MZABP v Minister for Immigration and Border Protection

1. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 Earlier this year we dismissed an appeal by MZABP against a decision of a single judge of the Court: see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110. In doing so we expressed a tentative view that it may be appropriate for MZABP and the Minister to bear their own costs of the appeal. We invited the parties to file written submissions relating to the costs of the appeal. Written submissions were subsequently filed and we have considered them. 2 The appellant submitted that the Court should order that he and the Minister bear their own costs of the appeal. 3 The Minister contended that the appellant should be ordered to pay the Minister's costs. 4 The Court has a broad discretion when determining appropriate costs orders. Ordinarily, costs will follow the event but, in some cases, there will be circumstances which justify some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-5 (Black CJ and French J). Abnormal orders may, for example, be justified having regard to the manner in which the successful party has conducted the proceeding or if the appeal raises a novel question of general importance: see Ruddock at 237. A successful party is usually entitled to a favourable costs order because costs awards are intended to be compensatory in nature. 5 The appellant advanced two reasons which, he contended, justified the Court in departing from the usual order. The first was that the trial judge had, in her reasons, raised the possibility that the Federal Circuit Court ("the FCC") had made a jurisdictional error when determining whether or not to grant the appellant an extension of time within which to seek judicial review of a decision of the Refugee Review Tribunal. Although her Honour had not determined that any such error had been made the appellant contended that "it was not unreasonable" for him to "bring the appeal in order to seek to properly ventilate the ground that was not ventilated below." 6 The issue which caused some disquiet to the primary judge related to the principles which should guide the exercise of the FCC's discretion when exercising its powers under s 477(2) of the Migration Act 1958 (Cth). Her Honour raised the possibility that the FCC's reasons might be read as suggesting that that Court had made a final determination on MZABP's application when forming a view as to the merits of his application. Such an approach may have been errant. In the event, however, the primary judge was not persuaded that the FCC's reasons, when fairly read, exposed such an error. The primary judge was also influenced by the considerations that the ground had not been relied on in MZABP's application for judicial review of the FCC's decision and that she had not had the benefit of full argument. 7 The appellant noted that this Court also shared the primary judge's concern about a possibly errant approach to the application of s 477(2), and that we had clarified the proper approach to dealing with such applications. This was the second basis upon which a departure from the normal order was said to be justified. 8 We do not consider that the appellant has made out a case for departure from the "general rule" that costs follow the event. Although the appellant's application failed at first instance, each party was left to bear his own costs. Among the considerations which influenced that decision by the primary judge were the "somewhat confusing" reasons given by the FCC for its decision and, perhaps, the FCC's substantial ($8,000) costs order against the appellant. The appellant made a forensic decision to appeal to the Full Court. That decision was, no doubt, made on advice. Nonetheless, a losing party is not generally entitled to costs merely because there may have existed a reasonable basis for prosecuting an appeal. Like the primary judge, this Court was not called on to, nor did it, determine the legal merits of the principal ground on which the appeal was brought. This was because we determined that the primary judge had not erred in the exercise of her discretion when she ruled that the point could not be relied on as a basis for her granting relief. 9 The Minister has been wholly successful in defending the appeal. There was nothing in his conduct of the appeal which might justify a departure from the normal order. We note that the Minister does not seek to disturb the primary judge's decision to make no order as to costs. 10 We will, therefore, order that the appellant pay the Minister's costs of this appeal. Although the second and third respondents' submitting notices reserved their positions as to costs, neither made any submissions in relation to costs. In the circumstances, we have made no order as to the costs of those parties. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey, Perry and Charlesworth.