AOO16 v Minister for Immigration
[2019] FCCA 1334
•24 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOO16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1334 |
| Catchwords: PRACTICE AND PROCEDURE – Application to further amend grounds of review – consideration of factors in relation to proposed amendments – explanation for delay and reason for amendments – late filing of new material by respondents – model litigant obligations – nature and merit of the proposed amendments – whether any prejudice caused can be overcome – interests of justice. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03 |
| Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 |
| Applicant: | AOO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 119 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 10 August 2017 |
| Date of Last Submission: | 10 August 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Hemachandra |
| Solicitors for the Applicant: | Fourlion Legal Pty Ltd |
| Counsel for the First Respondent: | Mr P Macliver |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant have leave to amend the application (as previously amended on 19 June 2017) in the terms of the Further Amended Application annexed to the affidavit of Saritha Cassandra Elizabeth Andrews, affirmed and filed in these proceedings on 8 August 2017.
The proceedings be adjourned to a directions hearing on a date to be fixed.
Costs of the application to amend reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 119 of 2016
| AOO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
An application filed by the applicant on 16 March 2016 seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 2 March 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
Before the Court is an application to further amend the grounds of review in the Judicial Review Application. The Minister opposes the application to amend.
Background
By way of short factual background, the applicant applied for a Protection Visa on grounds that as a homosexual she feared harm and persecution if she were returned to Zimbabwe: Court Book (“CB”) 131. The Delegate and the Tribunal both found that the applicant was not a homosexual, and therefore her fear of harm or persecution on this basis was unfounded: CB 133 and CB 200 at [57].
The procedural background before this Court is as follows:
a)the applicant, then unrepresented, filed the Judicial Review Application on 16 March 2016 setting out three grounds of review which were no more than bald assertions lacking any particulars (and which for that reason alone may have warranted dismissal of the Judicial Review Application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J, and cases there cited);
b)on 13 April 2016 a Registrar of this Court made orders (“Registrar’s Orders”) allowing the applicant to file any amended Judicial Review Application or further affidavit evidence by 13 June 2016 and listing the matter for final hearing on 31 March 2017;
c)on 29 August 2016 the Minister was contacted by the legal firm now representing the applicant requesting an extension of time for compliance with the Registrar’s Orders, however, the Minister advised that as no lawyer was on the record for the applicant it could not discuss the matter: Affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 20 June 2016 at [7] (“Tattersall Affidavit”);
d)by consent, on 5 October 2016 the Court ordered that the time for compliance in filing an amended application and further affidavit evidence be extended to 26 October 2016: (“Court’s October 2016 Orders”);
e)the applicant provided consent orders to the Court on 21 November 2016 extending time for compliance to file the appropriate documents;
f)the Minister again consented to an extension of time to file the relevant documents, however executed consent orders were never provided to the Court: Tattersall Affidavit at [11];
g)no legal representative having filed an appearance for the applicant, on 1 March 2017 the Minister contacted the applicant’s present legal representative inquiring if written submissions were intended to be filed, and the Minister was advised that the applicant’s legal representative was making arrangements concerning costs, and intended to come on to the record for the applicant: Tattersall Affidavit at [13];
h)the applicant’s legal representative contacted the Minister requesting an adjournment on 10 March 2017, but the Minister opposed this application: Tattersall Affidavit at [14], and on 22 March 2017 the applicant’s legal representative advised the Minister they would not be coming onto the record for the applicant: Tattersall Affidavit at [15];
i)for administrative reasons, namely the lack of availability of a Shona interpreter to assist the applicant, and no lawyer being on the record for the applicant, on 22 March 2017 the final hearing was relisted to 20 June 2017;
j)on 14 June 2017 the applicant’s present legal representative filed a notice of appearance for the applicant, and sought an adjournment of the hearing on 20 June 2017, which the Minister opposed;
k)on 19 June 2017 an amended application (“Amended Judicial Review Application”) and a supporting affidavit sworn by the applicant on 19 June 2017 (“Applicant’s Affidavit”) were filed;
l)on 20 June 2017 the matter came on for hearing and the Court made orders (“Court’s June 2017 Orders”) allowing the applicant leave to file the Amended Judicial Review Application and the Minister leave to file any evidence in reply and an outline of submissions, and further adjourned the matter to final hearing on 10 August 2017;
m)on 31 July 2017 the Minister filed the affidavit of Emmanuel Dominque Solana affirmed 31 July 2017 (“Solana Affidavit”);
n)an email from the applicant’s legal representative was sent to Chambers on 9 August 2017 advising that as a result of the filing of the Solana Affidavit the Amended Judicial Review Application required further amendments (“Proposed Further Amended Judicial Review Application”) and the affidavit of Saritha Cassandra Elizabeth Andrews affirmed 8 August 2017 (“Andrews Affidavit”) was filed in support of the Proposed Further Amended Judicial Review Application;
o)the applicant had provided a copy of the Proposed Further Amended Judicial Review Application to the Minister on 8 August 2017 at 5.18pm: Andrews Affidavit, Annexure CEA-2;
p)the Minister filed written submissions pertaining only to the grounds of the Amended Judicial Review Application on 9 August 2017 as ordered. The applicant’s written submissions, filed the morning of 9 August 2017, addressed the two additional grounds of the Proposed Further Amended Judicial Review Application. Those submissions failed to advert to any authority or reasons for the Court to allow the amendments, nor did they acknowledge leave is required to rely on the additional grounds; and
q)as the Minister opposed the Court granting leave to rely on the Proposed Further Amended Judicial Review Application, the hearing on 10 August 2017 was limited to determining if leave to amend the Amended Judicial Review Application in terms of the Proposed Amended Judicial Review Application ought be granted.
Leave to amend
The Court has the power to allow amendments to applications pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Rule 7.01 of the FCC Rules provides as follows:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
Rule 7.01 of the FCC Rules has been described as a discretionary power which is “extensive” and capable of exercise at any stage of proceedings, although earlier is better than later: SZGTE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 443 at [33]-[34] and [36] per Graham J, from which an application for special leave to appeal was refused by the High Court: SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639.
In SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 (“SZSRR”) at [47]-[48] per Gleeson J the Federal Court stated:
47 At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (‘Circuit Court Rules’) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48 Generally speaking, the exercise of the FCCA's powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding.
[Citations omitted].
The Court has previously held that when determining if it should exercise its discretion pursuant to rr.7.01 and 7.03 of the FCC Rules to allow an amendment the Court should consider:
a)the nature and importance of the amendment to the applicant, and if it is in the interests of justice to grant leave to amend the application;
b)whether the party seeking the amendment is acting in good faith and not unnecessarily delaying proceedings, and in particular if an explanation is to be given for any delay in making the amendment: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
c)whether the amendment sought and grounds for the amendment would be “obviously futile”;
d)whether any injustice, with particular focus on the stage in which the proceedings are at, cannot be adequately compensated for; and
e)the question of case management (with particular reference to Aon Risk at [30] per French CJ and at [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell J).
See: Pietrobon v BMD Constructions Pty Ltd & Ors [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 at [23] per Judge Lucev.
In ABX15 v Minister for Immigration & Anor [2015] FCCA 3003 (“ABX15”) at [20] per Judge Smith this Court held that even if the grounds of the amended application sought to be relied upon at hearing did raise an arguable case, he would still refuse the application for leave to amend as it would be an improper exercise of the power to allow an amendment in circumstances where in that case there was no explanation given for a failure to comply with the Court's directions and a very late application for amendment.
The amendments
The Proposed Further Amended Judicial Review Application is in the following terms, with the proposed further amendments underlined:
1. The tribunal member failed to afford the applicant procedural fairness:
a. Failed to disclose to the Applicant documents in the Second Respondent’s possession for which no disclosure certificate or notification was issued by the Department of Immigration and Border Protection (Documents).
b. The Second Respondent failed to disclose to the Applicant folio 69, being “an email between the Tribunal and the Department of Immigration” (Email).
c. Failing to give the Applicant notice that the Second Respondent would consider issues other than issues arising in relation to the decision under review.
d. The Second Respondent failed to make enquiries with respect to the Memorandum of Agreement of Cession with respect to the sale of the Applicant’s parent’s property at … [address deleted], Harare (Property).
e. The Second Respondent failed to put to the Applicant adverse findings that:
i. the Applicant’s description of her claimed one and only relationship was “unusual and vague” [40];
ii. the Applicant did not have a genuine relationship with her partner … [name deleted] and it was just “more of a friendship in that they travelled together on a bus each day and saw each other on weekends” [40];
iii. the Applicant was not harmed in August and November 2012 [55];
iv. the Applicant was not a lesbian [54] or that she would genuinely seek to be a lesbian in Zimbabwe [54] and [57];
v. the Applicant joined the ROHR Zimbabwe for the sole purpose of obtaining her visa.
f. Making adverse credibility findings based on the following assumptions or incorrect factual findings:
i. that … [name deleted], the person whom the Applicant attempted to have a relationship with was a member of the Zanu-PF [28] and [54];
ii. failure to bring her brother to attend the Tribunal to give evidence [44] or any other witnesses [35];
iii. the intelligence authorities in Zimbabwe were interested in the Applicant because she was a lesbian [49] and [54];
iv. the Applicant researching places where she would be free to be homosexual and that she was unaware she would be free to be a lesbian in South Africa [52] [line 39 page 12 of the Transcript] ;.
v. the purpose of the ROHR Zimbabwe Letter dated 25 October 2015 (ROHR Letter) was obtained “solely because the applicant felt she needed evidence to support claims” [46] when it was obtained in the Applicant’s own words:
1. “but mainly to establish if – well, establish how I could live with my sexual orientation if I were to go back to…..to find out what the current situation in Zimbabwe towards people of my orientation were at present” [Transcript P13 L31 to 34]; and
2. “if I go back to Zimbabwe would I be safe and, therefore if I go back to Zimbabwe would I thrive and be able to get on with my life or would I pretty much be facing a bleak situation, such as, my death if I went back” [Transcript P14 L35 to 38].
vi. the letter from … [name of Church minister deleted] from the … [name of Church deleted] in Zimbabwe was a letter of support [47], when it was evidence of her marriage, her work as a pastor and the termination of same at the time she separated from her husband.
vii. The workplace and her community were separate [48].
g. Failed to consider the potential social group of persons who are perceived by the community at large to be lesbian/homosexual.
i. meant that the Applicant would no longer be employed and be able to support her minor daughter; and/or
ii. with regards to how easy/difficult it would be for the applicant to find alternative accommodation and/or employment elsewhere in rural Zimbabwe and whether any form of unemployment benefits were offered by the Zimbabwean government.
2. The tribunal member failed to take into account relevant considerations:
a) Memorandum of Agreement of Cession [P 105 to 109 of the Court Book].
b) The Applicant belonged to a particular social group of “persons perceived to be lesbian/homosexual”.
c) The Applicant has been forced to be separated from her minor daughter (at the time 16 years of age) who is living with her parents in Zimbabwe who the Applicant has not seen since she left Zimbabwe.
d) Moving to another part of Zimbabwe:
e) The Applicant obtained the RHOR Letter for the purposes of:
i. “but mainly to establish if – well, establish how I could live with my sexual orientation if I were to go back to…..to find out what the current situation in Zimbabwe towards people of my orientation were at present” [Transcript P13 L31 to 34]; and
ii. “if I go back to Zimbabwe would I be safe and, therefore if I go back to Zimbabwe would I thrive and be able to get on with my life or would I pretty much be facing a bleak situation, such as, my death if I went back” [Transcript P14 L35 to 38].
3. The tribunal member took into account irrelevant considerations:
a) Whether the Applicant’s relationship with … [name deleted] was a genuine relationship or not, as a genuine relationship is not conclusive evidence of a person’s sexual orientation.
b) The Applicant’s current relationship status [33] [page 18 Transcript] as this is not conclusive evidence of a person’s sexual orientation.
4. Apprehended Bias
a. Arriving at conclusions without evidence or a reasonable basis with respect to:
i. there being no evidence of her parents selling their Property [22];
ii. the purpose of the RHOR Letter as the applicant never stated “She thought how best to get her visa and thought she should join them” [34] and [46];
iii. time which passed between the first contact with RHOR Zimbabwe and the RHOR Letter;
iv. the Applicant’s evidence of the verification process undertaken by RHOR;
v. failure to follow through with fact finding in relation to the RHOR letter;
vi. the purpose of the Church Letter [47];
vii. separation between work and the community [48];
viii. the conclusion the Applicant’s relationship with … [name deleted] was unusual and vague;
ix. the Applicant was unaware she could call witnesses [42] contrary to the Applicant’s evidence that she did not know how she would be able to bring someone from Zimbabwe to be a witness [Transcript P16 Line 22 to 23];
x. failure to call her brother as a witness when her brother giving evidence would not serve any useful purpose since any evidence would be of no probative value [44] [45];
xi. that intelligence authorities in Zimbabwe kept her under surveillance [49] when the Applicant never stated that the intelligence authorities in Zimbabwe kept her under surveillance; and
xii. the applicant was not a lesbian or would genuinely seek to live in Zimbabwe as a lesbian [57];
b. The conclusions were reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly:
i. Agreement of Cession;
ii. RHOR Letter; and
iii. Church Letter.
5. Improper Exercise of Power
a. Significant factual errors prevented the Second Respondent from making a proper, genuine and realistic consideration to the merits of the Applicant’s claim.
b. Significant factual errors caused the Second Respondent not to have properly understood the merits of the Applicant’s case.
c. The Second Respondent’s consideration of the RHOR letter was not a proper genuine and realistic interpretation and is indicative of a perfunctory and cursory consideration of what processes were followed by RHOR Zimbabwe to grant the Applicant membership.
d. There was no proper, genuine and realistic consideration of the correlation of the anti-homosexual propaganda and the attacks on the Applicant.
Consideration
Delay and reason for amendments
The filing of the Proposed Further Amended Judicial Review Application was said by the applicant to be occasioned by the Minister filing the Solana Affidavit. The documents annexed to the Solana Affidavit contained documents from the Tribunal’s file in this matter, in particular:
a)integrity checks previously undertaken by the Department of Immigration & Border Protection (“Department”) into the applicant’s employment claims: Solana Affidavit, pp.4-11; and
b)an internal email chain between officers of the Tribunal regarding inquiries to be made concerning an organisation called Restoration of Human Rights Zimbabwe (“ROHR”) (“Tribunal E-Mails”).
The applicant had previously made a Freedom of Information request (“Department FOI Request”) on 13 April 2016 requesting that the Department release “all documents relating to my protection visa and the refusal of that visa”, and on 16 September 2016 the applicant received a response releasing all documents: Applicant’s Affidavit, Annexure JT3. Again on 13 April 2016 the applicant made a second Freedom of Information request, on this occasion directed to the Tribunal (“Tribunal” FOI Request”): Applicant’s Affidavit, Annexure JT4. On 10 May 2016 the Tribunal released all documents save for one document that was partially released and ten other documents exempt in full from release. Relevantly, the Freedom of Information officer determining the Tribunal FOI Request (“Tribunal FOI Officer”) deemed the Tribunal E-Mails exempt based on the following explanation:
Folio 69 is an email between the Tribunals and the Department of Immigration. I find this document contains information in relation to the potential investigation of breaches of the Migration act. I find that the disclosure of this document could reasonably be expected to disclose procedures in relation to matters arising out of breaches or evasions of the law which would, or could be reasonably likely to prejudice the effectiveness of this method in the future.
I consider that an edited version of the document cannot be released under s.22 of the FOI Act (the Act). I therefore find that disclosure of this document would, or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures and that it is fully exempt from disclosure under s.37(2)(b) of the Act.
Applicant’s Affidavit, Annexure JT5.
The particular enquiry concerning ROHR was contained in an email of 4 November 2016 (“Folio 69”) from the Tribunal to the Department, and was relevantly in the following terms:
The Presiding Member requires further information on a letter of support provided by the applicant to the Tribunal, specifically,
• If the Department could contact ROHR (Restoration of Human Rights) Zimbabwe and ask for the name of their National Coordinator -Zimbabwe.
• If … [name deleted] is a member of the Board or has any other role (official or otherwise) with the organisation in Zimbabwe or if they are aware of this person.
• If it is routine for the organisation or members on behalf of the organisation to write letters of support for people (including other members of the organisation) seeking protection in other countries.
• If they do write such letters do they have a process for providing such letters and who should sign those letters.
The Tribunal E-Mails formed part of the Solana Affidavit. The Solana Affidavit was not filed, nor received by the applicant, until 31 July 2017. The applicant then wrote to the Minister on 4 August 2017. In the 4 August 2017 letter the applicant indicated that it sought comment on enquiries made at Folio 69 by the presiding member of the Tribunal as to the details relating to ROHR and whether a reply had been received by the Tribunal prior to the Tribunal hearing, and noted that the response to the enquiries may have been important to the Tribunal’s consideration of the issues, and in particular to a letter said by the applicant to have been drafted by ROHR, and the Tribunal’s ultimate conclusions with respect to that letter which were adverse to the applicant, and which, if discussed, during the course of the Tribunal hearing would have allowed the applicant to put further detail or obtain further information to be put before the Tribunal. The applicant indicated that supplementary submissions could not be finalised until a response was received to the letter: Andrews Affidavit, Annexure CEA-1.
The Minister responded on 7 August 2017, advising that no response had been received to the enquiries made by the Tribunal concerning ROHR, or any of the other matters enquired about: Andrews Affidavit, Annexure CEA-1.
The applicant responded on 8 August 2017 as follows:
…
It is now apparent to us that the Amended Application requires further amendments and I write to seek your client's consent in this regard. Please see attached the proposed Further Amended Application.
You will note that the majority of the amendments relate to the issues surrounding the RHOR letter (raised in our letter of 4 August 2017), the subject matter of the enquiries made by the Second Respondent prior to the AAT Hearing which was only disclosed to us after the Amended Application was filed.
Prior to receipt of the email pertaining to the RHOR enquiries made by the Second Respondent (Email), it was clear to us that there was:
1. the Second Respondent's state of mind or possible pre-judgment prior to the AAT Hearing;
2. the method adopted by the Second Respondent in relation to all evidence presented to the Second Respondent and her negative approach to the evidence provided.
Prior to receipt of the Email, we were not in a position to make out any grounds of bias and/or improper exercise of power.
Further, the Second Respondent ought to have provided a copy of the Email to the Applicant prior to the hearing. Further you ought to have included the Email in the Court book as the ROHR letter was a document which was held by the Second Respondent to have been produced as a result of "self-reporting" and was concluded to have been submitted for a reason other than the Applicant's true intention of the document. The Applicant was denied an opportunity to properly address the issues and incorrect conclusions drawn from the ROHR Letter.
The Email and the Second Respondent's subsequent failure to follow up to obtain the information initially sought in relation to the ROHR Letter is evidence of the Second Respondent's bias towards the Applicant and that the Second Respondent had prejudged the merits of the Applicant's case presumably based on the Delegate's decision. It appears that the Second Respondent engaged in improper exercise of power due to the fact that there was no proper, genuine and realistic consideration given to the merits of the Applicant's case.
Many of the conclusions arrived at were due to factual errors and your correspondence of yesterday confirming the Second Respondent failed to follow through with her investigation with respect to the RHOR letter affirmed our initial views with respect to bias and improper exercise of power.
….
Andrews Affidavit, Annexure CEA-2.
The delay in making of the Proposed Further Amended Judicial Review Application is said to arise as a result of the late disclosure of the Tribunal E-Mails which it is said ought to have been disclosed in the Department FOI Request or the Tribunal FOI Request. The Minister argued that the failure to disclose the documents was the decision of an independent Freedom of Information officer not to release the Tribunal E-Mails as they disclosed internal processes, and it was the Minister who provided the Tribunal E-Mails as it felt it was in the interests of justice to do so. While the late release of the Tribunal E-Mails was conceded as problematic by the Minister, it was said that it was the Tribunal FOI Request the applicant ought to take issue with.
The Court is not concerned with the merits of the decision made by the Tribunal FOI Officer. The Tribunal FOI Officer disclosed the nature of the documents and formed the view they could not be disclosed in accordance with the provisions of the Freedom of Information Act 1992 (Cth) (“FOI Act”). Whilst the applicant had an opportunity to apply for a review of the Tribunal FOI Officer’s decision regarding the Tribunal FOI Request, that is not to the point.
The Minister has obligations as a model litigant as set out in Appendix B of the Legal Services Direction 2017 (“Legal Services Direction”), and sourced in Pt.VIIIC of the Judiciary Act 1903 (Cth). Put broadly, Note 2 to Appendix B of the Legal Services Direction summarises the obligation as being, in essence, to be a model litigant and as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards.
In Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 at [78] per Croft J referring to model litigant obligations the Supreme Court of Victoria stated:
… a government agency should not ordinarily be seen to have any legitimate private interest in civil litigation. Rather, the role of a government agency in litigation… is to ensure that all the relevant material is brought before the court or tribunal to ensure that a decision informed by all of the evidence is reached. Where, as in these proceedings, it was readily apparent that evidentiary material crucial to the outcome of the case was absent…it should be seen as being incumbent upon a party who is subject to the Model Litigant Guidelines to ensure the other side is made aware that the evidence should be called, even in circumstances where the court or tribunal has failed to do so. …
The disclosure, albeit late, of Folio 69, was consistent with the Minister’s model litigant obligations.
In this case it is pertinent to observe that the filing of the Court Book containing documents relevant to these proceedings was undertaken by the Minister (as it usually is) and that the Court Book was filed on 28 April 2016. That is some 12 days before the determination of the Tribunal FOI Request by the Tribunal FOI Officer exempting, amongst other documents, Folio 69 from being released under the FOI Act. The difficulty with the Minister’s argument that the applicant ought to take issue with the outcome of the Tribunal FOI Request is that the Minister has, expressly in submissions, indicated that providing Folio 69 to the applicant was in the interests of justice in this case. That must be right: Folio 69 contains a relevant enquiry by the Tribunal to the Department in relation to a relevant matter, to which the Tribunal wanted a response. That made Folio 69 a document which ought to have been included in the Court Book, both because it was relevant to the applicant’s Judicial Review Application (as it then was before any amendment), and because the Tribunal FOI Officer had not as at the time of the filing of the Court Book exempted Folio 69 from release. Even in circumstances where a document is exempt from release under the FOI Act the question must arise as one of fact in each case as to whether or not a document is relevant for the purposes of judicial review proceedings under the Migration Act and ought to be included in the Court Book, and if it is not included in the Court Book, and not produced upon request to the Minister, whether an applicant might then otherwise seek to have it produced under a subpoena for production: WZARE v Minister for Immigration & Anor [2012] FMCA 963 at [7]-[8] per Lindsay FM.
The justification in this case for the delay in proposing the Proposed Further Amended Judicial Review Application is said to be the filing of the Solana Affidavit some 10 days before the 10 August 2017 hearing, wherein the content of Folio 69, previously undisclosed, was disclosed. Plainly, the Minister disclosed Folio 69 because it was in the interests of justice to do so. In those circumstances, the delay and the lateness of the proposed amendments can simply be put down to the lateness of the Minister in disclosing, in particular, Folio 69. The amendments proposed by the applicant were formulated and subsequently forwarded to the Minister within a reasonable period of time. It follows that ABX15 is distinguishable because there is an explanation for the amendments sought, and the amendments sought have been proposed within a reasonable period of time from the disclosure of Folio 69. In those circumstances there is no fault on the part of the applicant in relation to the delay, which, in simple terms, was caused, and is explainable, by the Minister’s late disclosure, rather than anything done or not done by the applicant.
Nature and merits of proposed amendments
In considering the nature and merits of the proposed amendments the following findings by the Tribunal regarding the ROHR letter in the Tribunal Decision at [34] (at CB 196) and [46] (at CB 198) need to be borne in mind:
34. In relation to the letter provided by ROHR, the applicant stated that she joined in July 2015 following the refusal of her application by the delegate. She thought how best to get her visa and thought she should join them. She obtained their details from the internet, called and explained her story and on the basis of the conversation decided to join. She stated she spoke to people in Zimbabwe but when asked why her membership card had UK details on it responded that they told her that as she was outside of Zimbabwe to contact the UK about her membership. The Tribunal put to her that she solely joined the organisation ROHR to obtain a letter to support her claim to be a lesbian in Zimbabwe. The applicant responded that the main reason was to have a conversation about being safe in Zimbabwe or would she face a bleak situation such as her death. She told the Tribunal she first spoke to them in July and they wrote letter in October and she had to provide some basic evidence like her name, details of her parents, addresses and she told them her story and they wrote the letter…
46. The Tribunal does not accept the letter the applicant provided from by ROHR is independent evidence that she is a lesbian and at risk of being persecuted in Zimbabwe if she returns on the basis of her sexuality. The applicant's evidence is that she spoke to them, told her story and the letter was written on that basis. She indicated that she obtained the letter following the delegate's decision as she felt she needed some proof. The Tribunal gives no weight to the letter as evidence that the applicant is a lesbian as it was written on the basis·of a telephone call where the applicant self-reported and was provided solely because the applicant felt she needed evidence to support her claims.
The proposed amendments are set out in full at [10] above. It is convenient to commence with ground 4.
Ground 4
Ground 4 is an allegation of bias, and it is accepted that a claim of bias must be distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Apprehended bias requires that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of the materials and the relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The fact that a decision-maker may previously have given thought to matters under consideration does not necessarily expose a reasonable apprehension of bias: R v The Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; (1969) 43 ALJR 150; [1969] ALR 504, CLR at 553-554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. The Tribunal had made an inquiry, as it is entitled to do, but that that inquiry was made prior to the Tribunal hearing does not, of itself, give rise to a reasonable apprehension of bias.
It is however, conceivable that an argument might be maintained that the Tribunal did not in this case obtain information which, at the point in time at which the further information in Folio 69 was requested, it must have thought might be relevant, and proceeded to make findings and a decision without that evidence which might have been relevant. At present there is no evidence as to what occurred with respect to the ROHR letter, and its compilation, but it may, for example, be that if the inquiry had been answered by the Department that there would be evidence of the process followed by ROHR, and it might be that their process was to seek to confirm what was put to them by the applicant, and if that was confirmed, to issue the relevant letter in the terms sought by the applicant. If that were the case, the letter might be said to reflect the views of ROHR following investigation, rather than being merely the reflection of a self-report by the applicant, as was found by the Tribunal. Simply put, it might be argued that if it was appropriate for the Tribunal to make an inquiry, then it was appropriate for the Tribunal to wait to receive a response (at least for a reasonable time, and there is no evidence here that the Tribunal made any follow-up inquiry), even if the ultimate answer be a response from the Department that they were unable to find out or progress matters further. For the Tribunal to simply leave the matter in abeyance, with a void, and to proceed without explanation or consideration of why the information not obtained was no longer necessary or relevant, might arguably be a basis for a fair-minded lay observer, knowing of the inquiry, and knowing of the matters in issue, and knowing that the Tribunal had not followed up on the inquiry, or received a response to it, and then not disclosed the inquiry or the lack of follow up or response to the inquiry, to reasonably apprehend that the Tribunal might not have brought an impartial mind to the assessment of the relevant issue. On that basis the proposed amendments to ground 4 at (a)(ii)-(v) and (b)(ii) are certainly arguable.
There can be no doubt that the other proposed amendments might have been made in the Further Judicial Review Application. That, however, ought not preclude them from being included in a grant of leave to amend in circumstances where it appears that individually and cumulatively they might be plausible particulars of apprehended bias, which they are, especially if considered cumulatively with paragraphs (a)(ii)-(iv) and (b)(ii).
The proposed amendments to ground 4 are, therefore, arguable.
Ground 1
The proposed amendments to ground 1 appear to further particularise, or provide examples of, an alleged breach of s.424A of the Migration Act by virtue of the Tribunal failing to give notice of determinative issues to the applicant. In particular the ground refers to the applicant’s claims and supporting documents in relation to ROHR and that the Tribunal made adverse credibility findings based on incorrect factual findings and assumptions. For essentially the same reasons as are set out at [28] above, the inclusion of the material in relation to the ROHR letter and the reasons for the applicant joining ROHR are matters which might now give rise to an arguable case that, in particular, the Tribunal made adverse credibility findings based on assumption or incorrect factual findings which were seriously erroneous, and in relation to which the applicant ought properly be given an opportunity to pursue upon judicial review: that is because adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis: SZVAP & Anor v Minister for Immigration & Border Protection & Anor [2015] FCA 1089; (2015) 233 FCR 451; (2015) 67 AAR 376 at [20]-[21] per Flick J; Minister for Immigration & Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J. That is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J.
The applicant ought not be precluded from making the other amendments referred to in proposed amended ground 1 on the same basis as outlined in [29] above with respect to ground 4.
It follows that the proposed amendments to ground 1 are arguable.
Ground 2
The nature of the proposed amendment to ground 2 is to suggest that the Tribunal failed to take into account the involvement of the applicant in the ROHR for the reasons she stated she had done so.
It follows from what the Court has said in relation to ground 4 at [28] above that if the issue of the ROHR letter can be approached in a particular manner, then that may also lead the applicant to be able to establish a failure by the Tribunal to take into account a relevant consideration, but that may depend upon particular evidentiary matters. That said, and subject to those evidentiary matters, it might be arguable that the Tribunal failed to take into account a relevant consideration of the type set out in the proposed amendment to ground 2, and therefore the proposed amendment to ground 2 may be arguable.
Ground 5
Ground 5 is a wholly new ground which asserts that the Tribunal improperly exercised its power because it made “significant factual errors” that led to the Tribunal failing to undertake a “proper, genuine and realistic consideration” of the merits of the applicant’s claims: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [29] and [32]-[33] per Griffiths, White and Bromwich JJ.
The Court acknowledges that there is no error of law in the Tribunal:
a)making a wrong finding of fact: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1; or
b)misconceiving the evidence of the applicant: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] per Marshall, Mansfield and Siopis JJ.
It is, however, necessary if the Tribunal is to undertake a proper, genuine and realistic consideration of the merits of an applicant’s claims for the Court to have engaged in an active intellectual process in considering the merits of the case before it: Carrascalao at [47] per Griffiths, White and Bromwich JJ. In order to determine that issue it is necessary for the Court to undertake an evaluative judgment taking into account available evidence and reasonable inferences as to all of the relevant facts and circumstances of the case: Carrascalao at [47] per Griffiths, White and Bromwich JJ. In making that assessment the Court considers that it must be relevant to take into account (having regard to particular (c) of ground 5) that at one point in time the Tribunal must have considered it necessary for its consideration of the merits of the applicant’s review application to have before it the information that it sought from ROHR, but without which it ultimately proceeded to consider the merits of the applicant’s review application. It might be argued that by failing to obtain the information that it had requested (and it may be relevant that it requested it from the Department, as opposed to, for example, a distant foreign government or an overseas NGO) but at some point, for some reason, it determined to proceed without, may not have resulted in a genuine, proper and realistic consideration of the applicant’s claims, and that arguably, it might have been an improper exercise of the power of the Tribunal as a consequence. That, however, is an argument which obviously needs appropriate and clear evidence and will not lightly be acceded to: Carrascalao at [48] per Griffiths, White and Bromwich JJ, In the circumstances, and bearing in mind what has previously been said, whilst there is no doubt that the other proposed amendments to ground 5 might have been made in the Further Judicial Review Application they ought not be precluded from being included in a grant of leave to amend in circumstances where they appear both individually and cumulatively (including cumulatively in relation to other grounds) to possibly be plausible. It follows that the proposed amendments to ground 5 are arguable.
Prejudice and interests of justice
The Court must consider prejudice to the parties and the interests of justice in determining if leave to amend ought to be granted.
The Court observes that:
a)in the context of migration proceedings, the necessity to make amendments must be considered in light of the fact that those amendments might ultimately be critical in the context of the future life and liberty of the applicant. Therefore, the mere fact that there might be a second or third round of amendments necessary in a judicial review application in migration proceedings ought not to be considered out of the ordinary, particularly when the proceedings were originally commenced by the applicant in person. A second or third round of amendments in commercial cases, where a person’s life or liberty is not at stake, would rarely be considered out of the ordinary;
b)if leave to make the amendments sought is not granted, the applicant will still have the opportunity to argue the Amended Judicial Review Application;
c)in these proceedings because the reason for the delay in the making of the Proposed Further Amended Judicial Review Application is the delay by the Minister in disclosing, in particular, Folio 69, the usual rule that the amending party ought to pay the costs of the amendment might warrant more detailed scrutiny by the Court, but the Court’s task is made no easier by the fact that some of the proposed amendments are amendments that could have been made in the Amended Judicial Review Application. Thus, the extent to which any prejudice which arises might be remediable by costs for either party is not immediately apparent;
d)whilst the applicant could have raised some of the amendments based on the material before it as part of the Amended Judicial Review Application, and not just as a result of the Solana Affidavit, it may be that “however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side”: Clarapede & Co. v. Commercial Union Association (1883) 32 WR 262 at 263 per Brett MR;
e)in circumstances where the applicant has to make amendments to deal with the effect of, in particular, Folio 69, and with the consequent delay caused by the making of the amendments there is, in any event, no significant prejudice in allowing further amendments over and above those necessary because of Folio 69, to be made by the applicant, and to allow the applicant to properly conduct its case as it best sees fit, particularly in circumstances where the Court has found certain amendments are arguable and not obviously futile: SZSRR at [48] per Gleeson J; and
f)in terms of case management, there is no reason to consider that either side is any more prejudiced than the other by both the delay in these Reasons for Judgment being delivered (a consequence largely of a case load in the Perth Registry of this Court which the Federal Court described as “extreme”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, shortly after this matter was argued), with all of the case management, and other consequences and effects, both obvious and not, that flow therefrom.
In all of the above circumstances the Court is of the view that the Minister is not unduly prejudiced by the amendments sought to be made by the applicant, and that it is in the interests of justice that those amendments be made.
Observation on an order sought
The Court notes that in the Amended Judicial Review Application and the Proposed Further Amended Judicial Review Application the applicant has sought an order in the following terms:
An order that the Decision be remitted to the Second Respondent with a direction that the Applicant meets the requisite criteria to obtain a protection visa.
This additional order was not sought by the applicant in the Judicial Review Application prior to her obtaining legal representation, and first appeared in the Amended Judicial Review Application. To make that order as sought might require the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court cannot ordinarily exercise an administrative decision-maker’s discretion, nor issue a direction to a decision-maker to exercise a power to reach a particular result: Randall v Northcote Corp (1910) 11 CLR 100; (1910) 16 ALR 249; [1911] VLR 163, CLR at 105 per Griffith CJ; Re Coldham; Ex parte Brideson (1989) 166 CLR 338; (1989) 84 ALR 165; (1989) 27 IR 233; (1989) 63 ALJR 161; (1989) 31 AILR 37. Ordinarily, a court engaged in judicial review will therefore not make an order of the type set out at [42] above. The circumstances in this case are not analogous to those which saw the High Court enforce an earlier writ of mandamus by issuing a peremptory writ of mandamus in Plaintiff S297/2013 v Minister for Immigration & Border Protection [2015] HCA 3; (2015) 255 CLR 231; (2015) 89 ALJR 292; (2015) 316 ALR 161.
The Court did not hear argument in relation to the order set out at [42] above and has therefore simply made observations with respect to that order at this stage. The issue is one which can be addressed by the parties, if needs be, at a later stage.
Conclusion and orders
The Court has concluded that the applicant will have leave to rely on the amendments in the Further Amended Application annexed to the Andrews Affidavit. The proceedings will otherwise be adjourned to a date to be fixed for further directions. Costs will be reserved. There will be orders accordingly.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 May 2019
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