Discussion
8 The principle to be applied in migration appeals when leave is sought to run grounds not argued below was stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. The court there stated that leave may be granted if a 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. However, where there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave will ordinarily be refused.
9 I do not need to have regard to the fact that the failure to take the various points before the Federal Magistrate was not explained. This is because I am satisfied that neither of the two grounds stated in the notice of appeal has any merit. Accordingly, applying the approach stated in VUAX, I would not give leave to run either of those grounds on appeal. My reasons can be stated shortly. There are two principal reasons why the first ground of appeal has no prospects of success.
10 The first reason is that the use which a tribunal makes of country information will ordinarily be a question of fact or a finding within jurisdiction. The Full Court decisions in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [14]-[15] and SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 222 at 231, at [36] support that view. I am satisfied that the RRT's findings in the present case were findings of fact made within jurisdiction.
11 The second reason is that that RRT's rejection of the appellant's claims turned almost entirely upon its finding that the appellant was not a credible witness. Insofar as it relied upon country information, its finding was favourable to the appellant's case because the RRT accepted that some Falun Gong practitioners have been persecuted. There was nothing to show that even if there was any error on the RRT's part in the use it made of country information, such an error contributed to its decision; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [82] and [84].
12 There are three principal reasons why the second ground of appeal stated in the notice of appeal has no prospects of success. The first reason is that there is nothing in the notice of appeal to identify any item of country information which was not put to the appellant. Secondly, the country information the RRT took into account, as the reason or part of the reason for affirming the decision of the delegate, was information that was not "specifically about the applicant" and it therefore fell within the exception contained in s 424A3(a) of the Migration Act. Third, there was nothing to suggest that any relevant country information was not put to the appellant, cf Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 595, at [122].
13 It follows that I would not grant leave to raise either of the issues which the appellant seeks to run in her notice of appeal. Quite apart from that, I am satisfied that the decision of the RRT discloses no jurisdictional error and I can see no error whatsoever in the decision of the Federal Magistrate. Accordingly the order that I will make is that the appeal be dismissed with costs.