CYF16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 169

CYF16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 169

The Costs Order should not be disturbed because the appellant succeeded on appeal only on a new ground that was not raised before the Federal Circuit Court, the explanation for not raising it below was unsatisfactory, and the new ground, although also concerning the relocation test, focused on a different aspect of the Tribunal's application of that test. The appeal ground challenging the primary judge's treatment of the ground actually raised below was dismissed, and BCR16 was distinguishable because the new ground in that case depended on authority delivered after the primary judgment.

Jurisdiction
Australia
Judgment Date
21 February 2019
Procedural Posture
Costs Application in an Appeal From the Federal Circuit Court of Australia / Determined on the Papers After Appeal Allowed
Outcome
The appellant's application to set aside the Federal Circuit Court costs order was dismissed; the Costs Order was not disturbed.
Legal Topics
['costs Discretion' 'costs of First Instance Proceeding' 'new Ground Raised on Appeal' 'relocation Test' 'judicial Review of Administrative Appeals Tribunal Decision']
['administrative and Constitutional Law and Human Rights' 'costs' 'migration'] ['costs Discretion' 'costs of First Instance Proceeding' 'new Ground Raised on Appeal' 'relocation Test' 'judicial Review of Administrative Appeals Tribunal Decision']

Case Brief

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Procedural Posture

Costs Application in an Appeal From the Federal Circuit Court of Australia / Determined on the Papers After Appeal Allowed

Legal Issues

  1. 1 ["Whether the Federal Circuit Court costs order requiring the appellant to pay the Minister's costs should be set aside after the appellant succeeded on appeal on a new ground not raised before the primary judge." "Whether the Minister should pay the appellant's costs below or, alternatively, each party should bear its own costs of the proceeding below."]

Ratio Decidendi

The Costs Order should not be disturbed because the appellant succeeded on appeal only on a new ground that was not raised before the Federal Circuit Court, the explanation for not raising it below was unsatisfactory, and the new ground, although also concerning the relocation test, focused on a different aspect of the Tribunal's application of that test. The appeal ground challenging the primary judge's treatment of the ground actually raised below was dismissed, and BCR16 was distinguishable because the new ground in that case depended on authority delivered after the primary judgment.

Court Disposition

The appellant's application to set aside the Federal Circuit Court costs order was dismissed; the Costs Order was not disturbed.

Orders

  • ['The application made by the appellant in his submissions filed on 15 January 2019 to set aside Order 2 of the Federal Circuit Court of Australia made in SYG2749/2016 on 14 November 2017 be dismissed.']