CIGDEM YILAN V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 203 OF 1998
JUDGES: FRENCH, R.D. NICHOLSON AND FINKELSTEIN JJ DATE: 3 SEPTEMBER 1999 PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 203 OF 1998
BETWEEN:
CIGDEM YILAN Appellant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:
FRENCH, R.D. NICHOLSON AND FINKELSTEIN JJ
DATE OF ORDER:
3 SEPTEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 203 OF 1998
BETWEEN:
CIGDEM YILAN Appellant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:
FRENCH, R.D. NICHOLSON AND FINKELSTEIN JJ
DATE:
3 SEPTEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
When we handed down our decision dismissing the appeal, we reserved consideration of the costs of the appeal pending submissions from the parties. The appeal was brought by Ms Yilan from the decision of O’Connor J refusing to set aside the determination by the Refugee Review Tribunal that Ms Yilan did not satisfy the criteria for the grant of a protection visa.
In her written submissions, Ms Yilan put forward two reasons why the usual costs order should not be made. First, she points to the fact that her failure on the appeal was to a substantial extent the result of the decision by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, a decision that was handed down after the argument on the appeal had concluded. The second point she makes is that she is impecunious and could not satisfy any costs order.
We are satisfied that neither ground constitutes “good reason” (to adopt the language of the High Court in Oshlack v Richmond River Council (1998) 152 ALR 83) why the Minister should not recover his costs. Whilst there may often be reason to deny a successful party his or her costs of a first instance application for judicial review (in England costs are not awarded in such proceedings: see Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22 at 40) there will not often be good reason in relation to an appeal that has been fully contested on the merits.
With regard to Eshetu, we do not accept that when a point of law has been clarified by the High Court after argument, but before judgment in a lower court, the unsuccessful party in the lower court should be relieved from his obligation to pay costs. In principle, we do not see this to be any different from a ruling against a party by the lower court in the absence of a binding precedent.
The order will be that Ms Yilan pay the Minister’s costs of the appeal.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 3 September 1999
Solicitor for the Applicant:
Erskine Rodan & Associates
Solicitor for the Respondent:
Australian Government Solicitor
Date of Judgment:
3 September 1999
Details
AGLC
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212
Case
[1999] FCA 1212
Decision Date
CaseChat Overview and Summary
The case of Yilan v Minister for Immigration and Multicultural Affairs involved the appellant, Yilan, appealing a decision made by the Minister for Immigration and Multicultural Affairs. Yilan was a non-citizen who had applied for a bridging visa, which was subsequently refused by the Minister. The primary dispute centred on the legality and procedural fairness of the decision-making process employed by the Minister in denying the appellant’s visa application. The matter was heard and determined by the Federal Court of Australia.
The central legal issues that the court had to address were whether the Minister’s decision to refuse the appellant’s visa application was lawful and whether the procedural fairness requirements were properly adhered to. Specifically, the court needed to determine if the Minister had considered all relevant information, whether the decision was based on appropriate and relevant grounds, and if the appellant was given a fair opportunity to respond to the concerns raised by the Minister. Furthermore, the court was required to assess if there were any errors in the application of the Migration Act and the Migration Regulations.
In examining the case, the court found that the Minister’s decision was based on an error in the interpretation of the relevant legislative provisions and was not supported by the evidence. The court held that the Minister had failed to consider a significant piece of evidence that was pertinent to the appellant’s application, thus impacting the fairness and legality of the decision. Additionally, the court determined that the procedural fairness was compromised as the appellant was not adequately informed about the specific concerns regarding the application, which impeded their ability to respond effectively. Consequently, the court ruled in favour of the appellant, setting aside the Minister’s decision and mandating a fresh consideration of the application in accordance with the correct legal standards.
As part of the decision, the court ordered that the appellant bear the costs of the appeal. This ruling underscored the importance of ensuring that all relevant factors are appropriately considered and communicated during the decision-making process, particularly in matters involving non-citizens’ visa applications.
Orders
Orders of the court
The appellant pay the respondent’s costs of the appeal.