EBC16 v Minister for Immigration and Border Protection

1. The application for an adjournment to permit the Appellant to file an amended notice of appeal dated 18 August 2017 be refused.
2. The appeal be dismissed.
3. The Appellant pay the First Respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 These reasons for judgment were made ex tempore at the hearing on 14 February 2018 and accompany the orders set out above. 2 This is an application made by the solicitor for the appellant, Mr Hodges, for an adjournment of the hearing of the appellant's appeal in order to permit the appellant to file an amended notice of appeal and further submissions in support of it. The basis for the application for an adjournment is, as I understand it, that the first respondent may be in possession of information concerning the "exceptional vulnerability" of the appellant, which it had regard to when it made an offer to the appellant to provide relevant assistance under a scheme called the Primary Application Information Service. 3 The Primary Application Information Service (PAIS) is a government funded service to help eligible, so-called "illegal" arrivals to apply for a protection visa. The benefits of the scheme include making available to the visa applicant, or the putative visa applicant, the services of a registered migration agent and other forms of assistance to enable the completion of relevant documentation, attending interviews and the like. It is apparent from information provided in an information sheet proffered by Mr Hodges that an assessing officer can consider a person eligible for PAIS based on information held in departmental systems and/or after observing, or being notified of, certain vulnerabilities. 4 As I understand it, the appellant wishes now, for the first time, to contend that, if the first respondent has in his possession any documents upon which he formed the view that the appellant was exceptionally vulnerable, those documents were required to be given to the second respondent, the Immigration Assessment Authority, pursuant to s 473CB(1) of the Migration Act 1958 (Cth). In his submissions, Mr Hodges, quite properly, agreed that if the first respondent has in his possession any such documents, they could be bland and irrelevant and that they are only possibly relevant. 5 In my view, those submissions highlight the entirely speculative nature of this application, because it is not clear whether any such documents exist, and, even if they do exist, whether they have any bearing on any conceivable issue relevant to this matter. 6 In any event, it seems to me that, as counsel for the respondent submitted, even if leave were to be granted, and the Court were to embark upon the mission of determining whether there were any documents meeting the description of the type relied upon by the appellant, and even if they were potentially relevant, that exercise, speculative though it may be, involves the making of an entirely new case. 7 For the reasons submitted by Ms Graycar on behalf the first respondent, that is something that the Court must not do. Those reasons include the following settled principles: (1) It is fundamental to the due administration of justice that substantive issues are ordinarily settled at trial, and not on appeal (Coulton v Holcombe (1986) 162 CLR 1 at 7). (2) Leave to argue a new ground of appeal should only be granted if it is expedient in the interests of justice to do so (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]). (3) Leave is more likely to be granted to permit fresh evidence to be raised on appeal where the new point turns only upon a question of construction or a point of law or the facts are not in controversy (Summers v Repatriation Commission (2015) 230 FCR 179 at [94]). (4) If a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken (Coulton v Holcombe (1986) 162 CLR 1 at 7 - 8. See also Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [37]). 8 Those considerations are of fundamental importance because, as was submitted on behalf of the first respondent, they go to the integrity of the appellate process and the requirement that this court exercise appellate, and not original, jurisdiction in cases of this kind (see Perram J's discussion in AAM15 v Minister for Immigration & Border Protection (2015) 231 FCR 452 at [14]). For those reasons, I refuse the application for an adjournment to permit the appellant to file an amended notice of appeal. 9 Having refused the application for an adjournment, what is left before the Court is a notice of appeal, dated 18 August 2017. It contains one ground only, and reads: Federal Circuit Court judge committed jurisdictional error when dismissing my case. 10 The particulars of that ground read: More details will be provided shortly. 11 I asked counsel for the appellant whether he wished to make any submission in support of that notice of appeal, and he informed the Court that he had no instructions to withdraw this appeal and he could not make submissions. 12 In my view, as the first respondent has submitted, the single ground is not particularised and is meaningless. It does not describe or specify any appellable error. 13 For those reasons, the appeal is dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.