Background
FML18, a citizen of Bangladesh, applied for a protection visa after arriving in Australia. He claimed that he faced persecution because of his political activity as a mid-level leader of the Bangladesh Nationalist Party, including participation in demonstrations and public speeches. A ministerial delegate refused the application, finding that Australia did not owe him refugee or complementary-protection obligations and expressing doubts about his credibility.
The Administrative Appeals Tribunal affirmed the refusal in 2018. It was not satisfied that FML18 faced a real risk of significant harm or had a well-founded fear of persecution, and it made adverse credibility findings based on inconsistencies, omissions, and implausible explanations in his evidence. The Federal Circuit and Family Court of Australia later dismissed his judicial-review application after finding no jurisdictional error.
On appeal to the Federal Court, FML18 relied on a single ground: that the primary judge should have found jurisdictional error because the Tribunal considered a visa criterion that the delegate had not considered. He did not identify the criterion, and the ground had not been raised before the primary judge.
The Court’s Holding
Justice Needham held that FML18 required leave to advance the new ground on appeal. Leave to raise a point not taken below should be granted only when expedient in the interests of justice and generally should be refused where there is no adequate explanation for the earlier omission and the point appears to lack merit.
FML18 offered no evidence or submissions explaining why the ground had not been raised before the primary judge and, despite being invited to explain why it should succeed, addressed only the merits of his protection claim. Allowing for his status as a self-represented asylum seeker whose first language was not English, the Court found that the ground was not arguable and refused leave to raise it.
The Court also reviewed the Tribunal’s and primary judge’s decisions for any obvious error and found none. Because the separate issue concerning FML18’s disclosure of bribing an immigration official was not included in the notice of appeal or advanced in submissions, it was not part of the appeal. The appeal was dismissed, with FML18 ordered to pay the Minister’s costs.
Key Takeaways
- A party ordinarily needs leave to raise on appeal a ground that was not put before the primary judge.
- Leave will generally be refused when there is no adequate explanation for the omission and the proposed ground is not arguable.
- An appeal from judicial review cannot be used merely to revisit the factual merits of a protection-visa claim.
Why It Matters
The decision illustrates the procedural difficulty of introducing a new jurisdictional-error argument for the first time on appeal. Even for a self-represented protection-visa applicant assisted by an interpreter, the proposed ground must identify an arguable legal error and the applicant must address why it was not raised below.
It also reinforces the limited role of courts in migration judicial review: the Court examines legal error, not whether the visa applicant’s protection claims should have been accepted on their merits.