Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67

Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67

The Appellant was entitled to the costs of the appeal because he was ultimately successful, did not press a ground without arguable merit, and the successful ground was not entirely disconnected from issues before the primary judge. However, the primary judge's adverse costs order was not disturbed because, in the proceedings below, the Appellant made an explicit forensic decision to argue the case on a premise ultimately found incapable of acceptance and gave no reason why steps were not taken before those proceedings to clarify the ambiguity about Dr Salter's letter.

Jurisdiction
Australia
Judgment Date
17 April 2020
Procedural Posture
Costs Determination Following Allowed Appeal in Migration Judicial Review Matter / Full Court Costs Orders After Appeal Upheld
Outcome
The First Respondent was ordered to pay the Appellant's costs of the appeal, and the primary judge's costs order was not disturbed.
Legal Topics
['costs of Appeal' 'costs at First Instance' 'new Ground on Appeal' 'mixed Success' 'judicial Review of Administrative Appeals Tribunal Decision']
['administrative Law' 'migration Law' 'costs'] ['costs of Appeal' 'costs at First Instance' 'new Ground on Appeal' 'mixed Success' 'judicial Review of Administrative Appeals Tribunal Decision']

Case Brief

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Procedural Posture

Costs Determination Following Allowed Appeal in Migration Judicial Review Matter / Full Court Costs Orders After Appeal Upheld

Legal Issues

  1. 1 ['Whether the successful Appellant should be awarded the costs of the appeal despite succeeding on a ground not advanced before the primary judge.' 'Whether the adverse costs order made by the primary judge should be set aside or otherwise disturbed.' 'Whether the Appellant should pay or be deprived of costs for part of the appeal because of the late amendment and mixed success.']

Ratio Decidendi

The Appellant was entitled to the costs of the appeal because he was ultimately successful, did not press a ground without arguable merit, and the successful ground was not entirely disconnected from issues before the primary judge. However, the primary judge's adverse costs order was not disturbed because, in the proceedings below, the Appellant made an explicit forensic decision to argue the case on a premise ultimately found incapable of acceptance and gave no reason why steps were not taken before those proceedings to clarify the ambiguity about Dr Salter's letter.

Court Disposition

The First Respondent was ordered to pay the Appellant's costs of the appeal, and the primary judge's costs order was not disturbed.

Orders

  • ["The First Respondent pay the Appellant's costs of the appeal as agreed or as taxed." 'The order made on 8 February 2019 by the primary judge for costs in that proceeding not be disturbed.']