CKT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

LEAVE TO ARGUE NEW GROUNDS OF APPEAL 6 The appellant concedes that the two new grounds sought to be advanced on appeal were not raised in the Court below before the primary judge. 7 The appellant submits that leave to argue a ground of appeal not raised before the primary judge may be granted if it is expedient and in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310. The appellant submits that the principles applicable to the grant of leave in those circumstances were set out by the Full Court in CGA15 v Minister for Immigration [2019] FCAFC 46 (CGA15) where the Full Court observed: There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant. The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]: The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law. 8 The appellant submits that each of the two proposed new grounds has sufficient merit to justify the grant of leave. 9 The appellant accepts that he was represented by different solicitors and counsel before the primary judge. The appellant submits that that, of itself, is not sufficient to refuse leave to raise the new grounds on appeal: CGA15 at [38]. 10 The appellant submits that applying the principles identified in CGA15 to the present case: (1) The new grounds concern a point of law that will not require any witnesses to be called. While the appellant seeks to adduce documentary evidence in support of proposed ground 1, the ground could not have been met by calling evidence in response, given the nature of the evidence in question (being the items of country information on which the Tribunal relied, and in one case, failed to obtain). (2) The addition of the new grounds will not involve any further sitting time, having regard to the abandonment of the two grounds in the original notice of appeal. (3) The Minister will suffer no substantial prejudice if leave is granted, while the appellant will suffer significant prejudice in being prevented from articulating an alleged jurisdictional error and, as a consequence, being returned to Pakistan where he claims he will face death or serious harm at the hands of the Taliban, on the basis of a potentially unlawful decision. 11 In the appellant's submission, the interests of justice favour the grant of leave to advance the two new grounds on appeal. 12 The first respondent (Minister) submits that the principles applicable to granting leave to advance a new ground of appeal were recently stated by the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 (Tohi) where Derrington J observed at [13]: 13. The decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) has been regarded for many years as identifying the principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground on appeal. The overriding rubric of whether leave to do so is in the interests of justice is well established. It is also well accepted that within the deliberative process of deciding that question certain, almost ubiquitous, issues arise for consideration. They include the following: (1) That in the ordinary operation of the court structure, the substantial issues between parties to litigation are decided at trial. Leave is not granted merely for the asking and hearings before courts at first instance are not to be regarded as provisional: Coulton v Holcombe (1986) 162 CLR 1 at 7 - 8. (2) Has the applicant for leave provided any adequate or acceptable explanation for why the ground was not raised below? This is a significant matter: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85 [166]. The fact that new counsel may have been engaged for the purposes of the appeal and has identified the new point is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 [11]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 [31] (DKT16). (3) The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal: DKT16 [31]; Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at 574 [61]; Ye v Crown Limited [2004] FCAFC 8 [79]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 [38]. It may follow that, where the appellant demonstrates that the point was not taken below as a result of an oversight, the negative weight accorded to the omission will not be as great. (4) Whether there exists any prejudice to the respondent in permitting the new ground to be agitated? Necessarily, where the new ground sought to be raised might have been met by evidence at trial, the need to accord the respondent procedural fairness will usually prevent leave being granted: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 [136]. Conversely, where the new point sought to be raised turns on a question of law or construction, or where the facts are not in controversy, leave is more likely to be given. Even then, if leave is granted, the consequence for the respondent is the removal of a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota) [44]; AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at 455 [14]. (5) The nature and extent of the prejudice which will be suffered by the appellant if leave is not granted will also usually be relevant. In migration appeals, this consideration can extend to persons associated with the appellant who might be affected as a result of an appeal being dismissed. (6) The criterion of whether the proposed new ground has merit has been referred to as "an important consideration": Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 10 [33]; Leota [43]. In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, the Full Court observed (at [31]) that, in common with the approach adopted in determining whether an extension of time in which to appeal should be granted, the determination of whether any proposed new ground of appeal has merit is assessed at a relatively impressionistic level, and the Court should not descend into a fuller consideration of arguments for and against each proposed new ground. 14 Although the above represent criteria which often fall for consideration in the determination of an application for leave to raise a new ground, the broadness of the overriding question of whether it is in the interests of justice to grant leave should not be overlooked. In MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11, Allsop CJ said (at [2]): … I refer to and repeat what I said in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] about leave to argue new points on appeal. 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 [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. 15 Whilst his Honour's observations are entirely correct and judicial discretions of the nature under discussion ought not to be constrained by artificial limitations, that does not suggest the absence of a principled approach to the exercise of the Court's power which is likely to ensure coherency in its exercise and result in like cases being treated in similar ways. It may be that some of the categorisation to which the Chief Justice was referring included the observations of the Full Court in VUAX where it identified (at 598-599 [48]) two circumstances which might be regarded as having a likely outcome. The first was that: 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. The second was that: 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. 13 The Minister, in oral submissions relied upon the findings of Derrington J in Tohi at [17], where his Honour found that, it is for the appellant to prove that the failure to raise new grounds of appeal in the court below is the result of a forensic decision or an oversight: Despite the above, it must be kept steadily in mind that whether the failure to take the point below arose as the result of a forensic decision or an oversight was a matter which it was within the power of the appellant to prove. 14 The Minister submitted that in Tohi at [117], Derrington J ultimately concluded that, what weighed against the appellant in that case being afforded leave to put on new grounds, was that the appellant was, as in this case, represented by counsel before the primary judge. Moreover, in the absence of an explanation, his Honour found that it may be inferred that attention had in fact been given to the grounds available to be argued at first instance by those who were legally qualified to make that assessment. The Minister submits that, as in Tohi, in this case there has been no evidence in favour of the appellant as to why the new grounds of appeal were not run below. The Minster submits that there is an absence of an explanation, and this points in favour of leave not being granted to advance the two new grounds on appeal before me. 15 The Minister further submits that in CAI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1310 (CAI18), Derrington J reiterated the principles which his Honour espoused in Tohi in relation to granting leave to raise new grounds on appeal. Derrington J acknowledged that, while his Honour was in dissent in Tohi as to whether leave should have been granted, the ultimate issue turned upon the perceived weight of the arguments sought to be agitated, rather than the question of principle: CAI18 at [76]. The Minister submits that the case before me is similar to that of CAI18, where at [77], Derrington J articulated that a significant issue weighing against the applicant was the absence of an adequate explanation for the failure to raise the new grounds of appeal before the court below. The Minister submits that the reasoning of Derrington J at [78] applies here, as it was solely within the appellant's power to adduce evidence as to why the new grounds of appeal were not advanced before the court below and this was not done. In CAI18 at [78], his Honour stated: As was the case in Tohi, it was solely within the appellant's power to adduce evidence as to why the grounds now sought to be relied upon were not raised before the FCC in order to demonstrate that the omission to do so was not the consequence of a deliberate forensic decision. In light of the appellant in this case being legally represented below and advancing nine grounds of review, the inference that it was perceived that the proposed new grounds were without merit is necessarily rather strong. The appellant's failure to call any evidence to the contrary tends to indicate that neither the Counsel appearing nor the solicitor instructing could provide evidence which would assist on this issue. 16 The Minister also relies upon the recent statement of principles of the Full Court in TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200, per Lee, S C Derrington, Cheeseman JJ at [21]-[24]: The principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground of appeal were restated by the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [13]. In the present circumstances, the appellant was represented by counsel before the primary judge and no evidence has been adduced explaining why neither of the proposed amended grounds of appeal were relied upon below. The Minister conceded that the proposed new grounds are not unmeritorious at an impressionistic level and that the only relevant prejudice to the Minister if leave is granted is that it will remove a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court. The nature of such prejudice was considered by the Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 161 ALD 441 at [28]-[29] … The circumstances of the present case are redolent of those that risk first instance hearings becoming no more than 'preliminary skirmishes' (Tohi at [19]). Irrespective of the Minister's concession as to the merits of the proposed new grounds at an impressionistic level, the appellant has not established that it is in the interests of justice for leave to be given to raise the proposed new grounds of appeal. Without singling out counsel for the appellant (who presented the appellant's case with economy and skill), it needs to be understood by those acting in migration appeals that they are not conducted by reference to bespoke rules, one of which is to allow an appellant to raise a new argument (or adduce new evidence in support of a new argument) simply because new counsel have been briefed. Like all civil litigation in this Court, migration appeals must be conducted in accordance with the case management imperatives in Pt VB of the Federal Court of Australia Act 1976 (Cth). In exercising a discretion relating to the grant of leave, the Court must exercise it in the way that best promotes the overarching purpose of the resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible: s 37M(3). These objectives are not promoted by giving appellants a second chance to run arguments that could have been run before a primary judge unless sound and cogent reasons are established. That is not the case here.

LEAVE TO ADDUCE EVIDENCE ON APPEAL 17 The appellant also seeks to adduce further evidence that was not before the primary judge namely, an affidavit of the appellant's solicitor dated 9 February 2022, annexing certain items of country information. 18 The appellant submits that the new evidence was not adduced before the primary judge as it was not relevant to the grounds run before the primary judge. 19 The appellant submits that all of the new evidence of country information, save for one report, was before the Tribunal and is discussed in the Tribunal's reasons. The one report that is not mentioned by the Tribunal is the FATA Research Centre security report for the second quarter of 2016. The appellant submits that this security report is necessary to prove what a reasonable Tribunal could have, and should have, obtained and considered. 20 The Minister submits that, to the extent the appellant seeks leave to adduce fresh evidence on appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 36.57 of the Rules, that application should be refused. 21 The Minister submits that the principles relevant to adducing fresh evidence on appeal were conveniently summarised in TGWR at [36] as follows: The appellant seeks to adduce the transcript of the hearing before the Tribunal. The relevant principles which guide the exercise of the Court's discretion under s 27 were recently restated by the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], per Griffiths and White JJ: …Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows: (1) The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle. (2) The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry. (3) The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of "fresh evidence". (4) The following two considerations will normally be relevant to the exercise of the discretion: (i) the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and (ii) the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence; (5) The interests of third parties and the public at large may outweigh a party's interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.

CONSIDERATION 22 For the reasons that follow, leave to advance the new grounds on appeal and new evidence will be refused. 23 First, the appellant has not provided any adequate or acceptable explanation for why the new grounds were not raised below. The appellant was represented below by solicitors and counsel. That is a significant matter. The fact that new solicitors and counsel may have been engaged for the purposes of the appeal and have identified two new grounds of appeal and abandoned the grounds advanced before the primary judge is not of itself sufficient: per Derrington J in Tohi at [13(2)], [17] and [117] and CAI18 at [76]-[78]. 24 Second, I am satisfied that the Minister will be specifically prejudiced in responding to proposed ground 2. That is because the Court does not have the benefit of the transcripts of the Tribunal's hearing on 4 September 2015 and 14 July 2016, which might have cast a light on how the appellant conducted his case before the Tribunal at the two hearings and whether travelling to his home area of Parachinar in Upper Kurram was raised as a claim before the Tribunal. 25 Third, I am not persuaded that the two new grounds of appeal have sufficient merit to warrant the grant of leave. I approach that assessment at a relatively impressionistic level, and without descending into a full consideration of the arguments for and against each proposed new ground. 26 Considering proposed ground 1 particular (a), the argument that there has been a misconstruction of the real chance test, in that a relative, rather than an absolute approach was taken by the Tribunal, should be rejected. There are numerous passages in the Tribunal's reasons which identify that its reasoning was at the applicable objective standard, rather than applying a relative standard. 27 The Tribunal in its reasons at [52], referenced a report from the Department of Foreign Affairs and Trade (DFAT) dated 15 January 2016, and in this report DFAT assessed the level of sectarian violence overall in the FATA region as "low". The Tribunal, at [60] of its reasons identified that, consistent with DFAT advice, the United Nations High Commissioner for Refugees (UNHCR) had commenced the return of displaced persons back to Upper and Lower Kurram, and that this was made clear in the UNHCR report dated June 2014. 28 The Tribunal then made findings to the effect that there had been an improvement in the security situation in the Upper Kurram in recent years. At [63], the Tribunal reasoned in terms that do not evince any error, that the improvements in the security situation in the Upper Kurram was such that the Tribunal "does not accept on the basis of all the information before it … that Upper Kurram, including Parachinar, is one of the areas where such a risk exists", and the Tribunal emphasises again that this is consistent with the DFAT report, which found there to be a "low level" of sectarian violence in the FATA region. At [64], the Tribunal stated, consistent with an absolute standard being applied, that "[w]hile the Tribunal appreciates that there will continue to be instability as a result of the Authority's continued struggle with terrorists, militant and sectarian groups, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm as a result of counterinsurgency operations in FATA or generally". At [66], the Tribunal noted DFAT's assessment that there is a "low level of generalised violence in Kurram". The Tribunal stated that while it "accepts that there is some level of risk to the applicant in the context of generalised violence, it finds on the basis of all the evidence before it that this risk is remote". Contrary to the appellant's submissions, the Tribunal did "consider whether the continuing violence, even if at a lower level, posed a risk that was still a risk to the appellant": appellant's submissions at [38]. It is entirely natural and understandable that the Tribunal will look to comparisons, both geographic and temporal in coming to its conclusions. The Tribunal's reasoning, as outlined above, does not suggest that it has not discharged its duty of making an assessment of the absolute level of risk faced. 29 As to particular (b) of proposed ground 1, the Tribunal's failure to rely on the most recent updated country information, there was no obligation on the Tribunal to enquire into more recent country information than was tendered in evidence before it. The appellant's legal representatives made post-hearing submissions to the Tribunal on 28 July 2016 which was after the updated report from the FATA Resource Centre which was published on 17 July 2016, but made no reference to that updated report. There is no jurisdictional error in the Tribunal not having made its own enquiries in ascertaining the existence of the updated report published on 17 July 2016. 30 As to particular (c) of proposed ground 1 that the Tribunal did not assess whether the appellant faced a real risk of being harmed in the foreseeable future this ground is devoid of merit. The Tribunal did precisely what the Act required of it under s 36(2)(aa): it assessed at [16] and [17] whether it was satisfied that Australia had protection obligations because it had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Pakistan, there was a real risk that he would suffer significant harm. The Tribunal was not so satisfied. 31 As to proposed ground 2, the appellant has not provided any claim or substantial evidence that he faced a real risk of suffering significant harm on a trip travelling to Parachinar, his home area in Pakistan. The Minister will also suffer real prejudice in responding to this proposed ground 2 for the reasons given above. 32 Fourth, the appellant has not complied with the requirements of r 36.57 of the Rules. 33 Fifth, the grant of leave to advance the new grounds on appeal would not promote the overarching purpose of the resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible: s 37E(3) FCA Act. As the Full Court observed in TGWR at [24], these objectives are not promoted by giving appellants a second chance to run arguments that could have been run before the primary judge unless sound and cogent reasons are established. No such sound and cogent reasons exist in this case. 34 Finally, I am not satisfied it is in the interests of justice to grant leave to advance the two new grounds and to adduce the fresh evidence in the circumstances of this case, where there has been no adequate or acceptable explanation given as to why the grounds were not raised below and where the proposed grounds are devoid of merit and in respect of proposed ground 2, will cause real prejudice to the Minister.

DISPOSITION 35 The appeal will be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.