Sirajuddin v Minister for Immigration, Citizenship and Multicultural Affairs

Consideration 7 The relevant principles for the grant of leave to rely on new grounds of appeal are well established and are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], where the Full Court said: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. [47] In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, 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. [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. 8 The first respondent opposed leave being granted on either ground, noting that no leave had been sought and there had been no explanation by the appellant as to why he should be permitted to run a new case on appeal. The first respondent did not suggest that it would be prejudiced by the new grounds, but submitted that in any event, the two grounds lacked sufficient merit to warrant the grant of leave. In the circumstances, whether leave is granted turns on the merit of the proposed grounds. 9 The first respondent's submission is accepted. 10 Before addressing the grounds, it is appropriate to refer to the Tribunal's decision. 11 The Tribunal noted that the delegate's decision to refuse the visa was contained within a letter that was emailed to the appellant, at his last nominated email address, on 26 July 2017. Further, the letter contained clear advice that the appellant was deemed to have received the letter on the date it was emailed and had a 21 day time limit to lodge any application for review. The Tribunal was satisfied that the appellant was lawfully notified of the decision in accordance with relevant statutory requirements. The Tribunal found that the prescribed period within which any review application could be made expired on 16 August 2017. Accordingly, the Tribunal had no jurisdiction to consider the application. 12 That decision is plainly correct. 13 An application to the Tribunal must be "given to the Tribunal within the prescribed period…": s 347(1)(b) of the Migration Act. That period is prescribed by the Regulations as 21 days after the day on which notice of the delegate's decision is received by the review applicant. The appellant did not file the application until 21 September 2017, outside that 21 days. As the appellant's application for review was lodged out of time, the Tribunal was correct to find that it did not have jurisdiction in the matter: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407 at [18]; Fahme v Minister for Home Affairs [2019] FCAFC 41; (2019) 268 FCR 394 at [20]. The Tribunal did not have the power to extend the time in which an applicant could seek review: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [83]; and see also Monga v Minister for Immigration and Border Protection [2019] FCA 286 at [17]; Herath v Minister for Immigration and Border Protection [2018] FCA 1273 at [33]; Al Titi v Minister for Immigration and Border Protection [2018] FCA 239 at [8]; Fahme v Minister for immigration and Border Protection [2017] FCA 614 at [35]. 14 Turning to the two grounds of appeal, which are accurately summarised in the first respondent's written submission. 15 The first ground alleges that the delegate fell into jurisdictional error (by misconstruing the Regulations and therefore making an error of law), with the result that there was "no decision at all" of the delegate. It alleges that the consequence is that the time to seek review of the delegate's decision never commenced running, and the Tribunal erred in finding that the application was out of time and that it did not have jurisdiction. 16 That proposition cannot be accepted. As the first respondent submitted, the Tribunal's power to review extends to decisions made in fact. That is, it extends to decisions purportedly made by a delegate but which involve legal error: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 at [21]-[32]; and see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [52]. Nothing in reg 4.10(1)(a) of the Regulations (with s 347(1)(b) of the Migration Act) is to the contrary. The time-period "starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received": reg 4.10(1)(a). 17 The second ground also alleges that the delegate's decision was affected by jurisdictional error, with the consequence that time to commence a review did not begin running. It is alleged there was a denial of procedural fairness. Although a different basis for the error is alleged, the same principle as that referred to in paragraph [16] above equally applies. 18 There is no merit in the two grounds of appeal, and as such, leave to rely on the new grounds is refused. 19 For completeness, I note that the primary judge concluded that the decision of the Tribunal that it had no jurisdiction is legally sound. I note also that there is no error alleged in the reasons of the primary judge. Nor can any error be discerned.

Conclusion 20 Leave is not granted to rely on the new grounds. Accordingly, the appeal is dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.