Particulars (a) and (b)
29 I will first consider the question whether the appellant should be granted leave to rely on the new point raised by particulars (a) and (b) to the ground of appeal.
30 The applicable principles relating to leave to rely on a new point on appeal are well established. In WGKS, the Full Court stated:
18 The principle governing the Court's appellate jurisdiction is that appeals proceed by way of rehearing. Other than in the most exceptional of cases, parties are bound by the conduct of their case at trial, as Gibbs CJ, Wilson, Brennan and Dawson JJ explained in Coulton v Holcombe (1986) 162 CLR 1 at 7-8. … Ordinarily, the public interest in the finality of litigation would be undermined by allowing a new point to be argued on appeal that the party had not put below, and this is so even if it concerns only a question of law on uncontested facts that would not have changed the conduct of the trial. An appellate court will only permit such a new point to be raised if the interests of justice so require: Coulton 162 CLR at 8; O'Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J with whom the rest of the Court agreed: see too Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ.
…
20 Ordinarily, an explanation is required for the making of an amendment … on an appeal: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 at 215 [103], 217 [111], [112] per Gummow, Hayne, Crennan, Kiefel and Bell JJ: Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[159] per Gilmour, Perram and Beach JJ. The mere fact that new counsel has thought of a new point is insufficient. … Specifically in relation to migration cases, where an adverse decision may have various serious consequences for an appellant, the Court may grant leave to raise such a new point that was not taken below if the point clearly has merit 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. See, for example, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 [48], CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 372 [36] and Fualau v Minister for Home Affairs [2020] FCAFC 11 at [13]-[14].
(Emphasis added.)
31 In the present case, no explanation has been provided as to why the point that is sought to be argued now was not raised in the Federal Circuit Court. It may be inferred that it is a point that has occurred to the counsel who came into the case on appeal.
32 In determining whether leave to rely on the point should be granted, it is important to consider the merit or otherwise of the new point. I turn now to that issue.
33 In oral submissions, it was submitted on behalf of the appellant that the IAA has decisional freedom, but not if the decision lacks any evident justification or is outside the bounds of legal reasonableness. The appellant noted that the IAA stated (at [41] of its reasons) that there was a "significant discrepancy" between the evidence the appellant gave in his IAA interview (that he had never had a passport) and one part of the paper record of the appellant's entry interview (which records the appellant as saying that he had had a passport). The appellant noted that the IAA decision-maker listened to and relied on the audio recording of the entry interview (see the IAA Reasons at [42]), despite the entry interview having been conducted with the assistance of a Bengali interpreter and despite there being no suggestion that the IAA decision-maker understood Bengali. The appellant noted that the IAA placed weight on the use of the word "passport" during the interview (see the IAA Reasons at [42]), despite the matters referred to above. The appellant submitted that the paper record of the entry interview shows that the interpreter was experiencing some confusion about what the appellant was saying during the interview. The appellant submitted that there could be other explanations why the word "passport" was said during the entry interview, other than the inference drawn by the IAA at [42] of its reasons. The appellant submitted that it was unreasonable or irrational for the IAA to rely on the translation of the entry interview in these circumstances.
34 In the appellant's outline of submissions, the appellant makes the following submissions about the IAA's fact-finding and/or reasoning:
(a) the IAA had regard to selective information contained in the entry interview, but did not reconcile that information with the preponderance of inconsistent information, namely: that the appellant said he did not use a passport to travel to Australia, which appears immediately above in the entry interview paper record; that the appellant said he did not have a national identity card (NIC) and the IAA found that an NIC was a necessary prerequisite to obtaining a passport; and the circumstances of the appellant's travel to and arrival in Indonesia were inconsistent with the need for a travel document or visa;
(b) the IAA did not have regard to the interpreter's own apparent confusion over what was being said during parts of the entry interview;
(c) the IAA listened to the audio recording of the entry interview, and found that:
(i) except for the appellant's own assertions, there was no reason to doubt that the interpretation into English was an accurate interpretation of the appellant's response (at [42]); this was despite the matters set out immediately above; and
(ii) the appellant used the English word "passport" on several occasions; despite the fact that the appellant was otherwise speaking in Bengali (which it can be inferred the IAA decision-maker did not), the IAA found this supported the written record of the entry interview that the appellant said he used a passport for part of his journey to Australia (at [42]).
(d) the IAA did not have regard to the fact that use of a "passport containing a valid visa for Indonesia" was inconsistent with the appellant's asserted means of arrival into Indonesia;
(e) the IAA, having found that the appellant used a passport for part of his travel to Australia, further found that the appellant must have had a NIC;
(f) the IAA, having found that the appellant could have obtained a NIC (and did in fact have one prior to his departure from Bangladesh), drew further adverse inferences from the fact that the appellant did not vote in the 2007/2008 election, finding that failing to vote at those elections "significantly belies [the appellant's] claim he supports and loves the BNP" (at [51] and [54] of the IAA Reasons);
(g) the IAA recorded that the appellant stated that he could not return to his village as it had become part of India, but did not accept that the village had become part of India; in so finding, the IAA overstated the assertions set out in the appellant's written statement of 22 July 2022;
(h) the IAA, by failing to engage with all of the new information put forward by the appellant, misapprehended the appellant's asserted concerns and made further unfounded credibility findings;
(i) the IAA appears to make adverse credibility findings against the appellant on the basis that: the appellant asserted his father came to Bangladesh as a refugee from India; and the IAA found that the appellant's father was in fact a Bangladesh citizen; this was notwithstanding that the appellant had stated, since the entry interview, that his father was a Bangladesh citizen;
(j) the finding that the appellant's account of the 2013 attack at his home was "so implausible as to be far-fetched" (at [63] of the IAA Reasons) was unsupported by any further observations as to why.
35 The appellant submitted that, alone or in combination, the matters set out above lack intelligible justification, are unreasonable or irrational and therefore constitute jurisdictional error by the IAA, as it is described in SZMDS. Further or alternatively, the appellant submitted that the matters set out above, most particularly the inconsistencies in the entry interview, which cast considerable doubt on the appellant's having a passport, also demonstrate jurisdictional error by reason of ignoring relevant material in a way that affects the exercise of a power: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]-[84].
36 In my view, these submissions do not have any significant merit. The IAA decision-maker did not listen to the audio recording of the entry interview to determine the accuracy of the interpretation of the appellant's responses; rather, the IAA decision-maker listened to the audio recording to see whether the paper record of the entry interview accurately recorded the appellant's answers as interpreted during the interview. It was open to the IAA to state (as it did at [42]) that it had no reason to doubt that the relevant interpreted answer was an accurate interpretation of the appellant's response. The onus was on the appellant to demonstrate jurisdictional error. If the appellant wanted to make a case that the IAA fell into jurisdictional error by relying on an inaccurate interpretation of the entry interview, it was open to the appellant to have the audio recording re-interpreted. I appreciate that this may not have been feasible given the cost of doing so. However, in the absence of such material, it was open to the IAA to have regard to the interpreted answers. Further, to the extent that the IAA relied on the fact that the appellant used the English word "passport" during the entry interview, this supported the proposition that the appellant gave responses about this subject-matter. I do not consider that it was unreasonable, in the legal sense, for the IAA to refer to and rely on this.
37 I also do not consider there to be merit in the appellant's contention that the IAA failed to have regard to various materials supporting the appellant's claim that he did not have a passport. The IAA mentioned the matters on which the appellant relied (referred to at 34 and (d) above): IAA Reasons at [41], [67]. There is no reason to infer that the IAA overlooked those matters: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] per French, Sackville and Hely JJ.
38 Having regard to the above, the new point in particulars (a) and (b) of the appeal ground lacks sufficient merit to justify a grant of leave. It is therefore unnecessary to consider the question of prejudice. For these reasons, leave to rely on the new point in particulars (a) and (b) is refused.