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[2020] FCA 593
Federal Court of Australia
2020-05-05
Mr J, Ms J, Charlesworth J
Original judgment source is linked above.
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.
Proposed ground 1 and the additional information 36 I do not propose to analyse the merits of the new arguments at the same level of detail as might be done on a final determination of their substantive merits. It is sufficient to make the following observations. 37 The proposed ground 1 invites consideration of new information the appellant asked the Authority to consider, being information that pre-dated the delegate's decision. 38 The new argument in [1(d)] is as follows: d. The Authority stated that the Appellant had not explained why some parts of the information were not and could not have been provided to the Delegate before it reached its decision. However, an explanation was in fact given. The Authority's reasons indicate it overlooked that explanation or misunderstood its task. 39 The Authority's reasons for refusing to consider that information included a conclusion that the appellant had not explained why some parts of the information were not and could not have been provided to the delegate prior to the delegate's decision. 40 The essence of the new argument in [1(d)] of the proposed NOA is that the Authority erred by overlooking an explanation that had been given for not providing the information at an earlier time. The explanation is said to have been given in written representations from the appellant's migration agent. It was to the alleged effect that the appellant could not have anticipated that the delegate would refuse the visa application for the reasons the delegate gave. 41 These submissions invoke the principles stated by Mortimer J in AUH17 v Minister for Immigration and Border Protection [2018] FCA 38: 30 There may be circumstances where it is so plain that there is, on the material, an explanation, that the Immigration Assessment Authority should consider it even if not expressly proffered by the applicant. That might be akin to circumstances where a tribunal is required to consider a claim plainly arising on the material before it even though an applicant does not expressly make such a claim: see the recent summary of these principles by the Full Court in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ) at [27]. 31 In other words, an applicant may 'satisfy' the Immigration Assessment Authority about the matters in s 473DD(b) by what she or he says, or the documents she or he produces, without clothing it in a specific submission or specific evidentiary topic directed at s 473DD(b). 42 The general principle may be accepted. However, on a proper consideration of the agent's representations, no explanation of the kind asserted appears to have been given to the Authority. The agent's submissions went no further than to assert that the delegate's decision was wrong. The "new information" footnoted in the submissions include the material that was before the delegate together with new information now forming the subject matter of the proposed new arguments. It has not been shown that the new information bore on new subject matter, nor that it otherwise dealt with outcome finding of the delegate that could not reasonably have been anticipated by the appellant. In the circumstances of this case, the contention that the delegate's decision was wrong does not carry with it an explanation (whether express or implied) for not putting the information before the delegate at the earlier time. 43 To the extent that the arguments in [1(a)] to [1(c)] of the proposed NOA are also asserted in connection with the additional information, those arguments raise the same issues already determined in relation to the information considered by the primary judge. In light of what I have said about his Honour's reasons, the arguments are lacking in merit when considered against the additional information.
Proposed ground 2 44 This proposed ground is expressed as follows: 2. The Federal Circuit Court erred by failing to find that the Authority misconstrued or constructively failed to consider the Appellant's claims, and/or made findings not open on the material. Particulars a. In finding that the Appellant would not face a real chance or risk of serious or significant harm on return to Islamabad, the Authority failed to consider his claims founded on the prospect of extortion; the relevance of circumstances outside Pakistan, including Afghanistan and Syria; the threat posed by foreign militants; or the threat posed by the 'TTP-JA'. b. In finding that there was 'no credible evidence' before it as to planned attacks on or threats to Hazaras in Islamabad, changing circumstances in Islamabad, or as to hostility towards internally displaced persons, Shias or outsiders, or hostility arising from ethnic tensions in Islamabad, the Authority failed to have regard to all of the claims and evidence put to it, and failed to explain why the evidence before it which was germane to circumstances in Islamabad was not credible. In the circumstances, the inference should be drawn that it constructively failed to consider the Appellant's claims and evidence in this regard. c. The Authority found that the Appellant could renew his computerised national identity card (CNIC) online, despite conflicting evidence before it on this matter. It did not explain why it preferred the evidence adverse to the Appellant's position over the evidence favourable to his position. d. The Authority noted evidence before it as to the persecution of Pakistani citizens imputed to be displaced Afghans because of their Hazara ethnicity. It determined that the Appellant would not face persecution because he and his parents were Pakistani citizens and he had lived in Pakistan, and because he spoke English and Urdu. The material before it did not support the finding that these factors would prevent persecution in the Appellant's circumstances. 45 Of course the primary judge made no error of the kind alleged, the arguments in [2(a)] to [2(d)] of the proposed NOA not having been raised before his Honour. 46 As to [2(a)], the appellant has not established even an arguable case that he advanced a claim "founded on the prospect of extortion". His claims are those set out in the written submissions advanced by his own representatives. Whilst the issue of extortion is mentioned in the submissions, it appeared in relation to an argument that the appellant could not relocate to Islamabad. Importantly, the reasons of the delegate did not identify or determine a discrete claim founded on a fear of extortion, and yet the submissions made by the appellant's representatives to the Authority made no complaint that the delegate had overlooked an aspect of his claims founded in extortion. The Authority was entitled to proceed on the basis that the appellant's claims were those articulated by his representatives in their detailed submissions: MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27] - [30] (Beach J). 47 As to [2(b)] the appellant has not established a sufficiently arguable case that there existed "credible evidence" that the Authority overlooked. Argument on the application for leave referred to the submissions of the appellant's representatives. The Court's attention was drawn to the footnotes of the submissions referencing evidentiary material, but the Court was not taken to the material itself. I am not satisfied that there is a sufficiently arguable case that the footnoted reports contained credible evidence that Hazaras were the subject of targeted attacks in Islamabad. 48 The argument at [2(c)] misapprehends the effect of the Authority's findings in relation to the replacement of the appellant's computerised national identity card (CNIC). The question before the Authority was whether it would be necessary for the appellant to travel to Quetta for the purposes of renewing his CNIC. On that topic, the Authority reasoned as follows: 70. The applicant claims that relocation to Islamabad would not be practical because he would have to apply for a new CNIC and this process would oblige him to return to Quetta, where he faces a real chance of serious harm. I accept that the applicant does not hold a current CNIC. The information before me indicates that the CNIC is the most widely used form of identification in Pakistan and is needed for a range of important transactions, including accessing government services. I accept that the applicant would require a CNIC in order to live in Islamabad. Information before me indicates that applications for the renewal of CNICs can be lodged online. One of the requirements is that the applicant must upload attester/verifier details, and the attester must be an authorized officer. There was a report before the delegate that poor residents of Swabi had experienced difficulties finding willing authorized officers, as public officials such as bank officials, school and college teachers had refused to act as attesters for various reasons. On the limited information before me, I am not satisfied that the applicant, an educated and resourceful person, would experience any such difficulties in Islamabad, a large city. 71. DFAT advises that CNIC applications from residents of some areas, including the Federally Administered Tribal Areas (FATA), and parts of Kyhber Pakhtunkhwa and Balochistan, must be counter-signed by Political Agents or Assistant Political Agents. I accept that residents of those parts of Balochistan administered by Political Agents may need to return to these areas to seek the signature of the relevant Political Agent or Assistant Political Agent. However, the applicant is from Quetta, the capital of Balochistan. I do not accept that the applicant would be required to obtain the signature of a Political Agent or Assistant Political Agent, or that he would otherwise need to return to Quetta, in order to renew his CNIC. 49 As can be seen, the Authority determined that the difficulties of obtaining a CNIC identified in the reports (including the necessity to travel to Quetta) did not apply to the appellant given his personal circumstances. The submissions before me do not demonstrate that the Authority, in reasoning to that result, preferred to rely on any one report while rejecting any other contradictory report. The appellant pointed to information concerning difficulties he may experience obtaining old information, but it is not apparent that the information applied to a person of his age and in his situation. Even if the Authority had before it conflicting country information bearing in any way on the topic, the argument that the Authority was under an obligation to explain its reasoning for preferring one report over another does not enjoy sufficient prospects of success to justify the grant of leave, particularly in the circumstances I have described above. 50 The argument in [2(d)] concerns the Authority's rejection of the appellant's claim that he had a well-founded fear of persecution by virtue of having the imputed identity of a displaced Afghan living in Pakistan. It was submitted that the country information before the Authority clearly established that displaced Afghans may be persecuted and that it was not open to the Authority to find that the appellant would not be misidentified as an Afghan. 51 Irrespective of the general content of the country information, the Authority's conclusions were based on the personal circumstances of the appellant, namely his status as a Pakistani citizen with Pakistani parents and the circumstance that he spoke English and Urdu. Those circumstances clearly provide an intelligible basis for concluding that there was no real chance that the appellant would be persecuted as a person having an imputed Afghan identity. In my view, proposed ground [2(d)] is an attempt to challenge the merits of the decision. Like the other grounds, it lacks sufficient merit to justify the grant of leave. 52 I will hear from the parties as to costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.
ATD18
Minister for Home Affairs
CHARLESWORTH J: 1 This appeal concerns the appellant's eligibility for a protection visa under the Migration Act 1958 (Cth). 2 The appellant is a citizen of Pakistan. He is a Shia Muslim of Hazara ethnicity. He made an application for a Safe Haven Enterprise (subclass 790) visa (SHEV) on 27 April 2016. In support of his application, the appellant claimed that there had been targeted attacks on Hazaras in his home town of Quetta in Balochistan. He claimed to fear harm from Sunni groups due to his Hazara Shia identity. He claimed that he would not be safe anywhere in Pakistan if he were to be returned there, including in Islamabad. 3 By a decision made on 13 April 2017, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate accepted that the appellant may be at risk of harm if he were to return to Balochistan. However, the delegate determined that the risk of harm did not extend to all parts of Pakistan. The delegate concluded that the appellant could relocate to Islamabad and so did not satisfy the criteria for a protection visa prescribed in s 36(2) and s 36(2aa) of the Act. As a consequence the delegate refused to grant the visa in the exercise of the power conferred by s 65(1)(b) of the Act. 4 The delegate's decision was referred to the Immigration Assessment Authority for review under Pt 7AA of the Act. Section 473DC and s 473DD of the Act confer limited powers on the Authority to obtain and consider new information, being information other than that which had been referred to it by the Secretary of the Department for Home Affairs. The Authority must not consider new information unless inter alia there are exceptional circumstances for doing so: s 473DD(a). 5 The Authority referred to information contained in country reports that post-dated the delegate's decision. It had obtained those reports of its own volition. It determined that there were exceptional circumstances under s 473DD of the Act for considering the information contained in the reports, including because they were more recent than the reports upon which the delegate had relied and because of the fluctuating security situation in Pakistan. However, the Authority refused to consider a series of documents provided by the appellant which he claimed were relevant, including on the question of whether it was reasonable for him to relocate to another region of Pakistan. Like the delegate, the Authority concluded that the appellant would not be at risk of harm if he were to relocate to Islamabad. It was not satisfied that the appellant fulfilled the essential criteria for the SHEV and so affirmed the delegate's decision. 6 The appellant made an application for judicial review of the Authority's decision. His single ground of review alleged that the Authority had erred in its application of s 473DD in rejecting the documents he had provided to it. The primary judge rejected that ground of review and dismissed the application: ATD18 v Minister for Home Affairs & Anor [2019] FCCA 1158. 7 The appellant seeks leave to file and rely upon an amended proposed notice of appeal (proposed NOA). It contains two grounds. The first is to the effect that the primary judge erred by rejecting the only ground for judicial review that had been advanced at first instance. The ground goes further to allege that the Authority committed jurisdictional error by concluding that it should not consider certain additional documents. The additional documents are not the same as the five documents forming the subject matter of the proceedings below. The first ground also raises new arguments in relation to the same five documents that were considered by the primary judge. The proposed second ground of appeal also raises new arguments. The new arguments cannot be introduced on the appeal except with the leave of the Court. 8 For the reasons that follow, the primary judge did not err in the manner alleged in the first ground of appeal in connection with the documents forming the subject matter of the originating application in the Court below. The application for leave to introduce arguments not advanced at first instance should be refused. It follows that the appeal should be dismissed. 9 It is convenient to first explain why the primary judge did not err in dismissing the originating application.
[2002] FCA 480
[1985] HCA 28
(2016) 244 FCR 76
(2017) 250 FCR 510
(2004) 238 FCR 588
(1986) 162 CLR 1
(2001) 112 FCR 455