FEDERAL COURT OF AUSTRALIA

Applicants S325/2002 v Refugee Review Tribunal (No 2) [2006] FCAFC 113

APPLICANTS S325/2002 v REFUGEE REVIEW TRIBUNAL AND COMMONWEALTH OF AUSTRALIA (No 2)

NSD 313 OF 2005

MOORE, NICHOLSON AND CONTI JJ

7 JULY 2006

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The applicants for leave to appeal, otherwise the appellants, pay the respondents’ costs of the application for leave to appeal and of the appeal (as the case may be).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MOORE AND NICHOLSON JJ

1                     We agree that the appellants/applicants pay the respondents’ costs.

Associate:

Dated:              7 July 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT AS TO COSTS OF THE APPEAL

CONTI J

2                     On 18 May 2006, the Full Court ordered that the application for leave to appeal to the extent required, or any appeal otherwise validly on foot, be dismissed.

3                     The appellants sought the opportunity to place before the Full Court submissions nevertheless as to why there should be no order as to the costs of their unsuccessful application and/or appeal.  That opportunity was granted and on 28 May 2006, written submissions prepared by the appellant wife/mother on behalf of the appellants were filed with the Court.

4                     Irrespective of the circumstances set out in [39] of my reasons for judgment by way of observations concerning the circumstances of the appellants dehors the grounds of appeal on their behalf by the wife/mother appellant, it is in my opinion inevitable that the costs of the appeal must follow the outcome of what was an unsuccessful appeal.  I am unable to accept, in the light of the reasons provided essentially for the dismissal of the appeal by all members of the Full Court, that no other order as to costs is open correctly to be made in accordance with such provinces of discretion as are available to the Court according to settled principles.

5                     Nevertheless for my part, and in the light of the observations I have made at the conclusion of my reasons for judgment on appeal in relation to the unhappy and unfortunate circumstances which have befallen these people since their departure from their European country of origin (apart from of course those of the younger son born subsequently in Australia), I would recommend for the Minister’s favourable consideration a waiver of enforcement of the order of the Full Court as to costs made adversely to the appellant today.  Those circumstances have of course been described in my reasons for judgment on the appeal in the abovementioned [39] of my reasons for dismissal of the appeal.

6                     Upon the foregoing basis, there is no sound reason in principle otherwise than that the applicants/appellants should pay the respondents’ costs.

Associate:

Dated:              7 July 2006