BRT19 v Minister for Home Affairs

The applicant's submission 18 As noted above, the applicant filed an affidavit in support of his application for an extension, which relevantly provided the following basis: The Facts The Appellant is without liberty and was unrepresented at all relevant times. The Appellant is restricted to limited resources. The Appellant is unable to have [indecipherable] Form 67 Form 121 witnessed by JP because they are only available every Tuesday of the week at 3pm. The Appellant apologises to the Honourable Court for any misunderstanding and inconvenience that may impact the proceedings of this matter. 19 On 12 February 2020, the applicant filed a submission which was in the following terms (any errors as they appear in the submission): Grounds of appeal 1) I will like the Honourable Judge to take into consideration the fact that at the time of my assessment i had been wrongfully accused of a crime i did not commit and further more unfairly placed under 501 while the charge against me was still a case on going in court and the disregard for the fact that i have also never been to jail. I was dissappointed in the abuse of power by the VACCU, depressed and confused. The previous judge failed to take into account without empathy the relevant adverse effect and consequence that improper use of authority impacts on individuals. I almost lost my faith and confidence in the administration of justice. After several months i was a bit relieved when the court finally found me innocent and that case got dismissed. 2) As it states in the decision record..."i was confused" .I realise not everything said at the interview appeared on paper and some choice of words used on paper did not accurately convey the exact meanining intended. The audio recording at the interview is a vital source of oral evidence which should have been taking into account at all stages because the written record mainly expressed the aat perception of the interview by including what they want and excluding what they dont want on paper, i even had difficulty remembering my own fathers real name which was not mentioned afterwards. I was totally cofused about various things for various reasons not only the dates i attended school as indicated.I was unprepared and confused recalling details of events from the past that i decided to forget ever happened.I was only trying to tell the whole trith of my story, provide facts and rough estimates of everything i could remember and not remember properly at different times and in different ways without much focus on accuracy because i was not prepared and didnt know it was going to be used against me as incosistencies. The judge failed to recognise and take into account the relevant consideration of the benefit of doubt that i was giving all the actual facts i could remember over a period of 9 and more years whether it was inconsistent or not. It is a breach of ethics, error of law and improper exercise of power in bad faith to accept that i was confused about dates but acknowledge that i was confused through out the whole interview. 3)The previous judge failed in properly analyse the decision made by the aat,which was only based on a bias moral judgement of the decision maker on a few inconsistecies without any reasonable factual evidence to support that decision. The judge also failed to recognise that the presence of evidence for the dates i attended schoool corrected in inconsistencies with the dates but proves that i attented those schools and that in the same manner the presence of proper anlyses,investigation and evidence would have corrected the other incosistencies they relied upon in making a negative decision. 4) In my previous assessment i referred the judge to the choice of words and the harsh change in tone of expression used by the decision maker after the paragragh i indicated that the ongoing charge against me in court was fabricated. The judge failed in understanding the perspective and consider the relevance and sensitivity of the matter as a ground of appeal. Our moral judegment, decisions and reactions flow from our intuitions and emotion. We use reason to explainand justify our intuitive response to moral circumstances. The decision maker intuitively assumed that i did commit the crime and like any other sex offender/criminal will sooner or later be found guilty in reaction to the statement that the case against me was fabricated. Moral Judgement was impaired by the thought of a sex offender hence forth influecing the decision making process. 5) I requested for the interview to be posponed for more than one reason but that request was refused. Referring to one issue with the term especially doesnt mean the rest of the issues dont exist.There was a judicial error in failing to recognise the aspect of pluralism and proceeding with a narrow minded perception. 6) Finally i requested my presence in court on the day of hearing but my request was overlooked and ignored. I was made to to have a video conference with the court, which made the decision making process unclear and seem prearranged to me. Therefore the procedure required by law to be observed in connection with the process of making the decision was not observed. 20 The applicant also filed, by way of fax to registry on 12 February 2020, an additional bundle of material in support of his application. 21 The respondent opposed the receipt of the additional material. 22 There were primarily three bases advanced: the material was not before the Tribunal or the primary judge; when the applicant asked for the adjournment before the Tribunal it was not related to this material but was on the basis of material from the Ghanaian Police Force to confirm the fact that he provided information to them in relation to a particular person; and the documents address credibility concerns after the Tribunal has made its decision, and so are of such low probative value, they did not warrant being admitted into evidence. 23 The additional material is comprised of three documents: an affidavit from the applicant's mother sworn 2 December 2019 including a copy of the applicant's birth certificate; a letter from Legal Counsel for the applicant's family dated 9 December 2019 stating that the police confirmed that the applicant had assisted in 2005 and they were unable to confirm that they are able to provide any special assistance for him if he returns to Ghana; and a letter from the Ghana High Commission dated 23 December 2019 asking the Court to take this material into account on the appeal. 24 The applicant's attempt to rely on this evidence must be considered in the context of the limited role of this, and the Federal Circuit Court. 25 The Federal Circuit Court could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court's appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither Court has the jurisdiction to consider the factual merits of the Tribunal's decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21] per Derrington J. 26 This Court may, in limited circumstances, receive fresh evidence on appeal from a decision of the Tribunal: s 27 of the Federal Court Act 1976 (Cth) and r 33.29 of the Federal Court Rules 2011 (Cth). However, given the limited nature of the hearing before the Federal Circuit Court, fresh evidence cannot be adduced on review to contradict evidence before the Tribunal; demonstrate an error of fact by the Tribunal; nor invite this Court to make findings of fact, turning the application in this Court to a merits review: Ozberk v Minister for Immigration and Multicultural Affairs [1998] FCA 12; (1998) 79 FCR 249 per Marshall J; AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [33] per Bromwich J; CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 at [46]-[48] per Griffiths J. 27 The additional material does not fit the description of the material that formed the basis on which the applicant applied for an adjournment before the Tribunal. While the documents post-date the Tribunal's decision (the decision having been made on 19 March 2019 and the documents being dated from 2 December 2019 onwards), there has been no explanation as to why this material (or the information contained within) was not, or could not have been obtained earlier. It was not before the delegate, the Tribunal or the primary judge. This is in the context where the deponent of the underlying affidavit is the applicant's mother (the High Commission relying on that document). Even accepting the difficulties faced by an unrepresented applicant, it has not been established that this material could not have been provided to the Tribunal. I note also the basis of the content of the applicant's mother's affidavit is not specified in that affidavit, and given the nature of content, it is to be inferred in those circumstances any information is likely to have come from the applicant. It is brief and its contents, including in relation to any threat, are in very general terms. For example, there is no reference to any threats made or actions taken, where if the deponent had such evidence it would have been expected to have been included. In any event, as the respondent submitted, the documents address credibility concerns held by the Tribunal. Even accepting that, I note that the Tribunal based its decision as to credibility on a number of considerations, including that recited below at [44]-[46]. The material is really a plea to reach a different conclusion than that made by the Tribunal. That said, the fundamental issue for the applicant is that he is asking this Court to admit evidence in an attempt to show an error in the factual findings made by the Tribunal and in doing so, is asking this Court to revisit the findings made by the Tribunal. That would be to convert this into an impermissible merits review. It therefore could not alter the prospects of success on the application for an extension of time. The evidence is not admitted on this application.