ARN17 v Minister for Immigration and Border Protection

THE PROPOSED GROUNDS OF APPEAL 15 At the time of the commencement of this application, the proposed grounds of appeal were set out in a draft notice of appeal annexed to an affidavit affirmed by the applicant on 9 January 2018. Where provision is made on the Court form for the filing party to name the person who prepared that document, the form states "applicant". The same appears on the draft notice of appeal annexed to the affidavit. 16 The two grounds are expressed as follows: 1 His Honour erred in failing to discern jurisdictional error in circumstances where the Assessor breached section 473DD of the Migration Act in refusing to consider new information, namely a media report referring to torture in Sri Lanka at paragraph [6] of the decision. 2 His Honour erred in failing to discern jurisdictional error in circumstances where the Assessor failed to apply the reasoning of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. 17 Three observations may be made. 18 First, the language employed in the draft notice of appeal is not that of a self-represented litigant. 19 Second, the first ground of appeal does not specify the manner in which the assessor "breached section 473DD" of the Act. The breach is, however, given particularisation in the second paragraph. Accordingly, there would appear to be a single issue arising on the appeal: whether the IAA committed jurisdictional error by misapplying s 473DD of the Act as construed by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. 20 The third observation is that the proposed grounds of appeal do not correspond at all to the grounds for judicial review set out in the originating application filed in the proceedings before the learned primary judge.

APPLICATIONS IN THE PROCEEDINGS 21 At the commencement of the hearing of this application on 15 May 2018 a direct access barrister announced her appearance for the applicant. Counsel stated that she been told about the applicant's matter by a "community representative" who may be referred to as "Mr T", and that she had received papers in relation to the appeal six days before the hearing date. Counsel sought to rely upon written submissions that had not previously been provided to the Minister. Counsel made no reference to orders that had previously been made by a Registrar of the Court on 23 January 2018 requiring the applicant to file and serve written submissions on or before 1 May 2018. 22 The proposed written submissions raised and addressed three grounds of appeal not contained in the draft notice of appeal annexed to the applicant's affidavit. Counsel stated that the newly proposed grounds were advanced in addition to, and not in substitution of, the existing proposed grounds. 23 The Court proceeded on the basis that Counsel had made an application for an extension of time in which the applicant was to file written submissions, and an application for leave to amend the originating application in this proceeding. Submissions were made and evidence received in support of both applications. The application for leave to amend the originating application was dismissed at the hearing. So too was the application for an extension of time to file written submissions. The parties were advised that written reasons for refusing the applications would be provided at the time that judgment was delivered on the substantive application. Those reasons are now given below at [36] to [45]. 24 It is convenient to set out the evidence as it relates both to the application for an extension of time in which to appeal and as it relates to the application for leave to amend the proposed grounds of appeal and to file written submissions in connection with the proposed new grounds.

EVIDENCE 25 In his affidavit affirmed on 9 January 2018, the applicant says this of his grounds of appeal: 10 The grounds for my application turn on a media report dated 1 November 2016 referring to torture in Sri Lanka. This report predated the hearing before the delegate - but was not discovered by my lawyers or brought to my attention until after the decision of the delegate. The document could be regarded as significant credible personal information which was previously not known. 11 In determining whether exceptional circumstances exist, the Assessor only had regard to the date of the document to conclude that exceptional circumstances exist to justify passing the bar posed by section 473DD - and explicitly only referred to section 473DD(a) in their consideration. 12 In the authority of BVZ16 v Minister for Immigration and Border Protection [2017] FCA, Justice White of the Federal Court held that this 'narrow interpretation' of section 473DD is a legal error. 26 This is not the drafting of a self-represented non-English speaking litigant. Paragraphs 11 and 12 are in the nature of submissions. They were received on that basis. 27 The appellant explained his reasons for not filing a notice of appeal on time as follows: 1 I am the Applicant. 2 I am unemployed. 3 I was self represented in the Federal Circuit Court because I could not afford a lawyer and could not find a lawyer who could represent me. 4 On 20 October 2017, my application to the Federal Circuit Court was refused. I was not provided a copy of the decision. 5 On or about 20 November 2017, I made contact with [Mr T], a man I knew through the Tamil community here in Sydney. 6 I discussed my situation with [Mr T], who referred me to a barrister with experience in the migration field. Critically, the barrister was able to allocate some time in December to look over my case. 7 In December, my lawyer read over the case and was able to discern jurisdictional error. 8 However, the community representative, [Mr T], had neglected to contact me to make arrangements to file documents with the court. 9 I am terribly sorry that this delay has occurred. I have never been through this experience as a litigant and did not know what I had to do. I also did not think I could contact my legal representative over the Christmas period without offending him. 28 As Counsel for the applicant acknowledged, the affidavit does not state when the applicant first received the reasons of the primary judge. That was not the only significant lacuna in the affidavit evidence insofar as it concerned the delay between the delivery of judgment by the primary judge and the commencement of proceedings in this Court. The affidavit did not address the separate question as to why there was some delay between the commencement of the proceedings by the applicant (purportedly as a self-represented litigant) and the engagement of Counsel who ultimately appeared for him at the hearing. There was otherwise no admissible evidence before the Court concerning that issue. Nor does the affidavit state when the barrister engaged to prepare the originating application and draft notice of appeal completed that task. The affidavit itself was dated less than a week prior to the commencement of the application. 29 The applicant was given an opportunity to give oral evidence in support of his applications. He was given, and took advantage of, an opportunity to confer with his Counsel before deciding that he should do so. 30 The applicant gave evidence through an interpreter. The following paragraphs summarise the effect of the evidence. Where it is said that the applicant said or stated a fact, these reasons should be understood as summarising the general effect of the evidence. 31 The applicant stated that he was present when the primary judge made orders dismissing his application for judicial review. He said that he was given a single sheet of paper which did not contain the reasons for the orders. He stated that he could not remember when he received the reasons for judgment. He thought he might have received the reasons by post. 32 The applicant said that he was informed by a friend that he had 21 days in which to appeal and that he then set about obtaining legal representation. He said that he had first discussed his case with Mr T in "the 12th month", and that he had met with a barrister in the same month. When asked if he could explain the inconsistency between his affidavit and oral evidence as to when he first discussed his case with Mr T, the applicant could not explain that inconsistency. 33 The applicant said that he had paid $3,000 to the barrister in three instalments of $1,000 each. He stated that by the time he received the barrister's advice, the time to commence the appeal had already expired. He stated that he believed that it was Mr T who would attend to the filing of the papers necessary to commence the appeal. 34 The applicant stated that he had met again with the barrister after the application had been filed and before the hearing date. According to the applicant, the barrister said that he was not available to appear for the applicant on this application because the applicant had not advised the barrister of the hearing date. According to the applicant, that was the reason why he had engaged a different barrister to appear at the hearing at short notice. He stated that he had not personally provided his newly engaged barrister with any papers. He did not assert that the delay in briefing his newly engaged barrister was explained by an inability to pay any money to her in advance of the hearing of this application. 35 In light of the applicant's evidence, Counsel appearing for the applicant was asked to frankly disclose the circumstances in which she had been briefed. Counsel stated that she had been contacted by Mr T on the previous Tuesday. She stated that she had wrongly believed that the barrister previously engaged by the applicant had appeared for the applicant in the FCCA proceedings. She stated that she had attended promptly to obtain papers in relation to the appeal by contacting the Minister's legal representatives and asking for copies. Nothing in Counsel's disclosures detracted from the applicant's evidence to the effect that he had been told by his former barrister that he was not available and that his unavailability was said to have resulted from the applicant's own failure to advise the barrister when this application had been set down for hearing.

REASONS FOR DISMISSING THE APPLICATIONS IN THE PROCEEDINGS 36 It may be reasonably inferred that until the week prior to the hearing the applicant expected or assumed that the first barrister would appear on his behalf on the application and on the appeal. I accept his evidence that he was not advised until the week prior to the hearing that the first barrister would not appear, and that that barrister had asserted that the applicant had not advised him of the hearing date. I find that until that meeting the applicant genuinely believed that the barrister would attend to the preparations for the appeal and would appear as his advocate. Whether that belief was reasonably founded (when viewed objectively) is not a matter in respect of which the Court heard evidence. The barrister concerned did not give evidence as to the terms of his retainer and the applicant himself did not give evidence in respect of that issue, notwithstanding that his newly engaged barrister was given the opportunity to adduce oral evidence on any topic bearing on the applications before me. 37 Speaking generally, it seems to me that a non-English speaking applicant who has paid the not insignificant sum of $3,000 directly to a legal practitioner (of any kind) in respect of the exercise of an appeal right may reasonably expect that the legal practitioner will appear as his or her advocate on the appeal, unless the terms of the retainer expressly provide otherwise. If the terms do provide otherwise it is reasonable to expect that the terms will be expressly and unequivocally brought to the client's attention and translated to the non-English speaking applicant. There is no evidence before the Court capable of proving whether the retainer of the first barrister was so limited or explained. No inference can or should be drawn either way. 38 What is apparent is that neither the first barrister engaged by the applicant, nor the second barrister engaged by the applicant, nor the applicant himself made a prompt application to the Court for an extension of time to file written submissions as soon as it became apparent that the Court ordered deadline for doing so had not been met. It is unsatisfactory that the Court should have no notice that a barrister had been engaged to appear for the applicant, an interpreter having been arranged on the Court's assumption that the applicant was self-represented. It is equally unsatisfactory that the application to rely on newly cast proposed grounds of appeal was not foreshadowed to the Court and that the Minster's Counsel received no written submissions prior to the commencement of the hearing. 39 I find that the applicant received legal advice in relation to the proposed grounds of appeal as presently framed and that he has acted in reliance upon that advice. It appears that the second barrister has taken a different view as to what the proposed grounds of appeal should say. There is no evidence to explain why the first barrister did not seek to advance the same grounds of appeal now sought to be advanced by the second barrister. 40 As Counsel submitted, the applicant is a person who has applied for a protection visa. Counsel submitted that if the decision of the IAA is affected by uncorrected jurisdictional error the applicant may be subject to persecution or significant harm upon his return to Sri Lanka. That may be so, however, the significant personal stakes for a protection visa applicant are matters the applicant's legal practitioners might reasonably be expected to bear in mind when advancing and protecting the applicant's interests in the proceedings from the outset. There is very little to commend a course in which the applicant should depart from the position he adopted when he commenced this application in accordance with the legal advice he received at that time. The case management of proceedings in this Court would be intolerably disrupted if the arguments in an action were permitted to be changed at the commencement of a hearing merely because a party has, for whatever reason, engaged a new legal representative who appears to take a different view as to the arguments that should or should not be advanced in this Court. 41 Substantial weight must be given to the circumstance that Counsel for the Minister expressed a willingness to proceed pragmatically on the application and to deal with the merits of the proposed new draft grounds as best he could in the circumstances, notwithstanding that he had not had the opportunity to read the written submissions relating to them. However, it remains that the written submissions duly filed by the Minister within the time frame specified by the Registrar do not engage with the proposed newly cast grounds. The consequence would be that the Court would not be assisted by the Minister's written submissions in their present form, particularly on those grounds that bear no relation at all to those originally relied on. 42 I have taken into account the explanation given by Counsel to the effect that she perceived (whether rightly or wrongly) that she could not personally attend to the filing of the proposed written submissions because to do so would put her in breach of the rules governing the conduct of barristers in New South Wales. Counsel stated that she had entrusted Mr T to file the submissions on the previous Friday and that Mr T had mistakenly filed the submissions in the FCCA rather than in this Court. I give little weight to the events described by Counsel. They demonstrate the risks inherent in Counsel accepting a direct access brief with no legal practitioner being accountable for filing documents on a party's behalf. 43 In a similar vein, I am not prepared to accept at face value the representations made on the face of the originating documents to the effect that the applicant was self-represented at the commencement of the proceedings and that he had personally prepared and filed the papers. As I have said, the applications before the Court are not accompanied by evidence disclosing the terms on which the first barrister was retained. The documents contain assertions on their face that they were prepared by the applicant personally and yet clearly they were not. The assertions are apt to mislead the Court as to the identity of the person who has drawn the documents and thus as to the status of the applicant as a truly self-represented litigant. 44 I accept the applicant's evidence that he paid the first barrister the sum of $3,000. I infer from the content of the originating application that the applicant had legal assistance drawing the proposed grounds of appeal and preparing his affidavit. To be abundantly clear, I make no finding as to whether or not the first barrister had been engaged to act as advocate on the applicant's behalf on the application as at the date on which the application was filed. As I have said, the terms of any retainer with that barrister are unknown to the Court. 45 In all of the circumstances, I consider the applicant ought to be bound by the choices of the first barrister to confine the proposed grounds of appeal to those set out in the annexure to the applicant's affidavit. As the proposed late written submissions deal with the disallowed proposed grounds, the submissions will not be read. 46 I will now turn to consider the merits of the application for an extension of time.

EXPLANATION FOR THE DELAY 47 I accept the applicant's evidence that he did not receive written reasons for the judgment of the primary judge on the day that judgment was pronounced. That is borne out by the reasons themselves. The primary judge gave ex tempore reasons for dismissing the application for judicial review. The written reasons are dated 2 November 2017, some two weeks after the orders dismissing the application were made. 48 I also accept the applicant's evidence that he received the written reasons by post. That being the case, I will proceed on the basis that the reasons for judgment would, in the ordinary course, have been received within three or four business days of their dispatch. Had the delay in commencing this action been limited to a period approximating the time between the making of the orders and the delivery of the written reasons, the circumstances I have just described would have adequately explained the delay. 49 The focus of the Court is on the remainder of the 43 day period. 50 To the extent that there is an unexplained inconsistency between the applicant's affidavit and oral evidence as to when he first approached Mr T, I prefer the applicant's oral evidence. I find that he did so in the "12th month" and that he provided papers to the barrister in the same month. By that time, however, the applicant was aware that there was a 21 day time limit in which to commence an appeal. It appears that the applicant chose to seek the advice of a barrister about whether there was merit in an appeal before commencing this application. I have already found that the originating application and the supporting affidavit were not prepared by the applicant personally but by a legal representative. The affidavit was not affirmed until 9 January 2018. To the extent that the applicant had a reasonable but mistaken belief that Mr T would attend to filing the documents, that mistaken belief would not explain the delay between the receipt of the barrister's advice and the finalisation of the originating documents. The documents could not have been filed by any person until they were prepared. I infer that any default on Mr T's part could go to explain only a small part of the delay. It remains unclear on the evidence how much of the delay may have been the responsibility of the applicant's barrister. That is a matter that Counsel ought reasonably be expected to disclose to the Court, and yet Counsel has not done so. 51 On the available evidence, I am satisfied that there is an adequate explanation for some of the delay, but not for the whole of it. In respect of that part of the delay for which there is no adequate explanation, the gap in the evidence is itself unsatisfactory having regard to the circumstance that the applicant has been represented by two barristers, each of whom was in a position to prepare and (in the case of the second barrister) adduce sufficient evidence to demonstrate the factual basis for an adequate explanation. At the very least the applicant's affidavit, prepared as it was by the applicant's first barrister, ought to have contained a full and frank explanation of the date upon which the barrister was retained and the date on which the originating application and accompanying documents were finalised and provided to Mr T or the applicant for filing.

THE MERITS OF THE PROPOSED APPEAL 52 It is necessary to consider the prospects of the applicant succeeding on any application he might make for leave to argue, on appeal, a ground for judicial review not raised in the proceedings below. The materials filed by or on behalf of the applicant do not address this issue. 53 In University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 the High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said (at ALR 71): It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 54 The same considerations apply upon an appeal to this Court: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543. 55 In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J also emphasised the rationale for maintaining the distinction between this Court's original and appellate jurisdiction, observing at [30]: … There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed. 56 The Court has a discretion to allow new grounds to be introduced if it is "expedient and in the interests of justice to do so": Gomez at [18] (Hill, O'Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). 57 In the course of giving evidence, the applicant demonstrated no understanding as to the meaning of the grounds of appeal, including that part of his affidavit which contained submissions in respect of them. As I have said, there is nothing in the affidavit material to explain why the issues raised by the proposed grounds of appeal are sought to be raised for the first time on the proposed appeal. 58 Weighing in favour of the grant of leave is the applicant's status as a self-represented litigant before the FCCA and his evidence (which I accept) that he could not, at that time, afford a lawyer to represent him. It is also significant that the primary judge considered and addressed (albeit briefly) the IAA's application of s 473DD of the Act, although there was no ground of judicial review alleging jurisdictional error in respect of it. 59 Notwithstanding these favourable considerations, it remains that leave to introduce a new ground ought not to be granted in respect of an argument that is fundamentally lacking in merit. In the result, I am not satisfied that the proposed grounds of appeal have reasonable prospects of success so as to justify either the grant of leave to introduce them, or the grant of an extension of time in which to commence the appeal.

The proper construction of s 473DD of the Act 60 In BVZ16, White J discussed the interaction between s 473DD(a) and (b). His Honour said (at [9]): … The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional. 61 Of s 473DD(b), White J said (at [57]) that s 473DD(b)(i) requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whilst s 473DD(b)(ii) requires an evaluation of the significance of the new information in the context of an applicant's claims more generally. 62 As to the term "exceptional circumstances", his Honour said (at [39] and [41] ⸺ [43]): 39 Generally, and subject to the particular statutory context, circumstances will be exceptional if they are unusual or out of the ordinary: An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 at [7] (Lindgren J). … … 41 Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J). 42 The proper construction of the term 'exceptional circumstance' in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of 'fast track' review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all 'fast track reviewable decision[s]' are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to 'get' new information, it may consider it only in the limited circumstances specified on s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65. 43 Further, account must be taken of the reference to the exceptional circumstances being such as to 'justify' consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. 63 White J held the IAA had, in that case, applied an inappropriately narrow construction of the phrase "exceptional circumstances" by confining its consideration to the veracity of the explanations the review applicant had given for not providing the information at an earlier time. In addition, the IAA had failed to consider s 473DD(b) as it was obliged to do. 64 BVZ16 has been cited with approval by the Full Court of this Court: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33.

Application of s 473DD of the Act in the applicant's case 65 It is true that the IAA's reasons contain no methodical application of s 473DD(a) and (b) separately and in turn, so that there is no clear statement of the factual considerations bearing on one limb of the provision as distinct from the next. The IAA's reasons nonetheless disclose that the reviewer gave active consideration to the significance of the media report to the outcome of the review. It concluded that the report contained no information contra to the country information that was already before it. Critically, the proposed grounds of appeal do not seek to impugn this aspect of the IAA's decision. On the present application, it has not been shown how the information contained in the media report differed from the available country information, nor has it been shown how the information might otherwise have affected the outcome, whether before the Minister or before the IAA. 66 The conclusion that the media report contained no information contradicting the country information was relevant not only to the application of s 473DD(b)(ii) but properly bore on the question of whether there were exceptional circumstances justifying the IAA's receipt of the media report within the meaning of s 473DD(a). On a fair reading of the IAA's reasons, the clear implication is that the IAA, having considered a matter that might also bear on the criterion in s 473DD(b), determined, by reference to the same matter, that no "exceptional circumstances" existed. In other words, it found the criterion under s 473DD(a) to be determinative of the question. 67 Nothing in BVZ16 is to be understood as precluding the IAA in all cases from determining that new information should not be received because one of the essential criterion of s 473DD (properly construed and applied) cannot be satisfied. It has not been shown that the IAA failed to take into account a relevant consideration in applying the criterion in s 473DD(a), including considerations that might also bear on the additional criteria in s 473DD(b)(i) or (ii). 68 Counsel further submitted that the applicant was not given an opportunity to make submissions before the IAA as to why the media report had not been provided to the Minister's delegate, notwithstanding that it predated the delegate's decision. It may be assumed that the topic is one in respect of which the applicant could have made meaningful submissions before the IAA. However, whether or not the applicant was afforded a fair opportunity to do so is a different issue involving questions of fact. There is no evidence before this Court sufficient to demonstrate that the applicant was denied an opportunity to explain to the IAA why the media report had not been provided earlier. I reject the submission that the IAA's reasons themselves support an inference that no opportunity was given. 69 The propositions advanced on this aspect of the grounds of appeal are not reasonably arguable. 70 In my view the proposed appeal is not reasonably arguable. The lack of merit and the lack of an adequate explanation for much of the delay are independent bases for dismissing the application for an extension of time. If either basis is insufficient of themselves, then the two considerations together warrant an order that the originating application be dismissed. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.