Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the appellant, an Indian national, sought to challenge the decision of the Administrative Appeals Tribunal (the Tribunal) to uphold the Minister's decision not to revoke the mandatory cancellation of the appellant's visa. The appellant's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to a serious crime conviction. The primary issue before the court was whether the Tribunal erred in failing to consider a substantial or significant and clearly articulated claim raised in the representations made under section 501CA(3) of the Migration Act 1958 (Cth).

The court examined whether the Tribunal had overlooked any significant claims presented by the appellant regarding the cancellation of his visa. It was determined that the Tribunal had adequately considered the appellant's claims, including those pertaining to the impact on his family and the potential for rehabilitation. The court held that the Tribunal's decision was not flawed and that it had properly applied the law in reviewing the appellant's case. Additionally, the court considered the appellant's application for leave to rely on a new ground of appeal not raised in the Tribunal proceedings. The court found that the introduction of new counsel in the appeal did not justify advancing new grounds of appeal or arguments that were not raised at first instance. Furthermore, the new ground of appeal lacked merit and therefore, leave to appeal was refused.

The appeal was ultimately dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal. The court's decision underscores the importance of adhering to procedural requirements in migration appeals and highlights the limited circumstances in which new grounds of appeal may be considered. The court's ruling reinforces the principle that the Administrative Appeals Tribunal must be given the opportunity to consider all relevant claims and arguments before making a decision, and that new grounds of appeal should not be entertained unless there are exceptional circumstances.