Consideration
16 The appellant did not file written submissions but appeared at the hearing on 16 May 2018, assisted by an interpreter, and made oral submissions.
17 At the hearing, the appellant reiterated his claim that the death certificate in relation to the appellant's mother was genuine. The Minister responded that whether or not the death certificate of the appellant's mother was genuine was not really in issue, as the Tribunal was required to dismiss the appellant's application because it was satisfied that the birth certificate that the appellant had provided was a "bogus document" for the purposes of s 91WA of the Act. The appellant further submitted that he had attempted to give the Tribunal a genuine birth certificate, but that he was too late.
18 I explained that factual findings were for a matter for the Tribunal alone, that it was not for this Court to engage in merits review of the factual findings of the Tribunal, and that this Court was restricted to considering the legality of the Tribunal's decision. The appellant's claims in this respect do not demonstrate any jurisdictional error on the part of the Tribunal, or any appealable error on the part of the primary Judge.
19 The Minister submits that leave should not be granted for the appellant to rely on the fresh grounds and that the appeal should be dismissed for the following reasons:
Leave should be refused in circumstances where a new argument on appeal would have been met by evidence if it had been raised earlier Water Board v Moustakas (1988) 180 CLR 491; SZTIZ v Minister for Immigration and Border Protection [2017] FCA 545; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424.
The grounds of appeal raised by the appellant have insufficient prospects of success because at their highest merely express the appellant's dissatisfaction with the findings of the Tribunal and seek that the Court undertake impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Relevant authorities caution against the appellate court exercising what is in a practical sense original jurisdiction.
20 The test for whether the Court should exercise discretion to permit an appellant to rely on fresh grounds of appeal is set out in VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48], where it was held that it must be expedient in the interests of justice to grant such leave. Whether it is in the interests of justice to grant leave depends, inter alia, on the strength of the grounds on which the appellant seeks to rely: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21].
21 As to the Minister's submission that the grounds of appeal have insufficient prospects of success to warrant the exercise of the discretion to grant leave to rely on them, I make the following comments:
Ground 1 asserts that the primary Judge ought to have found that there was no evidence on which the Tribunal could determine the appellant's claims. The record of the decision demonstrates that the Tribunal took into account the evidence provided by the parties at and subsequent to the hearing. There is therefore no merit to the appellant's complaint that there was no evidence before the Tribunal.
Ground 2 appears only to cavil with the findings of the Tribunal. It is an attempt to engage the Court in impermissible merits review.
Ground 3 contends that the appellant was denied procedural fairness because of the way in which the Tribunal assessed the current situation in Bangladesh. In reality, by this ground the appellant is simply expressing disagreement with the conclusion of the Tribunal on this issue. Those findings were open to the Tribunal on the material before it, so there was no jurisdictional error. To the extent that the appellant intends to complain that the Tribunal failed to investigate certain matters relating to the situation in Bangladesh, I note that the Tribunal is not under a general duty to inquire.
Ground 4 does not identify the alleged failures of the Tribunal to comply with the Act or the Migration Regulations 1994 (Cth), and thus does not identify any jurisdiction error. Without sufficient particularisation, the Minister is not informed of the case that he is required to meet.
22 In my view, the grounds of appeal sought to be relied on by the appellant are without sufficient prospects of success. It therefore it not expedient in the interests of justice to grant the appellant leave to rely on them.
23 The Minister directed further the Court to the comments of Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] that:
… s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and notice of contention when to do so will mean that this Court performs that trial court's entire function. As a matter of substance, that is what s 476A appears to be aimed at preventing.
Those comments were referred to by Buchanan J in SXUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18] where his Honour stated:
… it must also be borne in mind that the proceeding in this Court is an appeal from the judgment of the FCCA. This Court does not sit at first instance to review decisions of [the Tribunal]; Parliament has directed that it may not do so (s 476A of the Migration Act 1958 (Cth)). The primary role of this Court, therefore, is to examine whether the appealable error was made by the FCCA, rather than to perform "the trial court's entire function"…
24 With respect I agree with the statements of Perram and Buchanan JJ in this respect. I consider that these statements cautioning the Court against exercising what is effectively original jurisdiction are an additional reason to refuse leave in these circumstances, as permitting the appellant to rely on the fresh grounds of appeal would, in effect, result in this matter being an exercise of original and not appellate jurisdiction.
25 The appropriate order is that the appeal is dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.