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[2021] FCAFC 233
Federal Court of Australia (Full Court)
2021-11-18
Wheelahan JJ, Logan J
Original judgment source is linked above.
LOGAN J: 1 Mr Chan Guruge (Mr Guruge) is a citizen of Sri Lanka. He first came to Australia as a student on a student visa in June 2008. In 2012, shortly prior to the expiry of that visa, Mr Guruge entered into marriage with one LW, the sister of one of his friends. Subsequently, he commenced another relationship with LW's half-sister EW who was then aged 15. EW subsequently gave birth to their son KS in September 2012. 2 A partner visa grounded in the marriage to LW was refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister). Also refused at that time was an application by Mr Guruge for a protection visa. In the result, Mr Guruge chose voluntarily to be removed from Australia in July 2013. 3 Later that year in September, Mr Guruge was joined in Sri Lanka by EW and KS. EW and Mr Guruge were married in January 2015. In August 2015, EW and KS returned to Australia. In August 2017, Mr Guruge was granted an offshore partner visa. He entered Australia on the strength of that visa. On his arrival, he discovered that EW had commenced a relationship with a new partner. Mr Guruge and EW remained married but separated. On the findings made administratively, there is in place, at the behest of EW and KS, a family violence intervention order against Mr Guruge, the terms of which stipulate no contact. 4 Mr Guruge has known hard times in Australia since his return. He has primarily been homeless. He has also suffered from an addiction to drugs. Perhaps related to the latter, but in any event, the evidence discloses that he has a lengthy criminal history in Australia. On 9 December 2019, in the County Court in Melbourne he was convicted of the offence of intending to expose an emergency worker to risk by driving. The emergency worker concerned was a police officer who had come upon Mr Guruge sleeping in a vehicle with stolen number plates. Upon the police officer investigating the vehicle, Mr Guruge accelerated towards the police officer with that officer then having to leap to one side to avoid being struck. 5 Later Mr Guruge was found drug affected in a second stolen vehicle containing stolen goods. In any event, in respect of the offence of intending to expose an emergency worker to risk by driving, he was sentenced in the County Court to a base sentence of 12 months imprisonment. Taken in conjunction with other convictions, namely, for theft, the aggregate resultant sentence was 20 months imprisonment with a non-parole period of 14 months. 6 On 17 January 2020, a delegate of the Minister, upon satisfaction as to a substantial criminal record grounded in the terms of imprisonment mentioned, cancelled, as was required by the Migration Act 1958 (Cth) (Migration Act) in that circumstance, Mr Guruge's visa. 7 On 31 August 2020, and after considering a representation made by Mr Guruge, another delegate of the Minister decided not to revoke that cancellation in the exercise of the power conferred by s 501CA of the Migration Act. Mr Guruge then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). On 23 November 2020, the Tribunal decided, for reasons given in writing, to affirm the decision not to revoke the cancellation of Mr Guruge's visa. 8 Mr Guruge then applied to this Court in its original jurisdiction for the judicial review of the Tribunal's decision. On 11 June 2021, the Court dismissed with costs that judicial review application: see Guruge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 630. Mr Guruge has now appealed to this Court against those orders. 9 It is not necessary, in the particular circumstances prevailing, to refer to the reasons why the judicial review application failed in the original jurisdiction. That is because Mr Guruge has applied for leave to amend his notice of appeal so as to raise as grounds of appeal points which were not taken in the original jurisdiction. The proposed grounds of appeal are as follows: A.1 Statement of the primary issue 2 The Tribunal positively accepted that the best interests of the appellant's youngest son, known throughout as KS, were in favour of revoking the mandatory cancellation. Yet, weighting other considerations it was required by the relevant direction to have regard to more heavily, the Tribunal determined not to revoke the mandatory cancellation. 3 In taking that course, the Tribunal gave no consideration and no weight to the 'executive dimension' of the decision it was taking, a concept recently explained in a decision of this Court, FAK19. In short: the Tribunal could and should have considered the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child, to which Australia is a ratifying party. It did not. The Tribunal's decision was therefore affected by jurisdictional error in the same way as the Tribunal's in FAK19, and the appeal ought to be allowed on that basis, a fortiori in light of the principles of comity and precedent expounded by the Chief Justice in the same case. A.2 Statement of the secondary issue 4 The primary Judge ordered the appellant to pay the costs of the proceeding before him. That was an application of the ordinary costs rule. Nevertheless, his Honour's order was an irregular exercise of the costs discretion insofar as it overlooked the Court's determination that the public interest (in the interests of justice) favoured the provision to the appellant of pro bono representation. In that respect, the Judge's approach was inconsistent with the High Court's in the circumstances of a pro bono referral. So the Court should also set aside order 3 of his Honour's orders and substitute a no-costs order as to the proceedings before his Honour. That approach also has consequences for the appellant's costs position in this Court, should the Minister prevail in this proceeding (see: Section F below). [footnote references omitted, emphasis in original] 10 It was convenient to hear the case on the basis that argument is in respect of these proposed grounds would be treated as argument on the appeal if leave to amend were granted. 11 In the ordinary course of events, it is an exceptional thing for a court in the exercise of appellate jurisdiction to permit points not raised in the original jurisdiction to be raised for the first time on an appeal: see as to this University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, at [7]; see also in the High Court, Coulton v Holcombe (1986) 162 CLR 1, at 7, and in this Court, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, at [37] and [38]. 12 There are many applications of the principle just described, as established in these root authorities, to be found in other judgments of the Full Court. Suffice it to say there should be no encouragement of a view that it is, in any way possible, to save up points which ought to be run in the original jurisdiction for later use in the appellate jurisdiction. Here, however, two particular considerations intrude. One is in respect of the first of the proposed grounds of appeal. The point concerned only became apparent upon a judgment of the Full Court given after the judgment in this case in the original jurisdiction. That case is Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 (FAK19). 13 The other consideration is that the case touches upon Mr Guruge's liberty and also his ability to remain in Australia. These reasons, together with the careful way in which the first of the proposed grounds, in particular, was developed by Mr Smyth of counsel, who appeared pro bono for Mr Guruge, persuade me that leave to amend the notice of appeal should be granted. 14 As to the ground touching upon an alleged error in relation to costs, a case for amendment is much less compelling. Indeed, as will become apparent, were that the sole ground proposed and having regard to the authorities mentioned concerning raising points for the first time, my inclination would have been not to grant leave to amend. However, bifurcation of outcome as to leave to amend would be an inconvenient course to take. 15 I turn then to each of the grounds of appeal. 16 For the purpose of considering the first ground, it was common ground between the parties that it was unnecessary for the Court to consider the correctness of FAK19. The Minister made a formal submission that that case was not correctly decided, in keeping with the presently unresolved application for special leave before the High Court in which the same issue is sought to be the subject of an appeal to the High Court. 17 FAK19 concerned not the convention of the rights of the child but, rather, the non-refoulement obligation arising under the refugee convention and mentioned expressly in a direction given by the Minister pursuant to Direction 79 pursuant to s 499 of the Migration Act. 18 Some reference to the reasons of the Tribunal is necessary in order to expose the factual foundation for this ground of appeal. One factor expressly stated in the Minister's direction for consideration is the effect of removal on any minor. In this case the Tribunal made an affirmative finding that it was in the best interests of KS that Mr Guruge not be removed from Australia. As it transpired, that particular finding proved not to be determinative when taken in conjunction with other considerations which the Tribunal was obliged to consider pursuant to the Minister's direction as well as, of course, as the representation made and other evidence led by Mr Guruge. 19 The submission made in relation to this ground proceeded from FAK19 to the proposition that it was necessary for the Tribunal to have adverted in its reasons, in light of the conclusion reached concerning KS and Mr Guruge's removal, to the executive dimension of what was said to be a breach of the child convention which would follow as a consequence of that removal. 20 This particular breach was said to arise in a number of ways. It might: (a) disrespect Mr Guruge's rights and duties to provide appropriate direction and guidance of KS's rights as recognised in the child convention, for example, a child's right to freedom of thought, conscience and religion in art 13; (b) undermine KS's right to preserve his identity, as identified in art 8(1), by depriving him of his connection to his Sri Lankan nationality heritage or identity; (c) fail to ensure that KS is not separated from Mr Guruge against KS's will, particularly in light of the specific conclusion reached by the Tribunal that such separation was not necessary for the best interests of the child: see art 9(1); and (d) disrespect KS's right, if separated from Mr Guruge, to maintain personal relations and direct contact with him: see art 9(3). 21 There was nothing in the evidence before the Tribunal which disclosed that, in the continuum of administrative process from the making by Mr Guruge of his representation for revocation of cancellation, any officer of the Minister's department had said either orally or in writing to him that, prior to making a decision, the terms of the child convention would be taken into account. Nor was there any representation made by the Tribunal member concerned to Mr Guruge that, irrespective of what may have been put to him by any officer of the department or not put to him, the Tribunal would nonetheless take into account the terms of the child convention. 22 It is a noteworthy feature of Direction 79, which was applicable in this proceeding, that, in contrast to the refoulement obligation arising under the refugee convention, there is no reference whatsoever in that direction to the child convention. That in itself, in my view, is a feature which, assuming FAK19 is correctly decided, distinguishes this case from FAK19. 23 It is trite that what is or is not a relevant consideration in relation to the exercise of a statutory power for the purposes of a challenge to a decision made in the exercise of that power on jurisdictional error grounds must be a consideration which is either expressly, or by necessary implication, required to be considered by the statute conferring that power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend). 24 Regard to s 501CA of the Migration Act discloses that that section makes no reference whatsoever to a need to consider the child convention. Such a need might arise by virtue of a specification in a ministerial direction made pursuant to s 499. Considerations so specified are relevant considerations in the sense described. However, as noted there is no specification in relation to the child convention. That being so, the position, in my view, is determined against the appellant in the Full Court's judgment in Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (Kaur), at [22]: 22 First, the incorrect premise underlying the appellants' arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unanacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act. 25 However put, ground 1 is dependent upon it being obligatory to advert not just to the interests of a minor, as this is specified in the Minister's direction, but expressly to the child convention, and, in light of the assumption made as to FAK19's correctness, to an executive dimension of any breach of that convention flowing from removal. The finding of fact made by the Tribunal with respect to the interests of KS was made in conformity with an obligation to address KS's interests which flowed from the reference to the interests of a minor in the Minister's direction but that was the limit of the ordained mandatory consideration in relation to the minor. 26 That is not to say that it would have been impermissible or "irrelevant" in the Peko-Wallsend sense for the Tribunal to have adverted to the child convention, only that it was not made mandatory or relevant by the Migration Act. Neither was it necessary for procedural fairness grounds flowing from some anterior representation for the Tribunal to offer an opportunity to Mr Guruge to make submissions with respect to consequences which might flow from any breach of the convention. 27 However one approaches ground 1, in my view, it does not, for the reasons given, have merit. Indeed, to uphold that ground would be defiant of the conclusion reached by reference to the High Court authority referred to in Kaur. I would, therefore, reject ground 1. 28 As to ground 2, it suffers from the particular difficulty that there is nothing in the relevantly unfettered nature of the discretionary power with respect to costs conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) which required any particular consideration of pro bono representation with respect to the exercise of the costs discretion. Indeed, that point was not put to the learned primary judge in order to overturn the usual exercise of the costs discretion which is that costs follow the event. 29 It would be necessary, as was accepted, it must be said, by Mr Smyth for Mr Guruge, to demonstrate an error of principle of the kinds specified in House v The King (1936) 55 CLR 499. In the absence of some relevant consideration with respect to pro bono representation arising, no such error of principle arises. Rather, all that occurred was a quite unexceptional exercise of the cost discretion such that costs followed the event. Such an exercise of that discretion is usual: see Oshlack v Richmond River Council (1998) 193 CLR 72, at 96 - 97, per McHugh J. 30 For these reasons then, whilst I would grant leave to amend the notice of appeal, I would dismiss the appeal. 31 As to costs and having had the benefit of hearing the reasons given by Justice Thawley as to the absence of any particular error in relation to the awarding of costs in the original jurisdiction and, in particular, to the position with respect to High Court practice, the position, in my view, in the exercise of appellate jurisdiction in this Court is no different for those same reasons. That being so, there is no reason in my view why costs should not follow the event. 32 To reach that conclusion, I should emphasise, is in no way to diminish the particular assistance which was provided in this case, as it so often is in other cases in this Court, by the service in the public interest of counsel representing a party pro bono. Mr Guruge can, in my view, be assured that his case was put at its highest by Mr Smyth. That, however, is no reason to depart from the usual order as to costs. I would, therefore, order that the appellant pay the first respondent's costs of and incidental to the appeal to be fixed by a Registrar if not agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
THAWLEY J: 33 I agree with the orders proposed by Logan J. 34 I will express my reasons in summary form in light of the presiding judge's detailed reasons as to why the appeal must be dismissed. 35 By his first proposed ground of appeal, the appellant contends the primary judge erred by dismissing the appellant's application for judicial review on the basis that the Administrative Appeals Tribunal's decision was affected by jurisdictional error. The contended jurisdictional error was that the Tribunal failed to consider the "executive dimension" (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [157]) of the decision under review. The "executive dimension" of the decision, according to the appellant, was the consequences to Australia in the decision under review being, so it was submitted, "facially contrary" to the UN Convention on the Rights of the Child (Convention). 36 As has been said, the contended jurisdictional error on the part of the Tribunal was one which the appellant did not put to the primary judge. 37 The appellant's case under proposed ground one of the appeal was that the Tribunal, having concluded that the best interests of the appellant's son favoured revocation of the decision to cancel the visa, came under an obligation to consider the "executive dimension" of the decision not to revoke the cancellation by considering the provisions of the Convention and the consequences to Australia of breach or inconsistency with the Convention, if any; it was put that the Tribunal had to embark upon a consideration of whether various articles of the Convention would be breached by a decision not to revoke the cancellation notwithstanding the issue was not raised. In this regard, the appellant identified Articles 5, 8 and 9(1) and (3) as those which were relevant. Counsel denied it was necessary to show that any of these would be breached by the decision, or in what way they would be breached. It was submitted that this was a task for the Tribunal and that the Tribunal was under an obligation to engage in the inquiry because of its finding that revocation was in the best interests of the appellant's child. 38 This argument was not raised at any relevant point in the decision-making process and was first mentioned in the context of these appeal proceedings. This argument did not form part of the appellant's representations made pursuant to the Minister's invitation under s 501CA(3)(b) of the Migration Act 1958 (Cth) (as to which see Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34(e)]) and the appellant did not otherwise put to the Tribunal that non-revocation would breach the convention or be "facially inconsistent" with it. 39 The "executive dimension" of the decision was not one which became a mandatory consideration in the circumstances, and the Tribunal did not come under an obligation, in order to exercise its jurisdiction lawfully, to embark on the inquiry suggested by the appellant by reason of its finding that the best interests of the child favoured revocation. This case is readily distinguished from FAK19. This is apparent from the facts in FAK19 and the reasons just delivered by the presiding judge. 40 By his second proposed ground of appeal, the appellant contends that the primary judge erred in ordering that he pay the respondent's costs in circumstances where the appellant was represented before the primary judge by pro bono counsel who had accepted a referral from the Court. The appellant cited two special leave applications in the High Court of Australia where the Court declined to make an order for costs against an unsuccessful applicant for special leave to that Court: DCP16 v Minister for Immigration and Border Protection [2020] HCATrans 41 (Gageler and Nettle JJ) and FIR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 183 (Bell and Keane JJ). The appellant submitted that like reasoning applied in circumstances where this court requested pro bono assistance by counsel. This submission was not put to the primary judge. 41 The appellant's submissions failed to identify any discretionary error in the primary judge's order as to costs. The two costs decisions of the High Court on special leave applications to which counsel for the appellant referred were instances of the exercise of that Court's discretion as to costs, and do not lay down any principle of law. 42 Even if one proceeded on the basis that some error had been established with the result that this Court should re-exercise the primary judge's discretion, the appellant's reliance on the results in the two High Court special leave applications is unpersuasive. An application for special leave to appeal to the High Court is of a different nature to the engagement of this court's original jurisdiction and is distinguishable. Under r 41.05 of the High Court Rules 2004 (Cth), where an applicant for special leave is unrepresented, ordinarily a respondent is not required to file a response. However, two justices may direct that this be done: r 41.05.2. Further, in relation to all applications, two justices may determine the application without a hearing: r 41.08.1. Given the nature of the High Court's function in determining special leave applications, it might be thought that two justices of the Court in the decisions cited by the appellant considered that the issues raised by the applications were of sufficient importance or merit as to require a response, in an oral hearing, and to require the assistance of pro bono counsel for that purpose. A request by this court for the assistance of pro bono counsel is made in a different context, and in the exercise of the broad discretionary powers in r 4.12 of the Federal Court Rules 2011 (Cth). 43 This court's adversarial system of hearing is invariably assisted by the generous assistance routinely given by pro bono counsel in the finest traditions of the Australian Bars. But it does not follow that a request for pro bono assistance carries with it any conclusion that there is such merit in the claim as to require departure from the usual order as to costs in the result. More specifically, contrary to the submission advanced by the appellant, the grant of a referral certificate by a Registrar of this Court does not carry with it any implication that the case is one of public importance such that no order as to costs should be made if an appellant is unsuccessful. 44 For those reasons, I agree with the orders proposed by the presiding judge. 45 In relation to the costs of the appeal, I agree with the order proposed by the presiding judge for the reasons given by the presiding judge. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.
WHEELAHAN J: 46 For the reasons given by Thawley J, I also agree with the orders proposed by the presiding judge. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.
Guruge
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] HCATrans 41
[2020] HCATrans 183
(2001) 117 FCR 424
(1986) 162 CLR 1
(1936) 55 CLR 499
(2017) 256 FCR 235
(1986) 162 CLR 24
(1998) 193 CLR 72
(1985) 59 ALJR 481
(2014) 230 FCR 82
(2003) 214 CLR 1
(2019) 272 FCR 589