Federal Court of Australia Okoh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 81 Appeal from: Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011 File number: VID 571 of 2022 Judgment of: THOMAS, O'BRYAN AND MCELWAINE JJ Date of judgment: 26 May 2023 Catchwords: COSTS – where first respondent filed an interlocutory application before the substantial hearing seeking to vacate the hearing until a later date – where interlocutory application was brought after the applicant sought to amend the notice of appeal to raise a new ground previously raised in a different matter – where the first respondent was unsuccessful in the interlocutory application but ultimately successful in the proceedings – whether the first respondent pay the costs of the interlocutory application – whether there was utility in the interlocutory application Cases cited: AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427 Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of last submissions: 18 April 2023 Date of hearing: 28 March 2023 Counsel for the Appellant: Mr M Albert with Ms K Laycock-Walsh (Pro Bono) Counsel for the First Respondent: Mr N Wood SC with Ms K McInnes Solicitors for the First Respondent: Sparke Helmore ORDERS VID 571 of 2022 BETWEEN: EMMANUEL EGHONGHON OKOH Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: THOMAS, O'BRYAN AND MCELWAINE JJ DATE OF ORDER: 26 may 2023 THE COURT ORDERS THAT: 1. The parties bear their own costs of and incidental to the interlocutory application. 2. The appellant otherwise pay the first respondent's costs of and incidental to the proceedings on a standard basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: Background 1 Mr Emmanuel Okoh (the appellant) appealed from the decision of Middleton J (see Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011) by notice of appeal filed 30 September 2022. The appellant sought a writ of certiorari quashing the decision of the Administrative Appeals Tribunal (the AAT) and a writ of mandamus directing the AAT to hear and determine the appellant's application for review according to law. The grounds of appeal were as follows: 1. The Honourable Justice of the Federal Court erred in concluding that the [AAT] had not fallen into jurisdictional error by failing to consider the Appellant's mental health when considering the impediments to the Appellant's return to Nigeria. 2. The Honourable Justice of the Federal Court erred in concluding that the [AAT]'s findings about the impediments to the Appellant's removal … were not jurisdictional errors by reason of being legally unreasonable. 2 The appellant was not represented when the notice of appeal was filed. 3 The appellant received a pro bono referral which was accepted by counsel on 30 January 2023. The timetable for the filing of submissions was subsequently amended and counsel for the appellant filed submissions accompanied with a proposed amended notice of appeal on 17 February 2023. The appellant did not press ground 2 and sought leave to raise a new ground 2 as follows: The [AAT] lacked jurisdiction by reason that the cancellation decision on which it was premised was legally ineffective because it arose from a denial of natural justice concerning which cancellation power under s 501 or s 116 of the Migration Act 1958 (Cth) to exercise in respect of the Appellant's visa. 4 The new ground 2 had also been raised before the Full Federal Court of Australia in Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD122/2022) (Motufoaki) which was heard on 16 November 2022, with judgment reserved. 5 On 23 February 2023, the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), filed an interlocutory application seeking to vacate the hearing on 2 March 2023 and for the matter to be relisted at a date not before the delivery of judgment in Motufoaki. 6 The interlocutory application filed 23 February 2023 was heard on 28 February 2023. The interlocutory application was dismissed and the appeal was heard on 2 March 2023 with judgment handed down on 28 March 2023. 7 Leave to amend the notice of appeal and raise the new ground 2 was refused and the appeal was dismissed. 8 Although the Minister was unsuccessful in the interlocutory application filed 23 February 2023, the Minister was ultimately successful in the appeal. 9 The parties made submissions regarding the appropriate orders for costs in relation to the interlocutory application and the final hearing. CONSIDERATION 10 There was no disagreement that a successful party is ordinarily entitled to an order for costs in their favour, including in relation to interlocutory matters, unless special circumstances justify some other order. 11 It is without doubt that the Court retains a discretion to depart from that position. The discretion must be exercised judicially. 12 The appellant submitted that costs should follow the event. An order should be made that the Minister pay the appellant's costs of the interlocutory application. 13 We observed at [102] of the reasons for judgment that the application for adjournment was properly brought. The appellant submitted that this was not a special circumstance which would justify the Court exercising the discretion not to award the appellant his costs in relation to the failed interlocutory application. 14 The Minister submitted that circumstances exist to justify an order that each party bears their own costs of the interlocutory application. The Minister referred to the decisions in CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427 (CQI18) and AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 (AIO21). 15 In CQI18, Mortimer J (as her Honour then was) refused to order costs against the unsuccessful applicant where the application had "some purpose". In AIO21, Mortimer J accepted there had been a basis for the Minister taking the course which was taken with the result that it would not be appropriate for there to be any adverse costs consequences flowing from the Minister's decision to make the application. 16 The Minister submitted that there was utility in the Minister making the interlocutory application and pointed to the fact that the application was brought in response to the appellant raising a new ground of appeal just before the hearing of the appeal relying upon a novel point of law which had not previously been ruled on by any court and which was the subject of a pending judgment in another Full Court, a matter heard three months earlier. The Minister submitted that the outcome of the other matter may have had severe implications for this current matter and the Minister's application had purpose in the parties ventilating before the Court their respective positions on whether the appeal should proceed while the other matter remained outstanding. 17 In relation to the timing, the appellant pointed to the fact that he had lodged his notice of appeal without representation on 30 September 2022 with pro bono counsel having been appointed on 24 January 2023. It was submitted that, in circumstances where the appellant was unrepresented on the appeal and counsel was appointed shortly before the original submissions' filing deadline, it could not be said that the appellant himself should bear the costs burden because the new ground was not raised further in advance of the hearing. 18 As was expressed in the primary judgment, we are of the view that the Minister's application was properly brought – and served the purpose of assisting the Court by the parties ventilating their respective positions on whether the appeal should proceed while the other matter remained outstanding. 19 However, as the appellant submitted, there was a reason, due to the date of appointment of pro bono counsel, why the amended notice of appeal (incorporating the ground which had been argued before the previous Full Court) was lodged when it was. We agree that, in circumstances where the appellant was unrepresented on the appeal and pro bono counsel was appointed shortly before the original submissions' filing deadline, the appellant himself should not bear the costs burden because of the timing of the new ground. 20 Because the application made by the Minister served some purpose, and there was a clear basis for the Minister taking the course that the Minister did, it is our view that it would not be appropriate for there to be any adverse costs consequences flowing from the decision to make the application, even though the application was unsuccessful. 21 The appellant submitted that, if the Court is not minded to order that the Minister pay the costs of the interlocutory application, then no order as to costs should be made in respect of the costs of the interlocutory application, to avoid the otherwise unfair position that the appellant would be ordered to pay the Minister's costs for a voluntarily-made unsuccessful application to adjourn the final hearing. 22 The Minister submitted that it would be appropriate for each party to bear their own costs of the adjourned application. 23 In the circumstances we have outlined in relation to the application to adjourn the final hearing, the Court will order that the parties bear their own costs of and incidental to the interlocutory application. 24 In relation to the costs of the final hearing, costs should follow the event and, as has been submitted by each party, the appellant will pay the Minister's costs of and incidental to the proceedings on a standard basis. 25 The Court orders that: 1. The parties bear their own costs of and incidental to the interlocutory application. 2. The appellant otherwise pay the Minister's costs of and incidental to the proceedings on a standard basis. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Thomas, O'Bryan and McElwaine. Associate: Dated: 26 May 2023