Federal Court of Australia

CSZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 353

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), the second applicant ceases to be a party to the proceeding with immediate effect, and henceforth the first applicant is styled the applicant.

2.    The application for an extension of time is dismissed.

3.    The applicant must pay the first respondent's costs of the application.

4.    By 4.00 pm on 20 April 2022, the applicant and the first respondent must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs of the application.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for an extension of time to appeal against a judgment of the Federal Circuit Court of Australia (as it was at the time of the decision).

2    The first applicant is a citizen of Vietnam who applied for a protection visa. The second applicant is his son, who was born in Australia on 11 August 2018. The applicants were unsuccessful before a delegate of the first respondent (Minister), then the Immigration Assessment Authority, then the Federal Circuit Court.

3    For the following reasons, the application for an extension of time to appeal will be dismissed. Before addressing the merits of the application, however, it is necessary to resolve a question as to whether the second applicant should remain a party to the proceeding.

Removal of the second applicant

4    The day before the hearing, the parties sent a signed minute of consent order to the Court which provided for the appointment of the first applicant as the second applicant's litigation representative for the purposes of the proceeding. But at the beginning of the hearing, before the order was made, the first applicant instructed his counsel that he wanted the second applicant to be removed as a party from the proceeding. The Minister opposed that course, although his counsel acknowledged that he had not had time to consider it properly. In view of the importance of the proper constitution of the proceeding, I required each party to provide short written submissions on the point within seven days after the hearing.

5    The first applicant submits that the second applicant should be removed as a party pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), which permits a party to apply for an order that 'a party that has been improperly or unnecessarily joined as a party, or has ceased to be a proper or necessary party, cease to be a party'. The first applicant submits that because the second applicant is a minor, and so under a legal incapacity, 'there must be some doubt' about whether the matter can or should proceed with him as a party. He effectively submits, without citing authority, that it is only in exceptional circumstances that the discretion to remove a party for that reason should not be exercised.

6    The Minister maintains his opposition to the removal of the second applicant. He submits that the second applicant was taken to have been included in the first applicant's visa application by reason of reg 2.08 of the Migration Regulations 1994 (Cth) and was named as the subject of the decisions made by the delegate of the Minister and by the Authority. He was named as a party in the Federal Circuit Court and is a party to the review in that Court pursuant to s 479(aa) and s 486C of the Migration Act 1958 (Cth). The Minister submitted that it was in the interests of the efficiency and finality of the litigation if the second applicant is bound to the outcome of this application and he was and is a proper party. While the second applicant requires a litigation representative, the Minister submits that the Court should make an order appointing the first applicant to that position. Although r 9.64(a) provides that a litigation representative must not take a step in the proceeding unless the litigation representative's consent has been filed, according to the Minister the Court can and should dispense with that, presumably under r 1.34.

7    In my view, the second applicant has been improperly joined to this proceeding, in so far as he is named as an applicant. The position is made plain by the judgment of Emmett and Conti JJ in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426; (2002) 126 FCR 552. In that case, the appellant was a minor to whom no 'next friend' or 'tutor' had been appointed, they being the terms used in the previous rules of court that are functionally equivalent to the present term, 'litigation representative'. The appeal was not prosecuted by the appellant and there was no appearance at the hearing.

8    The Court (Madgwick J dissenting) dismissed the appeal. The majority held (at [29]-[30]):

If a proceeding is instituted in the name of an adult person without his or her authority, he or she could not be prejudiced by the outcome of the proceeding. Since an infant cannot give binding authority, any proceeding commenced in the name of an infant will be commenced without the authority of that infant. An infant cannot give authority to institute a proceeding so as to bind herself or himself. Infants are under a disability depriving them of the power of employing an attorney or other agent. Thus, an infant will not be prejudiced by a proceeding commenced on his or her behalf unless some step is taken to ensure that the proceeding is commenced and prosecuted with authority - see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 83 and 100.

In case of infants, agency or representation must be established by some legal means. The law supplies the means of providing representation of infants by the appointment of a next friend. Such authority is provided by resort to the relevant procedures of a court concerning the appointment of a next friend to commence or prosecute a proceeding on behalf of the infant.

9    Their Honours held (at [33] and [35]) that this meant that in the case before them, the outcome of the proceeding would not bind the child appellant so he would not be prejudiced by the dismissal.

10    It follows that, in the words of r 9.08 of the Federal Court Rules, the second applicant was improperly joined as a party. That is because he has been named as a party without his authority, which he is not capable of lawfully giving. The discretion under the rule to order that he cease to be a party arises. And in my view, it should be exercised. It is fundamental that no person should be made an applicant to a proceeding without his or her consent. Rule 9.05(2), which provides that no person can be added as an applicant without the person's consent, reflects that.

11    For similar reasons, the process contemplated by the Rules by which a person can be clothed with lawful authority to give that consent on behalf of a person under a legal disability is also fundamental. It is not a process which, in my view, should be circumvented by the exercise of the Court's general power to dispense with a requirement of the Rules. If the second applicant had been an adult of full capacity, he could have chosen not to apply for an extension of time within which to appeal. No one could have forced him to make that application against his will. The fact that the second applicant was named as an applicant without his authority does not change that. He should not thereby be coerced into acting as an applicant without his consent having been given by any person lawfully capable of doing so.

12    It is true that finality in litigation, and the avoidance of a multiplicity of proceedings, is also an important goal, and one consistent with the overarching purpose of the civil practice and procedure provisions, as invoked by the Minister in this case. But the appropriate mechanism to achieve that finality would have been to apply to join the first applicant's son as a respondent under r 9.05(1). The Minister has made no such application, now or at any time since the commencement of the proceeding in April 2021. I do not consider that the appropriate course in the absence of such an application is to retain the second applicant as an applicant when he was improperly joined, without the consent of him or anyone capable of lawfully giving it on his behalf.

13    Of course, none of this reflects any view on the merits of any application the second applicant might ultimately seek to make, including whether, in the circumstances of that application, it should be characterised as an abuse of process.

14    I will make an order under r 9.08 that the second applicant ceases to be a party. Henceforth in these reasons I will refer to the first applicant simply as the applicant.

Background

15    The applicant arrived in Australia by boat outside the migration zone on 13 June 2013. The Minister lifted the bar so as to enable the applicant to apply for a protection visa, which he did on 27 June 2017.

16    The applicant's claims to protection were based on fears that on return to Vietnam, he would be imprisoned because of his Catholicism, his involvement in an attack on his church by the Communist Party, an alleged escape from imprisonment, and his illegal departure from the country. However it is not necessary to describe any of those claims in detail because the proposed grounds of appeal do not engage with them.

17    Ground 1 of the proposed grounds does however, engage with a sur place claim that the applicant also made, that is, a claim to fear persecution or other harm because of his political activities since he arrived in Australia. He claimed to be an avid participant in three organisations that promoted human rights or opposed the Vietnamese government: the Vietnamese Human Rights Forum; the Vietnamese Community of Australia - WA Chapter; and the Viet Tan Perth Chapter. He asserted that due to his active participation in fundraising and other events run by those organisations, and also his past history with the government, they would actively monitor him if he were to return to Vietnam. In support of this aspect of his claim, the applicant provided photographs apparently of events run by these organisations in Australia, and also letters from officeholders in two of the organisations.

18    A delegate of the Minister refused the protection visa in a decision notified to the applicant's solicitor on 12 February 2019. In relation to the sur place claim, the delegate found that the applicant had undertaken political activities in Australia primarily in an attempt to strengthen his protection claims. The delegate was satisfied that the applicant was not at risk of serious harm from the Vietnamese authorities for reasons of his political opinion.

The review by the Immigration Assessment Authority

19    The application was referred to the Immigration Assessment Authority for review. On 20 March 2019 the Authority affirmed the delegate's decision. Again, it is only necessary to describe the reasoning of the Authority on the sur place claim, since that is the subject of the applicant's proposed ground 1. The Authority described the applicant's claims to have become 'an avid participant' in the three organisations. It described the various activities in which he said he had participated and his belief that the Vietnamese government had been monitoring him and had visited his family in Vietnam. The Authority then considered the applicant's evidence at two interviews before delegates of the Minister considering his protection visa application. This focussed on his activities with the Viet Tan. The Authority noted that in the first interview he said he had not joined the Viet Tan but just helps them, but in the second interview he said that he had joined the Viet Tan.

20    The Authority then referred to three letters of support the applicant had received from representatives of two of the organisations. I will return to those below, but for the moment note that the Authority did not indicate whether it accepted what the letters said, or put any weight on them.

21    The Authority conducted a detailed examination of several photographs that the applicant had provided purporting to show gatherings at events run by the organisations. The upshot of the examination, which the applicant does not challenge, was that for some of the photographs the applicant could not be identified in them and they could be given no weight, but there were other photographs showing the applicant at political events on what appeared to be four occasions.

22    The Authority then concluded as follows:

19.    Based on the information before me, I accept the first applicant has had some involvement with the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan in Australia. I accept he has attended and participated in four political events about Vietnam.

20.    The first applicant's evidence about the Viet Tan and his involvement with the group was general and lacking in detail. In his first SHEV interview he said he wasn't a member just a helper. However, in his second SHEV interview he said he had joined the group. Based on all the evidence before me, I am not satisfied the first applicant is a member of the Viet Tan, that he is an avid participant for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan or that his attendance and support for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan is on a regular basis.

23    Later in the decision the Authority made the following relevant findings:

46.    The second delegate put to [the] first applicant that he had concerns he got involved with the Viet Tan to strengthen his claims for protection and the first applicant responded he got involved because he believes he can help the Vietnamese people and stop the Vietnamese government from selling Vietnam. He is not fighting for himself. He is fighting to make Vietnam a democratic country.

47.    I have found the first applicant has fabricated claims to strengthen his claims for protection. I am not satisfied the first applicant became involved with the Viet Tan and the other organisations as discussed above for any other reason except to strengthen his claims for protection. I am not satisfied that, if the first applicant returned to Vietnam, he has any interest or intention of participating in activities opposing the Vietnamese government.

…

52.    I accepted the applicants are Catholics. I accepted the first applicant was not involved in any protests in Vietnam. I accepted the first applicant has had some involvement with the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan in Australia. I accepted he has attended and participated in four political events about Vietnam. However, I was not satisfied the first applicant is a member of the Viet Tan, that he is an avid participant for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan or that his attendance and support for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan is on a regular basis.

The Federal Circuit Court proceeding

24    The applicant sought judicial review in the Federal Circuit Court and was legally represented in that court. In a decision delivered on 12 August 2020, the primary judge dismissed the application. His Honour's reasons for decision grappled with what can only be called a scattershot approach taken by the solicitor for the applicant who was appearing before him (not the solicitor or counsel on the present application). To a large extent, the applicant through his then solicitor sought impermissible merits review. Once again, much of the primary judge's decision is not relevant to the application for an extension of time to appeal. The aspects of the primary judgment (PJ) that are arguably relevant to the application for an extension of time are limited to the following:

(1)    At PJ [17]-[18] the primary judge described the Authority's consideration of the sur place claim as set out above. His Honour quoted para 20 of the Authority's decision in full.

(2)    After summarising the rest of the Authority's decision, and the course of the proceeding in the Federal Circuit Court, the primary judge came to the applicant's first ground of judicial review, which was 'I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations'. Under that heading, the primary judge gave consideration to the way the Authority addressed the claim that the applicant was an avid participant in activities in Australia that involved opposition to the Vietnamese government. Understandably, his Honour approached that consideration on the basis that the ground of review was asserting a failure to consider a claim or an integer of a claim. His Honour set out each aspect of the claim and how the Authority addressed it, observing that the Authority 'addressed the first applicant's claim to have been involved in political activities in Australia in great detail': PJ [54(a)]. His Honour also summarised the Authority's consideration of the applicant's claim that the Vietnamese authorities were aware of his participation in political activities in Australia: PJ [54(b)].

(3)    After considering the Authority's treatment of other claims, the primary judge concluded that 'it is apparent from the above that the IAA's assessment of the first applicant's claims, and its findings of fact, were thoroughly and properly considered': PJ [55]. His Honour then set out a number of lengthy submissions advanced by the applicant's then solicitor and concluded that the applicant was inviting impermissible merits review or raising otherwise unmeritorious grounds. None of his Honour's conclusions in that regard are sought to be challenged. His Honour dismissed ground 1: PJ [66].

(4)    Under ground of review 2, which asserted denial of procedural fairness, at PJ [81] the primary judge considered the course of the proceeding before the Authority. At PJ [81(e)] his Honour summarised the material before the Authority as follows:

the only information before the IAA was the evidence from the first applicant and the country information, both of which are exempt under s.473DE from being put to the first applicant. There were also AUSTRAC records (Ms Coole's affidavit) which the Court accepts were not a reason for, or part of the reason for, the IAA affirming the decision under review. As such, s.473DE did not apply.

(5)    The affidavit mentioned there is an affidavit of Amy Coole, a lawyer employed by the Australian Government Solicitor, representing the Minister. Ms Coole's affidavit has been admitted into evidence in this proceeding. It annexes an email dated 29 March 2018 from one staff member of the Department to another which attaches several reports relating to the applicant that were generated by the Australian Transaction Reports and Analysis Centre (AUSTRAC). I will describe the email and the reports below as the applicant relies on them in relation to his proposed grounds of appeal 2 and 3. But the above is the only mention of them in the primary judge's decision.

Principles on application for extension of time to appeal and leave to raise new grounds

25    Although the primary judge handed down his decision on 12 August 2020, the applicant did not file his application for an extension of time until 9 April 2021. That was a delay of seven months from the time by which any appeal was to be lodged: Federal Court Rules r 36.03(a). Hence he needs an extension of time.

26    The Federal Court Rules make provision for applications for extensions of time but prescribe no criteria on which those applications are to be assessed: see r 36.05. Leave to appeal out of time is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula: Jess v Scott (1986) 12 FCR 187 at 188 (Lockhart, Sheppard and Burchett JJ).

27    In BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33], Yates, Wheelahan and O'Bryan JJ summarised the principles applicable to applications for extensions of time to appeal in a migration context as follows (most citations removed):

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to 'assess the merits in a fairly rough and ready way': Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal. Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly. Nevertheless, the merits of the appeal will remain a relevant factor.

28    The length of the delay will affect the persuasiveness of the case required in order to justify a grant of leave: see Jess v Scott at 195.

29    As Colvin J pointed out in BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37], these principles are to be applied while bearing in mind that the applicant has already had the benefit of judicial review in the Federal Circuit Court. That provides contrast to applications for extensions of time within which to commence proceedings for judicial review in the Court's original jurisdiction. In the case of proposed appeals, the determination is to be made 'recognising the importance of finality in respect of judicial decisions and the important role that the observance of time limits has in maintaining the finality of judicial determinations': BJM15 at [37]. At [43] his Honour said (citation removed):

Finality is a fundamental attribute of judicial decision-making and appeals are the principal qualification to that finality. Applications for an extension of time in which to appeal should be considered in the context of an understanding of the nature of the exercise of judicial power and the finality with which it speaks.

30    It is also relevant to describe the principles that apply when an appellant seeks to raise in a ground of appeal a point that was not raised in the court below. As will be seen, all three of the proposed grounds of appeal seek to raise new points. It is convenient to quote the summary I recently gave in CMI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 255 at [25]-[27]:

The basic principles that should, generally, govern the Court's approach to exercising the discretion appear in the oft-cited decision of VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

To that may be added two important considerations specific to appeals in refugee matters that can often point in different directions. One is that, as Perram J observed in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (approved in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [28]):

… Pt 8 of the 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 … 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.

Depending on the outcome, the same may be denied to the respondent too, of course.

The other consideration is the particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [90] (O'Callaghan and Colvin JJ, Allsop CJ agreeing). None of the above is to suggest that it is a matter for formulaic checklists; the overriding concern must always be the broad one of the interests of justice.

The applicant's explanation for the delay

31    The applicant has filed an affidavit seeking to explain the seven month delay before the application for an extension of time was filed.

32    The applicant deposes that in a conversation at about the time of the Federal Circuit Court decision of 12 August 2020 with the solicitor who represented him in that court, the solicitor said that he would apply to the Minister to exercise a discretion to grant the protection visa.

33    The applicant appears to rely on some confusion he experienced about whether his Federal Circuit Court case had been successful or unsuccessful, but it seems from his affidavit that this confusion had been dispelled by 4 September 2020 at the latest. It is not necessary to go into detail; I will proceed on the basis that the confusion, explicable by language difficulties, explains the delay up to that date. But the applicant was still within time to appeal on 4 September 2020 and, his affidavit reveals, he had received written advice from two barristers to the effect that any appeal would be unlikely to be successful. As a result, the delay from the expiry of the time for appealing (on 9 September 2020) remains to be explained. Any reluctance to appeal resulting from the adverse advice he had received would not, of course, be a satisfactory explanation.

34    A different explanation for the delay is, however, given in the applicant's affidavit as follows (paras 24-28):

The letters from [the barristers] confirmed for me that I had been unsuccessful in my application for judicial review to the Federal Circuit Court. This information caused me to become seriously depressed and anxious because I then knew that as I did not have a visa I would need to leave Australia. If I am forced to leave Australia, I will need to return to Vietnam where I will be punished by the authorities for my involvement with dissident groups. This depression and anxiety inhibited my ability to think rationally and function normally, and, consequently, I was incapable of taking further action to instruct a lawyer to appeal the decisions [sic] of the Federal Circuit Court.

I did not seek professional help for my depression and anxiety because in Vietnamese culture it is not acceptable to do so, and I feel obliged to confirm with these societal expectations.

On 7 January 2021 I received an email from the Department of Home Affairs. My wife told me that my request for ministerial intervention was refused.

It was only after I received this letter that I was mentally capable of attempting to organise legal representation to assist me to lodge a notice of appeal.

Since then I have been trying to locate a lawyer who can take on the appeal and extension of time application. This has taken a long time because I do not speak much English at all and I do not have much money.

35    The applicant was not cross-examined on his affidavit so I will proceed on the basis that this evidence is given honestly and that his views about why he did not make the application within time are genuinely held. But that does not mean I must accept them as a persuasive explanation of the delay. The principal explanation is that the applicant's depression and anxiety made him incapable of instructing a lawyer to file a notice of appeal. That is an opinion about the cause of the delay which, although genuinely held, is not necessarily correct. It is not supported by any independent professional opinion. Although an explanation is given for that lack of corroboration, the fact remains that the applicant's view about his anxiety and depression, and its effect on his capacity to think rationally and function normally, is entirely subjective.

36    Also, it is curious that the news that the Minister had declined a request for intervention made the applicant mentally capable of organising legal representation, and did not exacerbate his incapacity or extend its duration. It is conceivable that the news that this avenue was closed caused the applicant to find new resolution in relation to the avenue of appeal, but he does not say that. The account is generally short on detail. For example, there is no explanation of why the applicant's wife was unable to help get an appeal together over the course of the seven months. The applicant says that his solicitor in the Federal Circuit Court did not tell him that he was required to lodge his appeal within a specific timeframe but he received two written opinions from barristers on the merits of the appeal and does not say in terms that he was never told by anyone, and did not know, that he had to make an appeal within time limits. So I place no weight on the particularly worded paragraph that he was not told by a particular person.

37    Even if one were to accept that the Minister's refusal gave new impetus to an appeal, the three month lapse of time between then, 7 January 2021, and the lodgement of the application on 9 April 2021 was still a significant one. Again, the explanation that the applicant does not speak much English and does not have much money is short on detail. There is no detail as to what attempts, if any, he made to get legal representation during that time and why, specifically, those attempts were unsuccessful.

38    On the principles I have outlined above a delay of seven months, while not among the longest delays that come before the Court, is still a substantial one that requires a persuasive explanation. I do not find the applicant's explanation to be persuasive.

Prejudice to the Minister

39    The Minister does not suggest that he would be prejudiced by an extension of time, while submitting that an absence of prejudice alone does not justify the grant of an extension.

The proposed appeal

40    The proposed grounds of appeal are as follows:

1.    The learned Federal Circuit Court Judge erred in law in rejecting Ground 1 of the Applicants' appeal, namely that the Immigration Assessment Authority (the Authority) had failed to consider all of the evidence before it or failed to take into account all relevant considerations, when it should have found that the Authority's decision was affected by jurisdictional error in that it engaged in irrational or illogical reasoning

Particulars

a.    The First Applicant had claimed to have been involved in political activities in Australia, specifically that he had become an avid participant in the Vietnamese Human Rights Forum, the Vietnamese Community of Australia - WA Chapter, and the Viet Tan Perth Chapter;

b.    The Authority noted (without stating its acceptance or rejection of such material) two letters from the Viet Tan Perth Chapter in 2017 describing the First Applicant as a long-term friend of that organisation and thanking him for his assistance at particular events, and one from the President of the Vietnamese Community which stated that the community had known him since his release from the detention centre through his active involvement in various activities, including recent cultural/social/political events;

c.    The Authority accepted that the First Applicant:

i.    has had some involvement with the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan in Australia;

ii.    has attended and participated in four political events about Vietnam;

d.    The Authority nonetheless was not satisfied either.

i.    that the First Applicant was an avid participant for (sic) the Vietnamese Human Rights Forum, the Vietnamese Community and (sic) the Viet Tan; or

ii.    his attendance and support for the Vietnamese Human Rights Forum, the Vietnamese Community and the Viet Tan was on a regular basis;

e.    Further, the Authority made a credibility finding that it was not satisfied that the First Applicant became involved with the Viet Tan and the other organisations for any other reason except to strengthen his claims for protection;

f.    Each of the Authority's findings identified in paragraphs d. and e. above was tainted by jurisdictional error in that it lacked a logical or rational basis as it was not open on the evidence.

2.    The learned Federal Circuit Court Judge further erred in law in failing to find that the Authority's decision had involved jurisdictional error in that in breach of Section 473CB (c) it had been provided by the Secretary to the Minister's department with adverse material that was not relevant to the review, namely Austrac financial records, and such error was material because no certificate had been provided to the Authority pursuant to either s 473GA of s 473GB, and the Authority had not given the Applicants an opportunity to comment on the relevance or accuracy of the records.

3.    Further and in the alternative, the learned Federal Circuit Court Judge erred in law in failing to find that the Authority's decision involved jurisdictional error because by reason of the facts referred to in Ground 2 a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the review.

41    The applicant acknowledges that the last two of the three proposed grounds of appeal were not raised before the primary judge. The Minister submitted that the same applied to the first proposed ground of appeal. I agree. The applicant contended that the first ground was not new because the primary judge had dealt with the subject matter of the ground, namely the applicant's sur place claim, in the course of dealing with ground of review 1. But while that is true, ground of review 1 concerned a different kind of alleged jurisdictional error, namely a failure to give proper consideration to a claim or an integer of a claim. As the summary of the primary judge's decision given above shows, that was the basis on which his Honour considered it. It is clear from proposed ground of appeal 1 that it alleges illogicality or irrationality. While there is no stark delineation between different kinds of jurisdictional error, in substance the point taken before the primary judge, and the point the applicant now seeks to take, are not the same. That is illustrated by the way in which the proposed ground of appeal, first, contends that the primary judge erred by rejecting the applicant's ground of review that the Authority 'had failed to consider all of the evidence before it or failed to take into account all relevant considerations' but, then, says that his Honour should have found that the Authority 'engaged in irrational or illogical reasoning'. That second contention is a non-sequitur and does not engage with the ground of review.

42    The applicant's submissions make it even clearer that illogicality is the alleged error of the Authority on which he now seeks to rely, and that he does not allege a failure to consider a clearly articulated claim. His written submissions in this Court expressly invoked the principle in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]. He submitted, in terms, that 'this is a case where so-called extreme illogicality can be shown'. The illogicality arose from the inconsistency, he said, between the findings described at particulars (b) and (c) and those described at particulars (d) and (e).

43    However, the principal reason the primary judge made no finding that the Authority's reasoning was illogical or irrational was that his Honour was not asked to. The argument embodied in proposed ground of appeal 1 was not put to the primary judge. It is a new ground, so the applicant needs leave to advance it.

44    The Minister submitted that this matters because the test for assessing the merits of proposed grounds of appeal in the case of new grounds is more stringent than the test that applies in cases of extension of time. In the former case, as the quote above from VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 is said to show, the question is whether the proposed new point 'clearly has merit'; in the latter case, as summarised in BQQ15 quoted above, all that is required are 'reasonable prospects of success on the appeal' or 'real prospects of success' or to show that the case is not 'devoid of merit or clearly fails; is hopeless; or is unarguable'. But with respect, I do not consider that the courts in those cases were purporting to articulate verbal formulae that were to be applied in all cases: see SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] (Allsop CJ). On the principles summarised above, the fact that the applicant seeks to raise new points on appeal that were not taken before the primary judge is relevant. But both lines of authority make it clear that the court is exercising a discretion and it is to be exercised in all the circumstances and in the interests of the administration of justice: see also MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2] (Allsop CJ).

45    In any event, I will assess the proposed grounds in the 'fairly rough and ready way' mandated by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516.

Consideration of the merits of proposed ground 1

46    I have already summarised the applicant's submissions about proposed ground 1. With respect, I do not consider that they raise a reasonably arguable case that the Authority fell into jurisdictional error. The task for the Authority was to consider the application for protection visas and to determine for itself whether or not it was satisfied that the criteria for the grant of the visas had been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17] (Gageler, Keane and Nettle JJ). That was a decision as to a jurisdictional fact: SZMDS at [39], [102]. Such a state of satisfaction must be reasonably formed: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [5] (Allsop CJ). It will have been reasonably formed, in the sense relevant to jurisdictional error, if it is a matter on which logical or rational or reasonable minds might adopt different reasoning, or might differ in any decision or finding to be made on evidence upon which the decision is based: SZMDS at [131] (Crennan and Bell JJ). As their Honours then put it:

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.

47    Counsel for the applicant put his client's application squarely on the basis of these principles. With respect, I do not see how he can succeed in that approach.

48    The applicant seeks to contrast two sets of findings. On one side, he places mention by the Authority of two letters from a representative of Viet Tan and one letter from the President of the Vietnamese Community of Australia - WA Chapter, and findings that the applicant has had 'some involvement' with the relevant organisations and had attended and participated in four political events about Vietnam. On the other side he places findings that the Authority was not satisfied that the applicant was an avid participant in the activities of the organisations, or that he had attended the events and supported the organisations on a regular basis, and a finding that he only became involved with the organisations to strengthen his claims for protection.

49    On their face, these two sets of findings are not inconsistent with each other. It was open to the Authority to accept that the applicant had 'some involvement' and participated in four events but had not been an 'avid' participant. It was certainly open to the Authority to find that the participation was for the purpose of strengthening his claims to protection; there is no necessary inconsistency between the applicant attending the events, and a finding that he attended them for that purpose.

50    Also, the Authority's reasons must be read as a whole. The Authority took into account its broader findings that the applicant had fabricated claims. In that context, and while it found that the applicant had participated in events on four occasions, it did not believe that he had been an avid participant. And it made a finding that his participation was motivated by a desire to strengthen his protection visa claim. There is nothing irrational about any of that.

51    On examination, the applicant's case, at its highest, depends on the letters of support. But the Authority's mere reference to them without disapproval does not mean that it accepted the things said in them. To consider the letters in detail would be to descend to merits review. Suffice to say that the first two were somewhat formulaic, being substantially identical, and referred to the applicant's help with two specific events. The third speaks in generalities and speaks favourably of the applicant's character in a way on which the Authority could put more or less weight, depending on its assessment in all the circumstances. No doubt the Authority could have articulated more clearly why it appears to have put little weight on the letters. But to assert jurisdictional error in omitting to do so is to engage in the overzealous scrutiny of administrative decisions deprecated in Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. It was open to the Authority to place little weight on the letters, to decide that the applicant's attendance at a small number of events did not bespeak avid involvement, and to decide on the basis of its view of his credibility that he only attended them to enhance his prospects of success in the visa application. Those conclusions expressed views on which reasonable and rational minds might differ. Ground 1 has no apparent merit.

Consideration of the merits of proposed grounds 2 and 3

52    Grounds 2 and 3 concern the AUSTRAC reports that are attached to the intra-Departmental email annexed to the affidavit of Ms Coole. The email is dated 29 March 2018, that is, before the decision of the delegate of the Minister to refuse the visas. In the email, one officer of the Department says to another, relevantly, that the email and the attached AUSTRAC reports should be marked as 'sensitive'. It asks that they be put on the applicant's 'paper file with a non-disclosable certificate', with the intention that the report be disclosed to 'the AAT [sic] but cannot be disclosed further'. The email instructs the recipient to 'attach a non-disclosure certificate to the file'. It says:

It is the view of Legal Opinions that this information could generally be provided to the AAT, however, further disclosure would be contrary to the public interest. Therefore, the information should be accompanied with a non-disclosure certificate under s438(1)(b) for non-fast track cases, or s473GB for fast track.

However the AUSTRAC reports were given to the IAA without any non-disclosure certificate or other notification.

53    These matters fall to be considered within the following statutory framework. If a decision is referred to the Authority as a fast track reviewable decision under Part 7AA, the Secretary of the Department must give to the Authority a range of material including 'any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review': s 473CB(1)(c). Subject to provisions that permit the limited receipt of new information, the Authority must review the decision referred to it by considering the review material provided, that is, on the papers: s 473DB. Division 6 of Part 7AA imposes certain restrictions on the disclosure of some information in connection with the Authority's review of a decision. The Secretary must not give the Authority a document or information where the Minister has certified that disclosure would be contrary to the public interest on national security or Cabinet confidentiality grounds: s 473GA(1)(a) or (b). Section 473GB provides:

Immigration Assessment Authority's discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)    must notify the Authority in writing that this section applies in relation to the document or information; and

(b)    may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

54    It appears to be common ground that purporting to act under s 473CB, the Secretary gave the Authority materials that included the AUSTRAC reports. By proposed ground 2, the applicant wishes to assert that the Authority's decision involved jurisdictional error because the email I have described shows that the records should have been accompanied by a written notification under s 473GB(2)(a) that s 473GB applied to the records, and they were not. Proposed ground 3 asserts that the Authority's decision was affected by a reasonable apprehension of bias because the AUSTRAC reports were prejudicial to the applicant. This appears to be a ground of review of the kind that found favour with a majority of the High Court in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76.

55    To assess the merits of proposed ground 2 in a rough and ready way I will assume the following matters:

(1)    The AUSTRAC reports were given to the Department in confidence.

(2)    Therefore s 473GB(1)(b) applied to the records. (The intra-departmental email demonstrates some confusion as to whether it is this sub-paragraph that applies or whether a certificate under s 473GB(1)(a) and s 473GB(5) was to be issued. There was an attempt by the applicant to argue that the Minister had in fact certified under s 473GB(5) that disclosure would be contrary to the public interest, but there is no evidence that the Minister ever gave a certificate of that kind. But in light of the assumption I have made, nothing turns on those matters.)

(3)    Therefore the Secretary was required under s 473GB(2)(a) of the Migration Act to notify the Authority in writing that s 473GB applied to the AUSTRAC reports.

(4)    The Secretary did not comply with that requirement.

(5)    That was, without more, an unauthorised omission in breach of a limitation within the statutory procedures that condition the performance of the overarching duty of the Authority to conduct a review, and thus a breach of an inviolable limitation governing the conduct of the Authority's review: cf. Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44]-[45].

Each of these assumptions is favourable to the applicant.

56    Section 473GB, pertaining to the Authority, is similar in its wording, structure and requirements to s 438, pertaining to the Administrative Appeals Tribunal, which was at the centre of the issues considered by the High Court in SZMTA. On the above assumptions this case, like SZMTA, therefore comes down to whether the error made by the Secretary was material to the outcome of the Authority's review, in the sense that it could realistically have resulted in a different decision: SZMTA at [45]. But unlike SZMTA (the appeal by that respondent, being one of three determined by the High Court in the reported case of that name), the alleged error here is not giving a notification when there should have been one, rather than giving a notification or certificate when there was no basis to do so. The applicant here accepts that the other kind of error considered in SZMTA, a denial of procedural fairness, does not arise in relation to the Authority in the present circumstances. So the analysis of materiality here will not necessarily be the same as in SZMTA. The Court must consider the effect of the anterior breach of s 473GB on the Authority's decision-making process and the manner in which the information is dealt with in that process: see CED16 v Minister for Immigration and Border Protection [2018] FCA 1451; (2018) 265 FCR 115 at [24] (Derrington J); EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41(5)] (Thawley J).

57    How could the giving of a notification in relation to the AUSTRAC reports have realistically led to a different decision here? The applicant's written submissions said that, since the AUSTRAC reports were given by the Secretary to the Authority pursuant to his obligation under s 473CB(1)(c) to give material considered by the Secretary to be relevant to the review, it can be presumed that the Authority had regard to the reports. The applicant acknowledged, however, that the Authority does not make reference to the reports in its statement of reasons. But, the applicant submitted, a notification under s 473GB(2)(a) would have drawn the attention of the Authority to the inclusion of the AUSTRAC reports in the material provided to the Authority. It is true that the applicant submits that the content of the records were prejudicial to him. Nevertheless, according to him, if the notification had led the Authority to focus on the AUSTRAC reports and consider their content, it would have also had to consider whether to reveal them to the applicant. And if that had occurred, the applicant submits, then he would have had an opportunity to explain the prejudicial material and to remove it from real consideration by the Authority.

58    Before giving consideration to those submissions, it is convenient to set out what the AUSTRAC reports show. With one possible exception, they are unremarkable. They document some thirteen transfers of money from the applicant to his sister in Vietnam. The transfers took place between October 2015 and November 2017. The amounts of money involved were modest - mostly in the low hundreds of dollars, with five transfers of $1,000 or more, with the highest amount being $2,432. It is impossible to see how the transfer by the applicant of modest amounts of money over the course of some two years to a relative in his country of origin could be prejudicial to him or to his visa application. The possible exception is that there is one record of a deposit of over $12,000 in cash at a Commonwealth Bank ATM. One wonders how the applicant came to have cash in that amount. But to ascribe some illicit quality to it would be pure speculation. And it would be speculation that plainly would have had no relevance to the question of whether the applicant was a person to whom Australia owed protection obligations.

59    Against that background, proposed ground 2 appears to have little merit. First, it does not follow that a notification under s 473GB(2) of the Migration Act would have drawn the Authority's attention to the reports in a way that would have resulted in disclosure to the applicant. In SZMTA at [47], Bell, Gageler and Keane JJ held that the drawing of inferences about such matters could be assisted by reference to what can be expected to occur in the course of the regular administration of the Migration Act. In that context, their Honours described the comparable process in the Tribunal if a notice were given under s 438 as being that 'the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3)'. There is no obligation on the part of the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Part 7AA: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [2], [29]-[31], [35]. So it is at least equally likely here that the giving of the notice would have led the Authority to disregard the AUSTRAC reports, rather than actively consider the exercise of one or both of the discretions. It must be acknowledged, however, that the question here must be framed in terms of what realistically could have happened, not the balance of probabilities.

60    Second, if the AUSTRAC reports really were prejudicial, it is hard to see how the giving of a s 473GB(2) notification could have led to a different decision. On the face of things, drawing the Authority's attention to prejudicial material could hardly have been a good thing, from the applicant's point of view. To conclude that it could have been, it is necessary to find that the Authority did in fact have regard to the reports. Only then could the applicant's hypothetical opportunity to explain the reports, resulting from a s 473GB(2)(b) notification, have possibly improved his position.

61    There are two aspects to that inquiry: what the Authority can be expected to have done in view of the statutory scheme, and what it can be inferred it in fact did, in view of its reasons for decision and the nature of the AUSTRAC reports. They are of course related, as the first aspect bears on the second: SZMTA at [47]. As to the first aspect, the statutory scheme did require the Authority to consider the records once the Secretary had provided them: s 473DB(1) and see CNY17 at [98], [100] (Nettle and Gordon JJ), [140] (Edelman J). But the Authority, as a professional decision-maker in a specialised area, can be expected to make its own assessment of relevance and weight: CNY17 at [140]. That could include placing no reliance at all on the material: CNY17 at [7] (Kiefel CJ and Gageler J, in dissent but not on this point). There is therefore no statutory presumption that the Authority did give any weight to them.

62    The second aspect is the factual inquiry as to whether, in light of that, the Authority did find the AUSTRAC reports to be relevant and did put weight on them. In any application for judicial review on this basis, the onus would be on the applicant to establish that basal fact on the balance of probabilities: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]-[39]. In a context where it was for the Authority to decide what relevance and weight to put on the reports, it is unlikely that the Authority did give them any weight. While the Authority said at the beginning of its decision that it had had regard to the material provided by the Secretary, there is no mention of the reports in its reasons and given their largely unremarkable nature and obvious irrelevance, it is unlikely that the Authority did consider them to be relevant. I have noted the primary judge's finding that the AUSTRAC reports were not a reason for, or part of the reason for, the Authority affirming the decision under review. The applicant has not proposed to challenge that finding of fact and has not indicated why it is wrong.

63    Finally, for reasons I have already described, I do not consider that the AUSTRAC reports were prejudicial to the applicant. They were both mostly unremarkable and clearly irrelevant. Whether the Authority had regard to them or not, and whether a notification under s 473GB(2) may have focussed attention on them or not, they could not realistically have made any difference to the Authority's decision.

64    It follows from this that ground 3 also has little apparent merit. As I have said, it asserts apprehended bias, as was found to have arisen in CNY17. In MBJY at [33] O'Callaghan and Colvin JJ (Allsop CJ agreeing) summarised the test for apprehended bias as follows:

Subject to questions of waiver and necessity, a decision-maker who must act independently and impartially will not be qualified to make a decision of that character 'if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide': Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337 at [4]-[7]. Despite the 'double might' aspect of the test, a finding of apprehended bias is not to be reached lightly: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. The test requires the adoption of the perspective of a fair-minded lay observer who, though not a lawyer, is taken to know both the nature of the decision-maker and the nature of the process that the decision-maker is required to undertake.

65    As CNY17 shows, apprehended bias may arise when a decision-maker is exposed to irrelevant but prejudicial information. The information may be of such a nature that the fair minded lay observer would reasonably apprehend that it might subconsciously influence even a professional decision-maker. In MBJY at [51]-[52] O'Callaghan and Colvin JJ said:

… Whether such material gives rise to apprehended bias will depend upon whether, having regard to the particular context, the material is of a kind that it may affect the decision-maker, including in a subconscious way.

Obviously enough, it is not sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker. What must be shown is that, having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by that material.

66    For reasons I have already given, I consider that the AUSTRAC reports were largely innocuous. The only transaction that might have raised questions, the cash deposit, was unlikely to go further than that. That is, even the possibility of questions as to where that money came from is unlikely to lead the fair minded observer to reasonably apprehend that it might lead the Authority, a professional decision-maker, not to approach the review of the applicant's claims to protection with an open mind.

67    Each case depends on its own facts and it is not possible to identify in the abstract the particular point at which prejudicial information will lead to apprehended bias: CNY17 at [101]. But the information in CNY17 was much more prejudicial than the content of the AUSTRAC reports here. In CNY17, the information that the majority held gave rise to apprehended bias included information that the appellant had a history of aggressive and/or challenging behaviour when engaging with the Department, had been involved in many incidents while in detention, had been recommended for detention in a correctional facility while there was a police investigation into a riot, and was the subject of ongoing investigations: CNY17 at [81]. It contained 'expressions of opinion, the innuendo, and the tacit suggestions in the material could be seen by a fair-minded lay observer as painting a picture of the appellant as a man of poor or doubtful character': CNY17 at [124]. The AUSTRAC reports here do not rise nearly so high.

68    The applicant relied on the decision of the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299. But with respect it is difficult to see how that case is relevant here. It concerned a failure by the Secretary to give medical documents to the Authority. The Minister had conceded that this was a failure to comply with s 473CB. The Full Court held that it was a material error, because it would have been open to the Authority to consider the medical documents to be corroborative of the appellant's claims: see [50]-[54]. But in this case, there is no breach of s 473CB either alleged or apparent, and no failure to provide potentially relevant documents, and the documents that are in issue here are not potentially supportive of the applicant's claims. The situation is entirely different to that in EVS17.

Why the new points were not raised in the Federal Circuit Court

69    Since the points raised in the proposed appeal would be entirely new, it is relevant to consider what explanation, if any, has been given for why they were not raised in the Federal Circuit Court. I have left that until last because the applicant's submission on the point was that the explanation emerges, in effect, from the evident merit of the points proposed to be raised, along with the conduct of his case in the Federal Circuit Court. There is no express explanation appearing in any of the evidence adduced by the applicant. But his counsel submitted that the approach of the solicitor who appeared in the Federal Circuit Court, as described by the primary judge, shows that the solicitor 'presented grounds and advocated for those grounds in way that were substantially lacking in coherence and clarity'. It is self-evident from this, counsel submitted, that proposed new grounds 2 and 3 were not raised in the Federal Circuit Court because of a lack of competence on the part of the applicant's then solicitor.

70    I do not accept that this explanation emerges with such clarity from the course of the proceeding below. While it does not, with respect, appear that the case in the Federal Circuit Court was presented competently, it does not follow that this can be the only explanation for the omission to raise grounds 2 and 3 (or ground 1, even though that was not encompassed in the submission). Perhaps it might arise if the grounds were so clearly meritorious that there could be no other plausible explanation. But for the reasons I have given, they were not. In any event, it is questionable whether oversight by the solicitor acting for the applicant before the Federal Circuit Court is a good explanation for the omission to raise the points in that court. In order for that to count somehow as a factor in the applicant's favour there would need to be, at the very least, an express explanation of what happened, preferably from the solicitor involved.

71    As such, there is no satisfactory explanation before the Court of the omission to raise before the primary judge any of the points now sought to be raised.

Conclusion

72    The applicant seeks an extension of time to appeal on three grounds, each of which could have been raised in the Federal Circuit Court but were not. Ground 1 has no apparent merit. Grounds 2 and 3 can be said to be arguable, solely because the cash deposit of $12,000 could raise questions, although it cannot be put higher than that. But for the reasons I have given, the arguments are weak. Ultimately, the question is what is in the interests of justice. It is unlikely that granting an extension would lead to vindication of a just result in the matter which has not already been reached.

73    That is in circumstances where the delay in applying for an extension of time to appeal is a substantial albeit not extreme one. That delay has not been satisfactorily explained. Another matter that has not been satisfactorily explained is why none of the new points were raised in the Federal Circuit Court.

74    The importance of the outcome to the applicant must be acknowledged. But to give weight to a delay of seven months is not to enforce the time limits on the statutory right of appeal too strictly. It is to recognise the importance of finality in court proceedings. That finality is also promoted by observance of a general rule that all points to be raised should be raised at first instance, and not for the first time on appeal. Here, all the points sought to be raised would be new.

75    On the basis of these considerations, the appropriate way to exercise the discretion in this case is to refuse the extension of time, with costs.

Associate:

Dated:    6 April 2022