FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

3.    The cross-appeal be allowed.

4.    Order 3 of the orders made by the Federal Circuit Court of Australia on 4 June 2015 be set aside and, in its place, there be an order that: “The first respondent pay the costs of the applicant as agreed or assessed”.

5.    The first cross-respondent in the cross-appeal pay the costs of the cross-appellant as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The primary issue in the appeal is whether the primary judge erred in finding that there was a breach of s 425 of the Migration Act 1958 (Cth) (the Act) by the former Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)), in dismissing the appellant’s application to the Tribunal concerning the Minister’s rejection of his protection visa application.

2    There is also a cross-appeal, the principal issue being whether the primary judge denied SZTQS procedural fairness in making a costs order.

Background facts summarised

3    SZTQS is a citizen of Sri Lanka. In November 2012, he made an application for a Protection (Class XA) visa (the visa). He claimed to be a Tamil fisherman who resided in Udappu, Sri Lanka and departed from Negombo, Sri Lanka for Australia on 14 June 2012.

4    He claimed to have suffered past harm at the hands of the police and the Sri Lankan Navy. Specifically, he claimed that:

(a)    between January 2010 and April 2012, he had suffered harassment from the Sri Lankan Navy while fishing. He was caught four or five times without a “fishing pass” (meaning that he was not permitted to fish on those days). Sinhalese fishermen were not required to carry such passes;

(b)    in April 2011, he had his identity card confiscated by two navy officials and he could not fish that day. His employer recovered his identity card and he was able to fish the following day;

(c)    on 25 May 2012, he and four friends were accosted by four or five Sinhalese men, who claimed to be police. They were told to hand over their identity cards and mobile telephones. They were taken to the police station and put in a cell with 119 other Tamil men. Two days later, they were taken to the local courthouse where SZTQS’s mother paid bail money for his release. He returned to Court on 8 June 2012 and was told to return again on 19 October 2012 but he departed Sri Lanka six days later; and

(d)    on 10 June 2012, SZTQS was involved in a physical altercation with his neighbour after witnessing the neighbour hitting his mother. The fight was instigated by the neighbour because SZTQS’s family had erected a fence that encroached onto the neighbour’s property.

5    SZTQS claimed to fear serious harm at the hands of the authorities should he return to Sri Lanka. Specifically, he claimed that, by reason of the events described in [4] above and by reason of his ethnicity as a Tamil, he feared that he would be arrested again or harmed by his neighbour. He claimed that failed Sri Lankan asylum seekers were detained on re-entry to Sri Lanka and suffered serious harm, constituted by detention in dire prison conditions. He feared he would be targeted because of his Tamil ethnicity and because of a perception that he was aligned to the Liberation Tigers of Tamil Eelam.

6    SZTQS further explained his claims at an interview held on 13 February 2013 with a delegate of the Minister. He had the assistance of a Tamil interpreter.

7    On 8 March 2013, SZTQS’s application for the visa was refused. The delegate found that his claims for protection were not credible because his claims of past persecution at the hands of the police had not been mentioned in his entry interview and his testimony as to these claims was vague and unconvincing. The delegate summarised country information concerning the treatment of failed asylum seekers and persons who had left Sri Lanka illegally. The delegate noted that the process of checking relevant information about an individual returnee might take “from a few hours up to a few days”. The delegate did not explicitly address the issue of bail or the granting of surety. Having noted the process and investigations applied to returned asylum seekers, the delegate found that the chance of any harm befalling SZTQS on his return to Sri Lanka as a failed asylum seeker was remote, largely because the delegate found that the applicant did not “possess and will not be found to possess a real or imputed LTTE profile of any kind”.

8    On 15 April 2013, and with the assistance of a solicitor, SZTQS lodged an application for review of that decision.

9    On 22 October 2013, SZTQS (by his solicitor) lodged a submission in support of his claims. The submission detailed inter alia country information as to the ill treatment of asylum seekers on re-entry to Sri Lanka.

10    On 29 October 2013, SZTQS and his solicitor attended a hearing before the Tribunal. A Tamil interpreter was present.

11    During the course of the hearing, the Tribunal raised with SZTQS whether he would suffer serious harm by reason of his return to Sri Lanka as a person who was known by authorities to have departed Sri Lanka in contravention of Sri Lankan domestic law. The Tribunal Member relevantly stated:

MEMBER:    So I need to assess… the credibility of that claim but, where there… where a person is returned and they are… suspected of having departed illegally, what the information generally reports is that, depending on the day that they return, if there is an intervening weekend or a public holiday, the person can be held for either a few hours or one or two days, before they are taken to the court to apply for bail.

It seems that bail is routinely given and then the returnees go back to their life and then they have to reappear in court to discuss the substantive issues of having… of having left… of having left Sri Lanka illegally.

And…

Just let me finish… overwhelmingly the information indicates that when people do appear in relation to those charges, they're… the penalty that they are given is a fine.

Now, I need to consider that information… but is there anything that you want to say in relation to it?

12    On 6 November 2013, the Tribunal published its decision. The Tribunal did not accept SZTQS’s claims to have experienced past Refugees Convention-related serious harm. The Tribunal relevantly found:

The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given.

13    By an application filed in the Federal Circuit Court of Australia (FCCA) on 11 December 2013, SZTQS contended that the Tribunal’s decision was vitiated by jurisdictional error because:

(a)    the Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question; and

(b)    the Tribunal failed to comply with s 425(1) of the Act.

14    Section 425(1) of the Act provided:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

15    In the FCCA, only ground 2, which related to s 425(1), was pressed.

16    The FCCA found that this ground was made out. It relevantly found that “a crucial plank” of the Tribunal’s reasoning was that a member of SZTQS’s family would provide surety for him to obtain bail and the Tribunal never raised this issue with him (at [45] to [46]). The essence of the FCCA’s reasons are to be found in [62] to [66] inclusively (emphasis in original):

62    I do not accept the first respondent's submissions. As stated above, critical to the RRT's finding that the applicant could apply for bail and that bail was routinely given was a finding that a family member is required to provide surety. In those circumstances, it was plainly an issue for the RRT that the applicant's family would be able to provide surety for him in order that he may obtain bail. That was not an issue before the Delegate and, in the circumstances, it became an issue for the RRT. The RRT was required to raise it with the applicant for the applicant to have an opportunity to address that finding by the RRT, which was adverse to him.

63    Accordingly, the RRT failed to accord the applicant procedural fairness as required by s.425(1) of the Act. A fair reading of the decision that a family member must pay surety to effect bail for the applicant was an issue solely named by the RRT and which it failed to identify to the applicant. Section 425(1) of the Act requires the RRT to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The issue of whether a family member was required to pay surety to enable the applicant to be bailed was not an issue before the Delegate and was not an issue raised by the applicant. It is an issue arising from the finding of the RRT that the applicant's family were required to pay surety to enable the applicant to be granted bail.

64    Further, on the evidence and material before the RRT, there is nothing to suggest that the applicant or his representative should have been aware that the ability of the applicant's family to pay surety to enable him to be granted bail was a determinative factor in the mind of the RRT Member.

65    Further, I accept counsel for the applicant's submission that the RRT's conclusion that the applicant had such a family member was a conclusion that was critical to the RRT's decision and was not a conclusion that would obviously be open on the known material.

66    In considering whether the applicant met the complementary protection criterion, the RRT concluded that the applicant was not at risk of serious harm as a failed asylum seeker upon return to Sri Lanka because he would be detained only for a few days while waiting to be brought before a court to apply for bail, which is routinely given. Implicit in that finding is that because bail is routinely given, it will be given to the applicant. However, the RRT made the clear finding that the applicant's ability to be granted bail was dependent on a family member being able to provide surety. As stated above, that was an issue that the RRT was obliged to raise with the applicant and its failure to do so is a denial of procedural fairness and a breach of s.425(1) of the Act.

The grounds of appeal

17    The following four grounds of appeal are raised by the Minister’s notice of appeal:

1.    The Court below erred in law by making the following findings that were not open on the evidence before the Court:

(a)    That a ‘crucial plank’ in the Tribunal’s reasoning was that the applicant would not be subjected to significant harm on return to Sri Lanka because a member of the family of the applicant would provide surety for him (the ‘implicit premise”) (see FCCA reasons at [45] and [50]).

(b)    That the implicit premise was a conclusion or finding made by the Tribunal (see at [63, 65, and 66]).

2.    The Court below erred in law by mischaracterising the implicit premise and country information suggesting that ‘a family member is also required to provide surety’ (the ‘country information finding’) as each being an issue that gave rise to obligations under s 425 (see [46], [47], [62] and [63]) and otherwise misconstruing the requirements of s 425 as applying to the reasoning process adopted by a Tribunal member in their reasons for decision (see [45]).

3.    The Court erred in law in finding that the implicit premise was not a conclusion that would obviously be open on the known material when the Applicant had given evidence before the Tribunal that his family had previously supported him and paid bail on his behalf (see [65]).

4.    The Court erred in law by making a finding that the Tribunal decision breached s 425 in circumstances where the Applicant was afforded the opportunity during the Tribunal hearing to give evidence and present arguments as to the likelihood that he would suffer significant harm upon his return to Sri Lanka should he be suspected of having departed Sri Lanka illegally (see [58]).

The Minister’s submissions in the appeal summarised

Ground 1

18    The Minister submitted that the Court below mischaracterised the reasons of the Tribunal in its reasons for judgment.

19    The Tribunal made observations in [46] of its reasons for decision as to the country information referred to in that paragraph (and the preceding paragraph) regarding the treatment of unlawful departures on return to Sri Lanka, including that bail is routinely given on an accused’s own recognisance, although a family member is also required to provide surety. This, the Minister submitted, was not a finding that SZTQS’s family would be required to provide surety.

20    The Tribunal made a finding at [51] that bail was routinely given to individuals who were illegal departures. It also found that SZTQS would only face a fine and not a custodial sentence. It was on this basis that the Tribunal concluded that the prospect of SZTQS being detained for a prolonged period of time was remote.

21    The ability of SZTQS’s family to pay surety was not a critical conclusion drawn by the Tribunal or a clear finding as found by the primary judge. The inferences drawn by the Court below reveal error, so submitted the Minister, because they were not open on the face of the Tribunal’s reasons for decision.

Grounds 2 and 4

22    A determinative issue before the Tribunal was whether SZTQS would suffer significant harm for the purpose of s 36(2)(aa) of the Act. Relevantly, it is provided there that:

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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.

23    In that context, a determinative issue was whether SZTQS would be harmed on return to Sri Lanka by reason of his contravention of a domestic law concerning departure from Sri Lanka.

24    This issue had previously been raised as an issue by SZTQS during his interview before the delegate. Specifically:

(a)    SZTQS gave a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission; and

(b)    he attended an interview with the delegate on 18 January 2013. At the interview he gave evidence that he had fears of returning to Sri Lanka because authorities suspected him of attempting to leave Sri Lanka illegally. He also gave evidence that his mother had previously paid bail of 200,000 rupees on 27 May 2012 to ensure he was released and a further 200,000 rupees for him to get a place on a boat to come to Australia.

25    The delegate gave reasons on 8 March 2013 as to why SZTQS was not at risk of serious harm on re-entry into Sri Lanka. Those reasons included (emphasis in original):

According to a letter from the British High Commission, Colombo, dated 5 January 2012… the arrival process does not automatically or usually entail persecutory treatment as “In general, the situation regarding all returnees regardless of race or creed appears to be more relaxed now…”

…

As stated earlier on there has been no issue for returning persons who need to obtain travel documents (5.15) as there is a process in place to cover all contingencies for returnees. The applicant has a family and support network in Udappu to which he would be returning and he possesses a copy of his NIC.

…

In summary, I am not satisfied that there would be a real chance the applicant would face harm for the reasons of his having left Sri Lanka illegally and having failed in his bid to gain asylum in Australia.

26    At the Tribunal hearing, the following relevant matters were canvassed:

(a)    at the commencement of the hearing, the Tribunal outlined the issues for consideration;

(b)    the Tribunal asked SZTQS as to his fears if he returned to Sri Lanka because he departed by boat and sought asylum in Australia; and

(c)    the Tribunal raised with SZTQS:

(i)    the likelihood that he would be known to Sri Lankan authorities to have left for Australia illegally;

(ii)    the likelihood that they may suspect that he had sought asylum abroad;

(iii)    that, on return, Sri Lankans face standardised processes involving questioning at the airport by Sri Lankan authorities and liaison between those authorities and local authorities to see if there were any outstanding criminal convictions or warrants and consequential processes;

(iv)    that, where a person is returned and they are suspected of having departed illegally, on the day that they return, if there is an intervening weekend or a public holiday, the person can be held for either a few hours or one or two days, before they are taken to the Court to apply for bail; and

(v)    that bail is routinely given, returnees go back to their lives and have to reappear in Court to discuss the substantive issues of having left Sri Lanka.

27    The issue as to whether SZTQS would suffer significant harm by reason of an outstanding charge of trying to leave Sri Lanka illegally and without permission was raised by SZTQS in his visa application. The delegate considered and made findings in rejecting that claim.

28    Accordingly, SZTQS was on notice that an issue arising in relation to the decision under review was whether he would suffer significant harm on return to Sri Lanka by reason of his illegal departure (i.e. he knew that this was a matter that he had to address and persuade the Tribunal about if he wished to rely upon it), citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. By reason of the Tribunal hearing, at which SZTQS was legally represented and had the benefit of an interpreter, he was afforded an opportunity to give evidence and present arguments relating to that issue. On that basis alone, the Minister submitted, there was no breach of s 425.

29    Moreover, the Minister submitted, the constituent information that made up the substance of the issue, namely country information, was not required to be drawn to SZTQS’s attention by reason of s 424A(3)(a) (Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [91]).

30    The issue as to whether SZTQS would suffer significant harm on return to Sri Lanka by reason of his illegal departure was further drawn to his attention during the Tribunal hearing. The Tribunal was not strictly obliged under s 425 to adopt this course as SZTQS had notice of the issue by reason of the delegate’s decision rejecting his claim to have a fear that he would suffer significant harm on return to Sri Lanka by reason of his illegal departure. The Tribunal, by its reference to bail being routinely given, gave SZTQS a further opportunity of responding to that issue.

31    The Tribunal was not obliged to provide SZTQS with a running commentary on the evidence (SZBEL at [48]) or to set out every detail of its reasoning process (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909 (Applicant S154) at [54] per Gummow and Heydon JJ (Gleeson CJ agreeing) and at [85] to [86] per Kirby J). Nor was it obliged to put to SZTQS the nature of the case on which the Tribunal proposed to rely in contradiction to his case (Applicant S154 at [56] to [57] per Callinan J; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [265] to [266] per Hayne J); or a forewarning of all possible reasons for failure (Re Minister: Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J; applied in SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 (SZMUF) at [22] per Flick J).

32    In any event, even if the Tribunal was obliged to raise the possibility of SZTQS’s access to bail (which the Minister denied), this was more than adequately done, so contended the Minister.

Ground 3

33    The Court below found (at [65]) that the Tribunal’s conclusion that SZTQS had a family member with the ability to pay a surety was not obviously open on the known material. The Minister disputed that the Tribunal even made such a finding. However, he submitted that if such a finding was made, the primary judge erred in concluding that such a finding was not obviously open.

34    SZTQS’s own evidence was that his mother had previously paid his and had paid for his place on a boat leaving Sri Lanka for Australia; that his parents had financially supported him when he was unemployed; that he had paid for a fishing licence; and that his family had sources of income, including in Australia, aside from his income from fishing.

35    Further, the delegate had concluded that SZTQS had a family and support network in Udappu to which he would be returning and he was on notice that this was a possible view to be taken before he made his application for review to the Tribunal (SZBEL at [35]).

36    The Minister submitted that it was therefore open to the Tribunal to conclude that SZTQS’s family could pay surety for his release. Accordingly, any such conclusion was not a conclusion not obviously open on the known material (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 590-1).

SZTQS’s submissions in the appeal summarised

37    In broad terms, SZTQS made the following submissions concerning the Minister’s appeal.

Ground 1

38    The Tribunal’s statement in [46] of its reasons for decision regarding the issue of surety was not merely an observation as to the purport of the country information because:

(a)    the context in which the statement appears is not a mere recitation of country information and the Tribunal distinguished between making statements of matters of accepted fact as opposed to reported facts; and

(b)    if the Tribunal’s statement in [46] concerning the surety issue is to be seen as a description of the country information, the Tribunal accepted that information as accurate.

Grounds 2 and 4

39    SZTQS submitted that, in determining whether or not the primary judge erred in finding that s 425 had been breached, it was necessary to identify, for the purposes of that provision, the relevant “issue arising in relation to the decision under review” (citing SZBEL, SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (SZHKA) at [7] per Gray J, with whom Gyles J agreed, and Applicant S154). The issue as identified by the Minister, namely whether SZTQS would be harmed on return to Sri Lanka by reason of his breach of a domestic law concerning departure from Sri Lanka was stated too broadly. SZTQS submitted that the primary judge correctly described the issue as whether his family would be able to provide surety for him so as to obtain bail. Accordingly, this was a sufficient basis upon which to dismiss the Minister’s appeal.

Ground 3

40    SZTQS defended the primary judge’s conclusion that a member of his family would provide surety for him was a finding which was not reasonably open to be made by the Tribunal on the available material. He submitted that the material relied upon by the Minister in support of this contention was selective and ignored contrary evidence.

Resolution of the appeal

Ground 1

41    For the following reasons, I reject the Minister’s contention that it was not reasonably open to the primary judge on the evidence before her to find that a “crucial plank” in the Tribunal’s reasoning was that SZTQS would not be subjected to significant harm on return to Sri Lanka because a member of his family would provide surety for him.

42    It is convenient to set out relevant parts of [46] and [51] of the Tribunal’s reasons for decision because they are critical to the primary judge’s reasoning:

46.    Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available.

…

51.    Further, on the basis of independent sources referred to under “Unlawful departure”, and on the basis that the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (by boat and without a passport), the Tribunal is also satisfied that he will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities. The Tribunal is not satisfied that he has any adverse profile which will be revealed throughout or in connection with that process. The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates the applicant will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal considers that the prospect of the applicant being detained for a prolonged period of time to be remote.

43    The primary judge summarised the Tribunal’s chain of reasoning as follows:

(a)    the Tribunal accepted that SZTQS had left Sri Lanka illegally and it found at [46] that such persons are arrested at the airport and brought before a court to seek bail. The Tribunal found that bail “is routinely given on the accused’s own recognisance although a family member is also required to provide surety”;

(b)    the Tribunal found that SZTQS may be remanded in prison for a few days (and that the conditions he would face would be cramped, uncomfortable and unpleasant), but it accepted at [51] of its reasons for decision that returnees are only likely to be detained until they applied for bail, which is “routinely given”;

(c)    because SZTQS was unlikely to be given a custodial sentence for his illegal departure, the prospect of him being detained for a prolonged period was remote;

(d)    it was essential to the Tribunal’s reasoning that SZTQS would be granted bail and, therefore, not held for a prolonged period and, moreover, that bail would only be granted if a member of his family provided surety; and

(e)    neither the delegate nor the Tribunal raised the issue whether SZTQS had a family member who could and would provide surety.

44    These matters provide an adequate basis for the primary judge’s finding at [50] of her reasons for judgment to the effect that the Tribunal’s reasons “clearly show that the conclusion that the applicant would be granted bail was based on the RRT’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant”. Thus, applying SZBEL, her Honour found that the Tribunal had fallen into jurisdictional error by failing to identify this issue and invite SZTQS’s comments.

45    It is necessarily implicit in the primary judge’s conclusion in [45] of her Honour’s reasons for judgment that a “crucial plank” in the Tribunal’s reasoning was its earlier finding that a member of SZTQS’s family would provide surety for him and that he would be bailed and, accordingly, not be detained for long. I am not satisfied that the Minister has established appellable error. Having regard to the terms of the Tribunal’s reasons for decision in [46] and [51], I consider that no error has been demonstrated in the primary judge’s conclusion that the Tribunal made a finding that a member of SZTQS’s family would provide surety for him and that, accordingly, he would only be detained for a short period.

46    For these reasons, ground 1 is rejected.

Grounds 2 and 4

47    The central issue raised by ground 2 of the appeal is whether the primary judge erred in identifying, for the purposes of s 425(1) of the Act, that an issue arising in relation to the decision under review was whether SZTQS’s family would be able to provide surety for him in order that he may obtain bail.

48    As noted above, the Minister described the relevant issue in broader terms, namely whether SZTQS would be harmed on return to Sri Lanka by reason of his contravention of a domestic law concerning departure from Sri Lanka. The distinction between the competing descriptions of the relevant “issue” is important, not the least because the issue as described by the primary judge was not raised by the delegate, whereas the broader issue as described by the Minister was. As will shortly emerge, this has significant implications for the application of the principles established in SZBEL.

49    In SZBEL, the applicant claimed to have jumped ship in Australia from an Iranian vessel “because the Iranian authorities had come to know of his interest and involvement in the Christian religion and he was in fear of punishment” (at [18]). The Tribunal did not accept that this claim was credible for three reasons. First, the applicant’s account of the basis upon which his ship’s captain came to believe that the applicant was involved in Christianity was said to be implausible. Secondly, the Tribunal regarded it as implausible, in the circumstances of the case, that the captain would have accused the applicant of apostasy or involvement in Christianity. Thirdly, that the applicant’s freedom of movement when the ship was in dock was said to belie his claim that the crew considered him a criminal and that the captain intended to hand him to the authorities on return to Iran. Considered collectively, these three points led the Tribunal to reject the applicant’s claim that the captain was planning to hand him to the authorities because of his religious inclinations.

50    The High Court held that accounts of “how his ship’s captain came to know of his interest in Christianity, and…the captain’s reaction to that knowledge” were live issues and that, because nothing was said by the Tribunal to reveal this to SZBEL, SZBEL would “have understood the central and determinative question on the review to be the nature and extent of his Christian commitment” (at [42] to [43]). Significantly, as the High Court emphasised in [43], the delegate had not based his decision on either of these matters and, absent an identification by the Tribunal of these matters constituting issues arising in its review, the applicant was entitled to assume that the issues in the review were the same as those before the delegate:

The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.

51    The Tribunal’s failure to give SZBEL sufficient opportunity “to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” meant that the Tribunal fell into jurisdictional error (at [44] to [45]).

52    SZTQS submitted that identifying the issue in the present case as whether he faced harm by reason of his illegal departure from Sri Lanka was akin to identifying the issue in SZBEL as whether SZBEL was in fear of harm because the Iranian authorities had come to know of his interest in Christianity. I accept that, consistently with SZBEL, it is necessary to identify the issue in the present case with greater particularity. In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL’s claim (see at [20]).

53    Further guidance as to the approach to be taken under s 425(1) when identifying “the issues arising in relation to the decision under review” can be gained from the judgment of Gray J, with whom Gyles J generally agreed, in SZHKA. At [7], Gray J said:

… because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant's case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the tribunal, and will therefore be shaped by that person’s thought processes.

54    Justice Gray clarified at [7] that this did not mean that the Tribunal had to expose all of its thought processes to the applicant.

55    I accept SZTQS’s submission that Applicant S154 is distinguishable. The applicant there appeared before the Tribunal and it made a decision adverse to her that was ultimately quashed by the Federal Court. At her second Tribunal hearing, the applicant claimed, for the first time, to have been raped. The applicant had a psychological report in support of her claims for protection, but the report did not include any reference to the applicant having been raped. As part of its reasoning in rejecting this claim, the Tribunal relied on the absence of any reference to rape in the psychologist’s report.

56    Justices Gummow and Heydon (with whom Gleeson CJ agreed), noted at [49] to [50] that the Tribunal had made it known to the applicant that a difficulty it perceived with the rape claim was that the claim was being advanced for the first time, and that the applicant had not made any earlier complaint about the rape to the first Tribunal, or police, or through lawyers or “more senior authorities”. The applicant was well aware that her psychologist’s report was silent on the matter of rape. Although the applicant had attempted to explain her failure to make an earlier complaint about the rape, she said nothing to explain the silence on this matter in the psychologist’s report. It was thus open to the Tribunal to use the silence of the report to draw inferences that the psychologist had not been told about the rape, and that this was because the rape had not happened (see at [52]). Importantly, these inferences “were of the same kind” as the inferences to be drawn from the applicant’s failure to raise the rape claim prior to the second hearing before the Tribunal (see at [53]).

57    The applicant in Applicant S154 was thus sufficiently on notice as to the possibility that the psychologist’s report would be used by the Tribunal in the manner it ultimately did. The Tribunal’s reasoning process could not have taken the applicant there by surprise.

58    That is not the case here. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.

59    Nor does SZMUF assist the Minister’s case. As Flick J stated there at [22]:

Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard.

60    The question of whether a family member would provide surety for SZTQS was a crucial link in the Tribunal’s chain of reasoning, and was an issue that, in order to comply with s 425(1), the Tribunal had to identify to SZTQS. Ground 2 is rejected.

61    Ground 4 should also be rejected. It is predicated on a false premise, namely that the relevant issue for the purpose of s 425 was the likelihood that SZTQS would suffer significant harm upon his return to Sri Lanka should he be suspected of having departed Sri Lanka illegally. For reasons given above that is too broad a statement of the relevant issue. The relevant issue was more particular than that, namely whether or not SZTQS had a family member who would provide surety for him.

Ground 3

62    The relevant question is whether the primary judge erred in finding at [65] that the Tribunal’s conclusion that a family member would provide surety was one which “was not a conclusion that would obviously be open on the known material”.

63    In SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; (2013) 140 ALD 11 (SZQJH), Jagot, Robertson and Mortimer JJ stated at [34]:

In SZBEL at [29] and [49] the High Court recognised the content of the procedural fairness obligation in s 425(1) of the Act may, in a given case and on particular facts, extend to the greater level of specificity identified in Alphaone at FCR 592A… namely:

… to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

64    The appellant in SZQJH had provided to the decision-maker a document that might have supported his claim to have been arrested by the authorities in Sri Lanka. The document misspelled his name, and submissions were made on SZQJH’s behalf regarding the incorrect spelling. It was recognised by SZQJH’s solicitor that the decision-maker might doubt whether SZQJH was one of the people named in the document.

65    The Full Court held that, in the circumstances there, SZQJH could not succeed on an Alphaone analysis. SZQJH was aware that it was in issue whether the decision-maker might decide whether the document referred to him, and the weakness of the information in the document was obvious and recognised by his representatives when putting the document forward. As such, the adverse conclusion that he was not the person referred to in the document was “an obvious and natural evaluation of that material”.

66    In the present case, no submissions were made, or evidence provided, on SZTQS’s behalf regarding whether he had a family member who would provide surety for him, that matter not having been in issue before the delegate and not having been raised by the Tribunal. Unlike in SZQJH, the Minister did not rely on one particular document that, on an “obvious and natural evaluation”, led to the adverse conclusion that SZTQS had a family member who would provide surety. Rather, the Minister selectively referred to evidence that might tend to indicate wealth on the part of SZTQS’s family, whilst ignoring evidence that pointed to the contrary.

67    First, the Minister relied on evidence from SZTQS’s statement that his mother paid 2 lakhs (200,000 rupees) on 27 May 2012 for his bail, before he had left Sri Lanka. Yet that same statement by SZTQS indicates that, by leaving Sri Lanka to come to Australia, he would have “skipped” bail. Accordingly, this suggests that the 2 lakhs paid by his mother was forfeited.

68    Secondly, the Minister relied upon SZTQS’s mother having paid the majority of the money for his journey to Australia. But this overlooks the evidence that his mother did so by borrowing money and pawning her jewellery which suggests a shortage of funds, not an excess.

69    Thirdly, the Minister relied on evidence that, from April to June 2012, SZTQS was unemployed, living at home and being supported by his family. There is nothing in this evidence to show what level of financial support was being provided to SZTQS during this relatively brief period and, without anything specific of this nature, the evidence does not show an obvious ability to provide bail for SZTQS in the requisite amount, as opposed to helping him subsist.

70    Finally, the Minister relied on the following exchange between SZTQS and the Tribunal:

MEMBER: And other than fishing work, does your family have any other sources of Income?

INTERPRETER: My grandmother she ___ some money.

MEMBER: Where does she get money from?

INTERPRETER: One of her daughter, my aunty, she's living overseas.

MEMBER: Where?

…

INTERPRETER: … in Australia.

71    I accept SZTQS’s submission that this evidence is vague and non-conclusive on the subject of his family’s finances. It is not clear on the evidence before the Tribunal that the 2 lakhs (200,000 rupees) required to post bail would be available and forthcoming. Having regard to all the evidence which was before the Tribunal, no appellable error has been established concerning the primary judge’s finding in [65].

Cross-appeal

72    SZTQS raised the following two grounds in his cross-appeal:

1.    The Federal Circuit Court of Australia (Court) failed to accord the respondent procedural fairness in the making of the costs order in the proceedings below.

Particulars

(a)    in circumstances where the parties had agreed that the Court should make an order for costs as assessed or agreed, the Court:

i.    did not provide the respondent with sufficient time to prepare evidence and submissions on costs;

ii.    did not permit the respondent to make submissions as to why an order other than for costs in the scale should be made.

2.    The Court erred in approaching the question of costs on the basis that, if the parties had not agreed or could not agree on a fixed sum for costs, costs in the scale would be ordered.

Background to the cross-appeal

73    It is convenient to provide the background to this matter by summarising the transcript in the Court below after the primary judge published her reasons for judgment on 4 June 2015.

74    The primary judge took appearances. Ms Saunders, solicitor, appeared for the applicant. The Minister was represented by Ms Krishnan. Her Honour then announced her orders, granting SZTQS the primary relief sought in his judicial review application.

75    The following exchange then occurred:

MS SAUNDERS: We ask that order be made for costs as agreed. And if not able to come to agreement, for it to go to taxation to be assessed.

HER HONOUR: Well, there is a scale and I can make a fixed costs order in respect of the scale if you want.

MS SAUNDERS: We've spoken with the other side and they were happy to go as agreed.

76    SZTQS’s representative thereby communicated to the primary judge that the active parties were agreed as to the costs order that should be made: i.e. costs agreed, or as assessed if no agreement was reached. Despite that agreement, the primary judge ordered the parties to “agree costs now”:

HER HONOUR: Well, how is that to the benefit of anybody? You're going to have to have - you go out and agree costs now. I will stand the matter down and I will make a fixed costs order. I'm not going to have more costs being spent on this matter. Neither of you can go yet until I call the next matter. So sit down.

HER HONOUR: I will just excuse Ms Saunders and Ms Krishnan. Come back and mention the matter when you've got - - -

MS KRISHNAN: Certainly.

HER HONOUR: Decide what you're doing about costs.

(Emphasis added).

77    The transcript then records an adjournment of 41 minutes. Upon resuming, the following exchange occurred:

MS SAUNDERS: So, your Honour, we don't have the agreed costs as of yet. The reason being for that is that after we received notification about judgment yesterday in regards to this matter, there was correspondence between the parties to it agree (sic) to it being as agreed because the solicitor who has carriage of the matter for the respondent wasn't available. And then so we came to this agreement to allow time for, if the applicant did succeed today, to be - - -

HER HONOUR: No. Well, these orders are made today. I will order the scale amount. What was the relevant scale amount?

MS SAUNDERS: I believe it was---

MS KRISHNAN: If I could be of assistance, it was $6646.

HER HONOUR:

(4)    I order that the first respondent pay the costs of the applicant fixed in the amount of $6646 and I note the sum is (sic) accordance with the relevant costs schedule of this court.

MS KRISHNAN: As the court pleases.

78    This exchange reflects Ms Saunders informing her Honour as to the active parties’ agreement regarding costs. Her Honour interrupted Ms Saunders, who was in the process of explaining to the Court why the active parties had agreed that costs should be awarded as assessed or agreed. Her Honour then ordered that costs be the scale amount.

79    The primary judge then inquired as to the relevant scale amount, was informed of that amount, and ordered the Minister to pay SZTQS’s costs fixed in the scale amount of $6,646. The time from the resumption of the proceedings until the costs order was made and the matter was adjourned was two minutes.

80    In the cross-appeal, SZTQS relied on an affidavit sworn by his solicitor, Mr Varess (the Varess affidavit). The Varess affidavit annexed the transcript in the FCCA concerning costs, as well as a copy of another affidavit which Mr Varess had prepared shortly after the FCCA made its costs order, but which was not filed in the FCCA. Mr Varess deposed in his earlier affidavit that the applicant’s total costs in the FCCA proceeding were $35,122.73 and that, if costs had been assessed, he expected as an experienced solicitor that his client would have recovered costs in an amount somewhere between approximately $22,000 and $25,500.

SZTQS’s submissions on the cross-appeal summarised

81    SZTQS’s submissions on the two grounds of his cross-appeal may be summarised as follows.

Ground 1 - denial of procedural fairness

82    Whilst acknowledging that the FCCA had a discretion under s 79 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) in relation to costs, SZTQS submitted that the discretion was subject to the Federal Circuit Court Rules 2001 (Cth) (the FCCA Rules) and also had to be exercised judicially, which included an obligation to accord procedural fairness to the parties. It was submitted that the primary judge failed to provide SZTQS with a reasonable opportunity to present evidence and to make submissions on the issue of costs, contrary to the Full Court’s decision in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 (Shrestha). Emphasis was placed upon the fact that the parties had reached a prior agreement as to the appropriate costs order if SZTQS succeeded in the proceeding, however, the primary judge effectively imposed her own view as to the appropriate costs order without affording procedural fairness to SZTQS.

Ground 2 – miscarriage of discretion as to costs

83    SZTQS submitted that r 21.10 of the FCCA Rules was relevant. The primary judge did not explain the reasons why she considered that only a fixed sum for costs at scale was appropriate. She was obliged to take into account all relevant circumstances in the exercise of her discretion. SZTQS also emphasised the “significant practical difficulties” created by the primary judge’s insistence that there be a fixed sum of costs, not the least being that parties may be discouraged from seeking to agree an amount knowing that the default position is that costs will be awarded according to the scale.

Minister’s submissions on the cross-appeal summarised

Ground 1

84    From the date of the hearing below (17 April 2015), SZTQS’s solicitors must have been aware of the amount of their costs and disbursements, which were well above that of the scale in the FCCA Rules applicable to migration matters.

85    SZTQS was given notice at 2.55 pm on 3 June 2015 that judgment was to be handed down at 9.30 am on 4 June 2015. An ordinary incident of judgment, particularly in small matters, is an order as to costs.

86    The FCCA may, in relation to a migration proceeding that is concluded, order that an unsuccessful party pay fixed costs to a successful party (FCCA Rules r 44.15(1), Sch 1 Pt 3).

87    SZTQS, who appeared by a solicitor, must have been aware that to the extent that he wished to make submissions on costs he would need to be prepared to do so after judgment was published.

88    SZTQS, through his legal representative, made submissions as to costs but did not indicate the magnitude of the costs order sought in order to justify the form of costs order sought. That is, no submission was made to the effect that the scale fees applicable to migration matters would be unjust (identifying why a sum that was a significant multiple of that scale amount was to be sought). No adjournment was sought, notwithstanding that the matter was stood down for the parties to agree an appropriate sum for costs but were unable to do so.

89    The Minister submitted that the FCCA afforded SZTQS a reasonable opportunity to appear and present his case as to costs. It was not necessary, nor ordinarily an incident of judgment in migration matters, that the FCCA adjourns to allow parties time to prepare evidence in support of a costs submission. In any event, absent an application for an adjournment, the failure to adjourn did not constitute a denial of procedural fairness.

90    Shrestha is not authority for the proposition that an adjournment should have been granted to allow SZTQS time to present evidence in support of the costs order sought. Shrestha concerned an application for prerogative writ style relief that was summarily dismissed at the first return date. Mr Shrestha was denied the opportunity of tendering transcript evidence in support of his grounds of judicial review and thereby effectively denied an opportunity to ventilate his grounds of review.

91    No such opportunity was denied in the present case. SZTQS had ample opportunity to prepare a bill of costs or similar material to tender at the judgment.

92    Here, the issues were simple, the evidence brief and the hearing time less than half a day. It was reasonable for the FCCA to proceed as it did and that could not or should not have surprised SZTQS.

93    That the Minister’s representatives had agreed to the form of the costs order does not provide a basis for SZTQS to assume that the Court would exercise its discretion as to costs by making an order in that form. The relief is discretionary and the parties cannot assume that a Court will exercise its discretion in any particular manner: similarly, parties cannot assume that a Court will vacate a hearing simply because they agree to it.

94    SZTQS advanced no material (other than the agreed form of order) to justify the order he sought. He was not prepared to persuade the Court to exercise the discretion in the way desired. It was open to the Court to favour the making of an order in a specified amount: it made this preference clear and gave an opportunity for the parties to discuss the matter further.

95    After a sizable period for discussion (which would have allowed taking further instructions), nothing more was said but that the parties could not agree at that time and still wanted the costs order in the form sought. Her Honour was not bound to accept that submission and, in the circumstances, did not err or deny SZTQS procedural fairness.

Ground 2

96    The costs discretion in a migration proceeding is subject to r 44.15 of the FCCA Rules, which relevantly provides:

44.15     Costs

(1)    The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1.

…

(5)    This rule does not limit a party's right to apply, under Part 21, for an order as to costs of the application.

97    There was no evidence below of SZTQS’s actual costs and disbursement. It was therefore open for the Court to consider that the migration scale costs would indemnify SZTQS in the context of an application in which only one ground of judicial review was pressed at a half day hearing.

98    SZTQS has not identified any wrong principle, extraneous or irrelevant matter, mistaken fact or failure to take into account a relevant consideration that actuated the Court’s exercise of discretion to apply r 44.15(1) (House v R [1936] HCA 40; (1936) 55 CLR 499 (House v R) at 504-5 per Dixon, Evatt and McTiernan JJ).

Resolution of the cross-appeal

Ground 1 – denial of procedural fairness

99    Procedural fairness is a defining or immutable characteristic of Australian courts and requires that the parties be heard (Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 (Condon) at [67] and [68] per French CJ and at [177] and [194] per Gageler J). The obligation to accord procedural fairness applies to questions of costs as well as to substantive proceedings (Telstra Corporation Ltd v Barrow [1994] FCA 1141; (1994) 19 AAR 532 at [68] per Carr J).

100    Under s 79 of the FCCA Act, the primary judge had a discretion to award costs, subject to the FCCA Rules.

101    The costs discretion must be exercised judicially (Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84 (Howards Storage) at [58]). In exercising this discretion judicially, it is important to bear in mind that “the justification for the general principle that costs follow the event” is that the “primary purpose of an award of costs is to indemnify the successful party” (Howards Storage at [61], referring to McHugh J’s judgment in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [97]).

102    Procedural fairness required that SZTQS be given a reasonable opportunity to present evidence and to make submissions on the question of costs.

103    It is apparent from the transcript that the primary judge was understandably concerned to avoid additional costs being incurred in this proceeding, which was relatively straightforward and uncomplicated. However, the discretion to award costs is subject to the requirements of procedural fairness. I consider that SZTQS did not have a reasonable opportunity to put before her Honour:

(a)    submissions as to why that Court should not take the course that it did; or

(b)    evidence such as that contained in the Varess affidavit which would have been relied upon had SZTQS been given that opportunity and which would have established that SZTQS’s total costs were $35,122.73 and well above the scale costs.

104    Here, the active parties had agreed on the costs order that should be made. SZTQS’s legal representative would not have expected the primary judge to refuse to make that order, and, after briefly adjourning the proceeding, to deny SZTQS the opportunity to make submissions or adduce evidence as to why costs in the scale was not an appropriate order.

105    I reject the Minister’s submission that SZTQS should have prepared in advance a bill of costs or similar material to tender on the day. That proposition is at odds with the fact here that the parties had reached an agreement as to what order for costs should be made. While such an agreement would be a highly relevant matter, it may be accepted that, ultimately, the Court must determine what is an appropriate order for costs. But if the Court wished to make an order which was contrary to the agreement reached by the parties, procedural fairness obliged it to provide the parties with a reasonable opportunity to make submissions and, possibly, adduce evidence in support of their respective positions. That did not occur here. As the transcript reveals, the primary judge stated unequivocally that she would make a fixed costs order because she would not countenance any more costs being spent on the matter. The parties were directed to agree costs. Their attempts to do so during the adjournment were unsuccessful. In the course of endeavouring to explain to the primary judge why that was so, SZTQS’s solicitor was cut off and the primary judge ruled peremptorily that costs in the scale amount had to be paid by the first respondent.

106    The manner in which this ruling was made gave SZTQS no meaningful opportunity to seek a further adjournment, to make meaningful submissions on whether or not costs in the scale amount should be ordered or to adduce evidence to demonstrate how his actual costs far exceeded the scale amount.

107    I am satisfied that in the particular and somewhat unusual circumstances of this case there was procedural unfairness.

108    In his notice of cross-appeal, SZTQS did not seek an order that the issue of costs be remitted for reconsideration. Rather, he sought an order which set aside the primary judge’s order as to costs and substituted an order that the Minister should pay his costs of the FCCA proceeding as assessed or agreed. The Minister did not oppose an order in these terms. Such an order would reflect the terms of the parties’ agreement below. I am satisfied that this is an appropriate order to make in the particular circumstances of this case.

Ground 2 - miscarriage of discretion as to costs

109    Strictly speaking, it is unnecessary to determine this separate ground because ground 1 has been upheld. Both parties having argued the matter, however, I can indicate that I consider that there is some force in the Minister’s submission that SZTQS has not established any error in the primary judge’s exercise of discretion within the meaning of the principles in House v R. The difficulty with the primary judge’s order as to costs lies not with its substantive content, but rather in the process which preceded the making of that order.

Conclusion

110    For these reasons, the appeal should be dismissed and the cross-appeal upheld. No reason was given as to why costs of the appeal and the cross-appeal should not follow the event in both cases. Appropriate orders will be made accordingly, including in respect of the costs order made below.

Associate:

Dated:    2 October 2015