Federal Court of Australia

EGJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1374

ORDERS

THE COURT ORDERS THAT:

1.    The order for costs in the Federal Circuit Court of Australia will not be disturbed.

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

REASONS FOR JUDGMENT

THOMAS J:

1    Orders by consent were made on 6 February 2023 where the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) conceded that the decision of the second respondent, the Immigration Assessment Authority (IAA), was affected by jurisdictional error by reason of a material breach by a delegate of the Secretary of the Minister’s department (the Secretary) for failing to refer two documents to the IAA which were in the possession of the Secretary.

2    The question for consideration remains whether the costs of the proceedings in the Federal Circuit Court of Australia (the FCCA) should be set aside.

3    On 21 August 2019, a delegate of the Minister refused the grant of a XE-790 Safe Haven Enterprise Visa (SHEV) to the appellants (the first and second appellants being husband and wife and the third and fourth appellants being their daughter and son respectively), finding that the appellants were not persons in respect of whom Australia had a protection obligation pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

4    The delegate’s decision was referred to the IAA on 26 August 2019 for review.

5    On 11 and 17 September 2019, the IAA was provided with further material relevant to the application pursuant to s 473CB of the Act.

6    On 9 October 2019, the IAA affirmed the delegate’s decision not to grant the appellants the SHEV.

7    The appellants applied to the FCCA seeking judicial review of the IAA’s decision. The grounds of review were:

1.    The [IAA] made a jurisdictional error in relation to the access of the [appellants] to mental health services in Sri Lanka.

a.    The [IAA] may make a jurisdictional error where a finding of fact is legally unreasonable, in the sense that there is no evident and intelligible justification for the finding, and the error is material, in the sense that the decision might realistically have been different had the error not been mind: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];

b.    The [IAA] was required to give proper consideration to the [appellant’s] case, in the sense of active intellectual engagement with the same. The [appellant’s] case for this purpose extended to matters arising from the [IAA’s] own findings of fact. Proper consideration as a jurisdictional error should be subject to materiality: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ: AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; PQSM v Minister for Home Affairs [2020] FCA 125 at [142] per Banks-Smith and Jackson JJ; Singh v Minister for Immigration [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ;

c.    The [IAA]found at paragraph 38 of its decision that the United States Department of State report indicated that, while the law in Sri Lanka forbade discrimination against a person with mental disabilities, discrimination occurred in practice in the provision of state services including public transport.

d.    The [IAA] further found at paragraph 38 of its decision that the report did not identify access to health services as an area of concern for discrimination;

e.    The [IAA] found at paragraph 39 that country information did not indicate that access to mental health services was subject to discrimination;

f.    The [IAA’s] finding that there was no indication in the report of discrimination in access to mental health services was without relevant justification given the content of the report;

g.    The [IAA’s] finding that there was no indication in the report of discrimination in access to mental health services was made without proper consideration.

(errors in original)

8    On 24 June 2021, the primary judge dismissed the application for judicial review (EGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1072).

9    On 15 July 2021, the appellants appealed the decision of the primary judge. The grounds of appeal were:

1.    The Circuit Court erred in failing to find that the [IAA] made a jurisdictional error in relation to the access of the [appellant] to mental health services in Sri Lanka.

a.    The [IAA] may make a jurisdictional error where a finding of fact is legally unreasonable, in the sense that there is no evident and intelligible justification for the finding, and the error is material, in the sense that the decision might realistically have been different had the error not been mind: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];

b.    The [IAA] was required to give proper consideration to the [appellant’s] case, in the sense of active intellectual engagement with the same. The [appellant’s] case for this purpose extended to matters arising from the [IAA’s] own findings of fact. Proper consideration as a jurisdictional error should be subject to materiality: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; PQSM v Minister for Home Affairs [2020] FCA 125 at [142] per Banks-Smith and Jackson JJ; Singh v Minister for Immigration [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ;

c.    The [IAA] found at paragraph 38 of its decision that the United States Department of State report indicated that, while the law in Sri Lanka forbade discrimination against a person with mental disabilities, discrimination occurred in practice in the provision of state services including public transport.

d.    The [IAA] further found at paragraph 38 of its decision that the report did not identify access to health services as an area of concern for discrimination;

e.    The [IAA] found at paragraph 39 that country information did not indicate that access to mental health services was subject to discrimination;

f.    The [IAA]’s finding that there was no indication in the report of discrimination in access to mental health services was without relevant justification given the content of the report;

g.    The [IAA]’s finding that there was no indication in the report of discrimination in access to mental health services was made without proper consideration.

h.    The [IAA]’s finding that the [first appellant] could receive mental health treatment in Sri Lanka for the mental injury inflicted by way of torture was illogical

2.    The [a]ppellants seek leave to raise a new ground on appeal; that the Circuit Court decision was affected by constructive error in failing to find that the decision of the Authority was affected by jurisdictional error;

a.    The [IAA] failed to consider the impact of the first appellant’s experience of torture on his ability to give consistent evidence;

b.    The credibility finding at [36] of the [IAA’s] reasons, which was based on the [appellants] claims about their mental health, lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]. Accordingly, the decision of the [IAA] is affected by jurisdictional error.

(errors in original)

10    The matter was to be heard on 21 June 2022. The appellants sought leave to amend their notice of appeal and consent orders were made adjourning the hearing until 2 November 2022.

11    The appellants abandoned Grounds 1(a)-(g) and sought to raise a new Ground 3, as follows:

3.    That leave be granted for the appellants to raise new grounds of appeal which were not raised in the Circuit Court, as follows:

The Learned Circuit Court Judge erred in failing to find that the decision of the 2nd Respondent was affected by jurisdictional error, in that:

i.    The [IAA’s] statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.

Particulars

a.    The Secretary did not, at the time the delegate’s decision was referred to the [IAA], consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control.

b.    These documents included the audio recording of the enhanced screening interviews of the [appellants’] parents.

c.    These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.

d.    In the alternative, if the documents were part of the domain of materials before the delegate, they were not forwarded to the IAA.

e.    In the event that contrary to the above, the enhanced screening interviews and case assessment & biodata interviews did form part of the review materials, the [IAA] failed to consider those materials as part of its mandatory review under s.473DB(1).

f.    The [IAA’s] findings rejecting the claims of the appellant’s credibility was affected by the failure to review the ESP interviews.

g.    If the [IAA] had considered the ESP interview it would have been able to make a procedurally fair assessment of the appellant’s claims.

h.    The assessment of the credibility of the first and second appellants’ claims was affected directly and by cross reference to each other, through:

(a)    the failure to consider the claim of the appellant wife made in the ESP interview to be affected by memory loss and mental illness.

(b)    The failure to consider the claims made by the appellant husband of being detained and beaten by the Sri Lankan authorities (including as referenced at page 9 of the appellant wife written pro forma ESP record).

(errors in original)

12    On 30 July 2022, the appellants filed the amended notice of appeal.

13    On 20 October 2022, the Minister sought to vacate the hearing date as the parties were engaged in settlement discussions.

14    On 6 February 2023, consent orders were made allowing the appeal. It was noted in the orders that the Minister conceded that the Secretary had not forwarded two documents titled “Enhanced Screening interview transcript pro-forma”, one of which was hand-annotated. The appellants have sought an order that the costs in the FCCA be overturned.

THE APPELLANTS’ SUBMISSIONS

15    The appellants submitted that the parties should bear their own costs of the proceedings below.

16    They submitted that the Minister had a duty to act as a model litigant according to Appendix B of the Legal Services Directions 2017 (the Legal Services Directions). The nature of the obligation to act as a model litigant includes:

Nature of the obligation

2    The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by:

(a)    dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation

(aa)    making an early assessment of:

(i)    the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and

(ii)    the Commonwealth’s potential liability in claims against the Commonwealth

…

(e)    where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

(i)    not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true

(ii)    not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum

…

(f)    not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

17    The appellants submitted that the Minister ought to have identified the s 473CB error when the matter was before the FCCA when making an assessment of the Minister’s prospects of success and potential liability. The inability of the appellants to identify the s 473CB error was largely due to the Minister’s failure to identify the error.

18    In those circumstances, the appellants should not bear the costs of the Minister in the FCCA proceedings.

THE MINISTER’S SUBMISSIONS

19    The Minister submitted that the costs order of the FCCA should not be disturbed.

20    The Minister contended that, in circumstances where the appellants were represented by counsel before the FCCA and did not raise the ground until the notice of appeal in this Court was amended, the costs order should not be disturbed.

21    The Minister further submitted that the Full Federal Court previously determined that it was not appropriate to disturb costs orders of the FCCA where the appellant succeeded on a ground not raised below (Uriaere v Minister for Home Affairs (2019) 168 ALD 417; [2019] FCAFC 235 at [23] per Flick, Bromwich and Burley JJ; Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173 at [55] per Besanko, Perry and Stewart JJ; Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67 (Anees) at [24] per Bromberg, Kerr and Anastassiou JJ).

22    The power to order costs is discretionary. Each case must be assessed on its own merits. The Court in Anees held there was no general principle that costs below remain on foot in circumstances where the appellant was successful on a new ground (at [21]-[22]).

23    The appellants’ submissions contended that the Minister ought to have conceded a ground which had not been “unidentified and unarticulated until a late stage in the proceedings”. The Minister submitted that the Minister should not have to run his own case and the case of the appellants, who were legally represented by counsel. The error identified related to the non-provision of documents rather than any error which arose from the decision. As such, it is unsurprising that the concession came after the ground had been identified and articulated.

24    With respect to the requirement to act as a model litigant, the Court should have regard to the judgment of Siopis, Tracey and Gilmour JJ in Croker v Commonwealth of Australia [2011] FCAFC 25 at [19] where, by virtue of s 55ZG of the Judiciary Act 1901 (Cth) (the Judiciary Act), the issue of non-compliance with the Legal Services Directions may only be raised by, or on behalf of, the Commonwealth. Section 55ZG(3) of the Judiciary Act states:

The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.

DISPOSITION

25    The FCCA costs should not be disturbed for the reasons that follow.

26    As Bromberg, Kerr and Anastassiou JJ held in Anees (at [21]), there is no general principle for adverse costs of a proceeding below to remain on foot “only because leave to advance new grounds has been granted”. The merits of each case would be relevant to exercising the discretion to vary any costs order below.

27    The appellants submitted that the Minister ought to have identified the error when the matter was before the FCCA at the time when the Minister was making an assessment of the prospects of success and potential liability. The appellants placed responsibility for their inability to identify the s 473CB error with the Minister because of the failure to identify the error.

28    The Minister does not owe such a duty.

29    The nature of the error was not such that it would have been evident to the Minister in the course of reviewing the decision for the FCCA proceedings. The error related to the non-provision of documents. This did not arise out of the decision and would not have been obvious from reviewing the decision.

30    With respect to the approach taken by the Minister, the concession came immediately after the ground had been identified and articulated.

31    In this particular case there are no circumstances which warrant exercising the discretion to disturb the costs order in the FCCA. The appellants were represented by counsel before the FCCA. The appellants have not identified any reasons why the successful ground was not identified in the proceedings before the FCCA. The successful ground was not raised in the present proceedings until shortly before the matter was to be heard.

32    As to the Legal Services Directions, the Minister correctly identified that any issue of non-compliance with the Legal Services Directions may only be raised by, or on behalf of, the Commonwealth. The Explanatory Memorandum to the Judiciary Amendment Bill 1999 (Cth) stated the following:

Non-compliance with the [Legal Services Directions] will be able to be raised in proceedings only by or on the application of the Commonwealth (new subsection 55ZG(3)). Thus, it will not be possible for a party other than the Attorney-General or the Commonwealth to assert non-compliance as the basis of any claim or defence in legal proceedings. In particular, it is not intended that litigants opposed to the Commonwealth should be able to rely on the [Legal Services Directions] to challenge Commonwealth actions. Rather, the question of compliance with the [Legal Services Directions] should be a matter primarily between the Attorney-General as First Law Officer and the relevant Department or agency.

33    The Explanatory Memorandum made it clear that any issue which may arise from non-compliance with the Legal Services Directions was a matter between the Attorney-General and the relevant Department. It was not necessary to explore this claim further.

34    The order for costs in the FCCA will not be disturbed.

Associate:    

Dated:    9 November 2023

SCHEDULE OF PARTIES