FEDERAL COURT OF AUSTRALIA

SZTSC v Minister for Immigration and Border Protection (No 2) [2017] FCA 1485

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent pay the appellant’s costs of and incidental to the appeal including the costs of these proceedings on the question of costs, and the first respondent pay the appellant’s costs of the proceeding before the Federal Circuit Court of Australia.

2.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with a question in relation to the costs arising out of orders made by the Court on 4 September 2017 and directions subsequently made concerning the question of costs. As to the orders made on 4 September 2017 and the reasons for judgment in support of those orders see SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032: the “principal judgment”. The principal judgment should be read together with these reasons.

2    On 4 September 2017, the Court made the following orders supported by reasons for judgment published on that day in an appeal to this Court by SZTSC from orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) made on 17 March 2016:

1.    The applicant/appellant is given leave to rely upon the amended notice of appeal filed on 10 August 2016 raising additional Grounds 2, 3 and 4.

2.    The orders of the Federal Circuit Court of Australia made on 17 March 2016 dismissing the applicant/appellant’s application to that Court and ordering the applicant/appellant to pay the costs of the first respondent fixed in an amount of $6,646.00 are set aside and in their place the constitutional writs of mandamus and certiorari issue quashing the decision of the Refugee Review Tribunal of 5 December 2013 and directing the questions in issue before that Tribunal (now the Administrative Appeals Tribunal) to be determined before the Administrative Appeals Tribunal according to law.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal and the appellant’s costs of the proceeding before the Federal Circuit Court of Australia.

3    As can be seen, by Order 3, the first respondent was ordered to pay the appellant’s costs of and incidental to the appeal and the appellant’s costs of the proceeding before the Federal Circuit Court.

4    On 12 September 2017, the solicitor for the Minister for Immigration and Border Protection sent an email to the Court in which the following observation was made:

In the First Respondent’s submissions filed on 18 August 2016, the First Respondent submitted that if the Appellant was successful on any of the new grounds raised in this proceeding, the costs orders made in the proceedings below ought remain undisturbed. That submission was made in circumstances where the Appellant’s new grounds had not been raised before the Federal Circuit Court. His Honour’s reasons for judgment do not address the First Respondent’s submissions on costs in this regard. In the circumstances set out above, we are instructed to ask whether the orders made on 4 September 2017 as they relate to the costs of the Federal Circuit Court accurately reflect the intention of the Court and, if not, whether the order ought be varied (pursuant to Rule 39.05(e) or (h) of the Federal Court Rules 2011 (Cth)).

5    On 12 September 2017, the Court responded to that email by advising the appellant in these terms:

His Honour will consider the matter raised by the solicitors for the Minister and invites the solicitor for the appellant to say anything in relation to this matter, should Mr McLoughlin wish to do so. His Honour will consider the matter upon receipt of any response, to this email, from the appellant’s solicitor.

6    On 20 September 2017, the solicitor for the appellant responded in these terms:

The appellant submits that neither subparagraph (e) or (h) of the rule is seemingly engaged in the circumstances. The Respondent is aggrieved by the costs order having been made despite submissions having been made to the contrary. The mere fact of non acceptance of a submission is not a basis to contend that an order does not reflect the intention of the court or is a slip. In any event, the application made via email is incorrect to the extent it implicitly suggests that only a fresh or “new” ground was successful in the appeal proceedings. A fair reading of para [77] to [78] of Greenwood J’s judgment leads to the conclusion that His Honour also upheld ground 1, which related to the failure by the court to uphold the ground that had been pursued before the Federal Circuit Court in respect of the amputee status of the appellant (see para [104] of the FCC decision). The appellant suggests that the costs decision was reasonable, and indeed the only appropriate order in the circumstances, and if the Minister takes issue with it the appropriate recourse is an appeal.

7    On 21 September 2017, the Court advised the parties that Greenwood J proposed to vacate the costs order of 4 September 2017. The parties were directed to put on short written submissions in relation to costs, both before the primary judge and also on appeal, within seven days. The appellant raised a question about the basis for the order vacating the costs order of 4 September 2017 and the Court advised the parties in these terms:

That order was made having regard to the proposition put by the solicitors for the Minister that the exposed reasons do not address the Minister’s submissions in relation to costs. Having regard to that matter, Justice Greenwood took the view that it was appropriate for the parties to be heard expressly on the question of costs by putting on short written submissions. Thus as an exercise of the appellate jurisdiction pursuant to s 30BA(1)(b) of the Federal Court of Australia Act 1976, the Court elected to take such action as it considered appropriate in all the circumstances in relation to the question of costs, by vacating that part of the earlier orders and directing the parties to put on short submissions as to costs. As to the question of the practice and procedure to be adopted in putting on short submissions as to that part of the proceeding concerning costs, s 37P(2) provides for the giving of directions in relation to a proceeding or any part of the proceeding which, of course, includes an appeal.

8    Accordingly, the appellant and the first respondent each filed submissions on 29 September 2017 and the appellant put on submissions in reply on 4 October 2017.

9    In the proceedings before this Court, the appellant filed a notice of appeal from the decision of the Federal Circuit Court on 7 April 2016 in which the only ground relied upon by the appellant was this:

The Court fell into jurisdictional error in not considering an integer of the Applicant/Appellant’s claim in respect [of] being an amputee.

10    On 10 August 2016, the appellant filed an amended notice of appeal in which the appellant continued to rely upon that ground but also sought to rely upon three additional grounds.

11    The first additional ground (Ground 2) was concerned with contended issues going to the standard of the interpreting services provided at the Tribunal.

12    The second additional ground (Ground 3) was concerned with the Tribunal’s contended failure to properly address integers of the appellant’s claim related to his status and individual circumstances as a “Hazara Shia”. This ground was concerned with a contention that the Tribunal had made a series of “clearly wrong and/or transposed factual findings” when considering the appellant’s claims relating to his status as a “Hazara Shia”. As to the matters said to be “clearly wrong and/or transposed factual findings” see the discussion at [24]-[30] of the principal judgment.

13    The third additional ground (Ground 4) was also concerned with a contention that the Tribunal had made unreasonable, irrational and/or clearly wrong factual findings in considering the evidence of the appellant and the integer of the appellant’s claim that related to his status and individual circumstances as a “Hazara Shia”.

14    In the course of the argument before this Court, the appellant’s counsel treated Grounds 3 and 4 of the amended notice of appeal (which were the second and third additional matters mentioned above), together as one additional ground.

15    A threshold question was whether the appellant ought to be given leave to rely upon the amended notice of appeal filed on 10 August 2016 raising additional Grounds 2, 3 and 4. Thus, it was necessary for the appellant to apply for leave to rely upon the amended notice of appeal. That question, itself, engaged a question of whether there was “clear merit” in any of the grounds sought to be relied upon by leave.

16    In the principal judgment, the Court considered the findings of the Tribunal which suggested that there had been clear factual errors in the reasoning of the Tribunal which informed its decision-making. At [68]-[71], the Court made these observations concerning the contention that the Tribunal had taken into account factual matters which were clearly wrong in reaching its decision:

68    At para 68, the Tribunal then considers the “individual circumstances” of the appellant consistent with its observation at para 67 of an obligation to do so. In this paragraph, the Tribunal makes the factual observations quoted at [24] and [26] of these reasons, which do not relate to the individual circumstances of the appellant. Further incorrect factual observations are made at para 68, quoted at [28] of these reasons, and, importantly, the Tribunal observes that those matters “support” the findings of the Tribunal. In other words, the errors were material to the decision.

69    I am satisfied that the Tribunal has reached a conclusion that it cannot be satisfied that the appellant has a well-founded fear of persecution as a Hazara Shia should he return to Afghanistan, on the basis of incorrect facts entirely unrelated to the “individual circumstances” of the appellant in circumstances where those incorrect facts were material to the decision reached by the Tribunal (because it says those facts support its findings). Similarly, I am satisfied that on the basis of incorrect facts entirely unrelated to the individual circumstances of the appellant and material to the decision, the Tribunal has reached a conclusion that it cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm, and thus Australia does not owe protection obligations to the appellant.

70    In proceeding in this way, the Tribunal has failed to discharge the statutory review function required of it and has fallen into jurisdictional error. Sometimes, this is said to be a “constructive failure” to discharge the review function. However, that term is inappropriate because, in these circumstances, there is an actual failure to discharge the statutory review function and thus jurisdictional error arises.

71    Accordingly, I am satisfied that appeal Ground 3 has “clear merit”.

17    Ground 3, of course, for the reasons mentioned at [14] of these reasons, was considered together with Ground 4 as a single ground.

18    At [69] of the principal judgment, as quoted above, the Court was satisfied that the Tribunal had reached its conclusion as to the appellant’s well-founded fear of persecution (the s 36(2)(a) claim), on the basis of incorrect facts entirely unrelated to the actual “individual circumstances” of the appellant and those facts were material to the decision. The Court was also satisfied that the Tribunal had reached its conclusion that it could not be satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there subsisted a real risk that the appellant would suffer significant harm (the s 36(2)(aa) claim), on the basis of incorrect facts entirely unrelated to the individual circumstances of the appellant in circumstances where those matters were material to the decision.

19    That being so, the Tribunal failed to discharge the statutory review function required of it and thus the Tribunal fell into jurisdictional error.

20    As already mentioned, Ground 1 of the appeal asserted in an imprecise way that the Tribunal (albeit that the ground refers to the Federal Circuit Court’s decision) fell into jurisdictional error in “not considering” an integer of the appellant’s claim “in respect [of] being an amputee”. That ground asserted that the relevant integer was the physical circumstances of the appellant being an amputee, when considering the claims made by the appellant under s 36(2) of the Migration Act 1958 (Cth). As to the question of the physical injury suffered by the appellant, the Tribunal accepted that the appellant had suffered a very serious injury “19 years ago” in which “his leg was amputated when he was hit by a bomb during fighting in Kabul between the Taliban and the Mujahadin”. However, because that event occurred a long time ago, it seemed to the Tribunal “remote” that a similar incident would happen again. At [72] of the principal judgment, the Court notes that the Tribunal had accepted that there were “mines” in Behsud. The Tribunal had also accepted that, although “remote”, injury to the appellant’s family from such mines “could occur to them”. As to Kabul, the Tribunal found, having regard to country information, that the chance of the appellant being “severely harmed” or “significantly harmed” in Kabul in a manner in which he was injured in the mid-1990s, to be remote. At para 70, the Tribunal found that the appellant did not face a “real chance” of persecution from the Taliban or any other group for a Convention reason “now or in the reasonably foreseeable future” in Kabul: a claim based upon s 36(2)(a).

21    At [74] of the principal judgment, the Court made this observation:

Also, at para 70, the Tribunal said this:

Considering the evidence overall, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the [applicant] being removed to Afghanistan that there is a real risk he will suffer significant harm in Kabul.

22    In quoting that paragraph in the principal judgment, the Court gave emphasis to the words “[c]onsidering the evidence overall”. The Tribunal’s finding that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed to Afghanistan there subsisted a real risk the appellant would suffer significant harm in Kabul, was said to be based upon a consideration of “the evidence overall” and that evidence included reliance upon the incorrect facts which had been recited at para 68 of the Tribunal’s reasons. At [76] of the principal judgment, the Court accepted that when the Tribunal considered, or said that it considered, the “individual circumstances” of the appellant (having regard to the factual inquiry the Tribunal was purporting to conduct including the erroneous facts), the Tribunal did not take into account the circumstances of the appellant as an amputee reliant for mobility on a prosthetic limb attached below the knee. In other words, the Tribunal reached its conclusions having regard to its analysis of “the evidence overall” concerning the facts and the “individual circumstances” of the appellant but, in its reasoning, took into account incorrect facts and did not take into account the “individual circumstances” of the appellant as an amputee reliant for his mobility on a prosthetic limb attached below the knee.

23    At [78] of the principal judgment, the Court notes that the Tribunal had recited as one fact in the course of its narrative of the events and evidence that the appellant had been injured by a mine and had lost his left leg from the knee down in 1995 during the civil war. The Court noted that the Tribunal had described that injury as a “very serious” one. The Court also accepted at [78] that no “obvious or expressly identified claim” had been made before the Tribunal “that the appellant’s disability made him vulnerable either to serious harm or significant harm within the complementary protection criterion”. The Court then made this observation at [78] of the principal judgment:

… However, it seems to me, that there is enough material before the Tribunal to warrant the Tribunal considering in its reasoning the implications of the appellant having suffered a very serious injury and being reliant for his mobility in protecting himself, upon a prosthetic leg. I cannot see that consideration weighed in the reasoning leading to the Tribunal’s conclusions.

24    In other words, the Court was observing that there was enough evidence before the Tribunal to require the Tribunal to take into account in its reasoning, the implications for the appellant of having suffered a “very serious” injury which resulted in his being reliant for his mobility upon a prosthetic leg from the knee down in protecting himself, and in responding to threats of either “serious harm” or “significant harm”. The Court observed that that consideration could not be seen weighed in the reasoning leading to the Tribunal’s conclusions.

25    In making these observations, the Court called into question whether the Tribunal had failed to take into account facts made relevant by the statute to the claims made under the statute. The Court did not find it necessary to take that matter further because the Tribunal had plainly fallen into jurisdictional error by reaching its decision in reliance upon incorrect facts.

26    Before the Federal Circuit Court, the appellant contended that the Tribunal had failed to deal with what were said to be the “full integers” of the claim made by the appellant in that the Tribunal failed to take “into consideration”, as part of the appellant’s “individual circumstances”, the appellant’s particular disability as an amputee reliant for mobility upon a prosthetic leg from the knee. The Federal Circuit Court at [104] of that Court’s reasons (quoted at [77] of the principal judgment), considered that the evidence before the Tribunal was not such as to “raise a claim” that the appellant’s “acknowledged disability” made him “vulnerable” either to “serious harm” or “significant harm”. This Court found that there was sufficient material before the Tribunal, in the evidence, to warrant the Tribunal considering, in its reasoning, the implications for the appellant of having suffered such a serious injury which rendered him reliant for his mobility, in protecting himself, upon a prosthetic leg. The uncontested factual circumstance that the appellant had suffered such an injury and was reliant as an amputee upon a prosthetic limb, made it necessary for the Tribunal to consider the implications of those uncontested facts on the question of the appellant’s “vulnerability” to either “serious harm” or “significant harm”. That was the matter not taken into account.

27    Before this Court, the question was alive.

28    The Minister contended, as to Ground 1, that the contended failure of the Tribunal to take into account the circumstance that the appellant may or may not have been vulnerable to either serious harm or significant harm due to his physical disability and his dependence upon a prosthetic limb, proceeded from a false premise. The false premise was said to be that “people who are born [without a limb] or have lost a limb, are necessarily more vulnerable and less capable than other people”. The Minister, before this Court, did not accept that to treat such a person as “equal to an able bodied person” was a failure “to properly consider the appellant’s claim in [a] ‘most obvious and material way’”.

29    However, the real question was the failure by the Tribunal to weigh, on the question of vulnerability, all the relevant “individual circumstances” of the appellant which included the question of whether the appellant may or may not have been vulnerable to serious harm or significant harm by reason of his physical circumstances.

30    Minds might differ about whether such a person is vulnerable by reason of those physical circumstances. The appellant says that the Minister’s submission that “amputees in Afghanistan are not generally more vulnerable is so devoid of merit as to suggest that the ground really ought to have been conceded”. Whether that is so is not the question. The issue is that the Tribunal of fact ought to have taken into account the physical circumstances of the appellant because those circumstances were relevant to the question in issue and the Tribunal said, itself, that it was necessary to take into account the appellant’s individual circumstances. That being so, one of those circumstances was the appellant’s physical circumstances.

31    As to the costs of the appeal, the appellant ought to have the costs. I reject the proposition that the appellant ought to have those costs on an indemnity basis. However, even though the ground expressly related to the Tribunal having fallen into jurisdictional error by reason of having taken into account incorrect facts entirely irrelevant to the circumstances of the appellant (as described at [24] to [30] of the principal judgment) was raised by leave, once that ground was raised by the amended notice of appeal (leave to amend being likely), there really was only one likely outcome. As to the costs before the Federal Circuit Court, I remain satisfied that the appellant ought to have the costs before that Court having regard to the Tribunal’s failure to take into account the physical circumstances of the appellant in reaching its conclusion.

32    Accordingly, the orders will be that the first respondent pay the appellant’s costs of and incidental to the appeal including the costs of these proceedings on the question of costs and the first respondent pay the appellant’s costs of the proceeding before the Federal Circuit Court of Australia.

Associate:

Dated:    7 December 2017