AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389

AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389

The absence of unreasonable conduct and the fact that the appellant was unrepresented at first instance justified setting aside the order for costs made in favour of the Minister in the Federal Circuit Court, even though the ground of review was not raised below. The correct exercise of the Court's costs discretion is to set aside the costs order below without making a positive order for costs in favour of the appellant.

Jurisdiction
Australia
Judgment Date
21 March 2018
Procedural Posture
Appeal / Determination of Costs After Successful Appeal From Federal Circuit Court
Outcome
First instance costs order in favour of the Minister set aside; no order as to costs below.
Legal Topics
['judicial Review' 'costs' 'immigration' 'protection Visas' 'jurisdictional Error']
['administrative Law'] ['judicial Review' 'costs' 'immigration' 'protection Visas' 'jurisdictional Error']

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Procedural Posture

Appeal / Determination of Costs After Successful Appeal From Federal Circuit Court

Legal Issues

  1. 1 ['Whether costs order made in favour of the Minister in the court below should be disturbed where the appellant succeeded on a ground not raised at first instance']

Ratio Decidendi

The absence of unreasonable conduct and the fact that the appellant was unrepresented at first instance justified setting aside the order for costs made in favour of the Minister in the Federal Circuit Court, even though the ground of review was not raised below. The correct exercise of the Court's costs discretion is to set aside the costs order below without making a positive order for costs in favour of the appellant.

Court Disposition

First instance costs order in favour of the Minister set aside; no order as to costs below.

Orders

  • ['Order 2 made in the court below be set aside.']