Analysis
25 I start with the issue of whether the grounds of appeal are reasonably arguable.
26 There are three grounds of appeal in the Notice of Appeal, each of which is particularised.
27 By Ground 1, the Minister seeks to challenge the primary judge's finding (at [38] of the primary judgment) that the Authority misconceived its role when it determined that it was not satisfied that information about the first respondent in a Dinamina Newspaper article was "credible personal information" within the meaning of s 473DD(b)(ii) of the Migration Act 1958 (Cth).
28 Section 473DD provides that:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
29 The primary judge said (at [37]) that it was clear that the Authority decided to reject the information provided in the newspaper article on the basis that it was not "credible personal information". His Honour then said the following (at [38]):
In my view, the Authority misconceived its role in considering the information under the anterior stage of s 473DD(b)(ii) of the Act. All the Authority found was that it was "I am not satisfied the information was credible personal information". There is no discussion as to whether the information is either true or whether it was capable of belief. Further, the Authority, having determined it was not credible personal information, failed to, as would have been the safer course, to consider whether or not there was exceptional circumstances to warrant its receipt into consideration. Reading the paragraph as a whole, I cannot be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of the Act. At no stage did the Authority, for example, say that the information was incapable of being believed. Clear words in my view need to be used. At this stage of the consideration, in order for the information to be deemed "not credible" in circumstances where clear language is not used, in my view, the applicant is entitled to the benefit of the doubt.
30 According to the particular to Ground 1, the Minister alleges that the primary judge erred in applying the decision of CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) (in which Bromberg J considered the meaning of the word "credible" in s 473DD(b)(ii)) and, relatedly, in finding (at [38] of the primary judgment) that his Honour could not be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of whether the information was capable of being believed.
31 In the course of argument on the present application, it became clear that the scope of Ground 1 was broader than that stated by the Minister's Notice of Appeal. The present appeal is, it seems, a "de facto" appeal from CSR16 whereby the Minister seeks to challenge the conclusions of Bromberg J with respect to the meaning of "credible" in s 473DD(b)(ii). Before the primary judge, the Minister advanced a submission that CSR16 was wrongly decided and that there was nothing in CSR16 that supported the notion that an assessment of whether information is "credible" within the meaning of s 473DD(b)(ii) must be restricted to only the information itself and does not include the circumstances in which the information was provided (see [34] of the primary judgment).
32 By Ground 2, the Minister seeks to challenge the primary judge's finding (at [38] of the primary judgment) that there was no discussion by the Authority as to whether the information which was the subject of the Dinamina Newspaper article is either true or whether it was capable of belief. The Minister contends, in particular, that the primary judge misconstrued [15] of the Authority's reasons on at least three grounds. For present purposes, I do not need to describe those grounds.
33 By Ground 3, the Minister seeks to challenge the primary judge's conclusion (at [40] of the primary judgment) that the error made by the Authority (as identified at [38] of the primary judgment) was material.
34 In my view, the grounds of appeal are reasonably arguable. I note that, at the hearing of the application on 7 July 2020, when I asked counsel whether there was any contest about the grounds of appeal being reasonably arguable, counsel for the first respondent accepted that the grounds were "plainly arguable".
35 I turn then to other matters, including the balance of convenience.
36 I accept, consistently with the relevant principles I have identified above, that the first respondent, as the successful party before the Federal Circuit Court, has a prima facie entitlement to the full benefit of his judgment and the presumption that that judgment is correct. That includes the costs order.
37 However, I weigh against this matter the fact that there is no risk that the first respondent will be deprived of the full benefit of his judgment should a stay be granted, but the Minister is unsuccessful on the appeal.
38 In my view, the principal issue on this application is whether, should a stay not be granted and the costs are paid by the Minister to the first respondent and the Minister is successful on appeal, there would be no reasonable probability of recovering those costs from the first respondent.
39 The Minister submits that the prospects of recovering the costs in those circumstances "would not be great". In support of that submission, he referred to the evidence of Mr Arujunan that both Mr Arujunan and the first respondent's counsel represented the first respondent on a pro bono basis before the Federal Circuit Court.
40 I accept that there is no reasonable probability of the Minister recovering the costs the subject of the costs order from the first respondent should the Minister be required to pay those costs (in the absence of a stay) and then be successful on his appeal. Notwithstanding the lack of direct evidence on this application with respect to the first respondent's financial position, I infer that the first respondent is impecunious or, at the very least, there would be serious doubts about the ability to recover any costs paid to him. This is the case where the first respondent: (1) was, and presumably still is, represented on a pro bono basis; (2) was, as at 15 November 2019 in detention at Villawood Detention Centre; and (3) may well be subject to removal from Australia in the event that the Minister is successful on the appeal. In connection with this matter, it is also a relevant matter in favour of a stay that the appeal is listed for hearing in about three weeks' time.
41 The first respondent submits that this appeal is, in fact, a test case for the Minister and that, in those circumstances, it is not appropriate that the stay be granted where the first respondent would be "denuded" of sufficient resources for obtaining representation on the appeal. He submits that this is not something that should attract the approval of the Court. The Minister submits in response, correctly in my view, that the costs the subject of the costs order would, if a stay was not granted, be used to pay the first respondent's solicitor and counsel in respect of costs incurred before the Federal Circuit Court, rather than to pay for the first respondent's representation on the appeal. This submission is consistent with the evidence of Mr Arujunan.
42 The final matter to consider is whether the Minister has engaged in any disentitling conduct. The first respondent seemed to suggest that the Minister had engaged in disentitling conduct. He made reference to the fact that it had been over 200 days since the costs order was made. He submits that the Minister is, in effect, asking the Court to legitimise what is a contempt of the Federal Circuit Court's order. He submits that the Minister has, since March 2020, simply refused to act on the costs order and that, as soon as he was on notice that the first respondent would not agree to deferment of the payment of the costs, he should have brought an application for a stay. There might have been some delay, but, at the same time, it has to be said that the evidence is somewhat imprecise. From the inception of the appeal, the Minister has sought a stay of the orders of the Federal Circuit Court, including the costs order.
43 I do not consider that any delay by the Minister is disentitling conduct such that a stay should be refused.
44 In my opinion, a stay should be granted.