FEDERAL COURT OF AUSTRALIA

SZCIJ v Minister for Immigration & Multicultural Affairs & Anor

[2006] FCAFC 62

SUPPLEMENTARY REASONS FOR JUDGMENT

PRACTICE AND PROCEDURE – Application for leave to amend notice of appeal – Appellant sought to include breach of section 424A of Migration Act as additional ground of appeal – whether Court has power to correct oversight in earlier judgment – applicable principles – application refused

Federal Court of Australia Act 1976 (Cth) – s 23

Migration Act 1958 (Cth) – s 424A

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 cited

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 cited

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 cited

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited

Yevad Products Pty Ltd v Brookfield (2005) 147 FCR 282 cited

SZCIJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 2640 of 2005

HEEREY, CONTI & JACOBSON JJ

12 MAY 2006 (SUPPLEMENTARY REASONS 6 FEBRUARY 2007)

SYDNEY

THE COURT ORDERS (IN ADDITION TO ORDER 1 OF 12 MAY 2006) THAT:

1.                  Leave to amend the notice of appeal be refused. 

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

SUPPLEMENTARY REASONS FOR JUDGMENT

THE COURT:

1                     We handed down our judgment in this matter on 12 May 2006 and made orders dismissing the appeal; see SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.  However, we omitted to deal in our reasons with an application made during the hearing of the appeal for leave to amend the notice of appeal.

2                     We reserved our decision on the amendment application with the intention of dealing with it in our reasons for judgment.  Our failure to do so was due to oversight.  We consider that we have power to deal with it, either under s 23 of the Federal Court of Australia Act 1976 (Cth) or under an implied power to correct a plain oversight in our judgment.  The authorities were discussed in Yevad Products Pty Ltd v Brookfield (2005) 147 FCR 282. 

3                     In her proposed amended notice of appeal, the appellant sought to raise, as an alternative to procedural fairness, a breach of s 424A of the Migration Act 1958 (Cth).  The particulars, as set out in the Appellant’s written submissions, mirror those which were relied upon to support the claim of denial of procedural fairness.  These were set out in [4] of our judgment but we will repeat them for convenience:

·        Failure to provide the appellant, as a particular of the information that the Tribunal considered would be a part of the reason for affirming the decision, that there was nothing to prevent her from returning to her family in Bangladesh.

·        Failure to provide the appellant, as a further particular, that if she had been abused, she would have been aware of her rights and known how to seek redress. 

4                     In our view leave to amend should be refused for two reasons.  The first is that on the hearing of the application for judicial review before the Federal Magistrate, the appellant expressly disavowed reliance on s 424A. 

5                     The second, and more fundamental reason, is that leave to amend would be futile.  This is because the matters which the appellant seeks to raise under s 424A are not “information” falling within s 424A(1).  Rather, they constitute part of the Tribunal’s subjective appraisal or thought processes; see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24](iii) per Finn and Stone JJ; SZEEU v  Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 at [18] per Moore J; cf at [222]-[223] per Allsop J.  See also the position of common law as stated in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22] per Gleeson CJ, Gummow and Heydon JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [29]-[32], [47]-[49].

6                     Accordingly, the order we make is that leave to amend the notice of appeal be refused.

Associate:

Dated:              6 February 2007