Bpa17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 582
•30 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BPA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 582
File number(s): SYG 1123 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 30 March 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Temporary Protection visa – whether Authority unreasonably failed to consider whether it should exercise the power under s 473DC of the Act to obtain information from the applicant – whether Authority failed to consider claims – no jurisdictional error application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3
Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 473DC, 476
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Number of paragraphs: 27 Date of hearing: 13 May 2020 Place: Sydney Counsel for the Applicant: Mr P Bodisco (direct access), by telephone Counsel for the First Respondent: Mr J Kay Hoyle, by telephone Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 1123 of 2017 BETWEEN: BPA17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
30 MARCH 2021
THE COURT ORDERS THAT:
1.The applicant has leave to rely on ground 1 of the draft amended application that has been marked “MFI1”.
2.The applicant’s application for leave to rely on grounds 2 and 3 of the draft amended application that has been marked “MFI1” is refused.
3.The application is dismissed.
4.Subject to order 5 the applicant pay the first respondent’s costs set in the amount of $7,206.
5.The parties have liberty to apply within 14 days after the day on which these orders are pronounced to vary order 4.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a national of Iraq, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV). The applicant relies on three grounds set out in a draft amended application referred to in the applicant’s counsel’s written submissions.[1] All three grounds relate to a particular aspect of the applicant’s claims for protection, namely, his claim that his appearance exposes him to a significant risk of harm.
[1] I marked the draft application “MFI1”
CLAIMS FOR PROTECTION
I will begin by setting out the applicant’s claims for protection, as these are set out in his application for a TPV. [2] The applicant there claims as follows:
[2] CB79-81
(a)The applicant was born in Kuwait. The applicant’s father was registered as belonging to the Bidoun group.
(b)When the applicant was two years old he and his family were displaced, and they entered Iraq. The applicant and his family acquired Iraqi nationality.
(c)The applicant was unable to complete his education. He started to work in a barber’s shop when he was a child. The applicant worked with his brother in a barber’s shop the applicant’s father had bought.
(d)After the fall of Iraq, armed groups started to terrify citizens and carry out arrests. The targeting of barber shops spread in Iraq and intensified in 2010. Militias of the Mahdi Army started to “comb the barbershops” and obliged barbers to adhere to Islamic haircuts, and to refrain from European haircuts. They also banned barbers from shaving beards.
(e)In the morning of a particular day in 2010, an armed group surprised the applicant’s father just before he was going to open the barber shop, and shot him dead using silencer guns. The armed group accused the applicant’s father of non-conformity with the norms of religion which, according to them, ban “the use of fashionable and effeminate haircuts to beautify men”.
(f)The police attended the scene; inspected the applicant’s father’s corpse, and they seized all the “letters sent to us threatening us with murder if my father fails to quit and close the shop”. The police did not come up with any clue leading to the applicant’s father’s killers.
(g)After the killing the applicant’s brother escaped to another city to hide. After working for a while to save money, and with the help of uncles, the applicant’s brother left Iraq for Australia where he was granted a temporary visa.
(h)The applicant remained in Iraq until he managed “to sell the closed barbershop”. With the proceeds of sale and the assistance of an uncle, the applicant left Iraq in 2012.
(i)The applicant is seized with fear; and he does not know what will happen to him in the future. The barber profession in which the applicant is skilled “became a taboo and a place for propagating atheism and apostasy”, and that “those practicing [sic] it deserve death”.
Before the delegate (TPV interview) the applicant claimed that while in Australia he converted to Christianity. The applicant also claimed he feared harm because of his haircut and tattoos.[3]
[3] CB158, [31]
AUTHORITY’S REASONS
The Authority:
(a)accepted the applicant was born in Kuwait, is of Bidoon heritage, his family are among a small minority of Bidoon who are Shia, and is a citizen of Iraq;[4] but it did not accept the applicant or his family had experienced any form of discrimination, or was or is of any adverse interest to any armed group, because of the applicant’s, or of his family’s, Bidoon ethnicity;[5]
(b)accepted that the applicant attended Christian churches in Australia from time to time, and was baptised in 2014; but it did not accept the applicant has any genuine interest in or commitment to the Christian faith; and the Authority was not satisfied the applicant converted to Christianity for any reason other than to strengthen his claims for protection;[6]
(c)accepted the applicant’s father was a barber who operated a hairdressing business in Basra, and that the applicant and his brother worked with their father in that business; but it did not accept the applicant’s father owned the premises from which the business was conducted;[7]
(d)found it was plausible the applicant’s father died in 2010, but the Authority was not willing to accept the applicant’s father died as a result of an attack by a militia group for reasons related to his profession, or in an attack by a militia group for any other reason;[8]
(e)did not accept the applicant’s brother fled following the applicant’s father’s death;[9] and
(f)did not accept that the barber shop where the applicant worked was closed following his father’s death or for any other reasons, but found the applicant continued to work as a barber in the barber shop, and that he continued to live with his family in the family home in Basra until he departed Iraq.[10]
[4] CB155, [17]
[5] CB156, [20]
[6] CB158, [28]
[7] CB159, [37]
[8] CB160-161, [42]
[9] CB161, [45]
[10] CB161, [47]
Particularly relevant to the grounds on which the applicant relies is the Authority’s treatment of the applicant’s claim of fear of harm based on his appearance. The Authority referred to the applicant claiming during the TPV interview that he feared harm due to his haircut and tattoos; noted the applicant did not at any time before the TPV interview refer to fear of harm relating to his haircut, tattoos, or any other aspect of his appearance; the applicant has not claimed he experienced any harm in Iraq in relation to any aspect of his appearance; and was willing to accept that if the applicant returns to Iraq he may be perceived to have a western appearance relative to other Iraqis due to his current hairstyle and one or more tattoos.[11]
[11] CB158, [31]
The Authority then referred to country information which the Authority accepted reported that; Shia groups have been known to enforce strict Islamic rules of behaviour and dress, and have been considered to be responsible for attacks on women not wearing the veil, persons selling liquor, and “LGBTI people”; individuals and members of religious minority groups have been targeted for their perceived “un-Islamic” of “western”” behaviour and dress; groups have targeted perceived gay men, as well as men considered to be effeminate because of their haircut or dress; there has been a targeted campaign of brutal killings of “emos”, “a term allegedly used in Iraq to describe ‘non-conformist’ youth, but also gay and effeminate men”, noting, however, that the UNHCR advised that media reports citing dozens of victims in this campaign could not be independently verified; there are credible reports of threats to, and beatings, kidnappings and murders of, the Iraqi emo community in 2012 and 2013; and in February 2013 the Iraqi Ministry of the Interior made a statement describing “emo” clothing, including dark clothes, skull-print t-shirts, and nose-rings, as “emblems of the devil”.[12]
[12] CB158-159, [32]-[33]
The Authority concluded the applicant has not claimed he is “emo” in appearance, or that he has been or will be perceived to be “emo”, effeminate, or gay on the basis of his appearance;[13] and although the Authority said it accepted the applicant’s appearance may be perceived to be western, it did not accept the applicant will be perceived to be “emo”, effeminate, or gay on the basis of his appearance.
[13] CB159, [34]
On the basis of these findings the Authority concluded it was not satisfied the applicant was a “refugee” within the meaning of s 5H(1) of the Act, and therefore it was not satisfied the applicant satisfied the criterion provided for by s 36(2)(a) of the Act; and the Authority was also not satisfied the applicant met the complementary protection criterion provided for by s 36(2)(aa) of the Act.
GROUNDS OF APPLICATION
As I noted at the beginning of these reasons, the applicant relies on the grounds of application stated in a draft amended application referred to in the applicant’s counsel’s written submissions. At the hearing I suggested, and counsel for the parties agreed, that I would treat the applicant as having abandoned the grounds stated in the current application, and I will treat the applicant’s reliance on the grounds stated in the draft amended application as an application for leave to amend. That means there are three potential outcomes for each ground: leave will be refused on the ground of futility; leave will be granted but the ground not upheld; or leave will be granted and the ground upheld.
Ground 1 of draft amended application
Ground 1 of the draft amended application is as follows:
The IAA has unreasonably failed to exercise its powers under s 473DC to invite the Applicant to attend a hearing.
a.The IAA acknowledged at [31] that there was no image of the “applicant’s current look, hairstyle or tattoos before it”;
b.The IAA accepted at [31] that he may be perceived to have a western appearance;
c.The IAA accepted at [32] that individuals have been targeted for having Islamic or western behaviour;
d.The IAA accepted at [33] that there have been documented, targeted and brutal killings of “emos”, gay and effeminate men;
e.The IAA defined the term “emos” at [33] as describing ‘non-conformist youth’;
f.The IAA, without having seen the Applicant’s current appearance or inspected his tattoos and having accepted that the Applicant “may be perceived to have a western appearance relative to other Iraqis due to his current hairstyle and one or more tattoos”, did not accept at [35] that he would be perceived to be “‘emo’, effeminate or gay” if returned to Iraq.
Parties’ submissions
In his counsel’s written submissions, the applicant submits it was legally unreasonable for the Authority not to consider utilising the power provided for by s 473DC of the Act to invite the applicant to appear before the Authority. The applicant relies on the matters particularised in ground 1; on there being nothing to suggest the Authority considered whether it should exercise the power under s 473DC of the Act; and on what the applicant submits is the “breadth of the accepted definition of an ‘emo’ as ‘non-conformist’, gay and effeminate youth”.[14] The applicant submits that in relation to this last mentioned matter, the determination of whether the applicant was an “emo” required a qualitative assessment of the applicant’s appearance. The applicant further submits that, given the necessity of having to make a qualitative assessment of the applicant’s appearance, the Authority’s finding the applicant was not an “emo” was not supported by any intelligible reason. The applicant, in effect, submits it was not open to the Authority, given the matters it accepted, to conclude it was not satisfied the applicant was an “emo” without observing the applicant, either in person or by inviting the applicant to provide photographs. That is what counsel for the applicant submitted at the hearing; counsel submitted a qualitative assessment that was involved in determining whether the applicant is an “emo” could not have been made “in the absence of photographs . . . or the IAA . . . utilising its powers under section 473DC of the Migration Act to allow for the applicant to attend a hearing”.[15]
[14] Submissions on Behalf of the Applicant, [29]
[15] T10.40
The Minister, on the other hand, submits there is no merit in ground 1. The applicant did not claim he was an “emo”; he did not provide any evidence that was reasonably capable of supporting such a claim; and he did not seek to be interviewed by the Authority. Thus, in the Minister’s submission, there was nothing in the material before the Authority that ought to have prompted the Authority to consider whether it should exercise the power conferred by s 473DC to require the applicant to provide additional information.
Text and principles
Before I consider the competing submissions, it will be necessary to set out the text of s 473DC of the Act, and what the High Court said about that provision in ABT17 v Minister for Immigration and Border Protection.[16] Section 473DC of the Act is as follows:
[16] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The powers conferred on the Authority to review a referred decision are conferred on the implied condition that they must be exercised “within the bounds of reasonableness”; and the powers conferred on the Authority by s 473DC of the Act to get and consider new information “are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness”.[17] One circumstance in which the Authority may be bound to consider whether it should exercise the power under s 473DC to get and consider new information is where, having regard to the issues that arise on the application for review, it is apparent the Authority lacks information that would put it in as good a position as the delegate to consider an application for a protection visa. That is what occurred in ABT17.
[17] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, at [3]
In ABT17 the referred applicant claimed at the interview before the delegate that a particular incident occurred. The delegate accepted the referred applicant’s claim to be plausible. The Authority, however, found the referred applicant’s claims lacked credibility; and in so finding the Authority relied on impressions it formed from an audio recording of the evidence the referred applicant gave at his interview before the delegate. There was, however, no video recording of the interview before the delegate. In those circumstances, the plurality found there was a gap in the information that was before the Authority, as compared with the information that was before the delegate, that information being the “visual impression of how the referred applicant appeared during the interview – his or her demeanour”.[18] The plurality found that the information was material to the manner in which the Authority decided the application for review before it because, in finding that the applicant’s account of the incident in question was not credible, the Authority relied entirely on its aural impressions of the evidence the claimant had given, as conveyed by the audio recording.[19] The plurality, therefore, concluded the Authority came under an obligation to determine whether there was “new information” that it should consider getting; and the plurality found the Authority ought to have considered, but failed to consider, that observing the claimant giving evidence before the Authority itself would constitute such information:[20]
There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice.
. . . .
[T]he Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
[18] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, at [13]
[19] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, at [14]
[20] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, at [16], [25]
In separate judgments, each of Nettle, Gordon, and Edelman JJ also concluded the Authority acted unreasonably; but their Honours did not find the unreasonableness lay in the Authority’s failing to consider exercising the power to invite the referred applicant to appear before it. Their Honours each held the Authority acted unreasonably by finding it was not satisfied the referred applicant’s account of the incident in question was credible in circumstances where the delegate’s assessment of the applicant’s credibility was not glaringly improbable, or contrary to compelling inferences, or otherwise shown to be infected by error.[21]
[21] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, at [69] (Nettle J); [93] (Gordon J); [121] (Edelman J)
Determination
The question that arises is whether the matters on which the applicant relies are matters that ought to have led the Authority to consider whether it should exercise the power conferred by s 473DC of the Act. That question is to be answered in the negative.
(a)First, the ground does not expressly identify the information the applicant submits the Authority ought to have considered seeking from the applicant. The ground appears to assume the relevant information would have consisted of the applicant presenting himself as evidence of his appearance, and this would have been a basis on which the Authority could have assessed whether the applicant is an “emo” in appearance, or could be perceived to be “emo”, effeminate, or gay. There is no suggestion, however, the applicant altered his appearance after the TPV interview. The applicant’s presenting himself before the Authority, therefore, or the applicant’s providing other evidence of his appearance, therefore, could not have been “new information”, because the applicant had appeared before the delegate.
(b)Second, to the extent the applicant’s presenting himself before the Authority, or his presenting photographs, could be regarded as new information (because, for example, the applicant would not have been the same age he was at the time of the TPV interview, or because photographs may have been taken of the applicant after the TPV interview), there is no evidence on the basis of which the materiality of the Authority’s failure to consider exercising or exercising the power under s 473DC of the Act can be assessed. Ground 1 assumes the applicant has the appearance, or has photographs of his appearance, on the basis of which it would have been open to the Authority to find the applicant is an “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay. In the absence of any such evidence, however, the applicant would be unable to discharge the burden of proving that the Authority’s failure to consider exercising the power under s 473DC of the Act “could realistically” have resulted in a different decision.[22]
(c)Third, the Authority was “not required to consider a claim that is not expressly made or does not arise clearly on the materials before it”. [23] As the Authority noted, the applicant did not claim he was an “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay; and the applicant has pointed to no material that was before the Authority from which it could reasonably be inferred there clearly arose any such claim. The Authority took the applicant to have claimed at the TPV interview that he feared harm because he would be perceived to have a western appearance, and that such perception would arise from his style of haircut and his wearing tattoos.
(d)Fourth, it is true the Authority referred to the treatment of “emos” and gays in Iraq; but that was in the context of the Authority reviewing country information that it considered to be relevant to the claim the Authority considered the applicant made, which was that he might be perceived to be of western appearance. There is nothing on the material that was before the Authority, and the applicant himself did not submit to the Authority, that the applicant’s hairstyle and tattoos could lead him to be an “emo” in appearance, or to be perceived to be “emo”, effeminate, or gay.
(e)Fifth, it may be accepted the Authority’s conclusion that it did not accept the applicant will be perceived to be “emo”, effeminate, or gay, could be construed as a conclusion based on a purported assessment by the Authority on whether the applicant could be so perceived; and the applicant appears to assume the Authority did in fact purport to make such assessment. That, however, would be an unreasonable construction of the Authority’s reasons. The Authority was of the view the applicant claimed fear of harm because of his western appearance arising from his hairstyle, and tattoos; the Authority was of the view the applicant did not claim he was of “emo” appearance, or that he could be perceived to be “emo”, effeminate, or gay. In those circumstances, the Authority’s conclusion that it did not accept the applicant will be perceived to be “emo”, effeminate, or gay, should be construed as a conclusion that the Authority did not accept the applicant would be perceived as such because the Authority was of the view the applicant did not claim he will be perceived to be “emo”, effeminate, or gay. That is a view that was reasonably open to the Authority to adopt. To the extent the question whether there was before the Authority a claim the applicant will be perceived to be “emo”, effeminate, or gay is a jurisdictional fact, I find the applicant did not expressly make any such claim, and it is not a claim that clearly arose on the material that was before the Authority.
[22] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45] (Bell, Gageler and Keane JJ)
[23] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]: “From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]”.
I am satisfied that ground 1 of the draft amended application is sufficiently arguable to warrant my granting the applicant leave to rely on it; but the ground fails.
Ground 2 of draft amended application
Ground 2 of the draft amended application is as follows:
The IAA has made a decision so illogical or unreasonable that no reasonable person would have made it.
Particulars
a.Having accepting [sic] that the Applicant would be perceived to have a “Western appearance” due to his “hairstyle and one or more tattoos” at [31];
b.Having defined “emos” in general terms as non-conformist youth at [33]; and
c.Having accepted that “emos” could have genuine fears of harm in Iraq at [33];
… the IAA made a decision so illogical or unreasonable that no reasonable person would have made it by determining that the Applicant would not [be] perceived as “emo” without having seen a recent picture of the Applicant or having inspected his tattoos.
This ground assumes there was before the Authority a claim that the applicant was “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay. As I have already noted, however, the Authority was of the view the applicant made no such claim; and, as I have already found, the applicant did not claim he could be perceived to be “emo”, effeminate, or gay, and no such claim clearly arose from the material that was before the Authority. Further, ground 2 assumes the Authority’s conclusion it was not satisfied the applicant will be perceived to be “emo”, effeminate, or gay was based on the Authority’s assessment of whether the applicant may be so perceived. As I have already concluded, however, the reasonable construction of the Authority’s reasons is that its non-acceptance of the possibility of the applicant being perceived to be “emo”, effeminate, or gay was based on its view, which was reasonably open to it to adopt, and which in any event is correct, that the applicant did not make any such claim.
Even if it be assumed there was a claim before the Authority that the applicant feared harm because he is “emo” in appearance, or because he could be perceived to be “emo”, effeminate, or gay, ground 2 could succeed only if, on the material before the Authority, the only finding the Authority could have made is that the applicant is “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay. The applicant has made no submission to that effect, and he otherwise points to no material before the Authority on the basis of which the Authority could reasonably have found the applicant is “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay. On the contrary, the applicant’s claim in ground 1 that the Authority ought to have considered exercising the power conferred by s 473DC(1) of the Act is predicated on their having been no material before the Authority on which it would have been reasonably open to the Authority to determine whether the applicant is “emo” in appearance, or whether he could be perceived to be “emo”, effeminate, or gay.
For these reasons, ground 2 of the draft amended application is not sufficiently arguable to warrant my granting the applicant leave to rely on it.
Ground 3 of draft amended application
Ground 3 of the draft amended application is as follows:
The IAA has failed to give genuine and realistic consideration of the Applicant’s claims to fear harm
Particulars
a.Having accepting [sic] that the Applicant would be perceived to have a “Western appearance” due to his “hairstyle and one or more tattoos” at [31];
b.Having defined “emos” in general terms as non-conformist youth at [33]; and
c.Having accepted that “emos” could have genuine fears of harm in Iraq at [33];
The IAA failed to give genuine and realistic consideration of the Applicant’s claim to fear harm on the basis of his appearance.
This ground is not arguable. The Authority considered the applicant’s claim that he feared harm based on his having a western appearance due to his hairstyle and tattoos. The Authority referred to country information; and noted groups the country information identified faced or had faced risk of harm. Those groups were persons who could be perceived to be “emos”, effeminate, or gay. The Authority was of the view the applicant did not claim he was “emo” in appearance, or that he could be perceived to be “emo”, effeminate, or gay; and the Authority assessed the applicant’s claim in the terms in which the applicant stated it, namely, he fears harm based on his having a western appearance due to his hairstyle and tattoos.
For these reasons, ground 3 of the draft amended application is not sufficiently arguable to warrant my granting the applicant leave to rely on it.
DISPOSITION AND COSTS
I propose to grant the applicant leave to rely on ground 1 of the draft amended application, refuse the applicant leave to rely on grounds 2 and 3 of the draft amended application, and otherwise dismiss the application.
At the end of the hearing Mr Bodisco, who appeared for the applicant, indicated that if the applicant were to succeed he would seek an order for costs set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Mr Kay Hoyle, who appeared for the Minister, said that if the Minister were to succeed the Minister would seek costs. Mr Kay Hoyle, however, was not in a position to inform me of the amount for which the Minister would seek his costs to be set. I understood that after the hearing the Minister intended to inform the applicant of the amount for which the Minister would seek his costs to be set. I have not been informed the parties have reached any agreement about this. In those circumstances, costs should follow the event, and I propose to order that the applicant pay the Minister’s costs set in the amount provided for by Part 3 of Schedule 1 to the FCC Rules, but reserve to the parties liberty to apply within 14 days to vary the order for costs I propose to make.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 30 March 2021
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