Is the judgment attended by sufficient doubt to warrant leave to appeal?
28 The first difficulty faced by Mr Al-Dmour in establishing that the judgment of the primary judge is attended by sufficient doubt to warrant reconsideration by the Full Court is that the substantive grounds and submissions he now relies on were not raised at all in the Circuit Court. The grounds referred to in Mr Al-Dmour's application for leave to appeal were not included in his application and affidavit in the Circuit Court. Nor did he raise any of the arguments he now wishes to advance when invited to make submissions in the Circuit Court.
29 It is, in some circumstances, appropriate to grant an applicant or appellant leave to raise new arguments on appeal, particularly if the respondent is not in any way prejudiced by the fact that the arguments were not relied on in the Court below. That said, the Court should not routinely or automatically grant leave to an applicant or appellant to raise arguments not raised in the Circuit Court in leave to appeal applications or appeals from judgments concerning applications under s 476 of the Migration Act 1958 (Cth). That would effectively turn this Court into a de facto first instance trial court, a situation that s 476A of the Act was plainly designed to prevent: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]. Mr Al-Dmour has given no explanation or reason for why he should be granted leave to raise the grounds in his application for leave to appeal for the first time in this Court.
30 The second, and perhaps more fundamental, difficulty for Mr Al-Dmour is that the new grounds have no merit in any event. As for the contention that the Tribunal did not consider his claims, it cannot be concluded, in the particular circumstances of this case, that Mr Al-Dmour made or relied on either of the two claims he now relies on when he presented his case to the Tribunal. Nor could it be said that those claims were relevantly raised by the decision under review, or were able to be divined from the material that was otherwise before the Tribunal for the purposes of the review application. The Tribunal requested Mr Al-Dmour, both in writing before the hearing and orally at the hearing, to provide information and arguments in support of his contention that the criteria in Schedule 3 should be waived. He did not, either before or at the hearing, advise the Tribunal that he relied on the submissions and material that had previously been supplied to the delegate, or that he was concerned about the security situation in the Middle East if he was required to return to Jordan.
31 It should be emphasised in this context that the submission to the delegate that Mr Al-Dmour now seeks to rely on had been provided well over two years prior to the hearing in the Tribunal. It also raised issues that plainly had no ongoing relevance or significance by the time of the Tribunal hearing. Indeed, the main thrust of the psychologist's report was that Mr Al-Dmour's then wife was anxious and depressed that Mr Al-Dmour was required to return to Jordan to apply for his visa because he was her only source of emotional and financial support. There was only a glancing reference to the volatility of the region to which Mr Al-Dmour may have to return. The source of that observation appeared to be the psychologist himself, not Ms Henman and certainly not Mr Al-Dmour. By the time of the Tribunal hearing, Mr Al-Dmour had long been separated from Ms Henman. It could scarcely be said that he was relying on a claim based on the fact that two years previously, his former wife had been depressed and anxious about losing him as a breadwinner. By the time of the Tribunal hearing, it was highly unlikely that Ms Henman would have been concerned about losing the emotional and financial support of Mr Al-Dmour should he be required to return to Jordan. That is because Mr Al-Dmour and Ms Henman had already separated.
32 Much the same can be said about Mr Al-Dmour's migration agent's statement concerning the security situation in the Middle East. Even putting to one side the vagueness and generality of that statement, the ultimate point that was made by the agent to the delegate was that Mr Al-Dmour's then wife would be extremely worried about her husband's safety if he was required to return to the Middle East to apply for the visa. By the time of the Tribunal's hearing, that could not possibly be said to be a claim advanced by Mr Al-Dmour in support of his case that the criteria in Schedule 3 should be waived. There was no claim that Mr Al-Dmour himself was concerned about his safety, or that there was any objective basis for believing that Mr Al-Dmour would in fact be in danger, or might come to harm, if he returned to Jordan.
33 Mr Al-Dmour's contention that the Tribunal was under a duty to investigate the issues or facts raised in the psychologist report must also be rejected for essentially the same reasons. Both the psychologist's report and the agent's submission concerned the mental state of Ms Henman. The main concern was that she was depressed and anxious about the possibility of Mr Al-Dmour being required to return to the Middle East for a period of time because he was her only source of emotional and financial support. The situation had so obviously changed by the time of the Tribunal hearing that it was under no obligation to further investigate anything in relation to that issue. There was certainly no obvious inquiry that should have been made about a critical fact, the existence of which could be easily ascertained.
34 The facts and circumstances of Mr Al-Dmour's case are far removed from Htun, SZIAI, Prasad and the other cases relied on by him in support of his application for leave to appeal. There is little doubt that the Tribunal may be found to have constructively failed to exercise its jurisdiction if it failed to consider and address a claim that can reasonably be said to have been raised in the material that was before the Tribunal, or if it failed to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained. The problem for Mr Al-Dmour is that it could not be said that the matters upon which he now seeks to rely were either properly raised, or in the materials before the Tribunal. They were raised in a submission made, not to the Tribunal, but to the Minister's delegate well over two years before the Tribunal hearing. During those two years, Mr Al-Dmour's circumstances had changed considerably such that it could not fairly be said that the issues that had been raised in the submission were of any continuing relevance or significance.
35 It was a matter for Mr Al-Dmour to put his case to the Tribunal. He was clearly and unequivocally requested by the Tribunal to identify the information and arguments he wished to raise concerning the waiver of the relevant criteria. He made no mention of any of the issues or claims previously made to the delegate.
36 Putting those arguments to one side, the primary judge was otherwise plainly correct to conclude that Mr Al-Dmour had not raised any arguable case of jurisdictional error. The only argument that he raised before the Tribunal was that he was not responsible for his separation from his former wife. That was also the only substantive argument that was advanced before the primary judge. It did not give rise to any arguable case of jurisdictional error on the part of the Tribunal.