FEDERAL COURT OF AUSTRALIA

MZZXJ v Minister for Immigration and Border Protection [2014] FCA 1210

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia given on 10 July 2014. That judgment was given on an application by the appellants for judicial review of a decision of the Refugee Review Tribunal dated 19 November 2013 in which the Tribunal affirmed the decision of a delegate of the respondent Minister not to grant the appellants Protection Class XA visas under the Migration Act 1958 (Cth) (“the Act”). The appellants’ application for judicial review in the Federal Circuit Court sought the quashing of the decision of the Tribunal and a writ of mandamus directed to the Tribunal requiring it to determine the appellants’ application according to law.

2    In disposing of the application adversely to the appellants, the Federal Circuit Court said:

Before the Court today, the first applicant repeated that the Tribunal did not look at his situation. He said that the Tribunal did not pay any attention to what he said and did not accept what he said. He said that if any proof was needed or any documents were needed, he could provide them. It appears that the first applicant is simply disagreeing with the findings made by the Tribunal. It appears that he is impermissibly seeking merits review. The nature of jurisdictional error was explained as far as possible to the first applicant. However, he was not able to identify any jurisdictional error in the Tribunal’s reasons for decision.

Contrary to the first applicant’s claims, the Tribunal did look at his situation. It considered his claims in some detail and, for reasons which it gave, it rejected those claims. The Tribunal’s reasons for rejecting the first applicant’s claims were open to it on the evidence. I am unable to detect any jurisdictional error in the Tribunal’s reasons for decision.

In relation to the first applicant’s offer to provide further evidence at some future time, the court is not in a position to reconsider the merits of the case, so further evidence would not assist in the present proceedings.

3    In their notice of appeal in this Court, the appellants specified one ground, namely, that the Federal Circuit Court failed to find that the Tribunal’s decision was –

… in breach of section 424A of the Migration Act 1958 (Cth) and, therefore, fall [sic] under jurisdictional error.

(a)    There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

It is apparent from the reasons of the Federal Circuit Court that this ground was not taken at that level. Conformably with that position, one of the orders sought by the appellants today is that leave be granted to them to include an additional ground of review of the decision of the Tribunal on the basis of jurisdictional error. The ground upon which the appellants now seek to rely, evidently, is the s 424A complaint to which I have referred.

4    In VUAX v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 158, the Full Court said at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

5    Neither in any material filed in support of the present appeal, be it affidavit or submissions, nor in anything which the first appellant has put to me this morning, is there any adequate explanation for the appellants’ failure to raise the s 424A point before the Federal Circuit Court. Further, when the first appellant was invited this morning to address me with respect to section 424A, he declined to do so.

6    There is nothing apparent from the facts of the case which would give rise to any suggestion of an issue under s 424A, in which circumstances, I am obliged to hold that the ground – if permitted to be taken – would have negligible prospects of succeeding. Together with the absence of any explanation for the appellants’ failure to take the point below, this leads inevitably to the conclusion that leave to rely upon this point should be refused.

7    That was the only ground relied upon by the appellants in their notice of appeal. It follows from the fact that leave to do so has been refused that the appeal must be dismissed.

8    I would add that the only submission made by the first appellant this morning was to contend that the judge in the Federal Circuit Court had been in error not to have granted him an adjournment so that he could produce more documents in support of his case. Although no such contention finds reflection in the ground upon which the appellants desire to rely on their Notice of Appeal, I would say that it has no substance. Her Honour in the Federal Circuit Court was, in my view, entirely correct in observing that the subsequent production of evidence would be of no assistance to the appellants in their project of seeking to demonstrate that a jurisdictional error was made by the Tribunal. I have no reason to take a different approach to the same point made by the appellants in this Court.

9    The order of the Court will be that the appeal be dismissed.

Associate:

Dated:    18 November 2014