Kassem v Minister for Home Affairs

COLLIER J: 1 Currently before me are two interlocutory applications in this appeal. The first application is to amend the notice of appeal originally filed on 21 February 2018. The second application is for the Court to allow further evidence to be admitted in the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). 2 On 7 December 2018 the appellants filed an amended notice of appeal in which they relied on only one ground of appeal, being: 1. His Honour erred in failing to find the decision of the Administrative Appeals Tribunal was affected by jurisdictional error because the Tribunal's processes were so subverted by the fraud of a third party that the Tribunal's jurisdiction remained constructively unexercised. 3 It is not in dispute that the issues raised in this ground of appeal were raised before the primary Judge. While this ground was not a ground of review before his Honour, nonetheless the question whether there was any reasonable basis for alleging fraud against the appellants' migration agent insofar as it affected the decision of the Tribunal was squarely before the primary Judge. His Honour, for example, considered the question of fraud at [17] of the primary decision where his Honour said: In these reasons, therefore, I will first consider whether the Tribunal invited the applicants in writing to provide information in the manner required by s.359 of the Act. That turns on whether the 359 letter was given to the applicants. I then consider the grounds stated in the application and submissions made in the AWS. Last, I consider whether, assuming what the applicants said to me about their dealings with their migration agent is true, that discloses any arguable case of fraud by the agent such as to give rise to an arguable case that the Tribunal's discretion remained "constructively unexercised". (Original emphasis.) 4 The hearing of the appeal today has continued from 3 August 2018. At that point, when the parties were before me arguing the appeal, the appellants were not legally represented. Their grounds of appeal then, however, squarely raised issues relating to the conduct of their migration agent at the time of the decision of the Administrative Appeals Tribunal (Tribunal) on 4 November 2015. 5 This is not a case where I need to have regard to principles concerning whether an appellate Court will permit an appellant to raise new arguments, and whether it is expedient in the interests of justice to do so: see for example Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174 and Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486. 6 I note that the appellants have had pro bono Counsel since 18 September 2018, and to that extent are now in a better position to properly frame grounds of appeal. No prejudice has been demonstrated by the Minister in answering this revised ground of appeal - indeed submissions have been filed by the Minister addressing it. 7 In my view it is in the interests of justice that the appellants be granted leave to rely on the ground of appeal set out in the amended notice of appeal filed on 7 December 2018, and I so grant leave. 8 However the question whether the appellants should be entitled to adduce fresh evidence in this appeal raises more complex and contentious issues. 9 Already in evidence in this appeal as Exhibit 1(R) is the Decision Record of the Office of the Migration Agents Registration Authority (Authority) dated 6 April 2018. In that decision a migration agent was barred by the Authority for two years. There appears little doubt that that decision of the Authority relates to the migration agent who acted for the appellants - I note for example the transcript in this Court hearing of 3 August 2018 p 13 lln 27-41. The Authority's decision was properly provided to the Court by the Minister at the request of the Court at the hearing of 3 August 2018, and marked as an exhibit. At that time the Minister conceded that that decision disclosed negligence on the part of the migration agent in respect of matters concerning the appellants, including in respect of their Tribunal proceedings, but did not go so high as to establish a fraud on the Tribunal within the meaning of the decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. I understand that this remains the Minister's position. 10 Materially, I note that the decision of the Authority was delivered after the primary judgment - the primary Judge's decision was delivered on 8 February 2018. 11 The appellants now seek leave to rely on two additional affidavits, namely the affidavit of the first appellant dated 7 December 2018, and the affidavit of the second appellant also dated 7 December 2018. In summary, in those affidavits the first and second appellants depose as to their meetings with their migration agent or agents, the conversations during the course of those meetings, the course of their visa applications, the payment of money to the migration agents, and the course of the proceedings in this Court and the Federal Circuit Court. 12 The Minister opposes the appellants' application to adduce this further evidence in this appeal. 13 Section 27 of the Federal Court Act provides: Evidence on Appeal In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) … 14 Clearly, whether I allow the further affidavit evidence of the first and second appellants is an issue of discretion for me in the circumstances of this case. 15 Rule 36.57 of the Federal Court Rules 2011 (Cth) provides that any such application must be accompanied by an affidavit explaining, amongst other things, the grounds of appeal to which the application relates and why the evidence was not adduced in the Court appealed from. The appellants have not complied with this rule. 16 In the course of submissions opposing the appellants' application to adduce this further evidence, Counsel for the Minister stated that the Minister would seek to test the evidence by cross-examination of the first and second appellants. Counsel indicated that her estimate of the time required for cross-examination would be several hours, because of the seriousness of the allegations of fraud at stake in this case. 17 The Full Court in Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 said at [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 . 18 In Sami the Full Court refused leave to the appellant to rely on fresh evidence because the proposed additional evidence did not relate to any alleged jurisdictional error by the Tribunal, rather it concerned the merits of the Tribunal's decision. This is not the case here - the fresh evidence sought to be relied on by the appellants relates directly to the alleged jurisdictional error by the Tribunal in the appellants' case, namely the alleged fraud by the migration agent on the Tribunal. 19 Further, in the submission of the appellants the additional evidence in the affidavits is of such relevance and weight that its admission would be likely to lead to a different result than that reached in the judgment of the primary Judge. Should the evidence of the appellants be accepted, I consider that this submission has merit. 20 However - the fact remains that this is the hearing of an appeal from a primary decision of the Federal Circuit Court. Recently in BVG17 v BVH17 [2019] FCAFC 17 at [56] the Full Court reiterated that there is extensive case law rejecting any obligation on the part of an appellate court to determine matters which should have been considered and determined by the Court at first instance. I also note, and adopt, the observation of Perram J in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] that the Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present and that the exercise of appellate jurisdiction is concerned with the correction of error. While the decision of the Authority concerning the migration agent post-dated the decision of his Honour, it is also the case that the appellants could have sought to rely on the evidence in their affidavits in the Federal Circuit Court proceedings in this case. It is unclear why they did not - although again I note that they were not legally represented in those proceedings. 21 More to the point however, the evidence on which the appellants seek to rely is relevant to allegations of fraud, and requires examination and testing. It is clear that the proper environment for that examination and testing is in a trial. Granting the application to adduce this evidence would result in this appeal Court being required to, effectively, conduct the trial of whether the processes of the Tribunal had been subverted by the conduct of the migration agent. As the Full Court observed in BVG17, the conduct of a trial is not the function of an appellate Court. 22 I refuse leave to the appellants to rely on the affidavit of Tanja Kassem dated 7 December 2018 and Mahmoud Kassem dated 7 December 2018. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

SCHEDULE OF PARTIES NSD 211 of 2018 Appellants Fourth Appellant: YASMINE KASSEM