Case: NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: considered
detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration The Court has considered the matters raised before the Federal Magistrate and is satisfied that the issues now sought to be raised on appeal are different to the issues raised before the Federal Magistrate. The Court, having considered the eight factors referred to in NAJT , will grant leave for the appellant to rely on the new grounds of appeal for the following reasons. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. Finally, as to the issue of prejudice to the respondent, the Minister relied upon Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497 where the majority said ' more than once it has been held by this Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below '. However, Moustakas relates to a situation distinct from the present circumstances. The appeal court described in Moustakas was an appeal court from a first instance trial . In that circumstance, it is far more understandable that a court of appeal would seek to constrain grounds of appeal that could call for more evidence. While this Court is acting as a court of appeal, it is so acting in respect of a decision of the Federal Magistrates Court which itself was acting as a court of judicial review of a Tribunal decision, not a trial court. In that sense, this Court is just as well placed as the Federal Magistrates Court to receive evidence or review the decision of the Tribunal. In the circumstance that this Court is effectively judicially reviewing a decision of the Tribunal, being the practical effect where new grounds are relied upon and no error is shown on the part of the Federal Magistrate, then this Court is in just as good a position as the Federal Magistrates Court to fulfil that role. Consequently, the Court does not believe that Moustakas is apposite in the present circumstances and prefers to rely on the considerations of minimising prejudice discussed in the decision of NAJT .