Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB

The applicants, in this case, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, sought an extension of time and leave to appeal from a costs judgment and orders made by a Judge of the Federal Court of Australia. The judgment was delivered on 26 May 2021, and the applicants also sought leave to adduce further evidence in support of their application for leave to appeal and any appeal. The primary judge ordered no costs in relation to the respondent's failure below to obtain an order in the nature of habeas corpus.

The court had to determine whether the applicants had an arguable case that the primary judge proceeded on a mistake of fact, took into account irrelevant considerations, or incorrectly applied Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747. The court also had to consider if there was a substantial injustice if leave to appeal was refused. The primary judge rejected the contentions advanced by the applicants in favour of an order of costs being made in their favour, stating that the Cabal principle was relevant to the exercise of the Court's discretion, along with other factors.

The court found that the primary judge proceeded to determine the issue of costs on the basis that the Cabal principle was nevertheless relevant to the exercise of the Court's discretion, along with other factors. The primary judge gave detailed reasons for rejecting each of the contentions advanced by the applicants. The fresh evidence the subject of the interlocutory application went to ground 1 of the proposed notice of appeal, namely that the primary judge proceeded on a mistaken fact or, alternatively, took into account an irrelevant consideration in finding that "it would have been open to [MB] to contend that he had been brought to Australia for a temporary medical purpose which had not been fulfilled."

The court concluded that there was no arguable grounds of appeal and no substantial injustice if leave to appeal was refused. Therefore, the applications were dismissed, and the applicants were ordered to pay the respondent's costs of the application and interlocutory application as agreed or taxed.