SZTQZ v Minister for Immigration and Border Protection

JESSUP J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia given on 11 August 2016, in which the appellant's application for judicial review of a decision made by the Refugee Review Tribunal on 15 November 2013 was dismissed. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). 2 In his Notice of Appeal lodged on 1 September 2016, the appellant relied upon two grounds, neither of which is now pursued. In place of those grounds, on 17 February 2017 the appellant lodged an Interlocutory Application for leave to amend his Notice of Appeal by the introduction of a single new ground, to the terms of which I shall refer in due course. When the appeal came on for hearing on 22 February 2017, it was this interlocutory application which was argued. Should that application be unsuccessful, the appellant accepts that the appeal itself must be dismissed. Should that application be successful, the appellant accepts that the leave which he seeks should be given on terms reflective of the fact that he sought and obtained an indulgence. 3 For reasons which will appear, the procedural history of the present matter needs to be outlined at the outset. As I have said, the Tribunal's decision was made on 15 November 2013. The appellant's application for judicial review was filed in the Federal Circuit Court on 12 December 2013. It was set down for hearing on 26 August 2014, and commenced to be heard on that day. However, the primary Judge adjourned the hearing for three reasons. His Honour's second reason related to the adequacy of the interpretation services which were available to the appellant, and his third reason related to the degree of attention which had been given in the Minister's submissions to the Full Court judgment in SZMRQ v Minister for Immigration and Border Protection (2013) 219 FCR 212. Nothing further requires to be said about those reasons now. 4 His Honour's first reason for adjourning the matter on 26 August 2014 was stated in his reasons of 11 August 2016 as follows: [W]hen given the opportunity to make his submissions it was clear that the applicant had little, if any, idea of what was asserted in the grounds of the amended application, and the written submissions. He explained that these documents were drafted by an "Indian lawyer". On its own, this would not have been sufficient reason to adjourn. However, in light of the other two reasons below, the adjournment allowed the applicant the opportunity to obtain some understanding of his grounds and submissions, or even to engage, in the applicant's words, "a good lawyer". 5 It was not until 6 July 2016 that the matter again came before the Federal Circuit Court. The reason, if there were one, for this lengthy interregnum does not appear. However, it is apparent that the appellant did not use the available time to engage a good lawyer, or any lawyer. In his reasons of 11 August 2016, the primary Judge said: 25. At the resumption of the hearing, the applicant again appeared in person…. 26. Despite the lengthy opportunity available to him, the applicant appeared to have done little to advance the understanding of his case. He stated that after the last hearing he had "gone back" to the "Indian lawyer" who did not "explain anything" to him. The "Indian lawyer" had then left Australia. He did not seek out any other legal advice. 27. When given the opportunity to address the Court about his grounds and written submissions the applicant said he had nothing to say other than that he did not receive a fair hearing before the Tribunal because of interpretation difficulties…. 6 In his affidavit affirmed or sworn on 14 February 2017, the appellant said that, after the Federal Circuit Court had handed down its decision, he engaged Jane McGrath of MSM Legal to act for him. The Notice of Appeal lodged on 1 September 2016 had been prepared by Ms McGrath. However, according to the appellant's affidavit, Ms McGrath told him that, for her to act for him, he would have to pay money into her trust account by early January 2017. He did not do that, but placed $2,000 into Ms McGrath's trust account on 9 February 2017. That was not sufficient, but Ms McGrath, and counsel whom she engaged, agreed to represent the appellant nonetheless. 7 The appellant's proposed new ground of appeal is as follows: The learned primary judge: 1.1 erred in finding that Tribunal's determination was that "the two certificates were so inconsistent with the applicant's own evidence as to his grandfather's and father's claimed activities, the Tribunal gave them little weight". 1.2 ought to have found that the Tribunal gave the two certificates "little weight" on the bases that: 1.2.1 the appellant's oral evidence was "vague" as to the activities of his grandfather as an active member of the BNP; 1.2.2 the appellant had given an "ambiguous description" of the position allegedly held by his father that was inconsistent with the certificates; 1.2.3 the appellant had limited awareness of what his father did; 1.2.4 the appellant had described his father and grandfather as "simply" supporters of the BNP in his statutory declaration in support of his application; and 1.2.5 during the protection visa interview, the appellant had stated that his father was just a supporter and did not have an official role; and 1.3 should have held, on the basis of that finding, that the Tribunal committed jurisdictional error by failing to consider the two certificates as corroborative evidence. 8 This ground of appeal would constitute both an amendment to the Notice of Appeal in its existing terms and the introduction of a ground for challenging the jurisdictional sufficiency of the Tribunal's decision which was not taken in the Federal Circuit Court. At both levels, an important question is whether the appellant has provided an adequate explanation for not having acted in a more timely way. The explanation provided by the appellant is that he had been legally aided in his application before the Tribunal, but that that situation no longer obtained once the Tribunal had made its decision adverse to him. Not having sufficient funds to engage a lawyer in the conventional way, he managed to raise the sum of $400 to pay for the services of the "Indian lawyer" referred to in the above extract from the reasons of the primary Judge to prepare his documentation for the application in the Federal Circuit Court, but neither that lawyer nor counsel engaged by him (if any) appeared on behalf of the appellant in that court. 9 Whether this was an adequate explanation for the appellant's failure to take his proposed new ground in the Federal Circuit Court is a question to which I shall come. What is abundantly clear, however, is that the appellant cannot rely on the absence of competent advice at that stage to explain the omission of that ground from his Notice of Appeal lodged on 1 September 2016. That notice was prepared by the appellant's now solicitor. It is a strong inference that the new ground was developed only after the appellant had put Ms McGrath in funds to the tune of $2,000 and counsel agreed to act. 10 It is a regrettable commonplace that the engagement of counsel leads to the emergence of the real case which a party desires to run. Normally the court will be anxious to hear everything that can be said in favour of the party's case, the silent view being that it would be unrealistic, and contrary to the interests of justice, to expect counsel to advance arguments which he or she believes to be second-rate ones. Thus it is often said that, so long as the other party may be compensated by an appropriate costs order, amendments should generally be allowed. 11 But there are limitations to that approach, especially since the judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Generally, a factor which will weigh against allowing an amendment will be any lateness in the proposal being brought forward by the party seeking to amend. It will not always be an answer to say that an adjournment - to allow the other party time to come to grips with the new point - on terms as to costs, and in relation to any other matters of inconvenience, may be granted. Further, when the legality of administrative action with respect to the entitlement of a party to a visa under the Act is at stake, there is a strong public interest in the expeditious finalisation of the litigation. 12 In appeals, additional considerations come into play. Matters of timing will usually be of greater significance, the assumption being that if a party has been through a contested proceeding he or she will have sufficient focus upon the legal and factual questions at stake to formulate grounds of appeal which will stand the test of time. There is, of course, always the facility to seek an extension of the time allowed for the lodging of the appeal (eg in order to give more thorough attention to that task of formulation). Another circumstance which occasionally arises is a proposal which involves not only an amendment to the existing grounds of appeal, but the introduction of a ground which does not correspond with any element of the party's case at first instance. That is, of course, the situation now before the court. 13 Such a situation is to be approached conformably with the judgment of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598-599 [46]-[48]: 46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. 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 and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 47 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. 48 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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. I propose to take the approach indicated by their Honours, commencing with the question whether the appellant has an adequate explanation for his failure to take his proposed new point in the proceeding before the Federal Circuit Court. 14 The appellant's only explanation for that failure was that he was not in receipt of competent legal representation at the time. In his affidavit read on the appeal, the appellant said that he did not have enough money to pay for a lawyer to take his case to court. But, ultimately, he engaged his now solicitors and, by one means or another, has secured competent representation in this court. What I cannot understand, and what is not explained in the appellant's affidavit, is why the steps which he ultimately took to secure this representation were not taken in the period of almost three years during which the Federal Circuit Court was adjourned. 15 To the extent that the appellant's Interlocutory Application requires there to have been an adequate explanation for his failure to have run below the kind of case which he now seeks to run, I am not satisfied that he has done so. 16 The apparent prospects of the new case which the appellant now seeks to advance are also relevant on the application which he makes. A consideration of that aspect requires me to lay out briefly the facts of the case, and the reasons given by the Tribunal for the decision which it made. 17 The appellant is a citizen of Bangladesh, having being born there on 15 October 1990. His parents and his five older brothers live there. He claimed to fear persecution in Bangladesh by reason of his political opinion as a supporter of the Bangladesh National Party ("the BNP"). He would be persecuted, he claimed, by supporters of a rival political entity, the Awami League. He claimed that his father and his grandfather (in the case of the latter, until his death in 2004) were supporters of the BNP, and put forward his familial association with them as a basis for his fears. It was the way the Tribunal dealt with that aspect of the appellant's claims, and its treatment of two documents on which he relied, that lay at the centre of the new ground of appeal which he sought to introduce. 18 In the statutory declaration attached to his visa application, the appellant said: As long as l can remember my family have been supporters of the Bangladesh National Party (BNP). The BNP is currently in opposition in Bangladesh. Bangladesh is currently ruled by the Awami League. My father is a strong of the BNP. My paternal grandfather was also a supporter of the BNP. The fact that a noun, or nouns, was or were missing after the word "strong" in this passage was not adverted to either by the Tribunal or by the Federal Circuit Court. Neither was the omission explained in the appellant's evidence. 19 In the same statutory declaration, the appellant mentioned that his father had passed on to him information about events in 2002 or 2003 when there was significant political unrest in Bangladesh. He (the father) and his father (the appellant's grandfather) were taken away by supporters of the Awami League, brutalised and tortured. The appellant also mentioned a time (when he himself was of high-school age) when there was conflict between his father and his (the appellant's) brothers because of the father's political involvement. In advancing his claim for a protection visa, the appellant said that he was scared that, if he returned to Bangladesh, he would be caught up in the political problems that his father had. He said that his family were known supporters of the BNP, and that he would be identified as one also. All of these passages in the appellant's statutory declaration were relied on by counsel for the appellant as indicating that, before the delegate, his case in relation to his father was that the latter was more than a mere supporter of the BNP. 20 But the details of the appellant's father's involvement in the BNP were explored by the delegate when the appellant attended for his interview. How the appellant responded in relevant respects was the subject of the following passage in the written record of the delegate's decision, dated 15 July 2013: The applicant did not claim he had been involved in any political activities or personally targeted on the basis of his actual or imputed political opinion. Therefore, based on the evidence before me I am satisfied that the applicant has no political profile in Bangladesh. When asked about his father's political association, the applicant responded that his father was a BNP supporter. He did not have any official role and he only 'voted for BNP and supported them'. The applicant claims that his father and his grandfather were taken away by the AL supporters about 10 or 11 years ago. They were kept for several hours and beaten. The applicant's family paid money to secure their release. When asked whether the incident was reported to the police given that the BNP was a ruling party at the time, the applicant responded that 'the police in Bangladesh would not do anything if they are not paid'. When asked whether his father experienced any harm following his detention in 2002/2003, the applicant responded that he did not but he lived in hiding following the AL's return into power in 2008. When pressed to provide detail about his father's whereabouts over a period of five years, the applicant was unable to substantiate his claim with any level of detail. He was also unable to specify as to who and why would target his father in such long period of time given that his father was only a BNP supporter with no role in the party. 21 Subsequent to his interview with the delegate, the appellant forwarded a "certificate" relating to his father. The certificate was ostensibly on BNP letterhead, and its substantive terms were as follows: This is to certify that Md. Abdul Aziz Shah, father: late Daliluddin Shah, mother: Chhabiran Neha, village : Baroihuda, Post: Kamanna, Police station: Shailakupa, District: Jhinaidaha is known to us personally. To our knowledge he and his family and relatives are actively associated with Bangladesh Nationalist Party (B.N.P) since this party's inception. He holds the chair of Vice President of Executive Committee of No. 10 Bagura Union (B.N.P). After the national election of 2008 as soon as the political scenario had changed this person and his family and relatives became victims of assaults and police cases. To our knowledge this person and his family and relatives are not involved in any anti party activities or sedition. We wish him for his all wellbeing and success. Signed Signed 05/04/2013 05/04/2013 Alhajwa M.A. Wahab Md. Raquibul Hasan Dipu Former Member of Parliament General Secretary Member of National Executive Nationalist Party(B.N.P) Committee, Dhaka Shailakupa Sub District Branch Organisational Secretary, Jhinaidaha District and President of Nationalist Party(B.N.P), Shailakupa Sub District

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