Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: cited
Minister submitted in summary, by way of reasons for rejection of the grounds of appeal postulated by the appellants and summarised in [3] above, as follows: (i) the grounds of appeal summarised in [3(1)] and [3(2)] above were meaningless without the particularisation which they lacked; (ii) the grounds of appeal summarised in [3(3)], [3(4)], [3(5)] and [3(9)] above constituted new grounds of appeal not raised by the appellants before Nicholls FM, and should not be allowed in the context of the appeal in the absence of exceptional circumstances being demonstrated; I was referred in that regard to the well known passage in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 (Gibb CJ, Wilson, Brennan and Dawson JJ), where the following appears inter alia : 'In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards... .' The Minister emphasised that the appellants had provided no explanation as to why those new grounds were not raised before Nicholls FM, and moreover that it was not in the interests of other litigants, whose appeals require hearing and determination, and of the broad public interest in efficient judicial administration, to allow those new grounds to be argued and determined, reference being made to five decisions of this Court in relation to migration litigation, the most recent being that of NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCR 51 at [162] (Madgwick J); (iii) the grounds summarised in [3(2)], [3(4)], [3(7)], [3(8)], [3(9)] and [3(10)] above pleaded errors in the Tribunal's consideration of the merits; merits review being impermissible in the context of determining whether the Tribunal's decision was a decision made under the Act; I was referred in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272; moreover the weight that the Tribunal may give to some evidence compared to other evidence was a matter for the Tribunal, and it was not for the Court to determine the appropriate weight to be given thereto; I was referred generally in that regard to the reasons for decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24; (iv) as to the grounds summarised in [3(5)], [3(6)] and [3(9)] above, the Tribunal gave proper consideration as to whether, as a practical matter, the appellants could genuinely access domestic protection in India, and whether that protection was meaningful; the Tribunal observed specifically that the appellant husband/father was a well educated young man with the ability to speak three languages, and moreover that country information demonstrated as implausible his claims that he could not relocate safely within India, and found that there was nothing to suggest that any attempt had been made to locate him since he had left his home town; in those circumstances it was submitted that the Tribunal gave proper consideration to the appellants' relocation within the principles enunciated in Randhawa at 270 (per Black CJ with whom Whitlam J agreed); (v) the grounds summarised in [3(4)], [3(11)], [3(12)] and [3(13)] were essentially claims as to his Honour's bias, whereof there was no evidence; moreover there was no suggestion in the evidence that the appellants were not given an opportunity to present their case or were somehow overborne by the Tribunal or the Federal Magistrates Court; an allegation of actual bias carries of course a heavy onus and must clearly be established see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531.