Fard v Secretary, Department of Immigration and Border Protection

Decision of the primary Judge 3 The primary Judge summarised in detail the background facts to these proceedings, including earlier proceedings in this Court heard by Gray J in which the appellant sought injunctive relief against the Minister for Immigration and Border Protection pursuant to s 39 of the Judiciary Act 1903 (Cth); Gray J's subsequent decision (adverse to the appellant) (Fard v Minister for Immigration and Citizenship [2013] FCA 452); the appellant's unsuccessful appeal to the Full Court of this Court (Fard v Minister for Immigration and Border Protection [2013] FCAFC 126), and the appellant's unsuccessful application for special leave to the High Court (Fard v Minister for Immigration and Border Protection [2014] HCASL 85). 4 His Honour then examined, in detail, the appellant's claims in the Tribunal. In summary, his Honour noted that: The appellant had applied under s 48 of the FOI Act to have the Department's records containing her personal information corrected, however the Department had refused. This refusal was affirmed on internal review by the Department. The appellant applied to the Information Commissioner for review of the Department's decision not to review, however the Information Commissioner decided not to exercise her discretion to review the decision because it was desirable that the review be conducted by the Tribunal. The appellant claimed that the Department had refused to explain the full meaning and criteria of "Departmental visa codes" on two relevant travel documents, and, inter alia, asked the Tribunal to order that an explanation be provided by the Department. In preparation for the Tribunal hearing the parties engaged in correspondence with each other and the Tribunal Registry about whether the Department ought provide information concerning the relevant visa codes. The appellant filed affidavits containing allegedly fresh evidence which was not available in earlier proceedings in the Federal Court, and which the appellant claimed demonstrated that the documents in earlier Court proceedings were fabricated. The respondent sought an order that the proceedings be summarily dismissed by the Tribunal pursuant to s 42B of the AAT Act. The Tribunal proceeded to consider whether the proceedings should be summarily dismissed under this provision. In its decision of 9 October 2015 the Tribunal took into account the previous findings of Gray J, in particular his Honour's findings that the appellant and Mr Qeumars had "concocted significant parts of their evidence". The Tribunal concluded it was likely the most recent "fresh evidence" advanced by the appellant was concocted for the purposes of the Tribunal review. The Tribunal further concluded that it could not make the factual findings required under s 48 of the FOI Act, relevantly that the Department's records were incorrect. Accordingly, the Tribunal summarily dismissed the appellant's application for review on the basis that it had no reasonable prospects of success. 5 Section 44 limits the right of appeal from a decision of the Tribunal to questions of law. Before the primary Judge the appellant alleged that: A question of law arises from the decision in this matter as to, whether: 1. The Appellant has been denied procedural fairness in the process of making the decision; 2. The decision was made in the absence of evidence that was withheld by the Respondent and Section 36D(2)(a) of the Administrative Appeals Act applied; 3. Fresh evidence was not considered, or adequately considered, in conjunction with all the evidence available to the Tribunal; 4. Fresh evidence was not considered in conjunction with evidence which the Respondent withheld from the evidence, and the Tribunal; 5. To fulfil the Tribunal's obligations under section 2A of the Administrative Appeals Tribunal Act the Tribunal must have referred the decision to the Federal Court under Section 45 The Administrative Appeals Act; 6. The visa for Sohyle Lagheyefar (male) born 12 December 1966, visa number V619<00309C subclass K4551, issued 11 December 1989 is false document; 7. The decision made by the Tribunal fulfilled the Tribunal's objective imposed upon it under Section 2A of the Administrative Appeals Act. (Errors in original.) 6 The appellant also asked the Court to make a number of findings of fact. 7 The appellant's notice of appeal from the Tribunal contained the following single ground: 1. On 16 July 2015 the Tribunal made a direction to the Respondent to disclose to the Tribunal, and the Appellant, information and matter containing the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990 inclusive, and by The Respondent failing to provide such information and matter, the decision was made without evidence that could reasonably be expected to have been directly relevant to the validity of visa number V619<00309C K4551 W303DU on or about 27 December 1989, and as such; a. The Appellant has been denied procedural fairness within the process of making this decision; and b. The Appellant and the Tribunal were denied relevant evidence that was likely to have affected the decision. 8 In the notice of appeal, the appellant sought a declaration to the effect that Sohyle Lagheyefar was not her biological son and an order that the Department amend its records accordingly. At the hearing, however, she did not press for either order and successfully applied for leave to amend the orders sought in the notice of appeal. In their final form those orders were: 1. That the Appeal be upheld; 2. That the matter 2015/1668 subject of this appeal be remitted back to the Administrative Appeals Tribunal for further determination; 3. That the respondent provide the Tribunal and the applicant with information and matter containing the full meaning and criteria on visa codes K4551 & K4552 as they applied from 1984-1990; 4. Such other order as the Court deems fit; 5 That the respondent pay the costs of and incidental to the process. 9 Turning to the substantive application before the Court, his Honour summarised the submissions of both the appellant and the Department, and then said at [72]: 72. As was emphasised in the written outline of submissions which was prepared on Ms Fard's behalf and confirmed by Mr Wrenn in his oral submissions, Ms Fard's fundamental complaint was that she was denied procedural fairness in the process of the AAT making its decision and that there had been a "miscarriage of justice as a consequence". Ms Fard relied upon the "totality" of the errors identified in the various questions of law set out in the notice of appeal in support of her claims of procedural unfairness. For the following reasons, I am not persuaded that there was any procedural unfairness, nor has Ms Fard made good any of the other so-called "questions of law" (as set out in [33] above) in the amended notice of appeal. 10 His Honour's reasons for so concluding are set out at [73]-[85] of the primary judgment. Those reasons can be summarised as follows: The Department's failure to provide information or material concerning the meaning of visa codes K4551 and K4552 did not give rise to procedural unfairness because: ○ the Department did not fail to comply with orders of the Tribunal in respect of the provision of information relating to the visa codes, because on 10 August 2015 the Tribunal had vacated directions referable to the provision of that information; ○ no practical injustice had been established, because while the meaning of the relevant visa codes remained unclear it was open to the appellant to take other steps to ascertain their meaning prior to the Tribunal hearing. The second question of law in the notice of appeal concerning the alleged withholding of evidence by the Department presumably related to the visa codes, but there was no legal obligation on the Department to explain the visa codes. Further, the appellant's reference to s 36D(2)(a) of the AAT Act was misconceived, in that that provision applied where there was a claim of public interest immunity which was not the case in these proceedings. The third question of law in the notice of appeal concerned whether the Tribunal considered, or adequately considered, the "fresh evidence" put before it by the appellant. That claim was without foundation: it was evident that the Tribunal did take into account the "fresh evidence" submitted by the appellant. The fourth question of law raised similar issues to those concerning the third question of law, and was also without foundation. The fifth question of law claimed that the Tribunal should have referred the matter to the Federal Court under s 45 of the AAT Act, in order for the Tribunal to have fulfilled its obligations under s 2A of the AAT Act. Section 2A is properly regarded as aspirational or exhortatory in nature, rather than a source of directly enforceable rights and obligations. The sixth question of law simply asserts that the visa issued on 11 December 1989 in respect of the male Sohyle Lageyefar is a "false document". On its face this was not a question of law, but rather involved an assertion of fact. The seventh question of law also relied on an alleged failure by the Tribunal to fulfil the objective set out in s 2A of the AAT Act, and should be rejected for reasons given in respect of the fifth question of law. 11 In respect of the appellant's complaint that the Tribunal erred in not referring a question of law to the Court: the claim was not raised in the amended notice of appeal; the question of law which the appellant claimed ought to have been referred to the Federal Court was not properly identified; section 45 of the AAT Act confers a discretion on the Tribunal to refer (or not) a question of law to the Court. The appellant failed to identify any reviewable error in the Tribunal's decision not to exercise that discretion.

Appeal to the Full Court 12 In her notice of appeal filed on 17 May 2016 the appellant appealed the decision of the primary Judge, relying on the following single ground of appeal: 1. The decision was unjust and unfair. 13 The appellant sought orders, inter alia, quashing the decision of the primary Judge, remitting the matter to the Tribunal for further determination, and requiring the Department to provide the Tribunal and the appellant with information concerning "visa codes" K4551 and K4552 as they applied from 1984-1990.

Interlocutory proceedings 14 On 10 October 2016 Collier J heard interlocutory applications filed by both parties to this appeal. In her interlocutory application filed 5 October 2016 the appellant sought (materially) an order granting her leave to adduce further evidence on appeal under r 36.57 of the Federal Court Rules 2011 (Cth). In its interlocutory application filed 30 August 2016 the Department sought (materially) security for costs. In Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224 Collier J refused to grant leave to the appellant to adduce further evidence, and on 13 October 2016 ordered the appellant to pay security for costs in the amount of $15,000 by 20 October 2016, in default of which the hearing of the appeal would be stayed. The appellant complied with the order for security for costs and the hearing of the appeal proceeded.

Submissions of the parties 15 In written submissions the appellant concisely stated the issues she presses on appeal, in the following terms: 2.1 The appeal is directed at the denial of relevant evidence that was sought from the Respondent and the failure by the Court to enforce the requirement for this evidence to be adduced before the Court. This defines the general question of law in this appeal, on the ground that it was unfair and unjust that the Appellant was denied this evidence, and that the circumstances that led to this denial constituted procedural unfairness. Overall this is concisely what is said to have lead [sic] to a miscarriage of justice, either directly and/or on the basis that it is perceived as a denial of justice. Justice must not only be done but also be seen to be done; R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259. 2.2 The evidence has not been provided since it was first made subject of direction No. 1 of the AAT Conference Registrar 16 July 2015 (Pt Tab) which was ; "On or before 22 July 2015, the Respondent must give to the Tribunal and the Applicant a response to the submissions of the Applicant dated 14 July 2015 in particular paragraphs a) and e)." Paragraph a) of the Applicant's submissions dated 14 July 2015 (Pt Tab) required that the Respondent be ordered to; "Provide the full meaning and criteria of the visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive" (Emphasis in original.) 16 The appellant submitted further that the respondent failed to abide by the Tribunal's first direction of 16 July 2015, "denying the Tribunal and the Appellant relevant evidence and ultimately the decision to dismiss this matter was made without that evidence". 17 The appellant complained that evidence concerning the "visa codes" was, and continued to be, withheld by the respondent without justification or excuse, and this evidence would have affected the decision whether or not to summarily dismiss the matter before the Tribunal and on appeal before the primary Judge. The appellant contended that both the Tribunal and the primary Judge fell into error by not enforcing the just requirement that the respondent not withhold evidence. 18 In relation to findings of the primary Judge at [73] the appellant claimed that his Honour erred, as the direction concerning the provision of information in respect of "visa codes" was not vacated by the Tribunal on 10 August 2015. 19 The respondent submitted, in summary: the appellant referred in her submissions to "summary dismissal" of the proceedings by the primary Judge, whereas in fact the primary Judge conducted a trial at first instance; although the appellant claimed that the Court failed to enforce the requirement for evidence of the visa codes to be adduced before the Court, there was no such requirement in the absence of summons or any other compulsive Court process; it was open to the primary Judge to find that the Tribunal's dismissal of the appellant's application, in the absence of the visa codes, was not a denial of procedural fairness. 20 Prior to the hearing of the appeal the lawyers acting for the appellant filed a notice of ceasing to act. At the hearing Mr Wrenn, who had previously appeared for the appellant, sought the leave of the Court to withdraw, but also informed the Court of his preparedness to remain at the Bar table to assist the appellant in the capacity of a McKenzie friend (McKenzie v McKenzie [1971] P 33). Following an exchange between the Bench, Mr Wrenn, and the appellant (both directly and through an interpreter), and after having ascertained that the respondent had no objection, we granted leave for Mr Wrenn to remain and assist the appellant in that capacity. 21 We have summarised, in some detail, the reasons of the primary Judge. We are unable to identify any basis on which his Honour's reasons could be described as "unjust and unfair", as claimed by the appellant in her notice of appeal. On the contrary, the reasons demonstrate that his Honour gave thorough and thoughtful attention to the application before him, and that his decision to dismiss the appeal was correct for the reasons he gave. 22 In so finding, we make the following observations. 23 First, and notwithstanding the generality of the terms in which the ground of appeal before us is framed, it is clear from both written and oral submissions of the appellant that her fundamental complaint is that the Department did not provide her with information concerning "visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive". The appellant submitted that these "visa codes" related to the gender of visa recipients, and that the "female" visa code was K4551. The appellant submitted that the use of the "female" visa code in respect of the visa issued on 11 December 1989 to the man the Department alleged was her son indicated that the Department had erred in identifying him. The appellant claimed that this indicated a fundamental error in the records of the Department, supporting her application for correction of the Department's records. 24 During the course of the hearing of the appeal however it became apparent that the so-called "visa codes K4551 and K4552" were, in fact, not referable to gender, but were classes of visas prescribed by regulations made under the Migration Act and this information was publicly available. The Commonwealth of Australia Government Gazette No S15 published on 17 January 1995 in respect of classes of visas approved under s 25(1) of the Social Security Act 1991 (Cth) for social security pensions indicated that: visa sub-classes K4551 and K4552 were referable to Iranian Baha'is under a Special Humanitarian Program introduced prior to 1 September 1994; visa subclass 4551 was referable to the principal applicant for a visa; and visa subclass 4552 was referable to accompanying family members. 25 We also note the speech of the then Minister for Immigration and Ethnic Affairs, House of Representatives Hansard, 18 November 1981 announcing the introduction of the Special Humanitarian Program for visas, and the subsequent speech of the Minister in House of Representatives Hansard, 24 March 1982 confirming that the Special Humanitarian Program and visa classes would be extended to Baha'is from Iran. 26 If this is the case - and we have no reason to doubt this publicly available information - it is likely that the appellant is incorrect in her submission that "visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive" were gender-related. In that light, while we query the wisdom of the Department's decision not to provide the appellant with information concerning visa sub-classes K4551 and K4552, we are unable to see how the provision of that information by the Department would have assisted the appellant's case before the Tribunal. 27 Second, the appellant maintained that the Department had failed to comply with paragraph 1 of the directions of the Tribunal of 16 July 2015. 28 In her submissions to the Tribunal dated 14 July 2015 the appellant sought, as a preliminary requirement to the advancement of the matter, that the Department be ordered to (inter alia): a) Provide the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990; b) … 29 We have examined the relevant directions of the Tribunal and certain correspondence from the lawyers for the Department in the period prior to the Tribunal hearing the appellant's application. On 16 July 2015 the Tribunal directed as follows: 1. On or before 22 July 2015, the Respondent must give to the Tribunal and the Applicant a response to the submissions of the Applicant dated 14 July 2015, in particular paragraphs a) and e) 2. On or before 27 July 2015, the Applicant must request the Tribunal to issue any summonses on which she intends to rely. 3. On or before 12 August 2015, the Respondent must give to the Tribunal and the Applicant: a. an affidavit addressing paragraphs a), c) and e) of the Applicant's submissions dated 14 July 2015; AND b. a copy of page 2 of the Belgrade fax. 30 In a letter dated 22 July 2015 the Department's lawyers, the Australian Government Solicitor, wrote to the Tribunal and the appellant in respect of the proceedings. The introductory paragraphs of that letter state: 1. We act for the respondent in the above matter. We write to respond to the Tribunal's directions dated 16 July 2015 and the applicant's request for further direction dated 20 July 2015. We further wish to draw the Tribunal's attention to the history of this matter and raise our concerns regarding the progression of this current proceeding. Direction 1 2. Pursuant to direction 1, the respondent confirms that it is in the process of ascertaining the details of visa codes K4551 and K4552, as provided at paragraph a) of the applicant's submissions dated 14 July 2015. The respondent will provide this information in affidavit form in accordance with direction 3. 31 On 10 August 2015 the Tribunal directed: The Tribunal VACATES Direction no 3(a) of 16 July 2015. 32 It does not appear to be in dispute that the Tribunal's direction of 10 August 2015 was in anticipation of the Tribunal determining whether the proceedings should be summarily dismissed. The Tribunal delivered its decision in this respect on 9 October 2015. 33 At [65] of the primary judgment his Honour noted: 65. In his oral submissions, Mr Wrenn clarified that Ms Fard's complaint concerning the Department's non-compliance with the directions made on 16 July 2015 related to its failure to provide a "response" as referred to in paragraph 1 of those directions. He said that the complaint did not relate to paragraph 3(a), which he acknowledged was subsequently vacated 34 His Honour at [73] found that the Department had provided "a response" in accordance with paragraph 1 of the Tribunal's directions of 16 July 2015, and that the response had taken the form of the letter of 22 July 2015. In particular, his Honour observed: 73. First, the Department's failure to provide information or material concerning the meaning of visa codes K4551 and K4552 did not give rise to procedural unfairness. That is because: (a) I am not satisfied that the Department failed to comply with paragraph 1 of the directions made on 16 July 2015, which direction formed the basis for Ms Fard's complaint of procedural unfairness relating to the visa codes. I accept the Department's submission that its letter dated 22 July 2015 (see [15] above) constituted a "response" within the meaning of that direction. That response included a statement that the Department would provide information regarding the details of the relevant visa codes in an affidavit consistently with paragraph 3 of the 16 July 2015 directions. This particular direction was subsequently vacated by the senior member on 10 August 2015, which relieved the Department of the requirement to provide such an affidavit. Ms Fard was given an appropriate opportunity to be heard on these matters. Her opposition to vacating paragraph 3 of the directions made on 16 July 2015 was brought to the attention of the AAT prior to the senior member deciding on 10 August 2015 to vacate the direction. (b) As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]: ... Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added.) No practical injustice has been established. The meaning of the relevant visa codes remains unclear but it was open to Ms Fard to take other steps to ascertain that meaning prior to the AAT hearing on 24 September 2015. For example, she could have sought to summons the relevant material in the six week period after the AAT vacated the direction on 10 August 2015. Alternatively, if she was concerned that the AAT may not have regarded such a summons to be relevant, it was open to her to make a request to the Department for that information to be provided to her under relevant provisions of the FOI Act. She did neither of these things. Nor did she seek to challenge the senior member's decision on 10 August 2015 to vacate the earlier direction, as she could have done in this "appeal". 35 We find no fault in his Honour's reasoning. The letter of 22 July 2015 constituted "a response to the submissions of the Applicant dated 14 July 2015, in particular paragraphs a) …". The response did not satisfy the appellant, but that does not mean that it was not "a response" within the meaning of the Tribunal's directions. 36 The appellant sought to equate the response referred to in paragraph 1 of the Tribunal's directions of 16 July 2015 with the provision of the information itself. We do not accept this characterisation. That the Tribunal's directions contemplated a distinction between the "response" on the one hand (that is, in accordance with paragraph 1 of the directions), and the actual provision of the information on the other (that is, pursuant to paragraph 3(a) of the directions), is clear from the separate directions to that effect made by the Tribunal on 16 July 2015. 37 It follows that even if the information in respect of "visa codes K4551 and K4552" was supportive of the proposition advanced by the appellant concerning alleged forgery of travel documentation (which, in our view, it was not), the Department did not fail to comply with a direction of the Tribunal that that information be supplied to the appellant. 38 Third, the appellant submitted that the failure of the Department to comply with paragraph 1 of the directions of the Tribunal of 16 July 2015 resulted in the Tribunal being deprived of relevant information, in circumstances where the provision of that information would have made a difference to the Tribunal's decision. For reasons given earlier in this judgment in respect of the apparent nature of the "visa codes", we do not consider the travel documentation to which the appellant referred could be considered a forgery for the simple reason that it bore the "visa code K4551". 39 Fourth, the appellant submitted that the Tribunal failed to address the Department's non-compliance with paragraph 1 of the directions of 16 July 2015. 40 We do not accept this submission. That the Tribunal did address this issue is evident on an examination of the appellant's written submissions of 24 September 2015 in the Tribunal, and the decision of the Tribunal itself. In particular, in her written submissions of 24 September 2015 the appellant stated: The applicant's interests would be best served by referring this matter to the Federal Court under Section 45 of the AAT [sic] on the questions of law that arise, particularly when the Federal Court has already made determinations and retains the Exhibits. It would be the most timely and efficient way to deal with the issues by just means. … The Respondent has not complied with Order 1 made by the Tribunal 16 July 2015. The respondent has failed to disclose to the Tribunal and the applicant information, and matter contained in documents, and under Section 36D(2)(a), the question whether the information or matter should be disclosed, is a question of law. 41 In its decision the Tribunal said as follows: Referral of a question of law 38. In her submissions, Ms Nozohoor Mehrabad requested that the Tribunal refer a number of questions of law to the Federal Court. Those questions include whether the "fresh evidence" should be admitted, and whether it should be reviewed by the Court. 39. Under s 45 of the AAT Act, I may, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. I do not think any questions of law arise in this review that are appropriate to refer to the Federal Court. I note that, under s 44(1), either party to this review may appeal to the Federal court, on a question of law, from this decision. (We interpolate that, like his Honour, we understand that the person to whom the Tribunal refers as Ms Nozohoor Mehrabad is the appellant.) 42 It is clear that the appellant sought to have the Tribunal deal with the Department's alleged non-compliance with paragraph 1 of the Tribunal's directions of 16 July 2015 in one way only - that is, by referring the question of the alleged non-compliance to this Court pursuant to s 45 of the AAT Act. As his Honour correctly explained at [85] of the primary judgment, s 45 confers a discretion on the Tribunal to, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. His Honour pointed out that the appellant had failed to identify any reviewable error in the Tribunal's decision not to exercise the discretion under s 45 of the AAT Act. We, in turn, see no error in his Honour's reasoning in this respect and this aspect of the reasons was not challenged (at least directly) on the appeal. 43 The submissions of the appellant to the contrary are not substantiated. 44 The sole ground of appeal from the decision of the primary Judge is without merit. Consequently, the appeal should be dismissed. Costs should follow the event.

Costs 45 The Court has a broad discretion in respect of costs orders, including awarding costs to a party in a lump sum: s 43(1), (3)(a), (d) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). Further, paragraph 4 of the Costs Practice Note (GPN-COSTS) issued by the Chief Justice on 25 October 2016 refers to the preference of the Court, wherever it is practicable and appropriate to do so, to make a lump-sum costs order. We drew this to the attention of the parties at the hearing. 46 As we noted earlier in this judgment, the appellant has paid into Court security for the Department's costs in the amount of $15,000, being an amount at the lower end of the range the Department estimated as its costs on a party-party basis. At the conclusion of the hearing of the appeal the Department sought an order that its costs be taxed if not otherwise agreed, in the expectation that it has incurred additional costs since the estimate was produced to the Court at the interlocutory hearing. Counsel for the Department was, however, unable to tender any evidence in support of this proposition. 47 Taxation of the Department's costs would require the parties to consume additional time and incur additional expenditure, in prolongation of this already protracted litigation. We do not consider that this approach would promote the objectives of efficiency and cost-saving stipulated in s 37M of the Federal Court Act (cf Chen v Monash University (No 2) [2016] FCAFC 93 at [19]). 48 The appropriate order is that the costs of the respondent be paid by way of a lump sum fixed in the amount already paid by the appellant as security. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Katzmann and Farrell.