CED16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 438

CED16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 438

Although the appellant succeeded overall in setting aside the primary judge's decision, the precise jurisdictional error on which he succeeded was not agitated before the Federal Circuit Court and emerged from the Minister's submissions on appeal; because there were merits on both sides, the appropriate order was that each party bear their own costs of the Federal Circuit Court proceedings.

Jurisdiction
Australia
Judgment Date
03 April 2019
Procedural Posture
Migration Appeal; Supplementary Costs and Consequential Orders / Federal Court Appeal From Federal Circuit Court; Supplementary Orders on the Papers
Outcome
Supplementary orders made; Federal Circuit Court dismissal and costs orders set aside; writs issued; no order for costs below.
Legal Topics
['writ of Certiorari' 'writ of Mandamus' 'jurisdictional Error' 'new Information' 'costs Where Successful Appeal Point Not Raised Below']
['administrative and Constitutional Law' 'migration' 'costs'] ['writ of Certiorari' 'writ of Mandamus' 'jurisdictional Error' 'new Information' 'costs Where Successful Appeal Point Not Raised Below']

Case Brief

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Procedural Posture

Migration Appeal; Supplementary Costs and Consequential Orders / Federal Court Appeal From Federal Circuit Court; Supplementary Orders on the Papers

Legal Issues

  1. 1 ['Whether order 2 of the Federal Circuit Court made on 14 February 2017 should be set aside and writs of certiorari and mandamus issued.' 'Whether the Federal Circuit Court costs order should be set aside and what costs order should replace it where the appellant succeeded on appeal on a point not agitated before the primary judge.']

Ratio Decidendi

Although the appellant succeeded overall in setting aside the primary judge's decision, the precise jurisdictional error on which he succeeded was not agitated before the Federal Circuit Court and emerged from the Minister's submissions on appeal; because there were merits on both sides, the appropriate order was that each party bear their own costs of the Federal Circuit Court proceedings.

Court Disposition

Supplementary orders made; Federal Circuit Court dismissal and costs orders set aside; writs issued; no order for costs below.

Orders

  • ['Order 2 of the Federal Circuit Court of Australia made on 14 February 2017 be set aside and in lieu thereof it is ordered that there issue absolute in the first instance a writ of certiorari directed to the second respondent to quash the decision of 11 July 2016 and a writ of mandamus directed to the second...