FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The present case 10 In July 2017, the then Minister for Immigration and Border Protection exercised his power under s 46A(2) of the Act to allow the applicant to lodge a Temporary Protection (Class XD) visa or SHEV (Class XE) visa application. The application was lodged in September 2017. The delegate refused the visa application in January 2018. 11 In refusing the applicant's protection visa application, the delegate found Norway to be the "receiving country" for the purpose of s 36(2) (read with ss 5H and 5J and the definition in s 5) of the Act and assessed the applicant's claims against that country. In particular, the delegate considered the applicant's claim that he would be at risk of serious harm if he was returned to Norway because he was previously a member of a criminal gang with police and government connections. The delegate accepted that the applicant was involved with criminal gangs in Norway but, on the basis of country information, did not "accept as plausible that the authorities in Norway are corrupt or that the applicant would face a real chance of serious harm or a real risk of significant harm if returned to Norway." The delegate concluded that the applicant was not a person in respect of whom Australia has protection obligations. 12 On 21 October 2019, the applicant filed an application in the Federal Circuit Court for an extension of time to file an application for judicial review of the delegate's decision of January 2018 refusing him a SHEV. The primary judge granted the extension of time, finding that since the applicant had by then been in immigration detention for 10 years by that point, it was an extraordinary case where it was in the interests of justice to grant the extension of time (at [57]). 13 The applicant asserted six grounds of review before the primary judge. Each ground was rejected by the primary judge who dismissed the application for judicial review. His Honour ended his reasons for judgment with this observation (at [72]): At some point, the Executive will need to find a solution to what is at the moment, legally, an insoluble problem. To simply ignore the problem and for the applicant to remain in detention for another 10 or 20 years or potentially longer is an outcome that sits uncomfortably with Australia's commitment to Human Rights. … 14 By application lodged for filing on 2 March 2021 in this Court, the applicant seeks an extension of time to appeal from the decision of the primary judge. As a notice of appeal should have been filed by 12 February 2021, the application was 18 days out of time. 15 The draft notice of appeal identifies one proposed ground of appeal which does not arise from a ground of review asserted before the primary judge. In submissions, counsel for the applicant divided the one ground of appeal into two separate grounds, one in relation to the refugee criteria and the other in relation to the complementary protection criteria. Both grounds make essentially the same point, namely that the delegate failed to consider the risk of harm that the applicant would likely face if returned to Norway, being the risk that he would face indefinite or permanent detention. 16 The grounds of appeal are put by counsel as follows - the reference to the error by the "Court" is intended to be a reference to the delegate: Ground One - Jurisdictional error in relation to refugee criteria The Court fell into jurisdictional error by failing to consider an integer of the appellant's claim in respect of the harm he would face being returned to the receiving country, Norway, as a member of a particular social group, being "stateless people", including whether his statelessness put his liberty at risk by way of indefinite or permanent detention. Ground Two - Jurisdictional Error in relation to complementary protection criteria The Court fell into jurisdictional error by failing to consider an integer of the appellant's claim in respect of the harm he would face being returned to the receiving country, Norway, as a stateless person in being at risk of indefinite or permanent detention, amounting to significant harm. 17 The applicant thus accepts that he requires an extension of time and he requires leave to argue a point on appeal which was not argued before the primary judge. 18 There is an acknowledged artificiality about the point sought to be argued. Norway rejected the applicant's renewed temporary resident permit application and has made it clear that it will not accept refoulement of the applicant; thus, as the applicant faces no risk of being returned to Norway he can hardly face any risk of indefinite detention there. Nevertheless, the structure of the Act is such that the applicant's claim for protection must be assessed against a receiving country, being the country of his former habitual residence whether or not it would be possible to return him to that country, which in this case has been found to be Norway. That finding is not challenged.

The tests for extending time and giving leave to raise a new point on appeal 19 An application for an extension of time challenges a respondent's vested right to obtain the benefit of the judgment that is the subject of the appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [3]-[4] and see also at [66] per Kirby J. The court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely: We often like to know the outline of a case. If it appears to be a case which is strong on the merits and which ought to be heard in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits. We do like to know something about the case before deciding whether or not to extend the time. 20 An appellate court will not entertain a point not raised in the court below where evidence could have been given there which by any possibility could have prevented the point from succeeding: Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438 per Latham CJ, Williams and Fullagar JJ. As it was explained in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ, it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at first instance. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues determined at first instance and not otherwise. In a case 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, the point cannot be taken in the appellate court.

Consideration 21 The Minister takes no particular issue with regard to the modest extension of time, but submits that no leave should be granted to argue a new point on appeal. Although the Minister raised additional objections, the decisive objection to leave being granted is the submission that had the grounds now sought to be advanced been raised before the primary judge, it is possible that the Minister would have sought to lead evidence to address them. The evidence that the Minister identifies is the following: (1) Evidence as to whether, under Norwegian law, indefinite detention is even a possibility. Preliminary investigation by the Minister suggests that a period of custody may not exceed 18 months. That is with reference to s 106 of the Immigration Act of 15 May 2008 (Norway). (2) Evidence as to whether, as a matter of practice, indefinite detention of the applicant in Norway is a realistic possibility. The Minister submits that given that Norway is a signatory to the European Convention on Human Rights, there may be some doubt about that. The judgment of the Grand Chamber of the European Court of Human Rights in A and Others v the United Kingdom [GC], no. 3455/05, ECHR 2009 at [164], [169]-[170] would appear to support that submission. See also Shiksaitov v Slovakia, nos. 56751/16 and 33762/17, 10 December 2020, at [53]-[56]. (3) Evidence as to what "country information" concerning Norway was before the delegate, and in particular what it said, if anything, about the prospect of indefinite detention of the applicant in Norway. 22 Senior counsel for the applicant submits that the proposed grounds of appeal are not grounds which could have been met by evidence before the primary judge. That is because they are directed at the error by the delegate in not considering or investigating whether the applicant would face the risk of serious harm in Norway that the grounds identify, namely indefinite or lengthy immigration detention. Since, contrary to the applicant's claims before the delegate, the delegate found that the applicant's protection claims must be assessed against Norway as the receiving country, reliance is placed on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26] that an unarticulated claim might "clearly emerge" before a decision-maker from their own findings and the material before them upon which the findings are reached. It is said, in effect, that evidence on the application for judicial review of the delegate's decision before the primary judge could not have addressed or cured the failure by the delegate. 23 The difficulty, however, is that for any error by the delegate to have amounted to jurisdictional error it must have been material in the sense that it could realistically have resulted in a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. The onus of proving by admissible evidence on the balance of probabilities facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies on the applicant: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ. 24 The point is that even putting aside the question of onus, evidence on each of the matters identified by the Minister could have been relevant to addressing the grounds of appeal now sought to be advanced had they been advanced before the primary judge. If indefinite detention is not permitted under Norwegian law, or as a matter of practice it is not a realistic possibility, or if it would not have been supported by the country information before the delegate, then the delegate would inevitably have rejected any claim based on the prospect of indefinite detention in Norway. If there was evidence before the primary judge that established any of those propositions, then any failure by the delegate to consider the particular species of serious harm could not realistically have resulted in a different decision. By raising the point only on appeal, the Minister has been deprived of the opportunity of adducing evidence on those matters. 25 That is a complete answer to the question of leave to raise the new grounds. As there are no other grounds, the prospective appeal must be regarded as being without merit with the consequence that there is no point in extending time. The result is that the application should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Stewart and Abraham.