Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 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). 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. 2 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. 3 The representation that the appellant's removal from Australia would negatively impact his pre-existing mental health issues was said to be contained in the following statements, which appear in a submission by Refugee Legal to the Minister, in support of the appellant's request for the revocation of the cancellation of his visa, namely that: (a) "[t]he effect of non-revocation on [the appellant] … would be profound" and the appellant would "likely experience a relapse in his mental health and well-being"; and (b) the appellant's "mental health will be negatively impacted by returning to Cambodia". 4 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. The appellant argued that these references not only provided content to the appellant's representation, but also signalled how concerned the appellant was about his mental health issues, which, it was submitted, were central to his request for revocation. Accordingly, the argument went, the Tribunal, standing in the shoes of the Minister, was required to give active intellectual consideration to the representation. However, it was evident that the Tribunal did not do so, as there is no reference in the Tribunal's reasons either to the appellant's mental health issues or the appellant's alleged representation. It was submitted that the Tribunal's decision was, accordingly, affected by jurisdictional error by failing to consider that representation. 5 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) 162 CLR 1; [1986] HCA 33; at 7-8) 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: WGKS v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 at [20]. Secondly, and significantly, we are not persuaded that the proposed new ground has sufficient merit to warrant the grant of leave. 6 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: Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 and GBV18 v Minister for Home Affairs (2020) 274 FCR 202; [2020] FCAFC 17. 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 at [88]. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 the Full Court cautioned at [56]: Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. 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. 7 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. To the extent that Refugee Legal made express submissions that the appellant would likely experience a relapse in his mental health if the cancellation of his visa were not revoked, the evidentiary material (that is, the appellant's statement) did not go so far and, in any event, those submissions need to be read in the context in which they were made. 8 The first appears in a section headed "Strength, nature and duration of ties". Reference was made to parts of the appellant's statement in which the appellant refers to his relationship with his wife and children and his desire "more than anything" to be part of his children's lives in person again. The submission was made that: The effect of non-revocation on [the appellant] and his family would be profound. Without the support of his family and mental health treatment, [the appellant] will likely experience a relapse in his mental health and wellbeing … 9 The second appears in a section headed "Extent of impediments if removed" dealing with impediments that the appellant will face if returned to Cambodia. After reference to parts of the appellant's statement which included the appellant's concern that his life would deteriorate in Cambodia, as he felt that there would not be enough support to assist him to stay clean from drugs and his concern that "[i]n Cambodia, it would be difficult for [him] to continue working towards better mental health and move [his] life forward in a positive way", the submission is made that the appellant will face serious impediments if returned to Cambodia. The complete paragraphs read: We submit that [the appellant] will face serious impediments if he is returned to Cambodia as he will be unable to access employment due to a significant language barrier and will have no social or familial connections to aid any possible integration. As a result, [the appellant] will face poverty and severe hardship and struggle to access appropriate mental health treatment. Additionally he will be isolated from his central supports - namely his wife and four children, and be returned to a place in which he has experienced significant trauma and in which he has limited prospects and social connections. His mental health will be negatively impacted by returning to Cambodia. 10 The Tribunal dealt with those submissions, concluding that the strength, nature and duration of the appellant's ties in Australia and the extent of the impediments that the appellant will face if removed from Australia were considerations that weighed in favour of revoking the cancellation (Say and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 694 at [82]-[88], [92]-[98]). 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. 11 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. 12 Accordingly, leave to rely on the proposed new ground is refused and the appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Davies, Moshinsky and Cheeseman.