Case: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Outcome: applied
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 , Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [21] Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. ... [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. [26] Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11] . And in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 , Heerey, Moore and Goldberg JJ also observed: [24] ... in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge. In the present proceeding the Federal Magistrate has in fact gone on to express brief " views " as to those arguments which were at least embraced by the Grounds set forth in the Application as initially filed. To that extent, this Court has had the benefit of the obiter views helpfully expressed by the Federal Magistrate. In addressing these further Grounds , the Federal Magistrate concluded (in summary form): (i) Procedural fairness : There was held to be no denial of procedural fairness. The now Appellant was said to have been given an opportunity of being heard in respect to the adverse conclusions as made by the Tribunal, and those adverse conclusions were held to have been made in reliance on the now Appellant's own evidence. (ii) Jurisdictional error : The Federal Magistrate observed that " no particulars " of this Ground were provided. To the extent that a challenge was made to the manner in which the Tribunal reached its state of " satisfaction ", the Federal Magistrate observed that the Tribunal was " not required to uncritically accept any, or all, of the applicant's claims ". (iii) The decision was "unjust" : In respect to this Ground the Federal Magistrate observed that no jurisdictional error was exposed as " [t]he Tribunal's findings were open to it on what was before it ". It was further observed that " [t]he Tribunal gave cogent reasons in support of its findings ". (iv) A failure to consider an aspect of the claim : This Ground was rejected by the Federal Magistrate upon the basis that the Tribunal did consider the claim advanced. " At best ", the Federal Magistrate observed, the Ground was " an assertion that the applicant meets the definition of "refugee" as set out in Article 1A(2) of the Refugees Convention ". (v) A failure to investigate and "actual bias" : The Federal Magistrate rejected a contention that there was a " general duty to inquire " and further concluded that there was " nothing before the Court to suggest bias, or the apprehension of bias, on the part of the Tribunal ...". No appellable error is exposed in these conclusions of the Federal Magistrate &#8212; even if leave is to be granted to raise the matter addressed as Grounds of Appeal . The final Ground of Appeal that the Appellant seeks to raise, Ground 7 in the Notice of Appeal , was not raised at any stage of the proceeding before the Federal Magistrate. The Ground does not make sense, even allowing for the fact it may have been drafted by someone whose native language is not English. For this reason, this Ground too has no prospects of success.