Federal Court of Australia

DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Second Amendment Application) [2023] FCA 157

ORDERS

THE COURT ORDERS THAT:

1.    The application to file the proposed Further Amended Notice of Appeal is refused insofar as Ground 1 is concerned.

2.    The balance of the amendment application will be determined concurrently with the hearing of the appeal on the basis that if the amendment is allowed no further submissions will be necessary.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    Before the Court is a second proposed further amended notice of appeal which includes Ground 1 in the following terms:

1.    The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act. Particulars

a.    The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control

b.    These documents included the IHMS Medical Records

…

g.    The documents were material to the assessment in that there could have been different findings on credibility and of fact; and/or there could have been a different outcome.

h.    The medical records were relevant and material to the Authority’s task to determine whether the claims made to the IAA concerning the brothers:

a.    Was new information,

b.    If the claims were new information, whether the claims were capable of being believed.

2    The Appellant’s claims for protection have included claims of torture in 2003 and in 2012 and a claim that his sister was raped. The proposed amendments relate to a claim the Appellant seeks to bring on appeal under s 473CB of the Migration Act 1958 (Cth). The contention is that the Secretary failed to comply with an obligation imposed upon him by that provision to refer to the Immigration Assessment Authority (‘the Authority’) relevant documents. The documents in question are called International Health and Medical Services (‘IHMS’) documents. The Appellant began to seek those documents in November 2022 and those efforts and those of the Appellant’s solicitor finally bore fruit on 22 February 2023 when those documents were produced. Those documents involved medical interviews with the Appellant and record contemporaneous statements made by him to various persons who he was interviewed by.

3    The documents are capable of showing, in my view, that he was tortured, although not the years in which he was tortured, and that his sister was raped. I also accept that the documents are capable of demonstrating that he suffers from intrusive memories consequent upon his torture. The delegate who made the initial decision accepted that he had been tortured in 2003, but not that he had been tortured in 2012. The delegate made no finding about the claim that his sister had been raped. Subsequently, the Authority accepted that he had been tortured in 2003, but like the delegate, did not accept that he had been tortured in 2012. The Authority, unlike the delegate, did accept the claim that the Appellant’s sister had been raped. I am prepared to accept that these documents are capable, in the abstract, of providing proof in chief of a claim under s 473CB.

4    In my view, however, the evidence is not strong evidence. Largely, the IHMS documents simply corroborate what the delegate and, to a greater extent, the Authority have already found, but nevertheless, I accept that the documents are of some value. There are, however, it seems to me, a few problems confronting the amendment application. The first concerns the Minister’s submission that, if these documents are accepted into evidence and this ground is now permitted to be pursued on appeal, the Appellant will then seek to develop an argument under AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; 274 FCR 82 to the effect that the Secretary had not acted – I will put the matter in general terms – reasonably in the way in which the determination to hand documents to the Authority was made.

5    The Minister’s point was that, if such a contention were to be made, then procedural fairness would require the Minister to be entitled to lead evidence from the Secretary or persons working for the Secretary about the precise process by which documents of the kind presently under consideration were handled by the Secretary’s office. It seems to me that, if that submission were made, I would have to accede it with the consequence that the hearing would not be able to conclude today. Mr Taylor sought to downplay the significance of that by submitting that the hearing could proceed today, but the Minister could be granted leave to put this material on after the hearing. I am not satisfied that that is a safe procedure to adopt. It is possible that Mr Taylor will want to cross-examine whoever that deponent of the affidavit is, and it seems to me unlikely to be the case that, once this evidence is put on from the Secretary, Mr Taylor is not going to want to respond to it.

6    Therefore, I think that granting leave to pursue this ground at this point carries with it a significant risk that the proceedings will be further adjourned and there will be further delay. The topic is delay is relevant because this proceeding has already been adjourned once as a result of the Appellant’s attempt to file the first proposed further amended notice of appeal, the application of which was refused by me on 26 July 2022 after an extensive hearing. At that hearing, it was made tolerably clear towards the end of the day that the Appellant was going to stand on the currently filed amended notice of appeal. Of course, that does not prevent the present application being made, but it gives some context to assessing the significance of further delay. Also relevant is the fact that this appeal was filed on 26 February 2020 and is now three years and two days old. I accept of course Mr Taylor’s point that a big part of that is tied up with the COVID-19 pandemic.

7    Nevertheless, on any view, this appeal is a little long in the tooth and has already had one aborted hearing. Another problem, it seems to me is that, whilst I accept that the evidence shows that this idea of using IHMS documents first occurred to Mr Taylor in November last year, the fact of the matter is that the present situation with which we are confronted is one where the Appellant seeks to raise on appeal a ground which was not raised below. Further, whilst I accept that it was not thought of until November 2022, I think it can be fairly said that three years into the appeal is not the time to be raising a fresh matter which was not pursued at trial unless the point presented is one which is accompanied by a powerful explanation for delay and also is one which exhibits substantial prospects of success and merit.

8    I do not accept that either is the case here. In those circumstances, I refuse leave to amend Ground 1 of the second proposed further amended notice of appeal.

9    I will determine the amendment application in relation to Ground 1A and Ground 2 at the same time the appeal is being argued with the intent that the whole matter will be fully argued. This is because the Minister accepted that there was no procedural prejudice to him if that course were taken.

Associate:

Dated:    2 March 2023