Zaburoni v Minister for Immigration and Border Protection

1. The interlocutory application filed on 8 December 2017 be dismissed.
2. The appellant pay the respondent's costs of and incidental to the interlocutory application, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 On 21 November 2017, the Full Court heard this appeal and reserved its judgment. On 7 December 2017 the parties were informed that judgment would be delivered today, 11 December 2017 at 2:15 pm. Later that morning, the appellant's solicitors sent an email advising that the appellant's counsel had "become aware of the decision of the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, a decision handed down on the same day as Justice Farrell's decision in this matter", that the appellant intended to seek leave to file an amended notice of appeal relying on that case, and that the appellant, therefore, sought a delay in delivery of judgment. The Court made procedural orders for the filing of an interlocutory application for leave to amend the notice of appeal, supporting affidavit and competing submissions. The hearing of the interlocutory application was listed at the time scheduled for judgment delivery. 2 The following day, the appellant lodged electronically an interlocutory application seeking leave to amend the notice of appeal. He relied upon an affidavit sworn by his instructing solicitor on 8 December 2017. The appellant sought leave to raise an additional ground, which had not been run below and was not included in his original notice of appeal. This ground is to the effect that the Minister denied him procedural fairness, constructively failed to exercise his jurisdiction, or otherwise failed to carry out his statutory task, by failing lawfully to consider a "reason" claimed by the appellant as to why the visa should not be cancelled. This reason related to the appellant's claim that he might suffer harm if returned to Zimbabwe, including his fears of persecution because he was HIV positive, a returnee and a person who "had brought the nation into disrepute". He also claimed that he would be unable to access HIV treatment due to the cost and availability of such treatment in Zimbabwe. These matters were said to give rise to a non-refoulement obligation. Further or alternatively, he wished to argue that the Minister failed to take into account the Migration Act 1958 (Cth) (the Act) and its operation in making his decision, or misunderstood the Act and its operation in making his decision. The proposed ground was accompanied by seven particulars, the essence of which was to rely upon the Full Court's decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16). 3 BCR16 was handed down on 13 June 2017, which is the same day in which the primary judge published her reasons for judgment and made orders which are the subject of the appeal to this Court. 4 The appellant argued that the ground was not available below and that BCR16 only came to the attention of his current counsel on 27 November 2017. He submitted that the proposed ground is "highly meritorious" and is on all fours with BCR16. He argued that the statutory power in BCR16 is "a cognate one and no relevant distinction arises to distinguish the reasoning applicable". He also submitted that the Minister would not suffer significant prejudice if leave was granted. 5 The Minister opposed the interlocutory application. He submitted that no adequate explanation had been provided as to the lengthy delay in seeking leave to amend when, at all times, the appellant has been represented by experienced counsel, including senior counsel below. The Minister emphasised that the appellant waited until the day after he learned that the Full Court would deliver its judgment to raise the proposed new ground, notwithstanding that it could have been raised in his notice of appeal or any time during the five month period leading up to the hearing. 6 The Minister also contended that it was not expedient in the interests of justice to grant leave in circumstances where the appellant voluntarily left Australia and non-refoulement obligations would not be relevant on any reconsideration. In any event, the Minister submitted that the appellant's claims were considered adequately addressed in [63] to [69] of the Minister's statement of reasons. The Minister also contended that BCR16 is distinguishable because it involved s 501CA(4), and not s 501(2), and there was binding authority against him in the Full Court's decision in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 (Le). 7 The principles which guide consideration of an application for leave to argue a ground of appeal not raised below are well settled. They are reflected in authorities such as VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] and [48] and in SZTQZ v Minister for Immigration and Border Protection [2017] FCA 282. 8 I am not persuaded that it is expedient in the interests of justice to grant leave to raise the proposed new ground. I accept the Minister's submission that no adequate explanation has been provided for the late raising of the proposed ground, in circumstances where the point could have been raised in the notice of appeal filed on 4 July 2017 (i.e. almost three weeks after BCR16 was published). Several more months then passed before the appeal was heard and it was only after the parties were informed that judgment was to be delivered that the appellant belatedly sought leave to raise the matter. 9 In addition, I am not satisfied that the proposed ground has sufficient merit to warrant the grant of leave. Three matters stand out. First, having voluntarily left Australia, the appellant is ineligible to apply for a protection visa (see s 36(2)). According to the Minister, the appellant was not prevented by s 48A from applying for a protection visa (while in Australia). Instead, he voluntarily sought to be returned to his country of origin. 10 Secondly, insofar as the proposed ground relies upon the appellant's claims outside the statutory protection visa framework and relates to "private" harms of the type identified in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (as approved in BCR16), the appellant has not satisfied us that there is any arguable error in the Minister's consideration and rejection of that aspect of the appellant's claims as reflected particularly in [63] to [69] of his statement of reasons and see also [73]. 11 Thirdly, there appears to be some force in the Minister's submission that BCR16 relates to s 501CA(4) and not s 501(2) and is distinguishable, but it is unnecessary to take that matter any further for the purposes of this application. This Court is bound by decisions such as Le and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513. The proposed ground of appeal does not claim that these decisions are plainly wrong. 12 For these reasons, I consider that the interlocutory application should be dismissed, with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.