Federal Court of Australia

BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2020] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent is to pay the appellants’ costs in the Federal Circuit Court of Australia fixed in the sum of $7,467.00.

2.    The first respondent is to pay the appellants’ 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

PERRY J:

1    On 15 May 2020, I delivered judgment in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 (BEG17 (No. 1)). For the reasons given in BEG17 (No. 1), I allowed the appeal from a decision of the Federal Circuit Court dismissing the appellants’ (Mr and Mrs [BEG] and their son’s) application for judicial review of a decision of the Refugee Review Tribunal (Tribunal). By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refusing to grant the appellants protection visas. As I further explained in my reasons in BEG17 (No. 1):

2. …The Tribunal accepted Mr and Mrs [BEG]’s claims that if returned to India as an inter-caste couple, there was a real chance that they would be the victims of honour killings from Mrs [BEG]’s relatives in Punjab. However, the Tribunal found that they had a right to enter and reside in Nepal where it considered that the chance that the relatives in Punjab would discover that they were living there and be able to harm them there was “remote” (at [69] and [70]). It is this finding which was the subject of challenge before the FCC and on the appeal. As the Tribunal found that the appellants had not taken all possible steps to avail themselves of that right, it therefore held that Australia does not owe protection obligations to the appellants under s 36(3) of the Migration Act 1958 (Cth) (the Act).

3. For the reasons set out below, the application for leave to amend the notice of appeal and to raise the new issues, to the extent that they are truly new, should be granted. The appeal is allowed on the basis that in all of the circumstances, the Tribunal failed to extend a real and meaningful invitation to the hearing contrary to s 425 of the Act and the decision was unreasonable by reason of the Tribunal’s failure to advise the appellants that they could apply for an adjournment and seek to put further material before it on the Nepal issue.

2    As the appeal was allowed on grounds at least in part not argued below, or at least not developed in the same way as on the appeal, I considered that it was appropriate to afford the parties an opportunity to make submissions on the costs of the appeal and in the Federal Circuit Court, if they were unable to reach agreement as to the appropriate order as to costs (BEG17 (No. 1) at [88]).

3    Both parties filed submissions on the issue of costs.

4    In the event, the first respondent very appropriately did not oppose an order that the first respondent pay the appellants’ costs to be assessed, if not agreed. The remaining issue concerns whether the appellants should receive their costs in the Federal Circuit Court as the appellants contend, or there should be no order as to costs, as is the Minister’s primary contention.

5    The relevant principles are well settled and may be shortly stated. They were conveniently summarised recently by the Full Court in Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 as follows:

41    The Court has a broad discretion under s 43(2) of the FCA Act when determining appropriate costs orders which must be exercised judicially, that is, not arbitrarily, capriciously, or so as to frustrate the legislative intent: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (Oshlack) at [22] (Gaudron and Gummow JJ); Hughes v Western Australian Cricket Association (Inc) [1986] FCA 382; [1986] ATPR 40-748 at 48,136 (Toohey J). In other words, the discretion has “escaped arterial hardening” (applying the words of Gaudron and Gummow JJ in Oshlack at [38] by analogy).

42    Thus, while the ordinary rule is that the successful party will receive her or his costs, that is not an absolute rule: Oshlack at [40] (Gaudron and Gummow JJ); Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 (Ruddock) at 234-235 (Black CJ and French J). As the Full Court explained in Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 at [11], after referring to the decisions in Ruddock and Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 with approval:

11. These decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs. However they contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.

6    As to the costs in the Federal Circuit Court, the appellants submitted that they should receive an order for costs in their favour given that:

(1)    they were ultimately successful on the appeal against the Federal Circuit Court’s decision;

(2)    the argument on the appeal was not a “a new argument or point, root and branch”;

(3)    the Tribunal’s error as upheld on the appeal “was multi-faceted, it all sprung out of the tribunal’s decision to raise the Nepal option on its own initiative in an inappropriate way”;

(4)    it was not unusual for an arguments to become refined and sometimes recast between the trial and the appeal.

7    It is true, as the appellants submit, that the successful contentions on the appeal were not entirely new. Two of the so-called particulars to ground 1 had plainly been raised below, while the remaining so-called particulars sought to challenge essentially the same aspects of the Tribunal’s reasons as those challenged in the Federal Circuit Court albeit by re-characterising the alleged errors in a different way: see BEG17 (No. 1) at [16] to [18]. With respect, the Minister’s description of the successful ground as a “fresh ground” ought not, therefore, to be accepted.

8    In those circumstances, I agree with the Minister’s alternative submission that the appropriate order is that the first respondent pay the appellants’ costs in the Federal Circuit Court fixed in the sum of $7,467.00. As the Minister submitted, this is the amount allowable under r 44.15(1) and Sched 1 Part 3 Div 1 of the Federal Circuit Court Rules 2001 (FCC Rules) for migration proceedings that were concluded at a final hearing and is the amount ordered in favour of the first respondent below. Assessing the appellants’ costs in the Federal Circuit Court in this way is, in my view, fair, efficient and cost effective in all of the circumstances. While in the notice of appeal, the appellants sought costs in the Federal Circuit Court “fixed in the sum of $8,877.00 (consisting of the filing fee of $615, setting down for hearing fee of $795 and professional costs of $7,467 for the hearing”, no evidence was led in support of the proposition that an order for costs in excess of the amount allowable under the FCC Rules was warranted.

Associate:

Dated:    24 September 2020