FEDERAL COURT OF AUSTRALIA

SZUYG v Minister for Immigration and Border Protection [2019] FCA 2040

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to amend their notice of appeal so as to raise as a ground of appeal, in lieu of those pleaded, proposed ground 1 as set out in the affidavit of the first appellant filed herein on 30 October 2019 (first appellant’s affidavit).

2.    To the extent that it sets out proposed ground 1, the first appellant’s affidavit serve as an amended notice of appeal with the requirement to file and serve an amended notice of appeal setting out that ground being dispensed with accordingly.

3.    Leave to raise as grounds of appeal proposed grounds 2 and 3 as set out in the first appellant’s affidavit be refused.

4.    The appeal be dismissed.

5.    The appellants pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The appellants are each citizens of the People’s Republic of China. Their Australian immigration history is a complicated one. However, their counsel, Ms Okereke-Fisher, who made submissions on their behalf with a succinctness, care and candour matched by those of Ms Francois for the Minister for Immigration and Border Protection (Minister), the only active party respondent, made it clear that there was no dispute as to the accuracy of the chronology offered in the Minister’s submissions. I have therefore drawn extensively upon that chronology in the following account.

2    The first appellant is an adult woman. She first arrived in Australia on a visitor’s visa on 13 April 2008. The second appellant is an adult man, some six years older than the first appellant. He arrived in Australia in or about 2008. He is the first appellant’s de facto spouse and thus a member of her family unit. Their relationship commenced on 25 July 2011.

3    On 15 May 2008, the first appellant lodged an application for a protection visa (the first appellant’s first PVA). The first appellant’s first PVA was made prior to the introduction of the complementary protection criterion, now found in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). Accordingly, the first appellant’s first PVA was made only in respect of the refugee criterion, found in s 36(2)(a) of the Act. The first appellant’s son was included in this visa application, but the second appellant was not. Inferentially, that was because their de facto relationship had not then commenced.

4    The first appellant’s first PVA was refused by a delegate of the Minister on 13 August 2008.

5    The first appellant sought the review of that decision by the then Refugee Review Tribunal (RRT). On 12 January 2009, the RRT affirmed the Minister’s delegate’s decision.

6    On 8 July 2013, the second appellant lodged an application for a protection visa (the second appellant’s first PVA). Curiously, although their relationship had by then commenced, the first appellant was not included in the second appellant’s first PVA, but the second appellant’s son was. The application was made after the introduction into the Act of the complementary protection criterion. The second appellant’s first PVA was made in respect of both the refugee criterion and the complementary protection criterion.

7    On 27 August 2013, a delegate of the Minister refused second appellant’s first PVA.

8    The second appellant sought the review of that decision by the RRT. On 22 October 2013, the RRT affirmed the Minister’s delegate’s decision.

9    On 24 October 2013 the first appellant applied again for a protection visa (the second PVA). On the second PVA, the second appellant was listed as a secondary applicant. As the first appellant has already had her protection claims assessed in respect of the refugee criterion and as a consequence of s 48A of the Act as it then stood, and as construed by this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), her protection claims in the second PVA were limited to the complementary protection criterion. Further, as the second appellant had already had his protection claims assessed in respect of both the refugee criterion and the complementary protection criterion, a further consequence of s 48A of the Act as so construed was that his application was limited to the family unit criterion found in ss 36(2)(b) and (c) of the Act.

10    In the second PVA, the first appellant claimed to fear significant harm if she were to return to China because she was a Christian who had adopted a child and was being harassed to pay penalty fees in relation to that child. For the purposes of the second PVA, the second appellant attended an interview with a delegate of the Minister on 11 March 2014. On 19 March 2014 that delegate refused the second PVA on the basis that he did not consider the first appellant’s claims to be credible.

11    On 9 April 2014, the appellants sought the review of the Minister’s delegate’s decision in relation to the second PVA by the RRT. On 21 July 2014 the appellants, together with their then representative, appeared at a hearing before the RRT. At the end of the hearing, the second appellant produced a letter from the Minister’s department dated 12 March 2014 indicating that, in February 2014, certain of his personal information had been inadvertently made available on the department’s website for a short period of time (the data breach).

12    On 5 August 2014, the RRT affirmed the decision of the Minister’s delegate in respect of the second PVA. The RRT did not accept the truth of the first appellant’s claims (see [49] and [51]). In relation to the data breach, the RRT stated (at [50]):

… At the end of the hearing before me [the second appellant] produced a letter to him from the Department of Immigration dated 12 March 2014 indicating that his personal information had been accessible online for a short period of time. As I explained to [the first appellant] and [the second appellant] at the beginning of the hearing before me, I am only able to consider [the second appellant’s] current application on the basis of the criterion requiring that he is a family member of the holder of a protection visa. So far as [the first appellant’s] situation is concerned, as I put to her, this letter does not say that the information in her protection visa application has been revealed. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the first appellant] being removed from Australia to China, there is a real risk that she will suffer significant harm because she will be able to be identified as a failed asylum seeker as a result of this data breach.

13    On 22 August 2014, the appellants applied to Federal Circuit Court for the judicial review of the RRT’s decision of 5 August 2014. As pleaded, the originating application contained one ground (particulars omitted):

1.    The Tribunal erred in failing to consider the risk of significant harm to the applicant due to her imputed political opinion derived from her connection to her ex-husband and his status as a failed asylum seeker and the release of his personal details.

14    On 14 January 2015, the appellants filed written submissions with the Federal Circuit Court (the FCC written submissions) by which they sought to raise two grounds of review as follows:

(a)    the Tribunal erred by failing to comply with s 425 of the Act with respect to the data breach issue; and

(b)    the department breached either the Privacy Act 1988 (Cth) or s 336E of the Act with respect to the data breach issue.

15    On 13 May 2015, the Federal Circuit Court dismissed the appellants’ application. In so doing, the learned primary judge observed (at [15]) that, at the hearing, the appellants abandoned the ground pleaded in the originating application in favour of the grounds set out in the FCC written submissions.

16    The learned primary judge considered (at [23] – [25]) that the appellants’ pleaded ground and written submissions erroneously proceeded on the basis that the RRT was responsible for the conduct of the Minister’s department. His Honour noted (at [26]) that the alleged breach of s 425 of the Act was said to have arisen because the RRT did not consider whether the second appellant would be at risk of harm in China as a result of the data breach. However, his Honour’s view (at [29]) was that, because the second appellant had already had his protection claims considered under both the refugee criterion and the complementary protection criterion (in the context of the second appellant’s first PVA), he was barred from having his protection claims further considered under these criteria by s 48A of the Act. His Honour concluded (at [30]) that the RRT was therefore correct to conclude that, following SZGIZ, the second appellant was only entitled to be considered against the family unit criterion.

17    The learned primary judge also addressed (at [31]) the appellants’ claims that the first appellant would face a real risk of significant harm in China as a result of the data breach. He observed (at [32]–[33]) that the only evidence before the RRT (and before the Federal Circuit Court) related to the release of the second appellant’s personal information, not the first appellant’s personal information. The primary judge found that the RRT did consider the first appellant’s claim to fear harm in China because of the release of the second applicant’s personal information, and that the RRT’s findings in respect of that claim were reasonably open to it on the evidence before it (at [34] – [35]). Ultimately (at [37] – [38]), his Honour was not satisfied that the data breach revealed any error in the RRT’s decision. He observed that the Minister’s department’s letter to the second appellant indicated that a separate assessment would be made by the department as to the implications for the second appellant resulting from the data breach by the department.

18    On 29 May 2015, the appellants appealed to this Court against the Federal Circuit Court’s order dismissing their judicial review application. In the notice of appeal, filed that day, the following grounds of appeal were pleaded:

1.    The Appellants claimed that Australia owed protection obligations in respect of them.

2.    The FCC erred by not finding that the Respondents made errors of law by not tacking into account some vital aspects, such as the release of the Appellants’ personal information on the internet (the Data Breach) in February 2014 and the impact of the Data Breach on the Appellants.

3.    The FCC erred by not finding that the Second Respondent made an error of law by not considering evidences which were significant and critical to the decision under review.

4.    The FCC erred by not finding that all the Respondents has deprived the Appellants from natural justice.

5.    The Court did not consider claims that the Appellant might raise as a consequence of the release of his personal information on the internet through the Data Breach and the publications of their previous Court judgements and RRT Decision Records.

6.    The “promised normal process” by which the claims of the appellants that Australia owed protection obligations in respect of them has been wrongly completed.

7.    In or about 11 February 2014, the First Respondent by his servants or agents released the appellants’ personal information by publishing it on the world wide web.

8.    The appellant’s personal information so released included his name, date of birth, nationality, gender, details about the appellant’s detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.

9.    Through the publications of their Court judgement and RRT Decision Record even more “identifying information” along with their all climes are publicly accessible.

10.    The release of the appellant’s personal information by the First Respondent, his servants or agents, was contrary to law.

Particulars

1.    The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;

2.    Further, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.

11.    The release of the appellants’ personal information has caused the appellants to have a well founded fear that their removal from Australia and return to China will involve a breach of Australia’s non-refoulement obligations under the Refugee Convention; and/or the Convention Against Torture; and/or the International Covenant on Civil and Political Rights.

12.    On 12 March 2014, the Second Appellant received a letter from the Secretary of the Department of Immigration and Border Protection (“the 12 March 2014 letter”).

Particulars

3.    The document was in writing and handed to the appellant and the appellant relies on the entirety of the letter as though it were pleaded herein.

13.    The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):

“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.”

14.    There is utility for the appellants in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s48B or s417 arising from the disclosure of the applicant’s personal information.

15.    There is a likelihood that the First Respondent will purport that it is reasonably practicable to remove the applicant pursuant to s198 and/or s197C of the Act irrespective of whether an assessment of Australia’s non-refoulement obligations in relation to the February 2014 disclosure of the appellants’ personal information has been carried out in a way which the appellants is accorded procedural fairness.

[sic; emphasis in original]

19    On 4 June 2015, a registrar made standard appeal case management directions to the end of the appeal being heard in the Court’s August 2015 appeal sittings. In the result, the appeal was not listed in that sittings. Subsequent case management orders were made by registrars, the effect of which was progressively to postpone the hearing of the appeal to the Court’s first appeal sittings for 2016 and then to the November 2016 appeal sittings. In anticipation that the appeal would be heard in the first 2016 sittings, a Court Book was prepared and filed. The appellants prepared, filed and served an outline of submissions accordingly. Although there was no formal amendment of the notice of appeal, the appellants’ outline of submissions was apparently prepared on the footing that an amendment had been made. That is because the submissions commence, “I press the four grounds of the amended notice of appeal” [sic]. The submissions are directed to asserted errors by the Federal Circuit Court in failing to find jurisdictional error in the RRT’s dealing with asserted ramifications of the consequences of the data breach for each of the appellants. The RRT’s error was said to include a failure to make inquiries as to those consequences.

20    In the result, the appeal was not heard in the November 2016 sittings. Instead, on 4 November 2016, Burley J ordered that:

No further listing action occur in this matter, and the appeal will remain in abeyance, pending the outcome of the Minister for Immigration and Border Protection’s appeal in the matter of Minister for Immigration and Border Protection v Singh & Anor: VID1202/2016.

21    The issue raised in that case touched on the impact of the non-disclosure to an applicant for review of certificates given under s 357A or, as the case may be, s 438 of the Act.

22    Thereafter, the occurrence of further test cases intruded upon the progression of the appeal to a hearing. On 18 June 2018, following a case management hearing, Burley J ordered that no further action occur in the matter, and the appeal:

remain in abeyance, pending the determination of the appeals currently before the High Court of Australia from the decisions of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

23    Eventually, these various test cases were resolved by the judgement of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (SZMTA). The case management result was that, in September 2019, the appeal was listed for hearing on 11 November 2019. Also in September 2019, counsel who had previously agreed to act for the appellants pursuant to a pro bono referral order made by the Court for the benefit of the appellants in 2018 was granted leave to return the brief. The following month, the appellants filed and served an affidavit of the first appellant in which she deposed to the retainer of Ms Okereke-Fisher. In that affidavit, she also stated that, on advice, she (an I infer she also meant the second appellant) wished to amend the ground of appeal so as to plead the following as grounds of appeal:

Ground One

The Federal Circuit Court failed to find that the Tribunal failed to follow the Assumption in the High court’s decision in SZSSJ in dealing with the question whether the Appellant would face significant harm as a result of the Data Breach Claim.

Particulars

(a)    The second appellant’s application was considered on the basis that he is a family member of the holder of a protection visa. [Paragraph 1, AB13]

(b)    The second appellant claimed that he was a victim of the department of immigration data breach that took place in 2014 and the Chinese government might persecute them (“Data Breach Claim”). [Paragraph 41, AB23]

(c)    Before the court the appellant stated that she would suffer harm on return to China as a result of the “data breach” involving her “husband’s” personal details given her relationship to him. [Paragraph 31, FCCA Judgment, AB32]

(d)    The Tribunal accepted that the Appellant was subject to the Data Breach but found that it was the second appellant’s name and personal details that were revealed, the letter did not state that the appellant’s protection visa information was released. [Paragraph 41]. Ultimately the Tribunal found that there were no substantial grounds to believe that as a necessary and foreseeable consequence of the Appellant being removed from Australia, she will suffer significant harm because she will be identified as a failed asylum-seeker. [Paragraph 50, AB 26].

(e)    On any view, the Data Breach was very serious. The information disclosing the identities of the applicants for protection visas embedded in the document published by the Department was information protected from unauthorised access and disclosure by criminal prohibitions in Pt 4A of the Migration Act 1958 (Cth). [Paragraph 4, Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29] (“SZSSJ”)]

(f)    The High Court’s decision in SZSSJ at [90]-[91] shows that officers conducting the ITOAs were instructed - to assume that an applicant's personal information may have been accessed by authorities in the country in which the applicant feared persecution or other relevant harm (the “Assumption”).

Ground 2

The Federal Circuit Court failed to find that the Tribunal failed to give proper, genuine and realistic consideration to the Appellant’s claim that her agent had fabricated her claims and she was a victim of a rogue Migration Agent. The Tribunal made adverse credibility findings because of the inconsistencies between the Appellant’s representations and the fabricated claims leading to a proposition that adverse finding as to credit expose jurisdictional error.

Particulars

a)    With respect to inconsistencies in her statements, the Appellant repeatedly stated that her agent misstated her claims, she had followed the instructions of her former migration agent and she had been manipulated by her agent [Paragraphs, 9, 11,20,31,34, 35, 36, 37 (“Migration Agent Claims”)

b)    The Tribunal found that the Appellant was not a witness of truth because of the numerous inconsistencies in her evidence - [Paragraph 48, AB24]

Ground Three

The Federal Circuit Court of Australia failed to grant the Appellant’s plea to corroborate the Appellant’s claim in refusing to contact the Migration Agent resulting in a failure to exercise the discretion in section 424 of the Migration Ac reasonably, leading to a proposition that adverse findings as to credit expose jurisdictional error. In the alternative, the Tribunal failed to inquire about the Migration Agent Claims leading to jurisdictional error.

Particulars

a)    Following repeated answers to the effect that her migration agent fabricated aspects of her claims, the Appellant invited the Tribunal to call her former migration agent to clarify her representations [Paragraph 28, AB20]

b)    Again, the Appellant stated that the former migration agent was in Australia and could b contacted by telephone. In response the Tribunal stated that it could not assign any weight to evidence from the migration agent given the Appellant’s allegation that the agent was responsible for the lies in the Appellant’s claims. [Paragraph 37, AB22]

[sic; emphasis in original]

24    As distilled by Ms Okereke-Fisher in her submissions, the three proposed amended grounds of appeal raised these issues:

(i)    Ground 1 - whether the Lower Court failed to find that Tribunal (a) failed to consider the Appellants’ Data Breach claim leading to a failure to exercise jurisdiction; and (ii) failed to consider the Appellants’ Data Breach Claim in accordance with the law, pursuant to the High Court’s decision in SZSSJ at [90];

(ii)    Ground 2 - whether the Lower Court failed to find that the Tribunal failed to engage in an active intellectual process with respect to the Migration Agent Claims leading to the formulation of adverse credibility findings that expose jurisdictional error; and

(ii)    Ground 3 - whether the lower court failed to find that the Tribunal (a) failed to exercise its discretion under s 424(2) of the Act, reasonably; (b) failed to make relevant inquiries leading to a failure to exercise jurisdiction.

[sic]

25    Ms Okereke-Fisher recognised, with respect correctly, that grounds 2 and 3 raised issues which had not been raised in the Federal Circuit Court and thus required a grant of leave in order to raise them on the appeal. Ground 1, she submitted, was but a recasting of, but not a substantive departure from, an issue which had been raised in that court. The Minister submitted that each proposed ground raised new issues and opposed the granting of leave. It was convenient to the parties and certainly in the interests of justice to hear submissions in respect of the merits of each of the proposed amended grounds and treat that as argument on the appeal for all purposes, rather than separately to determine in advance whether or not to grant leave to raise proposed amended grounds 2 and 3. I have approached the determination of the appeal, including whether to grant leave, accordingly.

Proposed amended ground 1

26    Proposed amended ground 1 does not, in my view, require any grant of leave other than a formal grant of leave to amend. By that I mean that, having regard to the grounds of appeal as originally pleaded, the way in which those grounds had evolved by the time of the hearing of the judicial review application in the Federal Circuit Court and to the way in which those grounds were understood and dealt with by the learned primary judge, I do not consider that this proposed ground raises any new issue. Adverse consequences in the event of a return to China, arising from the Data Breach, not just for the second appellant but also for the first appellant have always been at issue in this case from the moment the second appellant produced to the Tribunal at the hearing the Minister’s department’s letter. In the RRT, the issue was one for resolution on its factual merits. The way in which the RRT dealt with that issue on that basis was made controversial as an alleged jurisdictional error as the grounds of review were originally pleaded. I regard proposed ground 1 as nothing more than a more succinct way of raising the same jurisdictional error or, more accurately now, of alleging that the court below erred in failing to find such an error.

27    I would therefore grant the appellants leave to amend the notice of appeal so as to raise proposed ground 1.

28    Insofar as the proposed ground alleges that the RRT failed to consider the appellants’ data breach claim and that the Federal Circuit Court should have so concluded, it must fail. The excerpt from the RRT’s reasons evidences that the RRT did consider that claim.

29    Beyond this, the difficulty for the appellants is the dearth of evidence before the RRT about the Data Breach and its sequel. All that the RRT had was what was contained in the department’s letter of 12 March 2014 and two media reports about the department’s freedom of information practices. Nothing has ever been made of the media reports in relation to any alleged jurisdictional error by the RRT.

30    The contents of the letter were expressly addressed and accurately summarised by the RRT in its reasons. The letter promised the second appellant that the department would “assess any implications [of the Data Breach] for you personally as part of its normal processes”. The letter also invited the second appellant to speak with his case manager if he would like more information about the incident. The RRT had no evidence before it that the second appellant had taken up this invitation either in relation to his own position or that of the first appellant.

31    In its reference to “other family members in detention” the letter did provide a basis for the RRT to infer that the first appellant’s details had been disclosed as a result of the Data Breach, if she was in fact then in detention. The RRT’s reference in its reasons, at [41], to “partner” in what it put to the second appellant indicates that it assumed that there had been such a disclosure. As it happens and as the Minister’s submissions correctly highlight, had the RRT looked to address information contained in application forms before it, this would have disclosed that, as at the Data Breach disclosure date, 31 January 2014, only the second appellant was in immigration detention.

32    There was no evidence in the present case as to what the assessment in accordance with the department’s “normal processes” came to entail. There was such evidence in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ). As described in the judgement, at [9], it came to entail what were termed “International Treaties Obligations Assessments” (IOTA). But the description in that case could not constitute evidence in the present case in the court below, in the absence of consent or admission by the Minister. The IOTA entailed by Ministerial direction an assumption that the information disclosed as a result of the Data Breach would be known to a foreign government. Neither was there evidence before the RRT prior to the making of its decision in August 2014 that such an assumption was to be made departmentally. Were there such a direction, one might expect that the RRT, as part of an administrative decision-making continuum (Jebb v Repatriation Commission (1988) 80 ALR 329), would have to make a like assumption.

33    The appellants particularly relied on the following statement in SZSSJ, at [90]:

The assumption made in the ITOA process that their personal information may have been accessed by authorities in Bangladesh and China removed from the scope of factual inquiry any question of precisely who accessed their personal information as a result of the Data Breach. The assumption was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department’s website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them, and when, might be expected to have been a hopeless endeavour.

34    This statement is descriptive of the IOTA process, based on the evidence in that case, but that statement is not evidence in the present case. Beyond this, SZSSJ stands only for the proposition of law, not relevant in the present case, that a failure to disclose in full to an affected person the contents of a report commissioned by the Minister’s department into the Data Breach did not entail a denial of procedural fairness. That is not a proposed amended ground of appeal and never has been a ground of appeal.

35    What the RRT made of the letter is apparent from [50] of its reasons, quoted above. The RRT did address the ramifications of the Data Breach for the first appellant but concluded (necessarily erroneously on the facts, given that she was not in immigration detention at the time of the Data Breach) that the information about her which had been disclosed did not reveal anything of her having applied for a Protection visa, the basis of that claim, or that this claim had failed. The RRT’s consequential conclusion that it did not accept that there was, as a necessary and foreseeable consequence of the Data Breach, a real risk of significant harm because she would be able to be identified as a failed asylum seeker was, on the factual basis assumed by the RRT, one reasonably open to it.

36    The appellants were represented at the Tribunal hearing by a migration agent. Neither he nor they put to the RRT that a further dimension of the tender of the letter was that the first appellant’s claim for complementary protection, upon the acceptance of which the second respondent’s visa fate depended as a member of her family unit, ought to be assessed on the basis that she was at risk because she had been identified as the first appellant’s spouse. But, even if it had been so put, or even if the RRT were otherwise additionally so to assess the ramifications of the Data Breach as revealed in the letter of 12 March 2014, it could only have found on the evidence then before it, and did find, that nothing of his having made a Protection visa claim or its basis or fate had been revealed. Further and in any event, there was no factual foundation for any such claim on the evidence before the RRT because, for the reasons already given, the first appellant was not, on that evidence, in immigration detention at the time of the Data Breach. There was nothing on the evidence before the Tribunal which, in light of the statement in the letter of 12 March 2014, could reasonably have admitted of any basis for contending, much less administratively concluding, that her personal information had been disclosed as a result of the Data Breach.

37    Strictly therefore, the learned primary judge approached his consideration of the alleged jurisdictional error consequences of the way in which the RRT dealt with the Data Breach on the basis of a false premise. Assuming though that the premise was correct, his Honour’s conclusions were, in my view, correct, for the reasons which he gave.

38    However approached, ground 1 has no merit.

Proposed amended grounds 2 and 3

39    Because it was conceded that neither of these grounds concerned an issue raised below, it is convenient to consider them first together in relation to the principles relevant to the grant of leave to raise them on appeal. I considered those principles in SZSFS v Minster for Immigration and Border Protection (2015) 232 FCR 262 (SZSFS). In SZSFS at [7] - [9], I stated:

7.    The issues sought to be raised by these proposed, amended grounds of review did not feature in the grounds of review in the judicial review application made to the Federal Circuit Court. This Court does not exercise an original jurisdiction in migration matters of the present kind and litigants ought not to be encouraged to think otherwise: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Coulton v Holcombe). Over a decade ago, in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] (VUAX), the Full Court, having adverted to Coulton v Holcombe, remarked upon the prevalence in migration matters of endeavours to raise on appeal points not taken in the original jurisdiction. The Full Court held that leave to raise such a point may be granted only if it clearly has merit and permitting it to be raised entails no real prejudice to a respondent. More recently, in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], Jessup J opined that, in addition to whether a fresh point had merit, an adequate explanation for the failure was necessary.

8.    More than a decade after VUAX was decided, it is still not uncommon for Appellants to seek to raise a fresh issue on appeal in a migration matter. That is not always because of inattention to what was said in Coulton v Holcombe. Sometimes it is because a visa applicant not legally represented in the original jurisdiction manages, via a pro bono scheme, to secure such representation after the appeal notice has been filed and, for the first time, a person with legal training comes to consider what is, truly, an arguable jurisdictional error in the Tribunal’s decision. On other occasions, and the present on the evidence is one, there was legal representation in the original jurisdiction but the resources of an appellant are such that it is not possible for the services of counsel to settle a notice of appeal to be secured within the applicable appeal period but only afterwards.

9.    In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

40    Relying upon Han v Minister for Home Affairs [2019] FCA 331 (Han), at [8], per Bromwich J and AWV18 v Minister for Home Affairs [2019] FCA 1315 (AWV18), at [5], per Derrington J, the Minister submitted that merit alone was an insufficient basis upon which to grant leave to raise an issue for the first time on appeal. I am not at all sure, reading their Honours reasons as a whole, that either Bromwich J in Han or Derrington J in AWV18 said as much. Had they, it would, with respect, have been inconsistent with Coulton v Holcombe (1986) 162 CLR 1 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588. It is trite that this Court exercises appellate, not original, jurisdiction in matters of the present kind. But the ultimate touchstone in relation to the granting of leave to raise an issue for the first time on appeal is whether that is in the interests of justice. Given the possibility for an appellant on return on the basis of a jurisdictionally erroneous decision, to which I referred in SZSFS, I find it impossible to conceive of a circumstance, in the exercise of the judicial power of the Commonwealth in this type of case, where it would ever be in the interests of justice to refuse leave to amend to an appellant to raise a meritorious issue, providing that entailed no prejudice to the Minister. Such prejudice could but rarely if ever lie in the lateness with which a pure point of law was sought to be raised but it most certainly would usually exist if the point sought to be raised required an evidentiary foundation which was not led in the original juridical review proceeding and could have been challenged on the evidence in that proceeding by the Minister.

41    As it happens, there is an explanation given by affidavit and another apparent on the Court’s records. The appellants secured pro bono representation in 2018 but that counsel was granted leave to withdraw. The appellants moved with reasonable dispatch thereafter to seek alternative representation and were able to secure the services of Ms Okereke-Fisher.

42    On one view, proposed ground 2 takes as its premise that a former migration agent counselled the first appellant to falsify the basis of her earlier protection visa claim. Ground 3 is premised on an asserted failure by the Tribunal to investigate the alleged fraudulent actions of the former migration agent and thus to make inquiries, to “get” information pursuant to s 424 of the Act.

43    If read as an allegation of fraudulent conduct by the former migration agent, proposed ground 2 suffers from the insuperable difficulty that no evidence on this subject was led before the Federal Circuit Court. That truly would be prejudicial to the Minister.

44    I do not though consider that this is how Ms Okereke-Fisher sought to develop proposed ground 2 in submissions. As so developed, her submission required no greater evidentiary foundation than the recitation in the RRT’s reasons of the appellants having made such allegations before the RRT. It may readily be accepted that the RRT would have fallen into jurisdictional error by failing to discharge its core function of independent merits review if it had not engaged with an issue seriously raised in that review. But the reasons of the RRT are replete both with the noting of the allegation and the weighing up of that allegation in the context of an overall assessment of what to make of inconsistencies in the evidence of the appellants, particularly that of the first appellant. There was an active intellectual engagement with the allegation.

45    Proposed ground 3 is also related to the allegation made in evidence concerning the former migration agent. That allegation having been so made, the appellants contend that the RRT made a jurisdictional error by not investigating the agent’s conduct. Having regard to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, it must be accepted that there can be singular circumstances where a failure on the part of the RRT to have made an obvious inquiry, readily answered, in relation to an issue of central importance could amount to a failure to discharge its statutory review function. But there was hardly any readily answered inquiry in the circumstances prevailing here. Was the RRT to summons the former agent and ask the agent whether advice to falsify a basis of claim had been given? The appellants themselves might, via their new agent, have sought such a summons but did not. Whether issued by the RRT of its own motion or at the behest of the appellants, the result of any such summons would have been entirely speculative. The appellants had no written confession from the former agent; otherwise one might have expected that it would have been tendered at the hearing at the latest. It was hardly likely that the former agent would, if summonsed, have confessed to counselling or procuring a falsity. There was nothing in the circumstances which obliged the RRT to do anything of its own motion to investigate the alleged conduct of the former agent.

46    The reason why leave to raise proposed grounds 2 and 3 should be refused lies not in the want of an explanation as to why they were raised so late but rather in the absence of either proposed ground having any prospect of success sufficient to warrant a grant of leave.

47    As is obvious from the proposed amended grounds, none seek to raise any issue based on SZMTA.

48    It necessarily follows that the appeal must be dismissed, with costs.

Associate:    

Dated:    5 December 2019