Sil v Commonwealth of Australia

Federal Court of Australia (Full Court)|2023-05-11|Before: Mr P, Feutrill JJ

The application for an extension of time be dismissed.
The applicant pay 75% of the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for an extension of time of 28 days in which to file a notice of appeal from the decision of a judge of the Court dismissing the applicant's claim for constitutional writ relief in respect of a decision made under the Scheme for Compensation for Detriment caused by Defective Administration issued by the Department of Finance as resource management guide No 409 as well as a claim in negligence against the Commonwealth: Sil v Commonwealth of Australia [2022] FCA 920. 2 The primary judge conducted a final hearing over three days before delivering his reserved reasons thereafter. The applicant, Dhriti Sil, explained that he had difficulty in obtaining transcripts of two interlocutory hearings and the first day of the final hearing, in which he had been cross-examined, and that this delay effectively accounted for almost the whole of the period in which he was unable to prepare and file his draft notice of appeal.

The first facilitation notice 4 Subsequently, Mr Sil sought a refund of his visa application fees, saying he no longer wished to come to Australia and engaged in some correspondence with the Department. That resulted in the Department issuing a letter dated 8 September 2015 to Mr Sil informing him that he appeared to be in breach of visa condition 8504 in Sch 8 of the Regulations (the first facilitation notice). The letter noted that it was a condition of his visa that he enter Australia before a date specified by the Minister. As the primary judge found, the letter referred incorrectly to condition 8504. Rather, it should have referred to a similar provision in cl 489.615 in Sch 2 of the Regulations, which also required that first entry for Mr Sil's visa had to be made before a date specified by the Minister. The letter noted that, through his correspondence, Mr Sil had indicated that he might not comply with the obligation to enter Australia before 7 October 2015. It also noted that the Department had decided not to cancel his visa if he failed to do so but reminded him that the expiry date of the visa was 25 November 2018. The primary judge found that nothing turned on the incorrect reference to condition 8504. 5 Mr Sil subsequently sought clarification as to the date by which he had to enter Australia under the first facilitation notice. The Department responded that he had to do so prior to the 'must not arrive after date', being 25 November 2018, when the visa was to expire. 6 On 1 October 2015, Mr Sil informed the Department he no longer wanted to cancel his visa and asked that his previous application for a refund should be now cancelled. 7 After that, Mr Sil sought further clarification as to when he needed to arrive to be able to comply with the visa conditions and he and the Department engaged in further correspondence.

The second facilitation notice 8 On 9 November 2015, the Department sent Mr Sil a letter (the second facilitation notice) that contained a materially false representation, namely its statement: Once you have made your first entry to Australia your visa will be valid for three years from the date of that entry. (emphasis added) 9 The second facilitation notice also told him, correctly, that the expiry date of the visa was 25 November 2018. Clearly enough, that information, read together with the false representation, was apparently confusing. But, Mr Sil did not seek any clarification and, over the next nearly two years, he engaged in further correspondence with the Department because he was having difficulty in finding an employer willing to consider employing him in accordance with the visa conditions. 10 After some further correspondence, on 19 October 2017, the Department wrote to Mr Sil saying: As per your Visa grant letter, condition 8539 applies to your visa meaning you need to live and work in these specified areas. Your facilitation letter was issued and allows you to enter Australia for the first time at any time while the visa is valid. This visa expires on 25/11/2018. If you choose not to live and work in these areas, you may find that you would fail to meet some prerequisite conditions for some subsequent permanent resident visas. A migration agent may be able to provide you with further advice. (emphasis added) 11 Mr Sil responded on 11 November 2017 writing that he believed that he would be able to enter Australia with his facilitation letter at any time within the validity period of the visa. On 15 November 2017, the Department confirmed that, under the terms of the second facilitation notice, he would be able to enter at any time while the visa was valid. None of his communications with the Department after 9 November 2015 referred to the false representation. 12 Mr Sil arrived in Australia on 11 December 2017 and about a week later attended an office of the Department where he had a discussion with an officer. He then sent an email on 19 December 2017 to the Department that referred to the second facilitation notice and asked about whether the false representation, that the visa would be valid for three years from the date of his first entry, would mean that the visa would remain in force until 10 December 2020. 13 On 21 December 2017, the Department responded as follows: Thank you for your email. Your SP 489 visa remains valid and you are permitted to remain in Australia until 25/11/2018, as per advice provided to you on 15/11/2017. The facilitation letter you received in 2015 contained an inadvertent error, which read "Once you have made your first entry to Australia your visa will be valid for three years from the date of that entry." This is incorrect information, and refers to a condition from a different visa subclass which is not applicable to your SP 489 visa. We apologise for the error included in the facilitation letter from 2015, however the visa grant notice issued 25/11/2014 (attached for reference) clearly states the conditions of your visa with a Must not arrive after date, and stay period date of 25/11/2018. There is no option to extend the SP 489 visa past this date, and you will be required to either depart Australia prior to this date or commence valid alternative application(s) to ensure you remain lawful past 25/11/2018 in Australia. (emphasis added) 14 On 6 April 2018, Mr Sil departed Australia.

Mr Sil's claim for compensation under the scheme 15 Subsequently, he applied to the Commonwealth Ombudsman for an investigation into how the false representation had been made and then, on 11 June 2018, he applied for compensation under the scheme, claiming that he had suffered detriment of $2,432,768.70. 16 On 27 November 2018, the Department invited Mr Sil to comment on its preliminary assessment of his application for compensation and he did so in writing on 17 December 2018. 17 Next, the relevant case officer prepared a minute for the general counsel of the Department on 13 February 2019 recommending there should be no compensation payment. 18 On 25 February 2019, general counsel made a decision to accept the recommendation that Mr Sil receive no compensation under the scheme (the compensation decision). On 28 February 2019, the Department notified Mr Sil of the compensation decision. The compensation decision is the subject of Mr Sil's claim for constitutional writ relief on the basis that it was made in breach of the rules of procedural fairness and or was irrational or unreasonable.

The Decision of the Primary Judge 19 In August 2021, Mr Sil commenced the proceeding below in which he challenged the compensation decision and also claimed that the Commonwealth, by its officers, had been negligent in providing him with incorrect advice, being the false representation, by reason of which he had suffered loss and damage. 20 Mr Sil filed extensive affidavit evidence and written submissions. His Honour was confronted at the trial with a court book that was, like the application and appeal papers before the Full Court, in less than good order. 21 Very shortly after the commencement of the first day of the final hearing, counsel for the Commonwealth asked to cross-examine Mr Sil and he did not raise any objection to that occurring. 22 His Honour found that Mr Sil was persistently non-responsive to questions posed by the cross-examiner and, on occasion by his Honour, and repeatedly engaged in making speeches that he perceived would advance his case rather than directly responding to a question posed. His Honour found that Mr Sil well understood the nature of the case he wanted to advance about the false representation and was intent on repeating his principal points at every available opportunity. As we have noted, the second difficulty that his Honour found was with the documentary presentation of the case. 23 The primary judge found Mr Sil to be an intelligent man who obviously paid attention to detail and gave evidence that he did so. Mr Sil also made his intelligence apparent during the course of the hearing today. However, his Honour found that Mr Sil was an unreliable witness and that his evidence was unpersuasive in respect of the second facilitation notice and the interaction between the expiry date of the visa and the false representation. The primary judge found (at [49]-[50]): 49 It is unfortunate that the False Representation was made. But notwithstanding Mr Sil's evidence to the contrary, I am not satisfied that he did not know, prior to coming to Australia, that there was at least some ambiguity in the mixed messages he had received. It is possible that Mr Sil simply focussed laser-like on the False Representation and did not appreciate that there was an error in the Second Facilitation Notice (notwithstanding the Expiry Date reference was consistent with earlier communications). But after seeing the manner of his giving of his evidence, and having regard to the contemporaneous documents, I think it is more likely than not that by the time Mr Sil made a final decision that he would come to Australia, he was content to decide to refrain from making further enquiries. It is more probable than not that Mr Sil was aware of the inconsistency between what he had been told, but knew he was armed with the benefit of the False Representation, and trusted that he could rely upon it in due course when it came to any discussion as to the expiry of his visa. 50 The terms of the December 2017 Query (by which Mr Sil asked the meaning of the False Representation) [being his 19 December 2017 email] are of some significance. If he was as convinced as he now says he was as to the unimpeachable clarity of the False Representation, this sits unhappily with the wording of the December 2017 Query. But it must also be recognised that Mr Sil not seeking clarification with officers of the Department until after he entered Australia is consistent with two states of affairs: first, the one noted above, being Mr Sil knowing he had a "mixed message" and intending to rely on the False Representation; or secondly, a genuine belief in the truth of the False Representation, which only came to be shaken when he commenced dealing with prospective landlords. I cannot exclude the possibility of the latter state of affairs being correct, but as I have found above, I consider it less likely than the former, upon review of all the evidence. In any event, if Mr Sil did have a genuine belief in the truth of the False Representation when he arrived, given the extensive communications and Mr Sil's ability to seek clarification (which he did frequently as to other aspects of the visa), I do not consider this lack of enquiry to be reasonable in all the circumstances. (bold emphasis added; italics in original) 24 His Honour noted that the Commonwealth had raised a jurisdictional issue, with which it is not necessary for us to deal. His Honour then considered in turn the claim for judicial review before turning to the negligence claim. 25 The primary judge noted that, under the scheme, defective administration included giving advice to a claimant that was, in all the circumstances, incorrect or ambiguous and that it provided that, in order to qualify for consideration of an award of compensation, a claimant had to suffer detriment consisting of quantifiable financial loss, including pure economic loss, such as a lost opportunity, but that, for pure economic loss claims, the scheme required that the loss had to be directly caused by the alleged incorrect or ambiguous advice and that the agency should have appreciated the implications of the claimant having been given such incorrect or ambiguous advice, so that it was reasonable, in all the circumstances, for the claimant to have relied upon that advice. As his Honour noted, that criterion required a common-sense assessment. 26 His Honour set out the terms of the determinative reasoning which general counsel, as the decision-maker, had adopted in making the compensation decision under the heading "Defective advice", namely: 24. We are of the view that the second Facilitation letter sent to Mr Sil on 5 November 2015 [sic] contained incorrect information regarding the visa validity period applicable to his SRS visa. However, it was unreasonable for Mr Sil to have relied upon this information. 25. Every communication Mr Sil had with the Department including the second Facilitation letter dated 5 November 2015 [sic], either provided him with the correct visa validity date (being 25 November 2018) or advised him to refer his grant notification of 25 November 2014 which contained the correct validity date. We are of the view that Mr Sil was adequately informed that his SRS's validity date was 25 November 2018, despite the single line of incorrect information in the second Facilitation letter. 26. It is our view that it was unreasonable for Mr Sil to have relied on the single instance of incorrect advice. We consider that the conflicting advice about Mr Sil's visa validity should have prompted him to seek clarification from the Department on the matter prior to finalising any plans. 27. The correct information regarding Mr Sil's visa validity period was also reasonably available to him from another source, including the Department's Visa Entitlement Verification Online (VEVO) system. Accordingly, it would have been reasonable for Mr Sil to enquire further after receiving the contradictory advice in his second Facilitation notice. We are of the view that had Mr Sil done so, the error could have been corrected prior to any detriment being incurred. (emphasis added) 27 The primary judge found that, as best he could distil them, Mr Sil had advanced four arguments as to why the compensation decision was amenable to judicial review, namely that: (1) it was legally unreasonable or irrational, because the second facilitation notice provided erroneous advice and the decision-maker did not adhere to the requirements of the scheme in deciding that he should not be paid compensation; (2) the decision-maker was biased and the Department lacked good faith and or was determined to reject the application; (3) the decision-maker had denied him procedural fairness or natural justice; and (4) the decision-maker had ignored relevant material. 28 His Honour considered each of those arguments in detail. He applied the legal tests for unreasonableness and irrationality and found that Mr Sil had failed to identify any legal error in the compensation decision in accordance with those tests. He found that, first, Mr Sil's arguments were misconceived and that the scheme did not oblige a decision-maker to approve a payment in any particular case but, rather, provided a discretionary power that could be exercised on the basis of the material before the decision-maker as the merits appeared to him or her and, secondly, the function of the scheme was simply to provide guidance to a decision-maker without dictating mandatory requirements that the decision-maker needed to follow. 29 Next, his Honour dealt with some detailed propositions which Mr Sil had made and found that there was no legal requirement that the decision-maker have regard to any specific considerations or identified material in arriving at a decision not to grant compensation. His Honour rejected the allegation that the decision was made with a lack of good faith or bias, saying that such an allegation raised a case of conscious wrongdoing and there was no basis upon which such a conclusion could be reached. 30 The primary judge rejected Mr Sil's claim that the decision-maker failed to afford him procedural fairness in accordance with the provisions of the scheme. Mr Sil had claimed that, unbeknownst to him, officers of the Department from the relevant business area had prepared a report that was before the decision-maker that set out correctly that, first, the second facilitation notice contained an error, being the false representation, and, secondly, the first facilitation notice also contained an error because it referred to the wrong clause (being condition 8504 in Sch 8 of the Regulations, rather than the provisions set out in Pt 489 of Sch 2 of the Regulations) that provided for the setting of an expiry date of the visa and a date by which Mr Sil had to enter Australia. 31 Mr Sil had contended, before his Honour and which he repeated at length before us, that the Department had suppressed the report from him and that he should have been provided with it because it clearly favoured his case. The primary judge found that, in effect, the central aspect of Mr Sil's claim that the report had been suppressed was that the decision-maker had not received a narrative of events from the relevant business area that accorded with Mr Sil's characterisation of what had occurred. His Honour was not satisfied that the Department had acted to supress any document, being a serious allegation, or other material sufficient to support an allegation of a lack of good faith. His Honour held that that argument was not open on the material, let alone that Mr Sil had established it. His Honour also found that effectively Mr Sil's argument amounted to no more than the decision-maker had made an error by failing to accept the cogency of Mr Sil's arguments. His Honour also rejected the allegation that the decision-maker had ignored relevant material. 32 The primary judge concluded that, on any proper analysis, irrespective as to whether the compensation decision was amenable to judicial review, Mr Sil's application for relief in relation to it, although within the subject matter jurisdiction of the Court, could not succeed and had to be dismissed. 33 Next, his Honour rejected Mr Sil's negligence claim. He found that Mr Sil asserted that the Commonwealth owed him a duty of care to provide accurate advice and to have in place safeguards because the advice was wrong or it had failed to provide advice in a reasonably competent manner or had provided defective advice and that, as a result, he permanently lost a career prospect. The primary judge accepted that the false representation was obviously a misrepresentation and noted that a claim against the Government for such a misrepresentation rested upon general principles of recovery for economic loss caused by negligent misstatement. His Honour identified the legal difficulties that the case law in this area posed for such claims to succeed. He found that, because he was not satisfied that Mr Sil had relied on the false statement or inaccurate advice from the Department, it was unnecessary to engage in any further detail or any legal analysis. His Honour found (at [109]-[111]): 109 I am not satisfied that Mr Sil relied upon the False Representation in coming to Australia as he alleges. Nor do I accept that any reliance by him would have been reasonable in the circumstances. Even if the Commonwealth did owe Mr Sil a duty of care of the kind asserted, Mr Sil's claim must nevertheless fail for these two basic reasons. 110 To repeat matters canvassed above, Mr Sil was advised in writing of the Expiry Date of his visa on numerous occasions, including when he received the Second Facilitation Notice. In short, I am not satisfied on the balance of probabilities that Mr Sil did act on the faith of the correctness of the False Representation. Further, even if I was wrong as to his state of mind, no-one acting reasonably would have acted on the faith of the False Representation in the light of the other communications made to Mr Sil and information otherwise available to him. 111 As such, the claim in negligence must fail. (emphasis added) 34 The primary judge also noted that Mr Sil had argued that two persons who put on formal affidavits for the Commonwealth annexing documents material to the proceeding should have been available for cross-examination. His Honour found that, at the hearing, he had rejected the Commonwealth's reliance on those two affidavits that merely annexed documentary evidence. Instead, his Honour admitted the documentary evidence attached to both witnesses' affidavits, which comprised business records, as part of the documentary evidence in the proceeding. 35 His Honour explained that he ordered Mr Sil to pay only 75% of the Commonwealth's costs because of the Commonwealth's failure to ensure that the proceeding was conducted as efficiently as possible by failing to adhere to his Honour's earlier case management orders to provide an intelligible court book. 36 Accordingly, his Honour concluded that the proceeding should be dismissed.

This AppLication 37 Mr Sil appeared today and argued his case by video link from India. He is clearly intelligent and is articulate in English, although it is not his first language. He expressed his submissions with considerable clarity but, as his Honour observed, Mr Sil did so with a deal of repetition and fixedness on his arguments as to why he said that the primary judge's reasons disclosed a sufficient case of error to warrant a grant of leave to appeal. He complained that he had had no notice that the Commonwealth would cross-examine him and was taken by surprise when this occurred at the beginning of the first day of the final hearing, so that he had not been able properly to prepare to give his evidence. He claimed that his Honour also failed to act fairly in refusing to allow him to cross-examine the two deponents of affidavits which the Commonwealth had prepared and filed but which his Honour did not allow to be read against him. 38 He complained that his Honour erred in failing to find that the Department had supressed material from the decision-maker and acted with malice or bad faith. He contended that the decision-maker had ignored relevant material that was in his favour and the Department had failed to disclose to him the responsible business area's report that supported his case that there had been defective administration and that the Department had given him misleading information. He submitted that there was a clear case that any person in his position would have understood that the visa would be valid for three years from his first entry into Australia and that he was informed of this before he came here by the Department's letter of 19 October 2017. He said that the focus of the decision-maker and his Honour on the fact that Mr Sil had failed to seek clarification of the false representation was an error.

Consideration 39 An application for an extension of time in which to file a notice of appeal requires the applicant, first, to explain his or her delay, secondly, to establish that each relevant decision was erroneous, or that there was a reasonable basis to argue that it was, and, thirdly, to establish that he or she would suffer substantial injustice if leave to appeal or an extension of time were not granted. That is because an application for an extension of time challenges a respondent's vested right to retain the benefit of the judgment that is the subject of the proposed appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4], and see also at 539-543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours adopted from what Lord Denning MR had said in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E- F (and see also FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 405 at 409 [19] per Rares, Stewart and Abraham JJ), namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. 40 The principles that govern the grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], namely: An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal. 41 We allowed Mr Sil considerable time to develop his points to illustrate why he contended that his Honour had made an error sufficiently to demonstrate that his case had some merit and that there was sufficient reason to doubt the correctness of his Honour's reasoning. We have had regard to all of the written submissions and material that Mr Sil relied on and his affidavits in support of the application for leave to appeal as the basis of his amended notice of appeal sworn on 27 February 2023. 42 None of Mr Sil's arguments in support of his application for an extension of time and his proposed appeal either orally or in writing, which were voluminous, consisting of hundreds of pages of material and a court book of thousands of pages that was effectively an appeal book in the event that the Court were minded to grant leave, has shown that there is any reason to doubt the correctness of his Honour's findings. 43 First, in assessing Mr Sil's evidence when his Honour came to reject the negligence case, his Honour formed his views as a result of seeing and hearing Mr Sil and assessing the manner in which he gave his evidence. Mr Sil did not refer to any basis to doubt his Honour's finding that Mr Sil did not rely on the erroneous advice or the false representation in coming to Australia or in acting as he subsequently did. His Honour formed his assessment of Mr Sil's reliability as a witness and came to his factual findings, having closely observed him give evidence and having given him, after a month long adjournment, every opportunity to respond to any issues that had been raised on the first day of the final hearing in his cross-examination. There is no basis on which we, as an appellate court, could interfere with the primary judge's findings of fact unless, contrary to our view, they were glaringly improbable or contrary to compelling inferences. That is because we do not have the same advantage as his Honour of seeing and hearing the witness: Lee v Lee (2019) 266 CLR 129 at 148-149 [55] per Bell, Gageler, Nettle and Edelman JJ. Accordingly, an appeal against his Honour's finding that the negligence case could not succeed would have no prospect of success, were leave to appeal to be granted. 44 Secondly, there is nothing in Mr Sil's argument that there was any, let alone a material, jurisdictional error in the compensation decision entitling him to a grant of constitutional writ relief. Mr Sil's fixation on the failure of the decision-maker or the Department to provide him with the responsible business area's report on his claim under the scheme did not identify any material that was credible, relevant, significant and adverse to him in accordance with well-established principles in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95-96 [16]-[17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Their Honours identified that what is credible, relevant and significant information must be determined by a decision-maker before the final decision is reached. They held: That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. (emphasis added) 45 Here, Mr Sil relied on information in the report that was before the decision-maker that was not adverse to him, but rather was in his favour. There was no obligation to afford him procedural fairness to learn of that favourable material. But even if he had been given it, there is no basis before us to warrant a conclusion that it would have made any difference to the result. 46 There is no substance in any of Mr Sil's other arguments as to why the compensation decision was either irrational or unreasonable, being one that no reasonable person in the position of the decision-maker could have arrived at, on the facts before him or her or that reflected any impropriety, breach of the rules of procedural fairness or relevant non-disclosure. Indeed, the decision was open on the material before the decision-maker. 47 There was nothing in the contents of the scheme that required the decision-maker to find in Mr Sil's favour as he contends. Rather, his essential argument, in challenging both his Honour's dismissal of the negligence case and rejection of the judicial review case, was simply that he disagreed with the findings that both his Honour and the decision-maker made.

Conclusion 48 Accordingly, accepting that Mr Sil may have given a sufficient explanation as to why he did not file his notice of appeal in time, because he delayed while he awaited receipt of all of the transcripts, there is no relevant basis to think that the decision of the primary judge was affected by any error and there is no reason to doubt its correctness. In those circumstances, a grant of an extension of time would be futile because any appeal would be doomed to fail. The application for an extension of time must therefore be dismissed. 49 The Commonwealth applied initially for costs. After the Full Court pointed out that, as was the position before the primary judge, the application and appeal papers were in a most unsatisfactory state, it varied its application to seek, as the primary judge had ordered, that Mr Sil pay 75% of the costs of the application. That was an appropriate concession in the circumstances. 50 The orders of the Court will be that the application for an extension of time be dismissed and Mr Sil pay 75% of the Commonwealth's costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, O'Sullivan and Feutrill.

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