JUDICIAL DISCRETION IN APPEALS

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In the recent Federal Court decision of Somjich v Minister for Home Affairs [2019] FCA 1921, it was found that the courts can consider grounds of appeal not raised or included in earlier proceedings.

How did this come to happen?

It has been stated in earlier cases that the courts maintain the discretion to allow a new argument to be raised in an appeal if it is proper to do so in the interests of justice. This was used in rejecting such an effort in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, where it was stated that leave to argue a new ground of appeal, that was not put before the primary Judge prior, should only be granted if doing so is in the interests of justice.

In this recent case of Somjich v Minister for Home Affairs however, the opposite was determined.

So why was this case exceptional?

The Judge in this matter stated that the Administrative Appeals Tribunal at first instance had not considered crucial evidence regarding relevant family violence evidence in this migration matter. Previous cases which considered amended appeals, such as VUAX v Minister for Immigration as above, were unsuccessful or alternatively had special circumstances such as self-represented appellants. This case in particular considered the fact that circumstances of the case can be such to warrant leave to appeal on new grounds even when previously legally represented. To further elaborate, the Judge considered the grounds of appeal based on evidence that was not considered at the review and was satisfied that the Tribunal failed to consider the relevant evidence, and that the Tribunal’s error was ‘material and jurisdictional’.

What are the implications of this?

The implications that arise from Somjich v Minister for Home Affairs elevate what is best in the interests of justice. The decision from this case may provide some relief for appellants arguing different evidence on appeal, and works in favour of procedural fairness for individuals faced with the justice system.


Rodney Sahay is a highly knowledgeable Lawyer and Migration Agent with over 30 years of experience in representing clients in their Court appeals. Co-author, Ryan Meehan, is a Law Graduate gaining invaluable experience in a wide variety of legal practice areas.

Category: All / Migration