Application for Leave to raise new ground of appeal
26 The appellant initially filed a notice of appeal from the FCCA decision on 27 February 2020, outlining two grounds of appeal.
27 On 21 March 2022, the appellant filed his Amended Notice of Appeal. The appellant now seeks leave to rely on the Amended Notice of Appeal, which abandons the previous grounds and consists of just one ground that was not raised in the FCCA.
28 The sole proposed ground of appeal contends that the IAA acted unreasonably in its exercise of the power in s 473DC of the Act. In essence, the appellant takes issue with the IAA citing sections of the 2017 DFAT Report which it did not specifically invite the appellant to comment on in its invitation for comment under s 473DC(3).
29 The focus of the Amended Notice of Appeal is the IAA's decision. It alleges that the IAA fell into jurisdictional error in a respect that is different from the errors about which the appellant complained in the court below. It is in truth an application for judicial review under the guise of a notice of appeal. In other words, it is an attempt to set aside the decision of the IAA after the first attempt failed.
30 It was not in dispute that the ground of appeal raised by the proposed Amended Notice of Appeal was not raised below. In that circumstance, the appellant requires leave to raise the new ground of appeal.
31 The Minister opposes the application for leave to raise a new ground on appeal.
32 As Katzmann J observed in AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 at [24]:
An appeal to this Court from the Federal Circuit Court is not a hearing de novo (or new hearing) in which the case agitated below can be run afresh with no regard to the original findings. It is an appeal by way of re-hearing and the task of a court in an appeal by way of re-hearing is the correction of error: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]-[22] (Allsop J, Drummond and Mansfield JJ agreeing); SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. It is therefore incumbent on an appellant to persuade the Court that the primary judge fell into appealable error. The lodgement of an appeal is not an opportunity for an appellant to have another shot at the decision under review.
33 In AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433, Charlesworth J summarised the principles relating to the raising of a new ground on appeal and the statutory scheme. Relevantly, these include:
(a) Leave to raise arguments not raised before the primary judge should only be granted where it is in the interests of justice to do so (at [17]).
(b) This Court does not have original jurisdiction to judicially review the IAA's decision. Rather, the Act confers that jurisdiction on the FCCA. The appellate jurisdiction of this Court is conferred for the purposes of correcting legal, factual, or discretionary error in FCCA decisions. It follows that an application to advance new grounds in this Court is asking this Court to judicially review the IAA's decision where it would otherwise have no original jurisdiction to review: at [18].
(c) In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, the Full Court noted the prevalence of the practice of raising new grounds on appeal in migration cases, saying at [48] (and quoted at [21] of AAD16):
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.
34 More recently, the Full Court in WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 said at [20]:
Specifically in relation to migration cases, where an adverse decision may have various serious consequences for an appellant, the Court may grant leave to raise such a new point that was not taken below if the point clearly has merit 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. See, for example, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 [48], CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 372 [36] and Fualau v Minister for Home Affairs [2020] FCAFC 11 at [13]-[14].
35 From the authorities, there are three factors that go to determining whether leave should be granted for the appellant to raise the new ground: prejudice to the respondent, explanation as to why the ground was not raised below, and the merits of the proposed ground.
36 The Minister does not claim to suffer any specific prejudice, and recognises the gravity of the issues at stake. However, the Minister submits that there are factors that weigh against the grant of leave in this case. These are that appellant's explanation is unsatisfactory or incomplete, the appellant was represented by solicitors in the FCCA, and that the proposed ground has no merit.
37 The appellant filed an affidavit in support of raising the new ground of appeal. The appellant's evidence can be summarised as follows.
(a) The appellant was represented by a migration agent during the IAA proceedings. The agent recommended the appellant see a lawyer after the IAA affirmed the visa refusal. The appellant states that the lawyer recommended by his agent did not speak Tamil, which was a concern to him.
(b) A friend referred the appellant to a Sydney-based lawyer of Tamil ethnicity (Mr Tambimuttu). In May 2017 the appellant travelled from Victoria to meet Mr Tambimuttu, who, after reading the IAA decision, told him words to the effect that the appellant would have "a 100% chance of winning" in the FCCA, and that the appellant would have to pay $4500. The appellant paid that sum.
(c) Mr Tambimuttu next contacted the appellant close to the hearing date in the FCCA in 2020. Mr Tambimuttu requested a further $3000 payment.
(d) Stephen Hodges represented the appellant at the FCCA hearing. The appellant deposes that he has never met anyone called Stephen Hodges and did not attend the hearing.
(e) The appellant did not understand the legal issues raised in the FCCA, they were never explained to him, and he was told he did not have to attend the hearing.
38 The appellant was not cross-examined and the previous solicitors were not called to give evidence.
39 The appellant submitted that he had no knowledge of the grounds that were advanced before the primary judge, they were never explained to him and that he had been advised not to attend the hearing. There is no suggestion that the proposed ground would have been raised had the appellant attended the hearing below.
40 As noted above, the Minister submits the appellant's explanation is unsatisfactory. In particular, the Minister notes that the appellant was represented below, and that this Court has said that "the mere fact that new counsel has thought of a new point is insufficient"; WGKS at [20], and "the practice of incoming counsel abandoning all that has gone before and introducing a wholly new case at the appellate level is to be discouraged"; Uolilo v Minister for Home Affairs [2021] FCAFC 138, at [84] (Charlesworth J) .
41 Addressing the appellant's evidence in his affidavit, the Minister submits that the relevant documents show that Mr Tambimuttu and Mr Hodges both conduct business from the same address (being a firm called Hodges Legal). Mr Hodges of Hodges Legal affirmed an affidavit on behalf of the appellant (then applicant) in the FCCA proceeding in which he annexed an email that he wrote to the FCCA on 31 December 2019, in which he wrote that he had been instructed to seek to file an amended application for the hearing scheduled for 6 February 2020. I infer that the appellant instructed Hodges Legal to represent him before the FCCA, even though he may have dealt with different solicitors at the firm to Mr Hodges who ultimately represented him at the hearing.
42 Counsel for the Minister also referred the Court to AFE18, where Katzmann J dealt with a similar set of circumstances and found at [35]-[36]:
When asked why the matters raised in the notice of appeal were not raised in the court below, the appellant said he was unaware of the grounds pleaded in the application. He blamed his lawyer. He said that the lawyer who represented him in the Federal Circuit Court advised him not to attend the hearing and failed to explain to him the grounds that he has included in the application to that court.
The account simply revealed an ignorance of the subject matter of the show cause application. Since the appellant was also ignorant of the contents of the notice of appeal, it did not explain the different attack on the Authority's decision being mounted in the notice of appeal. The apparent explanation for that is the fact that a different lawyer prepared the notice of appeal. So there was a belated explanation, in the circumstances, which I do not consider to be satisfactory or complete.
43 I acknowledge that the appellant has faced difficulties in pursuing this matter, namely difficulties owing to communication in English and distance between himself and his interstate legal team, however, I do not accept this as a complete reason as to why the ground was not run in the Court below. The appellant was represented at the FCCA hearing by a lawyer from the firm of solicitors that he instructed.
44 I acknowledge the overzealous representation by the appellant's lawyers as to his likelihood of success in the FCCA in the form set out in his affidavit, but the making of that representation does not provide an explanation for the different challenge sought to be raised in the Amended Notice of Appeal. No explanation is provided for seeking to raise the new ground now other than the change in counsel between the handing down of the FCCA reasons and the hearing of the appeal from those reasons.
45 The final consideration is the merits of the proposed ground of appeal. In short, I consider that the point sought to be raised is of doubtful merit.
46 Division 3 of Part 7AA of the Act, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA(1). Section 473DA(1) provides:
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
47 Section 473DC provides:
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
48 Section 473DE sets out kinds of information that must be provided to an applicant, as well as certain exceptions. Of relevance here is s 473DE(3)(a), which specifically excludes from that requirement new information that "is not specifically about the referred applicant, and is just about a class of persons of which the referred applicant is a member". The 2017 DFAT Report fits within this category, and therefore did not need to be put to the appellant by the IAA despite the terms of s 473DE(1).
49 The appellant submits that there is no intelligible justification for the IAA inviting the appellant to comment on some parts of the 2017 DFAT Report but not others. The appellant submits that the power to get new information pursuant to s 473DC is discretionary and must be exercised reasonably: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]. Conduct that lacks an intelligible justification may also be regarded as unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
50 The appellant provided examples of differences between the 2015 and 2017 DFAT Reports which he was not asked to address, including that the 2017 DFAT Report said that:
(a) Returnees are processed en masse and processing can take several hours.
(b) DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport.
(c) Should a magistrate not be available before a particular time because of a weekend or a public holiday, those charged with offences under the Immigrants and Emigrants Act 1949 (Sri Lanka) (IE Act) may be held at a nearby prison.
(d) Generally, if a returnee pleads not guilty, they are immediately granted bail on personal surety by the magistrate or may be required to have a family member act as guarantor.
(e) DFAT assesses the risk of mistreatment or torture from a majority of returnees, including those suspected of offences under the IE Act is low and continues to reduce.
51 The appellant submits that each of the above pieces of country information not put to the appellant directly undermines his claim to fear harm on the basis of his illegal departure from Sri Lanka and his increased risk profile by reason of his Tamil ethnicity. The appellant submits he was denied the opportunity to address each of the issues above, including whether or not he would have anyone to act as a guarantor should that situation materialise for him on return to Sri Lanka.
52 The Minister submits that the IAA's justification for providing some parts of the information but not others is set out in [6]. At [6], the IAA states that it put certain "new information" to the appellant, including new information about the political and security situation in Sri Lanka, incidents of extra-judicial killing, disappearances and abduction for ransom, torture, and prison conditions. The IAA then says it has considered other information in the report about classes of persons (being Tamils, those with imputed links to the LTTE, and returnees who departed Sri Lanka illegally). The IAA did not invite the applicant to comment on these parts of the 2017 DFAT Report. The Minister submits that this is the IAA's justification: the IAA only invited the appellant to comment on "new information", and not on information that was substantially the same as what was set out in the delegate's decision.
53 The Minister submitted that a very similar argument to that advanced by the appellant was considered and rejected by Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641. In that case, the IAA had obtained new country information (also being a 2017 DFAT report about Sri Lanka) and had not invited comment. At [38], his Honour observed that the appellant bears the onus of establishing:
(1) the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] (Hill, Sundberg and Stone JJ);
(2) that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J)
54 The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CCQ17 at [45] citing CRY16 at [67]. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).
55 The discretion in ss 473DC(1) and (3) must be read with s 473DC(2) which provides that the IAA "does not have a duty to get, request or accept, any new information" whether requested to do so or in any other circumstance. Whilst this does not deny that the IAA must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme. As was said by Thawley J in BCQ16 v Minister for Immigration [2018] FCA 365 at [71]:
Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the "review material" and, subject to the statutory exceptions contained in Part 7AA, without obtaining "new information" or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.
56 In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard.
57 In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:
… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
58 In CCQ17 at [51] Thawley J identified that in determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
59 Adopting Thawley J's analysis, as to (1) assuming (without deciding) that the IAA failed to consider exercising the discretion under s 473DC, the failure was a partial failure of the IAA to invite the appellant to comment on some parts of the 2017 DFAT Report but not others.
60 As to (2), the statutory scheme has been referred to above. Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard (s 473DE). The statutory scheme expressly says that there is no duty to get new information (s 473DC(2)).
61 As to (3), in CCQ17, Thawley J said at [54]:
… assuming there was a failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was "new information") was used by the Authority gave rise to any new issue; nor did the appellant show that the principle of legal unreasonableness otherwise required the Authority to consider its discretion under s 473DC to seek new information from the appellant. The appellant did not show, for example, that the 2017 DFAT Report was used in a way which was materially different to the way in which the delegate had used the 2015 DFAT Report and the other country information which had been before him. Indeed the appellant conceded, properly, that the two reports were used in the same way to support materially similar conclusions. The only matters which the appellant relied upon were the fact the reports had different dates and that they were not identical. This is not sufficient to support a conclusion that it was legally unreasonable to fail (assuming that to be the case) to consider exercising the discretion under s 473DC.
62 That passage was subsequently cited with approval by Jagot J in EVW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1363 at [21].
63 The appellant submitted that in circumstances where the appellant had been asked to comment on some parts of the 2017 DFAT Report, the IAA's failure to invite comment under s 473DC(3) in relation to some other parts of the 2017 DFAT Report, was legally unreasonable. The appellant submitted that there was no intelligible justification for the IAA's conduct in inviting comment on some but not other relevant parts of the 2017 DFAT Report.
64 This submission fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of new information which has not been given to the review applicant, or in respect of which the review applicant has not been invited to comment. Section 473DE(3), for example, expressly contemplates such a result.
65 The appellant has not articulated any new issues raised by the information in the 2017 DFAT Report which are specific to the appellant, other than to the class of persons to which he belongs that he was not invited to comment on. The appellant simply submits that it was unreasonable for the IAA not to invite comment on every section of the 2017 DFAT Report which it referred to, as the appellant's response would "undoubtedly have been different". This may be so, but the appellant has failed to identify any material differences in the way the relevant information in the 2017 DFAT Report was used by the IAA, and the way the information in the 2015 DFAT Report was used by the delegate. The appellant has failed to show that there was a legally unreasonable failure in the exercise of the IAA's decision to invite comment on some parts but not all parts of the 2017 DFAT Report.
66 It follows that the ground has insufficient prospects of success.