SZUYG v Minister for Immigration and Border Protection

In the case of Szuy v Minister for Immigration and Border Protection, the applicants sought to appeal a decision of the Federal Circuit Court of Australia which had dismissed their application for judicial review of a decision of the then Refugee Review Tribunal. The applicants, who had applied for refugee status, argued that the Tribunal had failed to consider the consequences of a data breach that occurred in 2014, which resulted in the accidental leakage of personal data belonging to the second applicant. The Federal Circuit Court had dismissed the application on the basis that the leaked information did not contain anything pertaining to the first applicant. The applicants sought to appeal this decision, arguing that the Tribunal's failure to consider the data breach was a significant error.

The legal issues before the court were whether the applicants had leave to raise new grounds on appeal, and if so, whether those grounds had reasonable prospects of success. The applicants sought to introduce two new grounds of appeal, one of which was a reformulation of a ground already raised below, and the other of which was entirely new. The court considered the principles relevant to the grant of leave to raise new grounds on appeal, including whether the proposed new grounds required new evidence to be called, whether raising the new grounds on appeal would prejudice the Minister, and whether either new ground had reasonable prospects of success.

The court held that the applicants had leave to amend their notice of appeal so as to raise a proposed ground of appeal in lieu of those pleaded, and that the first applicant's affidavit served as an amended notice of appeal with the requirement to file and serve an amended notice of appeal being dispensed with. However, leave to raise as grounds of appeal the two proposed new grounds was refused. The court held that the proposed new grounds required new evidence to be called and that raising them on appeal would prejudice the Minister. The court also held that neither of the new grounds had reasonable prospects of success. The appeal was dismissed, and the applicants were ordered to pay the costs of the appeal.

In summary, the court refused to allow the applicants to introduce new grounds of appeal on the basis that they would require new evidence to be called, would prejudice the Minister, and did not have reasonable prospects of success. The applicants were ordered to pay the costs of the appeal.