SZRFP v Minister for Immigration and Border Protection

GILLIAN SULLIVAN, IN THE CAPACITY AS THE INDEPENDENT MERITS REVIEWER Second Respondent

JUDGE: PERRY J DATE OF ORDER: 13 MAY 2016

1. The appeal is dismissed.
2. The appellant is to pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [4] 2.1 The appellant's claims [4] 2.2 The initial refugee status assessment and independent merits review (2011-2012) [5] 2.3 The ITOA assessment [8] 2.4 The decision of the Federal Circuit Court [15] 2.5 The appeal [17] 3 CONSIDERATION [20] 3.1 Ground 1: did the primary judge err in his application of s 197C? [20] 3.2 Ground 2: whether the assessor asked herself the wrong question in applying country information [25] 4 THE APPLICATION FOR AN ADJOURNMENT [36] 5 COSTS [39] 6 CONCLUSION [42]

1. INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of an assessment undertaken as part of an International Treaties Obligations Assessment (ITOA). The assessor who had undertaken the ITOA (the second respondent) found that Australia does not have non-refoulement obligations to the appellant, that is, obligations not to return the appellant against his will to his country of origin. 2 Relevantly, the appellant claimed to fear persecution or significant harm by reason of his or his family's association with the Liberation Tigers of Tamil Eelam (LTTE) if he was returned to Sri Lanka. The principal issue on the appeal is whether, in rejecting these claims, the assessor asked herself the wrong question or applied the wrong test in her treatment of country information as to those categories of persons with links to the LTTE which might place them at risk of persecution or significant harm so as to attract Australia's treaty protection obligations. 3 For the reasons given below, I do not consider that the assessor erred in her consideration of that material in assessing the appellant's claims and the appeal must be dismissed with costs.

2.1 The appellant's claims 4 The appellant is a citizen of Sri Lanka who arrived in Australia 7 November 2010 as an Illegal Maritime Arrival. The appellant claimed protection on the grounds that he fears being mistreated, such as being interrogated or killed, by the authorities if returned to Sri Lanka because of his suspected involvement with the LTTE, his Tamil ethnicity, contact with the Tamil Congress in Australia, and his status as a failed asylum seeker. More specifically, the appellant's claims included the following: (1) He grew up in an area where the LTTE were active and all local residents were required to join it or provide support. He never became a supporter but was sometimes compelled to undertake training or made donations/bribes to avoid training. He provided carpentry services for the LTTE. (2) The appellant's brother was forced to join the LTTE and become a member. His brother was required to guard the border every now and then. When he was ordered to return, his brother ran away and has not been seen since. (3) Due to his brother, the appellant was tortured (questioned and threatened with beatings) when placed in a refugee camp in 2009. While accepting that the camp where he was held had been disbanded, he was a wanted person in Sri Lanka for having left the camp illegally and having helped hide his brother. (4) As a result of his brother's involvement with the LTTE, the appellant has been questioned and harassed by the Criminal Investigation Department (CID) with respect to his whereabouts. (5) The appellant believes that his father-in-law was killed as a warning to other people as a result of assisting the appellant escape the refugee camp in July 2010 in order to avoid being interrogated by the Sri Lankan Army and the CID. (6) Since his arrival in Australia, CID have visited the appellant's home and taken photographs of his wife and two children. He fears that his wife is under surveillance and believes the CID is looking for him because he left the displacement camp in 2010 without permission. (7) The appellant had sought immigration advice and assistance from the Australian Tamil Congress which is considered a terrorist organisation by the Sri Lankan Government. Tamil Congress members cannot go to Sri Lanka and neither can he now.

2.2 The initial refugee status assessment and independent merits review (2011-2012) 5 The appellant lodged a Refugee Status Assessment on 22 January 2011 and was interviewed in relation to his assessment on 25 January 2011. On 21 April 2011, an officer of the Department of Immigration and Citizenship (Department) found that the appellant does not meet the definition of a refugee in Article 1A of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention) and is not someone to whom Australia owes protection obligations. Article 1A(2) of the Refugees Convention provides that a refugee is a person who, relevantly, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and unable or, owing to such fear, is unwilling to available himself [or herself] of the protection of that country…". 6 An Independent Merits Review of the assessment was concluded on 2 February 2012. The independent reviewer recommended that the claimant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. An application for judicial review of the Independent Merits Review in the Federal Magistrates Court (as it then was) was dismissed in October 2012: SZRFP v Minister for Immigration and Citizenship [2012] FMCA 959. 7 On 16 November 2012, the appellant made a request to the Minister under s 46A(2) of the Act to consider exercising his power to allow him to make a protection visa application.

2.3 The ITOA assessment 8 Subsequently on 22 September 2014, the Department wrote to the appellant advising that it would undertake a reassessment of his protection claims both as a refugee and for complementary protection as part of an ITOA. This followed the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) which I explain at [28] below. The letter advised that protection claims submitted for the purposes of previous assessments would be considered as part of the ITOA and that the appellant may also wish to submit further information within 14 days. In particular, it advised that "[a]s part of this process the department is seeking to clarify the following information: (1) Why did you leave Sri Lanka? (2) What do you think will happen to you if you go back to Sri Lanka? Why do you think this will happen? (3) Do you think the authorities of that country can and will protect you if you go back to Sri Lanka? 9 On 13 October 2014, the Department invited the appellant to attend an interview regarding the ITOA on 30 October 2014. The appellant attended the interview on 30 October 2014 and written submissions were filed by the appellant's migration agent subsequently on 3 November 2014. 10 By a letter dated 12 March 2015, the ITOA assessor (the assessor) wrote to the appellant advising that the Department found that the appellant's claims for protection do not engage Australia's non-refoulement obligations. A statement of reasons bearing the same date was enclosed. 11 At the commencement of her reasons, the assessor explained that: This ITOA is being undertaken for the purpose of assessing whether Australia has non-refoulement obligations to [the appellant] under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); or the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, aiming at the abolition of the death penalty. Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia's interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application. 12 No issue is taken by either party with the assessor's approach taken in these paragraphs. In particular, Australia owes non-refoulement obligations under a number of treaties in addition to the Refugees Convention, including (as the assessor recognised) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, [1989] ATS 21 (entered into force 26 June 1987) (CAT), and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, [1980] ATS 23 (entered into force 23 March 1976) (ICCPR) (complementary protection). Also in line with the assessor's approach, while these claims did not fall to be considered under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), it has been recognised that s 36(2)(aa) is intended to afford protection against the type of harm from which the CAT and ICCPR seek to protect protection seekers: SZQRB at 526 [98] (Lander and Gordon JJ); see also the definitions of "cruel or inhuman treatment or punishment", "degrading treatment or punishment" and "torture" in s 5(1) of the Act. Specifically, under s 36(2)(aa) and subject to certain exceptions, the Minister must grant a protection visa to a non-citizen in Australia: …in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm… 13 Section 36(2A) defines the circumstances in which a non-citizen will suffer significant harm for the purposes of s 36(2)(aa), namely, if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 14 The assessor explained in her reasons that she was satisfied that the appellant does not face a real chance of persecution for reason of any suspected links with the LTTE. In so finding, the assessor found relevantly that the appellant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile. Nor did the assessor consider that the claimant faced a real risk of significant harm should he be returned to Sri Lanka so as to engage Australia's complementary protection obligations. On 20 March 2015 the Acting Director, Ministerial Intervention (National) Case Load Assurance Branch, agreed with the assessment and to the notification being sent to the client.

2.4 The decision of the Federal Circuit Court 15 On 5 June 2015, the Federal Circuit Court dismissed the application for judicial review based upon alleged legal errors by the assessor. The primary judge gave short ex tempore reasons and found that s 197C of the Act had the effect that "even if there was a legal error in the assessment it could not give rise to the grant of injunctive relief in respect of s.198 so far as concerns are non-refoulement obligation and on that ground the application should be dismissed" (reasons below at [3]). In any event the primary judge considered the grounds pleaded by the appellant. As to the criticism by the appellant of the assessor's rejection of his claims based upon his or his family's association with the LTTE, the primary judge held at [6] that: The assessor's report must be heard [sic] as a whole and it's clear that the assessor identified the country information to which the applicant refers and it was open to the assessor as part of the chain of reasoning in respect of whether the applicant faced a real chance of persecution for reason of any association with the LTTE to make findings as to the applicant's role, whether a leader, whether a high profile member and whether closely related to a family with a high risk profile Those were findings of fact which it was open of [sic] the Assessor to take into account and does not give rise to any legal error by the assessor. 16 The primary judge also rejected the proposition that the assessor created a new and different test by reason of the findings with respect to these claims (reasons below at [7]).

2.5 The appeal 17 On 24 June 2015 the appellant filed a notice of appeal. Two grounds were alleged which I consider below. 18 The appellant appeared unrepresented at the hearing of the appeal and made short oral submissions. The appellant had also filed written submissions when the matter was originally listed in August 2015 prior to orders adjourning the appeal pending the outcome of the decision of the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1 (SZSSJ). Amended submissions were sent by the appellant to the Registry by fax on 9 May 2016 and were accepted for filing by the Registry on 10 May 2016 (the appellant's amended submissions) although the principal amendment was to include a request for this appeal to be adjourned. That application was refused at the hearing for the reasons set out at [36]-[38] below. 19 The first respondent filed written submissions on 4 May 2016 in accordance with the timetabling orders. At the start of the hearing, I confirmed with the appellant that the Minister's written submissions had been translated to him.

3.1 Ground 1: did the primary judge err in his application of s 197C? 20 By ground one of the notice of appeal, the appellant contends that the primary judge "erred in finding on the effect of section 197C" of the Act. 21 Section 197C of the Act provides that: (1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. (2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen. 22 Section 198, as is apparent from s 197C, imposes an obligation upon an officer to remove as soon as possible an unlawful non-citizen where the person has applied for, and been refused, a protection visa and the application has been finally determined. 23 As I later explain, the proceedings below were adjourned at the appellant's request pending delivery by the Full Court of its decision in SZSSJ. In that case, the Full Court ultimately upheld the appeal, holding that s 197C (which came into force on 16 December 2014) did not operate retrospectively with the result that, once the appellant had made his claim for non-refoulement, he had an accrued right within the meaning of s 7(2) of the Acts Interpretation Act 1901 (Cth). As a consequence, that right could not be removed until any non-refoulement obligations were assessed and was preserved in any legal proceedings or departmental investigation into whether he was owed non-refoulement obligations: SZSSJ at [56]-[58] (the Court). 24 Applying that reasoning to this case, the process of assessing whether the appellant was owed any non-refoulement obligations was initiated on 22 September 2014 and therefore before the commencement of s 197C, and was completed and notified to him in March 2015 after the section commenced. As such, the first respondent conceded for the purposes of this appeal that s 197C did not apply to the appellant in line with the Full Court's reasons in SZSSJ and that the primary judge erred in concluding otherwise. I agree with the first respondent and it follows that to this extent, the appeal must succeed.

3.2 Ground 2: whether the assessor asked herself the wrong question in applying country information 25 Notwithstanding the concession with respect to ground one, the first respondent rightly submitted that that did not necessarily dispose of the appeal. First, s 197C played no part in the assessor's reasons. Secondly, the first respondent did not rely upon s 197C before the Court below but rather submitted that there was no error made in the reasons given by the assessor which would vitiate the assessment and provide a basis for the grant of relief. The primary judge addressed those submissions in the alternative. Finally, I agree with the first respondent that nothing in s 197C could have affected the Court's power to issue declaratory, as opposed to injunctive, relief in the proceedings in the Court below in any event. 26 By ground two of the notice of appeal, the appellant contends that the primary judge erred in not finding that "the Assessor asked herself the wrong test/question in applying the UNHCT [sic] guidelines and DFAT report while assessing the risk of serious harm". 27 The first respondent did not take issue with the proposition that the assessor's recommendation is reviewable for legal error in accordance with the authorities relied upon by the appellant, notwithstanding that it is not a decision for the purposes of the Act. Thus, the assessment "must be procedurally fair and address the relevant legal question or questions" for which declaratory relief is available: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at 353 [77] (the Court). Injunctive relief may also be appropriate where the Minister is otherwise minded to act upon an assessment infected by jurisdictional error or without the non-citizen's claims being determined by removing the non-citizen from Australia: SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 200 FCR 207 at 219 [44] (the Court); SZQRB at 549 [231] and [272] (Lander and Gordon JJ), [300] and [313] (Besanko and Jagot JJ), and [342] (Flick J). 28 The first respondent also agreed with the appellant that the Court "should follow the reasoning" in SZQRB. In that case the Full Court held that the reviewer had applied the wrong test in asking whether it was "more likely than not" that the claimant would suffer significant harm for the purposes of assessing the claimant's complementary protection claims identified in s 36(2)(aa) of the Act. Rather, the Full Court held that the standard to be applied in assessing risk of harm was the same as that under s 36(2)(a), namely, whether there was a "real chance" that the non-citizen would suffer significant harm: SZQRB at 551 [246]-[247] (Lander and Gordon JJ), 557-558 [297] (Besanko and Jagot JJ), and 565 [342] (Flick J). However the appellant did not identify any part of the reasons of the assessor where it was said that the wrong test was applied or the assessor failed to follow the reasoning in SZQRB. To the contrary, as the first respondent points out, the assessor in considering the complementary protection claim expressly applied the test for assessing risk articulated by the Full Court in SZQRB. 29 The appellant also submits that the assessor "misapplied country information". The passage to which objection is taken on this ground is at [25] of the assessor's reasons and reads: LTTE involvement The claimant has stated that he fears being harmed in Sri Lanka because he will be suspected of having links with the LTTE. The claimant's past involvement with the LTTE was being made to provide carpentry services and donations. His brother's association with the LTTE was as a guard on the LTTE border. According to The United Nations High Commissioner for Refugees' (UNHCR's) December 2012 Eligibility Guidelines for Sri Lanka, a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or "cadres"; 3) Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles DFAT recently reported that those at highest risk of monitoring, arrest, detention or prosecution include the LTTE's former leadership, regardless of whether they performed a combat or civilian role during the conflict. Based on the above reports, I consider that the claimant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile. I also consider that, based on the claimant's own testimony that his contact with the Tamil Congress in Australia was for immigration assistance only. I consider the claimant would not be perceived by the Sri Lankan authorities as being involved in pro Tamil separatist propaganda or funding outside of Sri Lanka. For these reasons, I am satisfied that the claimant does not face a real chance of persecution for reason of any association with the LTTE. 30 However, no specific error in the way in which the assessor used or applied the country information is identified. Nor is any error evident. As the first respondent submitted, it is well established that the choice of country information, the use made of it and the weight to be given to it, are matters for the administrative decision-maker to decide. As the Full Court explained in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]: By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court…. 31 The appellant also refers to the established principle that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 152 [42]: To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. 32 However, the appellant fails to identify any claim or integer of a claim which he submits has not been considered by the assessor. Nor while the appellant correctly submits that jurisdictional error would be established if the assessor failed to have regard to the actual nature of the legal inquiry which it is required to undertake, is any such error identified. 33 Finally, the appellant submits that: The applicant submits that the Assessor's finding is not supported by the two reports: UNHCR Eligibility Guidelines 2012 and the DFAT report at footnote 31 that she relied upon to make a finding. The reports have been misconstrued or the Assessor made a mistaken conclusion and fell into jurisdictional error. 34 I accept the submission of the first respondent that this submission seeks impermissibly to take issue with the assessor's factual findings. It is apparent from the assessor's reasons that she correctly treated the UNHCR guidelines and the DFAT report as evidence which identified those people or classes of people which the author or authors considered to be at risk of persecution or harm in Sri Lanka. It is also apparent that the assessor treated that evidence as reliable. That does not amount, however, to treating that evidence as binding or having any statutory force which plainly it did not have; nor to supplanting the test for assessing risk in the context of Australia's non-refoulement obligations with a new test. The assessor then considered whether the grounds on which the appellant claimed to fear harm, being his brother's association with the LTTE and his own involvement, placed him within any of those categories of persons with links to the LTTE which might place him at risk of persecution. In this regard, the appellant did not claim that he or his brother had leadership or high profile roles within the LTTE and in fact claimed the contrary. With respect to his brother, the appellant contended that his role was to guard the border every now and then. The appellant's case, as earlier explained was that he was not a supporter and provided only carpentry services and sometimes undertook training or made donations/bribes. As such, the critical finding by the assessor that "the claimant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile assessor" was clearly open to the assessor on the evidence and no legal error is apparent. As a result, while the appellant took issue at the hearing with the opinions expressed in the UNHCR Guidelines and the DFAT report and considered that persons outside those categories were still at risk of persecution or significant harm, this Court has no jurisdiction to interfere with the assessor's findings as to the weight to be given to that evidence; nor does this Court have jurisdiction to consider whether, having regard to the evidence, there was a real chance that the appellant might suffer persecution for a Refugees Convention reason or significant harm engaging Australia's complementary protection obligations if returned to Sri Lanka. 35 It follows that ground two of the notice of appeal cannot succeed.

4. THE APPLICATION FOR AN ADJOURNMENT 36 As earlier noted, in his amended written submissions, the appellant sought an adjournment on the ground that the appeal raised the same issue as to the construction of s 197C of the Act as the appeal from the decision in SZSSJ is listed before the High Court on 7 June 2016. The first respondent opposed the grant of an adjournment. 37 As I explained at the hearing, I refused the application for an adjournment for the following reasons. 38 First, the adjournment was sought shortly before the appeal was listed for hearing, despite the High Court having granted special leave to appeal in SZSSJ on 11 March 2016. Secondly and more importantly, it will be recalled that ground one of the notice of appeal is that the primary judge erred in his construction of s 197C of the Act in holding that that provision operated retrospectively to the detriment of the appellant (s 197C is set out at [21] above). Despite the grant of special leave to appeal in SZSSJ, the first respondent was content for this appeal to proceed on the assumption that the decision of the Full Court was correct in holding that s 197C did not operate retrospectively. No issue was therefore taken by the first respondent with the Court's jurisdiction to determine these proceedings. As the first respondent stated in an email to the Registry in response to the foreshadowed adjournment application and confirmed in oral submissions, the first respondent accepts that the Court has jurisdiction to review the subject ITOA as a consequence of which the appellant would not be assisted by holding the matter over pending the outcome of the High Court proceedings in SZSSJ. In these circumstances, I did not consider that it was in the interests of justice to grant the adjournment.

5. COSTS 39 At the hearing the first respondent made submissions in support of its application to be paid its legal costs in the event that the appeal was dismissed. The first respondent relied upon the ordinary rule that costs follow the event. While the award of costs is in the discretion of the Court under s 43(2) of the Federal Court of Australia Act 1976 (Cth), the principle that a successful party is generally entitled to costs as compensation for the legal costs incurred by her or him in the litigation is well established: Ruddock v Vadarlis [2001] FCA 1865; (2001) 115 FCR 229 at 237 [16] (Black CJ and French J). 40 The appellant opposed any order requiring him to pay any costs in the event that the appeal was dismissed on the ground that he was out of work and did not know how he would find the money to pay those costs. However, while I understand the appellant's difficulties, the fact that an unsuccessful litigant does not have the money to pay the other party's costs is not generally a reason for refusing to award the successful party her or his costs: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [50]-[51] (Allsop CJ, Kenny and Griffiths JJ); WAFU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1238 at [35]-[40] (French J); AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444 at [67] (Jagot J); MZXRN v Minister for Immigration and Citizenship [2008] FCA 1622 at [18] (Gray J). 41 In the circumstances, I consider that the ordinary rule should apply and the first respondent should be awarded his costs of the appeal.

6. CONCLUSION 42 For these reasons, the appeal must be dismissed with the appellant to pay the first respondent's costs as agreed or taxed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.