Federal Court of Australia

Sil v Commonwealth of Australia [2022] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay 75% of the respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The applicant, Mr Sil, contends an officer of the respondent, the Commonwealth, provided incorrect visa advice upon which Mr Sil relied to his detriment, being the loss resulting from the resignation from his job in India and his relocation to Australia. The claim advanced by Mr Sil in this Court has two components.

2    The first is an application for judicial review of a decision of an officer of the Commonwealth refusing compensation for loss suffered under the Commonwealth’s Scheme for Compensation for Detriment caused by Defective Administration (Scheme).

3    The second is a claim in tort for the pure economic harm he allegedly suffered due to the alleged negligent misstatement of an officer of the Commonwealth.

4    The hearing of Mr Sil’s case was not straightforward. He was self-represented and although obviously intelligent, Mr Sil developed his case at great length without any precision. It continued to evolve even after the oral hearing. He feels strongly about his case and has produced extensive material and addressed the Court at significant length. The initial response of the Commonwealth did not assist and the matter was required to be adjourned because of the difficulties occasioned by a voluminous and confusing documentary record (which should have been refined by the Commonwealth in advance of the hearing).

5    It is well to commence by setting out the relevant background to the matter and making some factual findings. I will then turn to a preliminary point as to jurisdiction advanced by the Commonwealth, followed by consideration of Mr Sil’s two claims.

B    THE FACTS

B.1    Background

6    Mr Sil is an Indian national. On 12 July 2014, he lodged an expression of interest to be invited to apply for a Subclass 489 (Skilled-Regional Sponsored (Provisional)) visa with the Department of Immigration and Border Protection (as it then was) (Department). As the eponymous visa description indicates, such a visa was for skilled workers seeking to live and work in regional Australia. It was also a temporary one, and had two “streams”: a First Provisional Stream; and a Second Provisional Stream.

7    The main difference between the two streams was that under the latter a person could only apply for the relevant visa if they had previously held a visa of a particular kind. Mr Sil has never held such a visa. Accordingly, he was required to apply under the First Provisional Stream.

8    Under the First Provisional Stream, cl 489.511(1) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) specified that the visa was in effect for a period of four years from the date it was granted. Further, one of the requirements was that the person must have been invited to apply for the visa by the Minister: cl 489.221 of sch 2. Pursuant to cl 489.615(a), it was a condition attached to the visa that the “first entry” into Australia be made before a date specified by the Minister.

9    On or about 25 August 2014, the Minister invited Mr Sil to apply for the visa. Mr Sil lodged an application with the Department on 26 August 2014.

10    On 25 November 2014, the Department notified Mr Sil that the visa had been granted. In a document titled “Visa Grant Notice”, Mr Sil was advised he was required to make his first entry into Australia by 7 October 2015. The “stay period” was identified as 25 November 2018.

11    On 27 November 2014, Mr Sil sent an email to the Department asking how he might obtain a “visa label” on his passport. An officer of the Department replied on 1 December 2014 to the effect that “Australia is now visa label-free”, and advised Mr Sil that he could access his “visa information” electronically on a system known as the “Visa Entitlement Verification Online” system, for which the officer supplied a web address.

12    In an email to the Department on 11 February 2015, Mr Sil said that he had “not used [the] visa and neither [had] any intention to do so”. He asked the Department to cancel the visa and process a refund.

13    Relevantly, the Department responded in a letter dated 8 September 2015 that bore the heading: “Notification Regarding Travel in Breach of Visa Condition 8504”. The letter, known as a “Facilitation Notice” (First Facilitation Notice), noted that it was a condition attached to the visa that Mr Sil “must enter Australia as the holder of the visa to which the condition applies before a date specified by the Minister”. The First Facilitation Notice referred to “Condition 8504”, which is to be found in Sch 8 to the Regulations.

14    Confusingly, the Visa Grant Notice did not specify condition 8504 as part of the visa. However, cl 489.615 of Sch 2 to the Regulations was a condition of the visa, and is in materially similar terms to condition 8504. Clause 489.615 relevantly provides:

If the applicant is outside Australia when the visa is granted:

(a)    first entry must be made before a date specified by the Minister …

15    The First Facilitation Notice stated:

I am writing with reference to the Class SP subclass 489 visa, granted on 25 November 2014, and which included the following visa condition:

8504    The holder must enter Australia as the holder of the visa to which the condition applies before a date specified by the Minister.

This condition required that an initial entry into Australia by each visa holder be made before 7 October 2015.

Recently this department received correspondence advising that the following visa holder(s) may not comply with this condition by entering Australia within the prescribed timeframe.

…

While failure to comply with visa conditions may render a visa liable for cancellation under the Migration Act 1958 I am writing to advise that the department has decided not to cancel the relevant visa(s).

General Skilled Migration has no objection to the visa holder(s) travelling to and entering Australia while they continue to hold a Class SP Subclass 489 visa.

The expiry date of the visa is: 25/11/2018

(Emphasis in original).

16    Although the Department’s reference to condition 8504 was incorrect, nothing turns on this.

17    Between 8 and 17 September 2015, Mr Sil sought clarification as to the date by which he must enter Australia according to the First Facilitation Notice. He was advised that he could enter Australia after the initial entry date requirement (being 7 October 2015), and that he must enter Australia prior to the “must not arrive after” date (being 25 November 2018) (Expiry Date). This Expiry Date assumes central importance in this case.

18    On 1 October 2015, Mr Sil notified the Department that he was “no longer interested to cancel [his] visa which has been hard earned” and requested that his request for a refund be cancelled. He also said: “I trust [the] various clauses of my visa conditions including [sic] the extended first entry date which the ‘must not arrive’ after date [sic] remains the same ?”

19    On 2 October 2015, an officer of the Department replied to Mr Sil’s email and stated that the “dates are in place as previously stated” and that, in the event that Mr Sil was not able to meet the initial entry date requirement, he should “respond with confirmation” so that an extension could be provided. On the same day, Mr Sil responded to the officer in the following terms:

I want to confirm that an extension has already been provided and accordingly I will be able to make first entry as stated in visa conditions ‘must not arrive after’ date

Initially the first landing was 7th Oct ’15 but now it will be 25th Nov 2018, but on my part I need to enter sufficiently before [sic] in order to meet citizenship requirements

Can you please confirm my observations ?

20    On 6 October 2015, the officer responded as follows:

The extension when applied is stated by a facilitation letter advising you that you are permitted to enter after the required entry date being 7 October 2015, it is a condition of your visa that you enter Australia before this date. 25 November 2018 – is the ‘must not arrive after date’ applied at the time the visa was granted.

Therefore, if you have not been issued a facilitation letter permitting you entry to Australia after 7 October 2015 (tomorrow) please let me know and I’ll look at your options for having this issued.

21    On 8 October 2015, Mr Sil emailed the Department in the following terms:

As per [your] note below, I understand all things remaining constant as per visa grant letter only the initial entry date has been extended as per facilitation letter. Can you please confirm my understanding ?

As for refund request I have taken a conscious decision to revoke the same

22    An officer of the Department replied on the same day confirming Mr Sil’s understanding and indicated that the “refund request has already been processed as per standard procedure.” Mr Sil replied, again on the same day, stating:

There is a need to understand legal terms in clear terms, as I understand the initial entry date for me has been extend to ‘must not arrive after’ date ?

23    On 9 October 2015, an officer of the Department restated that Mr Sil could enter Australia any time after the initial entry date, but prior to the “must not arrive after” date. On 19 October 2015, the Department issued a “Refund Refusal Advice” letter.

24    Importantly, however, on 9 November 2015, the Department sent a further letter to Mr Sil (Second Facilitation Notice). A representation contained in this communication is the focus of Mr Sil’s case.

25    The Second Facilitation Notice correctly recorded that the “expiry date of the visa(s)” was the Expiry Date, that is, 25 November 2018. However, inconsistently with this express statement, but importantly, in the next paragraph, the Second Facilitation Notice erroneously stated:

Once you have made your first entry to Australia your visa will be valid for three years from the date of that entry.

(Emphasis added).

26    In the balance of the judgment I will refer to this erroneous part of the Second Facilitation Notice as the False Representation. The covering email to the Second Facilitation Notice also contained the following advice:

Please find attached a facilitation letter which will facilitate your entry into Australia after the Initial Entry Date expiry. You should retain a copy of this letter as you may require it when making your travel arrangements, when boarding your flights or on arrival in Australia.

27    No clarification was sought by Mr Sil of the apparently contradictory statements in the Second Facilitation Notice (a matter to which it will be necessary to return below). However, Mr Sil did engage in the following further communications with the Department:

(1)    On 21 January 2016, Mr Sil emailed the Department again requesting a refund of his visa due to personal circumstances.

(2)    On 28 January 2016, the Department notified Mr Sil that an adverse decision had earlier been made regarding his refund request.

(3)    On 27 February 2017, Mr Sil emailed the Department, stating that he would not be able to enter Australia because “no employer is willing to consider non-Australians” and requesting that either his visa be cancelled or refunded in full, or the Department provide assistance with obtaining employment.

(4)    On 3 March 2017, the Department replied and stated that it was unable to assist in finding employment and supplied further information about the circumstances in which a visa refund can be provided.

(5)    Further communications then took place as to Mr Sil’s inability to secure employment. On 17 October 2017, Mr Sil queried the regions in which he could work. He also said: “Its three years and still I am yet to get my first role in AU, so I am urging for consideration”.

(6)    Then, more relevantly for present purposes, on 19 October 2017, an officer of the Department replied:

As per your Visa grant letter, condition 8539 applies to your visa meaning you need to live and work in these specified areas. Your facilitation letter was issued and allows you to enter Australia for the first time at any time while the visa is valid. This visa expires on 25/11/2018. If you choose not to live and work in these areas, you may find that you would fail to meet some prerequisite conditions for some subsequent permanent resident visas.

A migration agent may be able to provide you with further advice.

(Emphasis added).

(7)    On 11 November 2017, Mr Sil emailed the Department, stating:

I believe with the facilitation letter I a may [sic] be able to enter Australia any time within the validity of the visa ?

(8)    On 15 November 2017, the Department replied: “You are correct, you can enter Australia at any time while your visa is valid, with the facilitation letter provided”.

28    It was against this background of communications (which made no reference to the False Representation) that Mr Sil finally arrived in Australia on 11 December 2017.

29    About a week after arrival, Mr Sil says he went to an office of the Department and had some form of discussion with an officer. According to Mr Sil, it involved discussion about visas for family members; places of residence; and possibly (although the evidence was somewhat confusing on this point) the Second Facilitation Notice.

30    Most relevantly, in December 2017, Mr Sil was endeavouring to obtain some rental accommodation. Again, the evidence was less than pellucid, but it appears that either one or other prospective landlords were confused as to what was communicated to them by Mr Sil as to the duration of Mr Sil’s visa (which would have been unsurprising if they had seen a document referring to the Expiry Date). In any event, on 19 December 2017, Mr Sil emailed the Department, referring to the Second Facilitation Notice, and made a query (December 2017 Query) in the following terms:

I am in Australia at the moment and as per the clauses of the facilitation letter ‘once I make an entry the visa will be extended by another three years’ – does this mean my visa will remain valid til [sic] 10 Dec 2020 since I made the entry [sic] on 11 Dec 2017. During this time naturally I will have the opportunity to meet the conditions of permanent residence/citizenship …

(Emphasis added).

31    Although single inverted commas were used in the December 2017 Query, Mr Sil explained that the reference made was not a quotation but referred to the substance of the False Representation. On 21 December 2017, an officer of the Department responded, making reference to the False Representation as follows:

Thank you for your email. Your SP 489 visa remains valid and you are permitted to remain in Australia until 25/11/2018, as per advice provided to you on 15/11/2017.

The facilitation letter you received in 2015 contained an inadvertent error, which read “Once you have made your first entry to Australia your visa will be valid for three years from the date of that entry.”

This is incorrect information, and refers to a condition from a different visa subclass which is not applicable to your SP 489 visa. We apologise for the error included in the facilitation letter from 2015, however the visa grant notice issued 25/11/2014 (attached for reference) clearly states the conditions of your visa with a Must not arrive after date, and stay period date of 25/11/2018.

There is no option to extend the SP 489 visa past this date, and you will be required to either depart Australia prior to this date or commence valid alternative application(s) to ensure you remain lawful past 25/11/2018 in Australia …

32    On 6 April 2018, Mr Sil departed Australia.

33    On 11 June 2018, after unsuccessfully applying to the Commonwealth Ombudsman for an investigation into the False Representation, Mr Sil applied for compensation in the sum of $2,432,768.70 from the Department under the Scheme.

34    On 27 November 2018, the Department invited Mr Sil to comment on a “preliminary assessment” of his application. On 17 December 2018, Mr Sil took up that opportunity, and responded to the Department in writing.

35    A Minute to the General Counsel of the Department was prepared by the relevant case officer on 13 February 2019, and was apparently received by the Office of General Counsel on 20 February 2019 (Minute). The Minute recommended that there should be no compensation payment. The General Counsel agreed on 25 February 2019. This is the decision in respect of which Mr Sil seeks review (Decision).

36    Three days later, on 28 February 2019, the Department notified Mr Sil by email of its Decision. It provided reasons for the outcome, in the form of a copy of the Minute.

37    Mr Sil commenced proceedings in this Court in August 2021. When the matter was transferred into my docket, I declined to entertain an application for summary dismissal and formed the view that it would better facilitate the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) to set the matter down for final hearing at the earliest opportunity.

B.2    Findings as to Mr Sil’s Knowledge

38    Mr Sil gave lengthy evidence and was extensively cross-examined. Despite this, as will become evident, the relevant findings it is necessary for me to make from his evidence are narrow. Before recording these findings, it is appropriate to make some general observations as to Mr Sil’s credit.

39    Two difficulties were encountered during the course of Mr Sil’s cross-examination. The first was the fact that Mr Sil was persistently non-responsive to questions posed by the cross-examiner, and, on occasions when I sought some clarification of aspects of the evidence, the Court. He repeatedly engaged in making speeches he perceived were advancing his case rather than directly responding to the question posed. During the course of his evidence, I gained the impression that he well understood the nature of the case that he proposed to advance concerning the False Representation, and was intent on repeating his principal points at every available opportunity. Many instances could be detailed, but one representative example, regarding an important aspect of the evidence, is the unresponsive answers given by Mr Sil as to his motivations for sending the December 2017 Query: see T62–68.

40    The second difficulty was the state of the documentary case. During the first day of Mr Sil’s cross-examination, it became increasingly difficult to follow the evidence as Mr Sil and the cross-examiner were referring to various conflicting pages at various locations in the voluminous court book. It became apparent that a chronology prepared by the Commonwealth was deficient in omitting certain communications of some substance. I did not consider it fair to allow the cross-examination to continue when a complete record of the communications between Mr Sil and the Commonwealth was not before the Court, or at least was not before the Court in some sort of readily accessible manner. In these circumstances, I made an order that a compendium and a revised chronology be prepared by the Commonwealth. My intention in making this order was to have a complete chronological bundle of every communication, which would then form the basis of any further cross-examination and submissions.

41    Regrettably, the Commonwealth failed to understand the intent behind my order and reproduced some email chains without including all relevant documents with attachments, and omitted some other documents. It followed that when the matter came back before me, the difficulty as to the location of some documents had not been completely resolved.

42    Despite this, any unfairness could be overcome by taking additional time to locate material and I did not consider that it was consistent with the overarching purpose to adjourn further the completion of the evidence. It was appropriate for the cross-examination to be completed and I am satisfied that whenever a document was referred to during cross-examination, counsel, Mr Sil and myself eventually arrived on ‘the same page’.

43    Having had the opportunity of closely following the cross-examination and observing Mr Sil’s manner in giving his evidence, I do not find that he intended to give the Court an erroneous account. However, despite this, I have real misgivings as to Mr Sil’s reliability as a witness. Mr Sil has, with respect, become fixated on his case, is quite convinced a wrong has been done to him and is eager to present events in a way that is consistent with the narrative that he is intent on advancing. The problem, however, was that the more difficult a question was, the less responsive Mr Sil became.

44    The unreliability of Mr Sil’s evidence has informed my assessment of the findings that I make as to his knowledge.

45    His evidence as to the Second Facilitation Notice (regarding the Expiry Date and the False Representation) was unpersuasive. Mr Sil was (and is) an intelligent man who obviously paid attention to details (and gave evidence that he did so). Despite this, he went so far as to suggest that there was no ambiguity or inconsistency between the statement recording the Expiry Date of the visa as 25 November 2018, and the False Representation that his visa would be valid for three years from the date of his entry into Australia.

46    The False Representation was not made in a vacuum. Apart from the fact that the False Representation was accompanied by a proximate contradictory statement, importantly, Mr Sil had previously been told the correct date on numerous occasions: first, in 2014, in the Visa Grant Notice, where the date appears twice (including under the heading: “Maintaining a valid visa”); and secondly, twice in 2015, when he received the First Facilitation Notice, and when he received an email from the Department on 6 October.

47    Against this background, it is hardly surprising the December 2017 Query asked for clarification of the patent ambiguity in the Second Facilitation Notice: “does this mean my visa will remain valid til [sic] 10 Dec 2020 since I made the entry [sic] on 11 Dec 2017[?]”.

48    During the course of his submissions, Mr Sil referred twice to an analogy explaining why he did not make further enquiries prior to the December 2017 Query, and as to why it was entirely reasonable that he did not do so prior to coming to Australia. The analogy was to a £10 note, which Mr Sil said involves a “sovereign guarantee” to pay that amount to the bearer upon presentation: T111.24. He said, in effect, that he had received a representation from the Commonwealth and it was unnecessary for him to make further enquiries about it.

49    It is unfortunate that the False Representation was made. But notwithstanding Mr Sil’s evidence to the contrary, I am not satisfied that he did not know, prior to coming to Australia, that there was at least some ambiguity in the mixed messages he had received. It is possible that Mr Sil simply focussed laser-like on the False Representation and did not appreciate that there was an error in the Second Facilitation Notice (notwithstanding the Expiry Date reference was consistent with earlier communications). But after seeing the manner of his giving of his evidence, and having regard to the contemporaneous documents, I think it is more likely than not that by the time Mr Sil made a final decision that he would come to Australia, he was content to decide to refrain from making further enquiries. It is more probable than not that Mr Sil was aware of the inconsistency between what he had been told, but knew he was armed with the benefit of the False Representation, and trusted that he could rely upon it in due course when it came to any discussion as to the expiry of his visa.

50    The terms of the December 2017 Query (by which Mr Sil asked the meaning of the False Representation) are of some significance. If he was as convinced as he now says he was as to the unimpeachable clarity of the False Representation, this sits unhappily with the wording of the December 2017 Query. But it must also be recognised that Mr Sil not seeking clarification with officers of the Department until after he entered Australia is consistent with two states of affairs: first, the one noted above, being Mr Sil knowing he had a “mixed message” and intending to rely on the False Representation; or secondly, a genuine belief in the truth of the False Representation, which only came to be shaken when he commenced dealing with prospective landlords. I cannot exclude the possibility of the latter state of affairs being correct, but as I have found above, I consider it less likely than the former, upon review of all the evidence. In any event, if Mr Sil did have a genuine belief in the truth of the False Representation when he arrived, given the extensive communications and Mr Sil’s ability to seek clarification (which he did frequently as to other aspects of the visa), I do not consider this lack of enquiry to be reasonable in all the circumstances.

C    A JURISDICTIONAL ISSUE

51    The Commonwealth takes a jurisdictional point. The submission is developed as follows.

52    It starts with the trite proposition that federal courts cannot exercise jurisdiction to determine abstract questions of law, and that jurisdiction can only be conferred in respect of real, justiciable controversies or “matters” (to use that word in its Constitutional sense). Then the following propositions are advanced: first, while Mr Sil has sought an order to “quash” the Decision, he has not otherwise invoked the Court’s jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) by seeking mandamus, prohibition or an injunction against an officer of the Commonwealth (and, in any event, a Commonwealth officer has not been named); and secondly, Mr Sil had no “right” to any decision, particular outcome or process to be followed under the Scheme, the very nature of which, it is said, does not entail a liability to Mr Sil.

53    Finally, it is submitted that because there is only one “matter” before the Court comprised of federal and non-federal claims, if the Court concludes that its jurisdiction is not engaged, then the non-federal matter (the claim in tort) must also fall away.

54    It is unnecessary to set out, yet again, the general principles as to jurisdiction. I have attended to this task recently in two judgments: see Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360 (364–368 [11]–[13], 370–377 [26]–[46]) and Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 (at [7]–[18]).

55    It suffices to note the following. The “matter” is the justiciable controversy between the actors involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them. It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination. The fact that Mr Sil (as a litigant in person) has not named the officer and understandably misidentified the prayers for relief should he be successful in identifying jurisdictional error in the Decision is neither here nor there. Although no Constitutional or other relief is available for reasons explained below, this does not mean that there was no claim for judicial review advanced or a want of a justiciable controversy.

56    Further, there was (and is) no suggestion here that the relevant claim for judicial review under a law of the Commonwealth (albeit made infirmly) was colourable. Federal jurisdiction was thereby attracted and once federal, a matter is always federal. It followed that the Court was properly seized with jurisdiction to deal with the whole controversy and always will be, even if the non-colourable allegation was misconceived. The claim in negligence clearly arose out of the same factual substratum and is part of the matter.

57    It eventually became apparent that the Commonwealth’s jurisdictional argument elided two matters that should be kept separate: first, an argument as to whether the Decision was properly the subject of judicial review on the grounds of legal unreasonableness or irrationality; and secondly, the distinct notion as to whether the subject matter jurisdiction of this Court was properly invoked by Mr Sil.

58    Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 is a case about whether a decision of a Departmental officer in purported compliance with guidelines concerning s 351 of the Migration Act 1958 (Cth) was amenable to judicial review for legal unreasonableness. In that case, the Commonwealth argued against the notion that legal unreasonableness has its foundations in the principles and values of the common law, including the value of reasonableness, in contrast to the observations of Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (at 4–5 [7]–[8]) and Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 (at 460 [101]). In very broad summary, it was asserted that the rule of statutory construction supplying the implied obligation of legal reasonableness is not a free-standing rule, but rather is limited to discerning the intention of Parliament. In respect of non-statutory executive power (as was relevant in Davis and is said to be relevant here), the Commonwealth submitted the statutory foothold for the application of the principles discussed and applied in cases such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 is absent.

59    This argument was rejected by the Full Court in Davis (observing it would be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside the realm of statutory interpretation). I am informed the High Court granted special leave to appeal against the Full Court’s decision on 12 May 2022, but the appeal is yet to be heard: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCATrans 89.

60    Let us assume that the analysis of the Full Court was incorrect. As explained above, this is no answer to the distinct question as to whether the jurisdiction of this Court has been properly attracted in the first place. Mr Sil has made a non-colourable assertion. If the ultimate resolution of this controversy was that the Decision involved the exercise of a non-statutory executive power not amendable to judicial review, it would not mean the jurisdiction of the Court in relation to this controversy was never properly invoked so as to allow the Court to deal with the action in negligence. The (singular) matter is always federal. The Court is properly seized with jurisdiction to deal with the controversy and always will be, even if the non-colourable allegation was found to be misconceived or unnecessary to decide, or was abandoned, or even struck out.

D    THE JUDICIAL REVIEW CLAIM

D.1    The Scheme and the Nature of the Decision

61    It is necessary now to outline the nature of the Decision and the Scheme generally.

62    The Scheme was established by the Commonwealth in 1995. The Scheme, which is administrative in nature, enables Commonwealth agencies to compensate persons who have suffered detriment as a result of an agency’s “defective” action or inaction, and who have no other avenues of redress.

63    Decisions are made at the discretion of the decision-maker, and payments are approved on the basis that there is a moral, rather than a legal, obligation owed to the person or body concerned. The claimant’s own actions are a relevant factor in deciding whether there is a moral obligation to pay compensation.

64    There is no obligation to approve a payment in any particular case. However, the decision whether to approve or refuse a payment must be publicly defensible having regard to all the circumstances of the case: Scheme for Compensation for Detriment caused by Defective Administration Resource Management Guide No. 409 (at [18]) (Guide). The concept of “defective administration” includes giving advice to a claimant that was, in all the circumstances, incorrect or ambiguous: Guide (at [48]).

65    Detriment involves quantifiable financial loss, and includes pure economic loss, which can include a lost opportunity: Guide (at [55], [60]–[62]). If the pure economic loss claimed is “directly caused” by the alleged incorrect or ambiguous advice, compensation will only be payable if the agency should have appreciated the implications of the claimant being given incorrect or ambiguous advice, and it was reasonable in all the circumstances for the claimant to seek, and rely upon, the advice: Guide (at [92]). It is supposed to be a common-sense assessment.

D.2    The Decision

66    As the Commonwealth submits, the reasons for the Decision set out in the Minute are readily comprehensible and focus on the assessment that it was unreasonable in all the circumstances for Mr Sil to have relied on the single instance of admittedly incorrect advice, being the False Representation.

67    In recording this conclusion, the Minute commenced by setting out the background facts, and (with the exception of referring to the wrong date of the Second Facilitation Notice) otherwise correctly summarised Mr Sil’s claim under the Scheme. Under the heading “Issues”, the Minute recorded that the “responsible business area” (a reference to the “Skilled Program[me] Delivery” section within the Department) had been consulted and then, again accurately, referred to the material communications between Mr Sil and the Department until his departure from Australia in 2018.

68    The Minute then noted some aspects of the Scheme, including that Mr Sil’s actions may be a relevant consideration for the decision-maker, including any actions taken to “mitigate” the loss. It observed that:

the decision-maker may consider whether Mr Sil contributed to, or caused, the detriment suffered and whether it is appropriate to adjust the compensation on that basis.

69    Under the heading “Defective advice”, the relevant reasoning and conclusion is set out as follows (at [24]–[27]):

24.    We are of the view that the second Facilitation letter sent to Mr Sil on 5 November 2015 [sic] contained incorrect information regarding the visa validity period applicable to his SRS visa. However, it was unreasonable for Mr Sil to have relied upon this information.

25.    Every communication Mr Sil had with the Department including the second Facilitation letter dated 5 November 2015 [sic], either provided him with the correct visa validity date (being 25 November 2018) or advised him to refer his grant notification of 25 November 2014 which contained the correct validity date. We are of the view that Mr Sil was adequately informed that his SRS’s validity date was 25 November 2018, despite the single line of incorrect information in the second Facilitation letter.

26.    It is our view that it was unreasonable for Mr Sil to have relied on the single instance of incorrect advice. We consider that the conflicting advice about Mr Sil’s visa validity should have prompted him to seek clarification from the Department on the matter prior to finalising any plans.

27.    The correct information regarding Mr Sil’s visa validity period was also reasonably available to him from another source, including the Department’s Visa Entitlement Verification Online (VEVO) system. Accordingly, it would have been reasonable for Mr Sil to enquire further after receiving the contradictory advice in his second Facilitation notice. We are of the view that had Mr Sil done so, the error could have been corrected prior to any detriment being incurred.

D.3    The Amenability of the Decision to Judicial Review

70    In the context of the argument as to jurisdiction, I noted the Commonwealth’s argument that the Decision amounts to an exercise of executive (non-legislative) power. The Commonwealth correctly conceded that unless and until the appeal in Davis is successful, I am bound to apply the approach to judicial review on the grounds of legal unreasonableness and irrationality that has commended itself to a number of judges of this Court and is reflected in the reasoning in Davis. In these circumstances, apart from recording the Commonwealth’s position, I will not enter upon this debate and will determine this case on the premise that judicial review is available.

D.4    The Alleged Jurisdictional Errors

71    The point is often made that the person seeking relief must identify the precise foundation for the contention of legally recognisable error. With no intended disrespect, Mr Sil did not identify his arguments as to jurisdictional error with any precision at all. As developed orally, his arguments can be placed into a number of broad categories (although there was considerable overlap and a great deal of repetition). I tried to assist Mr Sil by identifying the categories of complaint after hearing from him at the conclusion of the second day of the hearing. The argument continued to morph somewhat, and, following the hearing, Mr Sil provided an additional document summarising his grounds.

72    Doing the best I can with this material, Mr Sil’s arguments may be summarised into the following four categories.

73    First, Mr Sil submits there was jurisdictional error involving legal unreasonableness or irrationality in the making of the Decision because erroneous advice was given in the Second Facilitation Notice, and the decision-maker did not follow the Scheme, in particular, [40], [51] and [90] of the Guide.

74    Secondly, there was bias or lack of good faith, and the decision-maker was following the “rejection line”.

75    Thirdly, there was a lack of procedural fairness or natural justice.

76    Fourthly, it is said that the decision-maker “ignored relevant material”.

77    I will deal with each category of argument below.

Legal Unreasonableness, Irrationality and the Result

78    If one accepts the Decision is subject to review for legal unreasonableness, illogicality or irrationality, the relevant question to be asked is whether, on the material, a logical or rational decision-maker could have come to the same conclusion. While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (at 649–650 [135] per Crennan and Bell JJ).

79    Put another way, a decision could be said to be illogical or irrational if only one conclusion is open on the material, and the decision-maker does not come to that conclusion, bearing in mind that the role of this Court in conducting judicial review is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised. Hence, the issue is whether Mr Sil’s assertions go beyond a challenge to the merits of the evaluative exercise carried out by the decision-maker, so as to substantiate a finding of legal unreasonableness: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 (at 488–489 [330] per Bromwich J).

80    The result was clearly open to a rational decision-maker. Mr Sil’s emphatic disagreement with the result does not establish illogicality or irrationality. As such, the first basis upon which Mr Sil puts his argument is misconceived.

Legal Unreasonableness, Irrationality and the Scheme at [40], [51] and [90]

81    This argument evolved somewhat during final submissions, and although Mr Sil’s argument is on somewhat firmer legal ground than merely relying upon the result, upon examination, his miscellany of complaints are similarly misconceived.

82    The Guide was in evidence and in addition to the paragraphs noted above, [16]–[17], [48]–[49], [54], [60]–[62], [69] and [93] were the subject of reference. I will deal with each below, but prior to doing so, it is useful to say something about the Guide generally.

83    The Guide, published in May 2017 and extant at all material times, was relevant to staff in non-corporate Commonwealth entities who dealt with requests for financial assistance under the Scheme and, more particularly, assisted staff of non-corporate Commonwealth entities in managing and determining claims under the Scheme. It replaced an earlier version published in June 2014.

84    As noted above, the Scheme operates on the basis of authority provided to individual portfolio ministers under the executive power in ss 61 and 64 of the Constitution. Consistently with the Scheme being “permissive, in that it does not oblige the decision-maker to approve a payment in any particular case” (see [18]), the Guide, as the name implies, provides “consideration” as a guide, “but must not limit in any way an entity’s assessment” of, among other things: the likelihood that wrong advice could have been given in the particular situation; whether the claimant’s subsequent actions were consistent with the advice that the claimant alleges was provided; the consistency of the allegations of defective administration made by the claimant; whether the passage of time could have distorted the officer’s and/or claimant’s recollection of events; whether advice has been misinterpreted by a claimant; the claimant’s actions; the claimant’s knowledge of dealing with the issues concerned; and whether the advice provided to the claimant was informal and, as such, no reasonable person would have relied upon it: see [53] and [77].

85    Mr Sil’s argument appeared to rest on the insecure premise that each of the paragraphs of the Guide he called in aid operated as a type of mandatory relevant consideration. But the function of the Guide was to provide guidance without dictating mandatory requirements to be followed in each case: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 (at 289 per Wilcox J; at 291–299 per Hill J). Moreover, as will become evident, some matters relied upon by Mr Sil were not even considerations at all.

86    In any event, it is convenient to deal initially with the specific aspects of the Guide that were relied upon by Mr Sil.

87    First, [40], which relevantly notes that prior to “a decision being made on an application, the entity must ensure that the claimant is afforded procedural fairness”, anticipates and is indistinguishable from a separate argument of Mr Sil that he was denied procedural fairness (which I address below).

88    Secondly, [51] relevantly notes that:

… if a document relevant to the claim is found by an entity, it cannot be disregarded simply on the basis that it was not provided by the claimant. Procedural fairness requires that the substance of documents (relevant to the claim) held by the entity but not known to the claimant is shared with the claimant.

89    This paragraph became the basis of an argument, put repeatedly, that documents and information had been “suppressed”. Of course, as is evident from its terms, this aspect of the Guide is about securing procedural fairness which, as noted above, is a separate argument pursued by Mr Sil. The arguments based on [51] are, it is fair to say, wide-ranging. A flavour of them can be gauged in the following extract from Mr Sil’s submissions:

Apart from the fact that applicant made sufficient enquiries about his visa specifically, the facilitation letter both prior and after the letter was issued and again one month prior to departure, it is important to realize that the issue is not about applicant making enquiry on a Federal government order which as a fact is not even required. Rather thorough examination is required why [sic] in spite of applicant providing defective letter to the state on three occasions prior to departure the error was not recognized?

… [The Commonwealth] claimed to have that report in possession during preliminary assessment but chose not to disclose either during final decision making in February 2019 or earlier in November 2018… since by doing so they would have been thoroughly exposed of yet another defective administration and resulting vital mistakes on their part as they failed to detect the erroneously letter even when presented the same and failed to inform the applicant. The applicant notes that even if [the Commonwealth] communicated during that time, then too [sic] the detriment was realized by the applicant.

If this suppression didn’t happen the claim would have been admissible as per [the Guide] in November 2018. [The Commonwealth] chose to suppress because by disclosing they would not be able to point finger or blame the applicant and it is important to note that this finger pointing is an absurdity as explained in [sic] cross examination section above.

This report was only made available three years later on [sic] December 2021 when the matter was brought to the court by the applicant and the respondent was compelled and risked to be exposed [sic] badly if the applicant disclosed those anytime later during the court case. But remained hidden all through from November 2018 to till December 2021 and applicant notes the daring act of falsehood when … [the Commonwealth] informed [him] that [the Relevant Business Area] was consulted but didn’t disclose the outcome of consultation is [sic] procedurally unfair and offence by the government. As such the adjudication of compensation claim is manipulated/doctored and violates para 90 and 40 of the [G]uide since the applicant didn’t get the opportunity to comment because applicant was wilfully not made aware of findings which [the Commonwealth] would rely upon for decision making in February 2019.

Another instance of suppression happened both during preliminary assessment … when [the Commonwealth] in spite of knowing the nature of enquiries from the applicant between September to October 2015…, [the] basis [upon] which the second letter was provided, did not divulge those communications in clear terms anytime in their report. Those communication[s] would reveal that applicant repeatedly informed [the Commonwealth] that he is already in possession of a facilitation letter but has concerns on the same post which the second letter was provided. Applicant concerns being addressed [sic] there was no other communication needed. But instead of disclosing to applicant [the Commonwealth] kept it a secret knowing fully well that claim cannot be denied if those conversations are not suppressed. Those communications clearly reveals that the issuance of the second letter is not by chance but tailored to the occasion that instilled confidence to the applicant about his visa.

90    In effect, a central aspect of the “suppression” of documents case is that there was relevant suppression because the decision-maker did not receive a narrative of events from the relevant business unit which accorded with Mr Sil’s characterisation of what had occurred. It suffices to note that I am not satisfied that the serious allegation that the Department acted to suppress documents or other material (which is akin to an allegation of mala fides) is open on the material, let alone established. I will deal with the balance of this argument when I come to the procedural fairness argument.

91    Thirdly, as to [90], this paragraph provides that a claim that has already been determined may be reconsidered where a claimant provides “pertinent new evidence, facts or argument”. But, as was explained to Mr Sil, the Decision the subject of his originating application was that recorded in the Minute. As developed orally, again, this argument amounted to error by reason of a failure to accept the cogency of Mr Sil’s argument.

92    Finally, as I noted above, Mr Sil made reference to a number of other paragraphs of the Guide, namely:

(1)    [16], which provides that the actions of contracted providers are not within the scope of the Scheme;

(2)    [17], which simply explains the Scheme;

(3)    [48], which clarifies the scope of the concept of “defective administration”;

(4)    [49], which provides that “there must be sufficient evidence to enable the decision-maker to form the opinion that defective administration has occurred”;

(5)    [54], which provides that compensation is only available under the Scheme “where the detriment found to have been suffered by a claimant has arisen as a direct result of the defective administration”;

(6)    [60]–[62], which explain the concept of pure economic loss;

(7)    [69], which provides that “the overarching principle to be used in determining an appropriate level of compensation is to restore the claimant to the position they would have been in had the defective administration not occurred”; and

(8)    [93], which asserts that as decisions made under the Scheme are not made under an enactment or law, they are not amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), but (contrary to the Commonwealth’s submissions before me) “may be subject to judicial review under section 75 of the Constitution or section 39B(1) of the Judiciary Act 1903”.

93    Apart from the last reference relied upon by Mr Sil to buttress his submission that the Decision is amenable to judicial review, the other paragraphs are either irrelevant to the arguments advanced as to jurisdictional error or simply reflect the necessity to provide procedural fairness.

94    For completeness, to the extent that Mr Sil submits that the failure to have sufficient regard to any of these “considerations” amounted to ignoring relevant material, that complaint is not established, as there was no legal requirement to have regard to specific considerations or identified material (on the generous assumption favourable to Mr Sil that they were not considered).

Lack of Good Faith

95    In his final document, Mr Sil contended that:

the dept [sic] did not disclose material facts is in violation [of the Guide] per clause 40(2), 51, 90 of [the Guide] and hence is not in good faith…[and] the department ignored the relevant material in this order and it is my submission that this could have altered the outcome drastically during decision outcome February 2019.

(Emphasis added).

96    Again, the focus is an allegation that the Commonwealth ignored aspects of his claim in making the Decision. Allied to this was the notion that the decision-maker followed a “rejection line”.

97    Such allegations should not be lightly made. It is an allegation of conscious wrongdoing in the making of the Decision. There is no basis upon which this conclusion could be reached.

Lack of Procedural Fairness

98    Again, this contention is without merit. As noted above, Mr Sil was expressly invited to comment on a preliminary assessment of his application. There was no relevant want of procedural fairness (and, to the extent it matters, no reason to conclude why the Guide (at [40]) was not complied with). Mr Sil, in this aspect of his argument, like others, equates a denial of procedural fairness with a failure of the Department to accept what he says and accede to his characterisation of events.

Ignoring Relevant Material

99    Although identified as a separate argument, as developed, this submission amounts to a restatement of the fact that the Department “suppressed” material or otherwise acted wrongly.

100    In his final document, Mr Sil submitted:

The department had the opportunity to peruse the letter and inform the applicant about the [error] in [the facilitation] letter but the [department] failed to do so on account of sheer negligence as acknowledged in para 4 page 873 of report.

The same fact is not mentioned in the order where it was supposed to be because it would have established that the department despite knowing that the second facilitation letter contained incorrect advice decided to remain silent and proceeded like nothing had happened.

(Emphasis in original).

101    For the reasons already explained, this argument is misconceived as a basis of alleging jurisdictional error.

D.5    Conclusion

102    Irrespective as to whether the Decision, on proper analysis, is amenable to judicial review, Mr Sil’s application for relief in relation to the Decision, though within the subject matter jurisdiction of the Court, cannot succeed. This aspect of the claim must be dismissed.

E    THE NEGLIGENCE CLAIM

E.1    The Nature of the Claim

103    Mr Sil asserts the Commonwealth owed a duty of care to:

(1)    “those it would seek to execute, officiate and/or advise”;

(2)    him, “a migrant whom would be relying on the accurate, authoritative and true governance of the [Commonwealth]”; and

(3)    “provide advice in an accurate, true and timely fashion”.

104    The Commonwealth is said to have breached the so-called duties in a number of interrelated respects: first, by failing to “have in place safe guards” to ensure that the correct advice was given; secondly, by failing to provide advice in a “reasonably competent manner”; and thirdly, by providing defective advice.

105    Mr Sil claims that, by relying on the Commonwealth’s “defective advice”, he, in effect, permanently lost a career prospect.

E.2    Consideration

106    The False Representation was, obviously enough, a misstatement. The liability of government authorities for misstatements rests upon general principles of recovery for economic loss caused by negligent misstatements.

107    The difficulties and complexities in this area of the law are well known. Mr Sil, as a self-represented litigant, should not be criticised for paying insufficient attention to the danger of focussing on the alleged breach when addressing the existence and content of any duty of care (because it is a question of law to be determined prospectively): Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at 443 [60] per Gummow J); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 (at 418 [68] per Hayne J). Nor were the issues of foreseeability of harm, indeterminacy, reliance and assumption of responsibility, and the vulnerability of Mr Sil considered in any detail. Moreover, the evidentiary case on causation and damage was deficient.

108    But as will already be evident from my factual findings, it is unnecessary to dwell upon any legal analysis of the complex questions that arise as to the existence, scope, and breach of a duty in the circumstances of this case.

109    I am not satisfied that Mr Sil relied upon the False Representation in coming to Australia as he alleges. Nor do I accept that any reliance by him would have been reasonable in the circumstances. Even if the Commonwealth did owe Mr Sil a duty of care of the kind asserted, Mr Sil’s claim must nevertheless fail for these two basic reasons.

110    To repeat matters canvassed above, Mr Sil was advised in writing of the Expiry Date of his visa on numerous occasions, including when he received the Second Facilitation Notice. In short, I am not satisfied on the balance of probabilities that Mr Sil did act on the faith of the correctness of the False Representation. Further, even if I was wrong as to his state of mind, no-one acting reasonably would have acted on the faith of the False Representation in the light of the other communications made to Mr Sil and information otherwise available to him.

111    As such, the claim in negligence must fail.

F    CONCLUSION AND ORDERS

112    The proceeding should be dismissed.

113    I should mention two other matters.

114    First, Mr Sil belatedly sought to cross-examine a “formal” witness who was not involved in any of the relevant events. He was unable to provide any basis upon which such a cross-examination could have resulted in the adduction of any relevant evidence. The case had already gone on far too long, and Mr Sil was given every opportunity to develop his arguments. To guard against any unfairness, however, I did not allow the Commonwealth to rely on the relevant affidavit and treated it as not having been read. The documents annexed to it were, however, tendered.

115    Secondly, the Commonwealth was partly responsible for this case not proceeding as efficiently as it should have. Given the need to have regard to the overarching purpose in exercising my discretion as to costs, I do not consider that the Commonwealth should recover more than 75% of its party/party costs.

Associate:

Dated:    10 August 2022