Federal Court of Australia

DTM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1011

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the amount of $7,000.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    Before the court is a notice of appeal filed on 4 November 2021 and amended on 18 July 2023 by which the appellant appeals from a decision of the Federal Circuit and Family Court of Australia (Division 2) dated 19 October 2021 which dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, dated 17 July 2020. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent to cancel the appellant’s Bridging Visa E (Subclass 050) visa pursuant to s 116(1)(aa) of the Migration Act 1958 (Cth).

2    As will become clear, no actual error on the part of the primary judge is now alleged and the appellant does not seek to challenge his Honour’s decision in any way. In this regard the appellant accepts that the material parts of his amended notice of appeal allege that the primary judge committed jurisdictional error by failing to address certain matters which were not, in fact, the subject of the grounds of appeal before him.

3    The appellant’s case in this court is that he should have leave to raise what are in effect entirely new grounds by way of judicial review of the decision of the Tribunal. In substance the appellant seeks a fresh trial, using this court’s appellate jurisdiction to overcome the court’s lack of original jurisdiction, on grounds of judicial review that could have been taken below before the primary judge: see Han v Minister for Home Affairs [2019] FCA 331 at [3] (Bromwich J).

4    For the reasons that follow the appellant will be denied leave to raise his new grounds of judicial review arising from the Tribunal’s decision. There is no satisfactory evidence explaining why these new grounds were not raised below and, in any event, the grounds which are now advanced lack merit. The appeal will therefore be dismissed.

background

5    The appellant, who is a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 10 October 2012.

6    On 3 March 2016, the appellant applied for a Safe Haven Enterprise (Subclass 790) visa (SHEV). That application was refused by a delegate of the Minister on 23 September 2016 on the basis that the appellant was not a person in respect of whom Australia had protection obligations. The matter was subsequently referred to the Immigration Assessment Authority (IAA), which on 9 November 2016 affirmed the decision to refuse the SHEV.

7    On 1 May 2019, the appellant applied for the visa the subject of these proceedings on the basis that he claimed he had lodged an application for constitutional writs in the High Court of Australia on 5 March 2019. The visa was granted on 13 May 2019.

8    On 21 November 2019, the appellant was sent a notice of intention to consider cancellation of the visa on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstances that did not exist. The notice advised that the appellant’s application for judicial review was not in respect of a decision to refuse to grant a substantive visa, as was required by cl 050.212(3A) of the Migration Regulations 1994 (Cth).

9    On 26 November 2019, the appellant’s representative provided a response to the notice in which it was claimed that the appellant did in fact have an application for judicial review in the High Court (Plaintiff S56/2019) on the date of the grant of the visa; however, that application had been dismissed on 22 May 2019 and the appellant had filed an application for leave to appeal from that decision on 19 June 2019.

10    On 6 December 2019, the delegate cancelled the visa under s 116(1)(aa) of the Act. The delegate found that in circumstances where the application to the High Court was in respect of a decision not to refer a request to the Minister for favourable consideration under s 48B of the Act, the appellant did not satisfy cl 050.212(3A)(b)(i) of the Regulations and, therefore, a ground for cancellation existed. The delegate was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

11    On 16 December 2019, the appellant applied to the Tribunal for review of the delegate’s decision.

12    On 15 June 2020, the appellant was invited to attend a hearing scheduled for 16 July 2020, and on 16 July 2020 the appellant appeared before the Tribunal (by telephone) to give evidence and present arguments. He was assisted by an interpreter in the Tamil and English languages.

13    As has been mentioned, on 17 July 2020, the Tribunal affirmed the delegate’s decision to cancel the appellant’s visa.

the decision of the tribunal

14    It may be observed at the outset, and as much is conceded by the Minister, that the Tribunal’s reasons for affirming the delegate’s decision to cancel the appellant’s visa are short and to the point. After dealing briefly with the nature of the application and the statutory regime, the Tribunal recorded that the appellant had been granted a Bridging Visa E on 13 May 2019 on the understanding that he had applied for judicial review of the IAA’s decision to refuse the grant of the SHEV. The Tribunal noted that what the appellant had in fact appealed against was the department’s decision not to refer a request under s 48B of the Act to the Minister. The Tribunal found that there was therefore no application for judicial review as required by cl 050.212(3A)(b)(i), and that the visa had been granted incorrectly, given the particular fact or circumstances for the grant of the visa did not exist. On this basis the Tribunal was satisfied that the ground for cancellation in s 116(1)(aa) of the Act existed, and it proceeded to consider whether the visa should be cancelled nonetheless.

15    The Tribunal noted that while there were no matters specified in the Act or Regulations which were required to be considered in the exercise of its discretion, it was appropriate to have regard to the circumstances of the case, including matters raised by the appellant, and those in the department’s Procedures Advice Manual (PAM3) “General visa cancellation powers”. By reference to the PAM3, the Tribunal made findings which are accurately summarised largely as follows in the Minister’s written submissions:

(a)    The purpose of the appellant's travel to and stay in Australia: The Tribunal recorded that the appellant had travelled to Australia as an irregular maritime arrival and applied for a SHEV, which had been finally determined. In those circumstances, the Tribunal found that the appellant had no further reason or need, compelling or otherwise, to travel to or remain in Australia. To this summary may be added that in forming this conclusion the Tribunal considered submissions made by the appellant, including on the subject of his mental health, as to why he should be permitted to stay in Australia.

(b)    The extent of the appellant's compliance with visa conditions: The Tribunal recorded that there was no information before it to suggest that the appellant had not complied with his visa conditions.

(c)    The degree of hardship that may be caused to the appellant (financial, psychological, emotional or other hardship): While the Tribunal accepted that the appellant would be disappointed at the prospect of no longer living in Australia where the standard of living is higher and the provision of health care is of a superior kind, it did not consider this to be a sufficiently compelling reason to not cancel his visa. To this summary may be added that the Tribunal noted the appellant’s submission that he suffered from significant mental health issues that would go untreated if he returned to Sri Lanka, and that his mental health diagnosis was supposed by a mental health social worker, Mr Muniswummy. The Tribunal noted also that a Dr Bryce had reported that the appellant was being treated for a recent head injury and that his care would be impacted by the loss of his access to Medicare.

(d)    The circumstances in which the ground for cancellation arose: The Tribunal recorded that the appellant had been granted the visa on the basis of his claim to have lodged an application in the High Court, however, such application was in respect of a decision not to refer a request under s 48B of the Act to the Minister, rather than the refusal of a substantive visa as required by cl 050.212(3A)(b)(i) of the Regulations. The Tribunal accepted that this was the result of a mistake by the department, and not of any deceit by the appellant.

(e)    The appellant's past and present behaviour towards the department: The Tribunal recorded that there was no evidence to suggest that the appellant had not been cooperative with the department.

(f)    Whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act: The Tribunal found that the cancellation of the appellant's bridging visa would not result in any other cancellations.

(g)    Whether there are mandatory legal consequences arising from a decision to cancel the visa: The Tribunal was mindful that the cancellation of the appellant’s visa may result in his detention and removal from Australia, and that it would prevent him from returning for a prescribed period. The Tribunal noted, however, that this was the intention of the Act and that if the appellant decided to depart voluntarily, he would not be detained for an extensive period.

(h)    Whether Australia has obligations under any relevant international agreements that would be breached as a result: As the appellant had been found not to engage Australia's protection obligations, the Tribunal was not satisfied that the cancellation of his visa would breach Australia's international obligations, particularly its non-refoulement obligations. To this summary may be added that the Tribunal noted that the appellant said he might commit suicide if he was sent back to Sri Lanka.

(i)    Whether the appellant has strong family, business or other ties in Australia: The Tribunal recorded that the appellant had no family members in Australia and did not have any strong business ties.

16    The Tribunal did not find that there were any other relevant matters for consideration.

17    After considering the circumstances as a whole and having weighed all the aspects of the appellant’s evidence, the Tribunal concluded that the visa should be cancelled.

proceedings in the federal circuit AND FAMILY court (dIVISION 2)

18    On 13 August 2020, the appellant applied to the then Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The application raised three grounds, as follows:

Grounds of application

1.    The Administrative Appeals Tribunal (hereinafter referred as ‘the Tribunal’) made a jurisdictional error by affirming the decision made on 6 December 2019 by the delegate of the Minister (First Respondent) under s 116 of the Migration Act 1958 (the Act).

Particulars

a.    The cancellation of the Bridging visa E was made under section 116 of the Act on 6 December 2019.

b.    The Minister (First Respondent) may cancel a visa under section 116 of the Act if the Minister is satisfied that certain grounds specified in that provision are made out;

c.    The Tribunal failed to decide whether grounds for cancelling the Bridging visa E was made out, if so, whether the Bridging visa E should be cancelled under section 116 of the Act; and

d.    In the applicant’s case the Bridging visa E was granted because of a particular fact or circumstances that did exist and continued to exist at the time of granting the said Bridging visa E.

2.    The Tribunal failed to consider the vital facts and the integer of the applicant’s claims in seeking protection in Australia.

Particulars

a.    The applicant’s arrival to Australia and the past behaviour are relevant;

b.    The applicant came to Australia due to the persecution including arrest, torture in detention he faced in Sri Lanka;

c.    The applicant always complied with the conditions of his bridging visa E and been truthful to the Department of Home Affairs (formerly Department of Immigration and Border Protection);

d.    The Tribunal failed to consider that the applicant’s presence in Australia is not a risk or may be, or would be a risk in the health, safety or good order of the Australian community or a segment of the Australian community under (section 116(1 )(e)(i) or the health or safety of an individual or individuals under (section 116(l)(e)(ii); and

e.    The Tribunal failed to look into whether any international obligations such as the UN Convention Against Torture (CAT) would be breached as a result of the cancellation of the Bridging visa E.

3.    The Tribunal failed to afford an adequate hearing in violation of the Procedural Fairness Rule.

Particulars

a.    The Tribunal hearing was conducted on 16 July 2020 over the telephone for a short time;

b.    During the time of the hearing there was COVID-19 pandemic in Queensland and the applicant was in stress;

c.    The Tribunal instead of proceeding during the pandemic due to COVID-19 postponed the hearing until such time the COVID-19 pandemic settled down for the applicant to be able to participate in the hearing fully devoid of stress; and

d.    The Tribunal thereby failed to grant an adequate opportunity and proceed with the hearing on 16 July 2020 and made a decision on 17 July 2020 the next day affirming the decision of the delegate of the Minister (First Respondent) cancelling the applicant's Bridging visa E. at {[paragraph 36] by the Tribunal Member Ann Duffield.

19    As will be apparent, the particulars to ground one asserted that the basis upon which the visa was granted did exist, and continued to exist, at the time the visa was granted. The particulars to ground two alleged that the Tribunal failed to consider the fact that the appellant had always complied with the conditions of the visa and had been truthful with the department, the fact that the appellant’s presence in Australia was not a risk to the Australian community, and the question of whether any international obligations were owed to the appellant. The particulars to ground three complained about the duration of the Tribunal’s hearing and the method and circumstances in which it was conducted.

20    The matter proceeded to hearing on 13 October 2021 in what was by then the Federal Circuit and Family Court of Australia (Division 2), and on 19 October 2021 the primary judge dismissed the application. His Honour found that each of the grounds of review failed to meaningfully articulate a claim able to be responsive to the Tribunal’s decision and were so vague and without particularity as to warrant their respective dismissal. More fundamentally, his Honour found that each of the grounds of review, in as much as they could be understood, were without merit.

amended notice of appeal

21    Although the appellant required leave to rely on his amended notice of appeal because it was filed out of time, the Minister did not oppose the grant of leave to rely on the document on this basis and so the appeal proceeded by reference to the amended notice of appeal filed on 18 July 2023.

22    The amended notice of appeal abandoned the grounds which had originally been advanced by the appellant in this court and set out new grounds. Paragraphs 1-4 recite aspects of the Tribunal’s reasons for decision and its conclusion and need not be considered. Paragraphs 5 and 6, however, are as follows:

5.    In [affirming the decision under review], the AAT failed to properly consider the degree of hardship that may be caused to the applicant (financial, psychological, emotional or other hardship) should he return to Sri Lanka resulting from the Appellants’ medical conditions, the poor standard of treatment available there, and his inability to support members of his family [AB105];

6.    In [affirming the decision under review], the AAT further failed to properly consider whether the visa holder has a compelling need to remain in Australia, including for treatment of the Appellants’ medical conditions, the poor standard of treatment available in Sri Lanka, and his inability to support members of his family [AB105];

23    Paragraphs 7 and 8 of the amended notice of appeal were abandoned at the hearing of the appeal.

24    The final paragraph of the amended notice of appeal, paragraph 9, is in the following terms:

9.    The Lower Court failed to address the matters raised at 5 and 6 above and thereby committed jurisdictional error.

25    It may thus be seen that the only two extant grounds of appeal involve allegations that the Tribunal failed properly to consider the degree of hardship that may be caused to the appellant should he be required to return to Sri Lanka and whether he had a compelling need to remain in Australia, including for medical reasons. The jurisdictional error on the part of the primary judge is said to be that his Honour did not address these matters, although of course these matters were not raised before him. The appellant accepts that none of the grounds of appeal agitated below intersect with the claims which he seeks to prosecute in the amended notice of appeal. The Minister opposed the appellant having leave to raise these new grounds on appeal.

disposition

26    The appellant contends that it is open to him to pursue complaints about the Tribunal’s decision in this court, relying on the statements of principle to be found in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at 598-599 [46]-[48] (Kiefel, Weinberg and Stone JJ) and Han at [6] and [8]-[17]. The proposition the appellant extracts from these cases is that although in all but the most exceptional circumstances a party will be bound by the conduct of its case in the court below, leave to argue a ground of appeal not raised before the primary judge may be granted if it is expedient in the interests of justice to do so: see also University of Wollongong v Metwally (1985) 60 ALR 68 at 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483); Coulton v Holcombe (1986) 162 CLR 1 at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); and O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J). The appellant contends that in this case he should have leave to raise grounds of appeal not raised below because it is expedient in the interests of justice on the basis that the Tribunal did not properly consider various matters which it ought to have considered.

27    The substance of the appellant’s complaint is that the Tribunal did not properly consider whether he had a compelling need to remain in Australia. The appellant contends that in its consideration of this question the Tribunal failed to have sufficient regard to his mental health and other treatment issues, including his suicidal ideation and a head injury which he had sustained. The appellant refers, in relation to these matters, to the reports of Dr Bryce and Mr Muniswummy which were before the Tribunal and submits, in effect, that these reports were not the subject of sufficient comment or analysis by the Tribunal. This is said to reflect a failure by the Tribunal to engage properly with the contents of these reports.

28    In Han, at [8]-[10], Bromwich J made the following observations concerning the circumstances in which it may be appropriate to decide the question of whether to grant leave to advance a new ground of review:

[8] 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.

[9] 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.

[10] Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court…

29    The Minister’s submissions in opposition to the appellant having leave to raise the new grounds are consonant with these principles. The Minister relies also on Hossam v Minister for Immigration and Multicultural and Indigenous Affairs [2016] FCA 1161 at [39]-[44] (Perry J) and VUAX at [48] where the Full Court observed:

[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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

30    Bearing these statements of principle in mind, it should first be observed that I do not accept in all the circumstances that the new grounds of appeal advanced by the appellant have sufficient merit to justify granting leave to raise them on this appeal. As the Minister submits, it is well established that the Tribunal is required to consider all claims made by an appellant or those which are otherwise apparent on the face of the material before it: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at 18-19 [58] (Black CJ, French and Selway JJ); Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 248 [13] (Allsop J, with Spender and Merkel JJ agreeing). However, it is for the appellant to demonstrate, on the balance of probabilities, that the Tribunal did not consider a relevant claim: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [52]-[53] (Tracey J), quoting SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] (Heerey, Branson and Emmett JJ).

31    In my assessment, and contrary to the appellant’s contentions in paragraphs 5 and 6 of the amended notice of appeal, the Tribunal explicitly considered the hardship that he would face if he was returned to Sri Lanka in circumstances where he suffered from various medical conditions. In doing so the Tribunal properly considered whether the treatment of these conditions constituted a compelling need for him to remain in Australia, and the Tribunal also considered the matters in PAM3.

32    The Tribunal considered the degree of hardship that may be caused to the appellant (financial, psychological, emotional or other hardship): paragraphs [18] to [20] of its reasons. It had regard to the appellant’s evidence that he suffers from significant mental health issues that would not be treated in Sri Lanka, and to the evidence of Mr Muniswummy to the effect that he suffers from depression, anxiety and post-traumatic stress: paragraph [18]. The Tribunal accepted that the public health system in Australia was superior to that which exists in Sri Lanka, however it did not consider that this was a sufficiently compelling reason not to cancel the appellant’s visa: paragraph [20].

33    The Tribunal also considered whether the appellant had a compelling need to remain in Australia: paragraphs [13] to [16]. It had regard to his claim that the medical, including mental health, services in Australia were “very good”, and that he would not be able to access in Sri Lanka the care that he has been able to access in Australia: paragraph [15]. Ultimately, the Tribunal was not satisfied that this constituted a compelling reason or need to travel to or remain in Australia: paragraph [16].

34    Insofar as the appellant maintains that the Tribunal failed properly to consider the PAM3, it is clear that the Tribunal had regard to this manual (at paragraph [12]) and worked its way through the matters which decision makers are guided to consider in determining whether to cancel a visa under s 116 of the Act.

35    I accept that, as the Minister submits, the complaints made by the appellant do no more than invite the court to undertake a review of the merits of the Tribunal’s decision and rise no higher than an expression of disagreement with its adverse findings: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

36    Further, and as the Minister also submits, insofar as the Tribunal’s reasons may be seen to be lacking in detail, brevity of reasons, in itself, does not amount to a jurisdictional error: Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108; (2010) 117 ALD 259 at 283-284 [91] (Rares J); NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15] (Jacobson J). While in some circumstances brevity may indicate that the Tribunal has not performed its function of review according to law, no such inference can be drawn from the Tribunal’s reasons in the present case because it cannot be said that the appellant’s claims and the relevant evidence were not assessed: SZLSP at 283-284 [91].

37    In addition to the fact that the appellant’s proposed grounds of review lack merit, it should also be observed that there is an absence of evidence explaining why the grounds of appeal now advanced were not raised below. Although it was submitted for the appellant that it may be inferred that the new grounds were not raised because he was self-represented and was unable by reason of inexperience and unfamiliarity with the legal system to articulate grounds of review, there is in fact no evidence that the appellant did not take legal advice in advance of the hearing below. The absence of a proper explanation for the failure to raise the new grounds of appeal before the primary judge is a further reason for refusing leave to raise them on appeal.

38    Also significant, as the Minister submits, is the prejudice that he would suffer were the appellant to be permitted to raise the new grounds in circumstances where the Minister’s own rights of appeal from any decision upholding the appellant’s case would be very limited: see Han at [17] and [20(4)].

39    Finally, a further reason to deny the appellant leave to raise the new grounds is that even if the court were to have been satisfied that the Tribunal’s decision was vitiated by jurisdictional error, which it is not, the relief which the appellant seeks would be futile in circumstances where he has no other judicial review proceedings on foot which would satisfy the criteria for the grant or holding of the visa.

40    For these reasons the appellant’s application for leave to raise new grounds will be dismissed and his appeal will be dismissed. The appellant should pay the Minister’s costs. I am satisfied, as the Minister submits, that it would be appropriate to fix the costs in the amount of $7,000, that sum being somewhat less than the amount that can be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing, namely, $7,965 (Federal Court Rules 2011 (Cth) item 15 of Schedule 3). I also consider it to be reasonable and proportionate to the nature, including the complexity, of the case: Bitek Pty Ltd v IConnect Pty Ltd (2012) 290 ALR 288 at 293 [18]; [2012] FCA 506 (Kenny J).

Associate:

Dated:    25 August 2023