S1194/2003 v Minister For Immigration and Multicultural Affairs

As I have indicated above, I cannot discern any error in the way in which the Federal Magistrate disposed of these grounds, on the material before him. 15 There is an additional matter. When the appeal came on before me, Dr Azzi, sought to introduce new evidence. Mr Smith, objected to that course. The evidence was an affidavit by a person who had listened to the tape of the hearing in the Tribunal, and had, as best she could, transcribed that tape into typescript. The transcription was exhibited to the affidavit. In support of his application to lead this new evidence, Dr Azzi said that the interests of justice required the admission of the new evidence; that this was an important stage in the appellant's attempts to obtain a protection visa, since there was no unqualified right of appeal from any judgment which I might make; that, before the Federal Magistrate, counsel had been briefed at very short notice (implying that the appellant had not previously had the opportunity, or a sufficient opportunity, to make arrangements for the tape to be transcribed); and that the respondent would suffer no prejudice if the transcript were admitted into evidence. 16 The power to receive evidence on appeal is given to the Court by s 27 of the Federal Court of Australia Act 1976 (Cth), which provides that the court has 'power … in its discretion, to receive further evidence …'. An identically worded provision in the Family Law Act 1975 was considered by the High Court in CDJ v VAJ (1988) 197 CLR 172. McHugh, Gummow and Callinan JJ referred to the established common law conditions under which new evidence might be admitted in an appeal by way of rehearing as articulated in Wollongong Corporation v Cowan (1955) 93 CLR 435, namely, that it was necessary both that the evidence sought to be adduced on appeal could not with reasonable diligence have been obtained for use at the trial, and that, if the evidence had been available at the trial, it was reasonably clear that an opposite result would have been produced (93 CLR at 444). In CDJ, their Honours held that these principles were inapplicable to a situation in which the discretion to admit further evidence did not arise under the common law but was given by statute (197 CLR at [97]). They held that the exercise of the discretion under a provision equivalent to s 27 of the Federal Court Act was essentially a matter of statutory construction, and should not be approached as though the common law principles 'conclusively indicate the proper construction of the statutory provision' (at [102]). In the exercise of the statutory power, their Honours held, the 'critical factor' was the subject matter of the proceedings with which the appeal was concerned, because 'the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry' (at [104]). They held that, under the statutory power, the court hearing the appeal 'weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion' (at [104]). A little later in their judgment, their Honours said that the common law rules as to the admission of fresh evidence 'cannot exhaustively define the scope of the discretion' under the statutory provision (at [108]; emphasis added). 17 McHugh, Gummow and Callinan JJ then proceeded to advert to a number of considerations, any one of which may, in an appropriate case, influence the exercise of the judicial discretion to admit further evidence. First, they pointed out that the principal purpose of the statutory provision was to give the court a discretionary power to admit evidence which would demonstrate that the order under appeal was erroneous. This was a power which facilitated the avoidance of errors which could not otherwise be remedied by the application of conventional appellate procedures. Alternatively, and in practice in a subsidiary way, the purpose was to give the court discretion to admit further evidence to buttress the findings already made (at [109]). Secondly, their Honours referred to the principle that a provision conferring judicial power on a court should be construed liberally, and without the making of implications or the imposition of limitations not found in the words used by the legislature (at [110]). Thirdly, it was relevant that the appellate court was hearing an appeal against an order made in the exercise of original jurisdiction. It was unlikely that Parliament should have intended that the statutory provision (equivalent to s 27) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Fourthly, their Honours stressed that the availability of further evidence should not be treated as the equivalent of a ground of appeal, proof of which prima facie entitled the appellant to a new trial. Their Honours continued: "Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial." Fifthly, their Honours doubted the value of a 'usefulness' test, and rejected the proposition that an appellate court might admit further evidence merely because it was useful. Sixthly, the appellate court would 'readily' admit further evidence which was not in dispute, and which the court was able to evaluate and to take into account without the necessity for a rehearing. They noted that evidence of this kind was particularly likely to be admitted where it related to events occurring after the trial. In such a case the likely effect of the further evidence on the appellate court's view of the evidence before the trial judge was the important consideration. They continued: "Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial." Seventhly, their Honours said that the power to admit further evidence must be exercised judicially, adding a comment which related specifically to the Family Law Act but which, when considered more generally, amounted to the proposition that the discretion to admit further evidence should be affirmatively exercised only if that evidence were relevant and admissible according to ordinary principles, or by statute, and if there were no reason for suspecting the credibility of the evidence (at [115]). Eighthly, on the subject of a party's failure to adduce the evidence before the primary judge, their Honours said (at [116]): "Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section." 18 The High Court judgment in CDJ has been considered twice by a Full Court. In Cottrell v Wilcox [2002] FCAFC 53, the Full Court held that the judgment in CDJ was applicable to the discretionary power available under s 27 of the Federal Court Act (at [20]). Referring to that discretion, the Full Court said (at [21]): "That discretion is confined only by the requirement that it be exercised judicially and consistently with the judicial process: CDJ v VAJ at 185" It is, with respect, curious that the Full Court referred to page 185 of the Commonwealth Law Reports in this respect, since that page occurs within the reasons for judgment of Gaudron J, who dissented. Probably, however, the proposition upon which the Full Court relied is equally harmonious with the broad propositions underlying the judgment of the majority, McHugh, Gummow and Callinan JJ. Importantly for present purposes, I do not read Cottrell as precluding me from deriving guidance from the various specific considerations to which their Honours in the majority in CDJ referred, as set out above. 19 The other Full Court judgment to which reference must be made is NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. This was a judgment given on 25 February 2004 which, when amended by a corrigendum issued on 12 May 2004, contains the following passage: "In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox[2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ(1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, ... , an opposite result would have been reached by the primary judge')." Although this passage contains an echo of the common law criteria referred to in Wollongong Corporation, and held to be inapplicable under a statutory provision like s 27 in CDJ, the Full Court's reference to CDJ does, on my reading of it, make it tolerably clear that it considered that CDJ ought to be applied in the exercise of the discretion under s 27. Particularly, the Full Court statement that, in relation to the second condition, it was not enough that the new evidence was relevant and otherwise admissible, and may have affected the result, is in broad conformity with the fourth consideration adumbrated in CDJ to which I have referred in par [17] above. 20 Turning to the facts and circumstances of the present case, I consider the following to be germane to the exercise at my discretion under s 27 of the Federal Court Act. First, and most significantly, the tape of the hearing before the Tribunal could, with reasonable diligence, have been obtained by the appellant, and transcribed (at least to the extent that had occurred for the purpose of the document which was placed before me) at the time of the hearing before the Federal Magistrate. No explanation was provided as to why this had not been done, save for Dr Azzi's statement to me from the bar table that the appellant was, in effect, a naïve person in a strange country whose first language was not English. The burden of this submission was that it would not be reasonable to make the same assumption in relation to the appellant, about the accessibility of the tape, and the ease with which that might be converted into documentary form, as a court would readily make in relation to more sophisticated litigants or practitioners. As against this, the appellant was present in January 2005 when the Registrar of the Federal Magistrates Court gave a direction limiting the time within which the appellant might lead further evidence, and referring specifically to the possibility of producing the transcript of the hearing before the Tribunal. I also take into account that I have only Dr Azzi's assertion on the matter of the appellant's naivety: the appellant himself sought to place no evidence before me on that subject. I am prepared to accept that English is not the appellant's first language, and I note that the Tribunal appears to have taken the view that the appellant did not have the level of political awareness or sophistication which might be thought to have been normally implicit in the range of activities in which he claimed to have been involved. There are, however, several indications which appear to run quite contrary to the hypothesis that the appellant was naïve when it came to protecting his own rights concerning this litigation. His application for a protection visa, made in April 1997, was lodged with the Department of Immigration under cover of a letter by solicitors, who advised that they acted on behalf of the appellant. The Tribunal notes that the appellant supported his application for review by a statutory declaration made on 22 November 1998. That declaration was forwarded to the Tribunal under cover of a letter from the appellant's solicitors (the same solicitors as originally) dated 3 February 1999. In his application for judicial review in the Federal Magistrates Court filed on 18 March 2004, the appellant referred to s 39B of the Judiciary Act, and stated as a ground that the Tribunal had exceeded its jurisdiction 'and by constructively failed to exercise its jurisdiction'. In an affidavit filed in that court on 3 November 2004, the appellant again claimed that the Tribunal had exceeded its jurisdiction and had constructively failed to exercise its jurisdiction. In his amended application in that court also filed on 3 November 2004, the appellant made the same jurisdictional claims, and sought orders in the nature of certiorari and mandamus. Each of these court documents, although executed in the name of the appellant himself, has the appearance of having been competently prepared and engrossed. In all the circumstances, I am of the view that the appellant had ample time to arrange for the tape of the hearing before the Tribunal to be transcribed and placed before the Federal Magistrate; I am not persuaded that the appellant lacked either the facilities or the ability to cause this to be done; and I am of the view, all things considered, that the appellant has offered no satisfactory explanation for his failure to take such a course, particularly having regard to the directions given in January 2005 by the Registrar of that court. 21 Secondly, the appellant's application to adduce further evidence has an unusual aspect, in that an application to adduce the same evidence was made before the Federal Magistrate. That application was argued by counsel appearing for the appellant, and was dismissed, substantially for the reason that the appellant had allowed 14 months to pass since the Registrar gave his direction without complying with that direction. No attempt was made, in the proceedings before me, to demonstrate that the Federal Magistrate had been in error in that ruling. It would, in my opinion, be curious if the appellant were able now, in effect, to renew that application before an appellate court, and to have it determined upon the basis of broad discretionary principles which took no account of the failure of the earlier application. To approach the question purely within such a framework would, in my view, tend to obliterate the important distinction between original and appellate jurisdiction. In the exercise of my discretion, to put it at its lowest, I consider that it should be a factor that the Federal Magistrate heard and determined the same application as that which is now before me. In the absence of demonstrated error, I am inclined to think that the matter of the reception of the transcript of the hearing before the Tribunal should be treated as having been closed by the ruling which the Federal Magistrate gave. Dr Azzi submitted to me that the circumstances were different when he made the same application on behalf of his client before the Federal Magistrate: then, he submitted, the transcript was in the form of a tape only, and had not been printed. He implied that for the Federal Magistrate to have acceded to his application would have required an adjournment to permit the tape to be printed up. The difficulty with that submission is that the inconvenience occasioned by a necessary adjournment did not constitute any part of the Federal Magistrate's reason for rejecting the appellant's application to adduce the evidence. I do not consider that the circumstance that the transcript had not been printed, whereas now it has been printed, is a sufficient basis for diminishing the force of the considerations to which I have referred in this paragraph. 22 Thirdly, there is the question whether the production of the transcript of the hearing before the Tribunal would sufficiently advance the appellant's case so as to enable him, at least probably, to demonstrate error on the part of the Federal Magistrate, where that demonstration might otherwise be difficult. As I have explained above, Dr Azzi would seek to use the transcript to deal with the finding which the Federal Magistrate made (referred to at par [8] above) that the printed decision of the Tribunal did not purport to be exhaustive in its discussion of what occurred at the hearing, and that it was possible that other issues were then discussed. Dr Azzi submitted that the transcript would show that there were considerations as to the genuineness of the four documents upon which the appellant relied, later adverted to in the Tribunal's decision, which had not been raised specifically with him at the hearing. If he could demonstrate that, Dr Azzi submitted, a denial of natural justice would then have been established. For the purpose of considering this argument, I read the transcript which was exhibited to the affidavit upon which Dr Azzi sought to rely. 23 Any consideration of the way the Tribunal dealt with these four documents must commence by noting the circumstances in which, and the purpose for which, they were placed before the Tribunal by the appellant. They were sent to the Tribunal by the appellant's solicitors under cover of their letter dated 3 February 1999. To the extent that the appellant referred to them in his statutory declaration, he said: "During the Police assault on our peaceful demonstration on 1 February 1997, a pedestrian was shot, and later died in hospital. The Police then lodged a formal complaint against us, by accusing us of murder and of demolishing the Mosque, which was a false, self-created and politically motivated case. Accordingly, the Police have given a charge sheet against us, even though we were entirely innocent, and accused us of this false and fabricated and politically motivated murder case, and they also arrested some of our political colleagues, who are still in custody. Moreover, the Court is continuously issuing warrants of arrest against us, and has declared us to be absconders, and has requested all of the law enforcement authorities to arrest us as soon as we can be found." If it was not clear from these passages, it is evident from a reading of the transcript which Dr Azzi seeks to tender, that the applicant was holding out the four documents as connected with police action against him and his colleagues as a result of their peaceful demonstration on 1 February 1997. I note in particular that, on the appellant's own case, the so-called pamphlet was not said to be relevant otherwise than by being directly related to the Information Report and the Charge Sheet. 24 According to the transcript which Dr Azzi seeks to have admitted, at the hearing the Tribunal pointed out to the appellant that the Information Report was about an incident that occurred in December 1992. The appellant immediately accepted that whatever happened at that time could not have involved himself. The following passage from the decision of the Tribunal fairly summarised what occurred at the hearing on this subject: "At the hearing I explained to the applicant that the incident described in the second, third and fourth documents is stated as having occurred in December 1992 and that there were riots in many Indian cities at this time because of the demolition by Hindus of a mosque which they considered was built on the site where a Hindu temple once stood. He said that he joined the BJP in 1995 and was not involved in any political activities in 1992, that perhaps the police had fabricated a charge against him in relation to the Barbi Mosque incident and that the 1992 date could have been a mistake. In addition to raising the lack of congruency between the date on the documents and the date when the appellant claimed to have been involved in the demonstration, the Tribunal, on several occasions, squarely put it to the appellant that it did not consider that the documents were genuine and, on one occasion, that it considered that they had been concocted. It could not be suggested that the Tribunal did not give the appellant a fair opportunity to deal with this point. 25 Dr Azzi, however, submitted that there were two respects in which, according to the transcript, the Tribunal did not specifically alert the appellant to concerns as to the genuineness of the documents which later found expression in its decision. First, as I understand Dr Azzi's submission, since the pamphlet did not carry a date at all, the Tribunal's questioning of the appellant with respect to the lack of congruency between dates should not be treated as a proper airing of the matter of the genuineness of the pamphlet. However, as I have pointed out above, the pamphlet was forwarded by the appellant himself in support of his protection visa application, and was manifestly held out by him as directly related to the other documents. The appellant could have been in no doubt but that the Tribunal's concerns, arising from the lack of congruency between the dates, applied no less to the pamphlet than they did to the other documents. 26 Secondly, Dr Azzi pointed out, that the misspellings and curious phrases to which the Tribunal later referred to in its decision were not specifically put to the appellant at the hearing. That appears to be so, but, as I have noted above, these matters seem to have been referred to in the Tribunal's decision by way of confirmation of the view which it had already reached as to the authenticity of the documents, a view which was based on grounds which were not only good and substantial but, it appears to me, undeniable. That the Tribunal did not give the appellant the opportunity to deal with the subsidiary aspects of spelling and grammar did not, in my view, render the hearing procedurally unfair. 27 I accept, of course, that the transcript of the hearing before the Tribunal, if properly proved, would have been relevant in the hearing before the Federal Magistrate. However, I am not persuaded that the transcript would strengthen the appellant's case that he was denied natural justice by the Tribunal. Indeed, my reading of the transcript tends, if anything, to confirm the conclusion reached by the Federal Magistrate. 28 Fourthly, I take into account the form in which the printed transcript of the hearing before the Tribunal was sought to be tendered. I mean no disrespect to the persons involved when I say that, evidently, the transcription was not done by a professional service experienced in such matters. The tape appears to have presented difficulties for the transcriber. The appellant's first language was not English, but it seems from the transcript, such as it is, that the appellant's contribution at the hearing before the Tribunal was not given through a interpreter. An interpreter was present, however, and made occasional contributions which the transcriber has put down as having been made by the interpreter herself. At the outset, the Tribunal observed that the appellant spoke 'quite good English' and said 'we'll just see how we go'. The Tribunal also said: 'I think we should keep the interpreter here for the whole time. Because … if we are going to talk about complicated things it's best if she helps us.' It seems from these passages that, for the most part, the transcriber was doing her best to render into transcript various things which the appellant had said, or attempted to say, in English. This circumstance has manifested itself in the transcription by the presence of question marks, apparently indicating things which had been said in English but which could not be understood by the transcriber. These question marks, moreover, appear not only in the courts of the transcribed version of what the appellant said: they often appear also in what the Tribunal itself said, indicating that there were issues as to the quality of the tape which went beyond the issues created by the appellant's limited command of English. Since Dr Azzi seeks to use the transcript to establish an error in the nature of an omission, I consider that it would not be safe to rely upon a transcript with these features in the circumstances. 29 For the above reasons I decline to admit into evidence the affidavit and exhibit which Dr Azzi sought to have admitted on behalf of the appellant. 30 For the reasons stated earlier, I hold that the judgment of the Federal Magistrate was not attended by error. The appeal must be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate: Dated: 28 August 2006 Counsel for the Appellant: J Azzi (Pro Bono)

Solicitor for the Respondent: Blake Dawson Waldron