Federal Court of Australia WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 Appeal from: WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060 File number(s): VID 555 of 2020 Judgment of: RARES, MOSHINSKY AND STEWART JJ Date of judgment: 1 February 2021 Catchwords: APPEAL AND NEW TRIAL – whether appellant needed leave to advance amended sole ground of appeal framed on basis not put to Tribunal or primary judge – no adequate explanation for amendment – proposed new ground lacked sufficient merit – leave refused Legislation: Migration Act 1958 (Cth) ss 5C(d), 5M, 36(1C), 501(6) Cases cited: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 CGA15 v Minister for Home Affairs (2019) 268 FCR 362 Coulton v Holcombe (1986) 162 CLR 1 DOB18 v Minister for Home Affairs (2019) 269 FCR 636 Fualau v Minister for Home Affairs [2020] FCAFC 11 LKQD v Minister for Immigration (2019) 167 ALD 17 O'Brien v Komesaroff (1982) 150 CLR 310 Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Water Board v Moustakas (1988) 180 CLR 491 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 1 February 2021 Counsel for the Appellant: Matthew Albert Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Christopher Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS VID 555 of 2020 BETWEEN: WGKS Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: RARES, MOSHINSKY AND STEWART JJ DATE OF ORDER: 1 February 2021 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) THE COURT: 1 The appellant seeks to rely on a sole amended ground of appeal. The Minister objects to the amended ground on the basis it raises a new point of law that was not put to the primary judge. 2 The only question before the primary judge concerned the proper construction of s 36(1C)(b) of the Migration Act 1958 (Cth) which provides: (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia's security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. Note: For paragraph (b), see section 5M. 3 The appellant was represented by the same counsel before the Tribunal and the primary judge but by new counsel on appeal. His argument on both prior occasions was that for s 36(1C)(b) of the Act to apply to him, the Tribunal had to find, but on the facts should not have found, that there was a risk that he would commit a sufficiently serious crime to amount to his being a danger to the Australian community were his application for a protection visa granted. He contended that his past offending was insufficient to be characterised as constituting a danger to the Australian community, because s 36(1C)(b) contemplated that such a danger was limited to extreme and genuinely exceptional circumstances, or was "a present and serious risk", to use Logan J's test in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at 657 [83]. The Tribunal's findings 4 The Tribunal found as facts that each of three categories of offences comprising the appellant's offending over a lengthy period of 20 years, for which he had received multiple sentences of imprisonment, was of its nature harmful to the Australian community. Those categories comprised offences involving: (a) violence or threats of violence, including assaulting police, assaults with a weapon, possession of a weapon, and breaching a family violence safety notice; (b) trafficking and possessing heroin and other illicit drugs; and (c) property offences, including burglary, thefts and handling stolen goods. 5 The Tribunal found that, among his over 150 convictions, the appellant had been convicted of, and sentenced by final judgments for, particularly serious crimes within the meaning of s 5M of the Act. 6 It found that offences within each of the appellant's three categories of offending, namely, those involving offences against property, illicit drugs and unlawful violence, was of its nature harmful to the Australian community. The Tribunal found that this test applied based on the decision of Jackson J in LKQD v Minister for Immigration (2019) 167 ALD 17 at [62] who had applied a test formulated by Tamberlin DP in Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 in preference to the formulation of the test used by Logan J in DOB18 269 FCR at 657 [83]. It found that, even if as the appellant had contended before it, the Tribunal applied the test that Logan J had formulated in DOB18 269 FCR at 657 [83], it was satisfied that the appellant's offending, especially that relating to illicit drugs and violence, created the risk of a present, serious or significant danger to the Australian community. The primary judge's decision 7 The primary judge rejected the appellant's sole ground of challenge to the Tribunal's decision that: The decision of the Tribunal was affected by jurisdictional error because there were not reasonable grounds for it to consider that the Applicant was a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act 1958 (Cth). 8 The substance of the submissions put on the appellant's behalf in support of the ground argued before the primary judge was in relation to the "danger" component of the requirement that the applicant be "a danger to the Australian community", and not to the "Australian community" component. He submitted that "danger to the Australian community" must involve a present and serious risk of exceptional criminal offending. The primary judge rejected that submission. The amended notice of appeal 9 The appellant appeared to have abandoned any challenge to the primary judge's reasons in the amended notice of appeal. In oral argument, his counsel contended that he would be prepared to proceed on the original ground of appeal, namely that "The judge below should have accepted ground 1 of the originating application". He asserted that original ground raised the same argument in substance as the new one. 10 However, as became clear in oral argument, the point sought to be raised on appeal was not argued before her Honour or the Tribunal. The new ground is that: The primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not act on a correct understanding and application of the applicable law concerning whether the Applicant was a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act 1958 (Cth), namely by misunderstanding that the statutory test was concerned with 'the Australian community' and not 'a member of the community' nor 'one or more members of the Australian community'. 11 It is immediately apparent that the new ground of appeal is directed to the meaning of "the Australian community" and not to the meaning or gravamen of the required "danger". Although counsel for the appellant submits that this is not a new ground raised for the first time on appeal, on the basis that it is covered by the ground of review of the Tribunal's decision advanced before the primary judge (as quoted above), that submission cannot be accepted. What is now sought to be argued is, broadly speaking, covered by the ground of review at first instance, but that ground of review was advanced on a substantively different basis. 12 No argument was put to the primary judge in support of that ground which resembles the argument which is now sought to be put. Examination of the written submissions and transcript of the oral submissions below and her Honour's reasons for judgment reveals that no submission was made with regard to the meaning of "the Australian community". 13 In the circumstances, the appellant requires leave of the Court to advance the new ground of appeal. The appellant's submissions 14 The appellant argued in support of the new ground that the correct construction of s 36(1C)(b) required a quantitative and qualitative analysis of any danger that the applicant for a protection visa posed to the Australian community generally. He contended that danger was not (contrary to what he had argued before the Tribunal and her Honour) to be ascertained by an evaluation of the nature and degree of risk of harm that he would pose, were his visa restored, to one or more members of the Australian community being a present, serious or significant risk of such harm. Rather, he submitted, the test requires an evaluation of the risk to the community generally. 15 The appellant contended that he had put to the primary judge the argument that he seeks to raise at this appeal because it was comprehended within his written and oral submissions to her Honour that the meaning of "danger to the Australian community" was of there being a danger of "truly exceptional" criminal offending so as to justify the withholding of a projection visa. He argued today that this construction was supported by the use of different expressions in other parts of the Act, dealing with character grounds (such as ss 5C(d) and 501(6)(d)), namely "a segment of the Australian community" and "a danger to the Australian community or a segment of that community". 16 The appellant argued that, as formulated, his original ground of appeal might be at risk of being characterised as seeking merits, not judicial, review of the Tribunal's decision. He abandoned relying on the strand of his argument to the primary judge that there had to be a present and serious risk of exceptional criminality. Rather, he contended, the sole question that he wished to agitate was to challenge the Tribunal's finding, upheld by the primary judge, that the danger to the Australian community had to be evaluated, not just in respect to one or more members of it, but in respect of the whole community. He argued that this was a quantitative and qualitative exercise and that there was a real possibility that, had the Tribunal undertaken such an evaluation, it may have arrived at a different result. He submitted that her Honour erred in failing to find that such a quantitative analysis was necessary. Consideration 17 We would refuse leave to the appellant to raise this new ground of appeal for three reasons, namely: (1) It was not the basis on which the case was run before the Tribunal and the primary judge; (2) There is no adequate explanation for the amendment; and (3) The proposed new ground lacks sufficient merit. 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. The new ground seeks to reduce the conduct of the proceeding before the Tribunal and primary judge to a preliminary skirmish. 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. 19 We are not persuaded that the interests of justice require the grant of leave to rely on the amended ground of appeal. It raises a new argument that represents a significant departure from the case put below. 20 Ordinarily, an explanation is required for the making of an amendment particularly, such as this, 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. That is the only explanation here and, in our opinion, it 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]. 21 Counsel for the appellant sought to persuade us that the new point was one canvassed before her Honour, or at least raised sufficiently to support the grant of leave. However, we do not consider that this argument can be sustained. The appellant's written submissions below and her Honour's reasons did not deal with the matter. Nor did the appellant's written submissions on the appeal identify any error in her Honour's reasons or failure by her to deal with the argument he now seeks to raise. The submissions do not challenge either of the tests that Jackson J in LKQD 167 ALD 17 or Logan J in DOB18 269 FCR 636 applied. That reinforces the conclusion that this is a wholly new point, not an elaboration of something already put below. 22 In our opinion, the new ground lacks any sufficient merit. This is because the Tribunal expressly found that the appellant's convictions in each of the three categories of offending were, first, of their nature, harmful to the Australian community and secondly, such that he posed a serious and significant risk of harm to the community based on his lamentable concatenation of offending were he to be granted a visa. Counsel for the appellant submitted that because the Tribunal in some places referred to "the Australian community" as meaning "harm to one or more members of the Australian community" its findings that the appellant poses the requisite danger to "the Australian community" must be understood to mean "one or more members of the Australian community". On this basis, counsel submitted that the Tribunal applied the wrong test. 23 It is not necessary for the purpose of deciding whether the appellant should have leave to argue the new point to decide whether his submissions on the proper construction of "the Australian community" are correct. Even assuming that they are correct, that is that what he describes as the "quantitative" aspect of the assessment is that there must be a danger to "the population in general" rather than to merely an individual or a segment of the Australian community, there is no reasonable prospect of finding that there was jurisdictional error by the Tribunal. That is because the qualitative nature of the danger assessed by the Tribunal inevitably has a quantitative impact on "the population in general". As we have indicated, that arises from the nature of the offences for which, as assessed by the Tribunal, there was the requisite danger of the appellant committing, namely the promotion of the use of illicit drugs such as heroin, crimes such as burglary and theft and the infliction of unlawful violence on members of the community in general. 24 Thus, the ground lacked any real prospect of success were we to have entertained it. Conclusion 25 For these reasons, we refuse leave to rely on the sole ground in the amended notice of appeal. 26 The appeal should be dismissed with costs. 27 I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Moshinksy and Stewart. Associate: Dated: 10 February 2021