S1983 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 424

FEDERAL COURT OF AUSTRALIA

S1983 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 424

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

Coulton v Holcombe (1986) 162 CLR 1

Water Board v Moustakas (1988) 180 CLR 491

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

S1983 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
NSD 2418 of 2005

GRAHAM J

9 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2418 OF 2005

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1983 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

9 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application of the Appellant to amend ground 1 of the notice of appeal be refused.

2.The application of the Appellant to amend ground 2 of the notice of appeal in accordance with the draft amended notice of appeal dated 9 March 2006 be allowed.

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 2418 OF 2005

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1983 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	9 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant arrived in Australia on 8 November 1994.  It was not until 25 September 1997 that he applied for a Protection Visa (866).  On 2 October 1997 his application for a Protection Visa was refused by the Minister's delegate.  On 15 October 1997 he sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  On 31 May 1999 the Tribunal affirmed the decision of the Minister's delegate not to grant the Appellant a protection visa.

2. On 8 October 2004 the Appellant applied to the Federal Magistrates Court of Australia for the issue of constitutional writ relief in respect of the decision of the Tribunal.  On 17 December 2004 the Appellant filed an amended application for constitutional writ relief in the Federal Magistrates Court.  Whilst the appeal book produced by the solicitors for the First Respondent did not originally include it, a further amended application for constitutional writ relief was filed in the Federal Magistrates Court which bears date 24 August 2005.  A copy of that document has been added to the appeal book and identified as being on pages 1I, 1J and 1K.

3. The further amended application, filed in the Federal Magistrates Court of Australia, was the subject of consideration when the application was heard by Federal Magistrate Lloyd-Jones on 8 September 2005.  The matter was decided adversely to the Appellant by the learned Federal Magistrate who dismissed the further amended application and ordered the Appellant before him to pay the Minister's costs in the sum of $4,760.

4. On 6 December 2005 the Appellant filed a notice of appeal in this Court appealing from the decision of the learned Federal Magistrate.  Each of the applications in the Federal Magistrates Court filed 8 October 2004, 17 December 2004 and dated 24 August 2005 were prepared for the Appellant by Silva Solicitors who act for the Appellant in the current appeal.  The notice of appeal was also, of course, prepared by Silva Solicitors. 

5. Shortly after 7.00 am today a facsimile was forwarded by Silva Solicitors to my associate indicating that on the hearing of this appeal the appellant wished to rely upon an amended notice of appeal.  The amended notice of appeal bears date 9 March 2006. 

6. On the commencement of the hearing of this appeal Mr Silva, who appears for the Appellant, applied for leave to file the amended notice of appeal in reliance on Order 52 rule 21(3) of the Federal Court Rules.  The application for leave to amend has been opposed by the Minister who is the First Respondent in the appeal.

7. The original notice of appeal raised two grounds of appeal and as I understand it the purpose of the proposed amended notice of appeal is directed at amending each of ground 1 and ground 2.  In ground 1 it is sought to amend the notice of appeal by alleging jurisdictional error on the part of the Tribunal in relying upon evidence which was so meagre that it was unreasonable for the Tribunal to make the finding which it made.

8. In relation to ground 2 it is sought to add a second component in respect of what could be called the relocation issue, it being originally alleged that the Tribunal engaged in jurisdictional error in that it used the wrong test for deciding whether State protection was available for the Appellant in India.  It is now sought to add that the Tribunal made jurisdictional error in deciding that it was reasonable for the Appellant to relocate in India.  Mrs Clegg, of counsel, who appears for the Minister, has indicated that the Minister does not oppose the proposed amendment to ground 2 but does oppose the amendment to ground 1.

9. In the amended application in the Federal Magistrates Court filed 17 December 2004 the Wednesbury unreasonableness issue in respect of scarcity of evidence was raised.  However, in the further amended application dated 24 August 2005, which was the application argued before Federal Magistrate Lloyd-Jones, the issue of the evidence being so meagre that it was unreasonable for the Tribunal to make the relevant finding was withdrawn.

10. The notice of appeal filed 6 December 2005 in this Court did not seek to re-agitate the possibility of a finding being made of Wednesbury unreasonableness in respect of the evidence being so meagre that it was unreasonable for the Tribunal to make the relevant finding which it did and, at the heel of the hunt, the Appellant now wants to re-agitate that issue which it expressly abandoned in the Federal Magistrates Court.

11. The principles relating to the ventilation on appeal of points that were not raised below include the following:

    (a)A party is bound by the conduct of his case.  Except in the most exceptional circumstances it would be contrary to all principle to allow a party after a case has been decided against him to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (University of Wollongong v Metwally (No 2)(1985) 59 ALJR 481 at 483; see also Coulton v Holcombe (1986) 162 CLR 1 at 8).

    (b)Where all the facts have been established beyond controversy or where the point is one of construction or of law then an appellate court may find it expedient and in the interests of justice to entertain the point, but otherwise the rule to which I have just referred is strictly applied (Water Board v Moustakas (1988) 180 CLR 491 at 497; Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 284).

12. Whether or not an appellate court will allow a point to be raised on appeal that was not taken below is, subject to the principles to which I have referred, a matter for the exercise of discretion by the appellate court before whom the matter comes.  In my opinion it would be entirely improper to require the Minister on less than 24 hours notice to address an issue which has been dealt with in the circumstances indicated above in the past.

13. I refuse the application of the appellant to amend ground 1 of the notice of appeal.  I allow the appellant to amend ground 2 of the notice of appeal in accordance with the draft amended notice of appeal dated this day.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:             18 April 2006

Counsel for the Appellant:	A N Silva
Solicitor for the Appellant:	Silva Solicitors
Counsel for the First Respondent:	L Clegg
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	9 March 2006
Date of Judgment:	9 March 2006