Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR
Outcome: followed
Jenkins submitted that there was information which had been part of the Tribunal's reason for affirming the decision of the delegate, which had not been given to the appellant in writing, and on which the appellant had not been invited, in writing, to comment. Mr Jenkins supported his application for leave by reference to the judgment of Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51, 82-86, especially at [163]-[166]. His Honour, with whom Conti J agreed in relevant respects, considered the authorities with respect to the granting of leave to argue a new point, and set out a list of questions which would be appropriate for the Court to consider in such a setting (at [166]). Those questions, which were expressed as inclusive, were: "1. Do the new legal arguments have a reasonable prospect of success? 5. Is there an acceptable explanation of why they were not raised below? 6. How much dislocation to the Court and efficient use of judicial sitting time is really involved? 7. What is at stake in the case for the appellant? 8. Will the resolution of the issues raised have any importance beyond the case at hand? 9. Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 10. If so, can it be justly and practicably cured? 11. If not, where, in all the circumstances, do the interests of justice lie?" Mr Reilly, who appeared for the first respondent ("the respondent") in the appeal, was content to resist Mr Jenkins' application for leave broadly within the framework established by Madgwick J's questions. In the arguments of counsel before me on the point, the main matters agitated were whether the new points now sought to be relied on had reasonable prospects of success, whether there was an acceptable explanation for why they had not been raised before the Federal Magistrates Court, whether there was actual prejudice to the respondent and whether, even if the Tribunal had failed to comply with s 424A as now alleged, that omission made any difference to the disposition of the application before it. On the question whether there was an acceptable explanation as to why this point had not been raised before the Federal Magistrate, Mr Jenkins submitted that the appellant had represented himself at that stage, and that it was apparent that he had no understanding of the nature of an application for judicial review. He drew my attention to a passage in the Magistrate's reasons which stated: "The applicant's brief oral submissions were limited to seeking to explain the reasons why he fears persecution in India." Mr Reilly drew my attention to the fact that the appellant in NAJT , apparently, had given evidence that he could not afford a lawyer in the proceeding before the Magistrate. In the present case, he correctly pointed out, there was no such evidence. He submitted that I should not be persuaded that there was an acceptable explanation as to why the point was not raised below. Mr Jenkins, however, relied upon the following paragraph from the judgment of Madgwick J in NAJT (at [165]): "It is no accident that the 'practice' spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer , that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country's immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving." I do not understand Madgwick J to have been purporting to establish any new legal presumption in the passage set out above. Whether a particular applicant for a protection visa fits what his Honour appears to regard as a kind of stereotypical template will, in my respectful view, be a question of fact from case to case. In the present case, the appellant's application for judicial review in the Federal Magistrates Court was evidently prepared by someone with an understanding of the jurisdiction which arises under s 39B of the Judiciary Act . The application also contains references to relevant provisions of the Migration Act , and to two Full Court judgments. The application, in terms, seeks writs of certiorari, prohibition and mandamus, and alleges jurisdictional error in various respects. It is signed by the appellant. In his visa application, the appellant nominated English as the second, in point of preference, of three languages which he could speak and of two languages which he could speak, read and write. In the absence of evidence from the appellant on this point, I infer that, as at May 2005, the appellant had access to, and made use of, professional advice of sufficient competence to give rise to an awareness of the nature of jurisdictional error and of the remedies available under s 39B of the Judiciary Act , and that he was so aware, at least as much as any lay person would be with respect to those technical matters. Why the appellant did not make use of the advice to which, apparently, he had access when he appeared before the Federal Magistrate is not the subject of any evidence before me. He was represented by counsel in this court, and there is likewise no evidence as to why the arrangements which permitted that course to be adopted might not have been put in place at first instance. My consideration of the other seven items articulated by Madgwick J in NAJT , in relation to this second point, follows the same lines as the corresponding consideration of the same items in relation to the appellant's first point, and I would express the same conclusions in relation to each. However, because I have come to a different conclusion in relation to the first item (prospect of success), and because of the importance of that item in the overall consideration of the matter, I propose to refuse the appellant leave to rely upon this second point.