Zeng v Minister for Immigration and Border Protection

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an appeal from a decision of the Federal Circuit Court made on 16 February 2016 dismissing an application made under s 476 of the Migration Act 1958 (Cth) ("the Act") seeking to review a decision of the Migration Review Tribunal ("the Tribunal") which had been made on 3 December 2013 dismissing a visa application made by Mr Qing Hao Zeng. 2 The appellant is a national of the People's Republic of China who was born on 25 April 1991. He first entered Australia on 14 November 2004 and on 10 October 2012 applied for a Child Visa (Sub-Class 802). He was sponsored by his mother who is a permanent resident and is married to an Australian citizen. The appellant was over 21 years old at the time of his application for a Sub-Class 802 Visa and, accordingly, was required to satisfy the definition of "dependent child", namely, that he was "incapacitated for work due to the total or partial loss of the child's bodily or mental functions": Migration Regulations 1994 (Cth), Schedule 2, Part 802, sub-clause 802.214(2); and Regulation 1.03, "Dependent Child", sub-clause (ii). 3 A delegate of the Minister refused the appellant's application for a Sub-Class 802 Visa on 25 March 2013. The information available to the delegate included that information contained in a completed form numbered 26 and headed "Medical Examination for an Australian Visa" ("Form 26") which consisted of several parts. The first three pages of Form 26 contained details about the appellant and answers given by him which included an indication that he was capable of working. In particular, the appellant had completed item 6 in the form by identifying "mechanic" as his intended occupation/activity in Australia. The appellant had attended a Commonwealth medical officer on 19 March 2013 to undergo a health assessment. The medical report was sent to the appellant's solicitors in a sealed envelope which was then sent, unopened, to the Minister. His answers to items 16 to 29 revealed that he had none of the medical conditions inquired into, and the second page of Form 26 included the notation from the Commonwealth medical officer that the appellant had denied "all significant illnesses". Part D of Form 26 included a finding by a Commonwealth medical officer that there were "no significant history or abnormal findings present". 4 The appellant's application to review the Minister's adverse decision was rejected by the Tribunal. Relevant to the Tribunal's decision was information available to the Tribunal about the appellant's application for permission to work. The Tribunal had available information in (a) the Department's file relating to the appellant's Sub-Class 802 Visa application, (b) an earlier Tribunal decision in relation to his mother's review application for her spouse visa and (c) an earlier Tribunal decision in relation to a previous application which the appellant had made for a Protection Visa. 5 The first ground of appeal to this Court, and a ground in the application to the Federal Circuit Court, was that the Tribunal was in breach of its duty under s 359A(1) to inform the appellant of specific information available to the Tribunal from his previous application, namely, that in 2012 he had applied for permission to work. Section 359A of the Act relevantly provides: (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) ... by one of the methods specified in section 379A; ... (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. (4) This section does not apply to information: (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or […] Section 359A, like its equivalent provisions in s 424A of the Act, provides a fundamental safeguard for applicants to receive procedural fairness in the consideration and determination of their applications by the Tribunal: see also SAAP v Minister for Immigration and Multicultural Affairs & Anor (2005) 228 CLR 294, 321, [77]. The policy and purpose reflected in the provision is to ensure that the Tribunal gives a visa applicant fair notice in writing of critical matters of concern to the Tribunal, that the visa applicant understands the significance of those matters to the decision under review, and that the visa applicant is given a reasonable opportunity to comment on or to respond to those matters of concern and which may undermine the application: see SZMCD v Minister for Immigration and Citizenship & Anor (2009) 174 CLR 415, [71]; SZTNL v Minister for Immigration and Border Protection & Anor (2015) 231 FCR 204, [31]. The obligation does not apply, however, to information given by the applicant for the purposes of the application for review or to information that the applicant gave during the process that led to the decision that is under review: s 359A(4). 6 Counsel for the appellant submitted that the obligation on the Tribunal under s 359A(1) required that the appellant be given particulars of the information that in 2012 he had applied for permission to work. The Tribunal's decision on whether he had satisfied the criteria for a Sub-Class 802 Visa, namely, that he was incapacitated for work and was based in part upon the fact that in 2012 he had applied for permission to work: [50] In considering the review applicant's incapacity for work the Tribunal places substantial weight on the review applicant's answers to Form 26 and the findings of his medical examination. The review applicant's representative sought to explain the review applicant's responses by submitting that "the applicant has no medical training whatsoever and is unable to self-diagnose his condition", a claim which the Tribunal rejects. The Tribunal does not accept the review applicant's other explanations, outlined earlier, for his responses to Form 26. [51] The Tribunal places great weight on the review applicant's own statements to the medical advisor, namely that he did not believe he had any significant illness and on the results of the medical examination. It also places weight on this evidence that treatment was not necessary. The Tribunal does not accept the review applicant's representative submission that the question of ongoing treatment is irrelevant. [52] The Tribunal places weight on the review applicant's evidence that he has worked as a cleaner in Australia. The Tribunal does not accept his evidence that he only worked as a cleaner on three occasions. [53] The Tribunal also places weight on the fact that the review applicant sought permission to work in the course of the processing of the present application. The Tribunal does not accept the review applicant's evidence that he was not sure whether he wanted to work and that he was "messed up". [54] The Tribunal has had regard to the review applicant's diagnosis and considered it in light of the findings of the medical advisor of the Commonwealth and the review applicant's evidence relating to his health and his work. Based on all the material before it, the Tribunal is not satisfied that, at the time of application, the review applicant was incapacitated for work. The Minister conceded that the information of the application for permission to work was information of a kind which could undermine the appellant's application (see SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]), but submitted that it fell within information excluded by s 359A(4) from the obligation on the Tribunal under s 359A(1). The submission for the Minister was that the information of the appellant having made an application for permission to work was information which the appellant had given to the Tribunal at the hearing of his application. 7 Whether information is given by the applicant within the meaning of s 359A(4) is ultimately a question of fact. In SZTGV v Minister for Immigration and Border Protection & Anor (2015) 229 FCR 90 it was said at [24]: It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant's own volition or elicited from an applicant by the answering of the Tribunal's questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant's answer will all be relevant to determining whether s 424A(3)(b) is engaged. In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 Jacobson J concluded that information in an application to a Tribunal for a protection visa had not been provided by the appellant when the Tribunal put to the appellant an inconsistency between the claim of having been convicted of an offence and what the appellant had said in his protection visa application. The relevant evidence was set out by his Honour at [9] to [14]: [9] The appellant is a citizen of India. He is of the Muslim religion. He claims to have a well-founded fear of persecution, apparently on political grounds, by reason of his activities and membership of the Madras Rotary Club (MRC). He claimed that, through his membership of the MRC, he had caused embarrassment to local political figures by seeking financial assistance for poor people. He claimed that these activities had led him to be arrested, detained, tortured and convicted of an offence under Indian law. [10] The appellant also claimed that he was a member of the Communist Party of India. This seems to have been put forward as a part of his primary claim that he had been persecuted as a result of his activities with the MRC. [11] The RRT recorded that the appellant gave oral evidence on 6 November 2003. It referred to his evidence about the protection visa application in the following passage: The Tribunal noted that the Statutory Declaration on 10 February 2003 is written in English and that the applicant is not fluent in English. The Tribunal asked the applicant how this document and Forms B and C of the protection visa application were prepared. The applicant said that a friend of his assisted him. The applicant said that the friend went through the questions in Forms B and C and asked the applicant for his responses. The friend filled in the forms. The applicant said "I have filled the forms correctly" and confirmed that the information contained in the forms is true and correct. [12] The appellant relied on two principal claims before the RRT. The first was that he said that he and other members of the MRC were attacked and beaten at the MRC's premises in December 1999. The second was that he claimed to have been arrested on 18 February 2000 and charged and convicted under the "anti-conversion" law. [13] The RRT put to the appellant that his claim to have been convicted of an offence was inconsistent with what he said in his protection visa application. The RRT said: The Tribunal put to the applicant that his response to question 6 of Form B is then incorrect. The Tribunal noted that the applicant had replied "No" to the question "Has any person named in question 1, ever, been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?" The Tribunal explained to the applicant that if he was charged and convicted under a law that has a general application, then that would not constitute persecution. Further, the Tribunal put the applicant on notice that the inconsistency in the information that he has provided could mean that the Tribunal might find that this claim was fabricated. The applicant said he had told the truth but the problem is as a result of "translation". [14] In coming to its findings the RRT expressed doubts as to whether the appellant was a member of the MRC but it proceeded on the assumption that he was. It was also prepared to assume he assisted poor people. At [39] his Honour concluded that it could not be said in the circumstances of that evidence that the appellant had "himself provided the information in the Protection Visa to the RRT as part of his application". As his Honour went on to explain at [39]: … The passage set out at [11] indicates that the RRT raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant in the course of the hearing. The RRT then put the inconsistency in the information to the appellant as a possible basis for a finding that the claim had been fabricated: see the passage at [13]. His Honour's conclusion in NAZY may be contrasted with that reached by Kenny J in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 in which her Honour found that the appellant had confirmed, in response to a direct question on the matter, his educational and employment history at the Tribunal hearing. Her Honour said at [33] to [35]: [33] Upon the basis of the information appearing in his protection visa application, the Tribunal member also asked him about his employment in India. For example, she asked, "because in your application it says that from September '96 to August '97 you worked as a sales executive for SR Traders, is that right?" The appellant affirmed that it was. [34] Later, the Tribunal member and the appellant discussed the appellant's schooling in India. The appellant confirmed, in response to a direct question on the matter, that he had attended high school and had graduated in 1996. He also confirmed that he had attended the National Institute of Sales and Marketing for one and a half years. The appellant explained that the institute was like a college. [35] It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant's submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of 'cross-examination'. The Tribunal's questions were specific and arose, naturally enough, from the appellant's visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source. Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant's visa application in discussing some aspects of his history with him. It is clear from the authorities that for the purposes of s 359A(4) the relevant matter to be inquired into is whether the information was given by the appellant notwithstanding that it was information available to the Tribunal derived also from an alternative source. The application of s 359A(4) is not excluded by the fact that the Tribunal had information available to it from a different source that undermined an application, provided that the information was also given by an applicant for the purpose of the application for review or was given by the applicant during the process that led to the decision. The nature of the information, the question(s) asked by the Tribunal, and an applicant's answers, will all be relevant to the factual inquiry called for in the application of s 359A(4). 8 In this case the Federal Circuit Court found the fact to be that the appellant had given the information in response to the Tribunal's questions concerning the appellant's claim to be unable to work. The Federal Circuit Court correctly observed that the exception in s 359A(4) extends to information affirmed by an applicant in response to questioning by the Tribunal: see SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 156 FCR 419. His Honour went on to find that the appellant had made a positive affirmation of the fact that he had made an application for permission to work in the context of the appellant being asked by the Tribunal questions directed to the appellant's claim that he was not able to work. At [109] of the decision of the Federal Circuit Court his Honour said: However, the applicant did make such positive affirmation of the fact that he had made an application for permission to work (T12, 11.26- 27): "[Applicant]: ... That's why I asked my agent to help me apply working visa, but I didn't want to work." His Honour had noted at [105] that the information of the application for permission to work had been raised by the Tribunal at the hearing with the appellant and that the Tribunal had rejected the appellant's application on the basis that the exception in s 359A(4) of the Act operated. His Honour then said at [106] to [112]: [106] As set out above, the obligation in s.359A of the Act is subject to the exception set out in s.359A(4) of the Act. Relevantly, s.359A(4)(b) of the Act exempts information from the obligation in s.359A of the Act where an applicant affirms the information in response to questioning by the Tribunal (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [91] per Moore J, [173] per Weinberg J and [264] per Allsop J (as he then was), NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [1] per Gyles J, [2] per Stone J and [58] per Young J). [107] In his submissions to the Court, the applicant made reference to parts of the transcript of the Tribunal hearing (in particular, T12, ll. 17 - 30) to submit that the current matter is far more complex than the circumstances involved in the authorities on which the Minister relied. [108] In this light, the applicant's submissions made reference to evidence before the Tribunal concerning the applicant's emotional and mental health, referring to the report from Dr Jacmon, to also argue that the applicant did not positively affirm that he had made an application for permission to work. In particular the applicant appears to focus on T11 at line 47, where his answer to the Tribunal's question, to explain the application, was that he did not eventually get permission to work (see [105] above). [109] However, the applicant did make such positive affirmation of the fact that he had made an application for permission to work (T12, 11.26- 27): "[Applicant]: ... That's why I asked my agent to help me apply working visa, but I didn't want to work." [110] As set out above, the information that the Tribunal relied upon was simply the fact of his having made the application, albeit through his agent. On any plain reading of the Tribunal's decision record, the reasons for making that application to work cannot be said to be information on which the Tribunal relied. [111] As the Minister submitted, the reasons as to why the applicant made the application for permission work do not alter the fact that he made it. His submissions now in relation to these reasons are, therefore, not of assistance to him. Nor can his attempts to distinguish the circumstances in the authorities on which the Minister relied with the current circumstances be of assistance to him. [112] The fact of his having made an application for permission to work was positively affirmed by the applicant and, therefore, falls within the exemption in s.359A(4)(b) of the Act from the obligation in s.359A(l) of the Act. The applicant gave the information to the Tribunal for the purposes of the review. That is, that he had made, through his agent, an application for permission to work. The second particular also does not make out the ground of the application. A fair reading of the transcript of the hearing before the Tribunal, and of the Tribunal's reasons, show that his Honour was correct in finding that the appellant had made a positive affirmation of having made an application for permission to work by reference to the nature of the information, the questions asked and the answers given. 9 The Tribunal member had identified early in the proceedings the material which had been considered by the Tribunal to that point, and that it included an earlier Tribunal decision in relation to his Protection Visa application. Form 26 had contained information, as previously mentioned, given by the appellant that was inconsistent with the basis upon which he applied for a visa as a dependent child who was "incapacitated for work due to total or partial loss of the child's bodily or mental functions". The form had indicated his intended occupation of mechanic and that he had denied all significant illnesses. All of the questions concerning illnesses in the form had been answered by the appellant in the negative and the medical officer had concluded that the appellant had "no significant history of abnormal findings present". The Tribunal member subsequently asked the appellant about the doctor's written notes concerning the appellant's denial of having significant illnesses and, in response, the appellant explained that he did not think that he had significant illnesses. 10 It was in that context that the Tribunal member inquired about the application which had been made for permission to work. The Tribunal set out these matters in [25] and [26] of its reasons: [25] The Tribunal asked the review applicant about his responses to the medical examination form and its findings. The review applicant stated that the female doctor made him feel nervous and he did not want anyone to know about his mental illness. He was worried that he would be teased. He stated that he had not received treatment for psychological illness because the doctor had asked the questions quickly and there was no interpreter. He stated that he just put mechanic down on the form. He felt quite nervous and felt that the officers were disrespectful when he was completing the form. He had stated that he had no significant illness because he didn't believe he had any. [26] The review applicant instructed his agent to apply for permission to work but that he had not received it. He did not know what to do at the time and wasn't sure whether anyone would even hire him as he was sad and messed up. He wasn't sure whether he wanted to work particularly as he had many shortcomings. The appellant had denied, in response to a question from the Tribunal that he had ever worked in Australia but went on to say that he had "told a member that sometimes [he did] some cleaning job after my friend's recommendation". He was then asked in the following exchange about the Tribunal's understanding from his previous Tribunal application that he had been working one day per week: Q. Did you have a discussion with the Commonwealth medical officer about your medical history? A. INTERPRETER: Is this the doctor who do medical test? Q. Yes. A. INTERPRETER: I tried to, but I feel quite nervous. And then I feel that the officers at the counter didn't respect me because, because the way they talked to me. They keep pushing me to ask me to fill in the form, so since that moment, I feel quite nervous. Q. Because the doctor said in her written notes on your form, "denies all significant illnesses"? A. INTERPRETER: Because I didn't think that I had significant illnesses. Q. Your representative at the time when you lodged this application - lodged a permission to work application for you in December of last year. Can you tell me about that application? A. INTERPRETER: I didn't get the permission eventually. Q. You didn't - so the department said, "No permission to work"? A. INTERPRETER: It is not like immigration officer told me, told me that I didn't get the permission. I just didn't know what can I - what could I do at the time and I didn't know who would want to hire me because I always feel like I'm not qualified enough and I, I feel that sometimes maybe I couldn't control myself and I feel sad quite easily, so I feel that I may messed (as said) up something. MEMBER: What was that last comment? "Feel said and"? INTERPRETER: I feel that I may messed (as said) up. MEMBER: Messed up? INTERPRETER: Yes. MEMBER Q. Okay. So if you were thinking about working if you instructed your representative to lodge a permission to work application on your behalf? A. INTERPRETER: No. Q. But you said the department refused it, and you know, you didn't know who would hire you, but you were obviously thinking about working? Okay, just one moment. A. INTERPRETER: I try to do something, but I couldn't make my decision and - but I'd been thinking about it. When I want to do it, then I feel like I'm not qualified enough and that's why I always feel confused. That's why I asked my agent to help me apply working visa, but I didn't want to work. I, I always felt that I need to do something, but I don't know what to do. And I didn't have the guts to do something. I feel like I still have some many shortcomings to deal with. […] Q. Because what I understood from the RRT decision is that you were working one day per week? Because at the time, the member from the RRT kept asking me many questions and when - whatever I say, the member just didn't believe it, so he made me feel very upset and later I didn't even know what I was saying. In this passage the appellant, as the Federal Circuit Court found, affirmed the fact of having made an application for permission to work. The appellant may, on a fair reading of the transcript, also have been saying that he was not able to work, but there is no error in the finding by the Federal Circuit Court that the appellant had affirmed the fact of having made an application to work in December 2012. Accordingly, the appeal on this ground will be dismissed. 11 The second ground of appeal upon which the appellant seeks to rely requires that he be given leave because it was not a ground upon which he had relied in the Federal Circuit Court. The second ground concerns information that was described differently in the grounds of appeal and in the submissions by counsel. The information was described in the grounds of appeal as "that information obtained by the Tribunal from a decision of the Refugee Review Tribunal regarding the appellant's work as a cleaner - at [27] and [52] of the decision of the Tribunal […]". In the written submissions the relevant information was described as "the information put to him, that he had been 'working one day per week'". In oral submissions counsel identified the information as being "that the applicant had previously told the RRT that he had been working one day per week". 12 A consideration of the strength of the ground sought to be raised is relevant in deciding whether leave should be granted. The Minister opposed the grant of leave for the appellant to raise the additional ground of appeal for a number of reasons. One of the reasons was that the information failed objectively to come within the obligation in s 359A(1) because the information was not objectively a "rejection, denial or undermining" of the appellant's case: see SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]. The majority of the High Court in that case said at [17]: Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal", or "the tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. In the present case it was submitted for the Minister that the mere fact of the possibility of working one day per week as a cleaner in 2011 did not objectively undermine the assertion that by October 2012 the appellant had developed a significant depressive and anxiety disorder that would satisfy the visa criterion and therefore was not information of the kind contemplated by s 359A(1). I accept that submission. 13 The Tribunal did not make a finding that the appellant had worked one day per week in 2011 but did reject his evidence of having worked only as a cleaner on three occasions. The Tribunal recorded the relevant evidence at [27] by saying: The Tribunal asked the review applicant whether he had ever worked in Australia to which he said no. The Tribunal asked the review applicant whether he remembered what he had told the previous Tribunal member. The review applicant said he did remember and that he had told the member that sometimes he did cleaning. He stated that he cleaned on about three occasions in 2011, helping to move things, vacuuming, mopping and dusting offices in the city. He found work through a newspaper and was paid $10 per hour. He had told the previous Tribunal member that it was one day per week of work because the member asked many questions. At [52] the Tribunal rejected the appellant's evidence of having worked as a cleaner on only three occasions and expressed itself as placing weight on his evidence that he had worked as a cleaner in Australia. The evidence before the Tribunal concerning the appellant's work as a cleaner arose from the Tribunal questioning the evidence the appellant had given about not having worked in Australia: Q. Have you ever worked since being in Australia? A. INTERPRETER: No. Q. He's never worked? A. INTERPRETER: No. Q. Do you remember about the hearing you had before the Refugee Review Tribunal? A. INTERPRETER: Yes. Q. Do you remember discussing with the Tribunal Member your work at that hearing? A. INTERPRETER: Yes. Q. What did you say to that Tribunal Member? A. INTERPRETER: I told the member that sometimes I do some cleaning job after my friend's recommendation. Q. When did you do these cleaning jobs? A. INTERPRETER: I can't remember. Q. Do you know roughly the year? A. INTERPRETER: About 2011. Q. And how many times did you work as a cleaner? A. INTERPRETER: I think three times in total. Q. And what did you have to do? A. INTERPRETER: Like, help. Help them moving some stuff and vacuuming, mopping and dusting in .. (not transcribable) .. Q. And where was the work? A. INTERPRETER: I think to the offices in the city. Q. And who got you this work? A. INTERPRETER: I found from a newspaper. Q. And how much did that pay? A. INTERPRETER: $10 per hour. Q. And it was only three times? A. INTERPRETER: About three times. I'm not sure. Q. Because from what I understood from the RRT decision is that you were working one day per week? A. INTERPRETER: Because at the time, the member from the RRT kept asking me many questions and when - whatever I say, the member just didn't believe it, so he make me feel very upset and later I didn't even know what I was saying. It can be accepted from this passage of the transcript that the appellant did not affirm the information available to the Tribunal that he had been working one day per week. However, he had affirmed evidence upon which the Tribunal was able to make the findings at [27] and to reach the conclusion expressed at [52]. The appellant, in other words, had affirmed that he had worked as a cleaner on at least three occasions and had given contradictory evidence immediately before his answers affirming that he had worked as a cleaner on at least three occasions. It was his evidence of having worked as a cleaner in Australia to which the Tribunal gave weight and the Tribunal was not obliged to accept his evidence that he had worked as a cleaner on only three occasions. It was the appellant's own evidence given to the Tribunal that led to the Tribunal to conclude that the appellant was not unfit for work for the purposes of his Sub-Class 802 Visa application. Accordingly, the proposed ground of appeal is unlikely to succeed such as to warrant leave. It is therefore unnecessary to consider the Minister's other submissions opposing the grant of leave. It is sufficient in relation to those arguments to note (a) that no sufficient explanation was offered for the failure to have raised the proposed second ground in the proceeding in the Federal Circuit Court and (b) that the exact nature of the information which had been before the Tribunal was not in evidence but would require further evidence and, therefore, that leave to rely upon that ground should not be allowed on appeal: see Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418. 14 Accordingly, I dismiss the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.