Federal Court of Australia

DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the appellant be permitted to file a notice of appeal be extended to 16 November 2020 and the notice of appeal annexed to the affidavit of Daniel Taylor filed on 16 November 2020 be taken as having been filed on that day.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the application for an extension of time and appeal.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant in this matter, who has been assigned the pseudonym DTP18, has applied for an extension of time in which to appeal a judgment of the Federal Circuit Court of Australia. In that judgment, the Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a protection visa.

2    For the reasons that follow, the appellant’s application for extension of time should be granted but his appeal should be dismissed.

Unsuccessful Visa application

3    The appellant is a citizen of Sri Lanka. He arrived in Australia on a boat in 2012 in circumstances which made him an “unauthorised maritime arrival” for the purposes of the Migration Act 1958 (Cth). The result was that he could not validly apply for a visa unless the Minister gave him a notice pursuant to s 46A(2) of the Act that allowed him to do so. The Minister gave the appellant such a notice and the appellant duly applied for a protection visa in August 2016.

4    The appellant claimed that Australia owed him protection obligations because he had a well-founded fear that he would be persecuted if required to return to Sri Lanka because: he is a Muslim; his father had been a well-known Muslim businessman; some people in Sri Lanka had, in the past, and would, in the future, perceive that he held or holds certain political opinions; and he would return to Sri Lanka as a failed asylum seeker who had departed the country illegally.

5    The appellant’s protection claims hinged to a large extent on some circumstances, events and incidents that the appellant claimed existed or had occurred prior to his departure from Sri Lanka. They included that: his father was a well-known businessman who had been involved in politics; his brother had been kidnapped in 2001 and had not been seen since; the appellant himself was abducted and physically and sexually assaulted in 2006 by some Buddhist monks who were said to be in “protest mode” and his report of that incident to the police was not acted upon; and he was severely beaten by four men in 2012 because, he believed, he had helped his uncle put up political posters for a political party and he is a Muslim.

6    On 2 November 2017, a delegate of the Minister refused to grant the appellant a protection visa. The delegate was not satisfied that the appellant met the criteria for a protection visa in ss 36(2)(a) and (aa) of the Act. It is unnecessary, for the purposes of this application and appeal, to consider the delegate’s reasons in great detail. It is, however, relevant to note that the appellant was represented by a migration agent in respect of his visa application.

7    The appellant’s unsuccessful visa application was referred to the Authority pursuant to the “fast track” review procedures in Pt 7AA of the Act which apply, relevantly, in the case of unauthorised maritime arrivals.

The Authority’s review and decision

8    The Authority conducted its review of the delegate’s refusal of the appellant’s visa application “on the papers” as required by s 473DB of the Act.

9    In its Decision and Reasons dated 25 June 2018, the Authority stated that it had regard to the review material given to it pursuant to s 473CB of the Act: Reasons at [3].

10    The Authority also noted that the appellant, through his migration agent, had provided the Authority with written submissions and a large volume of documentary material. The Authority gave detailed consideration to whether the material provided by the appellant was “new information” for the purposes of s 473DC of the Act and, if so, whether it could have regard to that material having regard to the terms of s 473DD of the Act. The Authority found, for the most part, that it was not satisfied that the requirements of s 473DD(a) of the Act had been met and that it therefore could not have regard to the new information: Reasons at [5]-[9]. The Authority did “get” and have regard to some new information, being information contained in a report from the Department of Foreign Affairs and Trade (DFAT) which updated an earlier report by DFAT which had been before the delegate: Reasons at [17].

11    The Authority made the following important factual findings concerning the appellant’s claims which are relevant to the proposed grounds of appeal.

12    First, the Authority accepted that the appellant had been abducted and physically and sexually assaulted, along with three other young boys, in April 2006: Reasons at [24]. The abductors spoke Sinhalese and wore Buddhist clothing. Importantly, however, the Authority was satisfied that this was a “random incident” and was not satisfied that the appellant was “targeted for the reasons he had speculated, including religion, politics, or family connections”: Reasons at [25].

13    Second, the Authority did not accept that the appellant was attacked by a group of men and severely physically assaulted in March 2012. While the Authority’s reasons for rejecting this claim are not entirely pellucid, it appears that it was not persuaded that two medical certificates which were relied on by the appellant materially corroborated his claims, was not satisfied that the appellant’s evidence concerning the incident, including his explanation for why he was “targeted”, was consistent or reliable and did not consider that the independent country information which was before the delegate supported the claim: see Reasons at [25]-[30].

14    Third, the Authority found, primarily on the basis of country information, that there was not a real chance that the appellant would face harm in Sri Lanka from Sinhalese Buddhists because he is a Muslim: Reasons at [39].

15    Fourth, and flowing mainly from the preceding three findings, the Authority was not satisfied that the appellant had a well-founded fear of persecution on account of his religion or perceived political opinions or for any other reason: Reasons at [46]. The Authority was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm: Reasons at [54]. The appellant accordingly did not meet the criteria for the grant of a protection visa in ss 36(2)(a) and (aa) of the Act: Reasons at [47] and [55].

Proceedings in the Circuit Court

16    The appellant applied to the Circuit Court for judicial review of the Authority’s decision. He was not legally represented in the Circuit Court. At the hearing of his application, he applied for an adjournment so he could obtain legal representation. That application was refused on the basis that the primary judge was not satisfied that the appellant had taken sufficient steps in the preceding 18 months to obtain legal representation: DTP18 v Minister for Immigration and Anor [2020] FCCA 416 (Judgment) at [4]-[5].

17    The appellant relied on one broad and generic ground of review, being that the Authority “made a jurisdictional error in the determination of [his] case”: see Judgment at [6]. No particulars of that ground were provided or relied on. It does not appear that the appellant advanced any coherent or probative submissions in support of his application. Not surprisingly, in those circumstances, the application was dismissed.

18    It is unnecessary to consider the primary judge’s reasons for dismissing the appellant’s application. That is because the appellant’s proposed grounds of appeal raise entirely new arguments and grounds that were not raised before, and were therefore not addressed by, the primary judge. The proposed appeal grounds do not engage at all with the primary judge’s reasons for judgment.

Extension of time application

19    The appellant filed his application for an extension of time two days after the prescribed time for the filing of a notice of appeal had expired. He adduced evidence in support of his extension of time application which sought to explain why he did not file within time. That evidence was to the effect that he had consulted a lawyer and believed that the lawyer was “instructed to lodge the case”, but that he later discovered that the lawyer was waiting for him to sign a costs agreement.

20    That is not a particularly satisfactory explanation. The Minister nevertheless effectively conceded that an extension of time should be granted in the circumstances as the delay was short and the Minister was not prejudiced in any way. The Minister should be commended for taking that sensible approach.

21    It is, in the circumstances, appropriate to grant an extension of time for the appellant to file his proposed notice of appeal. A draft of that notice of appeal was annexed to an affidavit sworn by the appellant’s solicitor and filed in this proceeding.

Leave to adduce further evidence

22    The appellant applied for leave to adduce further evidence in support of his appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), being evidence that was not before the Circuit Court. The further evidence comprised a transcript of the interview between the delegate and the appellant at the visa application stage.

23    Is not entirely clear why the appellant sought to rely on the transcript of his interview by the delegate. None of his proposed grounds of appeal appeared to rely on anything he said during that interview. Nor were any parts of the interview transcript referred to in the appellant’s written submissions concerning his appeal grounds. The interview transcript only rated a mention in the appellant’s oral submissions when the appellant was pressed to explain why he wanted to rely on the transcript.

24    The transcript should nevertheless be received in evidence. The Minister did not take issue with the accuracy of the transcript. It would appear from the Authority’s reasons that the Authority must have had a transcript of the interview before it as part of the review material which it was given pursuant to s 473CB of the Act. In those circumstances, it was a document that would, or should, have been included in the “court book” that was before the primary judge, at least if the appellant had requested that it be so included.

Leave to raise new grounds

25    As has already been noted, the appellant relied on one broad and generic ground before the primary judge. It was not surprising, in those circumstances, that his notice of appeal sought to raise entirely new arguments concerning the Authority’s decision which were not advanced in the court below. He accepted that he needed leave to rely on the appeal grounds that raised these new arguments.

26    Leave to raise new arguments on appeal should not too readily be granted, particularly in the case of appeals from the Circuit Court concerning the judicial review of migration decisions. That is because such a practice would be contrary to the legislative scheme in the Act which explicitly limits the Court’s original jurisdiction in such matters: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [14]. It has been said, in the context of appeals involving migration decisions by the Administrative Appeals Tribunal, that if the Court too readily permits appellants to raise new arguments on appeal, that would have the result that the Court would become, in effect, the “initial supervisory court in relation to the Tribunal’s decision, contrary to the express intention of the Migration Act”: Minister for Immigration and Border Protection v Aulakh (2018) 265 FCR 143 at [107]. The same reasoning applies in the case of appeals from the Circuit Court in respect of decisions made by the Authority.

27    The appellant’s explanation for why he did not at first instance raise any of the arguments he now wishes to raise on appeal is that he was unrepresented in the Circuit Court. That is not an adequate or satisfactory explanation, particularly given the primary judge’s finding, in response to the appellant’s adjournment application, that the appellant had done little in the 18 months prior to the hearing to obtain legal assistance.

28    The Minister did not suggest that he suffered any prejudice because the appellant’s new arguments were not raised in the Circuit Court. He did not suggest that any of the arguments could, if they had been raised below, have been met by evidence adduced by the Minister. In those circumstances, the Minister submitted that the question whether leave should be granted hinged largely on the merits of the proposed appeal grounds. Obviously the Court would be more willing to grant leave to raise new arguments if the arguments appeared, at least at an impressionistic level (cf MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [66]), to have some merit or to be at least reasonably arguable. There could, conversely, be little reason to grant leave if the new grounds could readily be seen to have little or no merit.

29    It is, in those circumstances, necessary to give some consideration to the merits of the appellant’s proposed appeal grounds before finally determining whether he should be granted leave to raise them.

Ground 1A – Alleged failure to consider a claim

30    Proposed appeal ground 1A is that the Authority failed to assess “a claim arising squarely on the materials”, being a claim that the appellant “faced a real risk of serious and significant harm through the stigma of being a rape victim”.

31    It may be accepted that a failure on the part of the Authority to consider a claim made by the appellant in support of his visa application may constitute a jurisdictional error: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]; see also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [68]. The difficulty for the appellant, however, is that he never made any claim along the lines of the claim he now says that the Authority ignored. Nor is any such claim apparent in, or revealed by, anything in the review material which was before the Authority.

32    The appellant’s arguments in relation to this ground relied entirely on one passage in one country report that was said to be before the Authority. He argued that the relevant passage clearly raised a claim that the appellant would be harmed if returned to Sri Lanka because of the stigma that attached to him as a victim of rape.

33    There are at least two fundamental problems with the appellant’s reliance on the relevant passage in the report in question.

34    The first problem is that the country report in question was not relevantly before the Authority for the purposes of its review. It was included in the material that the appellant sent to the Authority, but the Authority did not accept that anything in the report constituted “new information” that it was entitled to have regard to pursuant to s 473DD of the Act: Reasons at [13]. The appellant did not challenge this aspect of the Authority’s decision.

35    The second problem is that the particular passage in the report relied on by the appellant did not, in any event, disclose, reveal or support any such claim. The passage simply included a statement to the effect that cases of “torture of [men, women and juveniles] of a sexual nature in custody” are “not investigated or prosecuted, and may remain underreported owing to stigma”. That statement does not disclose, reveal or support a claim by the appellant that he was at risk of harm in the future in Sri Lanka as a result of any stigma that may attach to him as a past victim of sexual assault.

36    In those circumstances, the claim now asserted by the appellant did not arise at all in the materials, let alone “squarely” on the materials: NABE at [58]. Rather, it is a claim that has been creatively conjured up from the materials by the appellant’s legal advisers. It was not adverted to by the appellant, either before the delegate or in his written submissions to the Authority.

37    It follows that proposed appeal ground 1A has no merit.

Ground 1B - Unreasonable factual finding

38    Proposed appeal ground 1B is, in substance, a challenge to the Authority’s finding that the incident of sexual assault suffered by the appellant was a “random incident” and that it was not satisfied that the appellant was “targeted for the reasons he has speculated, including religion, politics, or family connections”: Reasons at [25].

39    The appellant argued that those findings were legally unreasonable. He also argued, in the context of this proposed appeal ground, that in arriving at the relevant findings, the Authority ignored certain country information, failed to have regard to the supposed difficulties the appellant had in articulating his claim in relation to the sexual assault and that the Authority should have exercised its discretion to get new information in relation to this claim.

40    There is no merit in the appellant’s contention that the Authority’s findings concerning the sexual assault were legally unreasonable.

41    It is unnecessary to give any detailed consideration to the relevant principles concerning legal unreasonableness. It may relevantly be accepted that legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]. The appellant’s argument was, in essence, that the Authority’s factual finding that the incident of sexual assault suffered by the appellant was a “random incident” was legally unreasonable because it was either illogical, or irrational, or was not based on probative material or was not reasonably open on that material.

42    Illogical or irrational findings made by a decision-maker “on the way” to a final conclusion may establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [54]. Illogicality or irrationality in this context, however, must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [61]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

43    For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]. The “critical question” whether an administrative decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [14]-[15].

44    The Authority gave fairly detailed reasons for finding that the assault was random and that the appellant was not targeted as a result of religion, politics or family connections: see in particular Reasons at [24] and [25]. It is unnecessary in the circumstances to discuss the Authority’s reasons in any detail. It suffices to say that the Authority’s reasons hinged mostly on its assessment of the account of the assault that the appellant gave before the delegate, including his beliefs as to why he had been targeted, together with the Authority’s assessment of the country information concerning attacks on Muslims perpetrated by Sinhalese Buddhists in Sri Lanka. The Authority reasoned that the appellant had been unable to give much detail about his attackers or their apparent motivation. It also noted that the country information before it suggested that violence perpetrated by Sinhalese Buddhists against Muslims tended to occur at political rallies, rather than in random attacks of the sort described by the appellant.

45    It would perhaps be fair to say that some people, obviously including the appellant himself, may not consider the Authority’s reasoning in relation to its factual findings concerning the sexual assault of the appellant to be particularly persuasive or compelling. The reasoning and findings by the Authority nevertheless could not be described as illogical or irrational. It may also perhaps be accepted that other decision-makers may have made different findings concerning the relevant incident. It cannot, however, be accepted that the findings were not open on the material before the Authority, or that no rational or reasonable decision-maker could have made the findings that were made by the Authority.

46    The fact that other decision-makers may have reasoned differently, or may reasonably have arrived at different conclusions concerning the motivations of the appellant’s attackers or the reasons that he was sexually assaulted, does not mean that the Authority’s findings were illogical, irrational or legally unreasonable. Indeed, quite to the contrary. The Authority’s reasoning in relation to the sexual assault does not display the sort of extreme or serious irrationality, illogicality or unreasonableness that is necessary to support a finding of jurisdictional error. The Authority’s findings concerning the incident were at least reasonably open on the material before it and not open to challenge in judicial review proceedings.

47    As for the appellant’s other arguments in support of this ground, the claim that the Authority failed to have regard to certain country information did not rise higher than bare assertion and amounted to nothing more than arguments about the merits of the Authority’s findings. It was a matter for the Authority to determine what country information was material and deserving of weight in making its factual findings. The fact that the Authority may not have specifically referred to some of the country information which the appellant contended may have supported his claims does not mean that the Authority relevantly failed to have regard to that information. It may simply mean that the Authority did not consider that information to be particularly material or important. The appellant was unable to point to any specific country information that necessarily compelled a conclusion contrary to the one reached by the Authority.

48    The appellant’s claim that the Authority failed to consider the difficulties that the appellant had supposedly faced in articulating his claims is equally unmeritorious. There was no evidence that the appellant faced any particular difficulties in giving his account of the relevant incident to the delegate. He did not include that claim in his written submissions to the Authority. Nor is there anything in the Authority’s reasons which is capable of supporting the appellant’s contention that the Authority somehow erred in assessing the transcript of the appellant’s interview with the delegate.

49    Finally, the assertion that the Authority erred in unreasonably failing to exercise its discretion to get new information from the appellant to clarify his claims went well beyond the terms of the proposed appeal ground. More significantly, the suggestion that the Authority was effectively compelled to give the appellant an opportunity to clarify his claims in relation to the assault is fundamentally at odds with the statutory scheme for the Authority’s review of fast track decisions. As discussed earlier, the statutory scheme provides that the Authority’s review is generally to be conducted on the basis of the review material and that the Authority must not consider any new information unless it is satisfied, amongst other things, that there are exceptional circumstances: s 473DD of the Act. The appellant failed to demonstrate that the unspecified information that he may have given to clarify his claim relating to the sexual assault met any of the criteria in s 473DD of the Act.

50    It follows that proposed appeal ground 1B has no merit. The Authority did not err in the way alleged by the appellant.

Ground 3 – Unreasonable rejection of corroborative value of medical certificates

51    Proposed appeal ground 3 was that the Authority “unreasonably rejected the corroborative value” of medical certificates issued by a doctor, supposedly following the alleged March 2012 assault.

52    The fundamental problem with this proposed ground is that it cannot be accepted that the Authority’s finding that the medical certificates provided little, if any, corroboration of the incident described by the appellant was in any sense unreasonable. The medical certificates were, on just about any view, not capable of corroborating the appellant’s claims concerning the alleged incident in March 2012 in any material respect.

53    The first certificate, dated 25 February 2013, referred to the appellant being treated in hospital between 15 March 2012 and 29 March 2012 for a “disorder” in his right leg. The second, dated 27 November 2016, referred to the appellant being treated as an inpatient from 16 March 2012 to 2 April 2012 “for injuries caused by burns”. The Authority reasoned that it considered that the appellant “would have received more significant medical attention than that indicated by the medical certificates” given the alleged severity of the assault: Reasons at [26].

54    The Authority’s findings in relation to the minimal corroborative value of the medical certificates were plainly open to it. The certificates were both issued well after the incident in question and contained virtually no detail concerning the injuries for which the appellant was being treated. They certainly did not contain any information consistent with the injuries that the appellant was likely to have sustained if he had been as severely beaten as he had claimed he had been. It should also be noted that the hospitalisation or treatment dates in the two certificates also did not entirely correspond.

55    Even if it could be said that reasonable minds might differ as to the corroborative value of the medical certificates, that would not establish that the Authority’s findings concerning the March 2012 incident were legally unreasonable. The Authority’s reasoning and conclusions do not display or reveal the sort of extreme illogicality or irrationality that could support such a finding.

56    In any event, the Authority’s reasons for not accepting the appellant’s account of the alleged assault in March 2012 went well beyond its findings concerning the limited corroborative value of the medical certificates. The medical certificates certainly did not compel a finding that the incident as described by the appellant must have occurred. Even if there was some merit in the appellant’s arguments concerning the Authority’s consideration of the medical certificates, it is difficult to see how it could be said that any such error was material, in the sense that “compliance [with the requirement of reasonableness in relation to the treatment of the medical certificates] could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45].

57    All in all, this proposed appeal ground really amounts to little more than an attempt to challenge the Authority’s factual finding in relation to the March 2012 incident. It has no merit.

Ground 4 – Failure to make an obvious enquiry

58    Proposed appeal ground 4 is that the Authority “made a jurisdictional error in failing to consider making an obvious enquiry”. The appellant contended that the Authority unreasonably failed to “consider requesting evidence from the [appellant] about any scarring on his leg from the 2012 incident or any new medical evidence which might be corroborative of the claim”. While the proposed appeal ground itself was couched in terms of failure to make an enquiry, the appellant’s submissions tended to focus on the contention that the Authority unreasonably failed to exercise its discretion to get “new information” pursuant to s 473DC of the Act.

59    There are a number of fundamental difficulties with this proposed ground, both as pleaded and as argued.

60    First, to the extent that the appellant relied on the line of authority, commencing with the High Court’s decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15, concerning jurisdictional error in cases where there had been a failure by the Refugee Review Tribunal to make obvious enquiries, the applicability of the line of authority to fast track reviews under Pt 7AA of the Act has been described by the Full Court as, at best, “questionable”: DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [72].

61    Second, even if the principles considered in SZIAI are applicable in the circumstances of this case, it cannot be accepted that “requesting evidence from the [appellant] about any scarring on his leg”, or requesting “any new medical evidence which might be corroborative of the claim” (emphasis added), were “obvious enquiries” that a valid exercise of jurisdiction required the Authority to make. The appellant had been asked questions by the delegate about the 2012 incident and could have given evidence about any scarring on his leg, or referred to other medical evidence, that he considered to be important or corroborative of his claims. He did not do so. Equally, the appellant could have adverted to those matters in his written submissions to the Authority, or even requested the Authority to get new information about them. He did not do so. Finally, there was no evidence that the appellant in fact had any scarring, or that there was any “new medical evidence” which was capable of corroborating his claims concerning the 2012 incident.

62    It was a matter for the appellant to articulate fully his claims in support of his protection visa application. It was not, in all the circumstances, up to the Authority to request the appellant to give further evidence about any scarring on his leg, or to provide any additional medical evidence that he had not provided to the delegate.

63    Third, to the extent that the appellant’s case depended on the contention that the Authority unreasonably failed to get “new information” in the form of further evidence from the appellant, that contention has no merit.

64    There could be no doubt that the Authority’s powers to get and consider new information are “conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness”: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 at [3] and the cases cited therein. It can also be accepted that there may be circumstances in which it would be legally unreasonable for the Authority to fail to consider exercising its discretion under s 473DC: see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] and the cases cited therein. There must, however, be some factual foundation from which it can be inferred that the Authority failed to consider exercising its discretion: see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at [41]. And even if it can be inferred that the Authority failed to consider exercising the discretion in s 473DC, that does not necessarily amount to an error, let alone a jurisdictional error: DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [37]-[39].

65    In the particular circumstances of this case, even if it may be accepted that the Authority failed to consider exercising its discretion to get new information, in the form of evidence from the appellant about scarring to his leg, or new medical evidence, it cannot be concluded that that failure constituted or amounted to an error, let alone a jurisdictional error. That is so for a number of reasons, including that there was, and is, no indication as to the content of that “new information”; or how that new information may have assisted the appellant; or why it had not been referred to by the appellant when he was interviewed by the delegate; or why the appellant, in his submissions to the Authority, did not request the Authority to get that new information; or how that new information would have satisfied the criteria in s 473DD of the Act; or even why, in all circumstances, it was unreasonable in any sense for the Authority not to get that unspecified new information.

66    The course that the appellant contends that the Authority should have taken is fundamentally at odds with the statutory scheme in relation to fast track reviews by the Authority. It is not generally incumbent on the Authority, if it doubts elements of a referred applicant’s claims, to request the applicant to give further or better evidence about his or her claims. That is what the appellant effectively contends the Authority should have done in his case.

67    It follows that proposed appeal ground 4 has no merit.

Should leave to raise these grounds be granted?

68    This question is, in a sense, rather academic. That is because, even if leave were to be granted, the appeal would in any event be dismissed because, for the reasons already given, none of the grounds have any merit. The point, however, is that appellants and their lawyers should be given no encouragement to do what the appellant in this case did.

69    The appellant appears to have made no attempt to retain a lawyer in the Circuit Court or articulate any proper or arguable grounds of review. His failure to retain a lawyer in the Circuit Court remained entirely unexplained. He then retained a lawyer for the purposes of his appeal. That lawyer reviewed the Authority’s decision and the review material and conjured up grounds of challenge to the Authority’s decision that were not even hinted at before the primary judge. If the appellant is permitted to raise what is, in reality, an entirely new case on appeal, that would fly in the face of the statutory regime for the review of migration decisions which specifically denies jurisdiction to this Court in first instance judicial review applications.

70    Despite that powerful reason for refusing leave, the preferable course in this case, in all circumstances, is to grant leave to the appellant to raise the new appeal grounds. That is because the new arguments and the grounds of appeal based on them were all fully argued. As has a ready been noted, however, the result is, in any event, the same whether leave is granted or not. For the reasons already given, none of the grounds of appeal have been made out. The Authority did not make any of the jurisdictional errors alleged by the appellant.

Conclusion and disposition

71    The appellant should be granted an extension of time to file a notice of appeal in the form annexed to the affidavit of Daniel Taylor dated 16 November 2020. The appellant should also be granted leave to argue the appeal grounds in that notice of appeal, despite the fact that none of them were argued at first instance in the Circuit Court.

72    None of the grounds of appeal have been found to have any merit. None of them have been made out. There is no basis for concluding that the Authority made any of the jurisdictional errors alleged by the appellant in his notice of appeal. The appeal must accordingly be dismissed with costs.

Associate:

Dated:    4 February 2021