Federal Court of Australia

BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 106

ORDERS

THE COURT ORDERS THAT:

1.    The appellant pay the first respondent’s costs of preparing the appeal book in the appeal, to be fixed by way of a lump sum.

2.    There otherwise be no order as to the costs of the appeal.

3.    If by 4 pm on 2 July 2021 the parties cannot agree on a lump sum for the purposes of Order 1, the matter be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appellant pay the first respondent’s costs of the appeal, such costs:

(a)    to be limited to the costs incurred in preparing for, and appearing at, a single day of hearing; and

(b)    to be payable by way of a lump sum.

2.    If by 4 pm on 2 July 2021 the parties cannot agree on any of the lump sum costs under Order 1, the matter be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appellants pay the first respondent’s costs of preparing the appeal book in the appeal, to be fixed by way of a lump sum.

2.    There otherwise be no order as to the costs of the appeal.

3.    If by 4 pm on 2 July 2021 the parties cannot agree on a lump sum for the purposes of Order 1, the matter is to be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ

1    I agree with the reasons of and orders proposed by Mortimer J.

Associate:

Dated:    18 June 2021

REASONS FOR JUDGMENT

KERR J

2    I agree with the reasons of and orders proposed by Mortimer J.

Associate:

Dated:    18 June 2021

REASONS FOR JUDGMENT

MORTIMER J:

3    On 20 May 2021, the Court dismissed each of the three appeals heard and determined together in relation to this family group of appellants: see BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74. These reasons should be read together with the Court’s reasons for dismissing the appeals, including the way that each of the appellants are referred to: see BRH18 at [2].

4    The parties were given an opportunity to agree on appropriate costs orders but have not been able to do so. Accordingly, submissions were filed in each appeal, although the submissions are identical.

5    The Minister, who successfully defended the appeals contends for the “usual” orders as to costs to be made, in each appeal.

6    The appellants make two alternative contentions:

(a)    there should be no order as to costs;

(b)    in the alternative, the appellants pay only the costs arising from the original notices of appeal and the first day of hearing, and the parties otherwise bear their own costs arising from the amended notices of appeal and the adjournment.

7    On the second alternative, the difference between the parties revolves around what effect (if any) should be given to the adjournment of the appeal after the first day of hearing and the subsequent handing down of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58, which provided a basis for the appellants’ proposed amended ground of appeal, for which the Court ultimately granted leave, but rejected on its merits.

8    These appeals were listed with AWT19 because they all gave rise to similar issues about the construction and operation of Part 7AA of the Migration Act 1958 (Cth). They all dealt with circumstances where material before the delegate was not available to be given to the Immigration Assessment Authority. The legal issues concerned the Authority’s powers and obligations in such circumstances.

9    For the reasons set out below, it is appropriate to make orders for costs in favour of the Minister, but to a limited extent.

10    I do not accept the appellants’ submission that it was only the attitude of the Minister in these appeals which necessitated the adjournment after the first afternoon of hearing, and the re-convening of the Court some time later.

11    The transcript (T) of the first hearing day indicates how these issues arose, after the Chief Justice had indicated to counsel the Court had heard detailed argument in the morning, from the Minister in AWT19, about how the Authority might exercise its powers in s 473DC of the Migration Act to remedy an “informational gap” because of material not able to be provided to the Authority by the Secretary. The following exchanges occurred:

12    At T 11:

KERR J: Is that right? Is that right? Because what section 473CB does is to provide obligation ..... obligations and that would ordinarily arise. In this instance, those obligations would have arisen but for a contested circumstance as to the timing of the deletion of the material, but it might be that, as a matter of law, the focus on when that occurred really is a sidewind. The critical question is whether there is a gap in the scheme that is provided for such that ..... arises – potentially arises – as to whether or not the power to commit new information is engaged. Now, your submissions don’t strictly grapple with that.

MR STEELE: No.

KERR J: And there is no ground of appeal. It goes to those possible contentions, but having regard to the way the proceedings occurred this morning and how the Minister posited a position that was then advanced, at least it seems to me that there may be some questions for your opponent as to whether some liberty should be given to you to rearticulate to at least some degree the premises of this matter because what seems to have been pressed to the court below is an absolute prohibition, as it were, on there being any issue arising or which might give rise to in the IAA of a circumstance wherein it would be unreasonable for it not to have considered the exercise of a potential capacity to commit evidence that was not before it because of a gap arising, and that might not turn on whether or not there is a strict compliance with section 473CB. It’s just part of the scheme that you would anticipate this material. It was provided in respect of everybody else. It may be a bit of a strawman argument focused on the precise date and the burden of proof as to when this material was deleted.

(Emphasis added.)

13    At T 14:

MR STEELE: Yes. If it’s a matter that the court would be assisted by further submissions, certainly the appellant would seek your Honour’s leave to provide short written submissions in addition ..... that particular issue about the IAAs obligation to consider the question of new information.

KERR J: You need to amend your grounds .....

MR STEELE: Yes. Yes, your Honour - - -

ALLSOP CJ: You may need to – yes. Whether you need to - - -

MR STEELE: We would need to - - -

ALLSOP CJ: You may need leave to certainly amend the notice of appeal, and perhaps also the underlying proceeding. All right. Where are you, now that we’re - - -

MR STEELE: I think your Honours have jumped to the end of the queue.

(Emphasis added.)

14    Allowing for the relatively frequent level of questioning counsel received from the Court, and without at all being critical, the argument of counsel for the appellants went until approximately 3.45pm on the first hearing day. The Chief Justice then directed the attention of counsel for the Minister to some specific factual issues, and then (at T 31.8) invited counsel for the Minister to address what might be propounded in any amended notice of appeal – namely, whether it was legally unreasonable for the Authority not to take a course that involved interviewing the sister. Counsel indicated the Minister would oppose leave being granted, and addressed the substance of the argument in brief terms given the approaching end of day adjournment. The Chief Justice then said (at T 32):

ALLSOP CJ: Mr McGlade, what I was going to suggest was this. There’s issues of consistency of how the Minister’s putting matters that are perhaps not central, such as the futility, that you might need to get some instructions on, if I may suggest. There questions of leave, which may be affected by the kinds of consideration that you were just discussing with Mortimer J. I’ve got some difficulties tomorrow, and you shouldn’t be – what I was going to suggest – you may have to – I will discuss it with Kerr and Mortimer JJ when we – after we adjourn. But what you might like to think of is to get some instructions about the leave application. You have indicated a view without instructions just then, which I would understand.

There’s also the question of the futility submissions that may need sorting out. We can consider, in consultation with counsel in the next 24 hours, how we deal with the balance of a hearing. The question of submissions in reply and further submissions that you, do doubt, want to put, given the shortness of time you’ve already had. Whether we do it in the next day or two, it really depends upon the programme of Kerr and Mortimer JJ and myself. I’ve got my program in my head, but I haven’t got theirs. And, of course, you’ve all got commitments. So might I suggest we – you’ve probably taken it as far as you can at the moment. If you could identify to the court and to your opponent’s tomorrow – say tomorrow afternoon – what your instructions are.

Because it will need to go to someone to understand both cases. Mr Knowles case this morning and your case this afternoon. And you need to get some instructions about opposing leave or consenting to leave, if leave’s sought. And if the position amongst the parties could be clarified to the court, say by close of business tomorrow, before then, we can give you both some dates that we can resume for a half day or something. A couple of hours to finalise this.

15    The commitments of the bench and counsel meant that the hearing did not resume until 30 April 2021, by which time AWT19 had been handed down. The argument proceeded efficiently on that day and finished in an hour and a half.

16    The fact that this matter ran over two hearing days had more to do with the Court listing it immediately after AWT19 than anything else. In hindsight, it may have been preferable for each of AWT19 and these appeals to have been subject to separate listings, with a day allocated to each. Counsel on both sides, in both AWT19 and these appeals, were well prepared and economical in their submissions, but there simply was not enough time on the first hearing day. As the transcript bears out, that is likely to have been the case even without the foreshadowed amendments.

17    However, it is also clear that these appeals would have taken no more than one day in total.

18    The importance of the outcome in AWT19 to these appeals became apparent only during argument on AWT19, and then during early argument in these appeals. Counsel for the appellants in these appeals was quite correct to act in their clients’ best interests, and to seek to add a ground of appeal which reflected the argument in AWT19. The Court’s ultimate agreement to grant leave to add that ground demonstrates that not only was it the correct forensic choice, but it was a ground with real merit. That it did not ultimately succeed was apparent only after full argument, and there is nothing unusual or untoward about such a course of events in an appeal.

19    The appellants made two other submissions which I do not accept.

(a)    The submission that it was unreasonable or inappropriate for the Minister to resist leave being granted on what can be described as the AWT19 ground of appeal, should be rejected. Despite AWT19 being an appeal by the Minister, on these appeals the Minister was entitled to attempt to persuade the Court that leave should not be granted on any similar (and new) argument. That was especially so when, as the Minister’s further written submissions pointed out, the appellants relied on the High Court’s decision in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 which was handed down on 14 October 2020. Indeed the fact that the ground ultimately did not succeed indicates the Minister did not act unreasonably in resisting leave.

(b)    The appellants’ submission that the need for the adjournment arose because of the different positions taken by the Minister in the different proceedings should be rejected. As the narrative above indicates, the need for an adjournment arose because the Court simply ran out of time on the afternoon of the hearing, as well as the fact that the appellants sought leave to amend their notice of appeal.

20    In these circumstances neither party has acted unreasonably, and each has sought to present their respective arguments as efficiently as possible. It was inevitable the appeals would need to be adjourned and re-listed once leave was sought to run a ground similar to the argument made by the Minister in AWT19, but in total the time taken for the appeals was less than one hearing day. The full appreciation of the merits of the amended ground required careful consideration of the application of AWT19 to the facts of these appeals. That consideration did not ultimately favour the appellants, but the fact that their counsel needed time to consider an argument only developed by the Minister in an appeal on the same day is a circumstance for which neither party bears responsibility that should sound in a costs order.

21    Overall, the circumstances of these appeals call for a more nuanced consideration of the appropriate costs orders than the Minister’s submission that costs should follow the event in each of the appeals.

22    All appeals concerned the same grounds, and while there was some individual preparation needed in terms of the appeal books, the remainder of the preparation was common to all appeals. The matters have been dealt with together before the Authority and before the Federal Circuit Court. There should be a single order for costs in one appeal, save for an order for the costs of preparing the appeal book in each of the other two appeals. The costs should be limited to the costs properly incurred for a single day of hearing. They should be fixed by way of a lump sum, in accordance with the Court’s preferred practice: see the Court’s Costs Practice Note; GPN-COSTS. The principal costs order should be in the sister’s appeal, because the argument centred on her circumstances.

23    The parties will be given an opportunity to agree on appropriate lump sums for costs. If they fail to do so the matters will be referred to a Registrar for determination.

Associate:

Dated:    18 June 2021

SCHEDULE OF PARTIES