Federal Court of Australia

ERE18 v Minister for Home Affairs [2021] FCA 997

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to file and serve an amended draft notice of appeal deleting the existing draft grounds of appeal and substituting them with a new ground based on the contention that the Immigration Assessment Authority (IAA) wrongly failed to inquire into the applicant’s medical condition and whether as a result of it he would face a real risk of suffering significant harm if returned to Lebanon.

2.    The applicant file and serve his amended draft notice of appeal by 27 August 2021.

3.    The first respondent file and serve a supplementary application book containing the protection visa interview transcript, the DFAT Country Information Lebanon Report dated 23 October 2017, and any other documents that were before the IAA relevant to the new draft ground of appeal referred to in order 1 by 15 September 2021.

4.    The applicant file and serve any evidence sought to be relied on by him in support of the new draft ground of appeal in addition to what is it the application book and supplementary application book by 29 September 2021.

5.    The applicant file and serve written submissions (of no more than 10 pages, clearly legible, at least one and a half line spaced in 12 pt font) in support of his application for an extension of time and the new draft ground of appeal and a list of authorities by 15 October 2021.

6.    The first respondent file and serve written submissions in response (of no more than 10 pages, clearly legible, at least one and a half line spaced in 12 pt font) and a list of authorities by 22 October 2021.

7.    The parties jointly provide to the associate of Stewart J an electronic joint bundle of the parties’ Part A and Part B authorities (not separated between Part A and Part B authorities) with an index, word searchable, with the case authorities arranged in alphabetical order and each authority being a separate PDF document (not a merged document) by 27 October 2021.

8.    The first respondent’s wasted costs caused by the adjournment to be paid by the applicant.

9.    The matter is listed for hearing on 29 October 2021.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J:

1    On 11 November 2019, the applicant filed an application for an extension of time in which to file a notice of appeal against the decision of the Federal Circuit Court of Australia in a migration matter. The decision of the Circuit Court was to dismiss a review of a decision of the Immigration Assessment Authority to refuse the applicant a protection visa. The matter has only come before the Court now because of delays caused by the COVID-19 pandemic – the applicant was until recently self-represented and required an interpreter, and therefore a hearing by remote access technology was not feasible. The applicant is now represented.

2    On 14 November 2019, a registrar of this Court made orders dealing with the programming of the matter for ultimate hearing. Order 4 on that day provided that no later than 10 business days before the hearing date, the applicant file and serve a written outline of submissions, and order 7 provided that outlines of submissions were not to exceed 10 pages in length, including any annexures, and to be easily legible using a font size of at least 12 points and one and a half line spacing throughout.

3    No submissions were filed in time by the applicant, despite enquiry by the Minister’s solicitor of the applicant’s solicitor. No response was apparently received to these enquiries. On 12 August 2021, the Minister filed submissions responding to the grounds in the applicant’s draft notice of appeal, which was annexed to his affidavit filed with the application for an extension of time. On 13 August 2021, the applicant served, but did not file, submissions and a proposed amended draft notice of appeal. The submissions run to some 14 pages of single-spaced type and include lengthy annexures. They are, therefore, contrary to the orders of 14 November 2019 in that respect, as well as being late. The submissions raise a ground of appeal which is, in some respects, different to anything argued before the Circuit Court with the result that the applicant requires leave to rely on that ground.

4    The ground of appeal is expressed as being that the Circuit Court erred in failing to find that the Authority had made a decision that was so unreasonable that no reasonable person would have made it. It is apparent from the particulars to that ground and, more particularly, from the explanation of the ground in the submissions that there are three aspects to the proposed new ground of appeal.

5    Each particular is against the backdrop of a contention by the applicant that he has a serious heart condition, a consequence of which is that if he was returned to Lebanon, his receiving country, he would not have adequate medical care and would, as a consequence, face a real risk of suffering significant harm.

6    The three elements to the ground of appeal are said to be: first, that it relates to his claim for complementary protection but was dealt with by the Authority under that aspect of his claim relating to refugee status; secondly, that there was, effectively, a failure by the Authority to inquire into his medical condition or the circumstances of medical care in Lebanon, or both; and, thirdly, that the Authority relied exclusively on what was described as a stale, generalised country report which proved inadequate to deal with the specific claim advanced by the applicant relating to the capacity of the Lebanese health system to provide for his specific health needs.

7    The first of those grounds appears hopeless because at [22] and [23] of its decision, the Authority dealt with the applicant’s complaint about medical treatment in Lebanon in the context of complementary protection under s 36(2A) of the Migration Act 1958 (Cth). It is true that the Authority also dealt with that claim in the context of refugee status (at [17]) under s 36(2)(a) of the Act, but it cannot reasonably be contended that the Authority failed to consider the complaint in the context of complementary protection.

8    The third, on its own, as opposed to possibly something to support the second, would also appear to be hopeless for the following reason. The Authority’s decision in August 2018 relied on an October 2017 Department of Foreign Affairs and Trade (DFAT) report. The applicant’s submissions contend that the 2017 DFAT report is outdated and has been superseded by the 2019 DFAT report as well as other general information found on the DFAT website. One also gathers from the news that things have deteriorated very substantially in Lebanon in recent times. But nothing that occurred subsequent to the Authority’s decision, including publication of the 2019 DFAT report, can be relied on in review of the decision.

9    That leaves the second possible element to the ground of appeal. There may be something in it, but that may depend on what was before the Authority. Given that this is an application for an extension of time, there is only a limited application book before the Court. I have in mind, therefore, to grant leave to the applicant to amend his draft notice of appeal by deleting the existing grounds and substituting for them a new ground of appeal which accords with the second element of the ground I have identified in his submissions. Also, as the orders will make plain, I intend to provide for the application book to be supplemented by further documentation that may be relevant to that proposed ground of appeal, the purpose being to be able to deal with the application for an extension of time and, if an extension is granted, the appeal all in one hearing.

10    In case it is not clear, I have not decided that the applicant has leave to rely on the identified ground of appeal in the event that an extension of time is granted. It is both the question of an extension of time and the question of leave to rely on a new ground of appeal that have to be decided. If those questions are decided in the applicant’s favour, then the appeal itself will be dealt with, the idea being that all three questions will be heard and determined together.

11    The Minister, with justification, says that she is not in a position to deal with the new ground today given how late it was raised. In view of the importance of the matter to the applicant’s status, I am not satisfied that the application should simply be dismissed. Rather, the applicant should have the opportunity to pursue the relief that he seeks. The matter accordingly has to be adjourned.

12    All the responsibility for the adjournment lies on the applicant’s side of the case. I am not in a position to tell whether any of it lies with the applicant himself or whether it all lies with his representatives. That is something the applicant will have to take up with his representatives. Insofar as the appropriate costs order is concerned, the applicant is to pay the Minister’s wasted costs caused by the adjournment.

Associate:

Dated:    20 August 2021