CHF16 v Minister for Immigration and Border Protection (No 2)

The case of CHF16 v Minister for Immigration and Border Protection (No 2) involves an appeal against decisions made by the Federal Circuit Court of Australia. The appellants, CHF16 and his son, challenged the orders of the Immigration Assessment Authority, which had been affirmed by the primary judge of the Federal Circuit Court. The central issue in this case is the allocation of costs between the parties, both at the first instance and on appeal.

The legal issues before the court were whether the general principle that the unsuccessful party should pay the costs of the successful party should be departed from in light of a shift in the basis of the attack on the Immigration Assessment Authority’s decision, and whether the Minister, as the unsuccessful respondent, should pay the additional costs related to the separate representation of the appellant father and son during the appeal. The court also had to determine if the costs of the appeal should exclude work related to the argument about separate representation.

The court found that the general principle regarding costs should not be rigidly applied where there had been a significant shift in the basis of the attack on the Immigration Assessment Authority’s decision. It held that the first respondent should pay the applicants’ costs, as agreed or taxed, in place of the costs order made by the primary judge. Regarding the appeal costs, the court ruled that the Minister should bear the additional costs associated with the separate representation of the appellant father and son, and that these costs should not exclude work related to the argument about separate representation. The court further ordered that the costs referred to in the second order be paid directly to each of the pro bono counsel pursuant to rule 4.19(3) of the Federal Court Rules 2011.