Federal Court of Australia

AHD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 273

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 5 November 2020 be set aside.

3.    The application dated 20 January 2020 be remitted to a different judicial member of the Federal Circuit and Family Court of Australia and be heard and determined according to law.

4.    The first respondent pay the appellant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    This matter concerns an appeal from orders of the then-Federal Circuit Court of Australia dismissing after a show-cause hearing the appellant’s application for judicial review: AHD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2996 (J). The decision under review was a decision of the second respondent, the Immigration Assessment Authority (or IAA), made under Pt 7AA of the Migration Act 1958 (Cth), affirming the decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise visa.

2    By consent orders made on 24 October 2023, the then-applicant was granted an extension of time to seek leave to appeal and was granted leave to appeal from the judgment and orders of the primary judge. The Minister accepted that there was sufficient doubt (citing Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397) affecting the primary judge’s conclusion that the proceeding before the Court below raised no arguable case for the relief sought by reference to the first ground of appeal raised by the appellant.

3    The appellant is a citizen of Sri Lanka and is of Tamil background: at J[2]–[3]. He was born in October 1994. In support of his application for a Safe Haven Enterprise visa, the appellant alleged that the Liberation Tigers of Tamil Eelam (LTTE) had an office next to his home. He claimed that his family home was searched for weapons in 2008 by the Sri Lankan Army: at J[4]. He also claimed that, in July 2010, his family’s other house was visited by the Criminal Investigation Department, who inquired about his brother and a cousin: at J[5]. He alleged that his brother, who left Sri Lanka in December 2010, was interrogated and beaten and accused of having stored weapons for the LTTE: at J[6]. The appellant arrived in Australia in October 2012 as an unauthorised maritime arrival and claimed to fear harm from Sri Lankan authorities on the basis of suspected links to the LTTE and having left Sri Lanka illegally and sought asylum overseas: at J[8]–[9], IAA[9].

The Authority’s decision

4    The Authority summarised, at IAA[1], the procedural history of the administrative and judicial decisions made in relation to the appellant’s visa application by the time it reached the Authority for the decision now under review as follows:

The referred applicant (the applicant) claims to be a national of Sri Lanka. He arrived in Australia in October 2012 and lodged an application for a Safe Haven Enterprise Visa (SHEV), Subclass 790 in April 2016. A delegate of the Minister for Immigration (the delegate) refused to grant the visa on 11 November 2016. The delegate found that the applicant did not have a well-founded fear of persecution and that there was not a real risk of significant harm upon his return to Sri Lanka. On 7 July 2017, another reviewer of the IAA affirmed the decision not to grant the applicant a protection visa. On 6 November 2019 the Federal Circuit Court of Australia, quashed the IAA decision and remitted the matter to the IAA for reconsideration. This is the reconsideration of the delegate’s decision.

5    The Authority affirmed the delegate’s decision not to grant the appellant a protection visa.

6    In its decision, the Authority noted that it received a submission from the appellant’s representative on 5 December 2019 which contained additional arguments and some new information. The Authority assessed each piece of new information to determine whether to consider it.

7    The first piece of new information considered in the Authority’s reasons was an article in the Colombo Telegraph dated 12 November 2016 about a Buddhist monk in Batticaloa who threatened to kill a Tamil Grama Sevaka (a government official) for filing several court cases against Sinhalese people living in the district. The Authority determined that, although the article suggests that the Grama Sevaka received the threats because he was a Tamil and the monk made hateful comments, the reporting was about an incident that had occurred three years prior in a different city from the one in which the appellant resided. As a result, the Authority considered this information to have very limited value to the protection claim before it. It was not satisfied that there were exceptional circumstances justifying consideration of that new information: at IAA[5].

8    The second new piece of information considered by the Authority was another decision of the Authority where it found that an applicant who departed Sri Lanka illegally while subject to a weekly reporting arrangement was likely to be detained and subject to significant physical ill-treatment in the course of questioning on arrival. The Authority found that the circumstances giving rise to this decision were different to the appellant’s circumstances, as he had left Sri Lanka legally. Given that the Authority was to make its own assessment of the appellant’s individual circumstances on the basis of the information before it, it was not satisfied that there were exceptional circumstances justifying consideration of this new information: at IAA[6].

9    The third piece of new information referred to in the Authority’s reasons was a report by the Department of Foreign Affairs and Trade (DFAT) published on 4 November 2019, a month before the Authority received the appellant’s submission. The delegate had considered DFAT’s December 2015 report. The 2019 report had been specially prepared for protection status determination purposes and contained updated information. The Authority was satisfied that there were exceptional circumstances to justify considering the new information: at IAA[7].

10    Finally, the Authority considered whether there were circumstances justifying consideration of a DFAT report from 24 January 2017. Given that the Authority had obtained and considered the 2019 report, it was not satisfied that there were exceptional circumstances justifying consideration of the 2017 report: at IAA[8].

Grounds of review below

11    At first instance, the appellant provided the following grounds for his application for an extension of time:

1.    Decision made on 20/12/2019 just before the holidays

2.    Agent was closed so I could not contact them.

3.    Need time to look for another lawyer.

12    On the same form, the appellant wrote the following under the heading “[g]rounds of application” (noting that these appear to mirror, albeit in different language, the grounds for his application for an extension of time):

1.    I need more time to find new lawyer to submit my case file.

2.    I couldn’t do much over the holiday period.

The decision below

13    The primary judge dismissed the appellant’s application at a show cause hearing conducted under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). His Honour held that the appellant’s submissions invited the Court to engage in impermissible merits review: at J[33]. His Honour also held that, on the face of the Authority’s reasons, it had complied with its statutory obligations in the conduct of the review: at J[35].

14    Before this Court, the Minister drew attention to the timeline of the proceedings before the primary judge. On 20 January 2020, the appellant filed his originating application, which stated that he needed time to find a lawyer. It was not until 5 November 2020 that the hearing before the primary judge took place. Procedural directions had been made on 20 February 2020, and these permitted the appellant to file an amended application, directing him to file written submissions and fixing the application for a show cause hearing on 5 November 2020. No amended application was filed. By the time of show cause hearing, the Minister observed, by reference to the date of the procedural directions, the appellant had had more than eight months to obtain legal representation.

15    The Minister filed and served written submissions before the primary judge on 26 October 2020. They said, in summary, that the grounds of the application did not raise any allegation of jurisdictional error by the Authority. The Minister also addressed the Authority’s application of s 473DD of the Act and submitted that, in considering certain new information, there was no error by the Authority in its application of s 473DD. The Minister therefore submitted before the primary judge that the application failed to raise an arguable case for the relief claimed and should be dismissed pursuant to r 44.12(1)(a) of the Rules.

16    On 4 November 2020, the day before the hearing before the primary judge, the Minister wrote to the primary judge’s chambers requesting that the matter be adjourned because of a possible issue arising from the High Court’s decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 (handed down on 14 October 2020): at J[41]. The Minister’s representative wrote to the Court by email, copying the appellant, in the following form:

We are instructed to request that the Court vacates tomorrow’s show cause hearing, and we respectfully seek that the matter instead be listed for a final hearing at a later date. This is because the first respondent is of the view that the matter may raise an issue in relation to the recent High Court decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 and the way in which the second respondent considered the new information provided by the applicant.

If his Honour is minded to proceed with a final hearing tomorrow, the first respondent will seek leave to file further submissions addressing the application of AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.

17    The Minister received a reply from the appellant’s email address that said “[t]hank you for the update”, but received no response from the primary judge’s chambers. The show cause hearing went ahead the next day, on 5 November 2020. The hearing was conducted by video-link and the appellant appeared in person, assisted by an interpreter.

18    At the hearing, the Minister’s representative identified the AUS17 issue raised in her correspondence and suggested that the decision “may raise at least an arguable case in relation to the way in which the IAA considered the new information”. On that basis, the Minister submitted that “there is perhaps at least an arguable case on the face of the matter” (hence, the Minister was taking a position contrary to that contained in his application which was the subject of the hearing pursuant to r 44.12(1)(a) of the FCCA Rules). In response, the primary judge said that the Minister should have filed and served an application seeking to vary the Court’s previous orders setting the matter down for a show cause hearing.

19    His Honour then delivered reasons ex tempore. He found that the appellant had not identified any arguable case of jurisdictional error in his oral submissions (at J[36]) or the grounds of the application before the Court (at J[37]–[40]).

20    In his reasons, his Honour concluded that it was difficult to understand why the Minister’s request had been made and that it was not apparent why it was suggested that there might be any arguable case of relevant error affecting the Authority’s decision with respect to new information: at J[43]. His Honour considered that, on a fair reading of the Authority’s reasons, it took into account both limbs of s 473DD(b) of the Act before finding that there were no exceptional circumstances to justify considering the new information: at J[15]. Having looked at the Authority’s decision at an impressionistic level, his Honour was not satisfied that any arguable case arose in respect of the application of s 473DD of the Act by the Authority: at J[44]. The primary judge also considered the decision in AUS17 and could see no arguable case for the relief claimed: at J[16], [46].

21    Exercising the Court’s powers under r 44.12, the primary judge dismissed the application on the basis that nothing said by either party, and nothing contained in the application itself, raised an arguable case for the relief claimed: at J[47].

Grounds of appeal

22    By his further amended draft notice of appeal, the appellant claimed three grounds of appeal. The first of these grounds alleges that the court below denied him natural justice and failed to apply provisions of the legislation and rules which govern by Federal Circuit Court by refusing the Minister’s application to have the matter adjourned. The appellant did not press the second and third grounds of appeal. During the hearing, the appellant sought leave to amend his notice of appeal to include an additional ground (ground 4). The application was not opposed and was granted.

23    Accordingly, the remaining relevant grounds of appeal are as follows:

Ground 1:

The lower Court denied the Appellant natural justice and / or failed to apply the provisions of the FCC Act and the objects of the FCCA Rules when it refused an application by the 1st Respondent to have the matter adjourned.

Particulars

i.    The lower Court had the power to so adjourn the proceedings pursuant to R 7.1 “At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.”

ii.    The lower Court was aware of the Appellant's grounds of Review and ought to have understood that the Applicant needed time to look for another lawyer as a Decision was made on 20/12/2019 just before the holidays and his Agent was closed so he could not contact them;

iii.    The grounds of Review did not articulate any intelligible ground of review but presented an explanation as to what the Appellant wished to happen in the proceedings;

iv.    The objects of the FCC Act and the objects of the FCCA Rules, provide for the Court to operate in a manner:

•    as informal as possible in the exercise of judicial power;

•    which is not protracted in its proceedings;

•    which resolves proceedings justly, efficiently and economically;

•    which uses streamlined procedures; and

•    that avoids undue delay, expense and technicality.

v.    The lower Court failed to properly apply the provisions why required the Court inter alia to resolve the proceedings justly and to avoid technicality and informality in the conduct of the proceedings;

vi.    The failure to do so amounted to jurisdictional error.

Ground 4:

The lower Court denied the Applicant procedural fairness as it:

i.    failed to assist the Applicant to understand and, if necessary, to develop and consider any legal argument concerning s 473DD of the Migration Act 1958 (Cth) and AUS17 v Minister for Immigration and Border Protection [2020] HCA 37;

ii.    dismissed any consideration of AUS17 raising an arguable error by the IAA, at [44], without giving the Applicant an opportunity to be heard and/or to present argument in respect of a s 473DD error.

24    The Minister conceded correctly at hearing that the court below denied the appellant procedural fairness, namely on the basis that, when the court was exercising its discretion, it was put on notice of an arguable legal error in the decision of the Authority, and had a duty to assist the appellant, who was unrepresented, sufficiently to ensure that arguments about legal error could be properly developed and considered. That duty extended to taking appropriate steps to ensure that the appellant had sufficient information about the practice and procedure of the court to ensure a fair hearing, citing MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [113]. The Minister conceded that its concession was captured by ground 4 of the appeal. No issue of materiality was raised with respect to this ground.

25    Accordingly, the contest ultimately concerned the relief. The Minister submitted that, despite the denial of procedural fairness, I should not grant the relief now sought by the appellant (namely that the matter be remitted to the Federal Circuit and Family Court of Australia) given the only issue that might arise is the s 473DD issue, which is purportedly straightforward and capable of being decided on the material before this Court.

26    Given the foregoing, the scope of this appeal is limited. Given the Minister’s concession regarding ground 4, it is my view that there is no need to consider ground 1 and the associated argument regarding relief.

Consideration

Ground four: Denial of procedural fairness

27    As is evident from the procedural history above, it is clear that the Minister’s representative properly notified the primary judge the day before the hearing of the fact that, contrary to his application under r 44.12 for dismissal of the appellant’s claim (premised on there not being an arguable case), in the Minister’s view the applicant’s matter “may raise an issue in relation to the recent High Court decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 and the way in which the second respondent [the Authority] considered the new information provided by the applicant”.

28    It is worth extracting that portion of the transcript of the hearing (before the primary judge delivered ex tempore reasons) where the Minister’s representative raised the AUS17 issue:

Yes, your Honour. Perhaps at the outset, I will commence by noting that yesterday afternoon I was instructed to contact your chambers and seek to have today’s show cause hearing be vacated and the matter listed for a final hearing as I’m instructed that given the recent decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, there may raise at least an arguable case in relation to the way in which the IAA considered the new information submitted by the applicant back in 2016, prior to the first IAA decision which was subsequently set aside by the court. On that basis, we would submit there is perhaps at least an arguable case on the face of the matter. Although, I acknowledge the applicant has not raised that matter either in his applicant or in his oral submissions today.

In relation to the remainder of the oral submissions that the applicant has raised today, we would just briefly submit that what the applicant has raised is really a disagreement with the factual findings of the IAA in this case and the IAAs nonacceptance of the claims he raised. It’s clear from the IAA decision that the issues the applicant has raised today were considered in the context of its assessment of the applicant s claims but were not accepted by the IAA. And it is well accepted that the IAA is not expected to uncritically accept all of the evidence of an applicant and is required to undertake its statutory task by weighing up that evidence and making findings in relation to it. So in relation to the mattes that the applicant has raised today, we submit that they don’t raise an arguable case but we consider that there may be an arguable case open in relation to the new information issue.

HIS HONOUR: Ms Thompson, the same principles apply to the first respondent as apply to any other party. Any request to vary orders of the court must be made by application in a case and supported by an affidavit. Accordingly, that request is refused. No step was taken to that effect by the first respondent. Is there anything else you wish to say? Just pause while that s - - -

MS THOMPSON: No, your Honour.

HIS HONOUR: I will just repeat it more slowly, Mr Interpreter. I do apologise. The same principles apply to the first respondent as apply to any other party.

AHD20: Okay.

HIS HONOUR: No application in a case support by an affidavit has been filed and the court in those circumstances will not entertain the request to vary its orders.

AHD20: Okay.

HIS HONOUR: What do you want to say in reply, Mr Applicant?

THE INTERPRETER: I have nothing else to mention, other than what I have already stated that if I go back, I will face problem. I can’t go back.

29    As is apparent from the above, the Minister’s representative raised that AUS17 “may raise at least an arguable case in relation to the way in which the IAA considered the new information”.

30    However, despite the Minister’s representative repeating this twice, the primary judge dismissed the argument on the basis that the Minister had not filed an application to vary the orders made by the Court that was accompanied by an affidavit.

31    As observed by Mortimer J in MZAIB at [113], a court has a particular duty to assist a self-represented person where it is aware of an arguable substantive legal error. Her Honour expressed that duty in this way:

If, in circumstances involving the exercise of a judicial discretion, a court is or should be put on notice, through the evidence and material before it, of an arguable substantive legal error in the decision sought to be reviewed (including denial of procedural fairness by the Tribunal), then the Court has a duty to assist a self-represented person sufficiently to ensure the arguments about that legal error can be properly developed and considered. What that involves in any given case may vary depending on individual circumstances. Similarly, if a court is or should be put on notice, through the evidence and material before it, of an arguable procedural problem in its own proceeding that may deprive a litigant of an effective choice in the proceeding, or impede the litigant’s opportunity to present her or his case and arguments, then in my opinion the Court may have a duty to assist a self-represented person to surmount that procedural problem.

32    It is apparent from the transcript that the primary judge did not discharge his duty in the manner required of him and, as correctly conceded by the Minister, ground 4 is made out to the extent that the Court, when exercising the discretion, did not assist the appellant sufficiently to ensure that the arguments about the arguable legal error could be properly developed (the IAA’s approach to the appellant’s new information in light of the holding in AUS17) and the ability of procedural mechanisms (such as adjournment or the ability to put on submissions) to assist the appellant in being able to present his case.

33    The issue is therefore what the available and/or appropriate relief is in the circumstances.

34    For the following reasons, it is my view that the proceeding must be remitted to a different judge within the Federal Circuit and Family Court of Australia.

35    The Minister contested this course on the basis that, whilst he submitted below that there was an arguable case of jurisdictional error in relation to the s 473DD issue, ultimately it was not appropriate to remit the proceeding to the Circuit Court given the s 473DD issue was a straightforward one capable of being decided on the material before this Court and that the Court would find that, despite the procedural unfairness, the error was not material or remittal was “futile” given the s 473DD issue would ultimately fail upon my consideration of it. The Minister contended such an avenue, for this Court to consider the issue and not remit, was open in this case relying on obiter dicta from MZAIB at [78]. I note that at this point in MZAIB, the Court was considering what the available options for relief were if jurisdictional error was made out. Ultimately, in MZAIB, jurisdictional error was not established. In BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [21] and [29], Feutrill J observed that, despite a finding of procedural unfairness, an appellate court should not order a rehearing (or remittal) unless a new hearing would inevitably result in the same judgment or order.

36    Section 473DD provides:

473DD Considering new information in exceptional circumstances

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

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

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

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

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

37    The relevant portions of the Authority’s decision were:

5.    The submission refers to an article of the Colombo Telegraph of 12 November 2016. This article reports that a Buddhist Monk from Batticaloa has threatened to kill a Tamil Grama Sevaka, a governmental official, for filing several court cases against Sinhalese living in the district. It reports that the threat was made against the Grama Sevaka in the presence of several police officers on a main road and that the monk was taken away by the police. I consider this article could not have been provided to the delegate before the primary decision as it was published after the delegate’s decision. The threat was made against the Grama Sevaka personally as he had filed court cases against some Sinhalese. It is also reported that the monk has been taken away by the police. Although the article suggests that the Grama Sevaka received the threats because he was a Tamil and the monk made some hate comments, this reporting was about a particular incident that occurred three years ago in Batticaloa. The applicant is from Jaffna. I consider this information has very limited value in my assessment of the applicant’s claims for protection now. I am not satisfied there are exceptional circumstances to justify considering this new information.

6.     The submission also refers to an IAA decision (IAA16/00603) and quoted two paragraphs from that decision, where the IAA in that matter found that the applicant, who departed illegally whilst on a weekly reporting regime, was likely to be detained and subject to significant physical ill-treatment in the course of questioning on arrival. The submission also refers to another previous IAA decision which is not new information as it was already referred to in the post interview submission which is before me. It is submitted that it is open to the IAA here to draw a similar inference as the reviewers in the previous two IAA matters. I note the new information appears to concern an applicant who left Sri Lanka illegally while on a weekly reporting arrangement, unlike the applicant in this case, as noted below, who departed Sri Lanka legally. Given also that I am to make my own assessment of the applicant’s individual circumstances on the basis of the information before me, I am not satisfied there are exceptional circumstances to justify considering this new information.

38    The Minister sought to argue, on appeal before me, what he would have argued had the matter not been dismissed at the interlocutory stage and the appellant been given an opportunity to proceed to argue his application for judicial review at a substantive hearing. There are a number of issues with the Minister’s proposed course. The Minister’s proposed course assumes that the appellant’s basis for judicial review before the primary judge was limited to the Authority’s treatment of his new information under s 473DD of the Act. It is apparent from the two grounds not pressed on appeal (because they were not raised below) that the appellant does take issue with other aspects of the Authority’s reasoning. Furthermore, even if the appellant’s application was so limited, it was the Minister himself who had submitted below that there was an arguable case on the basis of the (then) recent holding in AUS17. The appellant was not given an opportunity to present evidence or make submissions on this issue (or any other issue). For these reasons, I do not accept that this is a “straightforward case” for which it would be futile to remit given the inevitability of the result. Generally a person who has not received a fair hearing is entitled to have the judgment or order resulting from that hearing set aside on appeal and to have the matter remitted to the primary court for rehearing. Furthermore, a low threshold applies – an applicant for judicial review need only show a realistic possibility that a different decision could have been made: BKT17 at [26]. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue which required consideration: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [33].

39    I do not accept that consideration should be given to the delay, when assessing whether to remit, in these circumstances. It was open to the Minister, when the matter was dismissed by the primary judge in 2020, to consent to the appeal and for the matter to be remitted to the Circuit Court. It is concerning that this was not done.

Conclusion

40    The appeal will be allowed and the matter will be remitted to the Circuit Court for rehearing and determination according to law. The Minister will be ordered to pay the appellant’s costs.

Associate:

Dated:    22 March 2024