Federal Court of Australia BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 Appeal from: BJT19 v Minister for Home Affairs (Federal Circuit Court of Australia, Judge Street, SYG 842 of 2019, 26 September 2019) File number(s): NSD 399 of 2020 Judgment of: CHEESEMAN J Date of judgment: 26 July 2022 Catchwords: MIGRATION – application for extension of time within which to appeal from decision of Federal Circuit Court (now the Federal and Family Circuit Court of Australia) – where Circuit Court dismissed application for review of decision of the Immigration Assessment Authority – where the Authority refused the applicant's application for a Safe Haven Enterprise Visa (Subclass 790) –where sole ground of appeal in draft notice of appeal not raised before primary judge – Held: application for extension of time dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa) Federal Court Rules 2011 (Cth), rr 36.03, 36.05 Cases cited: AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12 BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11 BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 Coulton v Holcombe (1986) 162 CLR 1 DQU16 v Minister for Home Affairs [2021] HCA 10 Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 53 Date of hearing: 19 July 2022 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: Ms K Evans of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 399 of 2020 BETWEEN: BJT19 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: CHEESEMAN J DATE OF ORDER: 26 JULY 2022 THE COURT ORDERS THAT: 1. The application for an extension of time in which to appeal be dismissed. 2. The applicant pay the first respondent's costs of the proceedings to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHEESEMAN J: INTRODUCTION 1 This is an application for an extension of time within which to file an application to appeal from a judgment of the Federal Circuit Court (now the Federal Circuit and Family Court of Australia). 2 The applicant is self-represented. He is a citizen of Bangladesh and speaks Bengali. He does not speak, or is at least, not conversant in, English. At the hearing of the application, the Court was assisted by an interpreter fluent in the Bengali and English languages. I am conscious of the difficulties faced by litigants who are not legally represented, particularly when that difficulty is compounded by limited English speaking skills and the stress occasioned by what is personally at stake for the litigant. I have taken this into account in considering the submissions made by the applicant and in reviewing the materials available for the determination of the application. 3 On 29 September 2019, the primary judge delivered an ex tempore judgment dismissing the applicant's application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, and gave oral reasons. The primary judge did not thereafter publish written reasons, instead making an order that "the transcript of the published oral reason may be released to any party if they so request and the transcript of the published oral reasons will not be settled by the court". In dismissing the application, the primary judge affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) not to grant the applicant a Safe Haven Enterprise Visa (Subclass 790) visa (SHEV): see BJT19 v Minister for Home Affairs (Federal Circuit Court of Australia, Judge Street, SYG 842 of 2019, 26 September 2019) (PJ). 4 At the relevant time, r 36.03 of the Federal Court Rules 2011 (Cth) provided that any notice of appeal against a judgment of the Circuit Court was required to be filed within 28 days after the date on which the judgment appealed from was pronounced. Any notice of appeal with respect to the ex tempore judgment delivered on 26 September 2019 was required to be filed by 24 October 2019. The applicant did not file a notice of appeal by that date. It was not until 6 April 2020 that the applicant filed the present application for an extension of time, accompanied by an affidavit sworn by him on 6 April 2020 and a draft notice of appeal. Accordingly, the applicant requires an extension of time under r 36.05 of the Rules of 165 days. In the application, the applicant erroneously seeks an extension of time under r 36.23, which relates to an extension of time within which to lodge an application for review of a migration decision under s 477A(2) of the Act. The application was conducted on the basis that it was an application under r 36.05 of the Rules. 5 In the draft notice of appeal the applicant seeks to raise a single ground of appeal – that the Authority has "failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth)". This ground was not raised as a ground of review before the primary judge. Accordingly, if an extension of time is granted to permit the notice of appeal to be filed, the applicant will require leave to raise this ground for the first time on appeal. Conclusion in summary form 6 For the reasons that follow, the application for an extension of time in which to appeal is dismissed. By way of summary, and not to supplant the reasons expressed below, even if the applicant could adequately explain the significant delay and that prejudice to the Minister was not an insurmountable impediment, the proposed ground of appeal is lacking in merit and the extension of time is not required to do justice between the parties. I have reached that conclusion because the primary judge cannot be found to have erred in relation to a ground that was not raised. Moreover, having regard to the substance of the ground, it is lacking in merit and it would not be in the interests of justice to grant the extension to enable the applicant to raise it for the first time on appeal. Although the Authority's reasons in relation to its assessment of the complimentary protection criterion are brief, no error has been demonstrated. The brevity of the reasons is explained by the fact that the Authority has incorporated its anterior findings, the reasoning for which is in the earlier section of its reasons assessing the application of the refugee criterion, in its assessment of the complimentary protection criterion. BACKGROUND 7 The applicant is a Bengali man with a Sunni Muslim background. He was born in the Comilla District of southeast Bangladesh in 1984. Before arriving in Australia, he worked as a farm labourer, including growing vegetables to sell on a small piece of land he owned. The applicant's family comprise his mother, two brothers and two sisters, one of whom has an intellectual disability, all of whom reside in Bangladesh. His father is deceased. He is not married and does not have any children. 8 On 14 March 2013, he arrived at Christmas Island, Australia as an unauthorised maritime arrival, having travelled from Bangladesh to Jakarta by boat, and then from Jakarta to Christmas Island. On 30 September 2016, the applicant lodged an application for a SHEV. On 13 December 2018, a delegate of the Minister refused to grant the SHEV. 9 The applicant's claims for protection are contained in an irregular maritime arrival interview conducted with the Department of Immigration and Citizenship on 12 April 2013, a subsequent interview with the Department on 9 November 2018, a sworn statement submitted with his application for a SHEV, and a copy of the decision record relating to the Department's refusal of the applicant's visa application. 10 The thrust of the applicant's claims for protection are that he would be seriously harmed or killed if returned to Bangladesh because of his political affiliation and activity. In broad terms, he claims that he was coerced to participate in the political activities of the Bangladesh National Party (BNP) and that his participation in those activities resulted in him receiving adverse attention from the Awami League (AL), a rival political organisation to the BNP, who threatened to harm him if he continued to engage with BNP. He fears that if he returns to Bangladesh he will be harmed or killed by members of the AL or the BNP. For present purposes, it suffices to note two aspects of the applicant's claims for protection. 11 The first is that his claims were predicated on events he says occurred in and around 2012. He says that an election was due to be held at the end of 2012 and that that political rivalry between the BNP and the AL was worse during 2012 in the lead up to the election time that he says was due to take place at the end of that year. 12 The second is that he says that after being seen at a BNP protest, in November 2012, members of AL physically assaulted him using fists, kicks and a knife. Then, in December 2012, he says that members of the AL demanded that the applicant give them land which he owned so that it could be used for AL meetings as an AL club house. The produce grown on the applicant's land was his only source of income, and he refused the AL's demand. He says that throughout December 2012, members of the AL visited him several times and threatened to kill him if he did not give them his land. He says he stalled them by asking them to wait until his crop had finished growing but, in December 2012, he went into hiding to avoid the AL and decided he had to leave Bangladesh. The applicant says he sold his land to another local man in December 2012. Instead of the applicant being paid for the land, the purchaser paid an agent directly to arrange for the applicant to travel to Australia. He says that both before and after his departure, members of the AL have asked his mother about his whereabouts. He claims that AL members wanted to enact revenge on him for selling his land. 13 He claims to fear harm from members of both the BNP and the AL if returned. PROCEDURAL HISTORY Decision of the IAA 14 On 5 March 2019, the Authority affirmed the decision of the delegate not to grant the applicant a SHEV and delivered written reasons (A). The information before the Authority comprised the material given by the Secretary of the Department under s 473CB of the Act. No further information was obtained or received: A [3] to [4]. 15 The country information used by the Authority included various articles from Bangladeshi news publications, reports from the Australian Department of Foreign Affairs and Trade (DFAT), submissions to human rights forums, and an issues paper on political violence in Bangladesh. 16 The Authority first assessed the applicant's claim based on the refugee criteria in s 36(2)(a) of the Act (A [6] to [20]) before moving to assess the complimentary protection criterion in s 36(2)(aa) of the Act (A [21] to [24]). In reaching its conclusion on the application of the complimentary protection criterion, the Authority relied on its earlier factual findings, made in the context of the refugee criterion, that "the applicant does not face a real chance of harm from the AL or the BNP in connection with politics; the AL in connection with the sale of his land; because he departed Bangladesh illegally; or because he would be returning having sought asylum overseas": A [23]. 17 The Authority's conclusion as to the risk of harm to the applicant if returned followed from the fact it did not accept the applicant's claim that he was forced to join the BNP, nor any of his associated claims. The Authority found that the relevant country information revealed that there was no election in Bangladesh in 2012 or 2013. Inferentially, the Authority rejected the applicant's contention that he was the subject of coercion in 2012 in the context of there being heightened political activity at the time because of an impending election. Further, the Authority found that the country information did not support that either the BNP or the AL forcibly recruited people to become members or to engage in political activities against their will. Further, the Authority found that the applicant's description of his involvement in BNP rallies was "generic" and not consistent with actual lived experience: A [13]. 18 The Authority accepted that that the applicant owned a small plot of land in Bangladesh and sold it to fund his travel to Australia. However, it was not persuaded that AL members had tried to appropriate his land. Whereas the Authority accepted that in Bangladesh land grabbing sometimes occurred to minority groups, the country information did not support that it routinely occurred to Bengali speaking Bangladeshi people. Further, the Authority found it implausible that the AL would have threatened the applicant but then allowed him to retain his land to harvest his crop. The Authority did not accept that the applicant went into hiding, as claimed, and noted that registration of the sale of land in Bangladesh involved a lengthy bureaucratic process: A [14]. 19 As the Authority did not accept the applicant's claims about the AL, it followed that it did not accept that the AL had visited his mother, as claimed: A [15]. The Authority was not satisfied there was a real chance the applicant would suffer harm for the reasons claimed: A [16]. 20 Although not part of the claims advanced by the applicant, the Authority noted that the delegate considered whether there was a risk of harm to the applicant as a result of his illegal departure from Bangladesh: A [17]. The Authority had regard to country information which recorded that penalties of up to one year's imprisonment or a fine applied for departing Bangladesh other than in accordance with the Emigration Ordinance of 1982. However, it found that these penalties did not appear to be enforced. Further, that Bangladesh accepts involuntary and voluntary returnees and the International Organisation for Migration runs a program in Bangladesh that assists returnees with training and other assistance to enable them to find work or begin a business. DFAT assesses that people who return to Bangladesh, voluntarily or involuntarily, are unlikely to face adverse attention on their return and are unlikely to be reported: A [18]. 21 The Authority accepted that the applicant departed Bangladesh illegally, travelled to Australia without a passport, and that he might be suspected of seeking asylum overseas. However, having rejected the applicant's factual claims, and noting that the applicant did not claim to have engaged in politics in Australia or that he would seek to take part in political rallies or other activities if he were to return to Bangladesh, the Authority was not satisfied there was a real chance the applicant will suffer any harm because he departed Bangladeshi illegally or because he has claimed asylum: A [19]. 22 The Authority concluded that the applicant did not meet the definition of refugee in s 5H and therefore did not meet s 36(2)(a) of the Act: A [20]. 23 In its assessment of the application of the complimentary protection criterion in s 36(2)(aa) of the Act, the Authority first identified that a criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm: A [21]. The Authority next noted the terms of s 36(2A) of the Act as to what constitutes "significant harm": A [22]. Having regard to its anterior findings and its finding that the applicant did not face a real chance of harm for the purposes of s 36(2)(a) of the Act, the Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned the applicant would face a real risk of suffering significant harm for the purposes of s 36(2)(aa) of the Act for the reasons claimed or because he had departed the country illegally and was a failed asylum seeker: A [23] to [24]. In doing so, the Authority observed that "real risk" and "real chance" involve the application of the same standard, referring to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (see [242] to [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ and Flick J concurred on this point)). Circuit Court proceedings 24 Included in the court book, prepared and filed by the Minister, is a document in the form of a Federal Circuit Court of Australia judgment template which bears a "DRAFT" watermark and which on its face is incomplete. The document bears the parties details, the hearing date and the file number and the description "Judgment of: Judge Street". The orders section of the document is in draft, includes ellipses, and is not the same as the orders that were entered in the proceedings. There are 22 paragraphs under the heading "Reasons for Judgment" which appear to a reproduction of the transcript of the ex tempore judgment in the proceedings below with paragraph numbering applied. As noted at the outset, the primary judge did not publish written reasons and the document described as "Judgment of: Judge Street" is not certified. The document is described in the court book as "Transcript of oral reasons for judgment of Judge Street (dated 26.09.19)" and I refer to it within as PJ. 25 The primary judge refers to the Authority as the "tribunal" on six occasions. In context it is clear that this is a slip, and that the primary judge intended to refer to the Authority throughout. 26 The grounds of review are not included in the court book. The Minister submitted that the applicant raised two grounds of review in the Circuit Court in his originating process filed on 4 April 2019 (as written): 1. The IAA should have given me a fair chance to explain and provide more evidence on my claims if they do not believe my story and have any concern about my reliability and credibility. It should have verified my documents with authorities if it does not believe they are genuine as all documents I provided are genuine. 2. The IAA failed to take into consideration that if I returned to Bangladesh as a failed asylum seeker, I would face up to one year imprisonment, putting me under real harm in future. 27 The grounds of review were described by the primary judge in terms consistent with the above extract: PJ [18] to [20]. 28 The primary judge noted that an order had been made giving the applicant an opportunity to file an amended application, affidavit evidence and submissions before the hearing but that no such documents were filed: PJ [10]. The primary judge recorded that at the commencement of the hearing, the court had explained to the applicant the nature of the hearing, and that the applicant had confirmed that he understood the explanation given by the court: PJ [11]. The primary judge noted that from the bar table, the applicant maintained that he had told the tribunal (sic) his true story and that he hadn't been believed: PJ [11]. 29 The dispositive reasoning of the primary judge is as follows (as written): 12. The tribunal identified a number of reasons for not accepting the applicant's claims, including the inconsistency with country information and the date of the election as well as the vague and generic nature of his description of his involvement. Those were logical and rational reasons. The adverse credibility findings by the tribunal cannot be said to lack an evident and intelligible justification. 13. The applicant's submissions from the bar table otherwise invite this court to engage in merits review. This court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. In relation to ground 1 in the application, the applicant complains about the tribunal not giving him a chance to explain and provide more evidence in relation to his claims and story. 14. The provisions of part 7AA provide an exhaustive statement of the requirements of the natural justice hearing rule through section 473DA and, subject to the provisions of section 473DB, requires the authority to review the fast track reviewable decision without accepting the request for new information and without interviewing the referred the applicant. However, under section 473DC(2), the authority does not have a duty to get, request or accept any new information. 15. In the circumstances of the present case, there is no issue that has been identified that would have required the authority to expressly consider the requirements of section 473DC(3). Given the statutory regime, the authority was not required to invite the applicant to be heard before making adverse credibility findings. 16. The delegate had not accepted that the applicant was forced to take part in protests and rallies organised by the political parties, and did not accept the applicant had to leave Bangladesh because he was harassed or targeted or assaulted by the BNP, Awami League or other political party. The delegate did not accept the applicant was threatened by the Awami League to hand over his land. 17. Given the opportunity provided by the authority to the applicant to put on new information and submissions, the absence of express consideration of the powers under section 473DC(3) cannot be said to lack an evident and intelligible justification. For the reasons already given, the adverse findings in relation to the applicant's credibility were open to the tribunal and cannot be said to be illogical or unreasonable. 18. Insofar as ground 1 refers to an issue in respect of the genuineness of documents, no part of the authority's reasons referred to credibility findings based on the lack of genuineness of documents. No jurisdictional error is made up by ground 1. 19. In relation to ground 2, the assertion that the tribunal failed to take into account the potential exposure to up to one year's imprisonment in paragraph 2 is inconsistent with the authority's reasons that expressly refer to the relevant ordinance and identify the potential penalty, up to one year's imprisonment or a fine. 20. The authority referred to country information not supporting these penalties being enforced, and the authority's reasons clearly made dispositive findings in respect of the applicant's claimed fear of harm by reason of his illegal departure as well as the applicant's other claims in paragraph 19. There was no failure by the authority to address the integers of the applicant's claim. No jurisdictional error is made up by ground 2. 30 As mentioned, the ground of appeal that the applicant seeks to pursue if an extension of time is granted was not a ground of review advanced before the primary judge. PRINCIPLES applicable to an application for Extension of time 31 The principles relevant to an application for an extension of time under r 36.03 of the Rules are well established, and are comprehensively canvassed by Colvin J in BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37] to [42]. They are as follows (BJM15 at [38], citations omitted in original): (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'. (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 … 32 Justice Colvin noted that in relation to applications for extension of time in migration cases, the special circumstances identified in paragraph (f) of the above extract must be considered but, even so, merits will remain a relevant factor: BJM15 at [39]. CONSIDERATION 33 After careful consideration of the material before me and the oral submissions made by the applicant, I have reached the conclusion that the application must be dismissed. 34 As a preliminary matter, I note that the approach adopted by the primary judge in these proceedings appears to be the same or similar to that taken by the same primary judge in a number of other proceedings: see in particularly BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12 (Markovic J) and BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11 (Markovic J). Unlike in the appeals in BFN19 and BGB19, the proposed appeal in the present proceedings does not raise as a ground of appeal whether the primary judge, having delivered ex tempore reasons, was thereafter required to provide formal (certified) written reasons and, if so, whether the failure to do so amounted to a failure to validly exercise judicial power. Having regard to the common procedural features between the present proceedings and BFN19 and BGB19, and the decisions in each of those appeals, an appeal ground so framed would have been unlikely to succeed in the present proceedings, even if the applicant had raised it. It is appropriate to record, however, that the approach adopted by the primary judge in this case, causes me the same concern as that expressed by Markovic J in respect of the primary judge's approach in BFN19 and BGB19: see BFN19 at [36] and BGB19 at [31]. 35 I now turn to consider the issue at hand. The applicant relies on a single short affidavit of his own making on the application for an extension of time. It is convenient to extract the whole of the substantive part of the applicant's affidavit (as written): I was not aware of the decision and was hoping the Department of Home Affairs will write to me about the future steps that I need to take. However I was incorrect and therefore lodging this application for extension of time. 36 The applicant also relies upon the record as disclosed in the court book. 37 At the hearing of the appeal, the applicant confirmed that he represented himself at the hearing before the primary judge and was present when the judge made orders, a copy of which are annexed to his affidavit. Further, that an interpreter interpreted what the judge said into the applicant's language. 38 At the hearing of the application, after describing the nature of the appeal, I invited the applicant to address on each of the following topics as well as any others on which he wished to advance submissions. The applicant did not in substance expand upon what he had said in his affidavit. Length of and explanation for the delay 39 The applicant's delay of 165 days is significant in the context of the 28 day period within which the application was required to be made. I am conscious that the time limits prescribed by the Rules are "not mere aspirational guidelines" and that "once any period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs": BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]. 40 The applicant has sought to explain his delay in his affidavit, filed in support of the extension application. Although he says that he was "not aware" of the primary judge's decision and was "hoping" the relevant Department would write to him about future steps, the applicant was present when the primary judge delivered his ex tempore judgment and made orders. As mentioned, at the hearing of the appeal, the applicant confirmed that an interpreter was present and interpreted the proceedings. The orders annexed to his affidavit are the orders made in his presence and interpreted into Bengali on 26 September 2019. While I have sympathy for the applicant as a self-represented litigant with very limited English, I do not regard the applicant's evidence that he was "hoping" that the Department would write to him about future steps as an adequate explanation for his delay in commencing an appeal within the 28 day period or within a reasonable time thereafter. It is well established that whilst the court may have considerable sympathy for a litigant in person who fails to bring an appeal within time as a result of ignorance of the stipulated timeframe, ignorance (without more) is generally not regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 at [38]. Any prejudice to the respondent if an extension is granted 41 Not surprisingly the applicant had nothing to say on this topic. The Minister did not submit that an extension of time would cause any specific prejudice but contended that the Minister has a legitimate interest in the timely disposal of visa applications. I accept that is so. In addition, I note that if the extension was granted, the Court on appeal would be acceding to an invitation to consider the issue for the first time and in doing so, render the proceedings before the primary judge as a "preliminary skirmish": SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [9] to [10] per Flick J citing Coulton v Holcombe (1986) 162 CLR 1 at 7. That itself may amount to general prejudice at the procedural level. The merits of the proposed substantive application 42 The single ground of appeal that the applicant seeks to raise is that the Authority has "failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth)". As mentioned above, this ground was not raised as a ground of review before the primary judge. Accordingly, as noted at paragraph [5] above, if an extension of time is granted to permit the notice of appeal to be filed, the applicant will require leave to raise this ground for the first time on appeal. There is a degree of overlap between the considerations that inform the grant of leave to raise a new ground on appeal and those that inform the grant of an extension of time within which to appeal. The merits of the new ground is one of the areas of overlap. Another area of potential overlap is in respect of the explanation given by the applicant. When seeking leave to raise a new ground on appeal, the appellant must explain why the ground was not raised below. 43 Leave will only be granted where the Court considers that it is expedient in the interests of justice to permit the appellant to argue it on appeal for the first time: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319 (Mason J); VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). The merits of the proposed new ground is as "an important consideration": Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [33] (Gilmour, Logan and Mortimer JJ). The assessment of merits should occur at a "reasonably impressionistic basis", but it does not follow that a real and genuine consideration of the reasons of the primary judge, and in the present case, the Authority, does not have to be undertaken: AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [55] (Derrington J). 44 The applicant has not advanced an explanation for the failure to raise the ground below but the Minister accepts that it can be inferred that the reason this ground was not raised before the primary judge was because the applicant was, and continues to be, unrepresented. 45 The Minister took the pragmatic approach of opposing the grant of leave principally on the basis that the new ground is unclear and lacking in merit. Both points are well made. The proposed ground is a bare assertion of error. The applicant did not provide any written submissions in advance of the appeal. His oral submissions at the hearing did not address the way in which the Authority is said to have failed to apply the correct test. A fair reading of the Authority's reasons makes it plain that the Authority applied the correct test under s 36(2)(aa) of the Act. Although the Authority's reasons in relation to its assessment of the complimentary protection criterion are brief, no error has been articulated or demonstrated. The brevity of the Authority's reasons is explained by the fact that the Authority has incorporated its anterior findings, the reasoning for which is in the earlier section of its reasons assessing the application of the refugee criterion, in its assessment of the complimentary protection visa. 46 Section 36(2)(aa) of the Act relevantly provides that a criterion for a protection visa (which includes a SHEV), is that the applicant is: a non-citizen in Australia….in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm… 47 The Authority referred to the terms of s 36(2)(aa) at A [21]. The Authority correctly observed that the criterion in s 36(2)(aa) does not apply to non-citizens in Australia in respect of whom the Minister is satisfied Australia owes protection obligations because the person is a refugee: s 36(2)(a); A [21]. Section 36(2A) of the Act exhaustively defines circumstances constituting 'significant harm' for the purposes of s 36(2)(aa) in the following terms: A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment The Authority extracted s 36(2A) at A [22]. 48 The applicable principles are well established. The legislative scheme is comprehensively described in SZQRB at [64] to [77] (Lander and Gordon JJ). Relevant to the present application, is the observation of Lander and Gordon JJ that (at [71]): If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen's removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen's rights to obtain the grant of a protection visa. 49 The statutory task of a decision-maker under s 36(2)(aa) of the Act was described in DQU16 v Minister for Home Affairs [2021] HCA 10 (Kiefel CJ, Keane, Gordon, Edelman, Steward JJ) (at [13]): The question s 36(2)(aa) asks is whether the decision-maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a "necessary and foreseeable consequence" of the person's return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision-maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, (3) there is a real risk that the non-citizen will suffer significant harm. 50 The Authority's reasons reflect that it approached its task in the correct order and posed for itself the correct questions. The Authority concluded (at A [23] to [24]) that: …the applicant does not face a real chance of harm from the AL or the BNP in connection with politics; the AL in connection with the sale of his land; because he departed Bangladesh illegally; or because he would be returning having sought asylum overseas. As 'real risk' and 'real chance' involve the application of the same standard I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa)… 51 As mentioned earlier, the Authority's reasoning in relation to each of the findings relied on at A [23] is contained in the earlier section of its reasons. 52 The error advanced by the proposed ground of appeal is lacking in merit. It would not be expedient in the interests of justice to permit the appellant to argue it on appeal for the first time. The application for an extension of time within which to appeal ought be refused. CONCLUSION 53 For the reasons given, the application for an extension of time within which to appeal is dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate: Dated: 26 July 2022