Case: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Outcome: applied
leave of this Court is therefore required before reliance can be placed upon an argument on appeal that has not previously been raised for resolution. In considering whether or not to grant leave, it is necessary to give some consideration to the merits of the issues sought to be raised &#8212; but it is not necessary to " enter upon a full consideration of the grounds ". To do otherwise would " make the requirement for leave meaningless ": Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ. See also: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 at [10] , [2007] FCA 829 ; 240 ALR 582 at 584 to 585 per Jessup J. In Iyer their Honours also cited with approval the following observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348: [8] In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. These comments were obviously made prior to the 2005 amendments to the Federal Court of Australia Act 1976 (Cth) to permit appeals from migration decisions of the Federal Magistrates Court to be entertained by a single Judge or a Full Court: s 25(1AA). Many migration appeals to this Court from the Federal Magistrates Court are now resolved by a single Judge. But there remains the relevance of their Honours' observations as to the interests of other appellants. See also: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [3] to [5], 174 FCR 14 at 18 to 19 per Moore and Lander JJ. It matters not, in the present context, that the appeal is an appeal from a decision of the Federal Magistrate rather than a single Judge of this Court &#8212; which would, of course, require a Full Court. Centrally relevant to a consideration of whether leave should be given in a case such as the present are the " serious consequences that may attend a wrongful refusal of a protection visa ": SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. See also: Iyer [2000] FCA 1788 at [22] per Heerey, Moore and Goldberg JJ. These cases are perhaps authority for no broader proposition than this: the importance of any litigation to any of the parties concerned is a matter to be taken into account. Why there should be any different principle applied in migration appeals than is applied in other appeals is not self-evident.