Federal Court of Australia

MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on the further amended notice of appeal.

2.    The appellant file the further amended notice of appeal within seven days.

3.    The appellant be granted leave to adduce into evidence the transcript of the hearing before the Administrative Appeals Tribunal.

4.    The appeal be allowed.

5.    Order 1 of the primary judge dated 22 April 2020 be set aside.

6.    In lieu thereof, it be ordered that the decision of the Administrative Appeals Tribunal dated 14 May 2019 be set aside and the matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

7.    The first respondent pay the appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    We consider that the appellant should be granted leave to rely on new grounds of appeal not raised before the primary judge and to adduce fresh evidence, in particular the transcript of the hearing before the Administrative Appeals Tribunal (the Tribunal). The appeal should be allowed on the basis that the Tribunal’s decision is vitiated by jurisdictional error. Our reasons follow. As the merit of the new grounds is relevant to the decision to grant leave, we deal with the substance of the appeal based on the new grounds first and the question of leave second.

2    The background to the appeal is this. The appellant was born in what is now South Sudan. He was granted a Class XB Global Humanitarian visa upon his arrival in Australia in 2007. He committed various criminal offences which caused the mandatory cancellation of his visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The appellant made representations to the Minister’s delegate as to why the cancellation of his visa should be revoked in accordance with s 501CA(3)(b) of the Act. The Minister’s delegate decided not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Act. The appellant sought merits review of this decision in the Tribunal. The Tribunal decided to affirm the decision under review: MQGT and Minister for Home Affairs (Migration) [2019] AATA 874. The appellant appealed to this Court on the basis that the Tribunal allegedly failed to consider aspects of his representations for the purposes of making its decision under s 501CA(4)(b)(ii) of the Act. The primary judge dismissed the appeal: MQGT v Minister for Home Affairs [2020] FCA 520. The appellant now appeals against the primary judge’s order dismissing his appeal. None of the grounds now sought to be raised were put to the primary judge. The appellant was not represented before the Tribunal. The appellant had legal representation before the primary judge. He has different legal representation in this appeal which is the sole explanation for the new grounds being raised for the first time in this appeal.

3    There are three new appeal grounds but, in truth, they are all inter-related. The first is that the Tribunal erred by failing to comply with para 14.1(1) of Direction No 79 made under s 499 of the Act. The second is that the Tribunal erred by failing to engage in an active intellectual process with respect to representations made by the appellant about his fear of harm if returned to South Sudan. The third is that the Tribunal erred by denying the appellant procedural fairness by failing to direct the appellant’s mind to the issue of whether he had a subjective fear of harm about returning to South Sudan in circumstances where it was not obvious from the delegate’s decision, the Minister’s case or Direction No 79 that it was a critical issue or that the appellant’s representations about his subjective fear would not be believed. There are two aspects to the first two of the new grounds – the first aspect is the Tribunal’s alleged failure to consider international non-refoulement obligations given the representations the appellant made and the second aspect is the Tribunal’s alleged failure to seek and obtain country information about the security situation in South Sudan such as the Department of Foreign Affairs and Trade (DFAT) Country Information Report South Sudan dated 5 October 2016 (which, along with the transcript of the hearing before the Tribunal was the new evidence which the appellant sought leave to adduce in support of the appeal). As will be apparent from our reasons below, we accept the first aspect of the appellant’s case and that this involved a denial of procedural fairness to the appellant as claimed in new ground 3. As a result, it is unnecessary to decide the second aspect of the appellant’s case. We note that the basic principle is that the Tribunal is not under any duty to make inquiries or to make an applicant’s case for them: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 at [7]-[9] and the cases there cited. Where there has been a failure to make an obvious inquiry about a critical fact, the Tribunal may not have lawfully exercised its power of review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. It is at least arguable that, in the present case, the DFAT country information about conditions in South Sudan constituted an obvious inquiry (given the appellant’s representations about his fear of being killed if he had to return) about a critical fact. We prefer, however, to found our conclusions on the first aspect of the appellant’s case.

4    To understand why we accept the new grounds of appeal insofar as they relate to the first aspect of the appellant’s case (the Tribunal’s alleged failure to consider international non-refoulement obligations given the representations the appellant made), it is necessary to record additional facts relating to the representations the appellant made, the hearing before the Tribunal, and the reasons for decision of the Tribunal.

5    The appellant completed a personal circumstances form as part of his request for revocation of the cancellation of his visa. In answer to the question “[d]o you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the appellant said:

I come to Australia because of the war…I’m scard [sic] that I won’t be alive. That I would be killed and homeless if I go back to Africa and have no-one back in Africa”.

6    In answer to a question “[a]re there any other problems you would face if you have to return to your country of citizenship?”, the appellant said:

I don’t have any family member back home. I grow up in refugee camp. I would also have to face the war. Big chance of my getting killed.

7    In a further letter in support of his revocation application, the appellant said:

I’m really scard [sic] to go back to South Sudan. I have no chance of being alive from [sic] I go back to South Sudan.

8    In the reasons of the delegate refusing to revoke the cancellation of the appellant’s visa, the delegate noted the appellant’s representation that he is “fearful of being killed and homeless and does not have any family in Sudan or South Sudan” and that his claims may invoke Australia’s non-refoulement obligations. According to the delegate, it was not necessary to consider this issue because the appellant could make a valid application for a protection visa in which case non-refoulement obligations would be considered in the course of processing that application. The delegate did not suggest that the appellant’s fears were groundless or false.

9    The respondent’s statement of facts, issues and contentions filed with the Tribunal referred to international non-refoulement obligations and said at [54]:

The applicant neither contends that this consideration is of relevance nor does the evidence that is currently available indicate that an assessment of this consideration is necessary in the circumstances.

10    From the transcript of the hearing before the Tribunal (which the appellant seeks leave to rely upon in the appeal), it is apparent that the appellant was unrepresented. The appellant said at the outset of the hearing that he was very nervous about speaking in public and had anxiety about speaking. The Tribunal then turned to the Minister’s representative and said that as the appellant was unrepresented it would be more informative to have the Minister’s representative give a summary of what the case was about. The Minister’s representative did so. In so doing the Minister’s representative did not refer to the appellant’s representation that he would be killed if he had to return to South Sudan. The Tribunal member mentioned that he had to consider the problems the appellant would have in returning to South Sudan but did not ask the appellant any question about these problems. The Tribunal took the appellant through a statement he had made which described his life history and circumstances but made no reference to his fears if he had to return to South Sudan as set out above. In so doing the Tribunal did not ask the appellant anything about his fears of returning to South Sudan. The closest the Tribunal came to this issue was one question to the effect that if the Tribunal decided the appellant had to return to South Sudan, where would he go to re-establish a life, where would he live? The appellant said probably Siliwe because it was cheaper and safer than his village but he had not thought about where he would live. The Tribunal later asked another question to the effect that if the appellant went back to South Sudan, given the skills he had, it would not be impossible for him to re-start his life there. The appellant said he was not too sure as he came here when he was nine and knew it was not the easiest to get a job back home so he could not answer the question. The Tribunal then invited the Minister’s representative to ask the appellant questions. It was not put by the Minister’s representative to the appellant that his stated fears about being killed if he returned to South Sudan were incorrect or false. No question was asked of the appellant relating to his representations to this effect. After the Minister had asked the appellant questions, the Tribunal asked the appellant if there was anything he wished to say and if he did wish to say something he could do so after lunch or during his closing submissions. The Tribunal did not repeat the invitation to the appellant after the lunch adjournment. Instead, other witnesses were called to give evidence.

11    In closing submissions the Minister’s representative said:

In relation to the other considerations, dealing first with non-refoulement, the applicant puts forward that he’s fearful of being killed and homeless if returned to Sudan or South Sudan. The applicant hasn’t expanded on this submission which is made in his revocation application submissions.

12    After the Minister’s closing submissions were completed the Tribunal told the appellant he did not have to say anything but he could say whatever he wished. The Tribunal did not draw the appellant’s attention to the Minister’s submission about the appellant’s fear of being killed if he had to return to South Sudan or invite him to expand upon his representation. The appellant made some brief submissions about having changed and that he took responsibility for his mistakes. The Tribunal then asked him some more questions about his offending and finally asked the appellant if there was anything else he wished to say. The appellant answered “no”.

13    Direction No 79 refers to international non-refoulement obligations (para 14). Paragraph 14.1(4) provides that where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

14    In its reasons for decision, the Tribunal dealt with international non-refoulement obligations at [115]-[133]. At [115] it referred to the Minister’s statement of facts, issues and contentions that:

The applicant neither contends that this consideration is of relevance nor does the evidence that is currently available indicate that an assessment of this consideration is necessary in the circumstances.

15    The Tribunal said at [115] that it had misgivings about the first contention but a greater level of sympathy with the second.

16    It referred to the appellant’s representations about his fear of being killed if he returned to South Sudan at [116]. It referred to the other witnesses not having mentioned any such fear in their evidence at [117]-[118] except for the appellant’s sister who said at [119] she feared for his life if he had to return. It referred at [120] to transcripts of hearings before sentencing judges and said that nowhere in those transcripts was there any reference to the appellant experiencing hardship in South Sudan (but, we note, the Tribunal seems to have accepted that the appellant grew up in a refugee camp and had witnessed horrific scenes as a child in South Sudan – [116] and [119]). The Tribunal referred to para 14 of Direction 79 at [123], including para 14.1(4) (as referred to above). It then referred to the history of cases and Direction No 75 which requires decision-makers to have regard to complementary protection claims before considering any character or security concerns: at [123]-[127]. It then found that the appellant was able to make an application for a protection visa and that, in determining that application, the decision-maker would be bound by Direction No 75 to assess the appellant’s refugee and complementary protection claims before assessing any character concerns: at [128]. The Tribunal then said this:

130.    As things stand, the Applicant has given predominantly written evidence of a fear of harm were he to be returned to South Sudan. Notably, apart from himself, only one of his group of four witnesses speaks of him saying anything about an apparent fear of harm. As best as I recall his oral evidence, the Applicant did not propound this fear to any notable extent, if at all, in the hearing before me. In short, I regard as unconvincing both the Applicant’s written and oral evidence about any fear of harm were he to be returned to South Sudan.

131.    There are two aspects of his evidence relating to an apparent fear of harm that, to my mind, are important. First, only one of his four witnesses gave any evidence about any such fear of harm. His brother (witness “KR”) said nothing about it, nor did his apparent partner with whom he has been communicating since November last year, nor did witness “KO”, a close family friend who says she has spent much time with the Applicant trying to assist him to cure the errant ways of his past. Only his sister, witness “SR’, has said anything about the asserted fear of harm. Second, one would have expected to find some evidence about a submission regarding the traumatic effects of the Applicant’s childhood in the respective sentencing transcripts dating from 2016 and 2018. As outlined earlier, there is scant reference to any previous or ongoing psychological impact from any difficult childhood and/or any apprehended fear upon a return to South Sudan.

132.    I am mindful of the recent decision of Omar v Minister for Home Affairs [[2019] FCA 279]. In that case, Her Honour Judge Mortimer found that the Assistant Minister had failed to carry out the statutory task under s501CA(4) of the Act by failing to consider the Applicant’s representations going to “another reason” why the cancelation of the visa should be revoked and, in particular, failing to consider the Applicant’s representations to be owed non-refoulement obligations. I am of the view that Omar is distinguishable from the present matter in circumstances where the evidence demonstrates that the Applicant has failed to set out “a serious and substantive basis in fact and in law for that representation”.

133.    On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

17    The passage from Omar v Minister for Home Affairs [2019] FCA 279 (Omar) to which the Tribunal is referring is at [82] as follows:

The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

18    Other decisions relevant to the resolution of the present case include the following.

19    In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Allsop CJ at [3] said:

…where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people… Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

20    In Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez) Charlesworth J summarised the applicable principles in these terms:

16    As the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, representations made by a non-citizen in response to an invitation given under s 501CA(3) of the Act “play a central role in the relevant statutory regime”. The Court said (at [34(g)]):

…The Minister’s statutory power to revoke (and therefore ‘undo’) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power.

17    The Court went on to say (at [36(d)]) that although s 501CA(4) is expressed in terms containing no express duty to “consider” the non-citizen’s representations “it is necessarily implicit in the statutory regime that there is such an obligation”.

18    The Minister is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of a revocation request: Omar at [37].

19    Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation is a question of fact. As Colvin J said in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56 [sic] at [68] (in a passage approved by the Court in Omar at [34(i)]):

...the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

20    As to the practical content of the obligation, the Court in Omar said (at [39]):

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]-[36] per Perram J).

21    In Hernandez Charlesworth J concluded that:

(1)    the obligation of consideration arose despite the fact that “the representations made by Mr Hernandez display a lesser degree of detail and were accompanied by no country information of the kind supporting the claims made in Omar”: [24];

(2)    Mr Hernandez’s claims (that he was a prime target for mafia groups rendering him at risk of being kidnapped for ransom and murdered) may have been briefly stated but they were not ambiguous. The brevity did not affect the clarity of the claims or the significance of their subject-matter: [25]; and

(3)    the fact that the claims were not supported by objective country information does not render them insignificant so as to relieve the Minister of the obligation to consider them. Rather, “[t]he absence of corroborative evidence may legitimately bear on the manner in which such claims are considered and determined, but could not (at least on the facts of this case) justify the issue raised in the claim being ignored”: at [26].

22    In Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Jabbour) Robertson J explained that where a decision-maker is not bound to apply a policy, but purports to apply it as a proper basis for disposing of a case and misapplies it, this may be an example of ““an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”: Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162.

23    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) the High Court said this at [47]:

First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

24    In the present case the problem is this. The appellant made brief but clearly articulated representations that he would be killed if he returned to the South Sudan because of the war in that country in circumstances where he had fled the war and had grown up in a refugee camp before coming to Australia. The delegate did not disbelieve these representations. There was no express statement in the Minister’s facts, issues and contentions suggesting these representations should be disbelieved. Instead, there was an at best obscure, and at worst inaccurate, reference to the appellant not having contended and the evidence not suggesting that a consideration of international non-refoulment obligations were necessary. The Minister’s submission that this should have put the appellant on notice that his claims of fearing he would be killed if he had to return to South Sudan were in doubt is implausible. The appellant was not represented. It is hard to believe he understood that his claim of fearing he would be killed might call up for consideration a concept identified as “international non-refoulement obligations”.

25    Further, the Tribunal did not ask the appellant about these representations. Neither did the Minister’s representative. The only reference to these representations was in the Minister’s closing submissions before the Tribunal where the Minister said the appellant had not “expanded on this submission”. The Minister did not submit that the representation was false or should not be believed. Nor did the Minister point out that nothing had been asked of the appellant during the hearing which called for him to expand on this claim. In its reasons, the Tribunal said that as it recalled the appellant’s oral evidence he did not propound this fear of harm to any notable extent if at all and that only one of the other four witnesses referred to this fear. These were the only reasons the Tribunal gave for finding the appellant’s claimed fear of harm “unconvincing”: at [130]. Further, despite having referred to para 14.1(4) of Direction No 79 at [123] the Tribunal did not proceed on the basis that the claimed fear of harm was irrelevant to its decision. Rather, the Tribunal (having characterised the evidence as “unconvincing”) decided that this factor (international non-refoulement obligations) weighed to some extent or slightly in the appellant’s favour but not heavily in his favour: at [133].

26    By this method of reasoning, the Tribunal appears to have overlooked the fact that neither it nor the Minister suggested to the appellant during the hearing that his representations to the effect that he would be killed if he returned to South Sudan because of the war there were false or exaggerated. The appellant was also never invited by the Tribunal to expand upon his representations to this effect or to explain why these representations should be accepted.

27    We acknowledge that the Tribunal would have been free to reason that it did not need to consider international non-refoulement obligations at all because this would be considered if the appellant applied for a protection visa. On this basis, the Tribunal was not bound to make findings about the appellant’s claims. But it is plain from [133] of its reasons that this is not how the Tribunal reasoned. Instead, it decided to consider international non-refoulement obligations by reference to the appellant’s claimed fear of being killed if he had to return to South Sudan, made findings about the plausibility of the appellant’s claims, and based on those findings gave that consideration only “some” or slight weight. The reason it gave the consideration only “some” or slight weight was that it found the claims unconvincing for the reasons given at [130], in circumstances where the appellant had never been given any notice that these claims were in issue or in doubt or any opportunity to expand upon these claims. The Tribunal’s general invitations to the appellant to say whatever he wished during the hearing did not discharge the Tribunal’s obligation to give the appellant procedural fairness by putting the appellant on notice that his claims in this regard were open to doubt. Nothing occurred before or during the hearing that would have put the appellant on notice that these claims were in doubt, yet the sole reason for the Tribunal giving international non-refoulement obligations only “some” or slight weight was its conclusion that these claims were “unconvincing”.

28    These circumstances involve a denial of procedural fairness by the Tribunal to the appellant and a related failure to consider international non-refoulement obligations in circumstances where, by its reasoning process, the Tribunal had purported to give consideration to these obligations. In so doing the Tribunal’s reasoning process miscarried by analogy to Jabbour at [89].

29    We are not persuaded by the Minister’s submissions to the contrary.

30    First, we do not accept that there was anything in the delegate’s reasons which should have put the appellant on notice that his representations about his fear of being killed if returned to South Sudan were in doubt.

31    Second, as noted, the Minister’s statement of facts, issues and contentions did not put the appellant on notice that his representations that he feared he would be killed if he had to return to South Sudan were false, exaggerated or open to doubt. The obscure (and arguably incorrect) reference to the appellant not having raised international non-refoulement obligations and the evidence not making it necessary to consider these obligations did not put the appellant on notice that he needed to further substantiate these representations.

32    Third, the materiality of the errors is not to be assessed by what decision-making process the Tribunal might have adopted. It is to be assessed by the decision-making process the Tribunal in fact adopted. It is not possible to say these errors were immaterial in the face of [133] of the Tribunal’s reasons. Having reasoned as it did, it is not possible to say that the Tribunal necessarily would have reached the same result had it not denied the appellant procedural fairness and had its decision-making process not miscarried.

33    Fourth, the appellant’s representations that he would be killed if he had to return to South Sudan were made in circumstances where it was not otherwise doubted that the appellant had fled the war in South Sudan and grown up in a refugee camp before coming to Australia. The representations were not mere assertion by the appellant. They were put in writing at the commencement of the revocation process, in clear terms, and on more than one occasion. They were supported by the appellant’s sister. They were not inherently unbelievable given that it is common knowledge that South Sudan is a war-torn nation. In these circumstances, if the Tribunal was going to reject the representations as “unconvincing” the appellant had to be given an opportunity to expand upon his claims. The appellant was never given that opportunity.

34    Fifth, it is evident that there is confusion in the Tribunal’s reference to the statement in Omar that if there is “a serious and substantive basis in fact and in law for that representation”, the representation must be considered. The Tribunal said at [132] that it distinguished Omar (presumably because it did not consider that the applicant had set out a serious and substantive basis in fact and in law for the representation), but the point in Omar was that representations not satisfying this description did not need to be considered. In the present case, the Tribunal did consider the representations and, indeed, concluded that it meant that international non-refoulement obligations weighed in the appellant’s favour albeit only slightly.

35    Sixth, we do not accept that the appellant’s claim of fearing he would be killed if he had to return to South Sudan was not “significant” in the relevant sense. What was being expressed was a fear of being killed if returned to South Sudan because of the war-torn situation in that country in circumstances where the appellant had fled the war to a refugee camp before coming to Australia and where the appellant’s sister said she also feared for the appellant’s life if he had to return to South Sudan. The claim was self-evidently significant. It could not be made insignificant merely because the Minister and the Tribunal made no reference at all to it during the hearing apart from the Minister’s comment in closing submissions that the appellant had not expanded upon this representation (particularly given that the appellant had not been invited to do so).

36    Seventh, the Tribunal’s purported consideration of the representation involved it denying the appellant procedural fairness by concluding that the representation was “unconvincing” when nothing to that effect had been put to the appellant during the hearing or had otherwise put the appellant on notice that this representation might be open to doubt or not believed.

37    Eighth, it is apparent from [133] of the Tribunal’s reasons that the consideration was central to or critical to the Tribunal’s decision. It decided to take international non-refoulement obligations into account but gave that consideration only some or slight weight because it found the representations unconvincing. Had it found the representations convincing it is possible that international non-refoulement obligations could have been determinative.

38    Ninth, it may be accepted that the Tribunal did not have to give the appellant a running commentary on its thought processes: SZBEL at [48]. But that is different from the Tribunal effectively deciding a potentially critical matter adverse to the appellant in circumstances where nothing occurred which gave the appellant any notice that his representations about fearing he would be killed if he were to return to South Sudan were in doubt and where the appellant had no real opportunity to substantiate his representations to that effect.

39    The remaining issues are those of leave. The appellant was represented before the primary judge. None of the grounds now sought to be raised were put to the primary judge. As has been said on multiple occasions, a first instance hearing is not to be reduced to a practice or trial run. The issue is whether it is expedient in the interests of justice that leave be granted. We are persuaded the new grounds have substantial (indeed, determinative) merit. The further evidence required to support the new grounds, in the way we have dealt with them, is confined to the transcript of the hearing before the Tribunal. There is evidence that the appellant never instructed his legal representatives not to raise these grounds before the primary judge. There is no suggestion of any forensic decision by the appellant to not raise the grounds before the primary judge in order to obtain some advantage. The Minister does not suggest any prejudice arising from the raising of the new grounds. Any prejudice of the new grounds not having been raised at first instance can be ameliorated by retaining the primary judge’s order that the appellant pay the Minister’s costs of the first instance hearing. The grounds have been fully argued in the appeal. The potential consequences for the appellant of refusing leave are serious; he may be required to leave Australia and return to South Sudan where he fears being killed or may be confined to a lengthy or indefinite period of detention. Given our conclusions about the Tribunal’s decision having been affected by jurisdictional error, it is difficult to conclude that it is not expedient in the interests of justice to grant the appellant leave to rely on the further amended notice of appeal and to adduce evidence of the transcript of the hearing before the Tribunal. We accordingly grant the leave requested.

40    The appeal should be allowed on this basis.

Associate:

Dated:    2 December 2020