Background
9 On 27 August 2012, the applicant arrived in Australian waters at Cocos Island as an unauthorised maritime arrival.
10 On 15 January 2013, the applicant participated in an "Irregular Maritime Arrival Entry Interview". Aspects of the record of interview form identify some of the applicant's claims (items 1 and 18 are relied upon by the applicant).
11 Between August 2012 and February 2013, the applicant was in detention centres following which he was granted a temporary visa and released into the community on the Australian mainland.
12 On 20 August 2013, the applicant lodged an application for a protection visa. The application included a statutory declaration of the applicant dated 14 August 2013. For reasons explained in a letter from the Department of Immigration and Border Protection (the "Department") to the applicant dated 8 September 2015, the application was invalid. By letter dated 8 September 2015, the Department invited the applicant to apply for a protection visa or a SHEV. On or about 9 or 12 October 2015, the applicant lodged an application for a Safe Haven visa. That application was also supported by the statutory declaration of 14 August 2013, amongst other documents.
13 On 13 January 2016, the applicant participated in an interview with the Minister's delegate. On 21 January 2016, the applicant's agent, Ms Nkowane-Poole (a legal practitioner and registered migration agent), provided a post-interview written submission to the Department.
14 On 1 September 2016, the Minister's delegate made a decision refusing the grant of a Safe Haven visa.
15 On 6 September 2016, the IAA informed the applicant that the decision of the Minister's delegate had been referred to the IAA for review.
16 On 30 September 2016, the IAA received a submission from the applicant's agent (Mr James Brown, VisasOnline Pty Ltd). On 13 October 2016, Mr Brown sent a further letter described as "Addendum to Submission dated 30 September, 2016" to the IAA by email. On 1 February 2017, the IAA made a decision to affirm the decision under review, thus affirming the decision not to grant the applicant a Safe Haven visa.
17 On 25 February 2017, the applicant applied to the Federal Circuit Court for judicial review of the IAA's decision. As earlier mentioned, that application was amended on 7 November 2017 and further amended on 11 August 2018 with leave to amend given on the day of the hearing on 24 August 2018.
18 Following a hearing before the primary judge on 24 August 2018, the primary judge made orders dismissing the further amended application filed by leave and ordered the applicant to pay the first respondent's costs of the proceeding fixed in a particular amount. The primary judge gave ex tempore reasons in support of those orders. As earlier mentioned, the reasons appear to have been settled in a written form on 21 September 2018 and published on 25 September 2018.
19 As earlier mentioned, the applicant filed an application for an extension of time to appeal to this Court on 14 November 2018 supported by his affidavit of 13 November 2018 which seeks to explain his delay in filing a notice of appeal from the orders of the Federal Circuit Court to this Court.
20 Rule 36.03(a)(i) of the Federal Court Rules 2011 provides that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. Rule 36.05 provides that a party who wants to apply for an extension of time within which to file a notice of appeal may do so during or after the 21 day period. The application must be supported by an affidavit stating "briefly but specifically, the facts on which the application relies" and "why the notice of appeal was not filed within time": r 36.05(3)(c).
21 Counsel for the applicant accepts that the principal matters relevant to whether time ought to be extended are these: the length of the applicant's delay; the applicant's explanation for the delay; the merits of the appeal; and any prejudice the respondent may suffer should time be extended: para 20 of the applicant's submissions.
22 As to the question of the length of delay, the applicant's counsel accepts that the delay is 61 days and that such a delay is "more than insignificant". Nevertheless, the applicant's counsel says that the delay is "not unduly extensive": para 21. I accept that the delay of 61 days is not an insignificant delay. The rules contemplate a period of 21 days. If an assumption is made that it is not unreasonable for a party to wait upon the receipt of the written reasons for judgment explanatory of the orders before filing a notice of appeal, it is relevant to note that the applicant received written reasons for judgment on or about 25 September 2018. By that time, one month had passed from the date of making the orders. The applicant could have filed a notice of appeal within 21 days of the date of the orders in reliance upon recollections and notes of the ex tempore reasons. However, it would probably have then been necessary to amend the notice of appeal to reflect grounds which adequately took into account, more precisely, the written reasons for judgment informing the applicant of the precise reasoning. With the benefit of the written reasons, the contended errors on the part of the primary judge could then be properly, or at least more accurately, identified. The application for an extension of time was filed on 14 November 2018, a period of approximately 50 days after the receipt of the written reasons (assuming the applicant received the reasons on 25 September 2018). This is not to diminish, however, the fact that reasons were published ex tempore on 24 August 2018. Moreover, it needs to be recognised that the applicant was represented by lawyers before the primary judge. Although a self-represented applicant would find it difficult (especially in reliance upon an interpreter) to truly understand the burden and content of ex tempore reasons, lawyers representing a party are well placed to come to grips with ex tempore reasons in a way which might suggest an ability to frame and file an appropriate notice of appeal within time albeit that the notice might require amendment in the light of the written reasons.
23 As to the explanation for the delay, the applicant seems to accept (see paras 6 and 7 of his affidavit) that his solicitor, Ms Wadley, understood that the making of the orders and the publication of the reasons ex tempore on 24 August 2018 had the result that the notice of appeal had to be filed by 14 September 2018. The explanation for the delay is that the applicant and his solicitor were waiting upon counsel's opinion. I assume that counsel's opinion was to address whether one or more grounds of appeal were available to the applicant or at least arguably available, and, whether any arguable ground was thought to have sufficient merit to be successful. None of this is explained properly by the applicant, as the applicant's counsel accepts. Ultimately, the applicant was told on 10 November 2018 by his solicitor that those solicitors were "unable to proceed in the matter based on Counsel's opinion". It is not clear when the applicant's solicitor received counsel's opinion or whether the opinion was expressed in writing. Nevertheless, four days later, the applicant, acting on his own behalf, filed his application to this Court for an extension of time.
24 The applicant's affidavit, as an explanation of the delay, is unsatisfactory. The delay needs to be more fully explained especially when the applicant, at the material time, was represented by lawyers. His solicitor was present when the orders were made and the ex tempore reasons pronounced. The timing of the steps taken by the solicitor to brief counsel, the steps taken to press counsel for his or her opinion and the reasons for the delay on the part of counsel or the solicitor for the applicant ought to have been made very clear.
25 I am satisfied that the applicant and his solicitor understood the need to file the notice of appeal within 21 days and I infer that on 10 November 2018 the applicant was told that his solicitor could not continue to act for him because counsel's advice was sufficiently unfavourable to the applicant's prospects on appeal that no appeal could properly be filed. That follows because the applicant says in his affidavit at para 7 that he was told that the solicitor was unable to proceed "based on Counsel's opinion".
26 However, now the position is that the applicant is represented by Mr Zipser of counsel instructed by Rasan T Selliah and Associates. Mr Zipser urges the Court to grant an extension of time to enable the applicant to agitate the new ground of challenge to the IAA's decision recited in the proposed draft amended notice of appeal. Accordingly, it is necessary to examine aspects of the proposed new ground of appeal, for which the applicant needs leave, to determine whether the point not taken below has sufficient merit to enable it to be advanced in the interests of justice, subject to the tests or factors to be applied governing that question.
27 The first respondent Minister says that "critically" for the purpose of this application, the new ground does not establish that the "decision of the primary judge" is attended by sufficient doubt to warrant the granting of an extension of time para 9 of the Minister's submissions. However, in circumstances where the ground of challenge to the IAA's decision now identified by the applicant's new lawyers is truly a new ground, the primary judge's decision, inevitably, will not address the point now sought to be put in issue. The Minister says that the ground now sought to be agitated is not merely a reformulation of the grounds advanced before the primary judge and nor is there "overlap" between the new ground and those grounds: para 13. Mr Zipser contends that there is identifiable overlap between the grounds agitated before the primary judge and the proposed new ground with the result that the new ground is said to be not entirely new: para 30.
28 As to the principles to be applied in determining whether leave is to be granted to permit the proposed ground to be raised on appeal, the Minister relies upon the observations of Griffiths and Perry JJ in Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19] and [20], in these terms:
19 The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90]):
46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].
47 In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
48 The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
20 In Summers v Repatriation Commission (2015) 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [79].
29 The Minister also places emphasis upon the observations of the Full Court (Heerey, Moore and Goldberg JJ) in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [23] concerning the caution expressed about the implications for the "structure and integrity" of the appellate processes of the Court in allowing an appellant to raise for the first time on appeal a ground not raised as a ground of review before the primary court on the part of an applicant seeking judicial review of a decision of the relevant administrative tribunal (in that case, the Refugee Review Tribunal): para 12, Minister's submissions.
30 Their Honours said this on that topic at [23]:
23 Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon. The way in which the appellant presented his application for review and his notice of appeal is unacceptable. It is important in cases such as this that the issues to be determined by the primary judge and by the Full Court be particularised in sufficient detail to enable the respondent and the Court to understand fully what are the relevant issues to be determined. In this context we refer again to the observations of Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs at par 19 above [cited as [2000] FCA 1348].
31 At [24] in Iyer, their Honours also said this:
24 However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.
32 The applicant before this Court emphasises the importance of the discretion residing in the Court to allow an appellant to argue an issue on appeal not argued below in circumstances where the Court considers it "expedient" and "in the interests of justice" to entertain the issue. As to those factors, the applicant emphasises the observations of the Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [79], affirming as "correct and orthodox" the approach adopted by the Full Court (Kenny, Murphy and Beach JJ) in Summers v Repatriation Commission (2015) 230 FCR 179 at [93] to [95] ("Summers"). Those observations in Summers at [93] to [95], are these:
93 Almost self-evidently, proposed ground 4D(a) was not raised before the primary judge; and parties are of course bound by the way a case is conducted: see, for example, Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at [97] per Robertson J and Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95 per Kenny, Besanko and White JJ at [161]-[162]. Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and, as reference to authorities such as University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71, Water Board v Moustakas (1988) 180 CLR 491 at 497 (Water Board v Moustakas) and Coulton v Holcombe (1986) 162 CLR 1 (Coulton v Holcombe) at 7-8 show, an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue: see Water Board v Moustakas at 497 and Coulton v Holcombe at 8, citing O'Brien v Komesaroff (1982) 150 CLR 310 (O'Brien v Komesaroff) at 319 per Mason J (with whom the other members of the Court concurred). The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so: see, for example, Summers No 1 at [60]; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 341-343; 35 ALR 186 at 194-195 per Bowen CJ, 347-348; 199 per Fox J and 354-355; 205 per Deane J, cited with approval in Grant v Repatriation Commission (1999) 57 ALD 1 (Grant v Repatriation Commission) at [20] per Merkel, Goldberg and Weinberg JJ (also noting that the respondent must have an opportunity to be heard on the issue).
94 The Court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised: Peacock v Human Rights and Equal Opportunity Commission (2003) 73 ALD 341 at [28] per Kiefel and Allsop JJ. Generally speaking the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O'Brien v Komesaroff at 319; Larsen v Minister for Environment and Heritage (2008) 174 FCR 14 at [3]-[6] per Moore and Lander JJ; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at [126]-[131] per Tracey, Gilmour, Jagot and Beach JJ.
95 We consider it expedient and in the interests of justice for us to entertain the issue raised by the proposed ground 4D(a) and we grant leave to Mr Summers to further amend his amended notice of appeal so as to include that ground. We say this, first, because the failure to argue appeal ground 4D(a) before the primary judge did not arise because of any personal failure by Mr Summers. Rather, it seems to have arisen through his solicitor's error. Provided it can be addressed without the Commission suffering prejudice, and given that the issue concerns Mr Summers' pension entitlement under the Act, we are reluctant to allow Mr Summers' appeal to be prejudiced by his solicitor's error.
[emphasis added]
33 Ultimately, the question of whether leave ought to be granted to enable a party to agitate, on appeal, an issue which was not argued below, is whether the applicant for leave can show it is expedient and in the interests of justice that leave be granted to argue the new ground. The content and application of those two notions in some classes of case, however, can be contextually problematic.
34 The question of whether it is expedient and whether the interests of justice are served by allowing a party to raise a fresh contention not argued before the primary judge in, for example, a dispute the subject matter of which only concerns inter-party rights and obligations arising under a contract or questions concerning fiduciary duties owed by one party to another (and a breach of those duties) or whether a duty is owed at common law or under statute in particular circumstances (or any other class of case where private rights, duties and obligations are in contest), arises in an entirely different context from that which attracts the exercise of the judicial power of the Commonwealth in exercising supervisory review of the limits of decision-making authority or power of public officials as a question of "legality" or jurisdictional error, especially where the consequences of error for those asserting an excess of jurisdiction may be removal from Australia to a particular country in circumstances where Australia may owe, or may be shown to owe, protection obligations under the Migration Act 1958 (Cth) (the "Act") to the applicant seeking to argue the new ground.
35 I agree, and of course recognise, that the principles described in Haritos affirming as "correct and orthodox" the observations in Summers, are true principles of general application but nevertheless, it must be recognised that there may be contextual dangers or false conclusions reached in trying to force a glass slipper on every large foot that presents itself for that task. In other words, when the question of whether leave ought to be granted arises in a case engaging a subject matter of whether a public official has exceeded the limits of decision-making authority or power, the notion of "serving the interests of justice" necessarily has an entirely different character to that which arises when the issue presents itself in the class of case described in the examples given at [34] of these reasons.
36 It is now necessary to examine the new ground the applicant seeks to rely upon by his draft notice of appeal.
37 As already mentioned, the applicant initially filed an application for review before the Federal Circuit Court on 25 February 2017 and amended that application on 7 November 2017. The applicant was granted leave at the hearing on 24 August 2018 to rely upon the further amended application for review dated 11 August 2018. As to that application, the applicant ultimately relied upon grounds 2(a), 2(c) and 3. Those grounds were these:
2(a) The second Respondent [IAA] has not asked the correct questions in relation to the Applicant being shot at in 2012.
The second Respondent has not asked the correct question, as to who actually inflicted the damage to the Applicant's property in 2012.
2(c) The second Respondent has not taken a relevant consideration(s) into account and/or has not asked the correct question.
PARTICULARS
The Second Respondent has not considered the cumulative nature of all of the criminal acts against the Applicant, which have largely been accepted as occurring by the Second Respondent. Further, given that the Applicant has experienced four (4) criminal acts perpetrated against himself and his brother, now deceased, does the Applicant not now face a real risk of suffering significant harm again?
3 The Second Respondent has been unreasonable, illogical and irrational and a jurisdictional error has occurred.
PARTICULARS
The Second Respondent has been manifestly unreasonable in applying "the real risk of significant harm" test as set out in s 36(2)(aa) of the Act and the decision is so unreasonable that no reasonable authority would have made such a decision. Further the decision is irrational and illogical and only one conclusion is available on the evidence and the Second Respondent has not come to that conclusion.
38 As previously mentioned, the only ground now sought to be relied upon before the Full Court is the ground recited at [5] of these reasons. For the sake of convenience, I will set that ground out again here:
1. An integer of the appellant's claims before the Immigration Assessment Authority ("the IAA") was that he may face a real risk of significant harm from criminal violence should he return to Sri Lanka. Although the appellant did not expressly make this claim before the Department or the IAA, the case arose on the material and evidence before the IAA. The IAA failed to deal with this integer of the appellant's claims. This was a jurisdictional error.
39 The applicant does not seek to demonstrate error on the part of the primary judge in dismissing the amended application arising out of the primary judge's analysis of grounds 2(a), 2(c) and 3. Rather, the applicant seeks leave to rely only upon the new ground. The applicant says, however, that there is a "particularly close" overlap between grounds 2(c) and 3 agitated in the Federal Circuit Court and the new ground with the result that the "injustice" to the respondent of raising the new ground is diminished: para 30, submissions.
40 For the purposes of s 36(2)(aa) of the Act, the question is whether, in relation to this applicant, the Minister (or the IAA) is satisfied Australia has protection obligations because the Minister (or the IAA) has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer "significant harm" in the sense in which that term is understood by reason of s 36(2A) of the Act. Section 36(2A)(d) and (e) provide that a non-citizen will suffer significant harm if the non-citizen will be subjected to cruel or inhuman treatment or punishment (d); or the non-citizen will be subjected to degrading treatment or punishment (e). Section 36(2)(a), of course, addresses the question of whether the Minister (or the IAA) is satisfied that the applicant is a refugee having regard to the statutory provisions and, in particular, the understanding of the notion of a "well-founded fear of persecution" held (or not) by an applicant for a protection visa.
41 By the new ground, the applicant says that it was an integer of his claim before the IAA that he may face a real risk of significant harm "from criminal violence" should he return to Sri Lanka. The proposition is that the applicant claimed he would face a real risk of significant harm from criminal violence "in general" should he return to Sri Lanka and not simply criminal violence at the hands of two particular individuals known as "F" and "R". The applicant's case on appeal is that although he accepts that he did not "expressly articulate a claim that he faced a real risk of significant harm from criminal violence in general should he return to Sri Lanka", the case that the applicant faced such significant harm in general was, he says, "raised by the material or evidence before the IAA" and the claim arose "squarely on the material available to the tribunal [IAA]". The applicant says that the IAA's failure to address that case amounts to a constructive failure to exercise the IAA's jurisdiction: para 38, submissions.
42 It is now necessary to examine whether such a case was raised squarely on the material available to the IAA notwithstanding that the applicant did not expressly articulate such a claim.