The proposed new ground of appeal
21 In the course of the hearing of the appeal, the appellant sought to add a further ground of appeal as follows:
"5. The decision of the Tribunal was made in breach of the rules of natural justice and/or the duty of procedural fairness in that the Tribunal failed to give to the Appellant notice of material or information adverse to his interests which it was proposing to take into account, and did rely upon, in the exercise of its power.
Particulars
The Tribunal failed to supply the letter to the RRT of 6 April 2002 or details of the contents thereof to the Appellant."
22 Following the hearing, the appellant filed written supplementary submissions that set out the argument sought to be raised under the new ground, as follows:
"the Tribunal breached the rules of natural justice and/or the duty of procedural fairness by failing to offer him [the appellant] an opportunity to respond to material critical to its ultimate adverse decision. The letter to the RRT of 6th April 2000 contained information which went directly to the Appellant's assertion that he was unable to approach the Afghan, i.e Taliban, authorities. The first reference to that letter appears at AB 187 [set out in par 7 of these reasons] and in the reasons for decision at AB 195 [set out in par 5 of these reasons]. There was no information made available prior to this disclosure which expressly or impliedly stated that there was an Afghan consulate in Canberra (representing the non-Taliban government which controlled the north of the country) which was able to issue passports to Afghan nationals. The contents of the letter are clearly credible, relevant and significant to the decision to be made. In the Tribunal's reasons the information was made directly referable to the personal situation of the Appellant yet it was information of which he was previously unaware. It was information that was decisive of his claims and critical to the Tribunal's decision that the Appellant had effective protection in India. By failing to disclose this material the Appellant was denied an opportunity to put forward answering material. The issues which the Appellant would have sought to raise include: his concerns about approaching the non-Taliban authorities; the practical matter of establishing the fact of his Afghan nationality as a Sikh to the satisfaction of the non-Taliban authorities; and, perhaps more importantly, whether any passport that might be issued is one recognised by the Indian government as a valid passport which would permit entry to India …"
23 An appeal court has power to allow grounds to be argued on appeal that were not argued before the primary judge. The proper approach to the exercise of this power was explained in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 (H v Minister) per Branson, Marshall and Katz JJ at par 6 as follows:
"An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O'Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47)."
[emphasis added]
24 Their Honours, at pars 7-8, went on to make some comments regarding the policy considerations relevant where applications such as the present have become too frequent:
"As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe 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.'
In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration."
25 The way in which the appellant seeks to argue the new ground of appeal would not have involved the calling of additional evidence before the primary judge. The alleged denial of procedural fairness depended on the decision record that was before the primary judge, as enlarged with the agreement of both parties to the appeal, to include the Tribunal's letter of 4 April 2000, and the Afghan Consulate's reply of 6 April 2000. The argument would have been either good or bad by reference to that material alone. We interpolate to briefly refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 (Lam), which was a case involving a "legitimate expectation" which arose out of a statement by a tribunal that it would seek information from a third party which it did not then do. The issue was whether the applicant for relief needed to demonstrate that, by reason of the tribunal's actions, he was deprived of an opportunity to present a case that might have resulted in a more favourable outcome: see Lam at 511, 516, 527 and 529. We do not regard that case as pertinent to the appeal, which is not a case of "legitimate expectation", but rather a case of denial of procedural fairness in the orthodox and traditional sense. See also NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52.
26 It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.
27 Determining the appellant's prospects of success on the appeal requires consideration of the merits of the new ground. It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited.
28 The Tribunal used the ability of the appellant to return to India as the reason to affirm the decision to refuse the appellant a protection visa. The evidence relied upon by the Tribunal in concluding that the appellant could return to India was that the appellant could obtain an Afghan passport from the Consulate for Afghanistan in Canberra. That critical evidence was not disclosed to the appellant. It was revealed to him for the first time in the Tribunal's reasons for its decision. Thus, the critical factor on which the decision was likely to turn, namely the ability of the appellant to obtain an Afghan passport which would enable him to return to India, was not drawn to his attention.
29 The respondent contended that the Tribunal gave the appellant fair notice that it would consider whether the appellant could obtain a passport. The respondent relied upon the letter from the Tribunal to the appellant dated 4 October 2000 (set out in par 9 of these reasons), which raised the question whether the appellant could re-enter or reside in India, and indicated that persons without an Afghan passport had in 1999 been refused renewal of residency permits in India. The respondent also relied upon the 1999 US Department of State Report on Human Rights Practices in Afghanistan, which the appellant had supplied to the Tribunal. The appellant had provided the report to demonstrate that there was discrimination against Sikhs in Afghanistan by the Taliban. The respondent argued on the appeal that the report also indicated that the former President of Afghanistan, President Rabbani, controlled "most of the countries' embassies abroad". The reply of the appellant's adviser, dated 12 October 2000, (set out at par 10 of these reasons) stated that the appellant could not obtain a passport because he could not be expected to approach Afghan authorities associated with the government. We conclude that the Tribunal understood from that statement that the appellant was contending that there was no non-Taliban source for him to obtain a passport. Therefore, when the Tribunal obtained specific information that the Consulate in Canberra represented the Afghan government in exile, and that it was able to issue passports to Afghan nationals, the Tribunal was bound as a matter of procedural fairness to disclose that information to the appellant. By failing to do so it denied him procedural fairness.
30 It is established that the presence of a provision such as s 424A does not, of itself, preclude the continued existence of the common law requirements of natural justice: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Miah). It may be that this position no longer prevails. The Act was amended on 3 July 2002 by the introduction of s 422B which seeks to exclude the common law requirements of natural justice. However, the amendment does not apply retrospectively, and has no bearing upon the present appeal.
31 It is also now established by Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (S157) that s 474 does not protect a purported decision made as a result of jurisdictional error. A failure to accord procedural fairness constitutes jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 89, per Gaudron and Gummow JJ at 101, per Kirby J at 135, and per Hayne J at 143.
32 It follows that, on the present state of the law, if the appellant were permitted to raise the new argument, he would succeed on the appeal.
33 It is next necessary to consider the explanation given by the appellant for failing to raise the new argument before the primary judge. Counsel for the appellant accepted that the argument could have been raised, but pointed out the confusing and fluid state of the law at the time the application for review was drafted in about December 2001 and when the application was heard by Marshall J on 23 April 2002. In Walton v Ruddock (2001) 115 FCR 342; [2001] FCA 1839, decided on 20 December 2001, there was a suggestion that s 474 would not protect a decision made where there had been a failure to accord procedural fairness. On the other hand, in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, decided on 15 March 2002,Gyles J held that at the highest, s 474 protected decisions made in breach of the requirements of natural justice where the breach was constituted by a failure to comply with an express statutory provision that embodied a requirement of natural justice.
34 Thus, whilst the point now sought to be raised could have been taken before the primary judge, there was no element of deliberately standing by or of the appellant making a tactical decision not to pursue the argument. Where those circumstances exist the Court is unlikely to be sympathetic to an application for leave to amend a notice of appeal to include a new argument. As McInerney J said in R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 135, an applicant should not be able to "eat their cake and have it". The oversight in the present case must be seen against the background of the changing and uncertain state of the law at the time the review proceeding was commenced and heard.
35 The prejudice to the respondent arising from granting the appellant leave to amend may be addressed by an order for costs. It is not suggested that any other prejudice would be visited upon the respondent by the grant of leave.
36 Finally, just as it is relevant in considering whether the statute preserves elements of natural justice beyond the statutory provisions embodying some of those elements, so it is relevant for the determination of the present question to consider "the nature of and consequences for the individual". McHugh J said in Miah at par 146:
"the nature of the interest is the prosecutor's personal security. The consequences for him include returning to face serious threats to his personal security, if not to his life."
37 Evidence, which the Tribunal accepted, showed that the appellant was at risk of persecution in Afghanistan if he were returned there. Thus, the nature of the consequences to the appellant flowing from the decision in this case favour the grant of leave to amend.
38 Whilst we accept the force of the comments made in H v Minister and the need to recognise that the hearing before the primary judge in these cases is not merely a "preliminary skirmish", on balance, the circumstances of this appeal justify the grant of leave to amend the notice of appeal in the terms sought by the appellant. Leave is therefore granted.