Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: applied
In VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 127, [26] in relation to the allowing of a new ground to be argued on appeal which was not raised below. It was there stated: 26 It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process. In this case, because the practical effect of an extension of time and a grant of leave to appeal would be to permit the Applicant to raise a ground not raised below it seems to me that each of the considerations mentioned in VAAC is pertinent to the exercise of the discretions to extend time and grant leave to appeal. Here, there is no question of any evidentiary embarrassment to the Minister were a s 91R(3) ground to be permitted to be raised and no other possible prejudice is evident. If the Applicant's claim for a protection visa was indeed not dealt with according to law by the Tribunal then, given the nature of her claim, there are potentially serious consequences for her in the event that she is returned to China without having the chance for the merits of her claim to be decided according to law. The prospects of the proposed additional ground will therefore be highly influential in relation to the fate of the present application. 21 Especially that is so in the present case as the explanation given by the Applicant in her supporting affidavit for why an application for leave was not filed in time was not, in itself, particularly compelling. In that affidavit she stated that "[On] 12 th of November hearing, I was not given any result of the hearing. I have not been served the court decision up till now. My natural justice has been denied. As the result I failed to lodge appeal application by the time limit. " [sic] The published reasons for judgment of the Federal Magistrates Court record that the Applicant was in attendance on 12 November 2007 when her application was dismissed for reasons apparently given ex tempore . It is not clear though whether or not those reasons for judgment were simultaneously translated for the Applicant. Further, I do bear in mind the ignorance of the English language that she has consistently displayed before me in the course of proceedings to date. 22 In deciding whether or not to reopen the judicial review proceeding it was pertinent for the Federal Magistrates Court to consider not only the explanation, if any, for the failure on the part of the Applicant to appear at the date, time and place appointed for the hearing of the judicial review application but also the merits of that application. The learned Magistrate approached the question of whether or not to reopen the proceeding in just this way. Absent the belated raising of an issue as to whether there had been a violation of the requirement in s 91R(3) of the Migration Act that conduct engaged in by a visa applicant be disregarded in certain circumstances, an application of the principles which attend whether to grant leave would, in my opinion, lead to a conclusion that leave to appeal ought to be refused. 23 As pleaded, the grounds upon which the judicial review of the Tribunal's decision was sought were doomed to fail. Had this not been the case and notwithstanding the considerable reservations the learned Magistrate so obviously had concerning the adequacy of the explanation given by the Applicant for her failure to attend court on 12 October 2007 one might have expected that the proceeding in the Federal Magistrates Court would have been reopened. If the explanation for absence was unsatisfactory but the grounds of the application were nonetheless arguable, such delay and expense as had been occasioned by the failure of the Applicant to appear on 12 October 2007 the justice of the case might have required an order for costs associated with the appearance that day being the Minister's costs in the proceeding in any event (or some other form of order for costs in favour of the Minister) but an order for reopening nonetheless. A failure so to deal with the application for reopening in such a way might very well have attracted a grant of leave. 24 Subsection 91R(3) of the Migration Act provides: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.