Abd18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 575

FEDERAL COURT OF AUSTRALIA

ABD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 575

Appeal from:	ABD18 v Minister for Home Affairs & Anor [2019] FCCA 3012
File number(s):	WAD 620 of 2019
Judgment of:	GREENWOOD J
Date of judgment:	18 May 2022
Catchwords:	MIGRATION – consideration of an application for an extension of time and for leave to file a proposed notice of appeal
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	25
Date of last submission/s:	28 October 2020
Date of hearing:	19 November 2020
Solicitor for the Applicant:	Gilbert + Tobin
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

WAD 620 of 2019

BETWEEN:

ABD18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	GREENWOOD J
DATE OF ORDER:	18 MAY 2022

THE COURT ORDERS THAT:

1.The applicant is granted an extension of time to file a notice of appeal as sought by the substituted application for an extension of time filed on 2 September 2020. 

2.The applicant is granted leave to rely upon the notice of appeal being Annexure DJL‑2 to the affidavit of ABD18 filed on 2 September 2020. 

3.The notice of appeal referred to in Order 2 of these orders is to be filed within 30 days of the date of these orders. 

4.The first respondent pay the costs of the applicant of and incidental to the application. 

5.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. 

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

REASONS FOR JUDGMENT

GREENWOOD J:

1. These proceedings are concerned with an application for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) (the “primary court”), constituted by Kendall J (the “primary judge”), and an application for leave to raise an additional ground of appeal so as to rely upon proposed Ground 2 of the draft notice of appeal. 

2. I have had the benefit of reading the affidavit of “RAS” (and I will, in effect, anonymise the deponent), and the affidavit of “ABD18” in support of the application. 

3. As to the extension of time, the relevant factors are:  the length of the delay; whether there is an acceptable explanation for the delay; the merits of the proposed substantive appeal; and any prejudice to the respondent Minister. 

4. The Federal Court Rules 2011 (Cth) require an appeal from the primary court to be filed within 28 days of the pronouncement of the primary court’s judgment. In this case, an application for an extension of time was filed 55 days after the pronouncement of the judgment and therefore 27 days late. The Minister does not contend for any “specific prejudice” should an extension of time be granted although the Minister contends that a lack of prejudice does not, of itself, warrant the grant of an extension of time.

5. As to the reasons for the delay, these matters are relevant.  The decision was delivered on 23 October 2019.  Any notice of appeal was required to be filed by 20 November 2019.  On 5 November 2019, the applicant was told by his lawyer that his lawyer would no longer act for him.  The applicant sought assistance otherwise on 14 November 2019.  The applicant engaged further with his former lawyer on 20 November 2019.  The applicant attended the Federal Court as a self‑represented litigant seeking the assistance service of this Court.  An appointment was nominated for 4 December 2019.  The applicant attempted to file papers that day but they were not in the proper form.  The applicant attempted to re‑file them on 17 December 2019.  The application for an extension of time was filed that day.  On 22 June 2020, Gilbert+Tobin filed a notice of acting and on 2 September 2020, an amended or substituted application for an extension of time was filed. 

6. I am satisfied that the delay in filing until 17 December 2019 is properly and adequately explained. 

7. The question of whether an extension of time and leave to rely on the additional Ground 2 of the proposed notice of appeal is to be granted, fundamentally turns on the merits of the proposed grounds of appeal.  In addressing the merits of the proposed grounds, I do not propose to consider each ground as if the contended grounds of appeal were before me for, in effect, final determination.  I propose to consider the proposed grounds of appeal solely for the purpose of determining whether the grounds are “arguable” or “sufficiently arguable” such that an extension of the time for filing ought to be given even though I might not be persuaded that the proposed grounds would necessarily ultimately succeed.  I am not considering the grounds as if I were finally determining that matter.  The question is:  Are the grounds sufficiently arguable to warrant providing the applicant with an opportunity to file the notice of appeal so as to fully argue the grounds with both oral and written submissions as part of an appeal by way of re‑hearing? 

8. The applicant accepts that for leave to be granted to rely upon Ground 2 of the proposed notice of appeal and for an extension of time to be granted, both grounds of appeal “must have merit”, in the sense in which I have described the test to be applied. 

9. As to Ground 1, the contention is that the primary judge erred by not finding that the Immigration Assessment Authority (the “IAA”) fell into jurisdictional error when failing to take into account a “relevant consideration”, namely, the applicant’s mental health, when the IAA found that there were no exceptional circumstances for the purposes of s 473DD of the Migration Act 1958 (Cth) (the “Act”) to justify the consideration of “new information” that the applicant may need to travel outside of Malistan “to access health services”.

10. Section 473DD of the Act provides that the IAA must not consider any new information in conducting a review of the delegate of the Minister unless it is satisfied that there are exceptional circumstances to justify considering the new information, and the referred applicant satisfies the IAA that in relation to any new information, given or proposed to be given to the IAA, the new information “was not, and could not have been provided to the Minister” before the decision was made under s 65 of the Act, or the information is “credible personal information” which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. 

11. As to the new information, the primary judge noted these matters at [60] and [61]:

    60.The question for this Court is: did the IAA adopt an unduly narrow view of what were “exceptional circumstances” pursuant to s 473DD of the Act when it declined to consider new information advanced by the applicant?

    61.Here, the information provided consisted of a submission from the applicant’s migration agent dated 11 January 2019 which, relevantly, claimed that:

    i)        the applicant would likely require medical treatment; and

    ii)        treatment would [or] may not be available in Malistan. 

12. At [62], the primary judge quotes paragraphs from the IAA’s decision.  At para 14 of the IAA’s decision, it notes the 2019 submission as claiming that “it is probable” that the applicant will need to access health services and that such services may not be available in Malistan.  The IAA notes at para 14 that the submission from the applicant’s lawyers refers to the circumstance that the applicant had been referred to the “Primary Application and Information Service” (“PAIS”) for assistance and that this means that the applicant was assessed as being “extremely vulnerable”. 

13. At [72], [84] and [88], the primary judge said this:

    72.Here, it is clear that the new information provided by the applicant was assessed as new information raising a new claim.  The question that arises is whether the IAA failed to actively engage with that new information when it determined that there were no exceptional circumstances to justify considering the new information.  That is, do the reasons engage with the significance of the information and whether it was information that may have affected the result had it been known to the Minister’s delegate?

    84.It is evident that in claiming that he might not be able to access essential medical services in Malistan, the applicant is saying that he might need to travel to get those services.  This is significant because the IAA, in its substantive reasons affirming the decision not to grant the visa application, spent a great deal of time canvassing the country information relevant to travel [on] Afghanistan’s roads (noting, in particular, [16] and [48]‑[54]). Ultimately, the IAA determined that road travel was not an issue for this applicant. [emphasis added]

    88.Here, the new claim simply states that … it is probable that the applicant will need to access health services, and that such services may not be available in the applicant’s home state of Malistan.  As such, he might need to travel to obtain health services.  [original emphasis]

14. The applicant emphasises the observations of the primary judge at [94] in the context of all of the matters described above.  At [94], the primary judge said this:

    94.When reading the IAA’s decision as a whole, it is clear that the IAA has considered the significance of this new, speculative information and whether it may have affected the relevant decision.  At [15], the IAA explained that there was nothing before it to indicate that the applicant’s mental health was a factor that would cause him significant harm.  In the Court’s view, [15] clearly indicates that the IAA engaged with the significance of the new claim and whether it may have affected the result.  The IAA expressly noted that there was nothing to indicate why the PAIS assistance had been provided.  Had that information been supplied, or had the applicant advanced evidence of a medical condition or a need for treatment, then the IAA may well have formed a different view about whether the applicant’s claimed mental health condition affected his ability to travel in Afghanistan.  Unfortunately, the new information that was provided was sparse and unsupported.  There was, for example, no material or evidence that the applicant was the subject of any treatment plan or medication that would have required him to travel to obtain either. 

    [emphasis added]

15. At [94], the primary judge recognises that PAIS assistance had been provided to the applicant, and the applicant had given evidence of his mental health concerns and the relationship between those concerns and seeking access to health services and medical treatment outside Malistan, as the quoted paragraphs show.  The IAA was concerned about the “strength” of the supporting evidence beyond the applicant’s own assertions and thus his own evidence.  Nevertheless, the primary judge recognised that had the applicant “advanced evidence” of a medical condition or a need for treatment, then the IAA “may well have formed a different view” about whether the applicant’s claimed mental health condition affected his “ability to travel in Afghanistan”.  Nevertheless, the contention of the applicant is that the IAA had sufficient evidence before it to treat the information as “new information”. 

16. I am satisfied that the question of the IAA’s contended failure to take into account the applicant’s mental health gave rise to a “sufficiently arguable” ground of jurisdictional error in the IAA contending that there were “no exceptional circumstances” for the purposes of s 473DD of the Act and, in consequence, the primary judge at least arguably erred in failing to so find.

17. As to Ground 2, the applicant seeks to contend that the primary judge erred in failing to find that the IAA had acted unreasonably in not considering exercising its statutory power under s 473DC of the Act concerning the applicant’s mental health and thus the IAA fell into jurisdictional error.

18. Although s 473DC casts no obligation on the IAA to seek out documents or information not previously before the Minister, it has the statutory power to do so if it considers the documents or information “may be relevant”. By s 473DC(3), the IAA may invite a person, orally or in writing, to give new information, in writing; or, to provide that new information at an interview whether conducted in person, by telephone or in any other way.

19. Ground 2 takes up the observation at [94] of the primary judge’s reasons in the sense that it is said to demonstrate that had documents or further information concerning the mental health of the applicant been sought by the IAA, it would certainly have been relevant to the question before the IAA and, consistent with the observations of the primary judge at [94], the documents or information “may well have” caused the IAA to “[form] a different view about whether the applicant’s claimed mental health condition affected his ability to travel in Afghanistan”. 

20. The IAA’s decision reveals no further engagement with the applicant concerning his mental health. 

21. The applicant contends that even though he requested that his mental health be taken into consideration, he was not asked any questions about the nature of the condition, any treatment plan (by PAIS or otherwise) or about any medication.  The applicant contends, by counsel, that the circumstance of the applicant’s mental health was a “critical fact” which would have suggested to the IAA that further material concerning the applicant’s mental health was likely to be available. 

22. I am satisfied that Ground 2 of the proposed notice of appeal is, at the very least, “arguable”. 

23. The Minister contends that the application for an extension of time ought to be rejected and in forming that view, the Minister contends that the Court ought to form the view that there is no merit in either of the two grounds the applicant would seek to rely upon.  However, in putting that proposition, the Minister is essentially requesting the Court to form now a final determinative view that each of the grounds of judicial review of the IAA’s decision would fail.  The question to be determined is whether the grounds are sufficiently arguable to justify providing the applicant with an opportunity to properly argue, fully, the grounds in the course of an appeal by way of re‑hearing rather than a summary rejection of both grounds on the footing of a final determination now made that they would fail. 

24. I am satisfied that both grounds are sufficiently arguable, going as they do to a question of whether the IAA engaged in jurisdictional error in relation to a matter involving a Protection visa which in turn involves a question of whether Australia owes protection obligations to the applicant, such that an extension of time ought to be granted, and leave to rely upon both grounds of the proposed notice of appeal, ought to be granted. 

25. The Minister will be ordered to pay the applicant’s costs of and incidental to the application.

I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

Associate:

Dated:       18 May 2022