FEDERAL COURT OF AUSTRALIA Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCA 1008 Appeal from: BTW17 v Minister for Immigration & Anor [2019] FCCA 3614 File number: WAD 20 of 2020 Judge: BESANKO J Date of judgment: 16 July 2020 Catchwords: PRACTICE AND PROCEDURE — application for a stay of a costs order pending the hearing and determination of an appeal to the Full Court of the Federal Court of Australia — whether the grounds of appeal are reasonably arguable — whether there is no reasonable probability of recovering the costs paid to the first respondent in the event that a stay is not granted and the appeal is successful — whether the appellant has engaged in any disentitling conduct Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Andrews v John Fairfax and Sons Limited [1979] 2 NSWLR 185 Bridges v Australian Consolidated Press Limited (unreported, New South Wales Court of Appeal, Sugerman P, 16 June 1970) BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; (2018) 258 FCR 511 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 Illawong Village Pty Limited v State Bank of New South Wales [2005] NSWSC 524 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615 Date of hearing: 7 July 2020 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Counsel for the Appellant: Mr P Macliver Solicitor for the Appellant: Australian Government Solicitor Counsel for the First Respondent: Mr M G S Crowley Solicitor for the First Respondent: AUM Legal Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS WAD 20 of 2020 BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant AND: BTW17 First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: BESANKO J DATE OF ORDER: 16 JULY 2020 THE COURT ORDERS THAT: 1. The costs order, that is, paragraph 5, made by the Federal Circuit Court of Australia on 19 December 2019 be stayed pending the hearing and determination of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: Introduction 1 This is an interlocutory application dated 1 July 2020 in an appeal before the Court in which the appellant seeks the stay of an order made by the Federal Circuit Court of Australia on 19 December 2019 pending the hearing and determination of the appeal. The order which the appellant seeks to have stayed is that he pay the first respondent's costs fixed in the amount of $7,328.00 (the costs order). The appellant is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the first respondent is known, for the purposes of this proceeding, as BTW17. The second respondent is the Immigration Assessment Authority (the Authority). 2 For the reasons which follow, I will make an order that the costs order be stayed pending the hearing and determination of the appeal. Background 3 The first respondent is a Sinhalese Sri Lankan citizen and, as at 15 November 2019, he was in detention. 4 On 13 September 2016, the first respondent made an application for a Safe Haven Enterprise (subclass 790) visa (SHEV). On 6 February 2017, a delegate of the Minister (the delegate) refused to grant a SHEV to the first respondent. This decision was affirmed by the Authority on 23 March 2017. 5 Following a challenge by the first respondent which succeeded before the Full Court of this Court (see BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; (2018) 258 FCR 511), the Authority again affirmed the decision of the delegate to refuse to grant the first respondent a SHEV on 28 March 2018. 6 On 2 April 2018, the first respondent brought an application for judicial review of the Authority's decision in the Federal Circuit Court. That application was heard on 19 November 2019 and, on 19 December 2019, the primary judge made orders, relevantly, that the decision of the Authority be quashed and the Minister pay the first respondent's costs fixed in the amount of $7,328.00 (see BTW17 v Minister for Immigration & Anor [2019] FCCA 3614). 7 By a Notice of Appeal filed on 7 February 2020, the Minister appealed from the above orders. It should be noted that the Minister in his Notice of Appeal also sought an interlocutory order that the costs order be stayed. The Evidence 8 The Minister relied upon an affidavit of Jonathon Papalia affirmed on 1 July 2020. Mr Papalia is a lawyer employed by the Australian Government Solicitor. He has the carriage of this matter on behalf of the Minister. 9 The first respondent relied upon an affidavit of Ganasan Arujunan affirmed on 6 July 2020. Mr Arujunan was the instructing solicitor for the first respondent in the application for judicial review in the Federal Circuit Court. 10 Both Mr Papalia and Mr Arujunan annexed to their affidavits copies of the correspondence that the parties' solicitors exchanged regarding the payment of the costs which are the subject of the costs order. Subject to one matter, which is not material for the purposes of the present application, there is no dispute between the parties as to the content of that correspondence and, as such, it may be summarised as follows. 11 Mr Arujunan first contacted the appellant's solicitor (Ms Allyson Ladhams) by email on 31 March 2020. Mr Arujunan attached to that email "the court order for payment of $7328 and the client's authority to pay". He said in the email that he would appreciate payment being made "as soon as possible". 12 On 2 April 2020, Mr Arujunan telephoned Ms Ladhams "enquiring about the status of her instruction from the [Minister] on the costs payable". 13 On 15 May 2020, Mr Arujunan again telephoned Ms Ladhams, but was unable to speak to her. 14 On 22 May 2020, Ms Ladhams sent an email to Mr Arujunan in which she said, relevantly: As discussed a few weeks ago, the Department seeks your agreement to defer payment of FCC costs until after the outcome of the appeal is known. This is in circumstances where: • the Minister has appealed the orders made by the FCC, including the costs order, and • in the notice of appeal, the Minister has sought a stay of the orders made by the FCC. 15 Mr Arujunan states in his affidavit that it was his understanding from this correspondence that the solicitors for the Minister were genuinely seeking to settle "the costs ordered" and therefore he did not take steps to enforce the judgment. I take this to mean that it was Mr Arujunan's belief between 22 May 2020 and 25 May 2020 that the Minister may well have conceded that he would comply with the costs order. 16 On 25 May 2020, Mr Arujunan responded to Ms Ladhams' email indicating that, because the deferment of the costs request could not be agreed, he would appreciate the costs being paid within a week. To this end, he provided bank account details for payment. 17 On 2 June 2020, Mr Arujunan sent a further email to Ms Ladhams in which he said, relevantly: We refer to our numerous requests for payment of the costs. However the [Minister] has failed to pay the costs as ordered by the court. We have now instructions to make an application to court for orders without further reference to you for payment of costs, and interest from the date of the order. 18 On the same day, Ms Ladhams responded, indicating that she was awaiting instructions and would provide an update as soon as possible. 19 On 3 July 2020, Mr Arujunan sent an email to Ms Ladhams in which he said, relevantly: We have not heard from you since your email on 2 June 2020. We have instruction [sic] to proceed to enforce the court order obtained on 19 Dec 2019 without any further reference to you. 20 Mr Arujunan states that after his email to Ms Ladhams on 3 July 2020, he received an email from Mr Papalia indicating that he now had carriage of the matter and that an interlocutory application for a stay of the costs order had been filed. 21 Mr Arujunan said that he and the first respondent's counsel represented the first respondent on a pro bono basis before the Federal Circuit Court. He said that due to the Minister's unwillingness to pay the costs, he has been prevented from paying counsel in respect of that representation. relevant legal Principles 22 The principles relevant to an application for a stay pending an appeal are well-established and were not in dispute on this application. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615, I said the following with respect to those principles (at [12]): … The onus is on the applicant for the stay to show that it should be granted. The judgment below is not considered provisional until confirmed on appeal and the respondent to an application for a stay has a prima facie entitlement to the fruits of his or her success. An important matter in favour of a stay is where the circumstances are such that, absent a stay, the subject matter of the appeal will be lost. Of equal importance in determining whether a stay is granted may be the presence of circumstances, should a stay be granted, that give rise to a real risk of the applicant for the stay acting in a way which prevents him or her from satisfying the first instance judgment. In those circumstances, a stay may be refused or granted only on condition that security be provided. The Court will consider the merits of the appeal, but only to the point of being satisfied that it is reasonably arguable. The Court will also consider the loss to the respondent, should a stay be granted, and other matters relevant to both parties and the balance of convenience. Finally, any disentitling conduct by the applicant for the stay will be considered (Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116 at [10]–[13]). 23 On an application for a stay of a costs order pending an appeal by the unsuccessful party, a relevant matter to consider is whether there is a basis for believing that, if the costs are paid by the appellant and the appellant is ultimately successful on the appeal, there would be no reasonable probability of recovering those costs from the respondent to the appeal (see Bridges v Australian Consolidated Press Limited (unreported, New South Wales Court of Appeal, Sugerman P, 16 June 1970) (with whom Jacobs and Mason JJA agreed); Andrews v John Fairfax and Sons Limited [1979] 2 NSWLR 185 at 189 per Maxwell J; Illawong Village Pty Limited v State Bank of New South Wales [2005] NSWSC 524 at [11]–[14] per Campbell J). 24 Nevertheless, while a respondent's impecuniosity, or his or her inability to repay without difficulty or delay, may weigh in favour of granting a stay, it is necessary to balance that matter against the interests of the respondent in obtaining the fruits of his or her victory (see Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5] per Hodgson JA). Analysis 25 I start with the issue of whether the grounds of appeal are reasonably arguable. 26 There are three grounds of appeal in the Notice of Appeal, each of which is particularised. 27 By Ground 1, the Minister seeks to challenge the primary judge's finding (at [38] of the primary judgment) that the Authority misconceived its role when it determined that it was not satisfied that information about the first respondent in a Dinamina Newspaper article was "credible personal information" within the meaning of s 473DD(b)(ii) of the Migration Act 1958 (Cth). 28 Section 473DD provides that: 473DD Considering new information in exceptional circumstances 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 new information 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. 29 The primary judge said (at [37]) that it was clear that the Authority decided to reject the information provided in the newspaper article on the basis that it was not "credible personal information". His Honour then said the following (at [38]): In my view, the Authority misconceived its role in considering the information under the anterior stage of s 473DD(b)(ii) of the Act. All the Authority found was that it was "I am not satisfied the information was credible personal information". There is no discussion as to whether the information is either true or whether it was capable of belief. Further, the Authority, having determined it was not credible personal information, failed to, as would have been the safer course, to consider whether or not there was exceptional circumstances to warrant its receipt into consideration. Reading the paragraph as a whole, I cannot be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of the Act. At no stage did the Authority, for example, say that the information was incapable of being believed. Clear words in my view need to be used. At this stage of the consideration, in order for the information to be deemed "not credible" in circumstances where clear language is not used, in my view, the applicant is entitled to the benefit of the doubt. 30 According to the particular to Ground 1, the Minister alleges that the primary judge erred in applying the decision of CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) (in which Bromberg J considered the meaning of the word "credible" in s 473DD(b)(ii)) and, relatedly, in finding (at [38] of the primary judgment) that his Honour could not be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of whether the information was capable of being believed. 31 In the course of argument on the present application, it became clear that the scope of Ground 1 was broader than that stated by the Minister's Notice of Appeal. The present appeal is, it seems, a "de facto" appeal from CSR16 whereby the Minister seeks to challenge the conclusions of Bromberg J with respect to the meaning of "credible" in s 473DD(b)(ii). Before the primary judge, the Minister advanced a submission that CSR16 was wrongly decided and that there was nothing in CSR16 that supported the notion that an assessment of whether information is "credible" within the meaning of s 473DD(b)(ii) must be restricted to only the information itself and does not include the circumstances in which the information was provided (see [34] of the primary judgment). 32 By Ground 2, the Minister seeks to challenge the primary judge's finding (at [38] of the primary judgment) that there was no discussion by the Authority as to whether the information which was the subject of the Dinamina Newspaper article is either true or whether it was capable of belief. The Minister contends, in particular, that the primary judge misconstrued [15] of the Authority's reasons on at least three grounds. For present purposes, I do not need to describe those grounds. 33 By Ground 3, the Minister seeks to challenge the primary judge's conclusion (at [40] of the primary judgment) that the error made by the Authority (as identified at [38] of the primary judgment) was material. 34 In my view, the grounds of appeal are reasonably arguable. I note that, at the hearing of the application on 7 July 2020, when I asked counsel whether there was any contest about the grounds of appeal being reasonably arguable, counsel for the first respondent accepted that the grounds were "plainly arguable". 35 I turn then to other matters, including the balance of convenience. 36 I accept, consistently with the relevant principles I have identified above, that the first respondent, as the successful party before the Federal Circuit Court, has a prima facie entitlement to the full benefit of his judgment and the presumption that that judgment is correct. That includes the costs order. 37 However, I weigh against this matter the fact that there is no risk that the first respondent will be deprived of the full benefit of his judgment should a stay be granted, but the Minister is unsuccessful on the appeal. 38 In my view, the principal issue on this application is whether, should a stay not be granted and the costs are paid by the Minister to the first respondent and the Minister is successful on appeal, there would be no reasonable probability of recovering those costs from the first respondent. 39 The Minister submits that the prospects of recovering the costs in those circumstances "would not be great". In support of that submission, he referred to the evidence of Mr Arujunan that both Mr Arujunan and the first respondent's counsel represented the first respondent on a pro bono basis before the Federal Circuit Court. 40 I accept that there is no reasonable probability of the Minister recovering the costs the subject of the costs order from the first respondent should the Minister be required to pay those costs (in the absence of a stay) and then be successful on his appeal. Notwithstanding the lack of direct evidence on this application with respect to the first respondent's financial position, I infer that the first respondent is impecunious or, at the very least, there would be serious doubts about the ability to recover any costs paid to him. This is the case where the first respondent: (1) was, and presumably still is, represented on a pro bono basis; (2) was, as at 15 November 2019 in detention at Villawood Detention Centre; and (3) may well be subject to removal from Australia in the event that the Minister is successful on the appeal. In connection with this matter, it is also a relevant matter in favour of a stay that the appeal is listed for hearing in about three weeks' time. 41 The first respondent submits that this appeal is, in fact, a test case for the Minister and that, in those circumstances, it is not appropriate that the stay be granted where the first respondent would be "denuded" of sufficient resources for obtaining representation on the appeal. He submits that this is not something that should attract the approval of the Court. The Minister submits in response, correctly in my view, that the costs the subject of the costs order would, if a stay was not granted, be used to pay the first respondent's solicitor and counsel in respect of costs incurred before the Federal Circuit Court, rather than to pay for the first respondent's representation on the appeal. This submission is consistent with the evidence of Mr Arujunan. 42 The final matter to consider is whether the Minister has engaged in any disentitling conduct. The first respondent seemed to suggest that the Minister had engaged in disentitling conduct. He made reference to the fact that it had been over 200 days since the costs order was made. He submits that the Minister is, in effect, asking the Court to legitimise what is a contempt of the Federal Circuit Court's order. He submits that the Minister has, since March 2020, simply refused to act on the costs order and that, as soon as he was on notice that the first respondent would not agree to deferment of the payment of the costs, he should have brought an application for a stay. There might have been some delay, but, at the same time, it has to be said that the evidence is somewhat imprecise. From the inception of the appeal, the Minister has sought a stay of the orders of the Federal Circuit Court, including the costs order. 43 I do not consider that any delay by the Minister is disentitling conduct such that a stay should be refused. 44 In my opinion, a stay should be granted. CONCLUSION 45 I will make an order that the costs order be stayed pending the hearing and determination of the appeal. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 16 July 2020