S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 2) [2006] FCAFC 98

FEDERAL COURT OF AUSTRALIA

S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 2) [2006] FCAFC 98 APPLICANT S1152 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NSD5 OF 2006 EMMETT, STONE & BENNETT JJ 8 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT S1152 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: EMMETT, STONE & BENNETT JJ

DATE OF ORDER: 8 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) the appeal be dismissed; (2) the appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT S1152 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: EMMETT, STONE & BENNETT JJ

DATE: 8 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

EMMETT J 1 Only one ground of appeal remains on foot after the Court rejected the appellant's application for leave to amend earlier today. When pressed, counsel for the appellant indicated that he could not succeed on the remaining ground and sought leave to make a further amendment to the amended application. The appellant was given time to formulate the new grounds and, following the adjournment, a proposed amended notice of appeal was provided to the Court. That was provided on the basis that the original application to the Federal Magistrates Court should be amended to reflect those as grounds upon which review of the decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'), was sought by the Federal Magistrates Court. 2 Once again, for the purposes of the application for leave to amend, we accepted the three affidavits to which reference was made earlier today (see [2006] FCAFC 97). Counsel for the appellant advanced the following relevant questions for consideration by the Court in deciding whether or not to grant leave to amend: (1) Do the new legal arguments have a reasonable prospect of success? (2) Is there an acceptable explanation of why they were not raised below? (3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? (4) What is at stake in the case for the appellant? (5) Will the resolution of the issues raised have any importance beyond the case at hand? (6) Is there any actual prejudice, not viewing the notion of prejudice narrowly to the respondent? (7) If so, can the prejudice be justly and practicably cured? (8) If not, where, in all the circumstances, do the interests of justice lie?