Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
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] . There is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act : Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS [2008] FCA 499 at [30] per Lander J.