Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 ; 147 FCR 51
Outcome: applied
In VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 , Kiefel, Weinberg and Stone JJ summarised the approach to be pursued as follows: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so... [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, 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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. In giving further consideration to the approach to be pursued, in NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 at [163] , [2005] FCAFC 134 ; 147 FCR 51 at 84 Madgwick J (with whom Conti J agreed) referred to these comments of Kiefel, Weinberg and Stone JJ and continued: [166] Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? In the present statutory context it has, not surprisingly, been further concluded that: ...the serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted where the appellant has been legally represented at all times: SZEPN v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 886 at [16] per Branson J. 30 It is not understood that there was any dispute as to the principles to be applied when considering whether to grant or refuse leave -- the dispute was as to the application of the principles to the facts now before the Court. 31 In the present appeal there is no satisfactory explanation as to why the ground was not pursued before the Federal Magistrate. The now Appellants were represented in that Court. The explanation now provided to this Court is simply that a " different mind " has now conceived an argument not previously contemplated.