary order 9 of the orders dated 21 June 2021 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 In this matter the remaining issue is costs. 2 On 21 June 2021, consequential on reasons for judgment in GOS18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 662, I allowed the appeal, set aside an order of the Federal Circuit Court of Australia made on 29 September 2020 dismissing the application for judicial review, ordered that the decision of the Immigration Assessment Authority dated 16 November 2018 affirming the decision under review be set aside, and remitted the matter to the Immigration Assessment Authority for determination in accordance with law. I also ordered that the Minister pay 30% of the appellant's costs of and in connection with the appeal, as agreed or taxed, but gave the parties an opportunity to apply to vary the costs order if they wished. 3 The appellant applies to vary the costs order so that the Minister pays 100% of the appellant's costs from the date of the application for amendment of the notice of appeal, and 100% of the appellant's costs of the application to amend. 4 I reject the appellant's application to vary the costs order. The reasons supporting my conclusion that the Minister should not be ordered to pay more than 30% of the costs of the appeal (and none of the costs below) remain sound. Specifically: (1) the appellant succeeded on ground 1A, a ground that the appellant required leave to raise in the appeal as it had been abandoned before the Federal Circuit Court; (2) the appellant sought leave to raise two other new grounds not argued before the Federal Circuit Court, grounds 1B and 1C, and I refused leave to raise those grounds; and (3) the appellant failed in respect of ground 2, which had been put before the Federal Circuit Court. 5 Accordingly, while the appellant succeeded in having the decision of the Immigration Assessment Authority set aside, the process by which the appellant did so involved unnecessary costs incurred by, and prejudice to, the Minister. Despite having the benefit of legal representation at all times, the appellant wasted the hearing before the Federal Circuit Court by abandoning ground 1A, being the sole ground on which the appellant succeeded in the appeal. The appellant then sought leave to raise three new grounds in the appeal. The Minister's opposition to such leave being granted was reasonable. The fact that the appellant obtained leave in respect of ground 1A does not mean that I accept that the course of the litigation was appropriate. It was not. The appellant obtained leave because the injustice to her by denying leave outweighed the injustice to the Minister by granting leave. More costs were wasted because the application for leave was not confined to the sole ground with legal merit, ground 1A. As a result of this process, the Minister (and I) had to deal with the substance of the unmeritorious proposed grounds 1A and 1B, as well as the unmeritorious ground 2. 6 The appellant's submission that the unsuccessful grounds did not require further or additional work is simply wrong. They did. The appellant appears not to appreciate that the grant of leave in respect of ground 1A was to ensure that the overall interests of justice were served and that an important part of the balance of those interests as between the parties included my approach to costs under which: (a) the costs order against the appellant below was not to be disturbed, and (b) any order for costs in respect of the appeal could be adjusted to reflect the appropriate balance of justice as between the parties. 7 While I gave the parties an opportunity to apply to vary the costs order, the parties needed to carefully consider whether to attempt to do so. Determining a costs order which best reflects the interests of justice is an evaluative and discretionary process, capable of yielding a range of reasonable outcomes. The appellant's submissions do not identify any facts or circumstances of which I was unaware when deciding that the Minister should pay 30% of the appellant's costs of the appeal. The appellant contends only that it would be unjust to deprive her of the full costs of the appeal in which she succeeded. I disagree given my view that the Minister was subject to prejudice (not entirely curable by costs orders) and likely increased costs (whatever their magnitude) because of the need for the application for leave to appeal, the inclusion in that application of unmeritorious proposed grounds of appeal, and the prosecution of unmeritorious ground 2, which did not require leave to raise. In these circumstances, I can see no basis upon which it could be said that my assessment of the costs order, which best reflects the interests of justice, was outside the reasonable range. 8 The other reason parties should be careful before exercising the liberty to apply to vary a costs order in these circumstances is that applications to vary raise their own potential costs consequences. The Minister did not seek, but could have sought, costs of the application to vary in respect of which the appellant has failed. I am not encouraging the Minister to do so or suggesting the Minister ought to have done so. The outstanding issue of costs has been dealt with as efficiently as possible. But a party in the position of the appellant should understand that exercising the liberty to seek to vary a costs order, when a new fact or circumstance, of which the judge was unaware when deciding on the issue of costs, is not identified, is not free from the risk of another adverse costs order should the applicant for the variation fail. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.