CYO16 v Minister for Immigration and Border Protection

The appellant, CYO16, appealed against a decision of the Federal Circuit Court of Australia which dismissed an application for judicial review of a decision of the Immigration Assessment Authority (IAA) to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a Safe Haven Enterprise visa (SHEV). The appellant sought leave to rely on a ground in the draft notice of appeal that was not raised in the proceedings in the Federal Circuit Court. The proposed ground concerned the IAA's determination that two Department of Foreign Affairs and Trade (DFAT) reports supplied to it by the appellant were not 'new information' for the purposes of s 473DC and s 473DD of the Migration Act 1958 (Cth). One of the DFAT reports was not referred to in the delegate’s decision record, and the appellant argued that the Tribunal fell into jurisdictional error by not refusing to admit that report.

The court considered whether the proposed ground was raised in the proceedings in the Federal Circuit Court and whether it lacked merit or prejudiced the Minister. The court found that the proposed ground was not raised in the Federal Circuit Court and was raised only in submissions filed five days before the hearing, affording little time for evidence to be gathered, served and evaluated. The court also found that the proposed ground lacked merit and prejudiced the Minister as there were matters on which he might have been able to lead evidence had the proposed ground been raised in the Court below. The fact that the appellant was unrepresented in the Court below was an insufficient basis on which to allow the proposed ground to be advanced on appeal for the first time.

The court refused leave to rely on the proposed ground and dismissed the appeal with costs. The court held that the proposed ground was not a ground that could be relied on for the first time on appeal, and that the appellant's unrepresented status in the Court below did not provide a sufficient basis to allow the proposed ground to be advanced for the first time on appeal. The court further held that the proposed ground lacked merit and prejudiced the Minister as there were matters on which he might have been able to lead evidence had the proposed ground been raised in the Court below. The appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs as agreed or taxed.