Federal Court of Australia

Pokharel v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 1253

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on ground one and the first limb of ground two is refused.

2.    The appeal is dismissed.

3.    Subject to orders 4 - 6, the Appellant is to pay the First Respondent’s costs as taxed in default of agreement.

4.    If the Appellant seeks an order that differs from that set out in order 3, then he must, within 5 days after the date of this order, file submissions of no more than 3 pages explaining the basis for his proposed costs order.

5.    If the Appellant files a submission in accordance with order 4, then the First Respondent may respond by submissions of no more than 3 pages within 5 days from the date of the filing of the Appellant’s submissions.

6.    Any issue as to costs will be determined on the papers.

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

REASONS FOR JUDGMENT

BENNETT J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) in Pokharel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 686 (PJ). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision of the Tribunal (TJ) was to affirm the decision of a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) to refuse to grant the Appellant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The Appellant advances two grounds of appeal. For the reasons that follow, leave should be refused in respect of the new grounds of appeal, the remaining ground of appeal should be dismissed, and the appeal should be dismissed with costs.

The nature of the appeal

3    The Appellant seeks to pursue grounds of appeal that were largely not run below, and requires leave to raise a new ground on appeal. The principles concerning whether leave should be granted were summarised by the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 (Katzmann, Derrington and O’Bryan JJ) at [13]–[22], including the following useful summary (at [13]):

… The overriding rubric of whether leave to do so is in the interests of justice is well established. It is also well accepted that within the deliberative process of deciding that question certain, almost ubiquitous, issues arise for consideration. They include the following:

(1)    That in the ordinary operation of the court structure, the substantial issues between parties to litigation are decided at trial. Leave is not granted merely for the asking and hearings before courts at first instance are not to be regarded as provisional: Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8.

(2)    Has the applicant for leave provided any adequate or acceptable explanation for why the ground was not raised below? This is a significant matter: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85 [166]. The fact that new counsel may have been engaged for the purposes of the appeal and has identified the new point is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 [11]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 [31] (DKT16).

(3)    The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal: DKT16 [31]; Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at 574 [61]; Ye v Crown Limited [2004] FCAFC 8 [79]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 [38]. It may follow that, where the appellant demonstrates that the point was not taken below as a result of an oversight, the negative weight accorded to the omission will not be as great.

(4)    Whether there exists any prejudice to the respondent in permitting the new ground to be agitated? Necessarily, where the new ground sought to be raised might have been met by evidence at trial, the need to accord the respondent procedural fairness will usually prevent leave being granted: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 [136]. Conversely, where the new point sought to be raised turns on a question of law or construction, or where the facts are not in controversy, leave is more likely to be given. Even then, if leave is granted, the consequence for the respondent is the removal of a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota) [44]; AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at 455 [14].

(5)    The nature and extent of the prejudice which will be suffered by the appellant if leave is not granted will also usually be relevant. In migration appeals, this consideration can extend to persons associated with the appellant who might be affected as a result of an appeal being dismissed.

(6)    The criterion of whether the proposed new ground has merit has been referred to as “an important consideration”: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 10 [33]; Leota [at [43]]. In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, the Full Court observed (at [31]) that, in common with the approach adopted in determining whether an extension of time in which to appeal should be granted, the determination of whether any proposed new ground of appeal has merit is assessed at a relatively impressionistic level, and the Court should not descend into a fuller consideration of arguments for and against each proposed new ground.

4    In the context of the migration Act, the merit of the ground in question will be of particular significance (Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91; 265 FCR 143 at [111] (Mortimer J)). Of course, this Court has power to allow a fresh ground or a new argument to be raised in the exercise of its appellate jurisdiction, where it is in the interests of justice to do so. 

5    The merits of a proposed new ground are assessed at a relatively impressionistic level. The Minister submits that the proposed grounds of appeal are weak. In addition, the Minister points out that the Appellant did not put forward any explanation as to why the proposed new grounds were not advanced below.

6    The first ground does not appear to have been run below at all. There is a part of the second ground which appears to have been part of one of the judicial review grounds below such that it may not be an entirely new ground. Allowing some latitude to a self-represented litigant, I will proceed on the basis that the part of ground two which refers to a matter raised before the primary judge does not require leave.

Procedural history

7    The procedural history was summarised by the primary judge (PJ [2]–[10]). I respectfully adopt that summary:

The applicant is a citizen of Nepal.

The applicant arrived in Australia on 8 January 2009 as a dependent on his former wife’s Student (Temporary) (Class TU) (Subclass 572) visa [Visa]. The applicant subsequently applied for and was granted further student and associated bridging visas.

On 9 December 2016 the applicant applied for the Visa.

On 18 April 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Sch 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant.

On 5 May 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as his representative.

On 30 May 2018, the Tribunal invited the applicant to provide information about his proposed course of study and his entry and stay in Australia as a student pursuant to s 359(2) of the Act (Tribunal Invitation). The Tribunal also provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). The applicant provided a response to the Request Form on 8 June 2018 (Request Form Response) but did not otherwise provide any further documents in response to the Tribunal Invitation.

On 3 August 2018, the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 30 August 2018 at 9.30am with an information sheet attached (Hearing Invitation). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant. The Hearing Invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant provided a Response to the Hearing Invitation on 28 August 2018. The applicant also provided evidence of his past enrolments and course completions, as well as a written statement addressing the issue of whether he was a genuine temporary entrant (Statement of Purpose).

On 30 August 2018, the applicant appeared at a hearing before the Tribunal with the assistance of his registered migration agent and an interpreter in the Nepali and English languages.

On 30 August 2018, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the visa (Tribunal Decision).

8    The Appellant then applied for judicial review of the TJ on the following grounds:

1.    I was not provided procedural fairness as I felt that the member did not let me express my views and intentions during the course of the hearing.

2.    I also feel that [n]atural justice was not given to me. There was a confusion about my academic activities from March 2018 till August 2018. Initially I had been asked to provide evidence of the study by 2pm on the day of the hearing. However, during the conclusion of the hearing the Member, based on my oral evidence, said that he believed I was enrolled during that period and I did not need to provide any evidence. He also said that that period would not have any bearing on the decision. However, the decision record clearly states that it was one of the reasons why the member reached that conclusion. I was in fact studying during that period and had sufficient evidence of the same. Thus, I feel like the decision from the AAT was unfair.

3.    I also feel that the law was incorrectly applied in my case as the AAT did not give proper weight to my situation and my plans for the future. It generalized my application and decided that I was not genuine purely because I had been here for a long time but did not give proper weight to my past academic performance.

9    The hearing before the primary judge took place on 13 June 2024. The Appellant appeared in person and was assisted by an interpreter. The primary judge set out the statutory framework, observing that the Court was not engaged to undertake a general review of the decision but was instead carrying out the supervisory task of judicial review (PJ at [25]). Her Honour set out the relevant directions (including Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69)) and then considered each of the grounds. It is useful to note:

(1)    Ground one (concerning a denial of procedural fairness) was dismissed and no error is alleged in respect of that ground.

(2)    Ground two (concerning natural justice connected with confusion about the Appellant’s academic activities from March 2018 until August 2018) was also dismissed. Ground two before the primary judge is connected with the second ground of the present appeal. While not raised properly, I consider that the connection is clear enough that leave is not required to raise this aspect of ground two before this Court.

(3)    Ground three was a relatively generalised complaint that the Tribunal had not accorded “proper weight to my situation”. That ground was dismissed and not pursued on appeal.

10    In considering the appeal, I have had regard to my obligations to self-represented litigants (SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court)). The relevant principles were conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):

Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case … However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law … In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be …

11    The obligation to ensure a trial is fair does not require the judge to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party (Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [106] (Murphy and Rangiah JJ)).

The grounds of appeal

12    The Appellant appeared in person with the assistance of an interpreter. In oral submissions, the Appellant said that he was doing a course in hospitality and that the College he was studying at stopped operating. He said that he had been finishing the course. He said that he felt that he was weak in studies, and that he could improve, but that the visa for which he had applied was refused. He asked that justice be done. He said that he sought to complete his studies so that he could go back and work in Nepal.

Ground one: Alleged failure to correctly apply Direction No 69

13    By ground one, the Appellant asserts that the Court below did not correctly apply Direction 69 for the grant of the visa. No particulars accompany the assertion in the notice of appeal, and no submissions were filed in support. No oral submissions were advanced in support of this ground.

14    Direction 69 was issued pursuant to s 499(1) of the Act, which provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) imposed a duty on that person or body, such as the Tribunal in this case, to comply with a direction made under s 499(1). However, there was no obligation on the Tribunal to set out each and every matter in Direction 69 (see e.g. Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646 at [96], [106], [108] per Derrington and Thawley JJ (Logan J agreeing, in the context of Direction 53)).

15    The primary judge identified cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth), which relates to the Genuine Temporary Entrant Criterion, and recognised that the decision maker should have regard to Direction 69 (PJ at [27]-[28]). The primary judge recorded her analysis of Direction 69 in the following terms (at [43] – [44]):

… At paragraphs [30]–[36] the Tribunal considers the applicant’s circumstances in his home country pursuant to paragraphs 9 and 10 of Direction 69. At paragraphs [37]–[40] the Tribunal considers the applicant’s potential circumstances in Australia pursuant to paragraph 11 of Direction 69. At paragraphs [41]–[43] the Tribunal considers the value of the course to the applicant’s future pursuant to paragraph 12 of Direction 69. At paragraph [44]–[46] the Tribunal considers the applicant’s immigration history pursuant to paragraphs 13 and 14 of Direction 69.

Accordingly, there is nothing in the Tribunal Decision to indicate that the Tribunal didn’t take into account relevant considerations or evidence of the applicant relevant to the matters to be considered pursuant to cl 500.212 and Direction 69.

16    No error is disclosed in the primary judge’s approach to the question of Direction 69. The direction was correctly identified, analysed and considered. The Appellant has not identified any error in this respect. Thus, leave to raise ground one will not be granted.

Ground two: Unreasonableness

17    Ground two is that:

In paragraph 52, the reason was unreasonable that it states that my education was sufficient to find employment and issue of enrolment was not properly assessed. It had error of not looking at relevant facts and being unreasonable.

18    There are no particulars or written submissions that accompany this ground of appeal.

19    The second ground of appeal covers two distinct complaints:

(1)    First, the finding by the Tribunal that the Appellant’s education was sufficient to find employment (a finding at TJ [42]) is said to have been unreasonable. This ground is not connected to a ground of appeal below and thus leave is required.

(2)    Second, the allegation that the “issue of enrolment was not properly assessed” appears to be a reference to an issue about whether the Appellant had been engaged in study from March 2018 until August 2018. An issue of that kind was raised by the second ground of review before the primary judge. Allowing some latitude to a self-represented litigant, I have considered that issue on the basis that leave is not required.

Employability finding

20    As to the first issue, the finding that the appellant’s education was sufficient to find employment in their home country was reflected in the Tribunal’s decision at [42] as follows:

The applicant has successfully completed studies in small business management, management and hospitality management. He has been exposed by way of formal instruction to all of the critical elements involved in the management of an enterprise. He has been exposed to all of the critical elements involved in the managed of the type of enterprise he wishes to eventually own and run. He is qualified at trade level to be a cook/chef. He has both general management expertise and sector specific training in hospitality. The applicant provided transcript of his past studies and relevant graduation certificates. A perusal of that documentation shows that nearly all of the units to be studies at Advanced Diploma level have been the subject of instruction in previous completed enrolments. The applicant agreed with a suggestion from the Tribunal that he currently possessed a set of qualifications that would enable him to gain employment in Nepal.

21    The Appellant’s study history was set out by the Tribunal at [19] as follows:

The applicant provided evidence of completion or graduation of the following courses in Australia since January 2014:

Certificate III in ESL (Access), 4 January 2014;

Certificate IV in Small Business Management; 14 September 2014;

Diploma of Management, 16 October 2015;

Certificate III in Commercial Cookery, 11 December 2017;

Certificate IV in Commercial Cookery 11 December 2017;

Diploma of Hospitality Management, 2 March 2018.

22    In addition, the transcript reveals that the following exchange occurred (with emphasis added):

MEMBER:     If you return to Nepal tomorrow, would you be able to do that with your current qualifications?

[APPELLANT]:    I might be able to do that, but if I finish this particular course and if I go to Nepal, I will be 100 per cent confident to get that particular (indistinct).

23    Even if the matter were properly raised before the Court below, to succeed on this proposed ground, the Appellant must establish that the conclusion is legally unreasonable. That concept was explained by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135], as follows:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

24    In this instance, there is a clear and logical connection between the evidence (the studies completed by the Appellant and his oral evidence at the hearing in relation to those studies) and the inferences or conclusions drawn (that he currently possessed a set of qualifications that would enable him to gain employment in Nepal). Of course, reasonable minds may differ as to the weight to be accorded to the evidence, but that is not the question asked by an unreasonableness ground. The link drawn between the evidence and the Tribunal’s conclusion as to the Appellant’s employability in Nepal is clear and intelligible. It is far from being unreasonable, irrational or illogical. No error is established in relation to this issue. Leave will not be granted to raise it.

Enrolment history

25    The second issue apparently raised by ground two was the question of the Appellant’s enrolment in studies between March 2018 and August 2018. This was the second ground of judicial review that was considered by the primary judge, extracted at [8] above.

26    The confusion that the Appellant appears to be referring to is clear from the transcript of the hearing before the Tribunal, which records as follows:

MEMBER:    Yes, but I’m seeking that you provide me with confirmation that he has been engaged in study from March of this year until April of this year, because there is nothing on the file. There is nothing on the file. I’ve got the COE. I have the COE, that’s fine.

MR SURAJ:     We will definitely be able to provide that after the hearing.

MEMBER:     Okay. Let me just check the rest of the files just to make sure I’m not giving you a bad steer. No. There’s nothing on either file, and there’s nothing on the computer system that indicates that the applicant has done any study from March of this year, until the present time.

MR SURAJ:     (Indistinct.)

MEMBER:     I’m not disputing what you’re saying, it’s just that there is no proof. Can you just explain to the applicant in Nepalese, that I have examined the tribunal file, and the departmental file, and the computer system we maintain, and there is nothing on each of that indicates the applicant has been engaged in any studies from March of this year, when he’s concluded his diploma, until the present time. And I’m requesting that he provide, by his migration agent, as soon as he can, a copy of any documents that he might have that shows that he has been studying, or has some credits, or some subjects from March of this year until August of this year. And I can have that document by 2 pm today. Thank you. Okay. What I’ve written down is this:

In evidence, the applicant advised he continue to study from March 2018 until the present time. His school cancelled his course, and he gained some credits for work already completed. The applicant undertook to provide relevant supporting documentation by 2 pm on the day of the hearing.

Do you all understand that?

MR SURAJ:     Yes.

27    The Member then reminded the Appellant’s representative just prior to the end of the proceeding as follows:

MR SURAJ:     We will send the evidence of his advanced diploma certificate as soon as we reach the office.

MEMBER:         If I could have that by 2 pm.

MR SURAJ:         Thank you.

MEMBER:     But really, sir, it’s not in dispute. I accept the evidence that the applicant has been engaged in study from March until (indistinct). I’m not going to make an adverse finding on that point. Do you understand what I mean?

MR POKHAREL:     Yes, please.

MEMBER:         Okay. Thank you very much

28    It is clear that the request for the advanced diploma certificate remained on foot. However, it is also true that the Tribunal said that it accepted that he had been engaged in study from March 2018 and did not propose to make an adverse decision on that point. The Tribunal said that (TJ at [26]):

In evidence the applicant advised he continued to study from March 2018 until the present time. His school cancelled his course and he gained some credits for work already completed. The applicant undertook to provide relevant supporting documentation by 2pm on the day of the hearing. The applicant did not provide the evidence. There is no evidence before the Tribunal the applicant was engaged in any study in the period from March 2018 until the present time.

29    The Tribunal’s reasons in this respect do no more than record what took place as a matter of fact (i.e. that the requested evidence was not provided). The Tribunal did not then make an adverse finding based upon that matter. The critical findings (at TJ[42], extracted above at [20]) were concerned with the number and range of courses that had been completed, not with any gap in time in the Appellant’s enrolment. That is reinforced by the Tribunal’s reasons at [43] as follows:

The Tribunal has doubts that the acquisition of a further qualification will assist in more than the most marginal way to obtain employment or improve his employment prospects in his home country. The applicant has sufficient qualification to obtain employment in either Australia or Nepal.

30    In considering this issue in the course of the judicial review application, the primary judge observed that (at PJ[52]):

As to the asserted discrepancy between the period of non-enrolment, the applicant says that the relevant period was March 2018 to August 2018. The Tribunal Decision refers to study from March 2018 until the present time. Firstly, the Tribunal hearing was on 30 August 2018. In those circumstances, I do not consider there is necessarily any discrepancy in the period referred to. In my view, the phrase the “present time”, being 30 August 2018, is capable of being captured by the period March 2018 until August 2018. Secondly, even if there were an error in relation to the non-enrolment period, it was not material to the Tribunal’s decision. The Tribunal made no adverse finding about the non-enrolment period. Rather, as already set out above, having considered the applicant’s study history, the Tribunal found that the applicant had made limited progress during his almost ten years in Australia, that there had been a degree of repetition in the studies pursued by the applicant, that all had been in the VET sector and the applicant already had a set of qualifications that would enable him to find employment in Nepal. Accordingly, the decision could not realistically have been different even if the period of non-enrolment had been different or, indeed, even if the Tribunal had found that the applicant had been enrolled in the period March 2018 until August 2018: LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 at [7], [10], [14].

31    Her Honour correctly identified that there was no adverse finding about the Appellant’s failure to provide evidence of his enrolment between March 2018 and August 2018. In addition, her Honour went on to observe that, in any event, the Tribunal found that the Appellant had made limited progress throughout his ten years in Australia, and that he already had a set of qualifications that would enable him to find employment in Nepal. The primary judge’s conclusion was that the decision could not reasonably have been different even if the period of enrolment had been different, or if the Tribunal had positively found that the Appellant had been enrolled between March 2018 and August 2018.

32    There is no error disclosed in the primary judge’s reasoning. It is clear that there was no adverse finding for the reasons that I have explained above. Moreover, the primary judge was correct to conclude that even if there was an error, in light of the core findings of the Tribunal (set out at TJ[42]–[43]), it was not material (in the sense explained in LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12; 280 CLR 321).

33    Accordingly, proceeding on the basis that leave is not required to raise this issue before the Court, I do not accept that any relevant error has been established. Thus, ground two will be dismissed.

Conclusion

34    The Appellant required leave to proceed with ground one and part of ground two.

35    In relation to ground one, I do not consider that there would be much prejudice to the First Respondent if leave were granted. Nonetheless, I do not consider that the interests of justice favour the granting of leave, primarily because there is insufficient merit in the ground. I also note that there was no explanation for why the issue was not raised below.

36    As identified above, ground two effectively contains two complaints. In relation to the first complaint, leave is required. I consider that it is not in the interests of justice to grant leave given the lack of merit in the ground. Once again, I note that there is no explanation as to why the matter was not raised below. Even if leave were not required, the merits of the matter are such that I would dismiss the ground of appeal. In relation to the second part of ground two that I have identified as being raised in the proceeding before the primary judge, I will proceed on the basis that no leave is required. However, no error has been identified in the approach of the primary judge for the reasons that I have explained.

37    It follows that leave will be refused to raise ground one, and ground two will be dismissed.

38    The Appellant is to pay the First Respondent’s costs, subject to any contrary submissions made by the Appellant.

Associate:     

Dated:    28 August 2026