FEDERAL COURT OF AUSTRALIA

BUD17 v Minister for Home Affairs [2018] FCAFC 140

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until further order, the name of the applicant and any material that might tend to identify the applicant not be published.

2.    The application for an extension of time be granted.

3.    The appellant be granted leave to rely on ground 1A and ground 3 in the amended draft notice of appeal.

4.    The appeal be allowed.

5.    The orders of the primary judge be set aside and in lieu thereof:

(a)    a writ of certiorari issue quashing the decision of 22 March 2017 of the second respondent;

(b)    remit the matter to the second respondent, differently constituted, for determination according to law.

6.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CERTAIN DETAILS IN THIS JUDGMENT, INCLUDING SOME NAMES, HAVE BEEN REDACTED OR ANONYMISED IN ORDER TO PRESERVE THE CONFIDENTIALITY OF THE APPELLANT

THE COURT:

1    On 22 September 2017, the Federal Circuit Court of Australia made an order, and delivered ex tempore reasons for, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal.

2    The appellant (the applicant before the Federal Circuit Court) was situated on Christmas Island. He spoke no English. The hearing commenced by video link, which failed, and was continued by audio link. The appellant had received that morning an affidavit sworn 21 September 2017 upon which the Minister relied, containing certificates which had been issued under s 438 of the Migration Act 1958 (Cth) and documents the subject of those certificates. He stated that he had not had time to ascertain what was written in the documents. Nevertheless, he ultimately did not object to the documents being admitted into evidence, a position to which he was not discouraged by the primary judge.

3    In oral submissions to the Federal Circuit Court, the appellant made it clear that his central concern revolved around paragraphs T[17], T[18] and T[19] of the Tribunal’s reasons and what the appellant contended was a failure on the part of the Tribunal to consider the content of certain material before the Tribunal, in particular an indictment. In response to these submissions, the Federal Circuit Court reasoned at J[29]:

On the face of the Tribunal’s decision, the Tribunal’s decision reflects an orthodox approach to the conduct of a review and a careful assessment of the applicant’s claims and evidence and the making of dispositive findings that were open to the Tribunal in respect of the applicant’s claims concerning complementary protection.

4    The appellant required an extension of time to appeal to this Court because his appeal was not instituted in time. The appellant also sought leave to rely on grounds which were not advanced, or not clearly advanced, before the Federal Circuit Court. These procedural matters are dealt with in further detail at the end of these reasons. In summary, however, a consideration central to both the question of an extension of time in which to appeal and whether leave should be granted is whether the proposed appeal or grounds of appeal have merit. The grounds of the proposed appeal have merit and the appellant should be granted an extension of time and leave to raise ground 1A and ground 3. The appellant does not need leave to raise ground 1B.

5    The essence of ground 1A was that the Tribunal failed to comply with ss 424A and 424AA of the Act in the manner in which it dealt with an Interpol “red notice” at the hearing with the consequence that it committed a jurisdictional error.

6    The essence of ground 1B was that the Federal Circuit Court denied the appellant procedural fairness in proceeding with the hearing in circumstances where the appellant was unrepresented, spoke no English and, only that morning, had received an affidavit which the Minister sought to rely upon and which both the Minister and the Federal Circuit Court knew the appellant had not had the opportunity to read.

7    The essence of ground 3 was that the Federal Circuit Court erred in failing to find jurisdictional error on the part of the Tribunal in overlooking critical and significant material supporting a submission advanced by the appellant and proceeding on the incorrect basis that there was no evidence supporting his submission.

8    For the reasons given below, ground 3 is made out, the appeal should be allowed and the matter remitted to the Tribunal to be determined according to law. In that circumstance, it is not necessary to reach a conclusion in respect of ground 1A or ground 1B. Nevertheless, we observe below that the hearing afforded to the appellant, which was the subject matter of ground 1B, fell short of what was desirable.

BACKGROUND

9    The appellant was born in, and is a citizen of, Vietnam.

10    His claims were to the following effect. He ran a real estate business. The success of his business was such that senior Communist Party officials wanted to become hidden equity partners without investing money. He refused to facilitate this or to pay bribes to avoid the issue.

11    Land which was owned by the appellant’s company was rezoned, resulting in losses associated with a fall in value in properties. This caused difficulties with existing lenders such that the appellant caused loans to be made on the black market at high rates. The appellant turned to corrupt banking officials who operated a bank. The appellant set up various companies and borrowed money by dishonest means. The relevant events occurred in 2009 and 2010.

12    The appellant was named as the “ringleader” in an indictment dated [date redacted]. A translated copy of this was relied on by the appellant in his claims for protection described in more detail below. This indictment recorded the “results of investigation” in detail. The appellant was the Chairman of the Board of Members of a particular company. He set up a number of companies and appointed directors. Those companies were used to borrow money from banks. The appellant “used falsified commercial contracts and business plans”; he used “faked certificates of House Ownership and Land Use Right as securities to borrow money”; with the assistance of other accused he fraudulently appropriated a “significant amount of money” and then fled. The indictment included:

In order to borrow money easily, [the appellant] usually contacted [a director of a named bank] in advanced to ask him to approve the loan. [The director of the named bank] knew that these companies were set [up] by [the appellant]. These loans were personally borrowed by [the appellant] and were used to rollover overdue loans that [the appellant] borrowed from bank previously. The loans for those companies were not qualified under regulations on loan provision in the operations of credit institutions, but [the director of the named bank] directed [another executive at the named bank] and [another executive of the named bank] not to verify the actual facts in the loan and not to determine whether or not business plans for loan was falsified, to make valuation report for security assets (The value of security assets is enough for loan purposes), and submit the proposals to [the director of the named bank] with recommendation to approve the loan, then submit them to [another body] where [a named individual] was The Director of the [named bank] and Chairman of [the other body] who sign approval for the loan.

13    The indictment concerned a number of individuals charged under the Vietnamese Criminal (Penal) Code, including under Article 139 for appropriating property through swindling, Article 179(3) for breaching regulations on loan provisions in the operation of credit institutions, and Article 281(3) for abusing positions and/or powers while performing official duties.

14    The indictment noted that the total amount the appellant had appropriated from the bank was [VND$X billion]. In this, the appellant had been assisted by four others, one of whom had also fled. The appellant was the “ringleader” and he was “currently” charged with “appropriating property through swindling”, an offence against Article 139. The “Conclusion” included:

Total money that [the appellant] appropriated from [the named bank] was [VND$X billion]. The people who assisted [the appellant] to perform the fraudulent appropriation of property of [the named bank] via signed the Credit Contracts were [four other named individuals].

In this matter, [the appellant] is the RINGLEADER. Currently, [the appellant] and [one of the four other named individuals] fled. They are currently charged of "Appropriating property through swindling".

15    The indictment also addressed the position of other individuals and noted that at least one was not then being prosecuted because there was not enough evidence since the appellant had fled. It was stated:

After arresting [the appellant] and [another named individual], the roles and responsibilities of [three named individuals] will be considered again according to regulations.

16    The final section of the “Conclusion” stated:

In the matter, there are a number of issues related to signing blank commercial contracts to support loan applications for [the appellant]. In the future, if [the appellant] is arrested, such issues will be reviewed and each person related these issues will be considered again according to regulations.

17    The appellant arrived in Australia on 10 October 2010 as the holder of a subclass TR-676 (Visitor) visa. He remained in Australia unlawfully after the expiry of his visitor visa. On 30 July 2011, he was stopped by the NSW police for a traffic offence and detained pursuant to s 189 of the Act.

18    On 11 August 2011, the appellant applied for a protection visa, which was refused by a delegate on 14 September 2011. The appellant applied to the Refugee Review Tribunal for review on 21 September 2011 and on 2 December 2011, the Refugee Review Tribunal affirmed the decision.

19    After the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, the appellant lodged a further application for a protection visa on 5 August 2013. That application was refused by a delegate on 12 January 2015. The appellant sought review of that decision and the Tribunal affirmed the delegate’s decision on 25 May 2015. The appellant sought judicial review.

20    On 23 June 2016, the Federal Circuit Court remitted the matter for further hearing before a differently constituted Tribunal. The essential reason why that court remitted the matter was described in the following way (at J[11] and J[13]):

11.    Although the indictment and statement of facts prepared by the prosecutor (a translation of which was provided by the applicant) do not mention article 278(4)(a) they do say that state bank officials were involved in the commission of the alleged crimes. The Tribunal did not make any inquiries or seek advice from any person with any expert knowledge of the Criminal Code of Vietnam. It did not make any inquiry whether any of those charged with the applicant could be charged under article 278(4)(a) and whether, in that event, accessorial liability under article 278(4)(a) could be imposed on the applicant. It may be assumed that the concept of accessorial liability is present in any developed criminal code, including the Criminal Code of Vietnam. Given that the crime allegedly committed by him appears to have involved the co-operation of officials of a state bank there must be a possibility of the officials involved in the fraud being charged under article 278(4)(a) and accessorial liability being imposed on the applicant. In that event there may be a possibility the applicant will be subjected to the death penalty.

…

13.    … It is true that the applicant did not raise this possibility before the Tribunal. He is not legally trained (as is plain from the inadequate drafting of his application), he was not legally represented before the Tribunal or this court and there is no reason to believe he has the training or capacity to independently identify the issue. In any event, the Tribunal is not a court of pleadings. However, the uncontested facts of this case, involving a large fraud carried out with the connivance of officials of a state owned bank, would appear to raise the risk of charges being laid which carry the death penalty. Although the indictment provided by the applicant does not mention article 278(4)(a) all Australian criminal lawyers would be familiar with the addition of counts to an original indictment. In my view, an obvious question arising from the uncontested material is whether the applicant is at risk of being charged as an accessory under article 278(4)(a).

21    The appellant provided a written submission dated 20 March 2017 to the Tribunal in relation to the matter when remitted, after attending a hearing on 14 March 2017. He stated in that document at A[307] (errors and emphasis in original):

At 9:30 am on the 14th of March 2017 I attended the hearing in order to give my answer to the question ‘what would happen if I am to be returned to Vietnam?’ I want to say that if I return to Vietnam I will be arrested by the Vietnamese government for investigation and the government officials will force me to testify between me and [a named individual]; Deputy Director of [a named bank] and [another named individual]; Director of the Bank what we did about the loss of big money of the bank which was [$VNDX billion].

The reason why I was helped by them through the form of loans to get the bank’s money out, I would like to talk about this, actually between me [the appellant] and [a named individual] along with [another named individual] has discussed in advance to do it. I was responsible for the papers of the land and housing, [one of the two named individuals] was responsible for directing lower level employees that they did not need to consider the evidence of land and housing papers. So it didn’t just borrow one loan but many loans to get money out. This showed the intimacy, discussion and unity between me, [the two other named individuals].

Would you please read the Indictment of the People's Procuracy of Ho Chi Minh City dated [date redacted], and then it will be clear.

As I have stated and under the Vietnam Criminal Code in Article 278 states that a person holding a position or power but using it for organising or discussing for the purpose of obtaining state money shall be charged with corruption. Article 278 is the Article with the Death Penalty as the maximum penalty. Clause 4 of Article 278 states that if causing the loss of 1 billion to 5 billion is to be executed. In my case, the loss amount is [VND$X billion], this is a huge amount of money, and I, [the two other named individuals] had discussed with each other to carry out the case so I’d be charged with co-plotting of directing the implementation of the case. Therefore I also receive the maximum penalty of death sentence. The provision on the accomplice of the Criminal Code in 2015 and Article 20 of the 1999 Criminal Code of Vietnam stipulates that accomplice is a case where two or more persons intentionally commit the same offense.

Would you please look at this Article then it will be clear. So if I am arrested, I would be found guilty of accomplishing embezzlement with [the two other named individuals] and under Clause 4 of Article 278, I would be sentenced to death.

ln addition, the second death penalty for me is in Article 279 of the Criminal Code 2015 is amended to Article 354, for taking bribes under this law to non-state (private) persons. At that time, I was the Chairman of the … [a named company]. I received from a friend named [a named individual] the amount of [USD$Y million] equivalent to [VND$Y billion] to help him be able to borrow [VND$Z billion] for a project. And [another named individual] (General Director of [a named bank]) agreed and I also received from [another named individual] [USD$W hundred thousand] because I know [one of the named individuals] and introduced [another of the named individuals] to [the first named individual]. Currently [one of the named individuals] has been arrested and is one of the top 10 cases in Vietnam.

If I am sent back to Vietnam, I would be prosecuted for bribery and, under Article 279 amended to Article 354 of Vietnam’s Criminal Code 2015, the maximum penalty is death penalty ($1 billion to 5 billion), I received [USD$W hundred thousand] equivalent to [VND$W billion].

The third penalty is to give bribes under Article 289, I gave [a named individual] over [VND$W billion] and [another named individual] also over [$VND$W billion] for them to help me as in the above statements. The penalty describe in Clause 4 is that my way of bribery is death penalty (the amount of bribery from l billion up).

I; [the appellant] has been prosecuted by the Ho Chi Minh City People’s Procuracy for defrauding under Article 139 of the Vietnam Criminal Code, as it happened to the banker when [two named individuals] were arrested and they knew I was in Australia so they claimed to be cheated by me to avoid being guilty of embezzlement which has the maximum penalty of death penalty. For this I would like you to consider and read the Proclamation of the People’s Procuracy of Ho Chi Minh City dated [date redacted], you will see clearly. It was [a named individual] who discussed with me that he was responsible for directing his subordinates not to look into the land and housing papers and no need to evaluate the plan when I submitted them to the bank. This is what really happened.

And if I am sent back to Vietnam, I would certainly be prosecuted by the Vietnamese government for three counts, and all of these three offenses have the maximum penalty of death sentence.

First Count:     Accomplice of an organising embezzlement, pursuant to Article 278 of the Criminal Code 2015.

Second Count:     Receiving bribery, pursuant to Article 279 amended to Article 354 of the Criminal Code 2015.

Third Count:     Giving bribery, pursuant to Article 289 of the Criminal Code 2015.

22    The Tribunal, when the matter was remitted, made certain inquiries. In its reasons, it stated at T[18]:

The current Tribunal made enquiries with three different Australian government agencies (the Attorney General’s Department, the Department of Immigration and Border Protection and DFAT) on the questions posed by the Federal Circuit Court but they did not assist and non-government legal advice could not be obtained without substantial cost. The applicant did not give his consent to DFAT contacting the Vietnamese authorities to seek an assurance that the death penalty would not apply in his case and DFAT were unwilling to do so without this consent. The Attorney General's Department advised that there was no other mechanism for getting this advice than what the Tribunal had pursued with DFAT …

23    Because the Tribunal had not succeeded in obtaining information it decided to proceed on the basis that those already charged and those not charged, but involved with the appellant in his past conduct, could be charged under Article 278(4)(a) and that accessorial liability could be imposed on the appellant under that provision. It continued, at T[18]:

In these circumstances, I have decided to proceed on the most favourable basis for the applicant that there is a possibility that those involved with the applicant in past criminal behaviour and those already charged and convicted of other offences could in the future be charged under Article 278(4)(a) and that accessorial liability under this provision could also be imposed on the applicant and that the applicant could be charged and convicted under this provision. I have taken into account that the indictment specifies the applicant as the ringleader and the applicant's written and oral claims of his and other's past conduct; however, having regards to all the facts of the case, I find that this only a remote possibility and one that is not real.

24    At T[18], it set out its reasons for the conclusion that the possibility was remote and not real (emphasis added):

•    The applicant's evidence at the hearing was that the persons mentioned in the indictment were in jail and had been convicted of the offences they had been charged with and they were now serving sentences of 10 to 20 years imprisonment but they had not been charged with any .other offences. The applicant also told the Tribunal that he had not been charged with any offences including under Article 278 but he feared he would be. However, I consider his claims to be highly speculative given these individuals (and others he has claimed to have been illegally involved with) have not been charged with such an offence and neither has the applicant.

•    The Interpol Red Notice indicates that the applicant is the subject of an arrest warrant for appropriating property through swindling contrary to Article 139 of the Vietnamese Criminal Code which only carries with a term of imprisonment and not the death penalty. The previous Tribunal put this to the applicant for comment using the procedure under s.424AA of the Act and I also put this to the applicant for comment. The applicant stated that when he returns to Vietnam that there were be further investigations of the officials who have already been convicted and due to his corrupt dealings with these and other officials that he faces being charged and convicted under Article 278(4)(a). I have considered his evidence at the various Tribunal hearings and the evidence contained within the indictment and the Red Notice; however I consider it highly speculative and remote given the factual evidence before me does not indicate that.

•    The applicant has submitted two translated reports of individuals being sentenced to death in Vietnam for fraudulent activities; I have taken these reports into account but the applicant has not claimed that he had any connection to any of these individuals or their crimes and I do not consider these reports mean that the risk of the applicant of having the death penalty carried out on him is anything more than remote.

25    The appellant also referred to two other provisions. At T[19], the Tribunal stated (emphasis added):

At the hearing before me the applicant also claimed that he feared being prosecuted under two other sections of the Vietnamese Criminal Code (Article 279 - Receiving Bribes and Article 289 - Offering Bribes) which can involve the sentence of capital punishment (or 20 years or life imprisonment) where the property appropriated is more than three hundred million VND. I accept that there is a possibility that those involved with the applicant in past criminal behaviour and those already charged and convicted could in the future be charged and convicted under these provisions and that accessorial and direct liability under these provisions could also be imposed on the applicant and that the applicant could also be charged and convicted. However, having regards to all the facts of the case and for the same reasons set out in the previous paragraph, I find the applicant being charged and convicted under these provisions is only a remote possibility and one that is not real.

26    For the reasons set out below, the conclusions (emphasised in the passages above) that the possibility of being charged with offences under Article 278(4) was “highly speculative and remote” and that being charged under Articles 279 and 289 was “only a remote possibility and one that is not real” have the consequence that the decision of the Tribunal was affected by jurisdictional error.

27    The Tribunal also had before it documents which were the subject of certificates issued under s 438 of the Act. In relation to this material, the Tribunal stated at T[32] and T[33]:

32.    At the hearing, I put to the applicant my views on various documents that the Department had issued s.438 certificates on. The applicant did not comment on the validity of the certificates or seek to obtain further details about the information. The Department stated that disclosure of the material would be contrary to the public interest because it related to an internal working document and business affairs and internal business of the Department. I stated that I did not consider these certificates to be validly issued and I informed the applicant of the contents of these documents. I noted to the applicant that folio 199 was just another s.438 certificate relating.to material contained at folios 167-171 and I thought it was neutral to his case. I noted to the applicant that folio 180 was an email from the Department that said he had been sent a letter giving him 14 days to lodge claims related to the data breach and I thought it was neutral to his case. I noted to the applicant that folio 164 was an internal Departmental email stating that he had lodged a valid protection visa application on complimentary protections grounds and I thought it was neutral to his case.

33.    I noted to the applicant that folios 167-171 contained statements by Departmental officials that indicated that he may not pass the character test and I thought this was neutral to his case before the Tribunal. I also noted that it contained a Departmental email that indicated that his application may be refused under s.501(1) of the Act and I thought this was neutral to his case before the Tribunal. I explained that it included information that the Vietnamese government had sent an extradition request to the Australian government on [date redacted] in relation to a serious fraud charge and that the Attorney General's Department had advised that they were unable to progress the extradition request because Australia does not have a bilateral extradition treaty with Vietnam that covered his offence and I thought it was neutral to his case. I noted to the applicant that folios 175-176 was the Interpol Red Notice concerned the charge of appropriating property through swindling under Article 139 and that he faced the maximum penalty of 20 years imprisonment. I noted that whilst this was in some respect supportive of his case, it was also adverse to his case in the manner discussed at the hearing.

28    Ultimately, the Tribunal rejected all of the claims made by the appellant under s 36(2)(aa) of the Act.

THE FEDERAL CIRCUIT COURT

29    The appellant was not represented before the Federal Circuit Court. His grounds of review were recorded by the Federal Circuit Court as follows (errors in original):

1.    The Tribunal erred and failed to take into account relevant considerations in coming to the decision.

2.    There was certain adverse information used by the Tribunal to affirm the decision under review.

3.    The Tribunal took irrelevant considerations into account in coming to the decision.

4.    The Tribunal identified wrong issues and asked wrong questions.

5.    I am affected by jurisdictional error because I was not provided with an opportunity to see the substance of adverse information.

6.     The Tribunal denial the applicant Procedural Fairness by refusing to accept the significant harm or to face death penalty that possible happened when the applicant return to Vietnam. Please request a Guarantee safety paper from Decision Maker to ensure about my safety when return to Vietnam, if the decision maker is so certain in his decision. (I will send it to Human Rights lawyer to ensure about my safety when return to Vietnam or to make sure the Decision Maker will take all responsible for his decision or he will face consequence in his wrong decision about my case).

7.     The Administrative Appeals Tribunal had incorrect the date the applicant appeared before the Tribunal as it should be on 14 March 20 l 7 (as clause 3 - page 2, AA T Decision Record).

8.     The Administrative Appeals Tribunal had not given correct time to the applicant to submit\supporting document. The final hearing on 14 March 2017. The date 15/3/2017 the applicant makes a requested to submit supporting document on phone and got accepted. The applicant had send it to the AA T on 21/V2017 but the applicant not sure it has been read by the Tribunal or not. Because the applicant had received AA T's decision on 22 March 2017.

30    The hearing commenced by way of video link. It is evident from the transcript that this did not function properly. It was ultimately abandoned and the hearing continued by audio link only.

31    As noted above, the Minister had served an affidavit which the appellant only received on the morning of the hearing. The following exchange took place whilst the video link was still operating:

HIS HONOUR: Mr Applicant, I was asking you about whether you have any objection to this court receiving into evidence the affidavit that annexes the confidentiality certificates and the documents the subject of those certificates.

THE INTERPRETER: I don’t know what to do – yes or no – because I just receive it. I didn’t have a time to know what it was written in there.

HIS HONOUR: Well – what’s written in it?

THE INTERPRETER: Okay. This morning – just received this morning.

HIS HONOUR: Yes, I understand that, Mr Applicant. Mr Applicant, the affidavit identifies that the tribunal had before it some confidentiality certificates. The tribunal, in that hearing at which you attended, raised with you that there were some confidentiality certificates. Do you want this court to receive into evidence, or do you want to object to this court receiving into evidence, those confidentiality certificates and the documents?

THE INTERPRETER: So, please, your Honour, could you tell me the content of that one – that certificate?

…

HIS HONOUR: Mr Applicant, the documents that you’ve just had served on you are an affidavit and some certificates of confidentiality. Those certificates of confidentiality suggested that there were documents that shouldn’t be disclosed to you. The tribunal, in the course of the hearing, told you that there was information that it had received and explained to you the contents of those documents. It’s summarised in paragraphs 32 to 33 of the tribunal’s decision. Do you have any objection to this court receiving that material into evidence? I need a response from you, Mr Applicant.

THE INTERPRETER: Sorry. I’m sorry, your Honour, I don’t know his name – so – Vietnamese.

HIS HONOUR: Mr Applicant is what you call him. You use exactly what I say. Mr Applicant, do you object to the court receiving into evidence the certificates referred to in that affidavit – that affidavit and the documents the subject of the affidavit?

HIS HONOUR: Mr Reilly, I know it’s not your fault, but I’m finding this not acceptable. It, really, is one where we need to have a continuous flow of information. I’m told that there may be another room that the applicant can be taken into, which may have a better video link. What I propose to do is adjourn until then. Ms Interpreter, will you say to the applicant the following? Mr Applicant, I’m having difficulty hearing you. I don’t regard that as satisfactory, at this point. I’ve understood what you’ve said, so far, but I propose to move the hearing locations, so that I have a better video connection, and we will, then, continue the hearing.

So I’m going to adjourn temporarily. And my associate is going to take steps to try and have you taken to another room, where we have a better video hook-up. Up to this issue concerning the respondent’s affidavit, I have understood what you’ve said and there hasn’t been an impediment in understanding you, but I want to make sure that I can continue to hear you in relation to the remaining matters in respect of the hearing. So the court is going to temporarily adjourn, Mr Applicant and, then, we will continue the hearing, again, shortly. Mr Associate, can you see what you can do. The court will temporarily adjourn, Mr Reilly.

32    The hearing ultimately proceeded by audio link. The following exchange occurred:

HIS HONOUR: Very well. Now, Mr Applicant, in respect of the affidavit or the material you only received this morning, do you want to object to the court receiving it into evidence?

THE INTERPRETER: First of all, I would like you all and the court to know that I am not happy the way the department has disclosed all the detail – my – concerning my life and thing to everybody. And, then, secondly, I think that they have to be responsible for that. They just cannot ignore it and take it as a – you – as a normal thing.

HIS HONOUR: Yes. That’s not responsive to my question. Do you want to object to the receipt into evidence of the affidavit, the certificates and the documents the subject of the certificates?

THE INTERPRETER: Okay. I have no objection to this one, however, I just would like to tell the court that the department should be responsible for this.

HIS HONOUR: Thank you, Mr Applicant. I will treat the affidavit of Elizabeth – sorry – Kate Elizabeth Gordiesel as read and you wish to tender the documents the subject of that note: is that right, Mr Reilly?

MR REILLY: Yes, the applicant has the exhibit, but I don’t think your Honour yet does. So I tender that.

HIS HONOUR: Mr Applicant, from what you’ve told me, I understand you don’t object to the court receiving the documents into evidence. You do object, though, to – or complain about the department having disclosed this information: is that right?

THE INTERPRETER: Correct.

HIS HONOUR: And that’s part of the claim you raised in relation to the data breach: is that right?

THE INTERPRETER: Correct.

HIS HONOUR: Yes, I propose to admit into evidence exhibit KEG1 and KEG2. KEG1 will be marked exhibit B and the documents, KEG2, will be marked exhibit C.

33    In addition to the affidavit which had been served, the Minister relied on a second affidavit, described as a “closed affidavit” which had not been served. It was said to refer to an Interpol “red notice” that had been referred to by the Tribunal. The Minister claimed public interest immunity over the Interpol red notice and the affidavit. When the occasion came for debate about this affidavit, the appellant stated:

THE INTERPRETER: Sorry, your Honour. Even though I was not served 175, 176 [the Interpol red notice] – I know about that. Could I say something about that?

34    To this, the primary judge responded:

HIS HONOUR: In a moment, Mr Applicant. I just want to finish the evidence first before we hear submissions. What I want to do, in that regard, in respect of the documents 175 and 176 – yes, I know you haven’t been given those. The Minister claims that they are documents the subject of public interest immunity. The Minister has handed up a document, being an affidavit identifying reasons why the Crown claims public interest immunity in respect of that document. Either with or without the affidavit, I am satisfied that the folios 175 and 176 are the proper subject of a claim for public interest immunity. And I don’t propose to require the production of the folios 175 and 176. I will hear you further in relation to those in a moment, Mr Applicant.

35    The affidavit was not read. And the appellant was not heard on the issue.

36    In his oral submissions, which were delivered respectfully so far as the transcript reveals, the appellant made several things tolerably clear:

(1)    first, he considered that the Tribunal had failed to read the “charge” (a reference to the indictment) sufficiently carefully: T14.45; T19.21;

(2)    secondly, that the Vietnamese government had only heard the version of events from the perspective of the bank’s officials who sought to avoid their crimes by placing responsibility for the fraud on the appellant: T14.1 to T14.18;

(3)    thirdly, that if it was established that the corrupt officials had agreed to help the appellant carry out the fraudulent activity, they would be sentenced to death: T14.8;

(4)    fourthly, that what the Vietnamese government really wanted was to arrest him so that they could obtain further information, including the names of all of the corrupt officials who had been involved in the relevant events: T16.3 to T16.6 and T17.1 to T17.6;

(5)    fifthly, that his principal dissatisfaction revolved around paragraphs T[17], T[18] and T[19] of the Tribunal’s reasons: T16.13.

37    Paragraphs T[17] to T[19] were the paragraphs in which the Tribunal concluded that the appellant’s submission of a possibility of being subjected to the death penalty because, upon his arrest, the position of those already convicted might be re-opened and others involved in the fraudulent activities (but not convicted) might be prosecuted was “highly speculative and remote” or “only a remote possibility and one that is not real”. On several occasions, the appellant urged the Federal Circuit Court to read the “charge” (the indictment) carefully: T14.35; T14.40; T14.46; T17.2.

38    The primary judge stated in response at T18.3:

Other than the issue you have raised in relation to submissions [whether the Tribunal considered the written submissions dated 20 March 2017 to which the Tribunal did not refer in its reasons], everything you have said goes to the merits or reflects your disagreement with the findings, none of which identifies any relevant legal error. Is there anything new you wish to add as to why the tribunal’s decision is unlawful or unfair?

39    The court adjourned for four minutes, but not at the request of the appellant. On resumption, the appellant again referred to paragraphs T[17] to T[19] (T18.21) and the primary judge responded (T18.32 to T18.36):

… As I said before, I can’t revisit the merits. Other than the issue that you’ve raised relating to your submission, everything you’ve said reflects your disagreement with the merits or disagreement with the adverse decision and doesn’t – and doesn’t make out any relevant error …

40    The appellant then sought to address the primary judge on the definition of refugee, but was cut off by the primary judge with this sentence:

No, Mr Applicant, you’re not going to tell me about the law.

41    In the course of hearing submissions from counsel for the Minister, the primary judge asked where the indictment was located in the appeal book and was told it was the lengthy document from pages 35 to 85. Immediately after short reply submissions were made by the appellant, the primary judge delivered his reasons.

42    The Federal Circuit Court’s reasons included at J[9] and J[10]:

9.    The Tribunal adopted the most favourable basis for the applicant, that there is a possibility that those involved with the applicant in past criminal behaviour and those already charged and convicted of other offences could in the future be charged under Article 278(4)(a) and that accessorial liability under this provision could also be imposed on the applicant, and that the applicant could be charged and convicted under that provision. The Tribunal took into account the applicant’s claims that he was a ringleader and expressly referred to the applicant’s written and oral claims of his and other’s past conduct, but found that this was only a remote possibility and not a real one.

10.    The Tribunal then provided detailed reasons in support of that adverse finding, which were logical, rational and reasonable and open on the material before the Tribunal. The Tribunal referred to the other two sections under which the applicant expressed concern about being prosecuted, being Article 279 and Article 289. Those are the two other articles identified in the submissions of 20 March 2017. The Tribunal found, having regard to all the facts of the case, that the prospect of the applicant being charged and convicted under these provisions was only a remote possibility and one that is not real.

43    At J[29], J[31] and J[32], the Federal Circuit Court stated:

The Applicant’s submissions from the bar table

…

29.    The applicant continued to put submissions in relation to why the applicant believed the Tribunal’s decision was unfair to him and suggested that the Tribunal had not carefully taken into account the applicant’s claims and evidence. On the face of the Tribunal’s decision, the Tribunal’s decision reflects an orthodox approach to the conduct of a review and a careful assessment of the applicant’s claims and evidence and the making of dispositive findings that were open to the Tribunal in respect of the applicant’s claims concerning complementary protection.

…

31.    In the course of the applicant’s submissions, the applicant made reference to sending a document to the Tribunal shortly before the Tribunal delivered its reasons. There is in evidence the submission provided on 20 March 2017 sent to the Tribunal. The substance of that submission was dealt with in the Tribunal’s reasons although there is no express reference to the written submission. I accept the first respondent’s submission that the substance of the matters identified in the submission of 20 March 2017 are the subject of consideration and findings by the Tribunal in dealing with the applicant’s claims. Given the reference to the particular provisions concerning the three charges in the Tribunal’s reasons, I am satisfied that the Tribunal took into account and had a real and genuine intellectual engagement with the substance of the submissions raised on 20 March 2017 as well as the other submissions and evidence of the applicant.

32.    On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of a review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Nothing said by the applicant from the bar table identified any jurisdictional error.

44    At J[42] to J[44], the Federal Circuit Court stated:

Consideration

…

Ground 8

42.    In relation to ground 8, for the reasons already given, I am satisfied that the Tribunal took into account the submissions made on 20 March 2017. Insofar as ground 8 seeks to refer to a document sent on 21 March 2017, the Court sought to explore with the applicant whether that was the document that was the subject of the submissions sent on 20 March 2017. The applicant confirmed that that was the case.

43.    For the reasons I have earlier given, those submissions are ones the Court finds was the subject of real and meaningful consideration by the Tribunal. It was not necessary for the Tribunal to expressly refer to the submissions.

44.    A Registrar of the Court made orders on 5 July 2017 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed the amended application and put on a further affidavit. That affidavit identified the submissions sent on 20 March 2017 sent to the Tribunal and did not identify or annex any other submissions. No jurisdictional error is made out by ground 8.

45    As noted above, the Federal Circuit Court dismissed the appeal.

Ground 3: JURISDICTIONAL ERROR ON THE PART OF THE TRIBUNAL

46    At T[18], the Tribunal recorded the following:

The Interpol Red Notice indicates that the applicant is the subject of an arrest warrant for appropriating property through swindling contrary to Article 139 of the Vietnamese Criminal Code which only carries with a term of imprisonment and not the death penalty. The previous Tribunal put this to the applicant for comment using the procedure under s.424AA of the Act and I also put this to the applicant for comment. The applicant stated that when he returns to Vietnam that there were be further investigations of the officials who have already been convicted and due to his corrupt dealings with these and other officials that he faces being charged and convicted under Article 278(4)(a). I have considered his evidence at the various Tribunal hearings and the evidence contained within the indictment and the Red Notice; however I consider it highly speculative and remote given the factual evidence before me does not indicate that.

47    The Tribunal concluded that the appellant’s claim that he would be charged and convicted under Article 278(4)(a) was “highly speculative and remote”. That conclusion was based upon the Tribunal’s rejection of the submission that, if the appellant returned to Vietnam, there would be further investigations of the officials who had already been convicted. This submission was rejected because “the factual evidence … does not indicate that”.

48    However, the factual evidence which the Tribunal stated it had regard to did in fact support the submission which had been put. It did so in various respects.

49    The indictment included (underline emphasis added):

In this matter, [the appellant] is the RINGLEADER. Currently, [the appellant] and [another named individual] fled. They are currently charged of "Appropriating property through swindling". [AB77]

…

After arresting [the appellant] and [the other named individual], the roles and responsibilities of [three other named individuals] will be considered again according to regulations. [AB78]

…

In the matter, there are a number of issues related to signing blank commercial contracts to support loan applications for [the appellant]. In the future, if [the appellant] is arrested, such issues will be reviewed and each person related these issues will be considered again according to regulations. [AB79]

50    The appellant in his submission to the Tribunal dated 20 March 2017 expressly drew attention to the indictment.

51    The indictment had been provided by the appellant with a “Submission” from the appellant dated 11 March 2013. That submission included the following (errors in original, footnotes omitted):

The Government of Vietnam did not want to sentence all people involved in the INDICEMENTS in [date redacted] until I am arrested. The article is annexed and marked “D”. MY MATTER was adjourned. [AB31]

52    Annexure D to the statement purported to be a translation of an article and included the following (emphasis added):

[THE NAMED BANK] MATTER IS ADJOURNED BECAUSE THE RINGLEADER IS YET TO BE ARRESTED.

In the afternoon [date redacted], after three days hearing, the People's Court of Ho Chi Minh City was unable to sentence 8 accused in related to damages of [VND$X billion] at [a named bank].

The matter was returned to police for further investigation because many details cannot be proved at the hearing. After additional investigation, new charges will be laid against the accused based on new evidence.

The most important factor in the decision of the People’s Court of Ho Chi Minh City is that [the appellant] … is yet to be arrested. [The appellant] is the ringleader. [The appellant] is not at the hearing, the testimony of accused is not challenged by [the appellant].

The trial went more than expected time (the trial was initially planned for 2 days) because the defendants did not provide evidence honestly. They created many difficulties at the hearing.

…

In this matter, [the appellant] is the ringleader. [The appellant] fled and has been hunted, if he is arrested then he will be prosecuted. [AB139]

53    The appellant’s statement of 11 March 2013 also stated:

After MY MATTER was adjourned, I was told by my associates in Vietnam that the secret police in Vietnam knew that I would be able to be removed from Australia in January 2013.

On the deportation date, my associates in Vietnam told me that there were few different groups of police waiting for me at the Ho Chi Minh City International Airport. One of the groups was a special secret police from Ha Noi.

I was told that after the plane from Australia to Vietnam landed, the special secret police from Ha Noi was not be able to locate me at the Ho Chi Minh City International Airport. The special secret police from Ha Noi thought that other police groups were corrupted to help me to escape and did not know that I did not board the plane. There was turmoil at the Ho Chi Minh City International Airport.

If [two other named individuals] involved less than [VND$Z billion] were executed, then I shall not see how the Government of Vietnam will spare my life when I involved more than [VND$X billion] and I also knew so many Senior Officials involved in corruption in Vietnam.

54    The Tribunal overlooked the terms of the indictment referred to above and overlooked the aspects of the appellant’s statement referred to above which provided an evidentiary foundation for the submission which the Tribunal concluded, incorrectly, was not supported by the evidence.

55    The submission dated 20 March 2017, to which the Tribunal did not refer in its reasons, also directed attention to the indictment and contained material which supported the appellant’s submission.

56    If the Tribunal had considered those matters in a real way, and not overlooked them, it would not have reasoned (as it did at T[18]):

The applicant stated that when he returns to Vietnam that there were be further investigations of the officials who have already been convicted and due to his corrupt dealings with these and other officials that he faces being charged and convicted under Article 278(4)(a). I have considered his evidence at the various Tribunal hearings and the evidence contained within the indictment and the Red Notice; however I consider it highly speculative and remote given the factual evidence before me does not indicate that.

57    The reasoning of the Tribunal just set out was also relied upon by the Tribunal in its conclusion, set out at T[19] of its reasons, concerning Article 279 and Article 289.

58    In oral submissions during the appeal, the Minister submitted that the Tribunal’s reasoning at T[18] had to be understood in the context of the credibility findings which had been made in the reasons of the Refugee Review Tribunal and its own credibility finding expressed at T[23]. It is not appropriate to attribute to the Tribunal the credibility findings of an earlier Tribunal. The Tribunal’s reasoning at T[18] and T[19] is not stated to be based on credibility issues, less still the conclusions on credibility reached by an earlier decision-maker. The credibility issue referred to at T[23] was not shown to be related in any substantial way to the reasoning at T[18].

59    It was also submitted that the material referred to above should be read as only indicating that others might be charged with new offences and not that the appellant might face charges other than under Article 139(4). This submission, however, does not deal with the fact that the Tribunal simply overlooked that material entirely. It is not known what view the Tribunal might have taken had it turned its mind the material.

60    In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [70], Robertson J noted that the absence of a reference by the Tribunal to relevant evidence (in that case an academic transcript), either in the course of the hearing or in the Tribunal’s reasons, did not of itself establish a sufficient basis for the primary judge’s conclusion that the Tribunal had been unaware of the existence of that corroborative evidence.  However, his Honour found no error on the part of the primary judge in concluding that the Tribunal had given no consideration to the academic transcript when it made its adverse credibility findings against the appellant. 

61    At [72], his Honour stated:

I am not persuaded that there was any error on the part of the Federal Magistrate in this respect. The relevance of the Punjab University transcript to the question of the nature of the applicant’s study at that university was so high that the obvious inference that the absence of reference to the document, either by putting its falsity to the applicant or by seeking an explanation of how his evidence should or could be reconciled with the transcript, supported the conclusion that the Tribunal did not take it into account is not outweighed by general references to material on the files. This is a matter of ordinary fact-finding rather than depending on some special tenet of administrative law. Neither, in my opinion, is it outweighed by a general statement by the Tribunal that it had a range of documents about the circumstances of the applicant. Similarly, I would not draw from the Tribunal’s question whether the applicant had any other written documents that the Tribunal had already relevantly considered, that is, had in mind at the time of the decision, the Punjab University transcript. Nothing, in my opinion, can be made from whether the file was large or small.

62    In the present case, although there was a reference to the indictment, there was:

(1)    no reference to the significant parts of it referred to above; and

(2)    an express statement which suggests those parts were overlooked.

63    The indictment was provided with the statement and so it may reasonably be inferred that the Tribunal looked at the statement. However, there was no reference to the parts of it referred to above, or to Annexure “D” to it. The express statement of the Tribunal that there was no evidence supporting the appellant’s submission indicates that the Tribunal also overlooked that material.

64    The Tribunal made no reference to the submissions provided by the appellant on 20 March 2017 and did not refer to material in that document which might tend to support the appellant’s case. That document expressly sought to direct the Tribunal’s attention to the detail of the indictment.

65    The legal consequences flowing from a finding that the Tribunal failed to consider a document, or a critical part of a document, “will depend on the circumstances of the case and the nature of the document”: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77].  It is relevant to consider:

(1)    the cogency of the evidentiary material; and

(2)    the place of that material in the assessment of the review applicant’s claims.

See: SZRKT at [77], [98], [111], [112] and [122]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [46]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [49]-[50] and [54]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62].

66    The material which was overlooked in the present case went directly to the appellant’s claim to fear harm and directly to the submission he had put to the Tribunal recorded at T[18].  It could not have been considered by the Tribunal in light of its express conclusion that there was no evidence which supported the appellant’s submission. If the material had been considered, it might well have supported the appellant’s claim for complementary protection. 

67    The appellant has demonstrated that:

(1)    the Tribunal overlooked, in the sense of failing to consider, critical material which supported a central part of the case put by the appellant; and

(2)    the failure by the Tribunal to consider that material amounted to jurisdictional error because the consequence of that failure rose to a sufficient level of gravity to warrant the conclusion that the review contemplated by the Act was not undertaken. 

68    The appellant has also demonstrated error on the part of the Federal Circuit Court in failing to identify and grant relief in respect of the Tribunal’s jurisdictional error. We would also add the following. The jurisdiction of that court under s 476 of the Act was the same as the High Court’s jurisdiction under s 75(v) of the Constitution. A person, such as the appellant, who properly engages the jurisdiction is entitled to see it exercised in fact. The jurisdiction is not exercised by listening to the submissions and then simply describing those submissions as reflecting a disagreement with the merits. The appellant’s argument was tolerably clear. He did sufficient to encourage the primary judge to read the indictment carefully against the Tribunal’s reasons from T[17] to T[19]. If the primary judge had read the indictment (and for that matter the other material referred to above), he could not have helped but see the Tribunal’s error at T[18] and T[19]. It was obvious on the material. The transcript, the course of the hearing and the reasons for judgment show that the primary judge did not actively engage with the argument before him.

GROUND 1B: DENIAL OF PROCEDURAL FAIRNESS

69    That leaves the manner in which the Federal Circuit Court hearing was conducted.

70    The Minister filed an affidavit the day before the hearing. The appellant received it on the morning of the hearing. He made it clear during the hearing that he could not read it (given he could not read English) and that he did not know the content of the affidavit or the associated documents.

71    Notwithstanding this, the primary judge – having secured an indication from the appellant that he did not object – proceeded with the hearing.

72    Courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 at [16]. In circumstances where one party is unrepresented, the primary judge must take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court so that a fair trial is conducted: Hamod v New South Wales [2011] NSWCA 375 at [311]. See also the consideration of Hamod in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445.

73    In light of the fact that ground 3 succeeds, it is not necessary to determine whether the primary judge’s decision to proceed with the hearing even once the appellant had made clear that he had no opportunity to read the material received by him only that morning deprived the appellant of procedural fairness. It is sufficient for present purposes to say that, where appropriate steps are not taken to ensure that unrepresented litigants are informed of their procedural rights and obligations, the process of the court miscarries and the integrity of the court is undermined. It does not appear from the material that the primary judge informed the appellant that he could ask for more time to have the late served affidavit translated, and to consider its contents once translated.

74    There are three other matters concerning the conduct of the hearing by the primary judge which warrant comment. First, it was not appropriate to deny the appellant the opportunity of making submissions in relation to the “closed affidavit” and whether public interest immunity applied. There was no basis for dealing with that material without hearing the appellant’s position in relation to it. That was a denial of procedural fairness. It is not necessary to reach a conclusion about the consequences of it.

75    Secondly, whilst it was not shown to affect the outcome of the appeal in the circumstances of this case, it should be stated that it was wholly inappropriate to have shut the appellant out of making submissions on the law. The appellant had sought to make a submission in relation to the meaning of “refugee”. He was told not to make submissions on the law. The appellant afforded the primary judge respect and made no further attempt to make any submission on the law.

76    Thirdly, the cumulative effect of the matters adverted to cannot be overlooked. As Gageler J observed in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [186]:

Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.

77    Those observations were made in the context of legislation which affected the procedure of a court. They apply equally, if not more so, where the unfairness in procedure is generated by the court itself.

78    Finally, while the duty to afford procedural fairness ultimately falls on the judge, government parties should conduct themselves in a way befitting a model litigant. It may have been appropriate to indicate that, given the very late service of the affidavit, the appellant should be allowed time to consider the material properly in order that a fair hearing was afforded. Either the tender of the late served affidavit should have been withdrawn or a submission made to the court that consideration would need to be given to whether the hearing should be adjourned. It is not enough to say, as was submitted by the Minister on this appeal, that the affidavit was put before the primary judge and read out of an abundance of caution.

Procedural matters

79    As noted above, two procedural matters required attention: first, whether an extension of time in which to appeal should be granted; and secondly, whether leave should be granted to raise new grounds.

Extension of time

80    The appellant filed his application for an extension of time on 19 April 2018, together with an affidavit affirmed on 18 April 2018. The affidavit provided various reasons for the appellant’s failure to file a notice of appeal within the prescribed period. They included:

(1)    First, he had language and knowledge limitations. He could barely read, understand, write or speak English. He had friends in the Christmas Island Detention Centre roughly translate the decision for him. None of them had legal knowledge.

(2)    Secondly, he did not receive a guideline attached to the court decision, advising that he had a right to appeal.

(3)    Thirdly, he was isolated at the Christmas Island Detention Centre, with limited connection with the outside world and limited access to seeking legal assistance.

(4)    Fourthly, it took time for him to obtain assistance and support. When he informed his family that he would return to Vietnam in March 2018, they told him that if he came back, he would lose his life because the Vietnamese government was waiting for him. He spoke to a friend in Perth who introduced him to a migration agent who could speak Vietnamese. He contacted the referred migration agent in March 2018 to seek advice and assistance. That led to him being referred to his current barrister and solicitor and they commenced work on his case.

(5)    Fifthly, after he completed his application, it took him a while to get it witnessed by the Justice of the Peace who visits once weekly.

81    The appellant also filed a document titled “Draft Notice of appeal from the Federal Circuit Court of Australia”, identifying the proposed grounds of appeal on which he would rely, should an extension be granted. This was subsequently amended.

82    In considering whether to exercise the discretion to extend time under r 36.05 of the Federal Court Rules 2011 (Cth) (FCRs), and recognising that the Court’s discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26] (Siopis, White and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32] to [39], per Griffiths J (with whom Edmonds J agreed).

83    In the present case, the prejudice to the appellant was great and the prejudice to the Minister was not.

84    The application for an extension of time was filed on 19 April 2018. The appellant required an extension of some 188 days in which to appeal. This is a substantial delay, which weighs against the granting of an extension. However, there was some explanation for it.

85    For the reasons outlined above, the proposed appeal has merit and, indeed, should be allowed and this weighs heavily in favour of extending time. The extension of time is granted.

Leave to raise new grounds

86    The appellant’s proposed grounds of appeal include grounds that were not raised, or not clearly raised, before the Federal Circuit Court. The appellant therefore required leave to rely on those grounds: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. At least in a case of this kind where the consequences for an appellant in leave being denied are serious and might work a substantial injustice, leave will be granted if the proposed grounds have substantial merit and there is no real prejudice to the respondent in permitting them to be raised: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], per Kiefel, Weinberg and Stone JJ. There was sufficient merit in grounds 1A and 3 to warrant leave being granted. As noted above, the appellant did not require leave to raise ground 1B.

CONCLUSION

87    The appeal should be allowed.

Associate:

Dated:    23 August 2018