CKG17 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Appeal 4 On 16 March 2020, the appellant filed a notice of appeal containing three grounds. 5 The first ground alleges that the IAA failed to consider a claim by the appellant (made explicitly or arising squarely on the materials) to be a person at risk of serious or significant harm as a family member of a victim of a human rights violation. He referenced the "victim" as his sister and the "human rights violation" as the "enforced disappearance" of his sister's second husband in 2009. 6 The appellant acknowledges that this alleged failure was not raised as a ground of judicial review in the Federal Circuit Court. He accepts that he requires the Court's leave to rely on it now in the context of this appeal. Even then, he seeks to advance this ground in the following amended form: Ground 1. The Authority failed to consider or otherwise made unreasonable findings in respect of the claim made by the applicant, or otherwise arising squarely on the materials, to be a person at risk of serious or significant harm as a family member of a victim of a human rights violation, being his sister in respect of the victim of enforced disappearance by the authorities or linked paramilitaries of his sister's her 2nd husband in August 2009. Particulars a. The credibility finding at [35-39] of the Authority's reasons, which was based on the applicant's claims about his brother in law, lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]. b. The Authority failed to intellectually engage with the consequences of a finding that the appellant's brother in law was likely subject to enforced disappearance for reason of imputed LTTE involvement. c. The Authority failed to make a finding as to who was responsible for the enforced disappearance of his brother in law in August 2009, and failed to deal with the consequences arising from an attribution of responsibility to the authorities. 7 In this modified form, the "victim" referenced is the appellant's brother-in-law (i.e., his sister's second husband). 8 The appellant does not press the second and third grounds of appeal. 9 The Minister opposes leave being granted to permit the appellant to rely on the first ground of appeal.

Should leave be granted? 10 The Minister submits that leave to argue a ground not raised in the proceeding below should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (VUAX) at [46] - [48]. In that appeal, the Full Court observed: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 11 In Han v Minister for Home Affairs [2019] FCA 331 (Han), Bromwich J said: [8] It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced. [9] The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process. [10] Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited. 12 After referring to the passage from VUAX quoted above, his Honour continued: [15] Plainly enough from the above passage in VUAX, merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. The issue of prejudice was not fleshed out in VUAX, and is of greater moment in cases of this kind … related to the scheme of Part 8 of the Migration Act and the practical reality that cases decided in the appellate jurisdiction of this Court will invariably reflect the final resting place for the issues and arguments ventilated. 13 In Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [94], the Full Court said that, generally speaking, the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: adopted in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79] and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [20]. 14 In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 the Full Court adopted the observation made by Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] that if in exercising its appellate jurisdiction the Court in substance determines a case at first instance, the structure of the Migration Act 1958 (Cth) regulating judicial review - which ensures one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court - is thwarted because no appeal lies to the High Court other than by special leave, which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). As Perram J said, if the new issue is effectively tried in this Court than the appellant is denied a layer of appellant scrutiny. 15 Therefore, as Bromwich J noted in Han at [18], it may be important to consider whether, irrespective of merit, leave should be refused because of other factors militating against the favourable exercise of the discretion to grant leave. 16 In the present case, the Minister submits that leave to rely on the first ground of appeal should be refused for six reasons: (a) If leave were to be granted, this Court would become the de facto trial court of the allegation raised with the only avenue of appeal being to the High Court. If the Minister were unsuccessful, he would be deprived of his right of appeal conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). This denial constitutes relevant prejudice. (b) Relatedly, if leave were to be granted, the statutory scheme (in which the relevant jurisdiction to determine whether the IAA's decision is attended by jurisdictional error is conferred on the Federal Circuit Court) would be defeated. (c) Other than in exceptional circumstances, a party should be bound by the way the proceeding at first instance was conducted. (d) No explanation (let alone a satisfactory explanation) has been given by the appellant as to why the contention now sought to be advanced was not raised in the Federal Circuit Court. (e) The contention now sought to be raised concerns, essentially, factual issues. (f) The contention now sought to be raised is without merit. 17 I am not persuaded that leave to rely on the first ground of appeal should be granted. I accept the Minister's submissions summarised in (a) and (b) above. As to (c) and (d), I accept that no satisfactory explanation has been given as to why the allegation in this ground of appeal was not raised in the Federal Circuit Court, bearing in mind that the appellant's solicitor who appeared in this appeal also appeared for the appellant in the judicial review application in the Federal Circuit Court. In oral submissions, the appellant's solicitor said that he had only received instructions from the appellant relatively shortly before the Federal Circuit Court hearing. Even if that be so, that explanation is not sufficient or persuasive. If the allegation that the appellant seeks to agitate on this appeal is apparent now, I do not understand how it could not have been equally apparent as a ground of judicial review at the time of the proceeding in the Federal Circuit Court. I see no reason why the appellant should not be bound by the way in which his application for judicial review was conducted. 18 In any event, I also accept the Minister's submissions summarised in (e) and (f) above. I accept that the allegation raised in the first ground of appeal is essentially about factual findings and is without merit.

Relevant findings by the IAA 19 Amongst other claims made, the appellant said that, in around 1999, he was concerned for his safety as many Tamil men were disappearing and being shot at. He travelled to Saudi Arabia to work, staying there from 2000 to 2007, making a brief trip to Sri Lanka in 2006. He returned to Sri Lanka in 2007 and lived with his sister and her second husband, who was a farmer. His sister's first husband was killed in 1992 during an incident between the Sri Lankan Army and the LTTE at the school where he was the school principal. The appellant said that his sister's first husband was an LTTE fighter. The IAA accepted these claims. 20 The appellant says that in 2009 his sister's second husband was abducted in a white van and has disappeared. The appellant says that, after this incident, his sister was harassed and received threatening phone calls. He said that this "caused him problems". He said that a number of times people came to their home and asked about his whereabouts and also asked about his younger brother who had moved to Qatar. 21 The appellant said that, in late 2009, he and a friend were taken by the CID to their office. The two were separated and the appellant was asked if he had any LTTE connections. He said he was questioned by CID officers about his farmer brother-in law and his whereabouts. He said that he was beaten by the CID while questioned and was released the next day on condition that he attended if asked to report. 22 The appellant said that following this incident he was fearful for his safety and stayed with relatives. 23 The IAA made the following findings in relation to these claims: 35. I accept as plausible that the applicant's second brother-in-law has been missing since 2009. In her affidavit his sister stated this occurred on 2 August 2009 and that she had made enquiries about his fate but she was not aware if he was still alive. In his invalid 866 application the applicant stated that once they heard he was still alive but did not receive further confirmation. The applicant stated at one point in his SHEV interview that his sister was told that her husband was dead. 36. The applicant speculated that his brother-in-law was abducted by a paramilitary group because at that time paramilitaries were abducting Tamils using white vans. The applicant has also advanced that the abduction may be revenge and that all the male members of his family have been targeted by the authorities who do not want any of them to survive. He stated that his brother-in-law was travelling between Trincomalee and Jaffna when he was abducted, which is not inconsistent with his sister's account that he was abducted at Mullipothane. There is no information before me to explain if there were any witnesses to the claimed abduction, or how otherwise the applicant or his sister became aware he was abducted in a white van and where and when this occurred. From the information before me I find it is speculation on the applicant's account that his brother-in-law was abducted. 37. The applicant advised that he had not seen his brother-in-law since late in 2008 as the brother- in-law spent a lot of time on his farm. I note that during 2009, disappearances were widespread, as this was at the height of the civil war fighting and there were many civilian casualties. Country information informs that in the last months of the civil war in 2009 "tens of thousands of Tamil[s]" were killed and considered together with the inconsistent accounts of whether his sister has been advised if her husband is alive or not, and the lack of any indication of any witness to the abduction that would account for them knowing the date and place this occurred, I have some doubts that this brother-in-law was abducted in a white van by paramilitaries, or other groups, as claimed. 38. However, I note that DFAT reported in 2014 that over 16,000 Sri Lankans remained missing or unaccounted for since 1990 and assessed that many are likely to have been members or supporters of the LTTE. DFAT advises that paramilitary groups also abducted people imputed to be associated with the LTTE. Considered together with the fact that his brother-in-law was a Tamil male it is plausible that he was connected with the LTTE or imputed as having an LTTE profile and abducted on that basis. 39. The applicant stated that after this his sister was continuously harassed and questioned about her second husband and that this caused problems for the applicant as people also asked about the applicant and his brother in Qatar. I note his statement that he does not know who these people were, but "they looked like people in authority or connected to the authorities. There was a number of groups operating at the time and it is too difficult to know who they were exactly". In her affidavit his sister stated that she was harassed by CID officers because of the acts of her husbands. I note that the sister refers to harassment by the CID specifically and, noting that she was the person who had the direct contact, I find that the "people" the applicant refers to in his statement are CID officers. I accept as plausible that his sister was questioned by the CID about her husband, and I accept as plausible that they asked about the applicant and his brother, noting the stringent security regime in place after the war. 24 In his particulars to the first ground of appeal, the appellant contends in particular (a) that these findings lack a logical basis. 25 In determining whether the appellant would be imputed as an LTTE member and of ongoing interest to Sri Lankan authorities, the IAA found: 42. In assessing whether the applicant was imputed as an LTTE supporter I give considerable weight to the fact that he was released by the CID without charge and there is no indication that he was monitored by the CID, and that he was able to obtain a passport in 2010 and travel legally to India in 2011 and return to Sri Lanka in 2012. I also note that he advised the Grama Niladhari (Village Officer) of his change of address, thereby providing information on where to contact him if the CID had wanted to question him further. The government maintained a strict security regime in the aftermath of the civil war and persons of concern for LTTE links were detained in rehabilitation centres. If the applicant had been perceived as having LTTE links, or been of concern because of the links of his relatives or the abduction of his brother-in-law I do not accept that he would have been released by the CID without charge, been able to obtain a passport in 2010 and travel overseas in 2011 and return to Sri Lanka in 2012 without coming to further attention. I do not accept that he was imputed as being an LTTE member and that he was of ongoing interest to the authorities. I do not accept that during this time the authorities, or informers or others connected to the authorities, came to the family home in search of him, and that he moved and stayed with relatives to avoid the authorities or these people. 43. I accept that he found the experience being interviewed and beaten by the CID in 2009 to be alarming and that he stopped work for a period. I accept as plausible that his mental health was poor and his family and friends had to look after him and that he stayed with various relatives and stayed mostly inside. However I do not accept that he was of interest to informers, the authorities, or those connected to them, and that he was living in hiding to avoid them. (Emphasis added.) 26 At [50] of its Decision Record, the IAA found: 50. I note his concern that as a Tamil and because of his family links to LTTE fighters he will be viewed with suspicion by the authorities and with being linked to the LTTE. The current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka provides guidance on the profiles of people at risk of harm and likely to be in need of protection and notes that family members of LTTE members may be at risk. However, I note that the applicant was questioned and beaten by the CID in 2009, but was released without charge and although this was on condition that he report to the CID if required again there is no indication that the CID sought to interview him again. The applicant has never been charged with any offences and was able to travel to and from Sri Lanka in 2011/2012. I find that the applicant has not been imputed with an LTTE profile on the basis of the LTTE links of members of his immediate and extended family. I have also had regard to the UNHCR Eligibility Guidelines comments that being of Tamil ethnicity alone does not give rise to protection needs, nor does living in the vicinity of former LTTE controlled areas. I find that the applicant did not have any links with the LTTE and has not been involved in any other activities that the country information indicates would cause him to be of concern to the authorities now. I do not accept that the male members of his family have been targeted by the authorities in acts of revenge. (Emphasis added.) 27 At [53] of its Decision Record, the IAA found: 53. Having regard to the general situation in Sri Lanka I find that the applicant would not face harm from the authorities in Sri Lanka on return for being a young Tamil male who had previous interactions with the authorities, nor for reasons of the LTTE links of immediate and extended family members. (Emphasis added.) 28 In determining whether the appellant is a "refugee" within the meaning of s 5H(1) of the Migration Act, the IAA found: 73. I have considered whether, when taken together, the totality of the applicant's circumstances will lead to a real chance of him suffering harm from the authorities, including; being a young Tamil male Hindu from the Eastern Province; his familial links to LTTE members; his civil war experience, including displacement, the death or disappearance of his relatives, the death of his father in an LTTE bombing targeting army soldiers, his mother's death from illness, the general harassment of Tamils by the army; ethnic violence in 2003 or ongoing harm as a result of the attack on relatives in 2003; the questioning and beating by the CID in 2009; the Karuna group job offer or ongoing harassment by paramilitaries; his asthma or depression; or for his illegal departure and asylum claim. However, considering the country information before me, I am not satisfied that there is a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future. I find that the applicant's fear of persecution is not well- founded. (Emphasis added.) 29 When determining the question of complementary protection, the IAA found: 77. I have found that there is not a real chance that the applicant faces harm on the basis of being a young Tamil male Hindu from the Eastern Province; his familial links to LTTE members; his civil war experience, including displacement, the death or disappearance of his relatives, the death of his father in an LTTE bombing targeting army soldiers, his mother's death from illness, the general harassment of Tamils by the army; ethnic violence in 2003 or ongoing harm as a result of the attack on relatives in 2003; the questioning and beating by the CID in 2009; the Karuna group job offer or ongoing harassment by paramilitaries or his asthma or depression. Noting that the Full Federal Court has held that the "real risk" test for complementary protection is the same standard as the "real chance" test, and based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons. (Emphasis added.)

Consideration 30 Before dealing with the appellant's submissions, it is necessary for me to note that the development of the first ground of appeal in both written and oral submissions did not always faithfully accord with the IAA's findings of fact. 31 Although expressing some doubt about whether the appellant's brother-in-law was abducted in a white van by paramilitaries or other groups as the appellant had claimed, and although finding that the appellant had speculated about that fact, the IAA nevertheless reasoned that it was plausible that the appellant's brother-in-law, as a male Tamil, was abducted because he was connected with the LTTE or had an imputed LTTE profile. 32 It is tolerably clear from the findings quoted above that the IAA accepted that the appellant's brother-in-law was abducted for the reasons given. The IAA did not make a finding as to who precisely made, or who precisely was responsible for, the abduction. Further, the IAA did not make a finding that the appellant's brother-in-law had been killed. It noted the conflicting evidence on that matter but nevertheless accepted that the appellant's brother-in-law had been missing since 2009. 33 In the course of submissions, I was also taken to passages from a statement and a statutory declaration made by the appellant, and an affidavit made by his sister, all of which were before the IAA. The appellant's solicitor made a number of submissions about how some of the statements in these passages should be interpreted and what facts should be drawn from them. It was, of course, for the IAA to make findings of fact. My review of the passages to which I was taken satisfies me that the claims made by the appellant and his sister in the relevant passages were accurately recorded by the IAA in its Decision Record. The submissions made to me about those passages at times involved considerable embellishment of what the appellant and his sister had actually said, and involved conjecture as to facts which, if they were facts, could readily have been stated by the appellant and his sister themselves. 34 As developed in submissions, the nub of the first ground of appeal is that the IAA fell into jurisdictional error when considering the appellant's refugee and complementary protection claims because, while the IAA considered that the applicant himself was not and would not be perceived as being involved with the LTTE, it did not consider the risks accruing to the appellant as a result of him being a family member of persons who were killed after the war because of being suspected of having, or imputed to have, an LTTE connection. 35 Thus, the appellant submits, he was not only a member of a particular social group (family members with imputed LTTE membership who had been killed for that imputation) but also a member of another social group (relatives of victims of human rights violations), and that his claims extended to the risk of being persecuted because he was a family member of persons (specifically, his brother-in-law) who, he said, had been killed because of suspected or imputed LTTE involvement. This case is reflected in the modified form in which the appellant seeks to advance the first ground of appeal with reference to particular (b) thereof. 36 Relatedly, the appellant submits that, in practical terms, it was not within jurisdiction for the IAA to make a finding that the appellant's brother-in-law was abducted without also finding that the abduction was "linked, authorised or condoned by the Sri Lankan authorities, whether that be the CID or government linked paramilitaries" having regard to the IAA's findings at [38] - [39] of its Decision Record (quoted above). This submissions appears to be the concern of particular (a) (noted above) and particular (c), which contends that the IAA failed to make a finding as to who was responsible for the enforced disappearance of the appellant's brother-in-law in August 2009. 37 Whilst contending that the appellant made no express claim as now formulated in the first ground of appeal, the Minister accepts that a decision-maker, such as the IAA, is obliged to consider a claim that emerges clearly from the materials before the decision-maker. 38 In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], the Full Court said: [58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 39 Here, the Minister accepts that the materials before the IAA raised, in substance, a claim to fear harm as a member of the social group identified in the first ground of appeal as now advanced. The Minister submits, however, that the IAA dealt with that claim and rejected it on the findings of fact it made. 40 I accept that submission. The appellant's claims in this regard were accurately set out in [17] of the Decision Record and dealt with by the IAA in [35] - [39]; [42]; [50] and [53]. The IAA's findings were incorporated in its conclusions on whether the appellant was a "refugee" and met the requirements of s 36(2)(a) of the Migration Act and whether the appellant met the complementary protection requirements of s 36(2)(aa). Therefore, even if the allegation in the first ground of appeal as now advanced had been raised as a ground of judicial review in the Federal Circuit Court, it could not have succeed so far as articulated in particular (b). 41 As to the remaining bases on which the first ground of appeal is advanced, I do not accept that the findings in [35] - [39] of the Decision Record lack a logical basis, as alleged. The contention is not tenable. As I have said, the IAA accurately recorded the appellant's claims and dealt with them. The IAA accepted that the appellant's brother-in-law was abducted either because he was connected with the LTTE, or because he had an imputed LTTE profile. Those findings were open to the IAA on the material before it. 42 I do not accept that the IAA erred by not finding that the appellant's brother-in-law was abducted by a paramilitary group, even though the IAA considered that to be a possibility. It was not incumbent on the IAA to reach a specific finding as to who was responsible for the appellant's brother-in-law's abduction. As the Minister points out, in his Irregular Maritime Arrival Entry Interview conducted on 11 January 2013, the appellant claimed not to know who had abducted his brother-in-law. In his statement made on 19 November 2015, the appellant revealed his suspicion that his brother-in-law was taken by members of a paramilitary group because, at that time, members of paramilitary groups were abducting Tamils using white vans. The IAA considered this suspicion in [36] of the Decision Record but obviously felt that it was unable to come to a more definite finding than it did in [38]. The appellant's sister's affidavit went no further than to state that her husband had been abducted by unknown persons of an armed group. The appellant's contention does not bespeak jurisdictional error on the part of the IAA, only a disagreement about the extent to which the IAA could have made findings of fact. 43 In oral submissions, the appellant also sought to attack the IAA's non-acceptance in [42] of the Decision Record that, in the period 2009 to 2012, "the authorities, or informers or others connected to the authorities, came to the family home in search of him, and that he moved and stayed with relatives to avoid the authorities or these people". The IAA gave cogent reasons for this finding. I do not accept that it can be said that this finding lacked a logical (or for that matter, rational) basis. 44 For these reasons, the first ground of appeal cannot be sustained by particulars (a) and (c).

Admissibility of evidence 45 The appellant sought to read an affidavit annexing an extract from the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 (HCR/EG/LKA/12/04) (the Guidelines). The Guidelines were referred to in [50] of the Decision Record. 46 The Minister objected to the reception of this affidavit in evidence. Although s 27 of the Federal Court of Australia Act 1976 (Cth) permits further evidence to be received on appeal, the Minister submitted, correctly, that there had been no attempt by the appellant to comply with r 36.57 of the Federal Court Rules 2011 (Cth). 47 In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1, the Full Court said (at [7]): [7] The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 ; [2007] FCAFC 134 at [4]-[7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal. 48 The Minister submitted that no attempt has been made by the appellant to show that the proposed evidence was not readily available for the purposes of the hearing in the Federal Circuit Court. Further, even if it had been received as evidence in the Federal Circuit Court, the Minister submitted that the evidence could not have made any difference to the outcome of the proceeding for judicial review. I accept these submissions. The fact that the IAA referred to the Guidelines in its Decision Record does not provide a sufficient basis to permit the affidavit to be received as evidence on this appeal. 49 For these reasons, the affidavit will not be received as evidence.

Disposition 50 Leave is refused to rely on the first ground of appeal, as advanced by the appellant. As the appellant does not press the second and third grounds of his notice of appeal, the appeal cannot succeed and must be dismissed. The appellant should pay the Minister's costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.