Minister for Immigration and Border Protection v CYE17

1. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 On 5 November 2020 orders were made which included an order that the appeal brought by the appellant be dismissed and reasons were published: Minister for Immigration and Border Protection v CYE17 [2020] FCA 1594. Orders were also made for the determination of any issue as to costs on the papers. These reasons address the question of costs. Abbreviations used in CYE17 are adopted in these reasons. 2 The Minister's appeal was dismissed because of the success of a notice of contention filed, with leave, during the course of the hearing of the appeal. The notice of contention was served on the Minister on Friday 30 October 2020. Written submissions in support of the notice of contention were served on the Minister over the weekend. The appeal was heard on Monday 2 November 2020. The Court was only informed about the notice of contention on the morning of the hearing. 3 The proceedings concerned the consequences of the issue of an invalid s 473GB certificate. One of the documents to which the certificate related was an interview which was before the primary judge in the form of a transcript. The Minister had conceded that the interview was not before the delegate and thus satisfied s 473DC(1)(a) but contended that the Authority did not consider it "may be relevant" and that it therefore did not satisfy the requirement in s 473DC(1)(b). The primary judge concluded the Authority did consider the interview "may be relevant" and, therefore, that it constituted "new information". The primary judge concluded the Authority erred in not considering the operation of ss 473DD and 473DE in respect of the "new information". On appeal, the primary judge was shown to have erred. Were it not for the notice of contention, the appeal would have succeeded. 4 The notice of contention concerned a report which was also the subject of the invalid s 473GB certificate. The visa applicant contended that, applying the reasoning of the High Court in SZMTA at [47] and in light of the absence of any reference to the report in the Authority's decision record, it should be inferred that the report was left out of account by the Authority. I accepted that argument. I also concluded that: (1) the invalid notification under s 473GB(2)(a) amounted, without more, to an unauthorised act in breach of a limitation within the statutory procedures which conditioned the performance of the overarching duty of the Authority to conduct a review; and (2) the resulting decision had no legal force because the breach was material - cf: SZMTA at [44]. 5 The notice of contention was built upon the decision of the High Court in SZMTA, which was delivered after the primary judge's decision. 6 The Minister contended that: (1) each party should bear his costs of the appeal; and (2) the first respondent should pay the Minister's costs of the proceedings before the primary judge fixed in the sum of $7,206 - or, alternatively, each side should bear his costs of those proceedings. 7 The first respondent submitted: (1) the Minister should pay the first respondent's costs of the appeal; and (2) the costs order made by the primary judge should not be disturbed. 8 In my view, the costs order in the Federal Circuit Court should not be disturbed. The first respondent won in the Federal Circuit Court, albeit the Federal Circuit Court erred in reaching its conclusion. However, the underlying facts pointed to a good judicial review ground which only became clear to the visa applicant after the High Court handed down its decision in SZMTA. 9 As to the appeal, in my view there should be no order for costs. Substantial expenditure was incurred on the appeal in relation to points which were well made by the Minister. It was the strength of these points which ultimately led to the first respondent realising that there was a different argument, based on substantially the same facts, which it could have relied upon in its judicial review application. The strength of the notice of contention only increased with the strength of the appeal. The lateness of the notice of contention prevented the Minister from properly considering his position in relation to the appeal which was, absent the notice of contention, a good one. In my view, in the peculiar circumstances, there should be no order as to the costs of the appeal with the intent that each party bear his own costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.