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

1. Order 2(c) of the orders made on 12 June 2020 be vacated.
2. Order 2 of the Federal Circuit Court of Australia made on 15 March 2019 be set aside and in lieu thereof it be ordered that: c) There be no order for costs.
3. The parties bear their own costs relating to the making of these supplementary orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 On 12 June 2020, I published my reasons for judgment in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779. 2 I made the following orders in relation to NSD 496 of 2019: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that: a) the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside; b) the matter be remitted to the Tribunal for decision according to law; and c) the first respondent pay the applicants' costs. 3. The first respondent pay the appellants' costs of the appeal. 4. Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers. and in relation to NSD 516 of 2019: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that: a) the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside; b) the matter be remitted to the Tribunal for decision according to law; and c) the first respondent pay the applicant's costs. 3. The first respondent pay the appellant's costs of the appeal. 4. Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers. 3 In accordance with order 4 above, the Minister has filed submissions seeking to vary order 2(c) in each matter, which concerns the costs of the proceedings before the Federal Circuit Court. 4 The Minister has not sought to vary the costs orders made in relation to the appeals, being order 3 in each proceeding. 5 The Minister submits that the usual rule that costs follow the event should not apply because the grounds on which the appellants succeeded in this Court were not advanced before the Federal Circuit Court: see Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 at [3]-[4]. Instead, the Minister submits, the costs order below ought not to be disturbed. According to the Minister, this is particularly so where the proceedings before the primary judge were dominated by the appellants' unsuccessful grounds of review alleging apprehended bias. 6 The appellants submit that costs ought to follow the event and, given their success in setting aside the Federal Circuit Court's decision, they should be entitled to their costs before that Court. 7 The Court has a broad discretion in respect of the making of orders for costs: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; 235 FCR 366 at 367 [4]. The discretion must be exercised judicially and not arbitrarily or capriciously: Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14]. 8 The appellants succeeded on grounds 4A and 5 of their amended notices of appeal. These grounds first emerged in the appellants' written submissions of 2 October 2019, and were later formally pleaded by amendments to the notices of appeal. 9 While the Minister is correct in his assertion that ground 4A was not advanced before the Federal Circuit Court, I found that ground 5 was faintly put to the primary judge below and was related to the third and fourth grounds as argued: see SZQYM [2020] FCA 779 at [22] and [147]. Further, while the appellants may not have succeeded in this Court or the Federal Circuit Court on the grounds of appeal based on apprehended bias, I expressed grave concern about the approach taken by the Tribunal in both matters. In these circumstances, I do not think it is appropriate to award costs against the appellants in the court below. 10 Where the appeal has been upheld on grounds that were not before the Federal Circuit Court, or at least not before the Federal Circuit Court in the form put in this Court, it may well be appropriate that costs in the court below should not follow the event. The appropriate order for costs in such a case may be that each party bear their own costs of the proceedings in the Federal Circuit Court: see Snedden [2009] FCAFC 132; Khant v Minister for Immigration and Citizenship [2009] FCA 1247; BCH17 v Minister for Immigration and Border Protection [2018] FCA 300; and CED16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 438. That is the appropriate course here. 11 Consequently, order 2 made by the Federal Circuit Court on 15 March 2019 should be set aside in each matter and, in lieu thereof, it be ordered that there be no order as to costs of the applications before that Court. 12 Neither side succeeded in its submissions on this application. The parties should pay their own costs of this argument. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.