Federal Court of Australia

Minister for Immigration and Citizenship v XMBQ (Costs) [2026] FCAFC 55

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay 50 percent of the appellant’s costs of the proceeding before the primary judge, as agreed or assessed.

2.    The respondent pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The respondent’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of criminal offences that he had committed. He sought revocation of that cancellation under s 501CA of the Act. The (then) Administrative Appeals Tribunal (the Tribunal), on review of a decision by a delegate of the Minister, revoked the cancellation on 13 April 2021. More than three years later, on 8 June 2024, the appellant (the Minister) made a decision under s 501BA(2) of the Act revoking the decision of the Tribunal and cancelling the respondent’s visa. The respondent sought judicial review of the Minister’s decision.

2    The respondent succeeded at first instance: XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553. The primary judge held that the power in s 501BA(2) was subject to an implied limitation, such that it could not be exercised after a “reasonable time” had elapsed, and found that the Minister’s decision had not been made within a reasonable time. His Honour rejected a separate argument that the decision of the Minister was infected by apprehended bias.

3    The Minister appealed. On 9 March 2026 we delivered judgment on the appeal: Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19. The Minister did not challenge the primary judge’s finding that his decision had not been made within a reasonable time, but submitted that s 501BA(2) was not subject to the implied limitation identified by the primary judge. We accepted this submission. We also dismissed a notice of contention by which the appellant re-agitated his claim of apprehended bias.

4    The parties have now filed written submissions on costs. The Minister seeks his costs of the proceeding below and the appeal on the basis of the usual rule that costs follow the event. The respondent submits that this is a case where the usual rule should not apply, because the proceeding raised a novel question of general importance and some difficulty which gave it a public interest character. A comparison is sought to be made with Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229, where the Full Court (Black CJ, Beaumont and French JJ) decided to make no order as to costs on the footing that the case raised novel and important questions of law concerning the liberty of the individual and the executive power of the Commonwealth; there was divided judicial opinion about those issues; the unsuccessful respondents did not stand to make any financial gain from their claims; and the respondents’ legal representation had been provided free of charge and ensured that the proceeding was resolved efficiently and expeditiously.

5    While the appeal dealt with an issue of some importance to the administration of the Act (upon which, we understand, the outcome of a significant number of other cases will depend), and was efficiently and ably argued on both sides, we do not accept that the circumstances of the appeal call for a departure from the general rule that costs follow the event. This is for the following reasons.

(a)    The question whether an implied time limit existed, while attended by some complexity, ultimately involved the application of settled principles of statutory construction to a particular provision.

(b)    We came to a unanimous view on the resolution of that issue. No other Full Court decisions bore directly on the question. Other decisions of single judges involving the same issue had (properly) proceeded on the assumption that the primary judge’s reasoning was correct rather than expressing separate conclusions on that issue. The case was not one where a contradiction between authorities needed to be resolved or where the Court was divided.

(c)    The respondent commenced the original proceedings in pursuit of his own interests (in that he sought to have his visa restored to him and to return to living in the community) and resisted the Minister’s appeal on the same basis. The fact that the resolution of his case at Full Court level is likely to assist in the resolution of other cases does not take it out of the ordinary run of appellate litigation.

(d)    The respondent also pursued his notice of contention (which, if successful, might have significantly impaired the value of this case as a test case), and was unsuccessful.

6    However, the situation is somewhat different in respect of the proceeding below. The primary judge ordered the Minister to pay the respondent’s costs in circumstances where:

(a)    the respondent had succeeded on the question whether s 501BA(2) was subject to an implied time limit;

(b)    the respondent had also succeeded in establishing that the Minister’s decision was not made within a reasonable time, with the Minister having gone into evidence (which involved a fairly substantial affidavit and required the deponent to be cross-examined); and

(c)    the respondent had failed on the apprehended bias argument.

7    The appeal has vindicated the Minister’s position in relation to the first and third of these points. However, the Minister effectively accepted defeat on the second – whether, in all the circumstances of the case, the time taken to make his decision was reasonable. Although the Court is generally unwilling to split costs orders by reference to particular issues, we consider that in this case the respondent should not have to bear the cost of the Minister having unsuccessfully pursued a fact-intensive issue. That cost should be borne by the Minister. It is difficult to see how, if s 501BA(2) was subject to an implied requirement for a decision to be made within a “reasonable” time, the Minister could realistically have expected to be able to prove that it was reasonable to take over three years to come to the opinion that it was not in the national interest for the respondent to continue to hold a visa.

8    Accordingly, in the absence of a detailed breakdown of the costs of the proceedings below, we consider that the costs order made by the primary judge (which was set aside as part of the orders that we made on 9 March 2026) should be replaced by an order that the respondent pay half of the Minister’s costs of the proceeding before his Honour.

Associate:

Dated:    30 April 2026