ATD18 v Minister for Home Affairs

THE APPLICATION FOR LEAVE 26 In Metwally v University of Wollongong [1985] HCA 28; 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. … 27 There is nonetheless a discretion in this Court to allow the introduction of new grounds if it be "expedient in the interests of justice" to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 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). 28 The appellant submitted that the proposed additional grounds asserting jurisdictional error were advanced for the first time now because he had engaged a new solicitor and retained new counsel. It was submitted that leave should be granted having regard to the public law nature of the proceedings and the personal stakes for the appellant as an asylum seeker whose application for a protection visa had been refused. It was submitted that the proposed new arguments had merit and that the Minister would not be prejudiced by the introduction of the arguments at the appeal stage. 29 I accept the submission that the proposed grounds concern the legality of the Authority's decision and that the appeal arises in the context of an application for a protection visa. In Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510, Mortimer J emphasised the importance of those considerations when determining where the interests of justice might lie: 55 The legal principles applicable to the grant of leave to amend to raise a new ground of appeal are well established, but that does not mean their application is not without difficulty. The difference of opinion I have with the joint reasons is encapsulated by two points. The first is that in my opinion in public law what is comprehended by the 'interests of the administration of justice' may differ from what is comprehended by that phrase in private law litigation, especially so in judicial review where the underlying question is the lawfulness of an exercise of public power. Coulton v Holcombe (1986) 162 CLR 1 was a private law case, and although I accept it has been repeatedly relied on in public law circumstances, for my own part the distinction is an important one when considering what is the content of the interests of the administration of justice. In ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30], I said: Ultimately, this Court's function on appeal from a decision involving the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process. 56 ALZ15 concerned a self-represented litigant, but the passage I have extracted above reflects my general view. To take migration decisions as an example, the circumstances would be exceptional, and difficult to imagine, where an administrative decision should be immune from challenge by a new but clearly arguable ground of appeal that the decision did not meet the fundamental criteria of having been made in accordance with Australian law and by a fair process, but nevertheless, while it stood, provided the foundation for an individual's detention and her or his involuntary removal from Australia. Such a state of affairs would be inimical to the rule of law. In public law, these are matters very much bound up with the interests of the administration of justice. The volume of litigation in this Court on the subject matter of migration decisions does not alter the approach that should be taken: each decision profoundly affects an individual, and often her or his family, including as I have noted, the liberty of that individual. 57 The strength of an argument on judicial review may not be apparent until it is fully developed, and carefully considered in its entire context, perhaps even after judgment is reserved. That is why, where the weight to be given to other considerations such as those I set out at [58] below is negligible, and where the issue is the lawfulness of the exercise of public power, if a ground of appeal is arguable, then in my respectful opinion it is more likely than not to be in the interests of the administration of justice to permit that ground to be developed and advanced on the appeal. By 'arguable', I mean a ground of appeal that is advanced coherently within applicable legal principles and authorities, on a factual basis apparent in the evidence before the appellate Court, and where the legal argument is not fanciful or obviously without merit. There is also an interest, in my opinion, in having all challenges to an administrative decision ventilated at the one time, so that finality about the lawfulness of the decision is achieved, given that the decision is to be acted on in a variety of ways. 58 I accept that the likelihood of prejudice to other parties, considerations of finality, and the effect of changes in the course of an appeal on the resources of this Court and its capacity to discharge its obligations under the Federal Court of Australia Act 1976 (Cth) (in particular, in the context of the overarching purpose set out in s 37M of that Act) are all matters which may be taken into account in exercising the discretion to grant leave to rely on new grounds of appeal. In some circumstances, those considerations may have real weight, and indeed be dispositive of the application. The paradigm example is the one given by Griffiths and Perry JJ at [26]: namely, on appeal a ground which, if it had been raised below, would have been the subject of further evidence by the respondent: see Cubillo v Commonwealth (2001) 112 FCR 455 at [369] (Sackville, Weinberg and Hely JJ). Nevertheless, whether a new ground of appeal arguably renders an exercise of public power unlawful should, in my opinion, generally be the primary consideration because confidence in the lawfulness of an exercise of public power is in the interests of the administration of justice, especially public power affecting liberty. 30 The sentiments expressed by the High Court in Metwally apply equally in relation to an appeal to this Court from a judgment of the Federal Circuit Court of Australia. They apply with all the more force in the present statutory context, this Court having no original jurisdiction to judicially review the Authority's decision: Act, s 476 and s 476A. To grant leave to introduce new arguments would be to allow this Court to be utilised as a de facto court of original jurisdiction when sitting on appeal and so undermine the conferral of jurisdiction under s 476 and s 476A of the Act and this Court's role as an intermediate Court of Appeal: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (Lander J). 31 It may be accepted that a change of solicitor and counsel might result in arguments being identified for the first time that have not previously been identified. However, whether or not a ground has been previously identified for the first time after judgment at first instance in a particular case is a question of fact. It is not insignificant that in the proceedings below, a ground of review was advanced that selectively focused on specific categories of new information and not others. In the absence of evidence to the contrary the inference can and should be drawn that the appellant's former lawyer consciously considered the availability of the arguments now sought to be advanced in relation to other categories of new information, but decided not to agitate them. In relation to the proposed ground 2, there is no evidence from which I might infer that the arguments were not adverted to at all by the appellant's former lawyer. 32 The circumstances are not relevantly different to those that arose in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433. It is convenient to repeat what I said there: 25 Critically, the appellant has given no explanation as to why the matters now sought to be argued on the appeal were not agitated on the application for judicial review before the primary judge. It may be the case that consideration was given to advancing the arguments in the judicial review proceedings but a conscious decision made not to do so. It may be that the availability of the arguments was not considered by the appellant's legal representatives at the time. The Court simply cannot know. 26 Where (as here) it is argued that the appellant's status as a failed asylum seeker weighs in favour of the grant of leave to raise a new argument, it is not unreasonable to expect the legal representatives of the appellant to adduce admissible evidence as to why the same critical stakes now urged upon the Court did not appear to inform their earlier decisions as to which arguments ought to be run at first instance and which arguments ought not to be run: AOL15 v Minister for Immigration and Border Protection [2018] FCA 979 at [24]. 27 In the absence of evidence, I am not prepared to infer that the appellant did not make a well informed decision not to advance the arguments previously. These are matters that the appellant and his legal advisers are in a position to depose to. No affidavit has been filed. 33 In BKQ16 v Minister for Immigration and Border Protection (2019) 163 ALD 127, Mortimer J identified nuanced differences in judicial approaches as to the level of merit a proposed new ground should appear to have before leave is granted to raise it for the first time on an appeal. For my part, I do not consider it correct to say that leave should ordinarily be granted in all cases where the proposed ground is shown to be "arguable" against a low threshold and the Minister is not prejudiced by the argument being raised for the first time on appeal, nor do I understand Mortimer J to have been so absolute. Depending on the considerations weighing against the grant of leave it may be appropriate to refuse the grant even in a case where the grounds appear to be arguable in the minimal gateway sense described by her Honour. 34 In determining whether it is expedient in the interests of justice to grant leave to raise a new argument, it is permissible to have regard to the administration of justice in the wider sense, that is, beyond the private interests of the parties. For example, the circumstance that a new proposed ground raises an issue of general importance may weigh in favour of leave in circumstances where leave may not otherwise be granted: Lobban v Minister for Justice (2016) 244 FCR 76 at [73] - [75] (Charlesworth J). The circumstance that Parliament has not conferred original jurisdiction in this Court to review the legality of the decision may weigh against it. As has been said, the level of merit required to be shown in the proposed grounds may differ from case to case, depending on the strength of other considerations weighing for or against the grant. What is required is an evaluative judgment of the relevant considerations unique to each case. 35 Returning to the present appeal, the circumstance that this Court has no jurisdiction to judicially review the Authority's decision together with the absence of an explanation for not advancing the grounds before the Court having original jurisdiction to determine them are to be afforded considerable weight. I have concluded that the proposed new grounds do not have sufficient merit to justify the grant of leave.