Khan v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 245

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 245

MOHAMMED ARSHAD KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD688 OF 2005

MOORE, FINKELSTEIN AND ALLSOP JJ
15 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 688 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MOHAMMED ARSHAD KHAN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, FINKELSTEIN AND ALLSOP JJ
DATE OF ORDER:	15 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to amend the application for judicial review and the notice of appeal be refused.

2.The appeal be dismissed.

3.The appellant pay the respondent's costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 688 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MOHAMMED ARSHAD KHAN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, FINKELSTEIN AND ALLSOP JJ
DATE:	15 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. In this appeal the only point the appellant has sought to raise is a point that was not raised in the proceedings before the Federal Magistrate.  The point raised before the Federal Magistrate is not pursued in the appeal. 

2. The appellant wishes to argue that the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") failed to take into account a material fact advanced by the appellant in support of his application.  That fact was that he had successfully passed the higher school certificate examination.  As the evidence presently stands, it is not clear whether the delegate of the Minister had before him all the documents provided by the appellant, including a copy of his higher school certificate.

3. Counsel for the Minister submitted that leave to raise this fresh point should be refused because, amongst other things, it may require evidence being led as to what material had been before the delegate.  In any event, she also referred to the minute before the delegate in which reference was made to the appellant completing years 11 and 12 at Bankstown Senior College and having completed his secondary schooling in Australia.

4. We agree that were we to grant leave an issue would arise as to what material was before the delegate.  Had the point been taken before the Federal Magistrate, that evidence could have been led.  It was not.  In those circumstances, leave to amend the application in the notice of appeal should be refused.  In any event, it is likely that had leave been granted, the appeal would have been dismissed in any event. 

5. It is unnecessary for us to express a view about the correctness of the Federal Magistrate's judgment.  The appeal should be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Finkelstein and Allsop.

Associate:

Dated:            2 December 2005

Solicitor for the Appellant:	Newman & Associates
Counsel for the Respondent:	R Francois
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 November 2005
Date of Judgment:	15 November 2005