Aas17 v Minister for Immigration

[2018] FCCA 3119

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3119

Catchwords:
MIGRATION – Application for judicial review – protection application – Immigration Assessment Authority – whether the IAA fell into jurisdictional error in failing to consider relevant claims – whether information was ‘new information’ – finding that constitutional writs should issue.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1
Migration Act 1958 (Cth), Pt.7AA, ss. 5, 473DB, 473DD
Privacy Act 1988 (Cth), s.6

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant: AAS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG15 of 2017

Judgment of: Judge Riethmuller

Hearing date: 20 September 2018

Date of Last Submission: 20 September 2018

Delivered at: Melbourne

Delivered on: 20 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 5 December 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs fixed at $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG15 of 2017

AAS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 5 December 2016.  The decision affirms a decision of the delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity from the eastern provinces of Sri Lanka.  He arrived in Australia in October 2012 as an irregular maritime arrival.  In February 2016, the applicant applied for a safe haven enterprise visa.  He had an interview with the Department in May 2016, and on 20 September 2016, the delegate refused to grant him a visa.  The delegate did not accept the applicant’s claims and made adverse credibility findings with respect to his evidence. 

3. The applicant’s claims are well summarised at [7] of the IAA’s decision in the following terms:

   ·His older brother, was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) when he was 19 or 20 in 2006/2007; he escaped from the LTTE after approximately nine months, was caught by the Sri Lankan police and sent to a rehabilitation camp for three or four years. He fled to Qatar on release.

   ·In November 2009 the applicant was detained by the Criminal Investigation Department (CID) at the airport as he was departing for Qatar to work. He was taken to a room, photographed and questioned whether he was going to Qatar to earn money to support the LTTE. His photograph was put on the wall of the CID office at the airport.

   ·After the applicant returned to Sri Lanka from working in Qatar for three years, he was detained by the Sri Lankan police and kept in jail overnight on suspicion of helping the LTTE.

   ·The applicant helped the Tamil National Alliance (TNA) in the 2012 provincial council elections. While putting up posters he was involved in a clash with supporters of the rival Tamil Makkal Viduthalai Pulikal (TMVP) party. Members of the Karuna group came to his home and threatened him against supporting the TNA. The applicant agreed to stop supporting the TNA candidate.

   ·After the TNA won the provincial council elections, members of the Karuna group came to the applicant's home and showed him a video which recorded him celebrating the election win with the TNA candidate. They wanted to take him away but his father succeeded in getting them to go away because the applicant still had a valid visa to work in Qatar.

   ·The applicant hid in his uncle's house until he left from Sri Lanka on 26 September 2012.

   ·Three or four months after he arrived in Australia, his family noticed a few men on motorbikes surveying his home; this happened three or four times and his sister is afraid of what might happen.

4. The IAA outlined the material before it when considering the decision.  The IAA had before it, the material referred to it by the Secretary.  The IAA also had two sets of submissions from the applicant dated

   
   

   12 October 2016 and 19 October 2016.  The IAA accepted the submissions clarifying information, but did not consider them new information. 

5. The IAA specifically did not request new information from the Red Cross that had been outlined by the applicant: see [5] of the IAA decision.  The IAA also declined to consider new information provided by the applicant that was evidence of his mother as to people coming and seeking him out in July of 2016.  The IAA considered the applicant’s claims with respect to his brother’s involvement with the LTTE and various inconsistencies in his evidence:  see [12] to [13] of the IAA’s decision. 

6. The IAA did not accept the applicant’s explanations for the various contradictions and rejected his evidence on credibility findings.  The IAA said at [16]:

   16. Country information before me indicates that after the end of the war, the Sri Lankan army (SLA) continued to look for everyone who was somehow affiliated with the LTTE including family members and giving them warnings and threatening them (FN: Danish Immigration Service “Human Rights and Security Issues concerning Tamils in Sri Lanka”, October 2010 CIS19345). While it is possible that a family with an active LTTE member may have somehow managed to escape the notice of the authorities notwithstanding what DFAT describes as a 'high level of awareness' of the civilian populations in the north and east [FN: Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Sri Lanka”, 18 December 2015, CIISEC96CF14143, at 3.37], considering the applicant's inconsistent evidence regarding his brother and his claimed LTTE involvement, the fact that his family have not experienced any problems as a result of this claimed involvement, and his own evidence that notwithstanding his brother's LTTE involvement he did not experience any problems, I have formed the view that the applicant has fabricated this claim and I do not accept that the applicant's brother was in the LTTE and was subsequently rehabilitated. I am satisfied the applicant is not at risk of harm on this basis.

7. The IAA also went on to consider the applicant’s claims of being detained at the airport (at [17] to [19]), and whilst accepting that the applicant travelled from Sri Lanka in 2009 and returned in 2012, the IAA found some of his claims with respect to the events about returning inconsistent, saying at [19]:

   19. The applicant provided copies of pages from his passport verifying that he left Sri Lanka on 16 November 2009 and re-entered on 30 May 2012. I therefore accept that he travelled from Sri Lanka in 2009 and returned in 2012. However, I note that his version at interview of being detained at the airport by the CID differs from his written claims in that he claimed to have been harassed and assaulted all day whereas in his written claims he makes no reference to being hit. Even if I accept that he was detained for a day by the CID, questioned regarding whether he was going to Qatar to raise money for the LTTE, and assaulted, nothing happened as a result of the incident - the applicant returned to the airport three days later and the authorities permitted him to depart Sri Lanka legally without further hassle. This indicates that he was not a person of interest to the CID. Further, he stated he had no problems at the airport on his return to Sri Lanka nearly three years later and was never questioned or required to attend at the CID offices for questioning. While the applicant stated he believes his photo is still on the wall of a CID office at the airport, this is speculative, besides which it does not make sense that the authorities would put up a photo of the applicant, presumably for identification purposes, when they have access to all his personal details and biometrics from his passport. I am not satisfied the applicant has an adverse profile on the basis of suspected LTTE sympathies or that he is at risk of harm from the CID because of that profile.

8. The IAA considered in some detail the applicant’s claims regarding support for the TNA in the elections and the incidents surrounding that (at [22] and [23]), and found some of his claims illogical: see [25].  The IAA found incidents that the applicant claimed with respect to people seeking him out as lacking credibility, and importantly the IAA said (at [29]):

   29. Considering the applicant's evidence overall, I have formed the view that he has sought to exaggerate his election related encounters with supporters of a rival political group and enhance his profile by fabricating the two incidents in which he alleges people associated with the Karuna group came to his home to threaten him. I accept that the applicant did some low-level election related work for the TNA for the September 2012 provincial election campaign and in light of country information which indicates that local government elections the previous year in Sri Lanka 2011 were accompanied by inter-and intra-party violence [FN: United Nations High Commissioner for Refugees (UNHCR) “UNHCR Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka”, 21 December 2012], I also accept as plausible that the following year, the applicant was involved in some low-level election related clashes with supporters of a rival political party which may have been the TMVP/Karuna group. I do not, however, accept that in August 2012 masked and armed men came to his home threatening him against any further support for the TNA or that in September 2012, people came to his home and threatened him either with being taken away or shot on the spot because of his support for the TNA. It follows that I do not accept that if, as the applicant claims three to four months after he arrived in Australia, men on motorbikes were surveying his home, this had anything to do with the applicant's work ley the TNA.

9. The IAA then went on to consider country information on the political situation (at [33]), and considered the applicant’s claim of being harassed and detained overnight because of suspicion of support for the LTTE, rejecting those claims: see [35] to [38]. 

10. The IAA considered the possibility of harm upon the applicant returning to Sri Lanka as an illegal departee: see [43] onwards.  Ultimately, with respect to the claims under the Convention bases, the IAA concluded at [48]:

    48. Considering the totality of the treatment that the applicant will experience, that is, questioning by the authorities during investigations at the airport, combined with possible detention in overcrowded and unsanitary conditions, and the imposition of a fine, I find that this treatment does not amount to serious harm. Further, I note that the I&E Act applies to regulate all arrivals and departures from Sri Lanka; the offence provisions apply equally to all persons who depart Sri Lanka illegally and return. Case law states that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination [FN: Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20]; and Applicant A v MIEA (1997) 190 CLR 225, at 233]. The law is not discriminatory on its terms nor, on the evidence before me, is it selectively enforced or applied in a discriminatory way. Accordingly, I find the investigation, prosecution and punishment of the applicant for illegal departure under the I&E Act does not amount to persecution within the meaning of s.5J(4) of the Act.

11. The IAA then went on to consider the complementary protection provisions (at [51] to [57]), concluding (at [56]):

    56. In considering the applicant's claims in their totality, I do not consider the individual elements of his profile as a young Tamil male from the Northern Province who was involved in a minor way with assisting the TNA in a political campaign and who illegally left Sri Lanka and will be returning as a failed asylum seeker, taken together, mean that he is at risk of significant harm now or in the reasonably foreseeable future. I am not satisfied the applicant is at real risk of significant harm if he is returned to Sri Lanka.

12. As a result, the IAA refused the applicant’s application. 

13. The matter comes before me today on three separate grounds for judicial review.

Ground 1

1. The first ground in this case is framed as follows:

   The Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in that it failed to consider relevant considerations including claims integers of claims or information.

   Particulars

   (a) The Authority did not consider information given in the “second IAA submission” (Decision Record [6], CB 225-226)

2. The history of the matter with respect to this ground is important.  The applicant attended for his interview with the delegate on 16 May 2016.  Soon thereafter, a lengthy submission in writing was prepared by his then-advisers, and sent to the delegate on 30 May 2016.  The delegate then made a decision in September 2016 rejecting the applicant’s claim. 

3. The applicant has sought to place before the IAA information from his mother as to people attending at his mother’s house and seeking him out.  That information appears in the court book (‘CB’) at pp.214 to 216.  The applicant sent a simple email attaching the material without any narrative.  The original document is in Sri Lankan (at CB p.216) and an English translation appears at CB p.215.  The relevant passage is:

   In the meantime, on 19.07.2016, some unidentified persons at 10.20. night came again to home wearing black helmet by the motorcycle, and threatened me to hand over my son, if not, they told that they would kill me.  That is all what I have to say…

4. Whilst not a perfect translation, it is quite clear what the substance of the evidence is and that it is purported to be given by the applicant’s mother in that document. It also appears to be a complaint that was made to the officer in charge of a police station in Sri Lanka, and the information on the face of it, an extract from the police information book, which was extracted on 20 July 2016.  Thus we have a situation where the applicant is seeking to have the IAA consider new information, being the evidence of his mother, as set out in the statement she made to the police in Sri Lanka, of an event that occurred after his interview with the delegate, but prior to the delegate making a decision in September 2016. 

5. In order to determine whether or not new information of this type should be considered, the IAA must turn to s.473DD of the Migration Act 1958 (Cth) (‘the Act’), which is in the following terms:

   473DD. For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any newinformation given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. In this case, the IAA gave reasons for declining to accept this new information (at [6]) of their decision, where they said as follows:

   6. The second IAA submission consists of a copy of a police report in Tamil and an English translation of the report. The major part of the police report deals with matters considered by the delegate and is therefore not new information. There is one element of the police report which is new information. It comprises the claim that on 19 July 2016 unidentified persons came to the applicant's family home and threatened his mother with being killed if she did not hand over her son, the applicant. I note that while the claimed incident occurred after the applicant's SHEV interview, it occurred some two months before the date on which the delegate made her decision. The information therefore pre-dates the delegate's decision. As noted above, the applicant's representative was present at his SHEV interview at which the delegate explained that the IAA is only able to consider new information in exceptional circumstances. The applicant has not provided reasons why the new information was not and could not have been provided before the delegate made a decision, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant's claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.

2. I note at the outset that the IAA did not reject this new information on the basis that there were not exceptional circumstances as set out in s.473DD(a), as the reasoning does not purport to make a determination about the exceptional circumstances test, only the question of whether or not the matters set out in s.473DD(b) of the legislation have been satisfied. The IAA, on a superficial reading of its reasons, appears to reject the claim under s.473DD(b) on the basis that there were not submissions made with the material addressing effectively the four elements that appear on a reading of s.473DD(b)(ii).

3. It does not appear to me that the IAA would have rejected it simply on the basis that there were not submissions about those matters, particularly given that it was provided by an unrepresented applicant. The reasons should not be read in that light. It seems to me that the question that arises is whether it was legally reasonable for the IAA not to accept this new information on the basis that it did not fulfil the test in s.473DD(b).

4. On the face of the material, I would draw the inference that it would have been known to the applicant prior to the delegate’s decision being made: It was threats made to his mother and the applicant has put on no information to indicate that his mother would not have told him about this very soon after the events occurred. For these reasons, it seems to me that it is apparent that it does not pass the test in s.473DD(b)(i).

5. There are four elements to s.473DD(b)(ii):

   (1)whether the material is ‘credible’; 

   (2)whether the material is ‘personal information’;  

   (3)whether the material ‘was not previously known’;  and

   (4)whether the material ‘may have affected the consideration of the… applicant’s claims’. 

6. The question of whether or not the material was credible does not require a final determination about whether the material will be accepted or rejected on credibility grounds.  In this case, on the face of the material, it is difficult to see that one could conclude it was not credible within the meaning of the relevant test: It is a statement made by a person (related to the applicant) of events within their personal knowledge to the local police. 

7. With respect to the second part of the test, the definition of ‘personal information’ is set out in s.5 of the Act by reference to the Privacy Act 1988 (Cth). The definition in the Privacy Act (s.6 of that Act), is in the following terms:

   “personal information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

   (a)  whether the information or opinion is true or not; and

(b)  whether the information or opinion is recorded in a material form or not.

1. In this case, it seems clear that there can be no argument that what was provided was personal information within the meaning of the Privacy Act definition.

2. I note that there are some varying authorities as to whether or not the phrase ‘personal information’ should be read in the context of the Privacy Act or Migration Act, and in the case of the latter, giving this section a definition analogous to the difference between country information and other information in other sections of the Act. It makes no difference in this case as this information would not be country information in any event. Although, I note I have some doubts about whether it is appropriate to read the definition of personal information in this section by analogy to those other sections when there is such a clear definition in the Privacy Act, which to my mind seems different to the distinction in other provisions.

3. The third matter is whether or not this information ‘was previously known’.  Clearly it was not previously known to the Minister.  There is no evidence to suggest it was ever provided to the Minister, and it does not appear on the face of the delegate’s decision, which to my mind is strong evidence that the delegate was not aware of it. 

4. Having traversed the first three factors, it seems to me that it could not have been legally reasonable for the IAA to have concluded that this material did not satisfy the first three factors of this subsection, and that the real determination must have been about whether or not it may have ‘affected the consideration of the… applicant’s claims’.  This was evidence of assailants seeking out the applicant and threatening his mother, of a similar style to evidence that had been relevant in the hearing of the matter, as is apparent from [29] (set out above), and the ultimate conclusions (at [49]) where the IAA said:

   49. I have also considered the applicant's claims cumulatively including his political involvement with the TNA, his Tamil ethnicity and imputed political opinion, the fact that he is a young Tamil male from the Northern Province and the fact that he will be returning as an illegal departee and a failed asylum seeker. Even considered together, I do not consider that this profile makes him a person of adverse interest to the Sri Lankan authorities. I am not satisfied the applicant has a well-founded fear of persecution.

5. Counsel for the first respondent argued that it was a matter for the IAA in their discretion, and the merits of that decision are not reviewable by this Court.  I accept entirely that the merits of the decision are not reviewable by this Court.  However, the decision has to be within the bounds of legal reasonableness.  Despite the ultimately adverse credibility findings against the applicant, at this point it was a procedural determination about whether or not to consider the new information.  It seems to me that it is difficult not to conclude that this information may have affected the consideration of the applicant’s claims.  It is evidence of a witness, of events that are consistent with the version of events that the applicant relies upon for his claims. 

6. I accept that at a hearing, it may be that the IAA so rejects the applicant’s credit that findings of the style discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 may be the outcome. However, that would not have been known until the end of the hearing, and at this stage of the hearing (when considering the s.473DD claims), that was not an appropriate consideration.

7. In the circumstances, I am persuaded that the determination by the IAA that this material did not satisfy s.473DD(b) for the limited reasons that they gave was not legally reasonable. It may have been the case that the IAA’s real intentions were to conclude that exceptional circumstances had not been shown. However, that is not the reason that they made the finding for, and it is not open for me to approach this matter on the basis that it is a rehearing rather than a judicial review on the basis of jurisdictional error.

8. For these reasons, I am persuaded that ground 1 has been made out. 

Ground 2

1. I turn then to ground 2.  Ground 2 is framed in the following terms:

   The Authority fell into jurisdictional error in that it denied procedural fairness to the applicant.

   Particulars

   (a) The Authority did not consider information given in the “second IAA submission” (Decision Record [6], CB 225-226)

   (b) The Authority made the decision without giving the applicant an interview although procedural fairness required this when it made the decision on the basis that the Applicant had fabricated claims. (See e.g. Decision Record [16], [29] CB 229-232)

   (c) The Authority made the decision without giving the applicant an interview although the applicant’s representative had submitted that the delegate at the interview “had not credibility concerns.” (CB 152)

2. The first particular of ground 2 appears to me to raise the same issues as ground 1 but under the rubric of procedural fairness. It does not appear to me that this is open to the applicant, having regard to the operation of the part of the Act as a whole, and in particular, s.473DD(a), which sets out that the provisions of the Act are an exhaustive statement of the natural justice hearing rule. For these issues, one must look to s.473DD rather than the natural justice hearing rule or procedural fairness rules at common law.

3. The second and third particulars relate to a claim that the IAA ought to have had an oral hearing of the applicant because the case involved one where there were significant credibility findings and resulted in findings of fabrication on the part of the applicant. 

4. If one approaches this by way of analogy to a trial in the common law system, one would expect there to be an oral hearing of the witnesses if such significant determinations are to be made: see for example, the determinations at [11] and [29] of the decision. However, this is not a common law trial, but a process as designed by the Parliament and legislated for in Pt.7AA. A significant facet of the legislated process is set out in s.473DB, which is in the following terms:

   (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)  without accepting or requesting new information; and

   (b)  without interviewing the referred applicant.

   (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

   Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

5. I am not persuaded that the fact that the IAA may be making findings of dishonesty or positive findings of fabrication or dishonesty is sufficient to result in a need under s.473DD to obtain new information by way of a form of rehearing of the applicant in light of s.473DB.

6. Indeed, it is difficult to see what new information would be provided, aside from the theoretical opportunity for the applicant to appear in person again in the process, although noting the IAA member would not have seen him before. That does not seem to be information within the concept of s.473DD. For these reasons, I do not accept that this ground has been made out, and therefore I dismiss ground 2.

Ground 3

1. With respect to ground 3, it is framed using the rubric of legal unreasonableness and is in the following terms:

   The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.

   Particulars

   (a) The Authority found an inconsistency in the Applicant’s evidence of what happened at the airport in 2009 when he was departing to go to Qatar, but there was not a clear contradiction between the applicant’s evidence that “they came with a baton to hit me” (CB 78-79, 229 [17]) and his claim to have been assaulted. (CB 229, [19])

   (b) The Authority was unreasonable given the evidence and material before it relating to the culture of abuse and torture in Sri Lanka in not finding that the Applicant had a real chance or a real risk of suffering serious or significant harm. (See e.g. CB 89, 155-164, and compare Decision record including paras. [46], [53] at CB 236-238)

   (c) The Applicant refers to and repeats the particulars to the other grounds of this application.

2. In the first particular, the applicant refers to paragraphs [17] and [19] of the decision of the IAA, where the IAA found that the applicant had made inconsistent claims, because at the interview the applicant said he had been struck when being questioned at the airport, whereas in his written statement (at CB p.78), he said as follows:

   On 13 November 2009, when I was departing for Qatar, the Criminal Investigation Department (CID) stopped me at the airport. My flight was at 9.30am and I was taken to a room and my photograph was taken. They asked me if I was going to Qatar to earn money to financially support the Liberation Tiger of Tamil Eelam (LTTE) and they came with a baton to hit me. I told them I was going to Qatar to work and help my family and that I do not support the LTTE. I fell to the floor and pleaded with them not to hurt me. I was detained at the airport until 6pm that night and then released. I went home distressed and frightened. I saw the officer putting my photograph on the wall in the office and firmly believe that my photo is still at the offices of CID at the airport. 

3. It does not appear to be outside the reasonable ambit of the discretion of the IAA to conclude that there was a material inconsistency between the written statement and the version that was recounted from the interview.  Perhaps, if one were acting for the applicant, one could attempt to persuade a sitting member or judge that there was sufficient looseness of language that it shouldn’t be considered a significant inconsistency, but it is well open to a decision-maker to conclude that it was a significant inconsistency and rely upon it as such.  For that reason, I do not find that particular (a) is made out. 

4. Particulars (b) and (c) again rely upon the lack of a hearing or interview with the applicant, and reframe what particulars (b) and (c) of ground 2 sought to argue under the procedural fairness rubric, but this time under the legal unreasonableness rubric.  For the same reasons, I do not accept that this ground can be made out by the applicant and therefore dismiss this ground.

5. With respect to particular (b), it seems to me that the material was considered by the IAA.  It was open to them to accept or reject the evidence.  They do discuss it at [31], [45] and [46] of the decision, and it does not appear that one could say that it was legally unreasonable for them to reach the view they did on the variety of pieces of evidence before them in this regard. 

Conclusion

1. In conclusion, therefore, I find that the applicant succeeds on ground 1 and that constitutional writs ought to issue for the decision to be quashed and to be re-determined by the IAA.

   [Further argument ensued]

Costs

1. In this matter, the applicant has been successful.  I am persuaded that the applicant’s costs should be met by the first respondent.  The scale fee is $7,467.00.  Having regard to the Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.3, Div.1 of the court scales, there is no provision in migration matters for disbursements to be separately assessed in the way that occurs with respect to Pt.1 of the scale that applies to costs generally, or Pt.2 for child support proceedings.

2. In these circumstances, I am persuaded that $7,467.00 (which is Item 3) is inclusive of filing fees.  It may be that if a person has been exempted from a filing fee, that figure ought to be reduced by the amount of the filing fee ordinarily paid.  That is not the situation here, so I therefore order costs in the sum of $7,467.00.

I certify that the preceding forty–seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 November 2018