Case: Kumaraperu v Minister for Immigration and Multicultural Affairs (1999) 382 FCR 381
Outcome: cited
In any event, as the first respondent submitted, the fourth appellant is a child whose claim was entirely dependent on the claim of the first appellant. Had there been an appearance for her at the hearing to which she was invited, that hearing could have added nothing to her case. It follows that, if there were any jurisdictional error in respect of the fourth appellant's hearing, it could not have made any difference to the outcome of the Tribunal's deliberations. There is ample authority in this Court supporting the proposition that, in such circumstances, matters should not be remitted to the Tribunal for rehearing: see, for example, Kumaraperu v Minister for Immigration and Multicultural Affairs (1999) 382 FCR 381 at 396 per Weinberg J. Accordingly, I would not set aside the Tribunal's decision on this account. 50 Also at the hearing of the appeal on 22 February 2007, the appellants asserted that they had handed some documents to the Tribunal relevant to the first appellant's medical condition and that some of these documents had not been referred to by the Tribunal in making its decision. They also made a claim concerning the first appellant's receipt of the letter that the Tribunal sent to them granting an extension of time. 51 The documents that the appellants said they gave the Tribunal and to which the Tribunal did not refer are the contested documents: see [23] above. Ms White has deposed that she did not find them on the relevant Tribunal file when she searched it recently. There is no mention of them in the Tribunal's very detailed reasons, and they do not appear in this Court's or the Federal Magistrates Court's files. The contested documents were not the subject of any ground for judicial review in the Federal Magistrates Court. They were also not the subject of any ground of appeal in this Court. The appellants have not sought leave to amend their grounds of appeal or to rely on fresh evidence, and any application to do so would be bound to fail. The appellants advance no explanation as to why this new ground and accompanying evidence was not raised earlier. The Federal Magistrate's reasons for judgment record that: "[w]hen invited to make oral submissions to the Court, the applicant husband indicated that he would rely on his written submissions". Contrary to his Honour's statement, the appellants claimed that they raised the issue before him and he ignored it. There is, however, no ground of appeal challenging his Honour's disregard of the matter. In the absence of any evidence supporting the appellants, I reject their contention. 52 In any event, as the first respondent points out, the contested documents would not take the matter further. They do not provide evidence of an opinion that the first appellant's ability to give evidence was impaired by his medical condition and, relevantly demonstrate any jurisdictional error in the Tribunal's contrary finding, which was based on its own observations. 53 Finally, the first appellant's submission as to his receipt of the letter granting an extension is not supported by admissible evidence and is not within a ground of appeal. Furthermore, ss 441C and 441A (4) of the Act , referred to above, provides a sufficient answer to this complaint. The letter was sent to the last residential address provided by the appellants in connection with the review.