CLN17 v Minister for Home Affairs

1. The application for an extension of time and the application to rely on new grounds be dismissed.
2. The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant has applied for an extension of time in which to appeal a decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of a decision of the Immigration Assessment Authority ("IAA") affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa. An extension of time is required because the applicant was 18 days out of time in which to file his appeal. In considering whether to grant an extension of time, the Court has regard to any explanation for the delay, any prejudice that may be suffered were an extension of time granted, and the prospects of success, as there is no utility in granting an extension of time if there is no realistic prospect the appeal will succeed: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 (Wilcox J); MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (Mortimer J) at [3]. In determining whether to grant an extension of time, the Court is not required however to conduct an exhaustive or detailed analysis of prospects. The evaluation of the prospects task is carried out at a reasonably impressionistic level and the enquiry is whether the ground is sufficiently arguable or has reasonable prospects of success: MZAPB v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (Mortimer J) at [62]. The Minister has opposed the grant of an extension of time. 2 In support of his application the applicant filed an affidavit explaining the reasons for the delay. In his affidavit he stated that he was unable to file the notice of appeal on time because of financial incapacity, a "family incident" and his ongoing medical condition, being a heart condition. The Minister was critical of the explanation, submitting it was inconsistent with an earlier affidavit which the applicant had filed in support of his application in which he gave as his reasons for the delay that he was "indigent", "badly affected by measles since early February", and, due to his illness, was unable to go out or get any help. The Minister also noted that the applicant adduced no medical evidence to demonstrate that ill health was the reason. The Minister's criticisms are properly founded and I consider that the explanation provided was less than satisfactory but, given that the delay was only 18 days, I do not think that the lack of a satisfactory explanation is reason of itself to refuse the extension of time. As the Minister has not claimed that he would be prejudiced by an extension of time, the real issue for determination is whether the proposed appeal has sufficient prospects of success to warrant an extension of time. 3 The proposed appeal relies on a new ground not raised below. The proposed ground alleges that the primary judge failed to consider whether the IAA fell into jurisdictional error by: (a) failing to consider new information provided by the applicant; and (b) adopting an "erroneous construction of s 473DD" of the [Migration Act 1958 (Cth)], by failing to consider "explanations and reasons advanced by the [applicant]" and by adopting "an unduly narrow construction of s 473DD". 4 The particulars identified four "classes" of "new information" as the subject of this ground, despite acknowledging that the applicant's migration agent had submitted to the IAA that they were not "new information". The claim with respect to the class described as the "Sinathuri information" was not pressed at the hearing. The other three classes of "new information" are described as: (a) information about an event in May 2016 ("May 2016 information"); (b) information that "things" given to the applicant to deliver to the LTTE were concealed and he did not attempt to view the contents because he feared harm from the LTTE ("LTTE information"); and (c) information relating to the applicant's mother's attempts to release the applicant from detention at the Sri Bharathy army base ("detention information"). 5 Each piece of "new information" was said to be contained in a statutory declaration which was provided to the IAA by the applicant. 6 By way of background, the applicant is a Sri Lankan citizen who applied for a protection visa. In support of his application, the applicant raised the following matters: (a) The applicant was raised in Jaffna. In 1987, the applicant's uncle was killed while fighting for the LTTE. In 1996, he and two of his uncles relocated to Vavuniya, which was controlled by the LTTE. (b) In 1997, the applicant and his uncles surrendered to the SLA. In January 1998, they were taken to a camp and repatriated to Madduvil West. In April 1998, they were ordered to provide food to two LTTE officers and to deliver things for them. (c) In 2002, the applicant's aunt was killed while serving for the LTTE. In December 2002, his uncle, KA, was beaten by the SLA for protesting. Soon after, four or five SLA officers, while searching for KA, detained, interrogated and beat the applicant. He was released in January 2003. (d) In 2006, the applicant was made to report to the SLA. He moved to Qatar in April 2006 as a result. (e) In April 2011, he returned to Sri Lanka. Soon after, two SLA officers interrogated him about his whereabouts and told him to report to an SLA camp. He did so, and was told to report each week thereafter. When he reported, he was questioned and physically assaulted. 7 The IAA accepted that the May 2016 information was new information but was not satisfied that the information could not have been provided to the delegate, or that there were exceptional circumstances to justify considering it. As the IAA considered that the remainder of the statutory declaration responded to issues arising from the evidence before the delegate which was discussed in the delegate's decision, the IAA took the view that such information was not "new information". 8 The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal were explained by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 (Kiefel, Weinberg and Stone JJ) at [46]-[48] as follows: …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]. 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. 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. ... It was submitted that it is expedient in the interests of justice to grant leave as the proposed grounds have merit and no prejudice to the Minister is evident. 9 In this case, the applicant was represented by counsel in the court below. The explanation as to why the grounds now sought to be relied on were not raised in the FCC was that "new counsel approached the appeal from a different perspective". I do not accept that the fact that new counsel has taken a different approach constitutes either an adequate or satisfactory explanation. Nor do the proposed grounds have sufficient merit to warrant an extension of time or leave to rely on the proposed new grounds. 10 Section 473DD of the Migration Act 1958 (Cth) provides as follows: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.