Whether An Arguable Case
12 In the appeal that was before the Court previously in respect of the orders made on 7 May 2007, the applicant raised two grounds of appeal. The first ground was that the Tribunal erred in its finding that the applicant could relocate, claiming that the Tribunal erred in finding that relocation was a reasonable and feasible option for the applicant. The second ground was that the federal magistrate erred in dismissing the ground of review challenging the adequacy of the Tribunal's findings in relation to State protection.
13 As to the second ground, the applicant has not identified, with any specificity, any jurisdictional error on behalf of the federal magistrate. Indeed, on a proper review of the federal magistrate's decision, I can find no basis upon which to conclude that the learned federal magistrate erred in accepting the Tribunal's findings in relation to State protection. As the learned federal magistrate found, the Tribunal considered in detail the applicant's claims and there is no proper basis to conclude otherwise.
14 The first ground raised was included in the original application for judicial review and supporting affidavit, but was not pursued or ventilated before the federal magistrate. Accordingly the applicant would need leave to rely upon that ground, it being effectively abandoned before the Federal Magistrates Court. In Metwally v University of Wollongong (1985) 60 ALR 68, the High Court unanimously held that:
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 has 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.
See also Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [61]-[62] per Gyles J.
15 In Water Board v Moustakos (1994) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ held at 497:
More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
16 In the present case the applicant wishes to challenge the Tribunal's relocation finding. The first respondent submitted that it would be contrary to the interests of justice to grant leave to the applicant to rely upon the first ground of appeal. It submitted that, if it had been raised at first instance it would have been able, if desired, to obtain a transcript of the hearing in order to defend any challenge to the adequacy of the Tribunal's decision.
17 I accept that in the circumstances of this case, particularly bearing in mind that the applicant was legally represented at the hearing before the federal magistrate, the applicant should not be granted leave to rely upon this ground of appeal. Putting aside the issue of further evidence, there is a public interest in being astute to not allow points not argued below to be raised on appeal. I accept that there are instances where such arguments can be put, but this is not one of those cases.
18 Further, relocation was a separate additional finding made in relation to the harm the applicant claimed to face from certain persons. The Tribunal had already found that the circumstances leading to that harm no longer existed and would not be replicated in the foreseeable future. Therefore, there would be no basis upon which the applicant could succeed in setting aside the Tribunal's decision even if it was subsequently determined that the Tribunal fell into jurisdictional error in its consideration of relocation.
19 I should say that if the ground relating to relocation had not been abandoned before the federal magistrate and the question sought to be raised would, if successful, mean that the Tribunal's decision could be set aside, I would take a different view in light of the fact that the correctness and applicability of the leading authority of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 on the question of relocation seems to be before the High Court of Australia (see SZFDV v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCATrans 63). However, as I have said, no matter what the position is in relation to relocation, the Tribunal correctly made findings which would independently justify its decision.