IN THIS COURT
18 The Notice of Appeal filed on 19 March 2019 contained three grounds of appeal which differed from those relied upon before the primary judge. On 30 May 2019, an affidavit was filed on behalf of Mr Singh (Mr Singh's affidavit), which was dated 14 May 2019. It annexed a Draft Amended Notice of Appeal. This affidavit was filed in support of an interlocutory application by which Mr Singh sought leave to amend the Notice of Appeal in accordance with the Draft Amended Notice of Appeal and leave to file and serve a Supplementary Appeal Book. The Draft Amended Notice of Appeal seeks to raise three additional grounds of appeal and make amendments to the prior grounds of appeal. Mr Singh seeks leave to rely on these six grounds of appeal.
19 Before coming to the substance of the appeal it is necessary to note that the Appeal Book will be supplemented by additional pages which had been (no doubt inadvertently) omitted. The application to include these pages was made over two months after the appeal was commenced. Although some issue was taken with its inclusion, the exclusion of the material would not have been in the interests of justice. The Appeal Book was supplemented by this additional material.
20 It is necessary to set out in detail the full grounds of appeal that were originally filed in this Court and identify the proposed grounds of appeal now sought to be relied upon in the Draft Amended Notice of Appeal:
Ground 1
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a denial of procedural fairness because the [Minister] had issued and provided to the [Tribunal], but not to [Mr Singh], a certificate under s.375A of the [Act].
Particulars
1.1 The [Minister] issued a certificate under s.375A on 19 November 2015, and provided it to the [Tribunal].
1.2 [Mr Singh] was not provided with a copy prior to the [Tribunal's] decision 24 February 2017 nor informed of the fact of its existence.
1.2.1 The subject matter of the s.375A certificate included an email dated 7 February 2013 referencing [Mr Singh's] conviction for 'encouraging a child under 13 years of age to engage in sexual behaviour' and sentence of '2 years and 9 months'.
1.2.2 [Mr Singh] was denied the opportunity to challenge the validity of the certificate, and in any event the gravity of the particular offence (as described) was apt to consciously or unconsciously affect the decision-maker's attitude toward the assessment of [Mr Singh's] credit and the decision-maker's attitude toward the desirability of granting [Mr Singh] a visa generally.
1.3 Notwithstanding [Mr Singh] did not raise this ground below, and in fact eschewed reliance on the non-disclosure of the s.375A certificate when raised by the learned [Federal Circuit Court] Judge, it is in the interest of justice that the ground first be raised on appeal.
Ground 2
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a reasonable apprehension of bias.
Particulars
2.1 At [87] of the [Tribunal's] reasons for decision, the member states that 'the Tribunal put it to [a witness for Mr Singh] that it was not acceptable to state that the Department's record was untrue'.
2.2 At [79], the member states that 'the Tribunal warned [Mr Singh] not to make unfounded allegations with respect to officers of the Department.'
2.3 At [104], the member states its finding that '[Mr Singh's] motives were not honourable'.
2.4 Individually or cumulatively, the effect of these statements would be such that a fair-minded observer might reasonably apprehend that the [Tribunal] might not have brought an impartial mind to the decision, because it invited a view that the member could not have been dissuaded from its view of the Department's records.
2.4.1 The [Tribunal] had knowledge of information particularised at [1.2.1] above, unknown to [Mr Singh], which was a prejudicial but inadmissible fact or circumstance the possession of which was such that a fair-minded observer might reasonably apprehend that the [Tribunal] might not have brought an impartial mind to the decision.
2.4.2 The [Tribunal] treated [Mr Singh's] mother's direct evidence, notwithstanding the allegation advanced by the Departmental officers in India that no photographs of the sponsor and [Mr Singh's] daughter were displayed, that there were in fact photographs of the sponsor and [Mr Singh's] daughter displayed, and her evidence that 'there were many other photos lying around and they may have missed those photos', as an 'admission by [Mr Singh's] mother] that photographs of the sponsor and [the daughter] may not have been visible to others' involved a distortion of the evidence justifying a conclusion of apprehended bias.
2.5 Notwithstanding [Mr Singh] did not raise this ground below, it is in the interest of justice that the ground first be raised on appeal.
Ground 3
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a failure to address the real question, namely whether [Mr Singh] and sponsor were 'in a married relationship' within the meaning of ss.5F(2) of the [Act][.]
Particulars
3.1 At [104] of the [Tribunal's] reasons for decision, the member states; 'for the reasons given above, the Tribunal considers [Mr Singh's] mother's statement during a Departmental interview in 2015 that [Mr Singh] married the sponsor in order to obtain permanent residency in Australia indicates [Mr Singh's] motives for marriage were not honourable'.
3.2 The [Tribunal] set up a false dichotomy by which entering into a marriage 'in order to obtain permanent residency in Australia' precluded a finding that [Mr Singh] and sponsor were nevertheless also 'in a married relationship' within the meaning of ss.5F(2).
3.3 In truth, a marriage entered into with an objective of securing for one party Australian permanent residency is not inconsistent with being 'in a married relationship' within the meaning of ss.5F(2).
3.4 Notwithstanding [Mr Singh] did not raise this ground below, it is in the interest of justice that the ground first be raised on appeal.
Ground 4
The learned Federal Circuit [court] Judge erred in not finding that the decision of the [Tribunal] was not vitiated by a constructive failure to exercise jurisdiction by not considering at all the opinions of [Mr Singh's] and the sponsor's friends and acquaintances about the nature of the relationship, or not giving proper, genuine or realistic consideration to them, as was mandated by Regulation 1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth).
Particulars
4.1 The [Tribunal] did not consider at all the opinions expressed in statutory declarations by [JB] [AB57-58]; Ms [AG] [AB59 & AB62-63]; [MC] [AB64-66]; [YG] [AB67], and; [DC] [AB69-70] produced by [Mr Singh] to the delegate.
4.3[sic] The [Tribunal], in giving 'no weight' to any of the 14 statutory declarations of friends and acquaintances, did not exhibit any meaningful or adequate engagement with the content of those statutory declarations by dismissing each of them for allegedly 'withholding' information relating to [Mr Singh's] imprisonment, thereby implicitly assimilating each of them as if they were factually indistinguishable.
Ground 5
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by arbitrariness or capriciousness, or was without an intelligible justification, or was otherwise unreasonable.
Particulars
5.1 The [Tribunal] gave 'no weight' to 14 statutory declarations, because, it was said, they 'withheld' information that [Mr Singh] had been imprisoned for 2.5 years during the period the declarants stated they had known [Mr Singh] and the sponsor, unreasonably assimilating each and every declarant so as to universally reduce their probative value to zero.
5.2 The [Tribunal] unreasonably failed to exercise, or consider whether to exercise, its power under section 363 of the [Act] to call the Departmental officers (who had allegedly conducted an investigation in India) to give evidence, in circumstances where the information they provided was directly contradicted by [Mr Singh's] mother, rather than to simply prefer the second or third-hand hearsay of the Departmental officers.
5.3 Particular [2.4.2], the substance of which is repeated, involved an unreasonable distortion of the evidence.
5.4 The [Tribunal's] finding that there was 'no evidence' of any joint liabilities [50] or joint assets, was contrary to the contemporaneous evidence of the Medibank Private statements listing all members of the family, joint ambulance cover, the sponsor's transmitting $4,950 to [Mr Singh's] mother in India between November 2015 and February 2016, the payment of a gas bill, transfers by [Mr Singh] to his wife, and evidence that [Mr Singh] had nominated his wife as a superannuation beneficiary.
5.5 The [Tribunal's] decision that it was not satisfied of any of: a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing, that they live together or do not live separately and apart on a permanent basis, was unreasonable as indicative of an unspecified jurisdictional error in the [Tribunal's] approach.
5.6 The [Tribunal] stated that it was 'unable to determine to what degree, if any, the parties pool their financial resources at time of decision' due to an alleged lack of 'current documentary evidence with respect to financial matters', whereas there was both documentary and testimonial evidence, or in any event testimonial evidence, to that specific effect.
Ground 6
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a failure to fulfil the statutory precondition under section 359A of the [Act], resulting in a failure to undertake a 'review', a constructive failure to exercise jurisdiction, or a denial of procedural fairness.
Particulars
6.1 Neither the Department nor the [Tribunal] provided 'clear particulars' in writing, or orally, of the Departmental officers' visit to [Mr Singh's] family home in India.
6.2 In the particular circumstances of this case, the following undisclosed information volunteered by the Departmental officers conducting the visit to [Mr Singh's] home in India could not be clinically divorced from that information which was disclosed in purported compliance with section 57 of the [Act];
6.2.1 "In Indian context it is highly implausible that family is not aware of their daughter-in-law's family background as marriages in India are not only a bond between the married couple but also a bond between the two families" but inviting comment only on the proposition that [Mr Singh's] mother and brother did not identify the sponsor's family's names and occupations;
6.2.2 "In Indian context it is highly implausible that family is not aware of details of their child's marriage as marriages in India are considered to be a strong bond" but inviting comment only on the proposition that [Mr Singh's] family did not identify inter alia the date of [Mr Singh's] marriage, the place of marriage, and the attendees;
6.2.3 "As per the local knowledge, an India [sic] family usually displays/keeps photographs of their child's marriage and their grandchild in their homes if the relationship is genuine and ongoing" but inviting comment only on the proposition that [Mr Singh's] mother allegedly did not have displayed photographs of the sponsor and their child;
6.2.4 "As per Indian customs, the grandparents usually give/send a lot of gifts including clothes, money, gold/silver accessory [sic] or ornaments etc. on the north of their grandchildren (especially when he is the first grandchild like in this case)" but inviting comment only on the proposition that [Mr Singh's] mother had only sent clothes to the sponsor and no gifts to the child;
6.2.5 "As per local knowledge, parents/family in India celebrate and share their happiness (child's marriage) with neighbours and villagers if their children's relationships are genuine" but inviting comment only on the proposition that certain (unidentified) neighbours were unaware whether or not [Mr Singh] was married;
6.2.6 "In Indian context, siblings are like friends and usually share all the information about their siblings [sic] specially if it is relating to his/her relationship" but inviting comment only on the proposition that [Mr Singh's] brother did not state where [Mr Singh] and his wife met (in Australia)[;]
6.2.7 "It would not be uncommon for an applicant to get into a relationship with an Australian sponsor and even go to the extent of having a child just to ensure that he/she end up getting a permanent status in Australia. In such cases, the team has noticed from previous site visit outcomes that applicant's parents were aware of his/her relationship with the sponsor but were not aware of sponsors full name, his/her family background or his/her family composition. The team has also noted that in such cases, parents will not even have the sponsors photograph or the photograph of applicant's the child from the marriage and not disclosing at all";
6.2.8 "In genuine cases however the team has noted that applicant's parents have detailed information about sponsor/sponsors family and their grandchildren. In such cases the team has also sighted photos of applicants and sponsors together and photograph of the child if there is a child from their relationship" but not disclosing at all"[.]
6.3 In the circumstances, including that [Mr Singh's] mother flatly denied the allegations, the document should have been disclosed in its entirety, alternatively the additional particulars set out immediately above were necessary to fulfil the requirement of 'clear particulars'[.]
6.4 In the circumstances, the [Tribunal] should have disclosed the date of the Indian site visit, and the identities of the Departmental officers[.]
6.5 To the extent that the [Tribunal] did not expressly rely on the undisclosed matters in its reasons, the [Tribunal] did in substance consider they would be part of the reason for affirming the decision under review, such that paragraph 359A(1)(a) of the [Act] was engaged.
21 A synopsis of Mr Singh's grounds of appeal can be paraphrased conveniently by reference to the concise statement of the grounds set out at the commencement of his written outline of submissions:
(1) Ground 1 - Where a certificate under s 375A was issued but was not disclosed, was Mr Singh deprived of a realistic possibility of success?
(2) Ground 2 - Might a fair-minded and reasonably well-informed observer conclude that the Tribunal might not approach the merits of the claim with an open mind?
(3) Ground 3 - Did the Tribunal set up a false dichotomy that a marriage motivated in part to obtain the benefits of permanent residency was somehow incompatible with demonstrating an ongoing married relationship?
(4) Ground 4 - Did the Tribunal's out-of-hand dismissal of 14 statutory declarations reveal a failure to give proper, genuine and realistic consideration to the merits of Mr Singh's claim?
(5) Ground 5 - Was the Tribunal's treatment of 14 declarants reasonable? Were they of 'zero' probative value for allegedly 'withholding' reference to Mr Singh's imprisonment? What was the evidentiary foundation for the premise in any event? Was it reasonable for the Tribunal to prefer the disputed second-hand hearsay in the report (i.e. the Departmental Report) without calling for any contemporaneous notes or calling the officers? Was there a basis for the finding that the mother had 'admitted' that photos may not have been visible to the visiting officers? Was there really no evidence of joint liabilities or joint assets? Was it really impossible for the Tribunal to determine to what degree, if any, the parties pool their financial services?
(6) Ground 6 - Did Mr Singh receive 'clear particulars' of the information contained in the confidential Departmental Report? Was the undisclosed information regarded as information that would be the reason, or part of the reason, for the decision?
22 Mr Singh deposed an affidavit in support of his interlocutory application. Mr Singh's affidavit explained a change of legal counsel and the fact that he has at all times fully relied upon his lawyers to raise all grounds of review, having no idea at all even what exactly judicial review means, though having received a broad explanation of the term. These points may be fairly readily accepted.
23 After confirming that his barrister advised that the new grounds have merit, Mr Singh deposed to an update of his current circumstances. Mr Singh has a child 'born out of this marriage' who is nine years old, being an Australian citizen. His sponsor has two children from her previous relationship, all of them live on Centrelink payments because his work rights have been removed after the Tribunal affirmed the delegate's decision to refuse Mr Singh's application. He says that if his appeal is refused he will be forced to return to India and to lodge an offshore application at considerable cost and delay. During that time he will be separated from his wife and children. He says it will be very difficult for his family to relocate to India. His wife and her two children from a previous relationship need constant medical attention which is best available here in Australia. They will not be able to receive the same care and attention in India. All his children attend school in Australia.
24 Mr Singh also deposed to the fact that the Application Book in the Federal Circuit Court proceeding was incomplete, as pages 400 to 600 were missing. He had requested in this Court a Supplementary Appeal Book be filed containing all the missing pages.
25 The interlocutory application seeking leave to rely on the Draft Amended Notice of Appeal and Supplementary Appeal Book is also supported by an affidavit which annexes a transcript of the Tribunal hearing on 19 October 2016.
26 As noted, the original Notice of Appeal raised three grounds which were not raised in the review before the primary judge. The Draft Amended Notice of Appeal amends the particulars to ground 1 and ground 2 and adds three new grounds. The Minister opposes any grounds being raised which were not raised before the Federal Circuit Court, but particularly opposes the later amendments.
27 In opposition to Mr Singh's application for leave, the Minister observes, amongst other things:
(1) As a general rule, a party who abandons a ground below should not be allowed to resile from that position on appeal. Special circumstances should be demonstrated which justify such a course: Cooke v Repatriation Commission (1997) 45 ALD 205 per Carr J (at 234).
(2) If the appeal court is satisfied that an applicant is seeking to advance a new case on appeal, there is no residual discretion under which the appeal court may permit the new case to be run 'in the interests of justice': McLennan v McCallum [2010] WASCA 45 per Buss JA (with whom McLure P and Newnes JA agreed) (at [88]).
(3) An appellant requires leave to plead a ground of appeal not advanced in the FCCA: Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 per Gilmour and Mortimer JJ (at [79]). The key consideration as to whether leave to argue a ground of appeal not raised below should be granted is whether it is expedient in the interests of justice to do so: Gupta (at [81]). The Court must be satisfied that it is the case: PXYJ v Minister for Home Affairs [2018] FCAFC 193 per Barker, Banks-Smith and Colvin JJ (at [13]). The place for the determination of any jurisdictional error by the Tribunal is, in all but the most exceptional cases, in the Federal Circuit Court, not this Court: Gupta per Logan J (at [105]).
(4) This Court should not become the de facto court of original jurisdiction in place of the Federal Circuit Court: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 per Perram, Perry and O'Callaghan J (at [27]-[30]). The High Court should not be burdened by special leave applications from decisions of this Court which have not been reviewed: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J (at [30]) cited with approval by the Full Court (Siopis, Griffiths and Charlesworth JJ) in Nigam v Minister for Immigration and Border Protection (2017) 254 FCR 295 (at [33]).
(5) In determining whether it is expedient and in the interests of justice to grant leave to argue new grounds, answers to the following questions may assist:
(a) Do the new legal arguments raised in the appeal court have a reasonable prospect of success?
(b) Is there an acceptable explanation of why the new legal arguments raised in the appeal court were not raised below?
(c) How much dislocation to the appeal court and efficient use of judicial sitting time is really involved?
(d) What is at stake in the case for the appellant?
(e) Will the resolution of the new legal arguments have any importance beyond the case at hand?
(f) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?
(g) If there is prejudice as per (f), can such prejudice be justly and practicably cured?
(h) If prejudice as per (f) cannot be justly and practicably cured where, in all the circumstances, do the interests of justice lie?
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 per Madgwick J (at [166]-[175]) (which whom Conti J agreed).
(6) Some consideration must be given to the merits of the proposed new grounds. That does not ordinarily involve a full consideration thereof: see Gupta (at [85]).
(7) It is appropriate to take into account whether the appellant was legally represented in the Federal Circuit Court: Nigam (at [34]). The appeal court may take account of a lack of evidence explaining why the ground was not raised in the Federal Circuit Court: Comcare v Lilley (2013) 216 FCR 214 per Kerr, Farrell and Mortimer JJ (at [22]).
(8) Where there is no adequate explanation for the failure to take the point in the court below, and the point seems to be of doubtful merit, the appeal court should generally refuse leave: NAJT per Madgwick J (at [163] and the authority therein cited).
(9) Rarely will the Minister be able to point to any prejudice of the conventional kind. That cannot, however, be a reason to allow a party to raise issues not raised in the Federal Circuit Court: SZKMS (at [29]).
(10) If a review ground is raised for the first time on appeal and leave is given to raise the point and the ground succeeds, a consequence may be that the Minister is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: PXYJ (at [15] and the cases therein cited).
28 Further, in relation to Mr Singh's reliance on the transcript of the Tribunal hearing, the Minister notes:
(1) If an appellant wishes to read the transcript affidavit on the appeal as well as on the interlocutory application, s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) are relevant.
(2) The discretion conferred by s 27 of the Federal Court Act is not at large, despite the absence of express limitations: SZSLF v Minister for Immigration and Border Protection [2014] FCA 64 per Robertson J (at [48]). The discretion must be exercised judicially, consistently with proper judicial process and in the interests of justice: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 per North, Barker and Katzmann JJ (at [75] and the cases therein cited).
(3) It is highly unlikely Parliament intended s 27 of the Federal Court Act to be construed in such a way as to obliterate the distinction between original and appellate jurisdiction: Kedem (at [75]). It is most material to consider whether the evidence could have been called at trial: SZSLF (at [48]) and Kedem (at [74]).
(4) One important consideration in determining whether the power in s 27 of the Federal Court Act should be exercised is whether the further evidence would have produced, or at least likely to have produced, a different result had it been available at trial: SZSLF (at [49]) and Kedem (at [76]).
29 Mr Singh concedes the original appeal grounds were not raised below.
30 The Minister contends the six particulars to draft new ground 5 are, in substance, separate grounds of appeal and that, therefore, there are really eight draft new grounds being draft grounds 4, 6 and those raised in the particulars to draft ground 5.
31 In relation to the grounds of appeal (original and draft) before this Court, the Minister does not oppose leave to add draft new ground 4 and ground 5 with particulars 5.1, 5.3, 5.4, 5.5 and 5.6, though contends they are without merit. I note the matters sought to be raised by the proposed grounds 4 and 5 of the Draft Amended Notice of Appeal in this Court reflect, somewhat, grounds 3 and 4 argued before the Federal Circuit Court. The Minister opposed leave being granted in respect of the amendments to particular 5.2 of ground 5 and ground 6 as they could not be characterised as refinements to the arguments before the Federal Circuit Court. The Minister submits:
(1) Mr Singh was represented by solicitors and counsel in the Federal Circuit Court, a factor tending against a grant of leave to argue any of the original appeal grounds: SZABS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 852 per Branson J (at 12).
(2) No evidence has been placed before this Court as to why the subject matter of original appeal grounds and draft new ground 5, particular 5.2 and ground 6 was not argued in the Federal Circuit Court: SZABS (at 12). The most that can be said is that Mr Singh has changed counsel (but not solicitors) and his new counsel has taken a different view: cf Nigam (at [34]).
32 The Minister's global position is that the original appeal grounds (whether amended or not) and draft new grounds 4, 5 and 6 are in any event without merit. The Minister contends the appeal should be dismissed.