Federal Court of Australia

GDV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 946

ORDERS

THE COURT ORDERS THAT:

1.    The order made in the (then) Federal Circuit Court of Australia proceedings SYG3302/2018 on 9 June 2020 as to costs is not to be disturbed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 3 August 2023, I made orders by consent allowing the application for an extension of time, allowing the appeal, quashing the decision of the second respondent, the Immigration Assessment Authority, and directing the Authority to determine the application referred to it for review according to law. The orders included a notation also by consent that:

The first respondent concedes that the second respondent (the Authority) relied on a misunderstanding and misstatement of the oral evidence given by the applicant at a protection visa interview with a delegate of the first respondent on 19 September 2018 concerning his having ceased attendance at the Liberty Baptist Church (at page 20 of the transcript of interview annexed to the affidavit of Renee Jane Quinn dated 20 June 2023). Contrary to the Authority’s reasons for decision at [6], the applicant did not give evidence at the protection visa interview that he stopped attending the Liberty Baptist Church. The Authority’s error in this respect vitiated its application of s 473DD of the Migration Act 1958 (Cth) at [6] of its reasons. The error was material and therefore jurisdictional. The first respondent consents to the application to extend time and to the grant of the appeal, accordingly.

(Emphasis in original.)

2    While orders were also made that the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, is to pay the appellant’s costs of the appeal in a fixed amount, the question of whether the costs order made in the (then) Federal Circuit Court of Australia (FCC) proceedings SYG3302/2018 at first instance ought to be disturbed was reserved.

3    For the reasons set out below, I consider that the costs order made by the FCC on 9 June 2020, namely that the appellant pay the first respondent’s costs fixed in the amount of $7,467.00, should not be disturbed.

4    Finally, I note that this appeal was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-person hearings during the Covid-19 pandemic. Following those delays, in March 2023 the appellant obtained legal representation.

2.    DISPOSITION OF THE COSTS ISSUE

5    The principles regarding the award of costs are well established. Ordinarily, a successful party is entitled to an award of costs in their favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [11] (Black CJ and French J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] (McHugh J) and at [134] (Kirby J); Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67 at [11] (the Court).

6    In Anees, the Full Court at [21] disavowed any general principle (deriving from Uriaere v Minister for Home Affairs [2019] FCAFC 235; (2019) 168 ALD 417 or Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173) that an existing adverse costs order must, save in exceptional circumstances, remain on foot if an appellant succeeds only because leave to advance new grounds has been granted. Rather their Honours held at [22]-[23] that:

Each case must be evaluated on its own merits. Well established principles provide that a party which succeeds in an appeal on a ground advanced in the court below will ordinarily also be awarded their costs in that court. Where an appeal court grants leave to argue a new ground the position is however different. It is likely to be rare that in those circumstances discretionary factors will justify an award of costs in an appellant’s favour being substituted for that made in the court below. However, in many instances the justice of the case may lead to an appeal court concluding in the exercise of its discretion that that there should be no order as to costs in respect of the proceedings at first instance.

No reason of principle requires that an appellant is ordinarily to be burdened with a costs liability in respect of a decision which he or she has ultimately succeeded in having overturned on appeal.

7    Nonetheless, the Court has often held that the appropriate approach to the exercise of the discretion as to costs is not to disturb the costs order made at first instance in circumstances where the appeal succeeded on a new ground: see e.g., CKV16 v Minister for Immigration and Border Protection [2019] FCA 342; (2019) 164 ALD 163 at [15], [29]-[30] (Besanko J); Weng v Minister for Immigration and Citizenship (No 3) [2011] FCA 654 at [15] (McKerracher J). As, for example, Kenny J held in EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 926 at [18]:

The appellant successfully appealed, with leave, on new grounds. In such a case, it is open to this Court to allow the order as to costs made by the Federal Circuit Court to remain undisturbed, as the Minister urged in this case. Chan is an example of this. The Court in Chan upheld an appeal from the Federal Circuit Court, which succeeded on a new ground, but failed on the grounds raised below. The appellant received the costs of the appeal, but the Court declined to disturb the costs order made in the respondent Minister’s favour in the Federal Circuit Court: Chan at [62]: see also CKV16 v Minister for Immigration and Border Protection [2019] FCA 342; 164 ALD 163 at [30] and Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 at [3]-[4].

(Emphasis in original.)

8    The appellant accepts that the issue on which he succeeded was not raised at first instance, but contends that the appropriate order is that there should be no order as to costs in the FCC proceeding, given that:

(1)    it remains the case that the Minister has sought to defend a decision of the Authority which has now been found to be unlawful;

(2)    the error was sufficiently obvious that, upon it being raised, the Minister conceded the claim before the hearing; and

(3)    the event which precipitated the discovery of the error in the Authority’s decision was a review of the recording and transcript of the appellant’s interview with the Departmental delegate (as indicated in the notation to the 3 August 2023 orders), which should arguably have been included by the Minister in the court book at first instance (referring to observations of Stewart J to this effect in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190; (2019) 272 FCR 513 at [84]).

9    There is force in the contention that a copy of the audio recording of the Departmental delegate (and in non-fast track matters, the hearing before Tribunal) ought ordinarily be included in the court book at first instance because it forms part of the material before the administrative decision-maker, particularly where the appellant is unrepresented. However, where the appellant has legal representation at first instance (as in the present case), it is important for the legal representatives of both parties to turn their minds to the question of whether the audio recording of the interview and/or hearing should be included and, if necessary, a transcript of the recording. It cannot be said, in the latter circumstance, that it is the Minister’s responsibility alone to consider this question in compiling the court book.

10    In the present appeal, the appellant served a notice to produce on 7 June 2023 on the Minister’s solicitor requiring production of the audio recording of the protection visa interview between the appellant and the Minister’s delegate. The audio recording was produced electronically to the appellant’s solicitor on 8 June 2023. Also on 8 June 2023, the appellant filed and served written submissions which annexed a proposed amended notice of appeal and properly conceded that the proposed grounds had not been raised before the primary judge. The appellant’s submissions also foreshadowed an application to the Court to receive further evidence, being the audio recording of the protection visa interview and the transcript of the recording, on appeal. Subsequently, on 20 June 2023, a transcript of the audio recording was served on the Minister’s solicitors. The Minister thereafter promptly conceded jurisdictional error on the appeal on the basis of the new ground of appeal.

11    In these circumstances, I consider that the appropriate approach is to leave the orders of the FCC awarding costs in favour of the Minister undisturbed, notwithstanding that the appellant was ultimately successful on the appeal. I have given particular weight to three factors, namely that:

(1)    the appeal succeeded on a new ground in circumstances where the Minister acted promptly and appropriately in relation to the new ground, including in responding to the notice to produce;

(2)    the error was not apparent on the face of the documents before the Authority and included in the court book below, and it was not therefore a case where the Minister might have been alerted at an earlier point in time to a clear error in the Authority’s reasoning; and

(3)    the appellant had legal representation at both levels.

Associate:

Dated:    11 August 2023