Consideration
35 I first consider the procedural question of whether it is appropriate to seek leave to appeal in the present circumstances. I note that the Minister opposed leave to appeal being granted on the basis that there was no substance in the grounds directed to the adjournment issue.
36 The question is whether the leave application was unnecessary because, upon entry of the final judgment, any interlocutory order which affected the final result can be challenged in the appeal against the final judgment: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6] per Gaudron, McHugh and Hayne JJ.
37 It seems to me in the present circumstances that either the refusal of the adjournment affected the final result in terms of a breach of s 425 or associated failure to afford procedural fairness to the appellant, in which case an appeal as of right lay, or the refusal of an adjournment did not have that effect, in which case leave to appeal should be refused for lack of utility. See, for example, Guss v Johnstone [2000] FCA 1455 at [16] per Sackville J (Drummond and Dowsett JJ agreeing). In the present case the appellant put that the final judgment of the Federal Circuit Court was affected because the appellant was not in a position to advance anything himself in relation to the claimed jurisdictional error and did not tender before the Federal Circuit Court the transcript of the hearings before the Tribunal.
38 I approach the grounds of appeal accordingly.
39 I note that the appellant submitted that the error by the primary judge was that her Honour had not taken into account the critical issue of whether there was a reasonable likelihood the appellant would be prejudiced by the moving forward of the hearing date at a late stage in the cycle. The appellant also submitted that the primary judge should have recused herself and should have referred the adjournment application to another judge of the Federal Circuit Court. As I have said, although it is not necessary for me to deal with those matters, as the appellant accepted that everything that would have been put to the Federal Circuit Court had been put to this Court on the hearing of the appeal, I am not persuaded of legal error in relation to either of these contentions.
40 As to the former point, counsel for the appellant submitted that the appellant being unrepresented before the Federal Circuit Court when he wished to be represented was sufficient reason for the adjournment being granted when he had not consented to the change of hearing date. In my opinion that contention is too broad to be accepted. The answer would depend on the particular circumstances. Here there had been no indication before the changed hearing date that there was any difficulty with the change. An application for an adjournment being then made it was appropriate for the primary judge to explore those circumstances, as her Honour did.
41 Counsel for the appellant also submitted that the normal course where a court proposed to bring a hearing forward would be that the parties would first be contacted as to whether this would raise any difficulty. The later the change, the more likely was it that there would be difficulty.
42 Again, in my opinion, there had been no indication before the changed hearing date that there was any difficulty with the change. A normal course would be for a party to contact the court once the hearing date had been changed to notify the court of any difficulty. It is not clear why that was not done by or on behalf of the appellant.
43 I am not persuaded that her Honour's exercise of discretion miscarried. I say this in the alternative; my primary reasoning is that it is not necessary to determine these grounds, for the reasons that I have given.
44 As to the latter point, there was no evidence that the primary judge was asked to recuse or disqualify herself. Further, in my opinion, it does not follow that because the occasion for an application to a judicial officer to grant an application to adjourn is something that that judicial officer has done, that means that she cannot decide that application. It would seem to me to be a common occurrence that an application to adjourn arises out of an earlier decision by a particular judge and is considered by that judge. It does not seem to me to matter legally whether the earlier listing of the matter for final hearing on 2 October 2013 rather than 24 October 2013 was something which the primary judge herself had done. I see no substance in this ground.
45 As I have said, I do not need finally to decide this aspect of the matter as counsel for the appellant accepted that everything that would have been put to the Federal Circuit Court could be put to this Court on the hearing of the appeal. I include ground 4 in this conclusion.
46 The appellant before me sought to tender the transcript of the hearing before the Tribunal on 9 August 2012 and 12 September 2012. The application was made orally, although some notice had been given by way of an affidavit sworn on 4 February 2014 by Elee Luke Georges, solicitor. This was opposed by the Minister. No interlocutory application was filed and there was no affidavit explaining the application to rely on this evidence, which was not before the primary judge: see s 27 of the Federal Court Act and r 36.57 of the Federal Court Rules 2011 (Cth).
47 Section 27 of the Federal Court Act is in the following terms:
27 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) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(c) by oral examination before the Court or a Judge; or
(d) otherwise in accordance with section 46.
48 As the Full Court said recently in Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] the power is not confined to "fresh evidence", that is, evidence of which an appellant was unaware at the time of the original hearing and could not have obtained with reasonable diligence. But in many cases it would be "most material" to consider whether the evidence could have been called at trial. The discretion is not at large, despite the absence of any express limitations.
49 As the Full Court also said (at [76]), one important consideration in determining whether the power in s 27 of the Federal Court Act should be exercised is whether the further evidence would have produced, or at least would be likely to have produced, a different result had it been available at the trial. I proceed to consider the application under s 27 by reference to whether or not the further evidence sought to be adduced has that cogency.
50 According to the submissions made by counsel for the appellant by reference to the transcript of the hearing before the Tribunal, on the second day of the hearing the Tribunal raised as an issue of concern whether members of the YCL went to the appellant's home in the village and damaged it. The Tribunal said that it had "some difficulty" believing that if the YCL did go that the appellant's wife would wait a few months before telling the appellant.
51 In my opinion, at the appropriate level of generality or specificity (see SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147), the issue was whether members of the YCL went to the appellant's home and damaged it. That issue would have fed directly into the appellant's claim for refugee status.
52 That was a critical issue or factor on which the decision was likely to turn and, in my opinion, the Tribunal was obliged to make the appellant aware of that issue and did so: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591E; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [38]-[40]. Remembering that the Tribunal is not a contradictor, this is the appropriate level of specificity to which the s 425 or procedural fairness obligation attached: see SZBEL at [47].
53 Contrary to the appellant's submission, the fact that the Tribunal member said "Okay" did not, in context, found the conclusion for which the appellant contends, that is, that the Tribunal had reasonably led the appellant to believe that part at least of his account was accepted.
54 Another limb of the argument is that the appellant handed to the Tribunal member in the course of the second day of the hearing photographs which the Tribunal member in his reasons described as "photographs… showing some damage to a room of a house": see [127] of the Tribunal's reasons. The appellant submitted that because the Tribunal member, on being handed the photographs, said "Right. Okay. Thank you for that." and because at the end of the hearing the Tribunal returned the photographs, it was not procedurally open to the Tribunal to state as follows in relation to the photographs:
[127]. The Tribunal [sic] submitted photographs to the Tribunal on the second hearing day showing some damage to a room of a house. The Tribunal disbelieves the applicant's claims that this depicts the damage done to his home by people from the YCL who went there in early 2012 and that is because the Tribunal does not believe that claim. Assuming these photographs are of the applicant's home, the Tribunal finds he has not been truthful as to the cause of any damage they depict.
55 It is to be recalled that the appellant had been in Australia and was therefore not present at the alleged event in question. He could give no first hand evidence about what or who had caused the damage to the room or about the photographs or the circumstances in which they were taken.
56 The point in issue, however, is the appellant's submission that the Tribunal, on the basis of its conduct at the hearing in relation to the photographs, "had plainly led the Appellant to understand that the claim and the photographs were not in issue. In handing back the photographs the RRT was indicating that it accepted the Appellant's evidence once the photographs had been submitted."
57 I do not accept that submission. What the Tribunal said and what it did in handing back the photographs did not, in context, amount to the Tribunal indicating that it accepted the appellant's evidence.
58 It was not clear to me whether the appellant submitted that s 425 had a different or more extensive content. For completeness I should add that, in my opinion, what the High Court said in SZBEL at [29] and [49] to the effect that the content of the procedural fairness obligation in s 425(1) of the Migration Act may, in a given case and on particular facts, extend to the greater level of specificity identified in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592A - that is, to require the decision-maker to identify any issue critical to the decision not apparent from its nature or the terms of the statute under which it is made and to advise of any adverse conclusion which has been arrived at not obviously open on the known material - is not applicable in the present case. This is because of the limited nature of the appellant's knowledge of the taking of the photographs and the circumstances of the damage which they showed. The photographs did not raise a new issue in the sense that that term is used in s 425. The issue of whether members of the YCL went to the appellant's home and damaged it was identified and the appellant made submissions about it. The photographs were put forward as additional evidence about an extant issue.
59 I do not accept the appellant's submissions that the Tribunal found that the photographs were submitted for the purpose of misleading the Tribunal or that this raised a separate issue. The reasoning of the Tribunal was that it disbelieved the appellant's claim as to the cause of the damage and the photographs did not take that issue further.
60 I accept that the finding as to the cause of the damage was material to the Tribunal's conclusion that the appellant's account of events was false and to its overall conclusion at [124].
61 It follows, in my opinion, that the evidence sought to be adduced would not produce, or would be likely to have produced, a different result had it been available at the trial: no jurisdictional error is made out and there was thus no error in the conclusion of the primary judge that there was no jurisdictional error.
62 Counsel for the appellant confirmed that these were the matters which informed ground 5 of the notice of appeal, the claim of jurisdictional error.
63 I reject that application that the Court receive further evidence on this appeal because, in my opinion, it did not have the requisite cogency.
64 As I have said, the appellant submitted that it was open to this Court to determine the matter of jurisdictional error for itself. I agree. I do not accept the appellant's submission that the matter should be remitted to the Federal Circuit Court. Nothing was pointed to suggesting that any practical injustice would flow from this Court dealing with the matter and counsel for the appellant accepted that the argument there would be the same as the argument here.