Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
This Court has power to allow grounds to be argued on appeal that were not argued before the trial judge. The principles governing the exercise of this power have been considered by the Full Court on several occasions, and those principles are well settled: see H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 (Branson, Katz and Marshall JJ) (" H "); and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (North, Merkel and Weinberg JJ) (" VAAC "). 25 In VAAC at 177 [26], the Full Court identified factors which need to be considered in applying these principles: "It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process." 26 The Full Court in VAAC also observed that determining the appellant's prospects of success on the appeal requires consideration of the merits of the proposed new ground. In this case, the convenient course was to hear full argument on the appeal, including the proposed new ground of appeal, without ruling on the application for leave. In taking this course I took the following matters into account: a determination of the leave application would require consideration of the merits of the new ground; it was common ground between the appellant and the first respondent that if the proposed new ground of appeal had been raised as a ground of review before Hartnett FM, it would not have involved the calling of additional evidence; the first respondent did not suggest that it would be prejudiced if leave were granted to add the proposed new ground of appeal; and the duration of the appeal would not be significantly affected by allowing the proposed new ground to be fully argued before ruling on the application for leave to amend. However, I would not wish it to be thought that the same course will always be followed. There may be occasions when it is more appropriate or convenient to rule on an application for leave to amend a notice of appeal before embarking on the substance of the appeal itself. 36 There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions.