FEDERAL COURT OF AUSTRALIA

CWD16 v Minister for Immigration and Border Protection [2018] FCA 578

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the Notice of Appeal filed 18 April 2017 is refused.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding arrived in Australia on 10 October 2012 as an unauthorised maritime arrival. He is an ethic Tamil of the Hindu faith and a citizen of Sri Lanka.

2    In January 2016, he lodged an application with the Department of Immigration and Border Protection for a Safe Haven Enterprise (subclass 790) visa. In doing so, he claimed to fear persecution on the basis of (inter alia) his Tamil ethnicity. A delegate of the Minister refused that application on 15 July 2016.

3    On 9 September 2016, the Immigration Assessment Authority (the “Authority”) affirmed the decision not to grant the visa. In preparing the application to the Authority, the Appellant had the benefit of legal advice.

4    That process of review was undertaken pursuant to Pt 7AA of the Migration Act 1958 (Cth), namely that Part of the Act dealing with the review of “fast track reviewable decisions”.

5    In October 2016, the Appellant filed an Application in the Federal Circuit Court of Australia seeking review of the decision of the Authority. The three Grounds then relied upon were expressed as:

    a failure “to consider an integer of the applicant’s claim” – the Particulars focussing upon his attempts to leave Sri Lanka, his detention and a breach of the bail conditions imposed upon his release;

    a failure “to give reasons for a particular finding”; and

    a failure “to consider an integer of the applicant’s claim” – the Particulars focussing upon his political involvement with the Tamil National Alliance.

The Application to the Federal Circuit Court was prepared by a solicitor.

6    The Application came on for hearing before that Court on 28 March 2017. The now-Appellant was then legally represented by a solicitor. The Respondent Minister was represented by counsel. On the same day, the Federal Circuit Court granted leave to amend the application and thereafter proceeded to deliver oral reasons dismissing the amended application with costs: CWD16 v Minister for Immigration and Border Protection [2017] FCCA 603. Written reasons were later prepared and certified on 20 April 2017.

7    The Appellant then filed in this Court on 18 April 2017 a Notice of Appeal identifying the sole Ground of Appeal as follows:

The Federal Circuit Court Judge made a legal error in dismissing my case. His honour failed to consider the grounds raised and failed to consider integers of my claims.

Particulars

a.    No reason for dismissing my application has been published at the time of filing this application, I am unable to formulate the grounds of appeal.

b.    Details will be provided once reasons are published.

The Notice of Appeal as filed was apparently prepared by the Appellant himself and not by his former legal representatives.

8    In late December 2017, the appeal was set down for hearing in this Court on 21 February 2018.

9    On 14 February 2018, Counsel then retained by the Appellant filed and served written submissions foreshadowing an application to be made to rely upon a Draft Amended Notice of Appeal, relying upon the following new Ground:

PROPOSED GROUND ONE:

His Honour in the Court below erred in failing to discern jurisdictional error where the Assessor had breached section 473DD of the Migration Act.

Particulars

The Assessor had breached section 473DD of the Act in circumstances where the Assessor had misdirected itself as to the significance of a medical report advanced by the Applicant, which was clearly new information as defined in section 473DC of the Act, without applying the test contained in section 473DD of the Act.

10    In seeking leave to amend, Counsel for the Appellant expressly abandoned reliance upon the existing sole Ground of Appeal.

The need for leave

11    The written submissions filed by Counsel for the Appellant were correct in submitting that leave to amend was required.

12    The rules regulating appeals to this Court are found within Pt 36 of the Federal Court Rules 2011 (Cth).

13    Within that Part, r 36.03 provides as follows:

Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a)    within 21 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

14    Also within Pt 36, r 36.10 provides as follows:

Amendment to notice of appeal

An appellant may, without the Court’s leave, amend a notice of appeal during the period of 28 days after filing the notice of appeal by filing a supplementary notice of appeal in accordance with rule 36.01.

15    Although the Notice of Appeal in the present proceeding was filed within the 21 days prescribed by r 36.03, the proposed amendment was not made within the 28 day time limit prescribed by r 36.10.

16    As the terms of r 36.10 make clear, the Court retains a discretion to grant leave to amend outside the 28 day time limit there prescribed. That discretion is oft invoked where an appellant seeks to amend a Notice of Appeal to raise arguments which were not previously relied upon before the primary Judge. The “key consideration” in such circumstances is “whether it is expedient in the interests of the administration of justice to allow a new argument to be raised on appeal”: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [81] per Gilmour and Mortimer JJ.

17    The particular statutory context in which an appeal to this Court now arises also assumes importance, that context being Pt 7AA of the Migration Act. Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). In providing a “[s]implified outline” of Pt 7AA, s 473BA provides that the Part “provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals”. The history of some of the key provisions of that Part have been summarised by Griffiths J in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [12] to [27]. That history need not be repeated. The terms of Pt 7AA, it may also be noted at the outset, are significantly different to those set forth in Pt 7: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69] per Reeves, Robertson and Rangiah JJ.

18    Also of relevance is the limited jurisdiction entrusted to this Court by reason of s 476A of the Migration Act.

19    With reference to the limitations imposed by s 476A and the prospect of arguments being raised in the appellate jurisdiction of this Court which could not be raised in its original jurisdiction by reason of s 476A, Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804, (2015) 231 FCR 452 at 455 said as follows:

The role of this Court

[14]    One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the [Migration Act] explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

Care must thus be taken to ensure that this Court does not, under the guise of exercising its appellate jurisdiction, exercise what is in substance an original jurisdiction which it does not possess.

Jurisdictional error – ss 473DC & 473DD

20    The two sections of the Migration Act relied upon in the proposed new Ground of Appeal are ss 473DC and 473DD. Those sections also form part of Pt 7AA of the Migration Act.

21    Section 473DC provides as follows:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

22    Section 473DD of the Migration Act provides as follows:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

23    The limited circumstances in which the Authority may consider “new information” received specific attention in the Explanatory Memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [54] Robertson, Murphy and Kerr JJ helpfully extracted the following parts of that Explanatory Memorandum:

A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.

…

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

…

The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.

The new information

24    The information relied upon by Counsel for the Appellant as constituting “new information” for the purposes of s 473DC was a report about the Appellant dated 9 August 2016 from a Specialist Surgeon and Endoscopist.

25    That report stated in part as follows (without alteration):

On examination, he has a scar on his left cheek (7 years old from the ring of a hand slapping him). Both great toenails are deformed consistent with past damage (7 years old also). On his right calf medially there is a large injure from a pipe filled with concrete hitting him whilst hanging by his ankles. There are also scars on his ankles from the ropes whilst hanging.

There is an injury to his left upper thigh from boot kicking and this was fixed surgically. He has multiple scars on his back on both sides from a knuckle duster with sharp points. He also has small chest scars from bare fist punches.

The 9 August 2016 report came before the Authority by reason of it being provided by the now-Appellant in support of the application being made.

26    Having so received the report, the Authority dealt with it as follows:

Information before the IAA

5.    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

6.    Submissions have been provided to the IAA which make arguments on behalf of the applicant as to why the decision of the delegate was wrong. These do not seek to introduce new information and I have considered them.

7.    The applicant has also provided a report dated 9 August 2016 from a medical professional. To the extent that the report recounts elements of the applicant’s claims, it does not constitute new information and I have considered it. The final two paragraphs of the report contain observations concerning scarring on the applicant’s body, including how the scarring was caused. This, together with other elements of the report simply recount the applicant’s own claims and do not appear to superimpose a medical opinion in relation to causation.

8.    Accordingly, as the claim concerning physical scarring was raised before the delegate, this also does not constitute new information and I have considered it.

Thereafter, and when considering whether the now-Appellant had a “well-founded fear of persecution”, the Authority again briefly referred to the report as follows:

20.    I accept the evidence to the effect that the applicant bears some physical scarring, and that this may have been caused during the physical mistreatment the applicant claims to have been subjected to in his three-month period of detention in 2009-2010.

The refusal of leave to amend

27    The two factors which most clearly support a grant of leave to amend the Notice of Appeal are:

    the fact that the new argument sought to be raised does not involve the need to hear any further evidence but rather centres upon the Authority’s characterisation of the medical report and the construction of s 473DD; and

    the mandatory terms in which s 473DD is expressed.

28    Notwithstanding the force of those two factors, it is ultimately concluded on balance that leave to amend should be refused because:

    the application to amend is not supported by any affidavit setting forth any reason for seeking leave to amend or any explanation as to why the new argument sought to be raised on appeal was not previously relied upon;

    although the Appellant was not represented by Counsel before the Federal Circuit Court, he was represented by a solicitor;

    there is an absence of any explanation for the delay in proposing to amend the existing Notice of Appeal, the appeal having been set down for hearing in late December 2017 and the proposed amendment not being foreshadowed until shortly before the hearing of the appeal; and

    the facts relied upon to support the proposed new argument placing reliance upon s 473DD of the Migration Act do not expose any self-evident error in the manner in which the Authority dealt with the 9 August 2016 report – the characterisation by the Authority of that report as not constituting “new information” and as “simply recount[ing] the applicant’s own claims” was an assessment consistent with the claims being made.

Also of relevance is the fact that the grant of leave to amend in the circumstances of the present case would have a tendency to:

    prejudice the scheme of Pt 7AA of the Migration Act by occasioning delay in the resolution of “fast track reviewable decisions” (s 473BA); and

    impermissibly seeking to transfer into this Court when exercising its appellate jurisdiction a solitary argument that it could not have entertained in its original jurisdiction – that tendency only being underlined in the present proceeding by reason of the abandonment of the only existing Ground of Appeal which was otherwise relied upon in support of invoking the appellate jurisdiction of this Court.

Also of relevance is the fact that:

    irrespective of Pt 7AA of the Migration Act, there is a legitimate public interest in cases of the present kind being resolved as expeditiously as a proper consideration of the case permits: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 192 ALR 71 at 86 per Gyles J; SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [55], (2014) 226 FCR 68 at 85 to 86 per Flick J; SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [46] per Burley J.

29    The correct construction and application of ss 473DC and 473DD are expressly not resolved. It is sufficient for the purposes of refusing leave to amend to conclude that the Authority had not misled itself “as to the significance of a medical report” in any manner which was self-evident. Indeed, the manner in which it treated that report was one supported by the manner in which the claimant had presented his claims. It may nevertheless be observed that:

    it ill behoves an applicant seeking review by the Authority to provide to that Authority information which is presumably perceived as being in support of the claims being made and relied upon by the applicant and thereafter to seek to rely upon the very act of providing the information as the basis for contending that the Authority thereby contravened s 473DD. Presumably had the Authority made a favourable assessment, reliance upon a contravention of s 473DD would not have been further mentioned; in the event of an adverse assessment, however, the applicant would be free to rely upon his own act of leading the Authority into error as a basis for impugning the Authority’s adverse decision; and

    it is not self-evident that the 9 August 2016 report constituted “new information”, but left open is the question as to whether it is for the Authority alone to make an assessment as to what constitutes “new information” for the purposes of s 473DC.

CONCLUSIONS

30    The application for leave to amend is refused. The discretion to grant leave is to be exercised adversely to the Appellant.

31    The only other Ground relied upon in the Notice of Appeal as first filed has been abandoned. The appeal should thus be dismissed.

32    There was agreement between Counsel for the parties that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The application for leave to amend the Notice of Appeal filed 18 April 2017 is refused.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    27 April 2018