SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129

FEDERAL COURT OF AUSTRALIA

SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – alleged error not raised before primary judge Allesch v Maunz (2000) 203 CLR 172 applied Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 applied H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 applied Khan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 47 cited Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 199 cited SLMB & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 853 of 2003 BRANSON, FINN & FINKELSTEIN JJ 13 MAY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 853 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SLMB, SLNB, SLPB & SLQB

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BRANSON, FINN AND FINKELSTEIN JJ

DATE OF ORDER: 13 MAY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Leave to amend the notice of appeal be refused. 2. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 853 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SLMB, SLNB, SLPB & SLQB

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BRANSON, FINN AND FINKELSTEIN JJ

DATE: 13 MAY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT: 1 The appeal in this matter relates in substance to the first appellant who has applied unsuccessfully both for what has been described as a 'Close Ties' visa (ie a subclass 832 visa) and for judicial review of that decision under s 39B of the Judiciary Act 1903 (Cth). We will refer to her as the appellant, the remaining three appellants being her husband and their two children whose own applications stand or fall with the appellant's. 2 The criteria the appellant had to meet at the time of her application was in the following terms: '(4) An applicant meets the requirement of this subclause if the applicant: (a) has turned 18; and (b) ceased to hold a substantive visa before turning 18; and (c) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia.' 3 The appellant is a citizen of Fiji who was born on 14 July 1957. She was enrolled at and attended a boarding school in Sydney from February 1972 to December 1974. It appears that she departed Australia prior to her 18th birthday. For these reasons it was not in dispute in this proceeding that she satisfied subpars (a) and (b) of the above criteria. 4 The application to the Migration Review Tribunal ('the Tribunal') was rejected on the basis that she did not satisfy the criterion of subpar (c). Her judicial review proceedings were dismissed by the primary judge on the basis that no jurisdictional error attended that conclusion. 5 Two days prior to the day set for the hearing of this appeal, the appellants filed an amended notice of appeal which both deleted all previous grounds raised and which raises a new ground relating to a matter not argued before the primary judge. It was that: 'His Honour Judge Mansfield erred in not finding that the Tribunal committed jurisdictional error of law by failing to make a finding on an issue which was an essential prerequisite to the exercise of its jurisdiction: namely, what the Minister regards as the applicant's formative years.' 6 Leave was sought to make this amendment and also to make a parallel amendment to the original application for judicial review. Though accepting this Court may grant leave the respondent Minister opposed that course on the basis that it was not expedient in the interests of justice for leave to be given: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. After hearing the parties on the matter we refused the leave sought. The following are our reasons for refusing leave and for dismissing the appeal 7 By way of background to the question of leave we need to note the following: (i) The particular subclass of visa sought by the appellant is entitled 'Close Ties' in the schedules to the Migration Regulations: see Sch I Item 1119(4); Sch 2, subclass 832. (ii) The formula used in subpar (c) of the visa criteria relating to 'the applicant's formative years in Australia' was not judicially considered for the first time in the present matter. It was explained by Lindgren J in Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 199 at [13]‑[18]. A like formula, though used in relation to an earlier version of the subclass, was discussed by Whitlam J in Khan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 47. (iii) As the appellant acknowledged, most of the information supplied by the appellant in support of her application was entirely irrelevant to criteria that she needed to satisfy. It was only at the Tribunal hearing that submissions and material bearing on subpar (c) were provided and these were of the most slight character. The submission, made by her migration agent, simply asserted that the appellant 'considers Australia as her home and has developed a sense of identity during her formative years in Australia'. The documentary material comprised (a) a hand written letter from a person who was at school with the appellant in Sydney stating that the writer had known the appellant for 30 years; (b) a letter from the appellant's school certifying the period of her attendance there; and (c) the appellant's school record. We would emphasise that that material was provided in response to an explicit request from the Tribunal prior to the hearing (which was probably made under s 359 of the Migration Act) that the appellant provide: 'Any further evidence that you wish to provide in relation to your claim that before turning 18, you spent the greater part of your formative years in Australia.' (iv) The Tribunal's appreciation of the requirements of the subpar (c) criterion was expressed in the following manner: '24. The crucial question is what is meant by the expression "formative years". The term is not defined in the Migration Regulations. Under policy (as expressed in Migration Series Instruction No 10 at the time of application, and which at the time of decision, has now been replaced by PAM 3), a person who has spent the greater part of their life in Australia between the ages of 5 and 18 years may without further enquiry be regarded as satisfying the requirement to have spent their formative years in Australia. In all other cases the period which constitutes a person's formative years will depend on the person's particular circumstances. In other words, an assessment of a person's formative years is not merely a mathematical calculation. Rather the term is taken to mean those years in which the person formed a sense of identity and connection with a place in the world. In the case of a person who has spent their formative years in Australia, could be expected to have developed significant ties with the Australian community.' 8 It is unsurprising given both the volume of irrelevant material before it and the paucity of relevant material that the Tribunal was not satisfied that the appellant had met the subpar (c) criteria. We will return to this. 9 Turning now to the proposed amendment, its apparent object was to challenge, first, the correctness of the decision of Lindgren J in Nafeh in the interpretation there placed on what subpar (c) does or does not require and in particular on the conclusion (at [18]) that: '… the Criterion does not require, at peril of legal error, the decision-maker to identify expressly a particular period to which he or she applies the 'greater part' test.' The Tribunal's decision in turn was impugned because it accorded with that conclusion. 10 It may be accepted for present purposes that the burden of this particular criterion and the nature of the evidentiary inquiry it can mandate are not altogether free from uncertainty, if only because of the imprecision in the formula 'greater part of … the applicant's formative years' itself. But whether or not the criteria should be construed in the manner proposed by the appellant is not something which we consider we should entertain on this appeal. 11 Accepting that an appeal to this Court is now to be regarded as an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; it nonetheless is necessary to show error in the judgment appealed from: Allesch v Maunz (2000) 203 CLR 172 at [22]. For reasons we give below we are not satisfied that the primary judge erred. 12 There are obvious reasons why an appeal court should demonstrate reluctance in entertaining an allegation of error where the issue said to give rise to that error was not raised before the primary judge. As is well accepted, an alleged error will not be allowed to be raised where, had the issue been raised before the primary judge, evidence could have been given which might have prevented the point from succeeding: see generally H at [6]. Such cases apart, it is for this Court to determine whether it is expedient in the interest of justice that the issue should be argued and decided. 13 In relation to that matter we would reiterate what was said by Branson and Katz JJ in H (at [8]): 'In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.' 14 It is clear that the Tribunal was not supplied with information from which it could have reasonably determined what it regarded as being the appellant's 'formative years' notwithstanding that it expressly requested such information from the appellant. Counsel for the appellant has conceded as much. While the appellant did not seek to argue that the Tribunal was obliged to search for further evidence on this issue, it nonetheless contended that if it had conducted the hearing in light of what is said to be the correct interpretation of the subpar (c) criterion, further relevant material may have been elicited. We note in passing that there is no evidence at all before us as to what transpired at the Tribunal hearing relating to the questioning of, and the evidence given by, the appellant. 15 We cannot accept the above submission. The Tribunal was put in a position, because of the information provided to it, which preordained that it would not be satisfied that the appellant met the criterion. Even assuming that the construction proposed to be contended for by the appellant is correct – and we express not view on this – it related to a matter which, given the state of evidence, the Tribunal did not have to address. It may well be that, if given a further opportunity to have her application considered by the Tribunal, the applicant may be able to adduce evidence sufficient to satisfy the Tribunal to the contrary. It is not the purpose of the appellate process simply to provide an appellant with a further opportunity to present a case which he or she had previously omitted for whatever reason to advance. 16 We are satisfied, furthermore, that the primary judge committed no appellable error where he concluded that the Tribunal identified the issue which it was required to address by subpar 4(c), that it properly addressed that question and did not misdirect itself in law in the manner in which it addressed that question, and that the conclusion which it reached was one available to it. 17 It was for the above reasons that on 13 May 2004 we refused leave to amend the notice of appeal. The appellant advanced no submissions in support of the grounds stated in the original notice. We were satisfied, as we have indicated, that no appellable error was disclosed. 18 Accordingly, we ordered that the appeal be dismissed with costs, with reasons to be published today. These are the reasons for the orders made on 13 May 2004. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Finkelstein.