FEDERAL COURT OF AUSTRALIA

CHZ19 v Minister for Home Affairs [2019] FCA 914

ORDERS

THE COURT ORDERS THAT:

1.    Until further order, the appellant be named CHZ19 and the judgment appealed from not be identified when these reasons are published.

2.    There be leave to amend the grounds of appeal in terms of the proposed amended notice of appeal dated 20 May 2019, but confined to proposed grounds 2A(b), 2D(a) to (c) (expanded in the case of ground 2D(a) to include the matters stated in ground 2E(a)) but excluding any claim to actual bias.

3.    The appellant do as soon as practicable file and serve an amended notice of appeal in accordance with the leave granted by these orders.

4.    There be leave to the appellant to adduce para 11 of the affidavit of Mr Wong dated 6 May 2019 (and the annexures referred to in that paragraph) in the appeal.

5.    Save for orders 2, 3 and 4, the amended interlocutory application dated 20 May 2019 seeking leave to amend the notice of appeal and leave to adduce evidence on the appeal be dismissed.

6.    The question whether a copy of the document listed as item 29 and described as 'Allegation' and marked 'NR' in the application book before the Federal Circuit Court be disclosed to the appellant and if so on what terms be reserved for the final hearing.

7.    Save for order 6, the interlocutory application dated 20 May 2019 for disclosure be dismissed.

8.    The appellant do pay the first respondent's costs of the interlocutory applications and of the hearing on 7 June 2019 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

COLVIN J:

1    The appellant's application for a spousal visa was refused by a delegate of the Minister in 2016. It was refused on the basis that the appellant did not satisfy particular criteria that must be met to obtain a spousal visa. The criteria are concerned with bogus documents and false or misleading information. Relevantly for present purposes, in order to satisfy the criteria there had to be no evidence that the appellant had given information that was false or misleading in a material particular in relation to his application for a visa (Requirement). The Requirement can be waived if the Minister (or the Administrative Appeals Tribunal on review) is satisfied that compassionate or compelling circumstances that affect the interests of an Australian citizen justify the granting of the visa. These matters are stated in Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations 1994 (Cth).

2    After a decision by the Administrative Appeals Tribunal affirming the decision to refuse the visa application and an unsuccessful application for review on the basis of jurisdictional error in the Federal Circuit Court the matter now comes to this Court by way of an appeal.

3    The appeal was listed for hearing on 17 May 2019. The appellant filed submissions late and brought a late application to adduce further evidence and claimed that certain documents should be disclosed by the Minister for the purposes of the appeal. The Minister maintained that the documents should not be produced for various reasons, including on the basis of public interest immunity. The appellant wished to proceed on the basis of grounds that included points that had not been raised before the primary judge. The grounds were not properly stated in the notice of appeal. On 10 May 2019, I made orders to facilitate the determination prior to the hearing of the appeal of the questions whether there should be leave to rely upon the affidavits, whether there should be leave to amend the notice of appeal and whether there should be disclosure of the documents sought by the appellant. I did so because of the extent of the affidavit material upon which the appellant sought to rely, the extent of the dispute as to disclosure and the separate need to establish with some clarity the grounds of appeal to be considered. Also, it was necessary to determine before the hearing of the appeal whether there should be further disclosure because the appellant contended that the further documents sought might lead to further affidavit evidence and further amendment to the grounds of appeal. On the other hand, if disclosure was not ordered then those possibilities would fall away.

4    Since the orders made on 10 May 2019:

(1)    the appellant has filed an amended interlocutory application to adduce further evidence and to amend the notice of appeal;

(2)    the appellant has provided a minute of proposed amended notice of appeal;

(3)    the appellant has filed an interlocutory application seeking orders requiring the disclosure by the Minister of five categories of documents;

(4)    the appellant has filed written submissions in support of his application for disclosure as well as his application to adduce further evidence (in the form of an affidavit of the appellant and three affidavits of Mr Wong the solicitor for the appellant) and amend the grounds of appeal;

(5)    an affidavit of Mr Richards has been filed on behalf of the Minister in support of a claim to public interest immunity in certain of the documents for which disclosure is sought; and

(6)    the Minister has filed written submissions opposing the interlocutory orders sought by the appellant.

5    It was difficult to extract from the appellant's submissions precisely what is sought to be argued on the appeal, to what extent matters raised in the proposed amended grounds of appeal are new matters not raised before the primary judge and how the documents sought to be disclosed and the affidavit material that the appellant seeks to rely upon relate to each of the proposed amended grounds. The Minister submits that the proposed amended grounds are without merit and are overlapping and embarrassing in their formulation. It is further submitted that most of the affidavit material should not be received and that no basis has been demonstrated upon which any form of disclosure should be ordered in aid of the appellant's attempts to adduce further evidence on the appeal. Alternatively, it is submitted that, if disclosure is to be ordered then it should not extend to include certain documents for which public interest immunity is claimed.

6    As a result of the state of the case sought to be advanced for the appellant, even though the present issue concerns interlocutory matters, it has been necessary to review the court book material in detail to try and understand the points being made and assess whether leave should be given to adduce further evidence in support of any ground that has merit.

7    For the following reasons, save for in certain limited respects, leave to amend the grounds of appeal in terms of the proposed minute should be refused. This is an instance where the application to amend implicitly acknowledges the deficiencies in the existing grounds of appeal so the grounds of appeal should be confined to the limited respects in which leave to amend is to be given. There should be limited leave to adduce further evidence. Save for one document to be considered at the hearing of the appeal, the application for disclosure should be refused. Time and cost has been incurred in dealing with a number of matters on which the appellant has been unsuccessful. The matters on which the appellant has been successful were of relatively narrow compass. They could have been dealt with briefly and had they been properly raised in time then the costs of the hearing to deal with interlocutory matters would have been avoided. The appellant should bear the costs of the interlocutory applications.

The course of the appellant's visa application

8    The appellant married an Australian citizen in December 2013. On the basis of their relationship, he applied for a spousal visa in February 2014. A child of the marriage was born in 2014. There were difficulties with the relationship and the appellant's wife made an application for a divorce. It appears that there was a formal separation in 2015, but there has been conflicting evidence concerning a period of reconciliation after divorce proceedings were commenced. In any event, at all relevant times, proceedings regarding parenting orders for the child of the marriage were ongoing.

9    In 2017, the Tribunal affirmed the decision to refuse the appellant's application for a visa. Later in 2017, the Tribunal's decision was set aside by order of the Federal Circuit Court. The decision was set aside on the basis that the Tribunal did not disclose that certificates had been issued under s 375A and s 376 of the Migration Act 1958 (Cth). Notification under s 375A enlivened an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; as approved in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [57].

10    The Tribunal (differently constituted) then heard the review application afresh. At the second hearing, the appellant was informed of the fact of the certificates. The Tribunal member stated that she had formed the view that the certificates were valid. The Tribunal member told the appellant that she would not be taking into account any of the information. As to the s 375A certificate, the Tribunal member specifically said that the information was not relevant to the review. As to the s 376 certificate, the Tribunal member specifically said that she had decided not to disclose the information to the appellant and that if the appellant wanted to comment on the validity of the certificate or seek a favourable decision as to the release of information then the appellant had seven days to do so.

11    The Tribunal proceeded with a hearing and found that the appellant had provided a statement to the Minister's Department in which he said that his parents and his wife's parents supported the marriage (para 28). The Tribunal referred to a site visit in India in 2016 (over two years after the marriage) when the appellant's parents were interviewed and they said that the appellant was not married and that he had no children (para 29). The Tribunal recounted the matters addressed in the course of the first decision by the Tribunal (paras 36-45). The Tribunal then dealt with the evidence provided during the second review conducted by the Tribunal (paras 46-53). The Tribunal considered the evidence given by the appellant at the second review and his admissions that he had been untruthful on multiple occasions including in statements to the Department (paras 49, 51). The Tribunal found that it was satisfied that the appellant provided information that was false and misleading in a material particular when he stated that his parents supported the marriage (para 50). As a result he did not meet the criteria for a visa.

12    The Tribunal then considered whether the criteria should be waived on the basis that there were compassionate and compelling circumstances that affected the child of the marriage. After reviewing the evidence, the Tribunal found that there were compassionate or compelling circumstances because the appellant and his child were likely to endure a level of emotional hardship if they were not living in the same country (para 84). The Tribunal then provided reasons as to why the Requirement should not be waived (paras 85-88).

13    Therefore, the Tribunal's decision rests upon its conclusions that there was a failure to satisfy the Requirement and that there should be no waiver of the Requirement.

14    On 6 March 2018, the appellant sought review in the Federal Circuit Court of the second decision by the Tribunal. The sole ground in the application was expressed as 'breach of best interst [sic] of child'.

15    In June 2018, the appellant was introduced to Mr Nugawela, a barrister who now acts as counsel for the appellant in the present appeal. On 28 June 2018, Mr Nugawela sent an email to the solicitors acting for the Minister. It identified the matter in the Federal Circuit Court in which the appellant sought review of the second Tribunal decision. The email said:

I refer to the above matter. May I advise as follows:

1.    I was approached last week, with a view to inquiring whether I would be able to assist in the above judicial review proceedings. At the same time, I was given a folder of selected materials;

2.    I was only able to review those materials this morning, and spoke for the first time to the applicant;

3.    I observed that procedural directions were previously agreed on 9 May 2018, that obliged the applicant to file certain documents by today (see Orders 2 & 3);

4.    I do not have a copy of the application for judicial review, nor the Green Book (see Order 1). Further, in my discussions with [the appellant] this morning, he says that he does not have a copy of the Green Book either;

5.    Do you know if a transcript of the AAT proceedings below has been obtained/or is readily available?

6.    In the above circumstances, I would be grateful if your client would consider agreeing to a further enlargement of time, say, until say 6 weeks after he avails himself of the Green Book and transcript of proceedings below? This will enable me to provide him with considered advice (and representation if necessary) in relation to these judicial review proceedings.

Please do not hesitate to telephone me to discuss any of the above.

16    The solicitors for the Minister responded by saying that they would be happy to discuss the matter further with Mr Nugawela if he was on the record or if the appellant provided his consent. The appellant then provided his consent. In an email to the Minister's solicitors he said that he had just appointed Mr Nugawela to assist with his case. On 5 July 2018, the solicitors for the Minister sent to Mr Nugawela an electronic copy of the court book. Consent orders were then agreed for further time for materials to be filed on behalf of the appellant. The materials were not filed. However, the Minister filed affidavits annexing transcripts of each of the hearings before the Tribunal. The matter was listed for hearing on 29 November 2018.

17    On 23 November 2018, an affidavit of the appellant that had been prepared by Mr Wong, a solicitor acting for the appellant, was filed and served in the Federal Circuit Court proceedings. The affidavit described the circumstances in which the appellant had been introduced to Mr Nugawela. It deposed to a conversation with Mr Nugawela in which he told the appellant that there may have been a miscarriage of justice. It also deposed to advice from Mr Nugawela that he needed to see more evidence, that he would need to be instructed through a firm of lawyers and that he would need the sum of $12,000 for legal fees through that firm. Amongst other things, the affidavit also said (para 14):

Part of the reason Mr Nugawela said he could not act directly for me was because I had to obtain numerous documents in order to prepare the affidavit that this Court ordered I file. I had told Mr Nugawela that there were some documents that I had lodged with the Dept of Home Affairs (DHA) and AAT, but which are not reproduced in the FCCA Court Book. He said that I may have to make an FOI application to the DHA and AAT. He also said that the Family Court documents, police records concerning the restraining orders and hospital records concerning family violence may also be relevant for the Court deciding 'jurisdictional facts'.

18    The appellant said that he signed terms of engagement with Mr Wong's firm on 15 November 2018 and he deposited $11,500 into Mr Wong's trust account by 16 November 2018. It was at that point that Mr Wong's firm filed a notice of acting in the Federal Circuit Court.

19    The affidavit then said (para 26):

I believe counsel Mr Nugawela has had some insight into arguable errors in the decision, and he is the only one I have found that had been willing to prepare for the appeal on my behalf. The terms of his engagement have been agreed, but due to the problems and delay I had coming up with funds to engage him, unfortunately, he is not available on the date. He also wanted to study additional documents described above, in assisting in the preparation of the affidavit I was ordered to make.

20    The reference to 'documents described above' appears to be a reference to documents not reproduced in the court book and the Family Court documents and other documents that Mr Nugawela said may be relevant for deciding 'jurisdictional facts'.

21    It appears that despite Mr Nugawela communicating with the solicitors for the Minister on the basis that he was acting and seeking further time on that basis, in fact he was not acting, had not set aside the dates for the hearing and was simply waiting for the appellant to come up with the money before he did anything. This approach was problematic. Those advising the Minister were entitled to proceed on the basis that the appellant had access to legal advice. The appellant himself was left in the likely position that he would take no other steps to secure legal representation or to prepare to act on his own behalf. Instead, it seems that he was proceeding on the basis that Mr Nugawela would be available to represent him if he secured the funds. In effect, the matter was advancing on the basis that there was legal representation when that was not the case. At the very least, the Minister should have been informed of the true position. In the result, when funds were provided, Mr Nugawela was not available to appear and when a late request was made for the Minister to consent to an adjournment, the Minister did not agree to the request.

22    It was Mr Wong who made the application for an adjournment before the primary judge on 29 November 2018, being the day on which the review application was listed for hearing in the Federal Circuit Court. The primary judge referred to the correspondence from Mr Nugawela in June and July 2018 and observed that the materials had been with Mr Nugawela, Mr Wong and the applicant for some time. Mr Wong frankly conceded that nothing had been done to prepare because the appellant had not come up with the money. He contended that there were more issues then appeared on the face of the application and there should be an adjournment. His Honour noted that despite knowing for some time what the issues were there was no amended application. He expressed the view that time would have been better spent preparing the amended application rather than the adjournment application.

23    Mr Wong said that he did not have access to the transcripts of the first hearing before the Tribunal and so he did not know what evidence was given at that hearing. As emerged subsequently, this submission was not correct. Affidavits annexing transcripts of both Tribunal hearings had been filed by the Minister as a result of requests made by Mr Nugawela.

24    In the course of oral argument on the adjournment application, Mr Wong referred to a number of matters that might be advanced as grounds of review, namely:

(1)    the Tribunal decision was tainted by the adoption of facts found in the earlier proceedings without referring to the transcript of the evidence itself (which the primary judge said was an argument that could be put at the hearing that day);

(2)    matters from the Family Court file had been put by the Tribunal to the appellant and if they were to be relied upon by the Tribunal the whole file should have been produced and Mr Wong did not have access to the file (which the primary judge said was also a matter that could be considered at the hearing);

(3)    there was a void in the explanation by the Tribunal as to how a conversation with the appellant's parents in India might be tied to a statement that the appellant made about what his parents knew;

(4)    before the second Tribunal hearing, the Tribunal sent a letter to the appellant which said, amongst other things:

The member may wish to take evidence from [the appellant's former wife]. Please arrange for her to attend the hearing.

and the appellant responded to the letter stating that he could not arrange for his former wife to attend 'because she has false vro on me you guys do your self i would be there for my child thanks for your help god bless'. Mr Wong submitted that in those circumstances the Tribunal had an obligation to 'address that issue' and there was no indication in the material that it was addressed (which contention the primary judge rejected in the course of oral submissions); and

(5)    counsel thought it was relevant to look at hospital records and the Departmental file concerning the child of the marriage (which contention the primary judge doubted because the material was not before the Tribunal at the time it made its decision).

25    The primary judge then delivered oral reasons dismissing the adjournment application. As to the reasons advanced for an adjournment, his Honour noted that the transcripts had been provided. As to whether there was a need to get further information, his Honour stated that the information described was information that was not before the Tribunal and it had not be shown how new material would be of any relevance to the application for review. He expressed the view that the matter was fairly simple. The primary judge noted the need to bring to account the interests of the community at large and the need for matters to be dealt with expeditiously when the Court was being clogged. He refused the adjournment application.

26    After hearing argument on the substantive application, the primary judge delivered ex tempore reasons dismissing the application. His consideration of the matter was not confined to the single ground in the written application. The course of the primary judge's reasoning was as follows:

(1)    the circumstances of the marriage and the birth of the child of the marriage were recounted;

(2)    the statement by the appellant in his form of application submitted to the Department that '[w]e are supported by both our parents (mine and [the appellant's former wife's])' was described;

(3)    the events concerning the first Tribunal hearing were set out;

(4)    the Requirement and the provision for waiver of the Requirement were both quoted;

(5)    the notes of a visit to the residence of the appellant's parents in India were referred to as well as the Tribunal's finding that the officers recorded that the appellant's parents stated that the appellant was not married and he had no children;

(6)    it was noted that the notes of the site visit totally contradicted the information provided by the appellant;

(7)    the explanation provided by the appellant to the Tribunal was recounted, including evidence given at the first Tribunal hearing by the appellant's father and mother;

(8)    the findings by the second Tribunal to the effect that the appellant provided information that was false or misleading in a material particular when he stated that his parents supported the marriage were quoted;

(9)    there was reference to the possible waiver of the Requirement;

(10)    the Tribunal's reasoning concerning waiver was recounted;

(11)    the single ground of review in the application was quoted;

(12)    two aspects advanced by Mr Wong in oral submissions were described. First, the statement about the parents was said to be a matter that was not materially relevant to a matter to be considered by the Tribunal. Second, the Tribunal treated the statement made by the appellant as if it was to the effect that the parents support the marriage when the statement was to the effect that the appellant and his then wife were supported by both their parents;

(13)    as to the first aspect, it was concluded that there was no merit at all in the submission because the statement by the appellant had been made as a direct answer to one of the matters that had to be considered on the application as listed in reg 1.15A (which specified circumstances of the relationship that must be considered) and therefore it was relevant;

(14)    as to the second aspect, it was concluded that the distinction was of no moment because the statement made was misleading because the statement by the appellant's parents was that they did not even know he was married; and

(15)    a further submission by Mr Wong was described which was to the effect that there was a huge gap in reasoning whereby something that had been said in a visit overseas had been escalated to a finding of false or misleading information. It was met with the response that the assessment of the facts was a matter for the Tribunal and the conclusion that the statement made by the appellant about the support of his parents was misleading was open on the evidence.

27    It can be seen that even though there was no formal amendment of the application to review to add new grounds, the primary judge addressed a number of arguments raised orally by the appellant. Also, as I have noted, some other matters were addressed in the course of oral submissions advanced in support of the application to adjourn. These aspects of the way the matter unfolded before the primary judge will need to be kept in mind when considering whether particular proposed grounds of appeal were advanced before the primary judge.

28    Then the primary judge dealt with the question whether the compelling or compassionate circumstances found by the Tribunal were sufficient to justify the granting of the visa. This was characterised as an attempt at merits review and rejected. Importantly, apart from the attempt to seek an adjournment on the basis that other documents (such the Family Court file, hospital records and the records of the Department responsible for child protection) should have been before the Tribunal and there was a need to obtain those documents for the purposes of the application in the Federal Circuit Court (a contention rejected by the primary judge in the course of oral submissions on the adjournment application), there was no ground other than that expressed in the written application that was advanced to challenge that part of the Tribunal's decision that was concerned with the waiver of the Requirement.

No challenge to the refusal of the adjournment application

29    Prior to the present application for leave to amend, ground 1 alleged error by the primary judge in refusing to grant an adjournment. The proposed amended grounds delete ground 1. The new grounds do not seek to challenge the decision of the primary judge on the adjournment application. It follows that the merits of the proposed grounds of appeal are to be evaluated on the basis that the primary judge was correct to refuse to grant an adjournment. In part, the adjournment was sought to obtain further documents. The documents sought were identified as transcripts of the Tribunal hearings as well as various documents that were not before the Tribunal (such as the whole of the Family Court file and hospital records). However, it emerged before the primary judge that the transcripts had already been provided by the Minister. As to the other documents, an adjournment was refused on the basis that documents that were not before the Tribunal were not relevant.

30    Significantly, much of the affidavit evidence that the appellant now seeks to place before the Court on appeal are documents of the kind that it relied upon to justify the adjournment. It is strange that the appellant accepts that there can be no challenge to the refusal of the adjournment but seeks leave on appeal to adduce documents of a kind that were not before the Tribunal or the primary judge and which the primary judge rejected as irrelevant when declining to adjourn the hearing of the application.

General principles

31    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interest of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319. 'Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so': University of Wollongong v Metwally (No 2) [1985] HCA 28.

32    If the new ground raises a matter that could have been met by evidence before the primary judge then leave should be refused: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [16].

33    Where 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: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48].

34    In NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] Madgwick J (Conti J agreeing) set out a non-exhaustive list of relevant questions (often cited) to be considered on such an application. They were expressed as:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

35    The principles governing the exercise of discretion to grant leave to raise new grounds on appeal were summarized more recently in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Griffiths, Mortimer and Perry JJ). Their Honours noted that the authorities were to the effect that 'generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy': at [20].

36    There is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). This is compounded by the complexities of understanding the scope of review on the basis of jurisdictional error which mean that litigants in person often have difficulty in formulating their complaints within the confines of applicable principle and may be assisted in doing so for the first time on appeal. In many instances, the question whether there is jurisdictional error turns upon a consideration of confined materials, the terms of which are not in issue and where there is a strong public interest in ensuring the due and proper administration of the law.

37    In considering whether to grant leave to argue a new point it may be relevant to consider that if a review ground is raised for the first time on appeal and leave is given to raise the point then the respondent is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]. This matter assumes greater significance where the point that is sought to be raised for the first time depends upon evidentiary matters that could have been raised before the primary judge but were not. It assumes less significance where the point to be raised is a point of law of a kind that can be explored without extensive consideration of the evidence before the primary judge.

38    In SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, Wigney J (citing Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499) identified three reasons why it is undesirable to permit an appellant to raise for the first time on appeal new grounds for reviewing a Tribunal's decision. First, the appeal court would become the de facto primary court with the only avenue of appeal being to the High Court. Second, to allow new grounds on appeal would defeat the statutory scheme by which the relevant jurisdiction is conferred on the Federal Circuit Court. Third, other than in exceptional circumstances, a party should be bound by the way the case was conducted. To similar effect is the following recent concise statement of these concerns by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [3]:

No actual error on the part of the primary judge is now suggested, as opposed to a constructive error in failing to uphold a ground of review that was never advanced before his Honour. The appellant therefore in substance seeks a fresh trial, using this Court's appellate jurisdiction to overcome this Court's lack of original jurisdiction, on a ground of judicial review that could have been taken below. This means of overcoming the statutory exclusion of original jurisdiction for judicial review of this kind principally, if not exclusively, exists as a safeguard to ensure that the interests of justice are protected. That protective purpose must be approached upon a principled basis, to prevent it becoming a mere proxy for the interests of an appellant in obtaining, in substance and reality, a second trial on a different basis.

39    Nevertheless, the power is to be exercised having regard to all the particular circumstances in each case and where those circumstances demonstrate that it is expedient and in the interests of justice to allow the ground to be raised then the power should be so exercised.

Proposed amended grounds of appeal

40    The submissions for the appellant in support of the proposed amended grounds described them as seeking to 're-organise, clarify and/or regularise the existing "jurisdictional error" grounds'. Proposed ground 2A was accepted as raising a new matter that had not been argued before the primary judge. It was said that there was no discernible or material prejudice to the Minister if leave was granted to raise the new ground, whereas the prejudice to the appellant was said to be very significant. Other grounds were said to raise matters that had been in issue before the primary judge.

41    Submissions were advanced for the appellant to the effect that ground 2A had merit. Little was said to support the merit of other proposed grounds beyond claims that they were reformulations of existing grounds. In circumstances where the appellant had sought to amend all grounds (thereby acknowledging the inadequacies of the existing grounds) and a hearing had been set aside for the purpose of considering the proposed grounds it was necessary for the appellant to demonstrate arguable merit in all grounds before leave to amend in the terms sought would be granted. It is neither expedient nor in the interests of justice to allow the appellant to advance grounds that lack merit.

42    As to the application to amend the grounds of appeal, the submissions for the Minister stated (paras 12-13):

Further, neither the current grounds of appeal or the proposed amended grounds of appeal allege any error on the part of the primary judge in relation to his consideration of the sole ground of appeal, alleging breach of best interests of the child.

The current grounds of appeal (with the exception of particular (g) to ground 2) … and the proposed amended grounds of appeal therefore seek to raise new arguments that were not formally raised before the Federal Circuit Court. No actual error on the part of the primary judge can be alleged in those circumstances, only a constructive error of failing to uphold a ground of review that we [sic] not advanced before that Court (Han v Minister for Home Affairs [2019] FCA 331 at [3]).

43    It was submitted that the proposed ground 2A lacked merit. As to the other proposed grounds, the Minister submitted (para 22):

(a)    many of the proposed amended grounds merely assert jurisdictional error without properly identifying how the alleged error is said to arises [sic];

(b)    some of the grounds have no evidential foundation (for example, in relation to proposed amended ground of appeal 2B, particulars (a) and (b), there is no evidence that the Tribunal did not obtain a transcript of the first hearing);

(c)    in some cases, purported particulars of the grounds of appeal appear to be alleging jurisdictional error and therefore ought to be grounds of review in their own right (see for example, ground 2C, particulars (a) and (b));

(d)    some of the grounds invite the Court to engage in impermissible merits review (see, for example, ground 2E); and

(e)    there is a level of duplication and overlap between particulars.

44    It was submitted that it would be difficult and burdensome for the Minister to have to respond to the grounds of appeal as currently drafted. On that basis leave to amend in terms of the other proposed grounds was opposed.

Proposed ground 2A

45    The first proposed amended ground of appeal is to be numbered 2A. It contends that the Tribunal committed jurisdictional error by denying the appellant procedural fairness described as:

a)    the two certificates dated 16.5.16 and purportedly issued pursuant to s 375A and s 376 of the Act were invalid certificates;

aa)    consequently, relevant documents and information purportedly covered by those certificates should have been (but were wrongly not) disclosed to the appellant;

b)    a further relevant document or documents entitled 'Allegation' and assumedly dated 1.10.16 was or were given to the Tribunal by the respondent, but wrongly withheld from the appellant. The Tribunal should have disclosed this document or these documents to the appellant, particularly in the absence of any Part 5 Division 8 certificates.

46    Section 375A applies to a document or information if the Minister has certified that disclosure of any matter in the document would be contrary to the public interest 'for any reason specified in the certificate' and has stated that the document or information must only be disclosed to the Tribunal. In such a case the Secretary must notify the Tribunal that s 375A applies to the document or information and the Tribunal must ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the particular review.

47    In this case the reason specified in the s 375A certificate as notified to the Tribunal by the Secretary was:

[the documents] contain departmental investigative methods, disclosure of which would be prejudicial to future investigations.

48    The appellant relied upon the decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] to support the claim that the certificate was 'ex facie invalid'. MZAFZ concerned a certificate issued under s 438. Although s 438 has some similarities to the certificate process under s 375A, there are important differences. Section 438 provides that it applies if the Minister has certified non-disclosure 'for any reason specified in the certificate … that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed'. The reference to a claim in judicial proceedings was an important part of the basis for a conclusion by Beach J that the language required a claim to be made in terms that would support a proper claim to public interest immunity. In MZAFZ the reason specified was 'contains internal working documents'.

49    However, s 375A refers to disclosure being 'contrary to the public interest for any reason specified in the certificate'. No argument was advanced as to why the description referring to investigative methods and prejudice to future investigations was not a sufficiently specific reason as to why disclosure was contrary to the public interest. Even assuming that MZAFZ applied, the present case is not analogous. Disclosure of investigative methods is a proper basis to claim public interest immunity. As that was the only contention advanced to support the ground as being arguable, the proposed appeal ground lacks merit insofar as it alleges that the s 375A certificate was invalid.

50    The language in s 376 does follow the same structure as s 438 and arises in a similar context. However, it applies in two instances. First, where there is a certificate from the Minister claiming that disclosure would be contrary to the public interest: s 376(1)(a). Second, where the matter contained in the document was given to the Minister or an officer of the Department 'in confidence': s 376(1)(b).

51    The certificate in this case referred to the documents having been given in confidence. Pursuant to s 376(2), the certificate included the following advice to the Tribunal from the Secretary concerning the documents the subject of the certificate:

[identified documents] contain information that was given to the Department in confidence but is relevant to an assessment of the application. The informants want the information they provided to be considered when deciding the visa applicant's application.

52    Therefore, the decision in MZAFZ is of no relevance to the proposed ground insofar as it concerns the certificate under s 376.

53    Further, as I have noted, the appellant was well aware of the certificate well prior to the Tribunal hearing. Indeed, the failure to provide the certificate was the basis on which the first Tribunal decision was set aside. At the second hearing, the Tribunal informed the appellant of its view that the certificate was valid. The appellant was told that the Tribunal would not be disclosing the information to the appellant because it would reveal the identity of the informant and breach their confidence. The appellant was given an opportunity to make submissions within seven days to seek the release of the documents. No such application was made.

54    It was submitted that the description in the certificate 'does not identify the significance of the information'. The Tribunal stated that the information was not relevant and it would not take the information into account. In a Latin flourish it was submitted for the appellant that it was 'unsafe to assume that when the Tribunal ipse dixit says that the information is irrelevant' that position was correct. Reliance was placed again upon the decision in MFAFZ. However, in that case Beach J assumed in the absence of evidence to the contrary that the Tribunal acted in some unspecified way on the invalid certificate: at [41]. Reference was also made to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88. However in that case, the reasoning of the High Court was not to disregard the statement of the Tribunal that no weight was given to a letter that was not disclosed. Rather, the Court reasoned at [18]:

It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness.

55    In any event, there are other difficulties for the appellant in seeking to add the new ground concerning the certificates. There is no explanation as to why the opportunity to make submissions to the Tribunal to seek the documents the subject of the s 376 certificate was not taken up by the appellant at the time. There is no explanation as to why matters concerning the alleged invalidity of the certificates were not raised before the primary judge. The issue of the certificates was the reason that the matter was remitted for reconsideration after the first Tribunal hearing. If the points have merit then the same points were available to be argued on the application for review of the first Tribunal hearing. There is no explanation as to why they were not raised at that time. It is most inexpedient if review grounds might be advanced in a piecemeal way.

56    The only explanation offered as to why the ground was not raised on the second review before the primary judge is the general explanation about the late provision of funds to Mr Wong. However, it is apparent from the affidavit material that Mr Nugawela and Mr Wong had given some consideration to the matter prior to the final hearing for the purposes of identifying grounds. In that context, there is no explanation as to why Mr Wong did not raise the matter before the primary judge when seeking an adjournment and then argue the matter when the adjournment was refused. The refusal of the adjournment is itself not challenged.

57    Further, the appellant now seeks to obtain access to the documents the subject of the certificates for the purpose of supporting the ground. It is claimed that it is necessary to consider the documents for the purpose of demonstrating materiality of the failure to provide the documents the subject of the certificate. Some of the documents are the subject of claims to public interest immunity that were not considered by the primary judge. If the ground is allowed to be raised at this stage then those claims will be adjudicated for the first time in the course of the appeal proceedings and in circumstances where the only appeal from any decision is by special leave to the High Court.

58    Therefore, the manner in which the appellant seeks to present the ground will open up factual inquiries that extend well beyond the factual material that was before the primary judge. It is not confined to an argument that turns upon a consideration of the reasons of the Tribunal and the materials that were before the primary judge. It is a ground of a kind that undermines the statutory scheme and invites this Court to undertake a task that has been entrusted to the Federal Circuit Court. There is no adequate explanation for the failure to raise the matter before the primary judge (or on the previous review application in the Federal Circuit Court). For reasons I have given the merits of the proposed ground are questionable. In all the circumstances, I am not satisfied that it is expedient and in the interests of justice for leave to be given to raise proposed grounds 2A(a) and (aa).

59    Proposed ground 2A(b) concerns a document dated 1 October 2016 given the description 'Allegation'. It is a document that was before the Tribunal at both the first hearing and the second hearing, but was not the subject of the certificates and was not disclosed to the appellant. The appellant complains that the failure to disclose the document was a failure to afford procedural fairness. It submits that the description itself indicates its relevance. It seeks disclosure of the document to demonstrate materiality. In SZMTA, Bell, Gageler and Keane JJ stated at [45]-[46] that:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

60    The issue raised by proposed appeal ground 2A(b) is a confined one. It concerns an important aspect of the process before the Tribunal. The Allegation document was not reproduced in the material presented to the primary judge (and therefore was not provided to Mr Wong and Mr Nugawela when the Federal Circuit Court application book was provided to them). The appeal ground does not open up an evidentiary issue as to material that was not before the Tribunal.

61    The Minister seeks to meet the argument by claiming that the Allegation document should not be produced and by inviting the Court to review the document for the purpose of demonstrating that the information contained in the document was before the Tribunal in other documents that were disclosed to the appellant. A copy of the Allegation document has been provided to the Court in a sealed envelope. For the Minister it was submitted that, in error, the document was not provided to the Tribunal under cover of a certificate. Its disclosure is now the subject of a claim to public interest immunity.

62    In my view the appeal ground is arguable. The fact that the Allegation document was not available before the primary judge due to the manner in which the application book was prepared by solicitors acting for the Minister is some explanation for why the issue was not raised at that stage. There is no evidence to suggest that the appellant was told about the Allegation document being before the Tribunal at the time of the hearing.

63    In all the circumstances, I grant leave to amend the appeal grounds to raise proposed ground 2A(b). I am of the view that arguments as to whether the Court should uphold the claim to public interest immunity to the production of the Allegation document should be addressed at the time the appeal ground is considered. It is a matter that is intertwined with issues as to whether the Minister can support the procedural fairness of the hearing before the Tribunal by reference to a claim of public interest immunity that was not raised in the course of proceedings before the Tribunal. The fact that the Minister now claims that the Allegation document could have been the subject of a certificate but was not might have a bearing upon whether relief should be granted even if the ground is to be made out. These matters have not been fully argued. They are better dealt with at the final hearing.

64    I would not order the disclosure of the Allegation document at this stage of the proceedings. Disclosure can be addressed at the final hearing. The appellant seeks disclosure for the purpose of demonstrating materiality. As the appeal ground is concerned with a single document, if the claim to privilege is not upheld then directions could be made for short submissions to be filed for the appellant on the question of materiality to the extent that position is further informed by access to the Allegation document.

Proposed ground 2B

65    Proposed ground 2B alleges jurisdictional error by the Tribunal in unreasonably failing to exercise powers or in failing to consider whether to exercise powers available to it to obtain relevant information or evidence 'that would have been … central to determining whether there had in fact been a breach of [the Requirement]'. It states three complaints in the following terms:

(a)    the tribunal failed to obtain a transcript of the evidence of the appellant's wife-sponsor, his parents and brother (transcript only typed out by Sparke Helmore in August 2018);

(b)    … the tribunal unfairly made adverse findings against and without reference to (and therefore overlooking) the evidence of the Appellant's mother, brother, neighbour (in India) and wife-sponsor, and without regard to the transcript/full content of their prior evidence or at least re-calling them in order to put alleged inconsistencies or untruths arising from the field officer's written report.

(c)    the tribunal overlooked or unreasonably failed to have regard to the appellant's prior and reasonable request that it arrange for his wife-sponsor to give evidence at the hearing (see s361 of Migration Act) when her evidence was directly relevant and critical to determining [whether there had been a breach of the Requirement].

66    Save for the matter in para (c), none of the matters the subject of the proposed ground were advanced before the primary judge.

67    As to para (a), the ground alleges a failure by the Tribunal to obtain information or evidence that it is said would have been 'central' to determining whether the Requirement had been met. The information is the transcript of the proceedings at the first Tribunal hearing. There is no suggestion that the appellant invited the Tribunal to obtain a transcript of the first Tribunal hearing. There is no identification of the basis for the claim that the Tribunal had an obligation to obtain the transcript.

68    Having regard to the opportunity afforded to the appellant to make a statement and present information to the Tribunal and to make submissions, the circumstances in which the Tribunal may have an obligation to inquire into a particular matter not raised by a party are confined.

69    The duty imposed upon the Tribunal is a duty to review. The Tribunal is not under a general duty to make its own inquiries in addition to information provided to it, except regarding obvious inquiries about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [1], [25]. The scope of any duty to inquire has from the outset been recognised as being within a 'strictly limited' compass: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; (1985) 6 FCR 155 at 169-170. The Tribunal has no general obligation to make out an applicant's case for him or her: see Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] and the cases there cited.

70    The fact that it may be relatively easy for the Tribunal to obtain a document does not elevate the lack of such enquiry to jurisdictional error: MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63]; Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64]. Nor does the fact that it would be reasonable to obtain such a document: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [33] and the cases there cited.

71    As to the transcript of a previous Tribunal hearing, s 44(6) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:

If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:

(a)    the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and

(b)    whether or not the Tribunal is reconstituted for the hearing - the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.

72    The provision is permissive: see Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506 at [14] where Hely J considered a similar provision that was previously in the Migration Act. The Tribunal is not under an obligation to provide the appellant with a transcript of previous Tribunal hearings, even if they were requested by the appellant and available to the Tribunal: see SZITH v Minister for Immigration and Citizenship [2008] FCA 1866 at [52]; SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12]-[14].

73    Aside from matters the subject of proposed ground 2D concerning the extent to which the Tribunal relied upon findings of the earlier Tribunal (as to which, see below), no particular reason is advanced as to why the Tribunal was required to obtain a transcript of the evidence given at the earlier hearing. In particular, it has not been articulated as to how there was any unfairness in the way the Tribunal raised matters with the appellant or that matters of credibility that arose from evidence before the first Tribunal were dealt with by the second Tribunal without putting those matters to the appellant.

74    For the above reasons, it has not been shown that proposed ground 2B(a) has arguable merit.

75    As to para (b), it contains a number of rolled-up complaints. First, there is a complaint about adverse findings being made without reference to particular evidence. Second, there is a complaint of adverse findings being made without regard to the transcript or full content of the oral evidence at the first Tribunal hearing. Third, there is a complaint about the Tribunal not re-calling certain of the witnesses at the first hearing to put to them inconsistencies or untruths arising from 'the field officer's written report'.

76    As to the first matter, it is not couched in terms of jurisdictional error. It is a complaint about the Tribunal's fact-finding being a matter within the jurisdiction of the Tribunal. It is without merit for that reason.

77    As to the second matter, for reasons I have given, the second Tribunal could make factual findings without regard to the transcript of what occurred at the first hearing. There is a separate complaint that the Tribunal made findings based upon what occurred at the first hearing without access to a transcript but that is expressed in proposed ground 2D (considered below). The more general complaint made at this point is without merit.

78    As to the third matter, in the case of decisions in respect of which review is sought under Part 5 of the Migration Act, it is for an applicant before the Tribunal to request the Tribunal to take oral evidence from any person: s 361(2). There is no suggestion that such a request was made in this case. In consequence, 'there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant', even if the applicant makes a request that the Tribunal obtain oral evidence from a person or persons: Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [37], affirmed in Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [15]. The only requirement is that the Tribunal genuinely apply its mind to the contents of any notice given under s 361(2) or (2A): see Maltsin at [37]-[38].

79    It has not been shown that proposed ground 2B(b) has arguable merit.

80    As to para (c), the proposed ground mischaracterises what occurred. As noted above, on 4 December 2017, the Tribunal sent a letter to the appellant advising of the date and time of the second Tribunal hearing. It indicated that the Tribunal may wish to take evidence from his former wife. The response from the appellant to the Tribunal was 'you guys do yourself'.

81    If the appellant wanted his former wife to attend and give evidence he could arrange for a summons. However, there is no suggestion that he was seeking to call evidence from his former wife to support his application. Rather, what the letter indicated was the Tribunal's interest in speaking to his former wife.

82    Therefore, there was no request by the appellant for the Tribunal to arrange for his former wife to give evidence. Rather, the appellant told the Tribunal that if it wanted to take evidence from his former wife then it would have to make those arrangements.

83    Therefore, it has not been shown that there is an arguable basis for the matters raised in proposed ground 2B(c).

Proposed ground 2C

84    Proposed ground 2C raises a complaint about the reasoning of the Tribunal at paras 47 to 51 where the Tribunal said:

The Tribunal asked the applicant whether he was still contending that he had not provided false and misleading information to the Department. In response he said that Departmental officers interviewed his neighbours who were not aware of his marriage and said his family were aware of the marriage. He said the officers attended his parents' house where they walked around without permission. He said they took photos and asked his father questions. His father does not speak English and he asked the officers if he could call his younger son to attend and answer their questions. The applicant said the officers didn't allow his father to call his younger son. He said the officers were in a rush.

The applicant told the Tribunal that he contacted the Department in New Delhi and in Australia to ask about the site visit. He said he was advised by the Department that there was no record of a site visit to his parents' house. The delegate noted there was no evidence on the Department's systems of these contacts.

The Tribunal noted the numerous references in the delegate's decision to the applicant having been untruthful to [the appellant's wife], the Department and to the Police. The applicant admitted that he had been untruthful on all the occasions referred to in the delegate's decision. He said he had not been truthful to the Department and to the Police prior to becoming a father. He said he changed after he became a father and he has not been untruthful since then.

The Tribunal was satisfied that the applicant provided information that was false or misleading in a material particular when he stated that his parents supported the marriage. The Tribunal was satisfied that the applicant's parents were not aware of the marriage at the time of the site visit. The Tribunal places significant weight on the details contained in the notes of the site visit and the on the photos that were taken, both of which do not support the applicant's contention that the officers were in his parents' house without permission and that they were in a rush.

The Tribunal also takes into account the applicant's admission of being untruthful on multiple occasions including being untruthful to the Department.

85    The proposed ground is that the primary judge erred in failing to find jurisdictional error on the part of the Tribunal by taking into account information that the appellant previously gave to his wife and the police 'as well as [the appellant's] speculation as to what happened at the site interview in India (where he was not present), as the sole or primary basis for determining [whether the Requirement had been met]'. Two matters are then stated in the ground. It is difficult to tell whether they are particulars of the ground or additional matters. They are expressed as follows:

a.    there was no rational or intelligible justification for the Tribunal's conclusion. Alternatively its conclusion was so against the overwhelmingly [sic] weight of all the directly relevant written and oral evidence as to be plainly unjust, arbitrary, capricious or legally unreasonable;

b.    prior to making its (implied) adverse finding at [48], the Tribunal remained silent when the appellant relevantly offered (at the hearing) his phone to prove his contact with the Department in New Delhi, and so it was legally unreasonable to make such an implied finding without at least first giving the appellant an opportunity to produce the evidence offered and the Tribunal examining the same.

86    In considering whether the Tribunal's finding concerning the Requirement may be impugned for jurisdictional error it is important to bear in mind the nature of the task entrusted to the Tribunal in evaluating whether the Requirement had been satisfied. The criteria of the Requirement are expressed in terms that mean the question for the Tribunal was whether there was no evidence that the appellant had given information that was false or misleading in a material particular. The use of the term 'evidence' rather than 'information' in the criteria means that the Requirement is directed to instances where there is material before the Minister (or the Tribunal on review) that is sufficiently probative to lead to the conclusion that a bogus document has been given in support of the visa application: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [45]. To similar effect is the decision in Verma v Minister for Immigration and Border Protection [2018] FCAFC 87 where at [37] the Court said, as to a decision concerning PIC 4020(1) that the Tribunal 'only needed to be satisfied that there was some probative evidence that the appellant had provided a bogus document' (in this case, information that is false or misleading in a material particular).

87    A major difficulty with proposed ground 2C is that it does not engage with the terms of the Requirement. It simply states that there was error in the factual findings in paras 47 to 51 of the Tribunal's reasons. However, those findings were directed to whether there was probative evidence that the appellant had provided information that was false or misleading. The main issue for the Tribunal was about whether there was probative evidence.

88    Proposed ground 2C refers to four aspects of the Tribunal's reasons: taking account of information given by the appellant to his wife and the police; taking account of the appellant's speculation as to what occurred at the site interview in India; the findings about the failure to meet the Requirement being without any reasonable justification (and overwhelmingly against the weight of all the direct evidence); and failing to receive evidence as to the appellant's phone to prove contact by the appellant with the Department in New Delhi. I will consider each aspect separately.

Information given to appellant's wife and the police

89    The Tribunal did not take account of information that had been given by the appellant to his wife (and sponsor) and the police. Rather it took into account the undisputed fact that the appellant admitted that he had been untruthful to his wife, the Department and to the police which could reasonably be considered to be probative evidence on the question whether he had provided false or misleading information about his marriage being supported by his parents. The finding was made by reference to matters found by the Minister's delegate when first dealing with the visa application. Those findings related to matters concerned with the appellant's visa status and his dealings with the Department. They had been referred to earlier in the Tribunal's reasons (para 35). They were expressed in very clear terms as follows:

Your credibility is also called into question as your sponsor advised the Department on 3 July 2014 that you had lied to her about your visa status as you had originally claimed that you had a valid visa. Your sponsor elaborated that she 'has caught him [you] out a few of times' with lies about your visa status and work rights. Your sponsor explained that you telephoned her when you were first detained, and that you had advised departmental officers you were married to your sponsor. Your sponsor refused to lie to the officers and stated you were not married. Your sponsor was asked if she knew the circumstances of your detention. She responded that she believed it was simply 'because his visa ran out'.

Furthermore, in 2012, while you were unlawful, the WA Police contacted the Department and confirmed that you had claimed you were a permanent resident after being stopped for a traffic offence. Departmental records also show that you lied repeatedly to Compliance Field Officers about your identity, your visa status, your work entitlements, and your relationship status when found to be working illegally in 2013. Departmental Compliance Field Officers have confirmed that you were not eligible for release from detention until a valid partner visa application was lodged.

In response to this information, you have claimed that 'I have not lied intentionally or consciously but may have panicked and provided some information by mistake due to the circumstances raised by the situation at the time because I never wanted to be separated from my family due to my immigration status. I had no intention to cheat Immigration Department or my wife at any time and always want to have a happy and prosperous life with my wife and child.'

I do not accept this claim. According to your statements in your Form 47SP, you first met your sponsor on 3 October 2012, and committed to a shared life together to the exclusion of all others on 31 October 2012. I note that you were in Australia without holding a valid visa from 15 March 2012 to 6 August 2012. Therefore when you first lied to the WA Police, you had not even met your sponsor.

You have a clear pattern of lying to various authorities. I find that your lies are intentional and have been stated purely out of self-interest, and not because you have any genuine fears about being separated from your sponsor and child. The fact that you were found working despite not holding any work rights and that you remained in Australia in 2012 for nearly six months knowing that you did not hold a valid visa shows that you have no respect for the law and that you will disregard complying with it if it suits your own self-interest and needs. I therefore do not consider anything you claim to be truthful or reliable information.

Your explanations regarding the suspected false and misleading information are not plausible, credible, or supported by the evidence before me. My initial conclusion that you gave false and misleading information to the Department in a material particular therefore remains unchanged.

90    Therefore, in the context of those findings by the delegate, it can be seen that the matters about which the appellant admitted that he had lied showed a propensity to lie about matters relating to his visa. It was also evidence that could be relied upon by the Tribunal when determining the credibility of the appellant's account of what his parents knew about his marriage. There is no merit in the ground that seeks to impugn this aspect of the Tribunal's reasoning.

Appellant's speculation about the site interview in India

91    The Tribunal recounted the appellant's explanation concerning the evidence to the effect that his parents had said at the site interview that he was not married and did not have any children. Ultimately, the Tribunal stated that it placed significant weight on the details contained in the notes of the site visit and on the photos taken at the time. In doing so it stated that those matters did not support 'the applicant's contention' about what occurred at the site interview. It is clear from these statements that the matters raised by the appellant as to what occurred were treated as contentions not evidence. Earlier in its reasons (at para 30), the Tribunal had recounted the evidence from the appellant to the effect that his parents were aware of his relationship and the child of the relationship and that there was a statement provided by his father to that effect.

92    The ground is based on the false premise that the Tribunal founded its factual conclusions on views as to the appellant's speculation about what occurred at the site interview. This is not how the Tribunal reasoned. It treated the matters raised by the appellant about what occurred at the site visit as matters of contention by the appellant. It preferred the evidence contained in the notes of the site visit. It took into account the appellant's admission that he had been untruthful on multiple occasions (a matter that was relevant to the appellant's account of what his parents knew about his relationship).

93    Therefore, the aspect of proposed ground 2C that is concerned with speculation about the site visit is without merit.

Findings said to be against the weight of the evidence

94    To the extent that para (a) of proposed ground 2C says that there was no rational or intelligible justification for the Tribunal's conclusion about meeting the Requirement, the claim is patently without merit. Reasons are given for the conclusion reached and it is not reasonably arguable that the reasons given are irrational or unintelligible.

95    The alternative is a complaint that the conclusion was so against the overwhelming weight of the evidence as to be unjust, arbitrary, capricious or legally unreasonable. The difficulty with this aspect of the ground is that it is entirely devoid of particulars. There was no attempt to support the ground by reference to an identification of the evidence said to be of overwhelming weight. The claim could not be advanced without identifying all of the evidence that was relevant to the issue that was before the Tribunal. There has been no attempt to undertake that task. In those circumstances, no merit has been demonstrated in the proposed ground.

The reference to the appellant's phone

96    The transcript of the proceedings before the Tribunal records the following exchange between the appellant (A) and the Tribunal Member (M) concerning the appellant's phone:

M    Okay so we will go on the fact that you made a statutory declaration saying that you telephoned the Department to complain about this or ask about this?

A    Yes, yeah I did, I called in New Delhi your Immigration Department like from Australia. When I rang them and then I asked them who was they like they went to my house and then they didn't tell me anything even I call here in Immigration Department and they, yes, then they didn't give me any details about.

M    They actually did they said that there was no record of it.

A    Yeah that's it went missing.

M    There's no record of you calling either.

A    No I did.

M    But there's no record of you calling.

A    I can give you call details if you want.

M    No I'm saying the Department has already did there's no record of you calling.

A    Who?

M    Calling the Department.

A    Okay, look, look I've got on my phone with me.

M    I'm ...

A    No, no I understand, look,

M    The Tribunal ...

A    No, no, look, I understand what is happened last time I'm really sorry about that but I can provide you ..

M    I'm not...

A    No, no, no.

M    The previous Tribunal has already made that finding.

A    Okay.

M    They are satisfied you did not, there's no record of that call.

A    Okay, I'm sorry about that I don't know that, but if you want that I can provide you, when I was, I don't know, I can provide you.

97    As to whether the appellant had contacted the Department in New Delhi to ask about the site visit, the Tribunal's reasons record that the delegate noted that there was no record on the Department's systems of such contacts.

98    Proposed ground 2C begins as a complaint that there was jurisdictional error by failing to take certain matters into account. There can be no jurisdictional error simply because the Tribunal did not receive any record that may have been in the appellant's phone. It was certainly not a matter that was mandatorily relevant in the sense that a failure to take the contents of the phone into account amounted to jurisdictional error.

99    However, in para (b) there is a separate statement that it was legally unreasonable to make an implied finding about the phone without first giving the appellant an opportunity to present the evidence as to what was on the phone.

100    Unreasonableness is not a ground of review that enables a complaint about a particular finding which is alleged to have been made unreasonably to be a basis for demonstrating jurisdictional error. The character of such a review ground was considered in Tsvetnenko v United States of America [2019] FCAFC 74 where it was stated at [83]-[85]:

Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [72]-[95] (Colvin J)).

However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

101    In this case, the finding is about whether the appellant contacted the Department in New Delhi to ask about the site visit. The Tribunal's reasons do not rest upon whether there was an inquiry of that kind. They rest upon its findings about what was said by the appellant's father at that visit. Whether the appellant made some contact after the site visit is not probative of what occurred at the visit. Unreasonableness in the result is not demonstrated by a single complaint about one aspect of the reasons that does not impugn the overall reasoning.

102    In the course of oral submissions, it was suggested that the matters complained of in para (b) of proposed ground 2C raised a complaint that there had been a breach of procedural fairness. The ground is not expressed in those terms. Any such claim would have to be formulated in the context of s 357A which provides that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Division 5 provides for the applicant for review to give a written statement in relation to any factual matter that the applicant wishes the Tribunal to consider: s 358(1)(a). The issue whether the appellant had made contact with the Department in New Delhi after the site visit had been raised at the first Tribunal hearing. There are other provisions about information being provided to the Tribunal. Given the manner in which the ground is formulated and its failure to engage with the statutory regime about provision of information as well as the failure to develop the argument on the application so as to demonstrate arguable merit as to a complaint based on procedural fairness, leave should not be given to advance the ground on the basis that it raises some procedural fairness point.

103    I do not accept that the matters the subject of proposed ground 2C were raised before the primary judge. The nature of the ground is that it seeks to complain about the approach of the Tribunal to the evidence. It appears that consideration of the unreasonableness aspects of the ground would require a review of all of the evidence before the Tribunal that was relevant to whether the Requirement had been met. This is a task that was not undertaken by the primary judge because no ground of that kind was raised before the primary judge. There is no hint that the appellant has surveyed that material for the purposes of advancing the proposed appeal ground. The fact that the ground would invite this Court for the first time to undertake a detailed consideration of the evidence before the Tribunal is a matter that counts substantially against the grant of leave to raise a ground of the kind indicated by the broad terms of proposed ground 2C. Where that analysis of the evidence is to be undertaken for the first time on appeal, the fact that there would be no appeal as of right from that analysis (whereas there would have been if the matter was argued in the Federal Circuit Court) also counts against the grant of leave.

104    For all those reasons, I refuse leave to amend the grounds of appeal in terms of proposed ground 2C.

Proposed ground 2D

105    The terms in which proposed ground 2D are expressed state two distinct grounds. First, it is said that the Tribunal failed to decide the application for review for itself and constructively failed to exercise its jurisdiction because it simply adopted the evidential findings made by the first Tribunal. Second, it is said that the Tribunal 'demonstrated an actual or a reasonable apprehension of bias'. The ground then lists five matters that appear to be the particulars to support each of these grounds. They are:

(a)    the Tribunal extensively reproduced and adopted facts determined in the first Tribunal decision which had been quashed, 'without itself conducting a full de novo review of its own';

(b)    the Tribunal's written reasons substantially or materially copied the reasons of the quashed decision;

(c)    the Tribunal failed to call the wife-sponsor to give evidence central to whether the Requirement had been met;

(d)    the Tribunal foreclosed the appellant producing his phone to prove he had contacted the Department in New Delhi because the previous tribunal had already adversely decided the point against him and then proceeded to make an adverse finding against him as to that matter; and

(e)    the Tribunal's manner of questioning the appellant or conducting the hearing demonstrated sarcasm, pre-decision and/or animosity towards the appellant.

106    I will deal first with the proposed ground insofar as it claims that there was a constructive failure to exercise jurisdiction.

107    The issue about the reasons of the Tribunal adopting what had been found by the first Tribunal without undertaking its own review was a matter raised before the primary judge. When it was raised in the course of the argument in support of the adjournment application the primary judge indicated that it was an argument that could be put at the substantive hearing that day. In the result, the matter was not addressed by the primary judge.

108    Having regard to the manner in which the primary judge dealt with the adjournment application and allowed additional arguments to be raised informally, I am satisfied that there is a reasonable basis for the appellant to claim that the ground is not a new matter or at least is not in the category of case where an entirely new point is raised for the first time on appeal. Therefore, leave is not required to raise the point on the basis that it is new.

109    Further, I am satisfied that the ground is reasonably arguable by reference to the matters listed in (a) to (d) above and leave should be given to raise the ground. The matters stated in (c) and (d) go beyond a complaint that the Tribunal simply adopted the reasoning and conclusions reached in the first Tribunal, but they are matters which are sufficiently related to the same point that I consider that it would be expedient and in the interests of justice for them to be raised on the appeal. In that regard it is significant that the proposed grounds do not open up a detailed consideration of the evidence. Nor do they require consideration of the evidence that the appellant seeks to lead in the appeal. The ground raises a complaint that is fundamental to the nature of the jurisdiction entrusted to the Tribunal and if the ground were established would mean that the appellant has been deprived of any meaningful discharge of the statutory task entrusted to the Tribunal (assuming for present purposes the merit of the implicit contention that the Tribunal could not discharge its task by acting upon findings made by the earlier Tribunal that were not impugned by the basis upon which the decision of the first Tribunal was set aside). Having regard to the serious consequences for the appellant, I am satisfied that the additional aspects of the ground should be allowed to be raised even though they may be characterised as new matters not raised before the primary judge.

110    I now deal with the ground insofar as it seeks to raise a complaint of actual or apprehended bias. No such claim was advanced before the primary judge. It is not a ground that was suggested by the terms of the affidavit of the appellant at the time the adjournment was sought. It was not a ground that formed part of the reasons why an adjournment was sought. There is no real explanation as to why the point was not raised before the primary judge. It is a point of a kind that might be expected to have been identified by Mr Nugawela and Mr Wong in the course of examining the material for the purposes of providing an initial indication to the appellant about merits and considering the information that may be required.

111    To the extent that the proposed ground seeks to allege actual bias it makes a very serious allegation without any supporting particulars. No submissions were advanced to explain the basis for the claim. Therefore, I am not satisfied that arguable merit has been demonstrated in respect of the ground insofar as it claims there was actual bias and in all the circumstances I refuse leave to raise the actual bias aspect of ground 2D.

112    As to the claim of apprehended bias, in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (a case dealing with alleged judicial bias), it was noted that the test is relatively well settled and is 'whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits'. It is a principle that recognises that statutory powers are generally conferred on the basis that a fair and unbiased process will be followed in the exercise of the power: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].

113    When applying the principles concerning apprehended bias in the context of administrative decision-makers there must be due allowance for the fact that '[t]he analogy with the curial process is less apposite the further divergence there is from the judicial paradigm': Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]. 'What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision': Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [70] (McHugh J) (as approved in Isbester at [22]).

114    To the extent that the matters relied upon in support of the claim of apprehended bias are the same matters that are relied upon to support the claim of a failure to exercise jurisdiction I am satisfied that the ground should be allowed to be raised. There could be no real prejudice for the Minister in having to deal with an additional legal argument as to how the matters complained of might be characterised when it comes to jurisdictional error.

115    However, the final matter relied upon, being alleged sarcasm, pre-decision and/or animosity said to arise from the manner in which the Tribunal hearing was conducted is in a different category. It would not be possible to deal with a ground that relies upon allegations of the manner in which the Tribunal dealt with the appellant without considering the actual recording of the hearing, particularly where the complaint is of sarcasm or displayed animosity. Complaints of this kind would be expected to be raised by the appellant when first seeking advice. They are matters which a lay person may be expected to be able to identify as a concern if indeed there was a genuine basis for complaint. The absence of any explanation as to why this particular matter was not raised before the primary judge is significant given the nature of the allegation. It is a matter that is entirely new and opens up consideration of evidence that was not evaluated by the primary judge. Consistently with the views that I have expressed as to other proposed grounds, these are reasons why leave should be refused to raise the ground.

116    Therefore, I would grant leave to amend the notice of appeal to raise ground 2D, but confined in the manner I have described.

Proposed ground 2E

117    Proposed ground 2E is expressed in the following terms:

2E.    In the alternative to the above grounds, in determining that there were no compassionate or compelling circumstances within the waiver provisions of PIC 4020(4)(b) [hereafter, the second relevant question'] [sic], the Tribunal committed jurisdictional errors and the learned primary Judge erred in failing to so find:

(a)    the Tribunal simply copied or adopted the findings in the earlier quashed decision at [86],[87], inspite of and disregarding the new information provided to it at [77]-[78], and without itself conducting a full de novo review of its own;

(b)    the Tribunal's manner of questioning the appellant or conducting the hearing demonstrated sarcasm, pre-decision and/or animosity towards the appellant;

(c)    the Tribunal unreasonably failed to inquire into relevant matters extant in the Family Court which were central to the disposition of the paramount question of the welfare of the child or children. Alternatively, the Tribunal erred in failing to adjudicate upon these central matters itself or postpone its determination until such time the Family Court proceedings reached a relevant determination;

(d)    the Tribunal unreasonably failed to call the [appellant's wife] to give evidence central to the [question of waiver] in circumstances where it had recently indicated a desire to hear from her and/or unreasonably disregarded her prior evidence strongly supportive of the … bond [between father and child].

118    Unlike ground 2D which applies to the whole of the Tribunal's decision, ground 2E is confined to the part of the decision concerned with whether there should be a waiver of the Requirement.

119    Paragraph (a) makes the same complaint as ground 2D but in respect of additional paragraphs. It is confusing to have matters expressed in this overlapping way. I would grant leave to amend in terms of proposed ground 2D so as to allow the inclusion of the matters in para (a) of ground 2E.

120    Leave to amend in terms of para (b) should be refused for reasons I have already given as to the final paragraph in ground 2D.

121    Paragraph (c) appears to be an allegation of legal unreasonableness. No submissions were advanced to explain why the Tribunal had an obligation, in all the circumstances, to inquire into matters in issue in the Family Court proceedings, to adjudicate those matters or to postpone the hearing of the matter until the Family Court proceedings had been determined. There are many respects in which the proposed ground is problematic.

122    First, it was for the appellant to provide a statement and submissions as to matters that he wished to raise: s 358. The matters the subject of the Family Court proceedings were known to the appellant and it was for him to advance them before the Tribunal if considered relevant.

123    Second, accepting that there may be circumstances in which the Tribunal may be required to take steps to inquire into a matter, there was no attempt to articulate how it was that such an obligation arose in the circumstances of this case.

124    Third, the fact that documents that had been prepared for the purposes of the Family Court proceedings were put to the appellant by the Tribunal to test his version of events did not mean that it was necessary for the Tribunal to inquire into all of the matters the subject of the Family Court proceedings.

125    Fourth, it was not for the Tribunal to adjudicate on matters the subject of the Family Court proceedings. It was undertaking a different task for different statutory purposes. The appellant made no effort to identify how particular matters the subject of the proposed ground were relevant to the discharge of the Tribunal's statutory task.

126    Fifth, determinations by the Family Court of matters in dispute between the appellant and his former wife relating to the custody of their child were not conclusions that would be binding on the Tribunal. The suggestion that the Tribunal should have deferred its consideration of the matter until after the determination of the Family Court proceedings was misconceived for that reason.

127    Sixth, the documents on the Family Court file were identified as documents that were needed for the hearing before the primary judge to justify the adjournment application. No issue is taken with the decision by the primary judge not to adjourn. This is a compelling matter that stands against allowing that matter to be agitated on appeal.

128    Seventh, the manner in which the appellant puts the claim is that this Court on appeal should receive documents from the Family Court proceedings in order to adjudicate the question of materiality. Therefore, if leave is given, the ground would result in this Court considering a considerable amount of material that was not considered by the Tribunal or the primary judge. To do so would substantially undermine the statutory scheme which entrusts the review jurisdiction to the Federal Circuit Court.

129    For all those reasons, I refuse leave to amend in terms of para (c) of proposed ground 2E.

130    Proposed ground 2E(d) complains that 'the Tribunal unreasonably failed to call [the appellant's wife] to give evidence central to the [question of waiver] in circumstances where it had recently indicated a desire to hear from her and/or unreasonably disregarded her prior evidence strongly supportive of the bond [between father and child]'.

131    The ground seeks to raise a new matter not advanced before the primary judge. It seeks to introduce a consideration of evidence before the first Tribunal that was not considered by the second Tribunal or the primary judge. It is an unreasonableness claim formulated by reference to particular steps in, or aspects of, the proceedings before the Tribunal rather than a complaint about the overall outcome in the proceedings or findings that had material consequences for the overall outcome. For reasons I have given, legal unreasonableness cannot be established by a complaint of that kind. These are all reasons why leave should be refused to raise the proposed ground.

132    Otherwise, it is difficult to identify the precise nature of the point that is sought to be made beyond a complaint that the Tribunal should have made a different finding on the evidence. I have dealt with the complaint by the appellant about the failure by the Tribunal to call the appellant's wife as a claimed failure to exercise jurisdiction in dealing with ground 2D. It is without merit. The ground is not otherwise formulated in terms of procedural unfairness. To say that evidence was unreasonably disregarded is not to identify jurisdictional error. It is to raise a complaint about the factual findings of the Tribunal.

133    For those reasons I do not allow the proposed amendment to add ground 2E(d).

Application for disclosure

134    The appellant's application described five categories for which orders for disclosure were sought. The claim for category c was abandoned in the course of oral argument. No submissions were advanced to support the general disclosure sought in categories d and e.

135    For reasons I have given, the only document the subject of the application for disclosure that may have any material relevance for a proposed ground which I will allow to be raised by way of amendment is the Allegation document being the document sought in category a. For reasons I have given I would decline to order the disclosure of that document at this time. Category b concerned the documents the subject of the certificates. For reasons I have given, leave should be refused to raise the proposed grounds concerning the certificates being matters not raised before the primary judge.

Claim to public interest immunity

136    For reasons I have given the only document about which it is necessary to consider the Minister's claim to public interest immunity is the Allegation document and that claim should be determined at the final hearing.

Application to adduce further evidence

137    The appellant seeks leave to adduce three affidavits of Mr Wong and one affidavit of the appellant in evidence in the appeal. The principles to be applied were summarised in Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [68]-[72].

138    The submissions in support of the application to adduce further evidence did not seek to link the application to particular grounds. They made a discursive claim about the appellant having told the Tribunal that he looked forward to vindication in the Family Court on issues such as the welfare and custody of the child of the marriage, the stability of the appellant's former wife, the safety of the child, violence restraining orders and the appointment of an independent lawyer to represent the interests of the child. The following general submission was advanced:

Until these inchoate issues were resolved in the Family Court … or findings of fact made by the Tribunal itself upon the acquisition of all relevant materials, it was not in a position to rationally evaluate (let alone make findings or draw any reasoned or reasonable conclusions concerning) the paramount consideration of [the child's] welfare should the father's visa be refused. Yet, that is what it purportedly did, or if not, it then constructively failed to exercise its jurisdiction.

139    It was contended that the appellant's former wife gave evidence at the first Tribunal hearing which was relevant. This submission disregards the change in the circumstances of the marital relationship between the first and second Tribunal hearings and the disputation between the parties that, by the time of the second hearing, was ongoing in the Family Court concerning the custody of the child. Matters that might be viewed as supportive of the appellant that were advanced by his former wife at the first hearing were overtaken by what had transpired between them by the time of the second hearing.

140    Then, it was submitted 'against the above background' that the matters in the affidavit evidence may ultimately assist in determining the materiality of the jurisdictional errors at least in relation to proposed grounds 2B(b) and 2E. I have concluded that leave should not be allowed to amend the grounds of appeal to raise those grounds. The application should be refused for that reason.

141    In addition, it appears that the 'background' advanced to justify the additional evidence that was not before the primary judge is a complaint that the Tribunal should have deferred matters until the Family Court proceedings were determined. This was the position advanced in oral submissions. There are a number of difficulties with that submission. First, the Tribunal's task was to be undertaken for the purposes of the Migration Act and it would not be bound by any findings made in proceedings between the appellant and his former wife in the Family Court. Second, there was no application to the Tribunal of the kind intimated by the submission, namely that the proceedings be adjourned until the outcome of the Family Court proceedings. Third, there is no ground of appeal in the proposed grounds that raises any complaint of the kind outlined in submissions. Fourth, it was not explained how the material that was concerned with the issues identified would be relevant to any assessment of materiality related to any particular proposed ground. Fifth, the Tribunal approached the matter on the basis that there were compassionate and compelling circumstances because the appellant and his child were likely to endure emotional hardship if they were not living in the same country. Implicit in that finding was an acceptance that there would be an ongoing relationship between the appellant and his child if the visa sought was granted. In that respect, the Tribunal's approach assumed a favourable outcome in the Family Court on the disputed question of custody and access concerning the child of the marriage. Sixth, it is not claimed that the material was before the Tribunal and it would invite a factual inquiry into matters not considered by the Tribunal or the primary judge. Much of the material pre-dates the second Tribunal hearing and there is no explanation as to why it was not presented to the Tribunal by the appellant. To the extent that the material post-dated the Tribunal's decision it has not been explained how that material could be relied upon to demonstrate jurisdictional error by the Tribunal in making a decision that had to be made by reference to the factual position at the time of the Tribunal's decision.

142    There is the further problem, referred to above, that much of the material was the basis for the unsuccessful application to adjourn the proceedings before the primary judge. Yet, there is no challenge to the decision to reject that application, in part on the basis of a view that the material could not be relevant.

143    The only other matter advanced to support the application was that it introduced some material that had been marked 'not reproduced' in the application book before the primary judge. By definition such material was not before the primary judge and there is no explanation as to why material that the appellant did not advance or rely upon before the primary judge should be considered on appeal (beyond the matters raised in the proposed grounds which I have already considered in these reasons).

144    The Minister did not oppose the admission of para 11 of the affidavit of Mr Wong dated 6 May 2019 and the annexures referred to in that paragraph. Save to the extent of that concession, for reasons I have given I refuse the application for leave to adduce further evidence in the appeal.

The references to family court proceedings

145    In these reasons it has been necessary to refer in a general way to matters that have been the subject of Family Court proceedings. Section 121 of the Family Law Act 1975 (Cth) makes it an offence to publish any account of part of any proceedings under the Act that identifies a party to the proceedings or a person who is related to, or associated with, a party to the proceedings or a witness. An 'account' is 'a narrative, description, retelling, or recital of such proceedings': Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 at [53]. I dealt with the proper approach to publication of reasons in such circumstances in CFB18 v Reader Lawyers & Mediators [2018] FCA 611 at [1]-[4]. As in that case, to enable these reasons to be published in accordance with principles of open justice, I have prepared them in a manner that will not identify the participants in the Family Court proceedings if the name of the appellant is not used in any publication and I will make an order that in these proceedings the appellant be named in a manner that does not identify the appellant.

Summary and costs

146    For the reasons I have given:

(1)    there should be leave to amend the grounds of appeal in terms of the proposed amended notice of appeal dated 20 May 2019, but confined to proposed grounds 2A(b), 2D(a) to (c) (expanded in the case of ground 2D(a) to include the matters stated in ground 2E(a)) but excluding any claim to actual bias;

(2)    save for the Allegation document, there is no need to adjudicate the claims to public interest immunity;

(3)    as to the Allegation document, the claim to public interest immunity should be determined at the final hearing of the appeal to the extent that it is necessary to determine the claim; and

(4)    the application for leave to adduce further evidence is refused, save for the admission of para 11 of the affidavit of Mr Wong dated 6 May 2019 and the annexures referred to in that paragraph.

147    As the Minister has been substantially successful on the issues for adjudication on the present applications, the appellant should pay the costs of the interlocutory applications.

Associate:

Dated:    17 June 2019