FEDERAL COURT OF AUSTRALIA

AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 made in the court below be set aside.

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

REASONS FOR JUDGMENT

KERR J:

1    In AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244 (the principal decision) the Court gave leave to the Appellant to rely on a ground of appeal which had not been pressed before the primary judge.

2    AJQ16’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) had been dismissed by a judge of the Federal Circuit Court of Australia. He was ordered to pay the First Respondent’s (the Minister) costs of that application in the sum of $7,206.

3    In this Court, the Appellant did not seek to challenge the factual findings made by the Tribunal. The proposed grounds of appeal which he sought leave to rely on were confined to putting in issue whether, on the facts found, the Tribunal had failed to discharge its statutory obligation to review the decision of a delegate of the Minister in refusing the Appellant a Protection (Class XA) visa.

4    The Minister confined his opposition to the grant of leave to the argument that the proposed ground lacks merit. The Minister accepted that consideration of merit might properly be addressed upon hearing the appeal on the premise that leave might be given.

5    The Court granted leave. Its reasons for doing so appear at [3] to [10] of the principal decision. I incorporate them by reference.

6     Ground 1(c) in relation to the issue of complementary protection succeeded. The Court held:

56    Given that the Tribunal had accepted that the violence the Appellant had been subjected to was undertaken by persons within the Sri Lankan military and that he had fled, those circumstances gave rise to an obligation on the part of the Tribunal to give proper, genuine and realistic consideration to that integer of the Appellant’s claims as was apparent on the materials before it.

57    In that regard, the reasoning process of the Tribunal as recorded in its decision reveal that it failed to do so. In those circumstances the statutory task of the Tribunal remained incomplete.

7    The Tribunal also had not completed its task of evaluating the possibility of the Appellant’s relocation. The Court’s conclusions in that regard were as follows:

65    I therefore accept the Appellant’s submission that the assessment made by the Tribunal as to whether the Appellant might safely relocate within Sri Lanka having regard to his claims for complementary protection was effectively conducted in a vacuum. Counsel for the Minister did not submit that the Tribunal was entitled to proceed on an unstated finding that the reach of the Sri Lankan Army or the element thereof which had caused the Appellant harm in June 2012 might not extend to all parts of Sri Lanka.

66    The Tribunal considered matters such as whether the Appellant could expect to be harmed by local Sinhalese if he relocated to another majority Tamil area, but, as counsel for the Appellant submitted, its reasoning did not engage with the very harm that the Appellant claimed to fear. It failed therefore to give proper, genuine or realistic consideration to that integer of the Appellant’s claims.

8    In relation to costs the Court concluded:

69    Having regard to the conventional principles, the Appellant should have his costs of this appeal. However, given that AJQ16’s appeal has succeeded on a ground not advanced in the court below, the parties should be given an opportunity to make submissions as to whether, in those circumstances, the order made by the FCCA in favour of the Minister for costs in the court below should be disturbed.

9    The Court made orders accordingly.

10    Each party was given leave to file and serve written submissions with respect to the costs order made in the court below. The Minister submits that the orders made in the court below should not be disturbed.

11    The Minister submitted as follows:

6    The Minister submits that, in the present circumstances, the Court should depart from the ordinary rule on the basis that AJQ16 succeeded on a point not raised at first instance.

7    At first instance, the Minister incurred the usual costs associated with defending a migration application and, upon the application being dismissed, received an order for costs in the scale amount. The Minister acknowledges that AJQ16 was bit represented at first instance, but submits that he nonetheless incurred the usual costs of defending the application.

8    On appeal, AJQ16 was successful on a point not raised at first instance. Unlike the appellant in CHF16 v MIBP (No 2) FCAFC 215, AJQ16 cannot argue that the successful ground of review was in any way raised or adverted to at first instance. The Minister objected to AJQ16 raising the new ground in pre-hearing correspondence between the parties and again at the hearing. Despite the Minister’s objection, the Court granted leave for AJQ16 to raise the new ground, found that it was made out and ordered the Minister to pay AJQ16’s costs of the appeal.

9    The Minister submits that, in those circumstances, the Court should not disturb the primary costs order. The Minister’s costs in that court were properly incurred in defending an application that was not successful, and in circumstances where no error has been shown in the primary judge’s approach to the grounds actually put to that court.

    (Footnote omitted.)

12    AJQ16 submits that the appropriate order with respect to costs in the proceeding below is that that order be set aside and there be no order as to costs.

13    His submissions are as follows:

2    In the context of judicial review, that presumption follows the premise that an administrative decision that is affected by jurisdictional error is “a decision that lacks legal foundation and is properly regard, in law, as no decision at all.” The steps taken by an applicant for judicial review to reveal that the executive has exceeded the scope of its constitutional authority in making the decision are necessitated by the decision maker’s error and the Minister’s failure to concede that error at an early stage.

3    The Minister made no submissions during the hearing of the appeal that there were any exceptional circumstances to justify departing from the usual presumption relating to costs below in this case.

4    Even if the appellant should not be entitled to costs in the Federal Circuit Court as a consequence of failing to raise the ground of judicial review on which he succeeded on appeal, it does not follow that the Minister is entitled to costs of defending the unlawfully made decision in the Federal Circuit Court, which would be the consequence of leaving order 2 of the Federal Circuit Court undisturbed. The appropriate course is to set aside that order and in its place make no order as to the costs below.

5    It was open to the Minister to identify the jurisdictional error from the Tribunal’s decision record upon perusal of the decision when the application for judicial review was filed in the Federal Circuit Court and to agree to have the decision set aside by consent and remitted, as the Minister often does in cases where jurisdictional error is apparent. The Minister’s failure to take that course in the present case is the reason that the proceeding in the Federal Circuit Court was necessary.

6    Furthermore, in the circumstances of a model litigant responding to an application for judicial review by an unrepresented applicant with very limited English and no experience of the Australian court system, the Minister had a heightened duty to draw to the Federal Circuit Court’s attention the possible bases on which the Tribunal’s decision might be affected by jurisdictional error. The Court’s consideration of the lawfulness of the decision is not limited to the grounds formally pleaded by an unrepresented applicant.

7    The outcome of the present appeal was the result of this Court identifying a jurisdictional error in the Tribunal’s reasoning. The fact that the specific error on which the appellant succeeded had not been identified by the appellant before the Court below does not alter the fact that the Tribunal’s decision exceeded its power, was a legal nullity and should never have been defended by the Minister.

8    As the applicant was not legally represented below, he would not in any case expect to recover his costs of the proceeding below, other than the disbursement of the filing fee.

9    It follows that the appropriate order as to costs in the proceeding below is that order 2 of the Federal Circuit Court be set aside, and in its place, substitute that there be no order as to the costs of that proceeding.

    (Footnotes omitted.)

Consideration

14    To the extent that AJQ16’s submissions at [5] to [6] are to be understood as advancing the proposition that this Court should be critical of the conduct of counsel representing the Minister in the court below for having failed to identify the ground on which AJQ16 ultimately succeeded, and to have drawn it to the attention of the primary judge, I reject that proposition.

15    The primary judge was entitled to expect that counsel representing the Minister would accept the duties of counsel for a model litigant. It was entitled to expect that in proceedings undertaken by an unrepresented applicant involving serious consequences, counsel would draw the court’s attention to any more than colourably arguable unarticulated grounds of review that he or she was aware of.

16    However there is no evidence to suggest that counsel representing the Minister in the court below acted inconsistently with that expectation. Nor is there any reason for me to infer that there was any falling short on counsel’s part in that regard.

17    That counsel did not identify the error ultimately upheld in this Court does not justify the drawing of any such inference. The duty of counsel representing a model litigant is a high one. However it was no part of counsel’s duty to conduct the review applicant’s case. It was not counsel’s responsibility to search out and articulate to the court every possible unarticulated review ground that might be advanced on the then unrepresented applicant’s behalf.

18    Nor, as noted at [21] of the principal decision, is there any evidence that would justify criticism of the primary judge in having failed to identify the error ultimately established to have been made by the Tribunal. As Flick J noted in SZJOG v Minister for Immigration and Citizenship [2010] FCA 244 at [15] to [18], judges of the Federal Circuit Court have an unenviable task when a review applicant is unrepresented, but “it is not the function of the [Federal Circuit Court] or this Court to attempt to formulate a case that a litigant – if represented – may have pursued and to then proceed to resolve that case”. It is proper to expect a judge at first instance to assist in the correct resolution of a review but there are practical limits and a judge cannot descend into the arena. It is not the judicial task to be a proxy advocate for an unrepresented litigant. I respectfully adopt what Flick J said in those regards.

19    The ultimate outcome is now known, but only in hindsight could it be perceived as self-evident.

20    For that reason, I also reject any suggestion that the costs issue should be determined adversely to the Minister by reason of his conduct of the appeal. The mere fact that the ground of appeal for which leave was sought and granted was robustly resisted by the Minister is not, in my opinion, a sound basis to make an adverse order for costs.

21    This Court having upheld Ground 1(c) does not require the conclusion (as by inference is submitted for by AJQ16) that the Minister should have conceded the outcome before the hearing of this appeal. There is no evidence to suggest that the Minister pressed his resistance to the appeal despite knowing that the decision was vitiated by jurisdictional error. In the absence of any such evidence I infer the Minister was advised differently.

22    In these proceedings the Minister confined his opposition to leave being granted to contending that the proposed ground lacked merit. The Minister accepted that consideration of its merit might properly be addressed upon hearing the appeal on the premise that leave might be given. Taking such a position, notwithstanding the ground had not been advanced in the court below, in my opinion, was not inconsistent with the conduct of a model litigant.

23    However, putting aside any suggestion of disqualifying conduct on the part of the Minister or his counsel (as I do), the costs issue nonetheless falls to be determined on the basis that the primary judge erred in failing to find that the Tribunal had failed to discharge its statutory obligation of review.

24    The Minister’s submissions accept that in the ordinary course of events a successful appellant is to be awarded costs in both the appellate court and in the court below.

25    The Minister submits that this Court should depart from that ordinary rule because AJQ16 succeeded on a point not raised at first instance. As support for that proposition the Minister refers to Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 (Snedden). However Snedden was a case in which the successful appellant had been legally represented in the court below. The Full Court (Bennett, Flick and McKerracher JJ) observed:

2    …The respondent points out that the successful ground was raised before his Honour only at the end of oral argument and in the context that a significant ground of review was abandoned by the appellant only on the second day of the hearing before his Honour, with consequential waste of costs prior to that time. The successful ground was not the subject of oral argument before his Honour. It was not raised in his application for review of the Magistrate’s determination, nor in his detailed written submissions filed prior to the hearing. It was raised in oral submissions in reply and developed in written submissions filed after the hearing.

3    It is fair to say that the ground on which the appellant succeeded had to be “excavated” from the material before the primary judge. In particular, the appellant did not present this ground on the basis of a factor in the imposition of a sentence, as it was presented on the appeal, but as a failure to apply a mitigating factor after sentence to a person who did not fight for the Homeland Army in the war involving the Serbs of the Krajina area of the Republic of Croatia. We express no view on the availability of an extradition objection in those circumstances. It was not the basis of the decision in the appellant’s favour on appeal.

4    In those circumstances, and in the exercise of the discretion in the award of costs (s 43 of the Federal Court Act 1976 (Cth)), we refuse the appellant’s application for the costs of the hearing before the primary judge.

26    In my opinion, the circumstances that applied in Snedden were quite different from those before me. I regard Snedden as, at its highest, only peripherally relevant to my duty in this appeal to exercise my discretion to award costs judicially in accordance with established principle.

27    The Minister also cites Secure Parking (WA) Pty Ltd v Wilson (No 2) [2009] WASCA 78 in support of that contention, however in my view the circumstances in that case are so different from those before me as to not even warrant the description of being peripherally relevant.

28    The Minister’s references to authority include CHF16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 215, but I accept, as suggested by the text of the Minister’s footnote, that it also is to be distinguished.

29    I have therefore given attention to whether there might be more relevant cases. BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 (BCH17) is a recent decision in which the facts appear to be more closely analogous to those in these proceedings. BCH17 concerned an appeal brought by an applicant for a protection visa. He had been unrepresented in the Federal Circuit Court. His application for review was dismissed. He was successful in this Court in obtaining leave to advance a ground not raised in the court below. He succeeded. His Honour Rangiah J set aside the decision of the Federal Circuit Court, including its orders as to costs. The outcome in BCH17 was thus as submitted for by AJQ16 in these proceedings.

30    I do not ignore that in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 (which I cited in the principal decision as relevant to circumstances in which a party might be permitted to rely on a contended error not pressed in the court below, and in particular for the proposition that leave ought more liberally to be granted in the case of a vulnerable unrepresented appellant) Logan J proceeded on the basis that there was an agreement that the order for costs made in the court below would not be disturbed. Because the parties were agreed as to that outcome, his Honour was not required to make a determination. For that reason I do not regard that case as having applied a contrary principle with respect to the exercise of my discretion.

31    I accept that where a ground of appeal that was not contended for in the court below succeeds there may be a plenitude of circumstances in which a different conclusion might be called for. However, in the absence of any factor such as, but not limited to, unreasonable conduct on the successful appellant’s part, I am satisfied that the correct exercise of the Court’s costs discretion should coincide with the substantive outcome of the appeal, as it did in BCH17. Save for the circumstance that the then unrepresented Appellant succeeded on a point not raised at first instance, the Minister points to no other factor. I am therefore satisfied, having regard to my duty to exercise the discretion judicially in accordance with established principle, that I should set aside the costs order made by the court below.

32    No other order is sought and, given the ground upon which AJQ16 succeeded was not raised by him in the court below, there is no reason for the Court to make a positive order in his favour for costs in substitution.

33    Order 2 made in the court below will be set aside.

Associate:

Dated:    21 March 2018