Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP ") was handed down after Hartnett FM dismissed the appellant's application. In SAAP , the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A , that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it. In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. However, the High Court took a different view and allowed the appeal. 31 In oral submissions in this Court, counsel for the appellant said that even if it be the case that the s 424A ground should have been raised before the Tribunal, its significance was brought into much sharper focus by the High Court's decision in SAAP . There is some force in this submission, particularly where there was a risk that any s 424A ground would fail at the same hurdle as that which proved decisive before Mansfield J and the Full Court in SAAP . 32 In all the circumstances, I consider that it is expedient in the interests of justice to grant leave to the appellant to amend the notice of appeal so as to raise the new ground. In reaching this conclusion, I have taken into account the potentially serious consequences to the appellant if leave to amend were to be refused and the lack of any prejudice to the respondents in allowing the appellant to raise the new argument. I also consider that the failure of the appellant to raise the argument before the Tribunal has been adequately explained. As to the prospects of success of the new ground, I consider that the ground is sufficiently arguable to warrant the grant of leave to amend. 33 Section 424A provides: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information."