DFW16 v Minister for Immigration and Border Protection

Delegate's Decision 15 The appellant attended an interview before the delegate as part of his SHEV application. 16 In the decision record dated 22 July 2016, the delegate found the appellant had only a minor association with the Youth Club and had exaggerated his adverse interactions with paramilitary groups to enhance his profile. 17 The delegate was not satisfied that there was a real chance the appellant would be pursued and seriously harmed by anyone, including the Karuna group, as a result of his involvement with the Youth Club. 18 More generally, the delegate found that the appellant was of no particular adverse interest to the Sri Lankan authorities or any associated paramilitary group, or anyone else, prior to his departure from the country. 19 Further, the delegate was not satisfied, based on country information, that the appellant would be persecuted on the basis of his ethnicity, nor that his ethnicity would mean he was linked with the LTTE. 20 In relation to the appellant's claims regarding returning as a failed asylum seeker, the delegate considered that there was no information that he was the subject of any current investigation or had been involved in criminal activities. The delegate found that, while he may be charged with illegally departing Sri Lanka, country information indicated he would most likely be temporarily detained upon arrival to Sri Lanka, questioned, fined and released. 21 Following the rejection of the appellant's claims, the delegate was not satisfied there was a real chance the appellant would be harmed based on his ethnicity, involvement with the Youth Club, imputed political opinion or due to being a failed asylum seeker. 22 The delegate refused the appellant's claims for complementary protection for the same reasons.

Authority's Decision 23 On 28 July 2016, as required by the Act, the Minister referred the delegate's refusal decision to the Authority for fast track review under Pt 7AA of the Act. 24 On 11 October 2016, the Authority affirmed the delegate's refusal. The Authority, having regard (amongst other factors) to inconsistencies in the appellant's claims in his 2013 protection application and his 2015 SHEV application, found he was not a person who was owed protection obligations by Australia for the purposes of s 36(2)(a) of the Act. The Authority considered that, in respect of a number of the appellant's claims, the appellant's information was "materially inconsistent and implausible", which undermined his credibility. 25 At [12]-[23] of the Authority's decision record, it dealt with inconsistencies in relation to a number of the appellant's claims under the headings "Youth club, Karuna group/SLFP, Pillayan group/TMVP", "His position with the youth group", "Club membership", "Attack on his father", "Timing of attack on father and hiding in other village", "Meeting on the beach", "Detention by Karuna group", "Snake bite", and "Abduction due to father's political affiliation and forced labour of brothers" where the statements made in the 2013 protection application were used to evaluate, unfavourably, the SHEV claims of the appellant. 26 The inconsistencies identified were plainly significant to the Authority's final disposition of the SHEV application. 27 It also was not satisfied that the appellant had a profile that would bring him to the attention of the Sri Lankan authorities by reason of having a suspected link to the LTTE. 28 The Authority was not satisfied the appellant faced a real chance of serious harm due to being a failed asylum seeker or having departed Sri Lanka illegally. 29 Finally, the Authority concluded that there were not substantial grounds for believing that the appellant faced a real risk of significant harm on return to Sri Lanka, meaning he did not meet the s 36(2)(aa) criteria for complementary protection.

Judicial Review in the Federal Circuit Court 30 The appellant then applied for judicial review of the Authority's decision on 28 October 2016. At the hearing of the application in the Circuit Court, a key issue was whether it was legally unreasonable for the Authority not to have exercised or considered exercising its power to invite the appellant to comment on, and respond to, inconsistencies between versions of events. 31 The judge noted that there were marked differences between the appellant's 2013 protection claims and those made in 2015 on the SHEV application. At [12] of his reasons, the judge stated: For example, the relevant narrative in the SHEV application started in 2011 when the applicant became the president of the [Youth Club] and the reasons for the applicant leaving his home town in the first instance were different and given in greater detail than in the 2013 [protection application]. 32 The appellant contended that he should have been put on notice by the Authority that it might base its decision on the inconsistencies, given that the delegate's decision did not have regard to these inconsistencies. 33 The judge noted that the appellant's argument was in terms of legal unreasonableness as opposed to procedural fairness, due to and in recognition of the limited scope of the Authority's obligation to afford procedural fairness. 34 The appellant, however, also contended he was denied procedural fairness. 35 At [22] of his reasons, the judge stated: The central propositions in the applicant's case are that the [Authority]: a) first, made its decision on the basis of issues not previously put or identified to the applicant (new issues) such that the applicant did not have the opportunity to comment on the issues; b) secondly, did not exercise its power under s.473DC(3) of the Act, or consider whether to exercise its power to invite the applicant to give new information concerning the new issues; and c) thirdly, thereby acted unreasonably and denied the applicant procedural fairness. 36 In referring to the Authority's reasons for decision, the judge stated that, given the nature of the issue in the proceedings, it was unnecessary to examine all of the Authority's reasons for decision and that it was sufficient to set out only the bases on which the Authority found the appellant's claims concerning the Youth Club not to be credible. His Honour then set out the Authority's reasons. 37 The judge held that the decision in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, regarding the exclusion of the general law with respect to procedural fairness by s 473DA(1) of the Act, precluded the contention the appellant was denied procedural fairness. 38 The judge then considered the issue of unreasonableness. He referred to the Authority's statutory obligations and powers in reviewing a delegate's decision. He considered the following passage from the Full Court's decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; [1994] FCA 293: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. 39 He then noted that "[t]he statute here requires very little and nothing in terms of the material that was before the delegate". The judge continued, at [63]: Even if I were wrong about that, the fact here is that the material relied on by the [Authority] came from the applicant in the first place, related directly to his claim for protection and was before the delegate. I do not accept that the applicant was misled by the letter of 15 September 2015. He did not give evidence to that effect and the obvious inference from the letter was that the original 2013 PVA was kept by the Department. In addition to all of that, the plain requirements of the statute that the Department give the [Authority] relevant material, and the [Authority] consider the material that was given to it by the Department, made it obvious that the [Authority] was going to consider the material. 40 The letter in question is, in fact, that dated 8 September 2015, which invited the appellant to apply for a TPV or a SHEV. 41 The judge held that, where it was obvious that the Authority may draw adverse inferences from the appellant's evidence provided to the Department, it could not be argued that, under Pt 7AA of the Act, the Authority's failure to exercise, or to consider exercising, its s 473DC(3) power was unreasonable. 42 His Honour considered that this conclusion made it unnecessary to determine whether the Authority did or did not consider the exercise of its s 473DC power. 43 The judge dismissed the application, finding there was no jurisdictional error in the Authority's decision, and ordered the appellant to pay the Minister's costs, fixed in the amount of $12,000.

Appeal to This Court 44 The appellant appeals from the entirety of the judge's decision on three grounds: (1) The judge failed to hold that the Authority acted unreasonably and denied the appellant procedural fairness in not exercising its power, and not considering whether to exercise its power, under s 473DC(3) of the Act to invite the appellant to give new information orally or in writing. (2) The judge failed to take into consideration the significant judgments in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 in making its decision. (3) The judge's "actual or lack of impartiality and prejudice" affected and led to his Honour's finding affirming the Authority's decision and dismissing the appellant's application "with higher cost". 45 The appellant has provided detailed particulars of each ground, which I set out below. The particulars effectively constitute submissions. 46 The Minister filed an outline of written submissions on 17 May 2018. 47 I will now deal with each of the three grounds.

Ground 1: Did the Circuit Court judge err in failing to hold that the Authority acted unreasonably and denied the appellant procedural fairness in not exercising its power, or not considering whether to exercise its power, under s 473DC(3) to invite the appellant to give new information orally or in writing? 48 The appellant, by the particulars of this first ground, contends as follows: 1) The Authority made numerous adverse credibility findings based on evidence given by the applicant at earlier interviews or made in his invalid protection visa application. 2) The earlier interviews and the invalid protection visa application were on the Department's file which was before the Minister's delegate when the delegate made a decision but were not considered by the delegate. 3) The Authority thereby made its decision on the basis of issues not previously put or identified to the applicant, such that the applicant did not have an opportunity to comment on the issues. 4) The Authority did not exercise its power under s 473DC(3) and invite the applicant, or consider whether to exercise its power to invite the applicant, orally or in writing to give new information relating to the issues in paragraph (c). 5) the appellant's complaint is about the process by which the Authority arrived at its decision. Specifically, the Authority based its decision: a) on information in documents (the 2012 Entry Interview and the 2013 [protection visa]) which were not provided by the applicant to the Department as part of his safe haven enterprise visa application lodged in 2015; b) on information and issues which had not been previously put or notified to the applicant in the course of the decision-making processes in respect of the safe haven enterprise visa application; and c) on information which had been provided by the applicant to the Department two or three years before he lodged his safe haven visa application. 6) The Authority acted unreasonably and denied the applicant procedural fairness. 49 In respect of the procedural unfairness aspect of this ground, the Minister says s 473DA(1) of the Act provides that Div 3 of Pt 7AA states, exhaustively, the natural justice requirement in relation to review by the Authority. The Minister contends that this has been construed in this Court as excluding general law notions of procedural fairness, citing authorities including DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32. 50 The Minister argues that, as a result, in the present case the Authority's s 473DC(3) discretionary power to invite new information was not conditioned by the common law principle of procedural fairness. The Minister says the judge was therefore correct to reject the appellant's argument that he was denied procedural fairness by the Authority failing to disclose the inconsistencies in his evidence which it intended to rely upon to impugn his credibility. 51 As to the legal unreasonableness contention, the Minister acknowledges that: Since the delivery of judgment by the primary judge, the High Court has held in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 that a failure by the Authority to exercise its discretionary power in s 473DC(3) to get new information may be challenged on legal reasonableness grounds. In addition, two Full Courts of this Court have held in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 … and … DZU16 that a failure by the Authority to consider exercising its discretionary power in s 473DC(3) is a decision that is subject to a requirement of reasonableness. 52 I should also note at this point that the High Court refused special leave to appeal the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 on 19 April 2018. See Minister for Immigration and Border Protection v CRY16 & Anor [2018] HCASL 102. 53 However, the Minister submits that, on the facts of this case, any decision of the Authority not to consider exercising, or not exercising, its power under s 473D(3) in relation to the question of internal inconsistencies it had identified in the appellant's evidence before the delegate, was "well within the area of decisional freedom" conferred by the section, citing Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at [30] (French CJ); [2013] HCA 18 as the source of that expression. 54 The Minister contends that the judge correctly held that, whether the Authority's decision in not exercising its s 473DC(3) power was legally unreasonable was to be determined by focussing on the outcome of that decision in its factual context. The Minister argues the relevant factual context included that the evidence relied upon was given by the appellant himself, it was before the delegate, and the inconsistencies identified related to issues that were not entirely new. In relation to the question of the issues not being entirely new, the Minister contends this case is distinguishable from those in CRY16 and DZU16. 55 So far as these submissions are concerned, there is no doubt that no duty of procedural fairness arose in the circumstances of this case because of the terms of s 473DA(1) which provides that Div 3 of Pt 7AA exhaustively states the natural justice requirements in relation to review that need to be met by the Authority. Decisions such as DZU16 confirm that proposition. This aspect of ground 1 necessarily fails. 56 The question, however, is whether, in the particular circumstances of this case, the Authority unreasonably failed to consider exercising its undoubted power to get more information from the appellant by inviting him, pursuant to s 473DC(3), to deal with the question of apparent inconsistencies between his 2013 protection application grounds and the grounds advanced on the SHEV application. 57 While it was plainly correct for the judge in the Circuit Court to observe that from the letter of 8 September 2015 from the Department inviting him to apply for a TPV or a SHEV the clear inference was that the Department retained the original of his protection application, I do not share his Honour's view that in addition to the letter, the provisions of the Act made it "obvious" the protection application was going to be considered by the Authority when it considered his SHEV application. 58 When one has regard to the full terms of a long letter inviting the appellant to make a TPV or SHEV application, a different picture emerges. In the very first paragraph of the letter, the appellant was advised that the 2013 application "was invalid and cannot be processed any further. We have returned a copy of your original application form to you with this letter". 59 A competing inference might be drawn from the letter, namely, that the invalid 2013 application might be ignored, including its retention by the Department. 60 The position was, at best, ambiguous as to the status of the 2013 application and the use that might be made of it. 61 It is then relevant to note that the delegate, in making the refusal decision on the 2015 SHEV application, made absolutely no reference to the 2013 protection application, even after conducting an interview with the appellant. There was then nothing obvious, by the way of a signal to the appellant, from the terms of the delegate's decision that the appellant should make submissions or seek to give new information to the Authority about apparent inconsistencies in the two applications for the purpose of the Authority's consideration of the delegate's decision. 62 Indeed, in circumstances where there had been a gap of more than two years between the making of the 2013 protection application and the receipt of the 8 September 2015 letter from the Department inviting the SHEV application; the making of the SHEV application some two months later in November 2015, which in its terms did not make any reference to the protection application; the decision of the delegate making no reference to the 2013 protection application or the grounds advanced in support of it; and the ambiguities as to the status of the 2013 application arising from the 8 September 2015 Departmental letter advising of the invalidity of the 2013 application, and returning the copy of it with advice that it would not "be processed any further"; all should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision-making process . 63 There is, however, no material before the Court to suggest that the Authority gave any consideration whatsoever to the need to make such an invitation. 64 In my view, in these circumstances, the Authority in failing to consider the exercise of its undoubted power to invite the appellant to comment on the apparent inconsistencies in the two applications, acted unreasonably in a sense. The circumstances of this case are not materially distinguishable from those of CRY16 where the appellant was not invited to comment on a relocation option, which the Minister has submitted is distinguishable from the present case. 65 While the Minister seeks to add to the factual circumstances in which the Authority did not consider issuing the appellant with an invitation to comment on the inconsistencies, by reference to the fact sheet attached to its acknowledgement of referral letter dated 28 July 2016, and refers to the reference to a "protection visa application" in that fact sheet, it is quite clear that, properly construed, the fact sheet, by referring to a protection visa, is merely advising a referred applicant how the particular application that has been referred to the Authority (in this case, a SHEV) will be handled within the Authority. It is not a document which tells the referred applicant that any earlier applications will be considered in the course of the Authority's review. 66 Counsel for the Minister also drew the Court's attention to a number of other provisions in Pt 7AA of the Act, all of which are now well known from the authorities cited above, that emphasise the nature of the fast track procedure under the Act. For example, counsel referred to ss 473DA(2), 473DB(1) and 473DC(2). However, it is clear that such provisions do not mean that, in appropriate circumstances, the Authority may not be found unreasonably to have failed to exercise a power to invite the provision of new information by a person such as the appellant. 67 In that regard, in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 the plurality (Gageler, Keane and Nettle JJ) said, at [21], that there was no dispute between the parties (including the Minister) that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred: ... on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with a consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review. 68 Justices Gordon and Edelman each wrote separate judgments but also agreed with the answers to the question formulated by the plurality. See at [78], Gordon J; and at [100], Edelman J. 69 Justice Gordon additionally, at [86], confirmed that an unreasonable failure by the Authority to exercise one of its powers may invalidate the purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and affirm or remit the decision under review. 70 Justice Edelman, at [97], also observed that failure to exercise the power to invite an applicant to respond to relevant information might be legally unreasonable, in a Li sense. His Honour expressly noted that such a construction was "not inconsistent with s 473DA(2)". 71 In those circumstances, I consider that the judge in the Circuit Court erred in not finding that, while the Authority could regard the 2013 application in its decision-making, the Authority acted unreasonably in failing to consider whether it should invite the appellant to comment on the question of the internal inconsistencies it had identified between the two applications before finally disposing of the SHEV application; and so would uphold the appeal on this ground.

Ground 2: Did the Circuit Court judge err in failing to take into consideration the decisions in BVZ16, BBS16 and CHF16? 72 The appellant does not elaborate on this ground in his particulars. 73 In his outline of submissions, the Minister argues this ground is new and, accordingly, the appellant requires leave in its respect. He contends this leave should be refused as the ground of appeal does not allege with any specificity any error of the Authority in considering the appellant's material. 74 In any event, the Minister contends, the Authority's consideration of the material was sound as it turned its mind to the s 473DD criteria and concluded that it was not satisfied that there were exceptional circumstances to justify the consideration of the information contained in the appellant's statutory declaration, written submissions and attachments which raised claims not before the delegate. 75 I do not consider that the judge can be said to have erred in failing to take into consideration the decisions mentioned. There are many decisions of this Court that may bear upon aspects of the fast track decision-making process that the Authority must engage in. 76 It is for a relevant party to make submissions to a court about jurisdictional errors they say were made. It is not enough simply to refer to other decisions and say in some amorphous way that the Court failed in taking them into consideration. There is nothing to suggest that the judge below failed to consider any relevant allegation of error made to him. 77 For that reason, this ground must fail.

Ground 3: Did the Circuit Court judge's "actual or lack of impartiality and prejudice" affect his Honour's finding affirming the Authority's decision and dismissing the appellant's application "with higher cost"? 78 The appellant contends, by his particulars of this ground, that: a) The appellant's application came up for hearing on 4 August 2017 before Judge Smith and his counsel barrister Ben Zipser who requested to court to tender the amended application which was not objected by the respondent Minister's lawyers. The judge Smith after several comments made on the counsel Ben Zipser accepted the amended application. b) The application SYG2109/2016 came up for hearing on 7 September 2017 where the counsel barrister Ben Zipser who apologised to court and submitted an affidavit and requested for an extension to tender his amended application. The amended application was accepted by Judge Smith with comments on the counsel barrister Ben Zipser. The said application was dismissed by Judge Smith who also ordered the applicant pay the first respondent's costs fixed in the amount of $7,206. c) The applicant's matter SYG2981/2016 was dismissed by Judge Smith on 8 December 2017 who also ordered the applicant pay the first respondent's cost fixed in the amount of $12,000 made criticism of counsel barrister Ben Zipser. This was done despite barrister Ben Zipser sent an Email on 8 December 2017 at 2:41 am to the Associate of Judge Smith and Katherine Hooper, Minister's solicitor that he cannot appear for the applicant due to a commitment in another court at the same time at 9.30 am on 8 December 2017 for the hand down the judgement and the cost order should be less that claimed by the Minister for the following reasons: 1) The Minister incurred solicitor costs of $1,422.80 for, inter alia, preparing an affidavit dated 1 August 2017. Although the Minister served the affidavit, the Minister did not read the affidavit at the hearing. The Minister should not get party/party costs for work in preparing an affidavit it did not read at the hearing. 2) The Minister incurred solicitor costs of $3,272 in preparing for and attending the hearing on 4 August 2017 and reporting to the client. In circumstances where counsel was briefed to appear for the Minister, the amount recoverable on a party/party basis for a solicitor's preparation for and attendance at the hearing should be lower. 3) The Minister incurred solicitor costs of $1,636 for 'reviewing the issues arising in the matter and providing a preliminary and subsequent advices to client' and solicitor costs of $1,390 for 'preparing ... [etc] the Court Book'. In circumstances where scale costs are about $7,600, incurring costs totalling about $3,000 for these two steps appears disproportionately high. 4) There is an invoice from counsel dated 4 August 2017 totalling $4,046.78. The applicant has no objection to this invoice. There is then a second invoice from counsel dated 7 September 2017 totalling $485.95 for work done between 22 and 24 August, which was two weeks after the hearing on 4 August. It is not clear what this work was for. Prima facie, this work is not recoverable under party/party costs. 5) However, taking into account the above matters, the order should be closer to the scale amount. 79 The Minister states that this ground takes issue with the judge's costs order. He contends the appellant requires leave to raise this ground, based on s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the costs order was interlocutory in nature. 80 The Minister argues that an application for leave was required to be filed by 22 December 2017, pursuant to R 35.13(a) of the Federal Court Rules 2011 (Cth), and this was not done. The result, according to the Minister, is that an application for an extension of time is required under R 35.14 of the Rules, which has not been filed. 81 The Minister says that for these reasons, this ground of appeal is incompetent and ought to be dismissed on this basis alone. But, if compliance with R 35.14 is waived, the Court should not grant an extension of time because the proposed ground lacks sufficient merit. To this end, the Minister submits: … The primary judge had the discretionary power to make an order for costs in excess of the amount prescribed by Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth): see r 44.15. The Minister incurred solicitor/client costs of $12,062.07 and Counsel's fees amounting to $4,532.73. On a party/party basis, those costs were $13,579.30. Ultimately, the Minister sought an order for costs in the amount of $13,500. The primary judge awarded an amount of $12,000, which was not insignificantly less than the amount sought by the Minister. That order was reasonable given the amount of work carried out by the Minister's legal representatives before the FCCA. There is nothing in the material before the Court to suggest that his Honour's discretionary judgment is affected by any appealable error of the kind identified in House v The King (1936) 55 CLR 499. In Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112 at [113], a Full Court of this Court pithily stated that 'appellate courts are loat[h] to overturn discretionary costs orders made by single judges'. For the reasons given above, this Court ought not to depart from that sentiment in the present case. 82 The Minister relies on the affidavit of Ms Katherine Nicole Hooper, a solicitor acting on behalf of the Minister, affirmed 9 May 2018, in support of this ground, annexing correspondence between Mr Ben Zipser and the Associate to the judge, a transcript of the proceedings before the Circuit Court, and a marked up copy of the appellant's amended application to the Circuit Court. 83 So far as this third ground of appeal is concerned, and whether or not the costs order was an interlocutory one, I am satisfied that it was open to the judge to fix costs in the manner that his Honour did; and no error is revealed. Judicial discretion was exercised and it is not to be second-guessed in an appeal like this. 84 The third ground of appeal therefore fails.

Conclusion and Orders 85 Because I have upheld ground 1, I would make the following orders: (1) The appeal be allowed. (2) The orders of the Federal Circuit Court made 8 December 2017 be set aside. (3) The decision of the Immigration Assessment Authority made 11 October 2016 not to grant the appellant a Safe Haven Enterprise (subclass 790) visa be set aside. (4) The matter be remitted to the Immigration Assessment Authority for consideration by another member in accordance with law. (5) The appellant be entitled to his costs in the Federal Circuit Court, and on this appeal, if any, to be assessed if not agreed. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.