FEDERAL COURT OF AUSTRALIA

Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 94

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for leave to amend the notice of appeal dated 3 May 2024 is dismissed.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellant, Mr Tyler Pewhairangi, appeals from a decision of a single judge of this Court. In that decision the primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke a decision made under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s visa. The primary judge’s decision is Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1322 and will be referred to as J. The Tribunal’s decision is Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2596 and will be referred to as T.

2    Before the primary judge, the appellant raised two grounds of judicial review:

(1)    The Tribunal acted on a misunderstanding of the law because: first, the Tribunal determined that the issue for determination was whether the discretion to revoke the mandatory cancelling of the applicant’s visa may be exercised pursuant to s 501CA(4) of the Act; and second the Tribunal incorrectly characterised the operation of s 501CA(4)(b) as involving a discretion; and

(2)    The Tribunal failed to complete the exercise of its jurisdiction by failing to have regard to mandatory considerations under Direction 90, particularly the appellant’s health.

3    Prior to the hearing of the appeal, the appellant sought leave to file an amended notice of appeal raising the following proposed new grounds and amended grounds of appeal (struck through and underlined to indicate the deletions and additions; but not including the proposed particulars):

(1)    The primary judge erred in failing to find that the Tribunal acted on a misunderstanding of the law.

(2)    The primary judge erred in failing to find that the Tribunal failed to consider a mandatory consideration namely:

(a)    the appellant’s age and health for the purposes of paragraph 9.2(1)(a) of Direction 90; or

(b)    the appellant’s representations as to there being “another reason” under s 501CA(4)(b)(ii) of the Act why the non-revocation decision should be set aside.

(3)    The primary judge erred in failing to find that the Tribunal breached s 499(2A) of the Act in failing to comply with Direction 90.

4    The reference, in the proposed amended notice of appeal, to Direction 90 is a reference to the direction made under the Act and titled Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

5    As can be seen from the proposed amendments to the notice of appeal, ground 2(a) was substantially the same as ground (2) before the primary judge. The primary judge addressed that ground at J[49]-[84] and found it not made out. Grounds 2(b) and 3 are wholly new grounds and were not raised before, and therefore not addressed by, the primary judge.

6    The Minister opposed the appellant’s application for leave to amend the notice of appeal. At the hearing of the appeal, we decided to determine that leave together with the appeal.

7    For the reasons that follow we dismiss the application for leave to amend the notice of appeal and dismiss the appeal with costs.

BACKGROUND

8    The relevant background was set out by the primary judge at J[1]-[8] and J[12]-[18]. We note the following from those reasons:

(1)    On 20 October 2020 the appellant was convicted in the District Court of New South Wales of “Aggravated robbery and use violence cause wounding/GBH-SI” and sentenced to a term of imprisonment of three years and four months.

(2)    On 27 November 2020 a delegate of the Minister cancelled the appellant’s visa under s 501(3A) of the Act. On 19 December 2020 the appellant requested revocation of the visa cancellation. On 19 April 2020 a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the visa.

(3)    On 27 April 2022 the appellant applied to the Tribunal for a review of the delegate’s decision not to revoke the cancellation. On 22 June 2022 the appellant appeared before the Tribunal represented by his migration agent. On 12 July 2022 the Tribunal affirmed the decision of the delegate, and on 2 August 2022 the Tribunal provided its reasons for its decision.

(4)    The Tribunal, in exercising its discretion under s 501CA(4) of the Act, noted that it was bound by s 499(2A) of the Act to comply with any directions made under the Act and that it was therefore bound by the considerations in Direction 90.

(5)    The Tribunal set out the considerations which must be taken into account under Direction 90. There are four primary considerations, each of them, and the Tribunal’s conclusion with respect to the appellant, are as follows:

(a)    Primary consideration 1, protection of the Australian community “weighs heavily against revocation of the cancellation of [the appellant’s] visa”;

(b)    Primary considerations 2 and 3, family violence and the best interests of minor children in Australia, were not relevant to the appellant; and

(c)    Primary consideration 4, the expectations of the Australian community, “weighs heavily against revocation of the cancellation of [the appellant’s] visa”.

(6)    The further non-primary mandatory considerations which were relevant to the appellant were:

(a)    The extent of impediments if removed “carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of [the appellant’s] visa”; and

(b)    Links to the Australian community carried “some weight in favour of revoking [the appellant’s] mandatory visa cancellation”.

(7)    The Tribunal concluded that the “totality of the very heavy weight it has attributed to Primary Consideration’s 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.” The Tribunal found that it could not exercise the discretion to revoke the mandatory cancellation of the appellant’s visa and affirmed the delegate’s decision: J[7]; T[111]-[112].

RESOLUTION OF THE APPEAL

Ground 2(a) – Did the Tribunal fail to consider the appellant’s health under paragraph 9.2(1)(a) of Direction 90?

9    The appellant contends that he made representations to the Minister about his health, and that those representations are a mandatory relevant consideration when the Tribunal is making its decision about whether to revoke the decision to cancel the appellant’s visa: see ss 501CA(3) and (4) of the Act.

10    More specifically, the appellant contends that his representations, read as a whole, include the following reasons to revoke the cancellation of his visa:

(1)    The appellant had been assessed as having an alcohol use disorder and a gambling disorder;

(2)    The appellant’s claimed mental health issues with depression and anxiety;

(3)    The appellant’s unresolved health needs with his addiction issues and mental health required ongoing treatment. Those needs would and could be addressed in Australia; and

(4)    A return to New Zealand would cause a serious adverse impact on the appellant’s mental health and would lead to a relapse.

11    The appellant submits, and we accept, that the Tribunal was required by paragraph 9.2(1)(a) of Direction 90 to take into account the extent of any impediments the appellant would face if removed from Australia, in establishing himself and maintaining basic living standards in New Zealand, taking into account his health. So much is consistent with the terms of paragraph 9.2 of Direction 90 which provides:

(1)    Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

12    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, a majority of the High Court relevantly said:

22     Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    … The question remains how the representations are to be considered.

24    … Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations… The weight to be afforded to the representations is a matter for the decision-maker…

25    … The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them…

…

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

13    The appellant accepts that to establish error he needs to satisfy the Court that he clearly articulated his alcohol and gambling disorders, his mental health issues, and clearly articulated how those problems were an impediment to his return to New Zealand.

14    The primary judge addressed the equivalent of ground 2(a) at J[49]-[84] and reached her Honour’s conclusions at J[75]-[82]. As discussed below, we consider that the primary judge was correct to conclude that the Tribunal engaged with the case advanced by the appellant, and that the ground was not made out.

The representations

15    The appellant accepts that he “ticked” that he had no diagnosed medical or psychological conditions under his “personal circumstances form” that was submitted to the delegate of the Minister as part of his request for revocation of the cancellation of his visa. However, the appellant submits that should not be determinative of whether he clearly articulated his disorders. The appellant refers to other parts of the form relating to concerns about returning to New Zealand where the appellant wrote:

… majority of the family I have back there are all alcohol abusers and would not be any help for me trying to change my bad habits.

…

Mostly just being around family who abuse drugs, alcohol and who are in gangs. It would not be the best environment for me to live in

16    The appellant relied upon a number of representations including two he described as the high watermark of those representations. The representations, other than the two high watermarks, were:

(1)    A statement of support from his mother dated 16 December 2020, where she referred to her son’s drinking and gambling and that his return to New Zealand would put him in a more depressed state;

(2)    A statement of support from his stepfather dated 21 December 2020, where he referred to the support and services in Australia that the appellant requires to be able to get the help he needs;

(3)    A “Psychosocial Assessment Report” prepared by Mr Bembrick, a social worker, and dated 23 October 2020. That report was prepared for the appellant’s sentencing in 2020, and stated that the appellant “has, based on his discussion, an alcohol and gambling disorder as defined by DSM-5”;

(4)    The appellant’s own handwritten letter to the delegate that referred to the appellant’s plans once released to apply for counselling (and also drug and alcohol programs) to help with his drinking;

(5)    The appellant’s Statement of Facts, Issues and Contentions dated 2 June 2022 provided to the Tribunal (appellant’s SFIC), which referred to the making of future appointments for therapy sessions, and his concern about returning to New Zealand because of his extended family being drug and alcohol users;

(6)    The appellant’s undated personal statement to the Tribunal that referred to his commitment to signing up to drug and alcohol programs if he is able to stay in Australia; and

(7)    A statement of support from his mother to the Tribunal dated 30 May 2022 who said that a return to New Zealand would be damaging to his mental health.

17    The two representations said to constitute the high watermark of the representations were:

(1)    The written submission of the Minister contained within the Minister’s Statement of Facts, Issues and Contentions dated 2 June 2022 to the Tribunal (Minister’s SFIC), where the Minister stated:

… There is evidence the applicant has issues with drugs, gambling and alcohol. The applicant also states that his family is involved in drugs, alcohol and gangs (G9, 64). The Minister contends that these issues do not present insurmountable obstacles and the applicant may face similar challenges in Australia. …

(2)    The appellant’s evidence at the Tribunal on 22 June 2022 when asked about possible deportation where the appellant stated:

… the thought of getting deported back to a family that pretty much just relies on drugs and alcohol to sort of, you know, get through their day and have fun, it's definitely not the best environment for me for rehabilitation. Due to obviously going through that sort of situation myself, the whole alcohol and smoking marijuana, it’s obviously going to set me to sort of relapse I feel if I was to go back to my home country. …

Was there a clear articulation before the Tribunal of the health issues and the impediment?

The appellant’s Statement of Facts, Issues and Contentions

18    In considering whether the Tribunal failed to consider the appellant’s health issues in the context of its consideration of impediments, the primary judge identified, at J[75], the claims made by the appellant before the Tribunal. At J[75(1)] the primary judge noted that in the appellant’s request for revocation of the cancellation of his visa he had responded “no” to the question “Do you have any diagnosed medical or psychological conditions?” As set out above, the appellant addressed that matter before us by submitting that that answer should not be determinative and by making reference to other parts of the form. At J[75(3)] the primary judge extracted the claims made in the appellant’s SFIC. Whilst a statement of facts, issues and contentions should not be construed with the constraints appropriate to a pleading, it should enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration: see Comcare v Davies [2008] FCA 393; (2008) 48 AAR 291 at [22]. The framing of the issues in the appellant’s SFIC is an important context for the representations relied upon by the appellant. Under the heading “Other considerations: ties and impediments” the appellant’s SFIC provided:

73. [The appellant] is 25 years old and has spent more than 20 years in Australia since arriving when he was 5 years old.

74. [The appellant’s] immediate family (parents, step-parent and brother) are all in Australia.

75. [The appellant] advices (sic) that the Australian community will be the victim if he was to be deported as they will miss out on his positive contribution via employment as well as sports.

76. [The appellant] has ties with the football community in Australia as he played for the football clubs.

77. [The appellant] is really concerned with returning to New Zealand as most of his extended family in New Zealand are either involved with motor bike gangs or are drug and alcohol users. This is not the environment for [the appellant] to start his life...

19    Nothing in those paragraphs clearly articulates that the appellant’s alcohol, gambling and mental health issues, present an impediment to his return. Relevantly, the paragraphs do no more than claim that the appellant’s extended family in New Zealand is “not the environment” for the appellant to “start his life.”

The Minister’s Statement of Facts, Issues and Contentions

20    As to the Minister’s SFIC (the first high watermark), the appellant said that that statement revealed that the Minister understood that a submission was made by the appellant that he had issues with drugs, alcohol, and gambling. We do not consider the Minister’s submission or understanding, even read with other representations, amounts to a clear articulation by the appellant of the issues and the extent of any impediments. The Minister’s understanding is a not a substitute for the need for the appellant to clearly articulate his health issues and how they represent an impediment to his return.

The appellant’s evidence before the Tribunal when asked about deportation

21    As to the appellant’s evidence set out above at [17(2)] (the second high watermark), we do not consider that clearly articulates all of the health issues relied upon or how they amount to an impediment to the appellant’s return. There is no explanation as to how any treatment available in Australia is not available in New Zealand. There is no explanation as to how there was any basis for the Tribunal to conclude that the treatment in both countries was not equivalent: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568; Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 41; (2021) 274 CLR 398.

The other representations

22    As to the other representations (set out in [16] above), three of them are largely representations by the appellant about his plans or commitment to sign up to drug and alcohol programs, or therapy sessions (see [16(4)], [16(5)] and [16(6)]). Again, those representations do not clearly articulate how the appellant’s health issues are an impediment and how he is unable to access those services in New Zealand. The same shortcoming is true of the representation by the appellant’s stepfather (see [16(2)]) about the services in Australia that the appellant requires for help. Two of the representations are by the appellant’s mother about her view of the effect of any return (see [16(1)] and [16(7)]). In all the circumstances, including the appellant’s SFIC and personal circumstances form, we do not consider they amount to a clear articulation of the impediments by the appellant. That is also true of the Psychosocial Assessment Report (see [16(3)]). It was prepared for the appellant’s sentencing, rather than in support of issues before the Tribunal. At its highest it identifies the health issues but not the impediment to return. The report was, in any event, specifically addressed by the Tribunal: T[22], T[29] and T[76].

Conclusions on whether the appellant’s health issues were clearly articulated

23    We find that the representations about the existence of any health issues do not clearly articulate the nature of any consequential impediment to the appellant’s return to New Zealand.

24    Further, the appellant urged that we should assess the representations not singly but as an administrative continuum: see Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 at [19]-[20], [29]. Even adopting that approach, we do not consider that the representations clearly articulate both the appellant’s alcohol and gambling disorders, his mental health issues, and how those problems were an impediment to his return to New Zealand. Even accepting the appellant’s representations about the existence of the disorders and health issues, nothing in the representations clearly articulates the nature of any consequential impediment to his return consistent with paragraph 9.2(1)(a) of Direction 90.

25    We should add, as identified above, the primary judge set out her Honour’s conclusions on the equivalent of ground 2(a) at J[75]-[82]. The primary judge concluded that no claim clearly emerged on the material before the Tribunal to the effect that the appellant’s drug, alcohol and gambling disorders, and/or his depression and anxiety, were health conditions to be considered as an aspect of impediments to his removal: J[82]. The appellant submitted that the primary judge had “erroneously focussed on a limited range of material.” We reject that submission, the primary judge carefully set out the health claims made by the appellant himself (see J[75]) and addressed both of the high watermarks relied upon by the appellant in the appeal: J[75(4)], J[81]. As is clear from the reasons above, we agree with the primary judge’s conclusion that the Tribunal engaged with the case advanced by the appellant: J[82].

26    For those reasons ground 2(a) fails.

27    Alternatively, even accepting some articulation about those matters, the reasons of the Tribunal provide a basis to conclude that the matters were addressed by the Tribunal. At T[98] the Tribunal said:

As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)     the non-citizen's age and health;

(b)     whether there are any substantial language or cultural barriers; and

(c)     any social, medical and/or economic support available to that non-citizen in that country.

28    At T[99] the Tribunal concluded:

Having regard to the abovementioned matters, the Applicant is aged 26 years and the evidence before the Tribunal does not support the making of findings regarding:

(a)    physical ill health;

(b)     substantial language or cultural barriers if removed to New Zealand; or

(c)     any lesser social, medical and/or economic support available to the Applicant in New Zealand that he would otherwise be able to access in Australia. In making this finding, the Tribunal notes the evidence before it regarding some anti-social characteristics of his family in New Zealand.

29    Accepting that T[99] deals with a number of matters together, it does identify at (c) the consideration of any lesser medical support in New Zealand than would otherwise be available in Australia. It is a finding that the evidence before the Tribunal does not establish any lesser medical support in New Zealand. That potential impediment is considered and answered. Whilst the reasoning in T[99(c)] is brief, that brevity is explicable given the tangential manner in which the health issues were identified. They were raised, consistent with T[99(c)], in the context of the “anti-social characteristics” of the appellant’s extended family in New Zealand.

New ground 2(b) – Did the Tribunal fail to consider a representation about “another reason” why the cancellation should be revoked under paragraph 9.1 of Direction 90?

30    Ground 2(b) was put by the appellant as an alternative ground to ground 2(a). As identified above, it was a new ground not before, and therefore not addressed by, the primary judge.

31    Whilst the appellant said that his gambling, alcohol, and mental health issues were raised sufficiently clearly for paragraph 9.2(1)(a) of Direction 90, he said alternatively that paragraph 9.1 of Direction 90 “just deals with other considerations, so you don’t have to shoehorn it into health, but it can be more general. And it also relies upon the breadth of the words ‘another reason’ in the provision.”

32    For the reasons we have set out above, we do not consider that the issues were sufficiently clearly articulated, whether considered in the context of paragraph 9.2(1)(a) or 9.1. This new alternative ground would fail for the same reason that ground 2(a) fails. Consistent with the principles set out below, we do not consider that the ground is reasonably arguable so as to justify leave to amend the notice of appeal.

New ground 3 – Did the Tribunal fail to comply with Direction 90 by its approach to the appellant’s past offending?

33    As identified above, ground 3 was a new ground not before, and therefore not addressed by, the primary judge.

34    By ground 3 the appellant alleges a breach of s 499(2A) of the Act. That section requires a person to comply with a direction issued under s 499. Direction 90 is such a direction. The appellant contends that compliance with that direction requires the Tribunal: to correctly understand what was required by Direction 90; to ask the right questions; and to reason to a state of satisfaction about whether there was another reason to revoke the cancellation.

35    More specifically, the appellant complains that the Tribunal failed to properly understand the task required of it when assessing the primary consideration contained in paragraph 8.1(2).

36    Primary consideration 8(1) is “the protection of the Australian community from criminal or other serious conduct.” As part of that primary consideration paragraph 8.1 (under the heading “Protection of the Australian community”) provides for two parts 8.1(1) and 8.1(2) as follows:

(1)     When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)     Decision-makers should also give consideration to:

a)     the nature and seriousness of the non-citizen's conduct to date; and

b)     the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

37    Those matters within 8.1(2)(a) and (b) are then provided for by 8.1.1 (dealing with “The nature and seriousness of the conduct”) and 8.1.2 (dealing with “The risk to the Australian community should the non-citizen commit further offences or engage on other serious conduct”). Those matters are then weighed together (and together with 8.1(1)) to consider the protection of the Australian community.

38    The appellant’s submission focussed upon the second sentence of T[66], there the Tribunal stated:

The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant's visa.

39    The appellant submitted that by that sentence the Tribunal assessed the nature and seriousness of the “criminal offending or other conduct” itself as “weighing heavily against the revocation” of the cancellation of the appellant’s visa. Instead, the proper task was to weigh that conduct together with the other considerations in paragraph 8.1. Therefore, it was submitted, the Tribunal misunderstood the task it was required to undertake when assessing the primary consideration of the protection of the Australian community arising from paragraph 8.1 of Direction 90 and particularly paragraph 8.1(2).

40    Read in isolation the second sentence of T[66] might suggest that the nature and seriousness of the criminal conduct was weighed by itself. However, the sentence cannot, and should not, be read in isolation. The appellant properly accepted that the second sentence has to be read in light of the reasons as a whole, and including what follows. The Tribunal commenced its consideration of the protection of the Australian community from T[44]. From T[46] it first addressed the nature and seriousness of the appellant’s conduct, being the matter in 8.1(2)(a). As part of that consideration, and at T[66], it came to a conclusion about the nature and seriousness of the conduct. From T[67] the Tribunal then addressed the risk to the Australian community of further offences or other serious conduct, being the matter in 8.1(2)(b). As part of that consideration, and at T[77], it came to a conclusion about risk of further offences. Importantly, at T[78], the Tribunal then set out its overall conclusion on the protection of the Australian community (under the heading “Conclusion: Primary Consideration 1). That conclusion was that primary consideration 1 “weighs heavily against revocation.”

41    The ultimate conclusion of the Tribunal is set out from T[109]. At T[111] the Tribunal identifies that it has had regard to the considerations in Direction 90. The primary considerations are set out first. Primary consideration 1 is said to weigh heavily against revocation of the cancellation of the appellant’s visa. Primary considerations 2 and 3 are said to be not relevant, and primary consideration 4 also weighs heavily against revocation. The Tribunal then identifies that the weight attributable to the other considerations in Direction 90 does not outweigh the very heavy weight attributed to primary considerations 1 and 4. The Tribunal then states, at T[112], its overall view that it cannot exercise its discretion to revoke the mandatory cancellation of the appellant’s visa.

42    The appellant complains that having identified the heavy weight to be attributed to 8.1.1(1) (the nature and seriousness of the conduct) the Tribunal’s balancing exercise is irrevocably compromised. It complains that weighing that matter by itself, rather than as part of a broader consideration of the protection of the Australian community is what compromises the balancing exercise.

43    We consider that submission fails to read T[66] in the light of the reasons as a whole including by what follows. It is trite, but necessary to say, that the Tribunal’s reasons should not be judged “with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [291] (Kirby J). Reading the reasons as a whole T[66] does not reveal error. In its consideration of primary consideration 1 the Tribunal assessed first, the nature and seriousness of the conduct, and second, the risk of further offences. It considered both as part of the assessment of the protection of the Australian community. Whilst the first consideration weighed heavily, the Tribunal still considered the second consideration and came to a conclusion based on an assessment of both considerations. For those reasons, and consistent with the principles set out below, we do not consider that ground 3 is reasonably arguable so as to justify leave to amend the notice of appeal.

LEAVE TO AMEND THE NOTICE OF APPEAL

44    As set out above (at [3]) the appellant sought leave to amend his notice of appeal to raise new grounds 2(b) and 3.

45    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 citing O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310.

46    The interests of justice include consideration of the serious personal consequences for the appellant that may result from an adverse decision: Mailau v Minister from Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [105]-[107] citing with approval MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2] (per Allsop CJ) and [90] (per O’Callaghan and Colvin JJ). Here we accept that the appellant first arrived in Australia in 2001, aged 5, and that an adverse decision will have serious personal consequences for him.

47    In VAUX the Full Court, of Kiefel, Weinberg and Stone JJ, stated:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

48    Here, together with the doubtful merits of the new grounds discussed above, there was no adequate explanation for the failure to take the point before the primary judge. Although we accept, without condoning, that different counsel before the primary judge and on the appeal have taken different approaches.

49    In support of his application for leave the appellant relied upon the Full Court in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344. At [24] the Court stated:

Having said this, the approach of the Court is not inflexible. The touchstone is whether the granting of leave to raise a new point “is expedient in the interests of justice”: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J), cited in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). There are no firm rules governing when the Court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case. In assessing individual cases, the Court commonly looks at the question whether there was any explanation for the point not being raised at first instance, whether there is prejudice to any party, and whether there is any merit in the new point, while at all times having regard to the administration of justice generally: see the summary of the principles in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [110]-[112] (O’Bryan J, Katzmann J at [1] agreeing). There will be cases where, whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is plainly affected by jurisdictional error should not remain standing.

50    At the hearing the parties properly accepted that the merits of the amended grounds was a paramount or primary consideration in the assessment of whether or not leave should be granted.

51    We do not, in all of the circumstances, consider that it is expedient in the interests of justice to grant leave to amend the notice of appeal. Whilst having regard to the administration of justice generally, we have taken account of the serious personal circumstances for the appellant, but also, and significantly, the doubtful merit of grounds 2(b) and 3 as explained above, and the lack of an adequate explanation to raise the grounds before the primary judge.

DISPOSITION

52    For all of the reasons set out above, the application for leave to amend the notice of appeal is dismissed and the appeal is dismissed with costs.

53    The Court acknowledges, with gratitude, the assistance of both of the appellant’s pro bono counsel.

Associate:

Dated:    15 July 2024