FEDERAL COURT OF AUSTRALIA

SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486

MIGRATION – conduct in Australia – not for purpose of strengthening claim to be a refugee – Tribunal’s satisfaction as to purpose – inferences to be drawn from Tribunal’s reasons – departure from delegate’s finding

PRACTICE AND PROCEDURE – Notice of Contention – extension of time – leave to amend Notice of Appeal

Migration Act 1958 (Cth) ss 91R, 424A(1), 424A(2), 425

Federal Court Rules 1979 (Cth) O 52 r 21(3), O 52 r 22(3)(a)

Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222, cited

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62, 221 CLR 1, cited

Black v Minister for Immigration and Citizenship [2007] FCAFC 189, 99 ALD 1, cited

Coulton v Holcombe (1986) 162 CLR 1, applied

Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105, 190 ALR 543, cited

Metwally v University of Wollongong (1985) 60 ALR 68, applied

Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138, cited

MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428, cited

MZXKH v Minister for Immigration and Citizenship [2007] FCA 663, cited

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, discussed

NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132, cited

NBKB v Minister for Immigration and Citizenship [2009] FCA 69, 106 ALD 525, cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, 228 CLR 294, discussed

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152, discussed

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 96 ALD 1, cited

SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648, cited

SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138, cited

SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372, 104 ALD 22, cited

SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, 170 FCR 515, cited

SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911, 102 ALD 598, cited

SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286, cited

SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18, affirmed

SZMTJ v Minister for Immigration and Citizenship [2009] FCA 175, cited

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, cited

SZMTJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 113 of 2009

FLICK j

15 May 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 113 of 2009

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

SZMTJ

Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	15 May 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The time within which the First Respondent is to file a Notice of Contention be extended to 20 April 2009 pursuant to Order 52 r 22(3)(a) of the Federal Court Rules 1979 (Cth).

2. Leave be granted to amend the Notice of Appeal so as to allege a breach of s 424A(1)(b) of the Migration Act 1958 (Cth).

3. Leave be refused to amend the Notice of Appeal so as to allege a breach of s 425 of the Migration Act 1958 (Cth).

4. The Appeal is dismissed.

5. The Appellant is to pay the costs of the First Respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 113 of 2009

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:

SZMTJ

Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	FLICK J
DATE:	15 May 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant is a citizen of the People’s Republic of China who first arrived in Australia in June 1999.

2 An application for a Protection (Class XA) visa was made in July 1999 but rejected by a delegate of the Minister. The delegate’s decision was affirmed by the Refugee Review Tribunal in March 2000. A subsequent application for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) was also rejected.

3 A further application for a Protection visa was made in April 2008 but again refused by a delegate in May 2008. The Refugee Review Tribunal again affirmed the delegate’s decision in August 2008.

4 An application for review was filed with the Federal Magistrates Court of Australia in September 2008 and an amended application was filed in November 2008. The Federal Magistrates Court dismissed the application: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18. In so doing, the Federal Magistrate rejected an allegation of bias on the part of the Tribunal. The Federal Magistrate, however, further concluded that there had been a breach of s 91R of the Migration Act but declined relief in the exercise of his discretion.

5 A Notice of Appeal was filed in this Court on 12 February 2009.

6 The manner in which the Federal Magistrate exercised his discretion was the occasion for a referral to be made pursuant to Order 80 r 4 of the Federal Court Rules 1979 (Cth): SZMTJ v Minister for Immigration and Citizenship [2009] FCA 175. Mr Prince of Counsel accepted that referral and appeared as pro bono counsel for the Appellant. The Court is indeed appreciative of his acceptance of the referral and the detailed and careful submissions advanced both in writing and at the hearing of the appeal.

7 Now before the Court are:

(i) an application by the Respondent Minister to file a Notice of Contention;

(ii) an application by the Appellant to file an Amended Notice of Appeal; and

(iii) the existing Notice of Appeal.

The Notice of Contention seeks to raise a number of contentions as to the construction of s 91R(3) of the Migration Act 1958 (Cth) and its application to the facts.

8 The appeal is to be dismissed.

Section 91R — The Course of Proceedings before the Tribunal and the Federal Magistrate

9 In rejecting the now Appellant’s claims, the Refugee Review Tribunal in its August 2008 decision made a series of adverse findings as to his credit.

10 One of those findings focussed upon the 1999 application for a Protection visa and the application thereafter in 2000 for Ministerial intervention. Those applications were made in a false name. When addressing these claims, the Tribunal concluded:

The following matters lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain material aspects of his claims:

· The applicant lodged a protection visa application in the name of Wong on 30 July 1999. He claims that even though he knew the application was lodged, he did not know what was stated in his claims. He claimed that he did not know that his application had been rejected by the Department, the Tribunal or that a Ministerial intervention request had been made on his behalf. … The Tribunal is of the view that the applicant was aware of the outcome of his application at that time and decided to avoid any further contact with the Department.

…

· … The Tribunal does not accept that the applicant was not aware that a protection visa application had been lodged and finalised in the Tribunal. The Tribunal does not accept that the applicant was unaware that a Ministerial intervention application was made in the name of Wong. The Tribunal is of the view that the applicant, upon his arrival in Australia, lodged a protection visa application in an effort to prolong his stay in Australia. The Tribunal is of the view that the lack of claims in the protection visa application and before the Tribunal supports a finding that the applicant was not in fear of persecution, as now claimed. …

11 Before the Federal Magistrate, Counsel for the Respondent Minister “submitted that, whilst the Tribunal found that there had been some conduct in Australia, it was entitled to have regard to that conduct in the manner in which it did, having proper regard to the principles that govern s. 91R (3)”: [2009] FMCA 18 at [45]. The Federal Magistrate went on to summarise the submissions then advanced as follows:

[46] Specifically, s. 91R(3) did not require the Tribunal to disregard the applicant’s participation in religious activities in Australia because it implicitly (emphasis added) found that the applicant’s purpose in attending church was for a purpose other than strengthening his protection visa claims, and it explicitly (again, emphasis added)found an alternate explanation for the applicant’s attending church, namely companionship.

[47] Similarly, the applicant’s lodgement of an earlier application for a protection visa was not conduct that could be said to enhance the applicant’s claims for a protection visa and therefore it was not required by s. 91R (3) to be disregarded.

[48] Again, the fact that the applicant had obtained a travel document did not need to be disregarded by s. 91R(3). It did not enhance the applicant’s claims for refugee status. If anything, this conduct detracted from the applicant’s claims for a protection visa.

[49] Consequently, counsel for the Minister submitted that there was no jurisdictional error constituted by a breach of s. 91R(3) of the Migration Act, or at all.

The Federal Magistrate then went on to resolve submissions directed to other factual matters said to also involve a contravention of s 91R and concluded in respect to the 1999 application and the request for Ministerial intervention in 2000 as follows:

[62] This conduct can not, to my mind, be characterised as conduct that could not be understood as an attempt to enhance the applicant’s claim to be a refugee. He certainly practised deception, but the motive appears to be an attempt to enhance his claim for a protection visa. Accordingly, the Tribunal was required to disregard it under the provisions of s. 91R(3).

The Federal Magistrate thereafter went on to decline relief in the exercise of his discretion, reasoning as follows:

[67] What remains to be considered, therefore, is whether the Tribunal’s failure to disregard the applicant’s conduct in applying for a protection visa in a false name and also applying for the exercise of the Minister’s discretion in that same false name is a failure to comply with s. 91R(3) and therefore a jurisdictional error.

[68] In my view, the Tribunal failed to comply with s. 91R(3) in this instance and therefore fell into jurisdictional error.

[69] However, I am not satisfied that the Court should grant to the applicant the relief that he seeks. The balance of the evidence before the Tribunal is of such weight that the Tribunal’s adverse credibility finding against the applicant can stand even if the evidence of the earlier application for a protection visa and the exercise of the Minister’s discretion were to be disregarded. It is not in the interests of the administration of justice for the applicant to be granted relief by way of certiorari and mandamus because of a mere technicality.

It was this exercise of discretion which was the occasion for the Order 80 r 4 referral.

Section 91R

12 Section 91R(3) provides as follows:

For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

13 This provision, it has repeatedly been acknowledged, “suffers from a lack of clarity”: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, 170 FCR 515. Spender, Edmonds and Tracey JJ there usefully summarised as follows some of the less contentious matters involved in the construction of that provision:

[10] In a series of cases decided under s 91R(3), it has been common ground that the subsection suffers from a lack of clarity. Before turning to the difficulties to which the drafting gives rise, it will be convenient to mention some uncontentious matters relating to the construction of the subsection. First, the subsection is cast in imperative terms: it obliges a decision maker to disregard conduct in Australia by an applicant for a protection visa subject to the proviso in paragraph (b). Secondly, the stipulation that a decision maker must “disregard” an applicant’s conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. Thirdly, although the Explanatory Memorandum and the second reading speech both indicate that s 91R(3) of the Act was introduced to deal with sur place claims, it is not, in terms, so confined. Conduct in Australia which is undertaken in order to attract the adverse attention of the authorities in the applicant’s country of origin, would support a sur place claim. Other types of conduct may not. Section 91R(3) obliges decision makers to disregard “any” conduct by the applicant in Australia. That requirement is qualified by paragraph (b) which provides scope for an applicant to satisfy the decision maker that he or she has engaged in the relevant conduct “otherwise than for the purpose of strengthening the person’s claims to be a refugee …”. Conduct in Australia which attracts adverse attention from a foreign government for Convention related reasons would strengthen a person’s claim to be a refugee. So too, however, would conduct in Australia which, in an evidentiary sense, rendered it more likely that an applicant had engaged in conduct in his or her home country which led to persecution in that country. Both types of conduct may be engaged in in Australia. …

Decisions of this Court were the catalyst for the introduction of s 91R(3). Those decisions held that a person could become a refugee as a result of conduct, deliberately pursued in Australia, to attract the adverse attention of the authorities in his or her country of origin: [2008] FCAFC 105 at [24]. Special leave to appeal, it should be noted, has been granted: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404.

The Minister’s Notice of Contention — An Extension of Time?

14 The importance of the Respondent Minister’s Notice of Contention emerges by reason of the manner in which the Refugee Review Tribunal and the Federal Magistrate approached the application of s 91R(3) to the facts of the present proceeding.

15 Perhaps not surprisingly, some — but not all — of the contentions now sought to be advanced before this Court were not advanced before the Federal Magistrate. And, as noted by Branson J in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187, 156 FCR 380 (French J, as His Honour then was, agreeing):

[76] ... the purpose of a notice of contention is to place the appellant and the Court on notice that the respondent contends that the judgment below (i.e. the orders made below) can be supported on grounds other than those which the court below relied on when pronouncing the judgment. That is, that even if a ground of appeal is made out, it may not lead to the order the subject of the appeal being set aside or varied. The filing of a notice of contention is not a mechanism for challenging any order made below or for challenging the failure of the court below to make an order to which a party below claimed to be entitled.

Counsel on behalf of the Respondent Minister, Mr Lloyd SC and Ms Sirtes, accepted at the outset that by reason of Order 52 r 22(3)(a) of the Federal Court Rules, reliance cannot be placed upon the proposed Notice of Contention in the absence of the Court extending the time within which it can be filed.

16 Order 52 r 22(3) provides as follows:

If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross‑appeal, but must:

(a) file a notice of the respondent’s contention within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and

(aa) serve a copy of the notice on the appellant; and

(b) give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant’s draft index of appeal papers; and

(c) at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers.

Notwithstanding the Appellant’s opposition to an extension of time, it is considered that the time for the filing of the Notice of Contention should be extended. No prejudice is suffered by the Appellant in extending time, other than the inevitable prejudice that he has an additional argument placed in his possible path to success. Leave to extend time to enable the filing of the Notice of Contention was first raised with the Court on 26 March 2009 and Counsel on behalf of the Appellant has had more than adequate time within which to address the arguments sought to be advanced.

17 A principal consideration to be taken into account when exercising the discretion is the interest of the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law. In some cases arguments have been entertained and leave granted to file a Notice of Contention even after the conclusion of a hearing: e.g. MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428.

18 A further consideration relevant to the exercise of discretion is the fact that the issues sought to be pursued in the Notice of Contention are similar to those issues previously advanced before the Federal Magistrate.

19 In the circumstances it is considered that time should be extended to allow the filing of the Notice of Contention.

The Minister’s Contentions

20 The Notice of Contention advances for resolution a number of issues, only some of which now need be resolved.

21 The most fundamental contention advanced on behalf of the Respondent Minister is that the Federal Magistrate erred in concluding that the 1999 application and the subsequent 2000 request for Ministerial intervention were capable of being characterised as “conduct engaged in … for the purpose of strengthening the person’s claim to be a refugee” within the meaning of s 91R(3).

22 This contention, it is respectfully considered, should be accepted. The Minister is correct in his submission that the 1999 application and the 2000 request were matters which necessarily had to be taken into account and could not be characterised as “conduct” which had to be disregarded. The application and the request, including supporting claims or statements, were necessarily made for the purpose of obtaining the protection afforded to a person accepted as a refugee. So much seems to have been accepted by the Full Court in SZJGV.The Minister had there contended that if s 91R(3) were:

… interpreted in the manner contended for by the Appellants it would require the [Tribunal] to disregard any steps that the applicant took in Australia to make a claim for refugee protection.

In dealing with this contention, the Full Court concluded that such submissions:

[22] … overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account “at all” in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3).

But, even if the making of the 1999 application and the 2000 request could be characterised as “conduct” within the meaning of s 91R, it was not open for any conclusion to be reached that that conduct could be characterised as conduct engaged in “for the purpose of strengthening” the claim subsequently advanced in April 2008. As at 1999 or 2000, the present Appellant could have had no expectation that any subsequent application would be entertained: Migration Act 1958 (Cth) s 48A.

23 The conclusions of the Federal Magistrate in paragraph [62] of his reasons for decision thus expose error as alleged by the Respondent Minister — but that error does not result in his order dismissing the application before him being disturbed. His order dismissing the application should remain undisturbed — albeit for a different reason.

24 There is also a further reason for reaching the same conclusion.

25 Contrary to the conclusion of the Federal Magistrate, and assuming that s 91R(3) was engaged by reference to the 1999 application and the 2000 request for Ministerial intervention, it is further considered that the Tribunal did reach the requisite state of satisfaction as required by s 91R(3). Contrary to the conclusion of the Federal Magistrate, the Tribunal was not required to “disregard” that conduct because it is considered that the Tribunal was “satisfie[d]” that it was conduct “engaged in … otherwise than for the purpose of strengthening the person’s claim to be a refugee …”.

26 Counsel for the Appellant resisted such a conclusion and submitted that the Tribunal’s reasons did not disclose any finding as to “purpose”. He accepted that the Tribunal’s reasons were not to be scrutinised in an “over-zealous” manner and with an “eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36], 99 ALD 1 at 9.

27 So construed, the finding of the Tribunal which it is considered expresses the Tribunal’s state of satisfaction for the purposes of s 91R(3) is its finding that the now Appellant “lodged a protection visa application in an effort to prolong his stay in Australia”. Irrespective of whether or not s 430(1) of the Migration Act 1958 (Cth) imposes an obligation to set out findings and reasons specifically in respect to the application of s 91R(3), it is considered that the present Tribunal has adequately explained the course it has pursued.

28 A reading of the letter forwarded to the now Appellant pursuant to s 424A of the Migration Act 1958 (Cth), together with a reading of the Tribunal’s reasons for decision, exposes the fact that the Tribunal used the information set forth in that letter for the very purpose it there identified. The letter thus in part requested the now Appellant’s comment or response to information as to an interview conducted by the Department when he had stated that he had “more than $11,000 in a Commonwealth Savings account” and a statement that he thought about returning to China but “realised how much money [he] could make in Australia …”. The letter relevantly continued:

The fact that you went to the Chinese Consulate and were issued with a travel document in 2005 and your statement to the Departmental officer that you decided not to go to China in 2005 because you could earn more money in Australia could also lead the Tribunal to be unsatisfied in relation to your claims to fear persecution in China.

The Tribunal returned to this information in its reasons for decision and made the following adverse finding as to credit:

[119] … The applicant was detained by the Department on 12 September 2007. On the same day, when interviewed by a Departmental officer, he stated that he had more than $10,000 in a bank account. He indicated that he was willing to depart Australia. When asked why he did not leave Australia after obtaining a travel document in January 2005, he stated he had thought about it but realised how much money he could make in Australia compared to China and then decided to remain in Australia. The applicant stated that he would like to remain in Australia but if he could not work there was no point. It is the Tribunal’s view that the applicant came to Australia with the sole intention of earning money and not because he was in fear of any Convention related persecution.

And it was immediately thereafter that the Tribunal went on to make its finding that the now Appellant lodged his protection visa “in an effort to prolong his stay in Australia”.

29 The Tribunal was conscious of the obligations imposed by s 91R(3). It was a provision to which the Tribunal expressly referred in its reasons for decision. The Tribunal addressed its mind to the potential purpose for which information may be used, proceeded to use that information for the purpose highlighted to the now Appellant in the s 424A letter and for the purpose stated in its reasons for decision. Although the Tribunal’s reasons for decision could have been expressed with greater clarity with the benefit of hindsight — as is the case with most reasons — to focus on the fact that the wording of s 91R(3) was not employed and the fact that there was no express mention of the 2000 request for Ministerial intervention is to construe the Tribunal’s reasons impermissibly with an “eye keenly attuned to the perception of error”.

30 The finding as to “motive” in paragraph [62] of the Federal Magistrate’s reasons is considered, with respect, to be the result of a fact-finding task not entrusted to the Magistrate when determining whether or not jurisdictional error has been exposed and a finding not open to be made given the finding of the Tribunal.

31 Again, acceptance of this further contention advanced by the Minister exposes a further error committed by the Federal Magistrate — but, again, not an error resulting in his order dismissing the application before him being disturbed.

32 It is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.

Leave to Amend the Notice of Appeal

33 There remains for resolution the Appellant’s application to file an Amended Notice of Appeal.

34 Pursuant to Order 52 r 21(3) of the Federal Court Rules 1979 (Cth), the Court “may allow a notice of appeal to be amended on such terms and conditions as the Court thinks fit”.

35 The discretion now sought by the Appellant is to amend the existing Notice of Appeal to raise two arguments not previously advanced for resolution before the Federal Magistrate. The two amendments proposed are directed to breaches of the Migration Act 1958 (Cth), namely:

· an alleged breach of s 424A(1)(b); and

· an alleged breach of s 425

These were the only two principal arguments sought to be pursued on appeal.

36 Counsel for the Respondent Minister opposed the grant of leave to amend to raise either ground primarily upon the basis that neither ground had any merit. He further opposed the application to raise a contravention of s 425 on the basis of prejudice. The Respondent Minister did not contend that this Court, when hearing an appeal under the Migration Act 1958 (Cth) from a Federal Magistrate, does not have jurisdiction to entertain an argument not previously advanced. Indeed, to do otherwise may have precluded him from raising at least some of the contentions sought to be advanced in the Notice of Contention. The jurisdiction of the Court to entertain a new argument was accepted to be only constrained by the well accepted principle as to whether it is “expedient in the interests of justice to do so …”: e.g. VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ; Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 at [17], 159 FCR 441 at 444 per Branson, Lindgren and Besanko JJ.

37 Counsel for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71:

It is elementary that 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 had 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.

Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O’Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33], 104 ALD 22 at 30. Similarly, in Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

38 In his written outline of submissions, the Appellant identified the following factors in support of the present application seeking reliance upon the proposed two new grounds:

· the fact that the Appellant was unrepresented before the Federal Magistrates Court;

· the importance as a matter of public policy “in light of the vulnerable nature of applicants before the Tribunal” that hearings are conducted according to law;

· the consequences facing the Appellant, namely deportation back to a country in which he claims to have a genuine fear of persecution; and

· the asserted merits of the grounds sought to be advanced.

39 Considerable care must be exercised before acceding to any application based upon such considerations. The first three of these factors are common to many of those who make claims for review before the Refugee Review Tribunal and later pursue rights of review before the Federal Magistrates Court and thereafter appeal to this Court. If too readily accepted as a basis upon which new grounds could be advanced on appeal, the pursuit on appeal of grounds not previously advanced would become the norm rather than the exception. The norm should remain the touchstone that it is “fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”. Notwithstanding this reservation, it is accepted that the first three factors are relevant to the discretion to be exercised.

40 So, too, is it relevant to consider the merit of the new argument sought to be advanced. Leave to amend may be refused to raise a new argument on appeal, even an argument which has considerable merit. But the merit of a proposed new argument remains relevant. The procedural course pursued in the present Appeal was to hear argument as to both the application for leave to amend and argument in respect to the proposed new grounds contemporaneously. Such a course was endorsed by the parties.

Section 424A

41 The first of the two proposed new Grounds of Appeal seeks to allege a contravention of s 424A(1)(b).

42 Section 424A provides as follows:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies — by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

43 The “object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it”: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50], 228 CLR 294 at 312 per McHugh J. Subject to the qualifications and exceptions set forth, “the evident object of s 424A is that … fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it”: [2005] HCA 24 at [118], 228 CLR 294 at 331 per Gummow J. It was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s 424A. The purpose sought to be achieved by s 424A, it has also been recognised, is twofold: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. Branson, Finn and Bennett JJ there observed:

[31] The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).

44 Section 424A(1)(b) imposes, it has been said, “strict requirements”: SZEOP v Minister for Immigration and Citizenship [2007] FCA 807. These requirements were there not satisfied in circumstances where the Tribunal’s letter did not expressly refer to the prospect of delay in making a claim for a protection visa as impacting on the genuineness of the claim to have been a homosexual. Rares J there reasoned as follows:

[36] When the matter was before the trial judge he took the view that it must have been apparent to the appellant, having regard to the course of the hearing and the terms of the letter, that the tribunal was contemplating a possible finding that it was not satisfied that he was a homosexual. But that approach does not deal with the strict requirements of s 424A(1)(b). It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification. The natural justice which the Parliament has said an applicant for review is entitled to receive from the tribunal in a situation such as the present includes, as far as is reasonably practical, that the applicant is told by the tribunal why the information is relevant to the review. The tribunal does not fulfil the obligation imposed by s 424A(1)(b) if it leaves it to chance that he ought to appreciate that relevance from the course of the hearing, or from other circumstances surrounding the way in which the review is being conducted.

45 The proposed new Ground in the present proceeding seeks to contend that the “strict requirements” of s 424A(1)(b) have not been satisfied because the Tribunal’s letter forwarded to the Appellant failed to identify the purpose for which information set forth could be used. The letter providing notice to the Appellant of the information in respect to which “comments or response” were sought was dated 28 July 2008. That letter set forth “information” and continued to state as follows:

The above information is relevant because it could lead the Tribunal to find that you did not fear persecution in China, as presently claimed. Your statements to the Departmental officers in September 2007 that you were willing to return to China could lead the Tribunal to find that you were not in fear of persecution should you return to China. The fact that you went to the Chinese Consulate and were issued with a travel document in 2005 and your statement to the Departmental officer that you decided not to go to China in 2005 because you could earn more money in Australia could also lead the Tribunal to be unsatisfied in relation to your claims to fear persecution in China. If the Tribunal makes these findings it will not be satisfied about your persecution claims and may affirm the delegate’s decision not to grant a protection visa.

No complaint is made by the Appellant as to compliance with s 424A(1)(a) — it is accepted that “clear particulars” of information have been provided. Section 424A(1)(a) requires an applicant to be provided with “sufficient specificity” of the information to be relied upon. Language which fails to identify information with “sufficient specificity” and which fails to “unambiguously” set forth information may fail to comply with s 424A(1)(a): e.g. MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.

46 The argument for the Appellant is that the 28 July 2008 letter put him on notice that the information previously set forth in the letter could be used merely for the purpose of making a finding that the Appellant did not fear persecution as claimed. The contravention arose — so it was argued — because the letter did not state that the information could also be used for the purpose of making a finding as to credibility.

47 The argument is rejected.

48 It is considered that the 28 July 2008 letter, when read in its entirety, is unquestionably a letter which sets forth information upon which a conclusion could be reached that the now Appellant did not fear persecution in Australia and that the reason why he came to Australia and remained in Australia was his belief as to “how much money [he] could make in Australia”. All of the “particulars of the information” set forth in that letter are matters raised in the very context of questioning the credibility of the claims of fear of persecution being made. There is considered to be no uncertainty that the letter was inviting the Appellant to comment or respond to the information “because it could lead the Tribunal to find that you did not fear persecution in China, as presently claimed”.

49 It is not considered that the letter can be read in any way other than inviting the Appellant to comment upon the information set forth because the Tribunal was questioning the Appellant’s credibility.

50 Although it may well have been preferable for the 28 July 2008 letter to have expressly put the Appellant on notice that an adverse finding as to credit may be made, the failure to do so does not constitute a contravention of s 424A(1)(b). The letter cannot be read as anything other than an invitation to comment or respond to the concern of the Tribunal that the claim of the now Appellant to be a refugee because he feared persecution was a claim that could not be believed.

51 The obligation imposed upon the Tribunal to “ensure, as far as reasonably practicable, that the applicant understands why [the information] is relevant to the review” was, in the present proceeding, discharged by the 28 July 2008 letter. Although s 424A(1)(b) imposed that obligation upon the Tribunal, it should also be noted that there is little doubt that the now Appellant in fact clearly understood that his credibility was in issue. His careful response to the letter, prepared by his legal representatives in their letter dated 5 August 2008, thus makes reference on a number of occasions to his honesty. The need to address the honesty — and hence the credibility — of the now Appellant was thus understood. The letter in response, for example, thus states in part:

In our submissions the manner in which the applicant behaved when he was detained is indicative of how honest the applicant has been throughout this matter

…

Submissions

When presenting his evidence, the applicant has provided an honest account of his claims and has not sought to exaggerate or embellish any of his claims. …

52 Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

53 In the present proceeding, the information set forth by the Tribunal in its 28 July 2008 letter has been identified with such detail that it was readily apparent that the Appellant’s response was being sought as to how that information could be compatible with a genuine claim to fear persecution. There is no uncertainty that what was being sought was his comment as to how he could credibly be claiming to fear persecution in the light of the information set forth.

54 Having reserved the question as to whether leave to amend the Notice of Appeal should be given, it may perhaps matter little to the Appellant whether leave should be refused or whether leave should be granted and the present Ground of Appeal dismissed. The latter, however, is considered to be the preferable course. Leave to amend the Notice of Appeal to rely upon a breach of s 424A(1)(b) of the Migration Act 1958 (Cth) is thus granted but that Ground is dismissed.

55 A further and independent argument advanced on behalf of the Respondent Minister to oppose leave being granted to now place reliance upon s 424A(1)(b) thus need not be resolved. But it is considered to be an argument which has considerable merit. The argument seizes upon the tripartite obligation imposed by s 424A(1) — i.e. to “give clear particulars of any information”; to “ensure” as far as is reasonably practicable that the applicant understands why that information is relevant; and to “invite” the applicant to comment or respond to the invitation. The requirement imposed by s 424A(2), so the argument proceeds, only fastens upon s 424A(1)(a) and (1)(c). The manner in which the Tribunal discharges the obligation imposed by s 424A(1)(b) can thus extend to both that which is set forth in a letter given to an applicant under s 424A and also that which may occur during the course of a hearing before the Tribunal. Apparent deficiencies in a letter, upon such an approach, may well be removed when a review is undertaken of that which has occurred during the course of a hearing when the relevance of information may then have been clearly and unambiguously communicated to the applicant. Upon such an approach, it would not be possible to determine whether there has been a breach of s 424A(1)(b) without considering both the terms of the letter and any previous discussion of the material at the hearing.

56 In the present appeal, no attempt was made by the Appellant to adduce any evidence as to what transpired at the hearing, other than to rely upon the account given by the Tribunal in its reasons for decision. But that account was said, on the Minister’s behalf, to be so incomplete that no finding as to contravention of s 424A(1)(b) was possible.

Section 425

57 Leave is also sought to amend the Notice of Appeal to rely upon an alleged breach of s 425 of the Migration Act 1958 (Cth).

58 Section 425 provides as follows:

Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

59 The Appellant’s proposed argument as to a contravention of s 425 focuses upon:

· the delegate’s acceptance that the Appellant was a Christian;

· the Tribunal’s finding that it was not satisfied that he was a Christian; and

· an alleged failure to specifically put the Appellant on notice that the delegate’s findings were in issue.

60 By reason of s 425, an applicant before the Tribunal is entitled to assume that issues considered dispositive by a delegate are the issues which arise in relation to the decision under review — unless the Tribunal takes steps to notify the applicant to the contrary: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there observed:

[29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone [Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 to 592]. The Full Court (Northrop, Miles and French JJ) said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)

Their Honours continued:

[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

See also: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 at [18] to [21], 106 ALD 525 at 529 per McKerracher J. Section 425 imposes an important mandatory obligation which is more than a mere item on “a procedural check list”: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138, 172 FCR 1 per Gray J at [8], per Gyles J at [37].

61 So much was obviously not put in issue by Senior Counsel for the Respondent Minister; but it was his submission that the proposed Ground suffered from a number of difficulties.

62 First, there was no evidence adduced at the hearing before the Federal Magistrate as to what was or what was not put to the now Appellant during the course of the Tribunal hearing. Nor was any such evidence sought to be adduced on the hearing of the present appeal.

63 Reference to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed:

[21] We cannot accept this submission, for several reasons.

For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [sic] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.

Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, “simply made its comments based on the particular facts of that case”: SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32], 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30], 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.

64 The difficulties adverted to by the Full Court in NAOA are only compounded in the present appeal when attention is directed to the Tribunal’s reasons for decision and its account as to that which occurred during the course of the three hearings — the first being held on 23 June 2008, the second on 10 July 2008 and the resumed hearing on 24 July 2008. The first hearing took some 3 hours, the second some 2.5 hours and the third some 2 hours. Notwithstanding the length of each of the hearings, the Tribunal’s summary of that which occurred was somewhat brief. No criticism is made of the Tribunal in so summarising the events that took place before it. But the very fact that the summary provided is necessarily so brief renders it very unsafe in the present proceeding to draw any inference that a particular issue was not addressed because it is not mentioned in the summary provided.

65 Second, if a process of inference were engaged in, it would tell against the Appellant.

66 Submissions advanced on behalf of the Appellant after the conclusion of the hearing thus addressed the question as to the Appellant’s religious practices, including a submission stating in part as follows:

In this matter, if you find that the applicant is a genuine Christian who is opposed to practicing [sic] his faith outside the State sanctioned religious institutions in the PRC, you must assess the extent of this commitment and whether he has a well-founded fear of being harmed as a consequence of his commitment to the practice of his faith in this manner.

The Tribunal has been presented with a considerable amount of evidence from people who know the applicant in Australia and who knew him in the PRC. This evidence has been to the effect that the applicant has engaged in the practice of his Christian faith outside the confines of the State sanctioned religious institutions in the PRC for most of his life. With the exception of a brief period in Australia, the applicant has always practiced his faith publicly by attending religious services. The evidence of Rev. Lawrence in this regard is that the applicant has been a regular attendee at his church for more than 7 years.

In our submission, the Tribunal ought to accept that the applicant is someone who has demonstrated a commitment to practicing his faith outside the confines of the State sanctioned religious institutions in the PRC and that he would continue to practice his faith in this manner in the future, even if he were returned to the PRC.

If an inference were drawn, it would be an inference that the now Appellant recognised that an issue needing to be addressed was whether or not the Tribunal should find that he was “a genuine Christian”. Attempts by the Appellant to characterise this and other such submissions as more directed to the nature of the religious activity practised, as opposed to whether or not the Appellant was a genuine Christian, are rejected.

67 The present facts would also appear to stand in contrast to those in SZBEL where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed:

[3] … At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be ‘implausible’… [2006] HCA 63 at [3], 228 CLR 152 at 155.

Contrary to the case sought to be advanced on behalf of the Appellant that he was denied the opportunity guaranteed by s 425 by not having the question as to the genuineness of his faith specifically put to him, upon a fair reading of the Tribunal’s reasons (cf Liang, supra) it emerges that the Tribunal did “challenge” the Appellant’s account. The reasons for decision of the Tribunal thus recount the following exchange:

[96] … I also mentioned to the applicant that it was of concern to the Tribunal that he did not tell his agent his real name or that he was in fear of religious persecution. It was also of concern to the Tribunal that he did not attend church until 15 November 2000, even though he arrived in Australia in June 1999. I mentioned to the applicant that a chronology of his applications indicated that he had exhausted all lines of application by August 2000. The applicant stated that he did not know his application had been rejected. I mentioned to the applicant that it was difficult for the Tribunal to understand why he did not attend the church before November 2000 given his claims of being a committed Christian. I mentioned to the applicant that he told the Tribunal that the reason he attended an underground church in China was because he valued the community spirit which was not available at the official church. I mentioned to the applicant that if that was the case it was difficult to see why he did not seek that out as soon as he arrived in Australia where he could do so freely. The applicant stated that he had no Christian friends so he worshiped [sic] on his own.

[97] I discussed with the applicant section 91R(3) of the Act. The applicant stated that he did not go to church with the intention of enhancing his refugee claims.

68 It is thus considered that the proposed new ground seeking to rely upon a contravention of s 425 has insufficient merit to warrant leave being granted to amend the existing Notice of Appeal.

69 Moreover, if the proposed Ground were to be pursued, there would be a need to resolve as a factual issue the question as to what was and what was not put to the now Appellant during the course of the Tribunal hearing. A submission advanced on behalf of the Respondent Minister by his Senior Counsel as to prejudice should the Ground be entertained is not to be dismissed lightly. Prejudice is claimed by reason of a lost “opportunity to call evidence to rebut the proposed allegations about what issues were raised and how they were raised at the Tribunal’s three hearings”. It is appropriate to refuse leave to amend where “it may be unfair to the respondent, who may have been able to call evidence at first instance to rebut the proposed allegations, if they had been made at that stage”: Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222 at [2] per Tamberlin, Madgwick and Hely JJ. Leave to amend should also be rejected on this further basis.

70 Even if leave were granted, the proposed Ground would be rejected.

Conclusions

71 The Appeal is to be dismissed. The written outline of submissions as filed on behalf of the Respondent Minister seeks costs. The Appellant accepted that if the appeal was to be dismissed, there was no reason why costs should not follow the event. Although the Minister may not have prevailed in respect to all of the contentions sought to be advanced in his Notice of Contention, he has substantially prevailed. The appeal is thus to be dismissed with costs.

72 It remains unnecessary to resolve further submissions advanced, including submissions as to the manner in which the Federal Magistrate exercised his discretion to decline relief.

ORDERS

73 The Orders of the Court are:

1. The time within which the First Respondent is to file a Notice of Contention be extended to 20 April 2009 pursuant to Order 52 r 22(3)(a) of the Federal Court Rules 1979 (Cth).

2. Leave be granted to amend the Notice of Appeal so as to allege a breach of s 424A(1)(b) of the Migration Act 1958 (Cth).

3. Leave be refused to amend the Notice of Appeal so as to allege a breach of s 425 of the Migration Act 1958 (Cth).

4. The Appeal is dismissed.

5. The Appellant is to pay the costs of the First Respondent.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 15 May 2009

Counsel for the Appellant:	Mr S E J Prince (Pro Bono)

Counsel for the First Respondent:	Mr S Lloyd SC with Ms S A Sirtes
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	27 February, 20 April 2009

Date of Judgment:	15 May 2009

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