When will an appellant ordinarily be granted leave to raise a new ground of appeal in an appellate court?

Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 (28 May 2021)

Intro:-

The appellant has appealed the decision of the primary judge dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), affirming the decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of the appellant’s Class BF Transitional (Permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act).

Facts:-

The appellant has one ground of appeal, however, as that ground was not raised below, the appellant requires the leave of the Court in order to rely on it. The Minister has opposed leave being given, arguing, principally, that the proposed ground lacks merit.

The proposed ground is that:-

"The primary judge erred in not quashing the decision of the [Tribunal] on 1 April 2020 in circumstances where the [Tribunal] committed jurisdictional error by failing to consider the Appellant’s significant and clearly expressed representation that a reason for the revocation of the decision of a delegate of the [Minister] on 2 January 2019 was that the Appellant’s removal from Australia would negatively impact his pre‑existing mental health issues."

The representation that the appellant’s removal from Australia would negatively impact his pre‑existing mental health issues was said to be contained in a submission by Refugee Legal to the Minister. The representation was also said to be supported by the multitude of references to the appellant’s mental health issues throughout the material provided to the Minister in response to the invitation to the appellant to make representations about the revocation of the cancellation decision. It was submitted that the Tribunal’s decision was, accordingly, affected by jurisdictional error by failing to consider that representation.

Issues:-

a) whether it was in the interest of justice for an appellate court to grant leave to the appellant to raise a new ground of appeal.

a) whether the Administrative Appeals Tribunal (the Tribunal) failed to consider a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3) of the Migration Act 1958 (Cth).

Analysis:-

An appellate court ordinarily will only permit a new ground to be raised on appeal if the interests of justice so require (Coulton v Holcombe [1986] HCA 33) and we have come to the view that the interests of justice do not require the grant of leave in the present case. We have two primary reasons. First, the explanation as to why the argument was not put below lies in the fact that the appellant has new counsel acting for him in the appeal and his new counsel has thought of the new point. Such an explanation is usually an insufficient reason to justify the grant of leave in the interests of justice because the interests of justice include the public interest in the finality of litigation, which would be undermined by allowing a new point to be argued on appeal that the party did not raise below.

Secondly, and significantly, we are not persuaded that the proposed new ground has sufficient merit to warrant the grant of leave.

It is well settled law that the failure to consider a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3) of the Migration Act as “another reason” for revoking the visa cancellation may constitute a failure by the Tribunal, standing in the shoes of the Minister, to carry out its statutory task and may amount to jurisdictional error. However, as the authorities also make clear, the Tribunal does not have to address every piece of evidence and every matter raised in the material: Navoto v Minister for Home Affairs [2019] FCAFC 135. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 the Full Court cautioned:-
"The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review."

In each case, it is necessary to examine whether the alleged representation as characterised was made and, if so, whether the Tribunal meaningfully engaged with that representation.

The appellant’s statement to the Minister in support of his revocation request and the submissions that Refugee Legal prepared on his behalf did include several references to the appellant’s mental health. However, read as a whole and in context, the matters raised by the appellant were about the causes of the anxiety and depression from which he suffers and why the lack of family and other support in Cambodia would it make it difficult for him to improve his mental health, if removed from Australia and returned to Cambodia.

Whilst the Tribunal did not make any express reference to the appellant’s mental health issues, the Tribunal nonetheless gave adequate consideration to the matters raised, having regard to the context and manner in which the submissions were made.

If, and to the extent that, the appellant’s argument was founded on a characterisation of the representations about the appellant’s mental health as amounting to a claim that non-revocation would of itself have a negative impact on the appellant’s pre-existing mental issues, no such claim was made expressly; nor, considered properly in context, did the material raise a significant and clearly articulated claim to that effect. Rather, the manner in which the mental health issues were raised were tied to the impact that the lack of family, social and economic ties in Cambodia may have on the appellant.

Conclusion:-

Leave to rely on the proposed new ground is refused and the appeal will be dismissed with costs.