Federal Court of Australia

EAN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1231

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely upon the grounds in the notice of appeal, being grounds that were not raised before the primary judge, be refused.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing with costs an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a Protection (subclass 866) visa.

2    The appellant is a citizen of India. He arrived in Australia in February 2008 on a Student (class TU) (subclass 572) visa. He was granted a further student visa in August 2008. In November 2013, he applied for a combined Partner (Temporary) (class UK) (subclass 820) visa and Partner (Residence) (class BS) (subclass 801) visa. Those partner visa applications were refused, but not until April 2018. He was taken into immigration detention on 19 December 2018.

3    The appellant applied for merits review by the Tribunal on 5 February 2019, the day after the delegate’s decision. On 16 September 2019, the Tribunal affirmed the delegate’s decision.

4    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia. He was represented by solicitor and counsel experienced in migration law by the time of the final hearing. By an 18 March 2020 amended application, he advanced a single ground of review, alleging that the Tribunal contravened s 5J(3) of the Migration Act 1958 (Cth) by implicitly requiring him to modify his religious practices, being an aspect of his asserted fear of persecution. The primary judge rejected that ground for cogent reasons to the effect that the application of s 5J(3) had not arisen, nor been assumed to apply, and on 23 April 2021 dismissed the application with costs. No error on the part of his Honour is alleged.

5    The aspects of the delegate’s reasons and the Tribunal’s reasons that are relevant to this appeal proceeding reflect the ultimate ground sought to be advanced. That is, asserted legal unreasonableness in the Tribunal making an adverse credibility finding on the basis of claims made by the applicant that he had experienced language difficulties an hour into the first Tribunal hearing day.

The notice of appeal and legal representation

6    The 20 May 2021 notice of appeal, filed by different solicitors to those representing the appellant in the Federal Circuit Court, contained two grounds, asserting:

(a)    constructive failures to exercise jurisdiction in relation to the consideration of country information and in relation to the absence of a finding concerning the applicant’s asserted subjective fear of persecution; and

(b)    legal unreasonableness (and/or, it was asserted, illogicality and/or irrationality),

neither of which were judicial review grounds that had been agitated before the primary judge.

7    Leave to raise those grounds of appeal was overtly sought in the notice of appeal. Written submissions were lodged for filing by the appellant’s then solicitors late on the night of 20 July 2021. The following morning, 21 July 2021, an email was sent to the registry by those solicitors, referring to and attaching the submissions lodged for filing the night before, advising that counsel (who is experienced in migration law) had instructed them to withdraw those submissions as a matter of urgency and seeking confirmation that had taken place. New submissions were lodged for filing early that afternoon, which abandoned ground 1, but pressed ground 2, and advanced arguments for leave to rely upon this ground being granted. About an hour and a half after the second iteration of the submissions were filed, those solicitors sent an email to my associate advising that, with regret, they could no longer act for the appellant and stating:

Given the nature of that advice and having regard to our professional and ethical duties to the Court, we have concluded that we can no longer provide legal assistance to the Appellant.  I confirm that I have had a detailed conversation with the applicant concerning my decision to withdraw from the Court. 

The email went on to advise that the decision to withdraw had been made in consultation with counsel, that notice had been served on the appellant and that a notice of ceasing to act would be filed after 7 days, which duly took place on 30 July 2021.

8    Appeal ground 2, in truth a ground of review being advanced for the first time, is pleaded as follows:

2. The Tribunal’s decision was legally unreasonable, illogical, and/or irrational.

a.    At [140], the Tribunal concluded the fact that the appellant only claimed to have language difficulties one hour into the hearing and, after giving a considerable amount of evidence, raises doubts about the claim. The Tribunal failed to rationally explain how a lack of language difficulties, in and of itself, meant that the evidence and claims advanced by the appellant were not credible. It is a plainly unjust finding that is otherwise arbitrary.

9    By a subsequent email, and then again later at the time of the appeal hearing, the appellant sought both a pro bono referral and an adjournment. Both were refused, the former upon the basis that this was not appropriate in light of the history of the matter and the appellant having been legally represented, and the latter upon the basis that there was no reason to think that anything would change at any adjourned appeal hearing date given the detailed submissions already filed and the lack of any apparent means to engage replacement legal representation. The appellant was unable to make meaningful submissions other than going to the merits of his case before the Tribunal, and accordingly relied upon the reasonably detailed written submissions filed by his lawyers before they ceased to act for him. At the hearing, the Minister did not make any oral submissions going beyond his written submissions.

Protection visa application and before the delegate

10    On 11 January 2019, the appellant lodged an application for the protection visa that is the subject of this appeal, with specialist migration solicitors acting for him. He was interviewed by the Minister’s delegate by telephone on 25 January 2019, and provided a further written statement of claims on 31 January 2019, which raised religion-related claims for the first time. There is nothing in the delegate’s reasons that indicate any language or other communication difficulties.

11    The delegate refused the application on 4 February 2019. The appellant’s claims at that stage are helpfully summarised in the Minister’s written submissions as follows (omitting subparagraph numbers and appeal book references):

His father and uncle had a land dispute in India. As a result, he was threatened and physically abused by his uncle and cousins. Despite reporting the assaults to the police, they did not assist him;

His father took his uncle to court over the land dispute and won;

During an altercation between his father and his eldest cousin, his cousin lost control of his bike and died. His uncle threatened to kill the appellant in revenge;

He feared harm on the basis … of his perceived association with the Christian faith. In particular, the appellant claimed to fear harm on the basis that his children and partner were Christians, which would cause problems with Hindus in India and lead his family to disown him as they will perceive him to have converted to Christianity.

Before the Tribunal

12    On 11 March 2019, the appellant was invited by the Tribunal, via his solicitors, to attend a hearing to be held on 28 March 2019. The “response to hearing invitation” form furnished by his migration agent by email on 17 March 2019 advised that the appellant and his solicitor would be attending and the box “No” was ticked in answer to the question “Do you or any other person attending the hearing need an interpreter?” The Tribunal reasons record the following on the topic of interpreter issues:

[26]    The applicant attended the hearing on 28 March 2019 in person. His migration agent was also present. About one hour into the hearing the applicant stated that he had experienced some language difficulties. The hearing was adjourned so that he could be provided a Hindi speaking interpreter. The applicant specifically requested a Hindi speaking interpreter of northern Indian origin.

[27]    The hearing was scheduled to resume on 18 April 2019 but had to be rescheduled because the interpreter booked by the Tribunal failed to attend.

[28]    The hearing was scheduled to resume on 23 May 2019 but had to be rescheduled again because the immigration detention centre failed to make the necessary arrangements to transport the applicant to the Tribunal and the applicant wished to attend the hearing in person rather than by video (which the Tribunal had offered).

[29]    The hearing was resumed and completed on 12 June 2016 with the assistance of a Hindi speaking interpreter of north Indian origin. On the same day, shortly before the hearing was to commence, the applicant presented further supporting documents via email.

13    The Tribunal summarised the essence of the appellant’s protection visa claims as follows, also subsequently reproducing the appellant’s protection visa application statement made in English over about two pages of the reasons:

The applicant’s claims developed over time. Ultimately he claimed he would be killed by an uncle and two cousins if he returned to India in revenge for the death of a third cousin, and that he would be harmed because his partner and children are Christians and he now follows Christianity despite being born a Hindu. He claims he was harmed and threatened by his uncle and cousins before he left India in 2008 due to a land dispute between the uncle and his father.

14    The Tribunal’s decision to affirm the delegate’s refusal of the appellant’s protection visa application largely turned on credibility. In particular, the Tribunal found that he was not a credible witness because:

(a)    he had invented a claim that he was having language difficulties an hour into the first hearing day, despite having attended school in Australia, having resided in Australia for over a decade, and presenting confidently in the absence of an interpreter, to avoid adverse inferences being drawn from his evidence;

(b)    his evidence relating to the land dispute was changing, vague, contradictory and evasive;

(c)    his evidence relating to his cousins’ names was inconsistent and changing;

(d)    his claim that he and his family were Christians was raised late without an adequate explanation as to why he did not raise it earlier, and his evidence on this claim was evolving; and

(e)    there had been significant delay in raising his protection claims after his arrival in Australia, having not mentioned previously to the Minister’s Department that he feared harm upon return to India despite having been an unlawful non-citizen in 2010 and again in 2018, and having applied for other visas.

15    The appeal ground that is sought to be relied upon, concerning an issue not advanced before the primary judge, goes to the first of the above factors. The lead up to the conclusion that the appellant had invented the claim that he was having language difficulties is of some importance in light of the assertion that this conclusion, of undoubted materiality, was infected by legal unreasonableness, or possibility irrationality or illogicality rising to the same jurisdictional error threshold.

16    The Tribunal listened to the telephone interview between the appellant and the delegate, observing that it was about an hour long and that a Hindi interpreter was provided by the Minister’s Department, but the appellant told the delegate that he could speak English very well and did not use the interpreter during the interview. The Tribunal also considered the documentary material that was provided to the delegate after that interview, noting that they were produced again to the Tribunal. The Tribunal also considered additional material, including submissions, furnished in support of the application for merits review, in some detail.

17    The Tribunal hearing was conducted over two days on 28 March 2019 and 12 June 2019. The Tribunal summarised at some length what had transpired, noting the following in particular in relation to the first hearing day:

[106]    Language difficulties It was about one hour into the hearing at that point and I briefly adjourned the hearing. On resuming the hearing the applicant informed me that he had not understood some of the words I had used including those to do with the law. He said he had not been able to understand and properly answer my questions about why he had taken an oath on the Bible, the complaints made by his father and the land dispute.

[107]    After some discussion about the matter l advised the applicant I would adjourn the hearing so that an interpreter could be arranged, and to give him the opportunity to review a recording of the hearing and identify the matters he had not understood so that they could be dealt with again with an interpreter when the hearing resumed. The applicant agreed to do so.

18    The Tribunal’s reasons summarising the second hearing day commenced as follows:

[109]    As indicated above the second day of hearing was conducted with the assistance of a Hindu speaking interpreter of northern Indian background. The applicant did not use the interpreter throughout the hearing.

[110]    Previous hearing I began by noting that the applicant had been given the opportunity to review a recording of the first day of hearing and asked what he had previously not understood and what previous evidence he wanted to correct or clarity.

[111]    The applicant replied that I had asked where his father’s statement had been given, He said he wanted to clarify that it was taken by the police at the hospital. He stated that his mother and step-mother were also at the hospital because they had all been injured and there were documents about that. The applicant stated that his (the applicant’s) name was only mentioned in one statement because his father wanted to protect the applicant as well as his siblings from the cousins. The applicant said he was not aware of a lot of things because he was young and at school or because he was not told and his parents wanted to keep him and his siblings safe.

[112]    The applicant then said he also wanted to explain that having lived in Australia for 13 years, having a partner and children, and following the Christian religion it would not be safe for him or them to go to India. There were many groups there who did not like Christians, Christians were a minority and they would be disowned.

[113]    The applicant stated that he may not have been precise about his cousins’ names on the first day of hearing because they had nicknames besides their real names. Asked what their names were, the applicant [names then supplied and commented upon].

19    The part of the Tribunal’s reasons considering the appellant’s claims and evidence reads as follows:

[137]    The primary issue in this case is the applicant’s credibility. I have concluded that the applicant is not credible and this has led me to largely reject the claims he has made.

Language difficulties

[138]    I had doubts about whether the applicant had experienced language difficulties when he made the claim on the first day of hearing. The applicant had stated in his protection visa application that he could speak English, he had studied in Australia at post-secondary school level for two years and lived here for over a decade. He had told the delegate at interview that he could speak English and the interview was conducted without the use of an interpreter even though one was made available to the applicant. Further, prior to making the claim, it did not appear that the applicant had been having language difficulties at the hearing which impaired his ability to give evidence. However, I did not form a conclusion about the matter until I resumed the hearing with a Hindi interpreter and heard what the applicant had to say about what he had not understood or been able to properly communicate. I have now concluded that the applicant did not have language difficulties on the first day of hearing as he claimed.

[139]    As already noted the applicant stated in his protection visa application that he could speak English, had studied in Australia at post-secondary school level for two years, had been living in Australia for about 10 years and was interviewed by the delegate without an interpreter .

[140]    I told the applicant in my introduction to the hearing that he should inform me if he did not understand anything I said or asked. I thus expect the applicant would have informed me upon being asked a question or when I said something he did not understand rather than wait one hour into the hearing to do so. The applicant presented confidently at the hearing. It did not appear he would have been anxious or timid about informing me that he was having language difficulties much sooner than he did if he had genuinely had such difficulties. The fact he only claimed to have language difficulties one hour into the hearing and after giving a considerable amount of evidence raises doubts about the claim.

[141]    Despite claiming on the first day of hearing that he had not understood some words to do with the law and that he had not been able to understand or properly answer questions about his reasons for taking an oath on the Bible, the complaints his father had made and the land dispute, the applicant either did not raise or did not substantially clarify those matters when the hearing was resumed with an interpreter.

[142]    The applicant did not indicate on the second day of hearing any legal words he had not understood during the first day which he wanted interpreted or explained. He did not mention let alone clarify any further why he had taken an oath on the Bible. He told me that his partner and children were Christians and that he followed Christianity but he had told me that on the first day of hearing. He said it would not be safe for him, his partner or children in India because his partner and children were Christians. However, I had not said or asked the applicant anything about the risk of future harm the applicant, his partner or children would face in India for reasons related to religion on the first day of hearing. Further given the English language abilities the applicant demonstrated on the first day of hearing I do not believe he did not have the language skills to convey that information to me on the first day had he wanted to.

[143]    The applicant said he wanted to clarify that the statement his father had made in January (2004) was taken by the police at the hospital. However he had already clarified that on the first day of hearing.

[144]    The applicant stated that his mother and stepmother were at the hospital because they too had been injured and there were documents about that. The documents presented to the Tribunal on the day of the resumed hearing did indicate that his mother and stepmother was injured but those documents were not before me on the first day of hearing. Nor had I mentioned or asked anything on the first day of hearing about the applicant’s mother or stepmother being injured during the attack on the applicant’s father in January 2004 as that had not arisen on the material before me at that time. Thus I do not consider it believable that the applicant had not understood a question or something I said about his mother and stepmother being injured. Further, given the level of English language ability the applicant demonstrated on the first day of hearing and given he was able to tell me that his father had been injured and taken to hospital, I do not consider it believable that he had been unable to tell me that his mother and stepmother were injured and taken to hospital due to language difficulties.

[145]    The applicant stated he had not been precise about his cousins’ names on the first day of hearing because they had nicknames as well as real names. However, as I will detail below, the issue with the evidence the applicant gave on the first day of hearing about his cousins’ names does not relate to a lack precision or whether he had provided nicknames rather than real names but that the names the applicant gave for two of the cousins on the first day of hearing were entirely inconsistent with the real names and aliases/nicknames in the supporting documentation. That cannot be explained by a lack of precision due to language difficulties.

[146]    The substance of the other matters the applicant mentioned – that his father did not mention his name in a statement to the police to protect the applicant, that he was not aware of a lot of things because he was young and at school, and that he was not told things by his parents to protect him – were all conveyed in the applicant’s evidence on the first day of hearing. Hence I do not accept they were matters the applicant had been unable to convey on the first day of hearing due to language difficulties.

[147]    In conclusion, I do not accept the applicant had language difficulties on the first day of hearing as he has claimed and have formed the view that he invented that claim to avoid adverse inferences being drawn about the evidence he had given on the first day of hearing. That along with other matters which I will now detail undermine his credibility.

The appellant’s argument

20    The appellant’s written submissions sought leave to rely upon a new ground of appeal upon the asserted basis that:

(a)    it was expedient in the interests of justice for the appellant’s leave application to rely upon a new ground to be granted;

(b)    the pleaded ground is arguable;

(c)    the subject matter of these proceedings involves significant human consequences, concerning, as they do, a person applying for protection under the Migration Act;

(d)    there was no apparent prejudice to the appellant running the proposed ground.

21    The Minister opposed the grant of leave:

(a)    citing Coulton v Holcombe (1986) 162 CLR 1 at 7 for the principle that it “is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”;

(b)    citing AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] to the effect that the practice of fresh grounds of attack against an administrative decision being advanced on an appeal from a trial court’s judgment is contrary to the legislative scheme under the Migration Act that explicitly limits this Court’s original jurisdiction;

(c)    citing Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91; 265 FCR 143 at [107] to the effect that permitting fresh grounds on an appeal in a matter of this kind results in this Court becoming “the initial supervisory court in relation to the Tribunal’s decision, contrary to the express intention of the Migration Act”;

(d)    noting that, while it is a matter for the Court to exercise its discretion having regard to the relevant features of the case at hand:

(i)    the appellant had failed to provide any meaningful explanation for why the ground was not raised below – at the appeal hearing, the appellant said that he had left such matters to his lawyers;

(ii)    it is significant that the appellant was represented in the Federal Circuit Court by experienced counsel;

(iii)    there is nothing in the terms of the proposed ground of appeal that attacks an aspect of the primary judge’s reasons for judgment, or which could not otherwise have been identified and advanced before the primary judge; and

(e)    submitting that in circumstances where the proposed ground could have been pursued before the primary judge but was not, this Court should not be converted into a trial court.

22    The principles concerning the grant or refusal of leave to advance a ground of appeal on a topic or issue not advance before the primary judge have been considered in three separate Full Court decisions since May 2020.

23    In Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516, O’Callaghan J (with whom Katzmann and Stewart JJ agreed) said at [41]-[44]:

[41]    No explanation was given as to why the proposed grounds of appeal were not raised before the learned primary judge. The fact that the appellant retained new counsel is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ).

[42]    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48], the Full Court said:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

See also Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19]-[20] (Griffiths and Perry JJ), and also [55]-[58] (Mortimer J).

[43]    It is clear therefore that merit alone will generally be insufficient for the grant of leave. As Bromwich J observed in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[9] (observations which were endorsed by Perry J in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 at [11]):

It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

[44]    In this case, no adequate explanation has been proffered for the failure to raise the points below and the points, for reasons which I will explain, are of doubtful merit, to say the least.

24    In MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11, O’Callaghan and Colvin JJ said at [90]:

The principles to be applied in considering whether [it is] in the interests of justice to grant leave on appeal to raise a new ground were carefully summarised by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[17]. It may also be noted 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’: Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Griffiths and Perry JJ) at [20]. In addition, 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 and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ).

Allsop CJ agreed with their Honours subject only to noting that care should always be taken not to over-conceptualise or over-categorise matters that may be seen to affect the interest of justice into categories of consideration to be applied as rules or sets of rules.

25    In Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, O’Bryan J (with whom Katzmann J agreed, Derrington J disagreeing on the exercise of the discretion) said:

[110]    It is common ground that, since this issue was not raised below, leave is required to raise it on the appeal. The grant of leave is discretionary. Considerations that are relevant to the exercise of the discretion have been stated many times. As recently observed by Allsop CJ, though, the ultimate question is the interests of justice and “care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules”: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2].

[111]    The starting point remains the importance to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. The usual approach of the Court in migration cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

[112]    As the above cases emphasise, the merit of any proposed new ground is an important consideration to the grant of leave. This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31].

26    Leave was granted in Tohi because all of the evidence necessary to advance the point had been adduced at trial so as to minimise any prejudice to the Minister; the best interests of a child were directly in issue as a mandatory consideration in relation to the revocation of the cancellation of a visa on character grounds; and the appeal ground had sufficient merit (even though it did not ultimately succeed).

27    Applying the above principles to the present case, I have concluded that leave to rely upon the sole ground of appeal ultimately advanced should be refused for the following reasons:

(a)    The appellant was represented by counsel and solicitors before the primary judge, and until relatively recently by different counsel and solicitors on appeal.

(b)    No explanation has been provided for the ground of appeal not being raised in the court below, despite solicitors and counsel representing the appellant at the time of the filing of the notice of appeal and the written submissions.

(c)    I infer that had there been any better reason than oversight for not raising the grounds below, that would have been advanced by the lawyers most recently acting for the appellant, noting that they were unconstrained by having acted at the time of the proceedings before the primary judge.

(d)    At the impressionistic level of consideration necessary for deciding leave, the ground of appeal does not have any readily apparent merit. In particular, having regard to the passages of the Tribunal’s reasons reproduced above, and contrary to the ground as pleaded, the Tribunal provided what, at first blush, seems to be a coherent account of how the appellant’s claim of language difficulties had been deployed by him, in the context of no prior problems of this kind as explored by the Tribunal. In no sense was the Tribunal’s reasoning arbitrary on its face, let alone unreasonable, illogical or irrational.

28    Leave to rely upon the ground of appeal ultimately pressed must be refused.

Merits of the appeal if leave to appeal were granted

29    For completeness, and somewhat contrary to the proper application of the principles relating to the grant of leave, I will consider briefly the merits of the ground that has been pressed, largely because of the reliance on written submissions and the fact that the appellant is no longer legally represented. It is desirable that he be given the best opportunity to understand the conclusion reached.

30    Counsel’s submissions for the appellant advanced the following arguments:

(a)    Inferentially, it may have taken the appellant a short while to reasonably conclude that he was having language difficulties in the Tribunal proceedings.

(b)    The Tribunal did not demonstrate that the impugned evidence given by the appellant in the first hour of the hearing was adverse or otherwise to be held against him, and, without such a forensic finding, it is difficult to see how the appellant advancing the “language difficulties” issue inferentially meant that he had something to hide or otherwise was not acting in good faith, such that it was not open to the Tribunal to make adverse credibility findings against the appellant because of him raising language difficulties one hour into the hearing.

(c)    There is no doubt that a material issue in these proceedings was the Tribunal’s approach to the appellant’s credibility, such that had this conclusion not been reached it would have been open for the Tribunal to have given greater weight to the appellant’s Christianity claim.

(d)    At [140], the Tribunal indicated that the appellant presented “confidently at the hearing”. While that is generally subjective, the Tribunal said nothing directly about the appellant’s demeanour and provided no other reasons justifying how the appellant appeared ‘confident’ at the hearing, making this a defective finding that also affected the Tribunal’s adverse credibility finding against the appellant.

(e)    As a matter of procedural fairness, the impugned adverse credibility finding made by the Tribunal at [140] should have been put to the appellant as there may have been various logical and rational reasons why the appellant did not raise the language difficulties issue earlier.

(f)    The conclusion at [142] that “given the English language abilities the appellant demonstrated on the first day of the hearing I do not believe he did not have the language skills to convey that information to me on the first day he had wanted to” was neither here nor there. That is said to be because basic English language abilities do not mean the appellant readily understood the English language’s complex legal phrases or advanced phraseology, and because the Tribunal did not precisely clarify the level of English language abilities that the appellant demonstrated, such that this too was held against the appellant in a way that was legally unfair.

31    The Minister counters by characterising the above submissions as failing to read the Tribunal’s reasons beneficially as required, the Tribunal having found that the appellant had:

(a)    stated in his protection visa application that he could speak English;

(b)    studied at a tertiary level for two years in Australia;

(c)    lived in Australia for over a decade;

(d)    told the delegate that he spoke English and his interview was conducted in English;

(e)    not indicated prior language difficulties;

(f)    not raised any language difficulties until an hour into the hearing.

32    I far prefer the reasoning advanced by the Minister. Apart from pointing to the undoubted materiality of an important issue going to credibility, the arguments advanced on behalf of the appellant do not grapple with the detailed approach that the Tribunal took to assessing whether the language difficulties he said he was experiencing were genuine, including in particular his history in Australia, the interview with the delegate conducted in English without apparent difficulty (which the Tribunal listened to), and the hearing response form indicating that no interpreter was required. Nor do they avoid attempting to engage this Court in merits review as to the fact-finding role of the Tribunal, including as to issues such as this. The appellant’s submissions require that the Tribunal expose its thought processes in assessing what to make of what had transpired at the hearing, including on the obvious issue of whether his claim to have had the difficulties that he asserted was genuine, which it is well established falls outside the bounds of procedural fairness.

33    Even without a beneficial reading of the Tribunal’s reasons, I see no basis for concluding that the decision-making process on the issue raised was in any way afflicted by legal unreasonableness, nor irrationality or illogicality. Had leave been granted, this ground of appeal would have failed.

Conclusion

34    Leave to rely upon the grounds in the notice of appeal must be refused. The appeal must be dismissed with costs.

Associate:

Dated:    13 October 2021