FEDERAL COURT OF AUSTRALIA

WZARZ v Minister for Immigration and Border Protection [2014] FCA 287

THE COURT ORDERS THAT:

1.    The appeal from the judgment of the Federal Circuit Court given on 14 October 2013 be allowed.

2.    Orders 2 and 3 of the orders made by the Federal Circuit Court on 14 October 2013 be set aside.

3.    The Court declares that the second respondent in her capacity as Independent Protection Assessor, did not make her recommendation of 31 July 2012 according to law.

4.    The Court orders that the first respondent, whether by himself or by his servants, officers, delegates or agents be restrained from relying upon the second respondent's recommendation of 31 July 2012.

5.    There be no order as to costs in relation to the appeal and the proceedings before the Federal Circuit Court.

6.    The appellant pay the first respondent's costs of the hearing on 7 March 2014 fixed in the sum of $500.

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

REASONS FOR JUDGMENT

1    The appeal before the Court concerned the appellant’s unsuccessful application for a protection visa.

2    The appellant sought review in the Federal Circuit Court of the recommendation of an independent protection assessor that the appellant not be granted a protection visa. The Federal Circuit Court rejected the application for review.

3    The appellant then filed a notice of appeal in this Court. The notice of appeal alleged a number of grounds of challenge to the judgment of the Federal Circuit Court, and asserted jurisdictional error in the recommendation of the independent protection assessor.

4    The appellant filed written submissions in support of the grounds of appeal and the first respondent, the Minister for Immigration and Border Protection, filed written submissions responding to those grounds and arguments. Those grounds were argued before this Court when the appeal came on for hearing.

5    At the conclusion of the argument concerning those grounds, the Court made several observations about the reasons of the independent protection assessor which raised the question of whether the independent protection assessor made jurisdictional errors. The observations of the Court in respect of the independent assessor’s reasons raised different issues to the grounds articulated by the appellant.

6    The matter was adjourned to allow the first respondent time to consider his position.

7    The first respondent reflected on the observations made by the Court and ultimately agreed that the recommendation of the independent protection assessor should be set aside and that the first respondent not be permitted to rely on the recommendation of the independent assessor. This response was a reasonable and responsible response.

8    The question which is now before the Court concerns the order for costs which should be made in these circumstances.

9    The first respondent contends that there should be no order for costs of the appeal to this Court, or for the proceedings before the Federal Circuit Court. The appellant on the other hands seeks her costs, at least of the appeal.

10    The appellant contends that she has been successful in overturning the recommendation of the independent protection assessor, and in accordance with the usual principle that costs follow the event, she should get her costs of the appeal.

11    This approach, however, does not take account of the fact that the grounds of appeal asserted by the appellant would not have been successful, and that the first respondent was therefore justified in contesting the appeal. By accepting the observations of the Court, the first respondent acted reasonably and responsibly and should not be ordered to pay the costs of the appeal. The proposal that there be no costs in relation to the appeal in this Court or to the proceedings before the Federal Circuit Court best accords with justice.

12    The appellant was ill-advised to contest the position on costs proposed by the first respondent. She should therefore pay the first respondent’s costs of the application for costs today, fixed at $500.

Associate:

Dated:    26 March 2014