Are new grounds of judicial review raised in the appeals?
51 As noted above, the Minister contends that BMJ17 requires leave to raise ground 2 of her notice of appeal because the particulars to that ground reveal that it was not raised before the primary judge. The same contention is raised with respect to each of the grounds of appeal in BMH17's notice of appeal.
52 As has been noted earlier in these reasons, the appellants' grounds of review in their applications in the Circuit Court were not particularised. It is evident from the primary judge's reasons for decision that the appellants filed no written submissions by which particulars of those grounds were articulated. Nonetheless, the particulars of the asserted errors of the primary judge pleaded in the grounds of appeal have identified particulars that fall within the broad scope of the grounds of review in the Circuit Court.
53 The brief description of the appellants' submissions set out in the primary judge's reasons for decision do not identify the particulars the appellants seek to raise in the appeal. The primary judge dismissed the applications for review, in part, due to the absence of particulars. In the appeal, it is evident that the Minister relies on the primary judge's reasons in support of the submission that the matters the appellants advance as particulars of the grounds were not raised before the primary judge. The Minister has not sought to support that submission by placing the transcript of the hearing before the primary judge before this Court.
54 The primary judge's reasons for decision do not describe the extent to which, if at all, he sought to elicit from the appellants the reasons that they contended that the Authority had not considered all the evidence or did not take into account relevant considerations, or had misinterpreted the law, or had failed to afford them procedural fairness. Although the primary judge said that the nature of the hearing had been explained to them and they had confirmed that they understood that explanation, the primary judge's description of the submissions the appellants then made suggest that the appellants had not 'understood' the nature of the hearing or that they were required to provide particulars of each of the grounds of review. There is no indication in the primary judge's reasons for decision that the appellants were informed that if they were not able to provide particulars of a ground of review the Court may dismiss the ground for want of particularity.
55 Having regard to these matters, that the appellants were litigants-in-person, neither made written submissions to the Court and each relied, in substance, on the grounds of appeal set out in the notices of appeal, as supplemented by brief oral submissions, the Court requested further written submissions from the parties on the following questions:
(a) Is the true nature of the asserted errors underlying the grounds of appeal and proposed grounds of appeal that the [appellants] were not accorded procedural fairness and, thereby, were not given a reasonable opportunity to raise the particulars of the grounds of review of the Authority's decision pleaded in grounds 1 and 2 of the notice of appeal and ground 2 of the draft notice of appeal?
(b) In the circumstances of this case, was each of the [appellants] provided with sufficient guidance to understand the nature of judicial review and to express the grounds of review with sufficient particularity for the primary court to determine the nature of the complaints about the Authority's exercise (or failure to exercise) jurisdiction or power?
(c) Was each of the [appellants] provided with a reasonable opportunity, after receiving such guidance, to formulate particulars of the grounds of review with appropriate particularity?
(d) If and to the extent the primary judge failed to afford the [BMH17] and (or) [BMJ17] procedural fairness, to what extent was there a realistic prospect that a different decision could have been made absent such a failing?
The Minister filed further written submission in response to these questions. Neither appellant made any further written submissions.
56 The Minister submits that the appellants have not raised as part of the relevant grounds of appeal any contention that they were not afforded procedural fairness or that the primary judge had not provided sufficient guidance to them as litigants-in-person. The Minister also submits that in the absence of the transcript of proceedings before the primary judge, the Court could not reach any findings about the manner in which the primary judge had conducted the proceedings before him.
57 The Minister's submissions, with respect, somewhat miss the point of the questions to the parties. The Minister's submissions to the effect that the grounds of appeal are 'new' raise the question of whether the grounds of review the appellants raise in the appeal were before the primary judge. The Minister has the onus of demonstrating they were not. The Minister relies on the primary judges reasons. However, as the ground of appeal that raises the translation issue falls within the broad scope of the grounds of review in the Circuit Court, in substance, the Minister's submission relies on an absence of particularity of the grounds of review in the Circuit Court. That, in turn, raises a question as to whether the appellants were afforded a reasonable opportunity to provide particulars. The primary judge's reasons leave that question largely unanswered and the Minister has not sought to put the transcript of the hearings before the primary judge before this Court to 'fill the gaps'. Therefore, the absence of a transcript tends to undermine rather than support the Minister's submission that leave should be refused because the ground is 'new'.
58 When speaking of the consequences of a failure to adequately particularise a ground of appeal by a litigant-in-person, in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, Colvin J made the following observations:
8 The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.
9 However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.
10 Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in the performance of counsel's paramount duty to the Court. It is not to be based upon the lack of particularisation of ground by an appellant who is appearing in person.
59 These observations have been cited with approval in a number of subsequent decisions of other judges of this Court: e.g., BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35] (Wheelahan J); GKH18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 at [26] (Banks-Smith J); BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] (McKerracher J); BTU17 v Minister for Immigration and Border Protection [2019] FCA 538 at [28] (Thawley J); EHB17 v Minister for Home Affairs [2018] FCA 1280 at [27] (Thawley J).
60 As to the observation of Colvin J concerning counsel's paramount duty to the Court, Wheelahan J made the following further relevant observations in BYP16 at [38]:
38 There is no inconsistency between the guidance of Colvin J in DQQ17 concerning the provision to an unrepresented applicant of an opportunity to articulate a claim and requesting counsel for the Minister to address the matter as an officer of the Court acting for a model litigant, and the inability of a reviewing court to engage with a claim where no identifiable error is alleged or is otherwise apparent: see EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] (Farrell J), and ANL15 v Minister for Immigration & Border Protection [2019] FCA 1365 at [24] (Jackson J) where the latter point is discussed. And the guidance of Colvin J in DQQ17 sits with other guidance, including that of McKerracher J in COS16 v Minster for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 112 (COS16) at [20] that -
It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration & Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error.
61 The primary judge's reasons do not explain to what extent, if at all, the appellants were afforded an opportunity to explain orally the particulars of the matters that are said to give rise to the review grounds. Nor do the primary judge's reasons explain what submissions, if any, the Minister made (as a model litigant) to assist the primary judge to identify any relevant matters. The Minister has not sought, in support of its contention that these are 'new' points, to demonstrate that the appellants were afforded an opportunity to explain the relevant matters or that the Minister (acting as a model litigant) was unable to identify the relevant particulars from the materials and draw them to the primary judge's attention.
62 As will be explained shortly, counsel for the Minister in the appeals has quite properly identified and drawn the Court's attention to key aspects of the materials before the primary judge and the Authority's reasons that may provide grounds or a basis for jurisdictional error within the scope of the error pleaded in ground 2 of the notices of appeal. In my view, these materials were sufficiently obvious for counsel experienced in migration matters to have identified them as falling within the broad scope of grounds 3 and 4 of BMH17's application and drawn them to the primary judge's attention. As materials of the same character were not in BMJ17's court book, counsel for the Minister in those proceedings (who was not the same) would not have been able to identify the relevant particulars from the materials available on her application. However, if counsel for the Minister would not have been able to identify from the factual material in the BMJ17 court book particulars of the kind that support the jurisdictional error now alleged in ground 2 of BMJ17's draft notice of appeal, BMJ17 herself had no hope, as a self-represented litigant with limited command of English, of so doing. In that circumstance, the 'opportunity' afforded to her to amend her application and make submissions on such an amended application and, thereby, provide particulars of the translation ground was hollow.
63 Procedural unfairness can arise in circumstances where a decision-maker is not aware of the fact or circumstance resulting in unfairness: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16]; see, also, e.g., Minister for Immigration and Multicultural Affairs v Bhardwai [2002] HCA 11; (2002) 209 CLR 597; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [76]-[103] (French J, in dissent) (Minister for Immigration and Multicultural Affairs v SZFDE [2007] HCA 35; (2007) 232 CLR 189 (reversing the Full Court and substantially agreeing with French J, but not directly as to this point); SZRJS v Minister for Immigration and Citizenship [2013] FCA 682; (2013) 213 FCR 317 at [16]; Hot Holdings Pty Limited v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [22] (Gleeson CJ)).
64 In the case of BMH17, the materials in the appeal book in his proceedings relevant to potential procedural unfairness or failure to consider evidence (legally unreasonable failure to 'get in' and consider new information) were obvious or self-evident. These 'particulars' were not drawn to the primary judge's attention and he, thereby, laboured under the misapprehension that BMH17's application had not raised as an issue the exercise of the Authority's procedural powers under ss 473DC and 473DD: J BMH17 [40].
65 In the case of BMJ17, the materials relevant to potential procedural unfairness or failure to consider evidence (legally unreasonable failure to 'get in' and consider new information) were omitted from the court book in her proceedings. The deficiencies of the materials in the court book could not have been known to BMJ17, but ought to have been known to the Minister. The deficiencies were not drawn to the primary judge's attention and he, thereby, laboured under the misapprehension that '[n]o new information was [able to be] identified enlivening any obligation under [s 473DD]': J BMJ17 [46]. Likewise, there was no evidence to support BMJ17's grounds: J BMJ17 [49] and 'no basis to find that [she] was not afford procedural fairness in the conduct of the review': J BMJ17 [51].
66 The Minister relied on VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], Han v Minister for Home Affairs [2019] FCA 331 at [10], [15], [20], Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455 at [369] and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [26] as authorities supporting the following familiar principles:
(1) Leave to argue a new ground on appeal will only be granted where the court considers that it is expedient and in the interests of justice to entertain the issue.
(2) Allowing an appellant to raise a new ground on appeal undermines the judicial review scheme established by the Act. In effect, it results in the loss of a right of appeal for the Minister if the new ground is successful.
(3) Generally, merit alone is not a sufficient basis for the grant of leave.
(4) A party should not be permitted to raise on appeal a new ground which, had it been raised below, could have been met by evidence.
(5) The last matter weighs heavily against the grant of leave.
67 These are well-established principles that are founded on principles developed in the application of the Court's discretion to allow a new ground to be raised in appeals involving the vindication of private rights between private parties. In general, the principles have been considered transferrable and equally applicable in the context of public law and administrative decisions concerning migration laws. Nevertheless, as Mortimer J has observed in a number of decisions, the concept of the 'interests of the administration of justice' may differ between private law and public law in the application of the principles: e.g., Murad at [55]-[58].
68 Generally, parties are bound by the conduct of their case. 'Except in exceptional circumstances, it would be contrary to all principle to allow [parties], after a case had been decided against [them], to raise a new argument which, whether deliberately or by inadvertence, [they] failed to put during the hearing when [they] had an opportunity to do so' (emphasis added): University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71. In an appeal by way of rehearing the issues are not at large. It is important that 'the main area for the settlement of disputes [does not] 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:' Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7. In cases where, 'had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding [there is a firm] principle that the point cannot be take afterwards': Coulton at 8. Each of Metwally (No 2) and Coulton was a private law case.
69 Regarding the apparently 'rigid' formulation of principles in the private law context, it is important to keep in mind that the Court is exercising a discretion. There are general principles applicable to the exercise of the discretion, but these should not be elevated to inflexible rules that fetter the exercise of the discretion and ultimately its object; the interests of the administration of justice. As Allsop CJ observed in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2]:
… The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision: cf Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]. Whilst not intending to identify any error in the way Bromwich J helpfully summarised some of the cases in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[18] care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.
70 Having regard to these principles, the public law context, the appellants' disadvantage, and the procedure adopted in the Circuit Court, I have some difficulty accepting that the appellants should be held to the usual principles on the assumption that they had a fair opportunity to put the arguments that they now wish to raise in the appeal in the proceedings before the primary judge. It seems to me that the Minister, as a model litigant, must accept some responsibility for the failure of that procedure to identify the translation ground that the appellants now wish to advance on appeal.
71 Given that the translation ground was latent and not particularised in the proceedings before the primary judge as a result of failings of the procedure of those proceedings for which the appellants were not responsible, or entirely responsible, it is not accurate to characterise the ground as 'new' in the sense in which the characterisation 'new ground' or 'new argument' or 'new point' is used in the authorities dealing with the usual principles. Further, in the unusual circumstances of this case, the interests of the administration of justice may require modification of application of the usual principles concerning leave to raise a 'new' ground on appeal.