Federal Court of Australia

Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs (No 2) [2026] FCAFC 134

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay 85% of the appellant’s costs of the appeal (including the interlocutory applications referred to in paragraphs 1 and 2 of the orders made on 8 September 2026 but excluding the costs which are the subject of the orders made on 5 December 2025), such costs to be determined on a lump sum basis.

2.    Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

3.    In the absence of any agreement:

(a)    within a further 14 days, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs 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

THE COURT:

1    On 8 September 2026, the Full Court gave judgment and published reasons for judgment in relation to this appeal: Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 121. The Full Court decided that the appeal should be allowed, but that two interlocutory applications brought by the appellant (for leave to amend his notice of appeal and for the Court to receive further evidence on appeal) should be dismissed.

2    In relation to the costs of the appeal, the orders made on 8 September 2026 provided for the parties to file and serve short written submissions, and for the issue of costs to be determined on the papers. The timetable for the filing of those submissions was subsequently extended by consent.

3    The parties have now filed written submissions. The appellant’s submissions are dated 15 September 2026. The submissions of the respondent (the Assistant Minister) are dated 18 September 2026. The appellant indicated by email to the Court on 21 September 2026 that he did not wish to file reply submissions.

4    There is no issue that, in principle, the Assistant Minister should pay the appellant’s costs of the appeal. The issue is whether any adjustment should be made to that order on account of the appellant’s lack of success on his two interlocutory applications.

5    In summary, the positions of the parties are as follows:

(a)    The appellant submits that there should be no adjustment on account of the failed interlocutory applications. As a fallback position, he submits that, at most, the adjustment should be that the Assistant Minister is not required to pay the appellant’s costs of preparing the interlocutory application to receive further evidence on appeal and his submissions in support of that application filed on 21 July 2026.

(b)    The Assistant Minister submits that the costs he is required to pay should be reduced on account of the outcome of the two interlocutory applications. The Assistant Minister submits that the appropriate order is that he pay 75% of the appellant’s costs of the appeal (excluding the costs which are the subject of the orders made on 5 December 2025).

6    The Court has a broad discretion as to costs. The approach usually taken is that costs follow the outcome of an appeal: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 327 ALR 192 at [6] per French CJ, Kiefel, Nettle and Gordon JJ. While the success or failure of the relevant party is the starting point in consideration of the question of costs, there are at least three distinct categories of situation in which a successful party might be deprived of costs: see Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; 236 FCR 370 at [11] per Dowsett, Middleton and Gilmour JJ.

7    In our view, in the present case, it is appropriate: to adopt an “issues based” approach; to view the two interlocutory applications as separate issues; and to have regard to the success or failure of the parties on the issues. It is not practical to make separate costs orders for each issue; it is preferable to adopt a percentage discount approach as submitted by the Assistant Minister.

8    Adopting that approach, we note that the two interlocutory applications were dealt with in seven paragraphs (at [10]-[16]) in the reasons for judgment of Moshinsky and Dowling JJ. This represents less than 10% of that judgment. The interlocutory applications appear to have taken up about 8 out of 45 pages of the hearing transcript – approximately 18%. Having regard to the time and likely costs associated with the two interlocutory applications, we consider a 15% reduction in the costs otherwise payable by the Assistant Minister to be appropriate.

9    Accordingly, we consider the appropriate costs order to be that the Assistant Minister pay 85% of the appellant’s costs of the appeal (including the two interlocutory applications but excluding the costs which are the subject of the orders made on 5 December 2025).

Associate:

Dated:    9 October 2026