Uddin v Minister for Immigration & Multicultural Affairs

The hearing before the primary judge 8 On 21 July 2000 Emmett J gave directions and fixed the hearing of the application for 4 September 2000. A migration agent, Mr Raashed, appearing for the appellant foreshadowed that some further evidence was being sought. His Honour indicated that if the evidence was available on 4 September 2000 an application could be made to tender it. If the evidence was not then available, an application for an adjournment could be made. 9 When the matter came on for hearing on 4 September 2000 Mr Raashed did apply for an adjournment. The circumstances were as follows. The Tribunal rejected the appellant's claim that he was present at the violent rallies in Sylhet in early August 1996. The Tribunal found that he was in Dhaka hundreds of kilometres away at the time. In reaching this conclusion the Tribunal rejected the appellant as a credible witness. A central reason for rejecting the appellant as a credible witness the Tribunal's view was that he falsely claimed that he had not travelled to Greece in August 1996 as the stamps in his passport indicated. Further, assuming that the stamps were bogus, the Tribunal observed that the passport contained a genuine Australian visa issued by the Australian mission in Athens. The Tribunal assumed that such visa would not have been granted without the physical presence of the appellant in Greece. As the visa was granted in Athens on 27 August 1996, the Tribunal concluded that the appellant must have been in Athens on that day. 10 Before Emmett J the appellant relied in part on s 476 (1)(g) and (4)(b) of the Migration Act 1958 (Cth) (the Act) as the ground for this challenge to the Tribunal's decision. Those sections provide: "476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 11 Before his Honour the appellant accepted that this ground of review would fail in the absence of further evidence, to show that a particular fact did not exist. 12 No doubt, in view of this understanding, prior to the hearing on 4 September 2000 the appellant had applied to the Department of Immigration and Multicultural Affairs (the Department) under freedom of information legislation for the original application for the Australian visa which had been granted in Greece. The Department responded to the application by indicating that the original visa application had been destroyed. The appellant sought a review of the decision. The review was determined on 31 August 2000 when the Department indicated to the appellant that the initial decision would be maintained. 13 Faced with this lack of success in obtaining the necessary evidence, at the hearing on 4 September 2000 the appellant sought an adjournment so that two further steps could be taken. His Honour described those steps in par 10 as follows: "The first is to obtain expert advice as to what steps might now be available to the applicant, in the light of the destruction of the relevant documents in the Australian Embassy in Athens. The second step is to make inquiries of friends in Bangladesh with a view to endeavouring to obtain material from the Greek Embassy in New Delhi, which was responsible for the issue of a visa for travel by the applicant to Greece." 14 His Honour determined to dismiss the application but to stay the operation of his order. His reasoning was as follows: "23 It can be seen from [the Tribunal's] reasoning that, on one view, the Tribunal reached its conclusion not only by reason of its finding concerning the visit to Greece but also on the basis of the response in the original application to the question concerning where the applicant had lived. I am not satisfied, however, that there are quite separate and independent grounds to be gleaned from the reasons for reaching that conclusion. I read the reasons as being based on two matters. One is the answers concerning the address in Dhaka. The second is the passport containing the Australia [sic] visa issued in Greece. 24 It is conceivable that the applicant may be able to establish a case under section 476(1)(g) of the Migration Act, as explained by section 476(4)(b), in so far as it can be shown that the Tribunal based its decision on the existence of a valid visa issued by the Australian Embassy to the applicant in Athens. If it were established that the applicant did not in fact travel to Athens, it may be possible to demonstrate that the relevant fact did not exist. Since the relevant fact is the issue of the valid visa in Greece, there would be no other evidence before the Tribunal upon which that fact could be based. 25 I am concerned to give the applicant every opportunity to establish his case. The contention advanced before me today is that the applicant had not pursued his inquiries because of the invitation in the Minister's letter [relating to the freedom of information decision] to seek review of the decision not to produce the documents. The letter of 6 July 2000 is unequivocal in saying that the documents had been destroyed. On the other hand, it refers to a provision whereby the Minister may refuse a request if satisfied that the document is in the agency's or Minister's possession "but cannot be found". The letter is capable of being misconstrued by somebody in the applicant's position. 26 As I have said, it is accepted by Mr Raashed that, in the absence of such documents as might be produced to demonstrate that the applicant did not travel to Athens, a case based on section 476(1)(g) is bound to fail. If no further evidence is produced then, for the reasons that I have now given, I would dismiss the application. I am not satisfied, in all the circumstances, that the applicant is entitled to an adjournment. Accordingly, I propose to order that the application be dismissed and that the applicant pay the costs of the Minister. 27 However, because of some disquiet concerning the communications from the Department, I will stay those orders up to and including 6 October 2000. I will direct the applicant, if he wishes to apply to set aside those orders and to adduce additional evidence, to file no later than 2 October 2000, a notice of motion seeking appropriate orders together with an affidavit setting out all of the evidence upon which he intends to rely in support of such an application." [emphasis in original] 15 As a result his Honour made the following orders: "1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. There be a stay of orders 1 and 2 above up to an [sic] including6 October 2000. 4. The applicant, if he wishes to apply to set aside orders 1 and 2 above and to adduce additional evidence, file and serve no later than 2 October 2000 a notice of motion made returnable before Emmett J on 6 October 2000 seeking such orders together with an affidavit setting out all of the evidence upon which he intends to rely." 16 On 3 October 2000 (2 October being a public holiday) the appellant filed a notice of motion seeking orders that the order dismissing the application for review and the order for costs made on 4 September 2000 be set aside and that the appellant have leave to adduce further evidence. 17 When the application came on for hearing on 6 October, the appellant, on this occasion represent by counsel, foreshadowed evidence from the appellant's aunt who resides in Bangladesh that the appellant was residing with her at the relevant time, and, secondly, evidence from Greek officials in New Delhi that would establish that the Embassy of Greece at New Delhi did not issue a visa to the appellant. Over the objection of the Minister, his Honour adjourned the notice of motion to the 18 October 2000 to allow the appellant further time to file more evidence. 18 On 18 October there was evidence before his Honour that the appellant had applied to the authorities in Athens for a copy of the passenger card to verify whether the appellant entered Greece. It seems that the inquiry to the Greek authorities was made on 8 October 2000. 19 In those circumstances his Honour said in separate reasons given on 18 October in pars 8-13: "8. Thus the only further evidence that is foreshadowed at present is evidence as to the existence or non existence of a passenger card for the entry of the applicant into Greece. It was accepted on behalf of the applicant that if a card was produced indicating that the applicant had travelled to Greece that would be an end to the matter so far as the applicant was concerned. On the other hand it was hoped by the applicant that the Greek authorities would either respond that there was no card for entry of the applicant or would produce a card that did not bear the applicant's signature. 9 Even if those documents were produced it would not take the matter any further in the light of the finding that was made by the Tribunal. The assumption that the Tribunal has made is that the Australian Mission in Greece would not issue a visa without sighting the applicant. It is for that reason that the Tribunal concluded that, even assuming the stamps for the visa to Greece and Dhaka were bogus, it would be necessary for there to have been an accomplice within the Australian Mission in Athens. Thus, even if the additional material now sought from the authorities in Greece were produced it would not affect the conclusion upon which the Tribunal based its decision. That is to say, the Tribunal was prepared to accept that the stamps for the visa to Greece and for Dhaka Airport were bogus. 10 There has been no suggestion of any attempt having been made to obtain evidence to demonstrate that a genuine visa could be issued by the Australian Mission in Greece without the applicant being seen personally. In the circumstances there does not appear to me to be any utility in granting any further adjournment of the hearing of the motion. 11 In order to establish the ground in s 476(1)(g) it is necessary not only to establish that a fact upon which the Tribunal based its decision did not exist. It is also necessary to show that there was no evidence before the Tribunal of that fact. There clearly was evidence before the Tribunal that the applicant was in Greece. It would have been open for the applicant to adduce evidence before the Tribunal of the nature now sought to be adduced. Whether that would have had any effect on the Tribunal's decision is doubtful in the light of the passage that I have cited. 12 It may have been possible for the applicant to adduce evidence to demonstrate that it would have been possible for a visa to be issued in the name of the applicant in Athens without the applicant being personally present in Athens. However, there has been no attempt made up until now to adduce such evidence and there was certainly no such evidence before the Tribunal. 13 As I have said in the circumstances I do not see any utility in granting any further extension of the stay. Accordingly I consider that the motion should be dismissed with costs. It would follow that there should be no further extension of the stay that I ordered on 4 September 2000 and extended from 6 October up to and including today."

consideration 20 The refusal to extend the stay of the orders made on 4 September 2000 had the same effect as a refusal to adjourn the application, and thus should be approached with the same principles in mind. 21 An appeal court will be slow to interfere with the discretion of a trial judge to refuse to adjourn proceedings. It will, however, do so if the refusal would result in the denial of justice to the applicant and would not result in any injustice to the other party: Maxwell v Keun [1928] 1 KB 645 at 653; Bloch v Bloch (1981) 180 CLR 390 at 395; and Sali v SPC Ltd (1993) 116 ALR 625 at 628-9. 22 This Court is engaged in determining an appeal from the primary judge. The Court must first consider the issues as they stood when the matter was determined by his Honour. Later we will address the question whether additional evidence, which the appellant seeks to have admitted, should be admitted on the appeal. 23 When the matter came before his Honour on 4 September 2000, the appellant had learned that the original documents concerning the application for the Australian visa in Greece were no longer available. Because that information had only recently been received by the appellant his Honour, in effect, gave the appellant until 6 October, and then until 18 October, to adduce evidence in support of the no evidence ground of review. 24 When the matter returned before Emmett J on 18 October 2000 the only evidence which the appellant had by then sought was a copy of the passenger card from the Greek authorities to show, as he alleged, that he had not travelled to Greece. We agree with his Honour that the evidence of the passenger card would not establish the no evidence ground. The Tribunal assumed for the purpose of its decision that the travel stamps showing entry into and exit out of Greece were bogus. The evidence of the passenger card which the appellant sought to obtain went only to the assumption which the Tribunal made in favour of the appellant. His Honour was therefore correct to hold that the appellant's unfinished quest to obtain the passenger card could not justify an extension of the stay. 25 On the appeal the appellant sought to tender evidence of the reply from the Consulate General of Greece to his inquiry concerning the passenger card. 26 The Court has power to receive further evidence on appeal: s 27, Federal Court of Australia Act 1976 (Cth). The procedure to be followed in making an application to adduce further evidence on appeal is contained in Order 52 Rule 36 of the Federal Court Rules. 27 The approach to the admission of further evidence on appeal, and the authorities relevant to the matter, were helpfully summarised in Wilson v Offical Trustees in Bankruptcy [2000] FCA 304 at par 25 as follows: "The principles which govern the admission of further evidence are well established. At common law in order to obtain a new trial on the ground of the discovery of fresh evidence it was necessary to overcome the threshold that the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence: Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 at 444 per Dixon CJ. Once that threshold was overcome it was necessary to establish that if the evidence had been available at trial: '… an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.' (Council of the City of Greater Wollongong v Cowan (supra) at 444 per Dixon CJ, see also Orr v Holmes (1948) 76 CLR 632; Commonwealth Bank v Quade (1991) 178 CLR 134.) In CDJ v VAJ (1998) 157 ALR 686 the High Court held that the principles laid down in Council of the City of Greater Wollongong v Cowan (supra) were not determinative of the admission of further evidence in the Family Court, that issue being regulated by s 93A(2) of the Family Law Act 1975 (Cth) ("the Family Law Act") which is, in material respects, in similar terms to s 27 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court of Australia Act"). The majority of the High Court (McHugh, Gummow and Callinan JJ) said at 709: 'When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.' Their Honours had earlier observed that the terms of s 93A(2) of the Family Law Act and s 27 of the Federal Court of Australia Act do not coincide but are similar and that both conferred a power to be exercised by the court "in its discretion" and both used the expression "further evidence" rather than "fresh evidence". Their Honours continued at 710‑711: 'The power to admit the further evidence exists to serve the demands of justice. 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. … In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that court and with the perceived purposes of s 93A(2). … The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. 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.'" 28 The reply from the Consulate General of Greece simply states that no information could be provided by the Greek authorities because insufficient detail had been given by the inquirer, and the request came from an agent of the appellant without any indication of the personal consent of the appellant. Even if the reply had indicated that there was no passenger card for the appellant, the evidence would have suffered from the vice identified by Emmett J, namely, that it was relevant only to an issue in respect of which the Tribunal was willing to assume in favour of the appellant, that is, that the Greek entry stamps in the passport were bogus. The reply from the Consulate General of Greece could not have produced a different result before Emmett J. In the circumstances of this case that reason alone is sufficient to deny the appellant leave to adduce the further evidence. However, in addition, the evidence concerning the passenger card has been available since the appellant made his initial application for a protection visa. There is no explanation why the evidence was not sought and produced before the Tribunal. 29 That brings us to the second consideration which caused his Honour to refuse the application for extension of the stay. The Tribunal had found that the appellant must have travelled to Greece because the Australian visa issued in Greece appeared in his passport. The Tribunal assumed that the Australian authorities in Greece would not issue the visa without the appellant attending personally. It assumed that the visa was genuine, that is to say, that it was genuinely granted to the appellant. His Honour said that the appellant may have been able to show that there was no evidence that he had been granted a valid visa by the Australian mission in Greece if he could establish that the visa would have been issued without the appellant personally attending in Greece. However, the appellant had not produced this evidence, nor indicated that he intended to do so. We agree that there was therefore no reason for his Honour to extend the stay on the basis that such evidence may exist. 30 Mr Lloyd, who appeared as counsel for the Minister, contended that evidence which disproved the genuineness of the Australian visa would never have availed the appellant in an application under s 476(1)(g) and (4)(b). There was, he submitted, evidence of the existence of a valid visa before the Tribunal. Further evidence which cast doubt on the validity of the visa would, at best for the appellant, have brought into question the finding of the Tribunal on the merits. It could not overcome the fundamental hurdle that there was evidence before the Tribunal of the existence of a valid visa. It is not necessary for the purposes of this appeal to determine whether Mr Lloyd's submission is correct. However, there does seem to be some force in this submission. 31 The appellant, who appeared on the appeal without legal representation, raised a new basis for impugning the assumption of the Tribunal that he was present in Greece when the visa was issued. He claimed that the photograph in his passport when the visa was obtained was not his photograph, but the photograph of some other person. This followed, he contended, from information he had received from the passport office in Dhaka through a distant relative that the photograph on the passport application was not his photograph. The appellant sought to tender an affidavit to that effect, affirmed on 16 January 2001 by Shihabuddin Khan, the Assistant Director, Immigration & Passports in Dhaka, to that effect. 32 In our view this evidence should not be admitted on the appeal. No credible explanation is given as to why the information was not obtained earlier and placed either before the Tribunal or before the primary judge. Further, evidence that the appellant's photograph is not now on the application for a passport does not establish that his photograph, now on the passport, was not on the passport when the visa was issued in Greece. The evidence, at its highest, could only suggest a competing explanation for how a valid Australian visa was affixed to the appellant's passport in Greece. It is not evidence which could conclusively establish that the appellant did not obtain a valid visa in Greece, which conclusion would be required to make out the no evidence ground. In other words, the additional evidence would not establish the no evidence ground of review. Finally, the deponent is in Bangladesh and it would be unfair to the Minister to allow the affidavit into evidence when the deponent is not available for cross-examination. In light of these conclusions we do not need to consider whether the affidavit is, in any event, in an admissible form. 33 The appellant outlined several further arguments on the appeal in an affidavit filed by him on the 9 February 2001. To the extent that the affidavit sets out arguments we treat, without objection by the Minister, the document as an outline of argument for the appellant. 34 One argument put forward by the appellant concerned the date of issue of his passport. On its face the passport bears the issue date of 16 May 1996. The appellant gave evidence before the Tribunal that he did not obtain his passport until late 1996. He said to the Tribunal that the passport had been backdated. The Tribunal rejected this evidence as implausible. On the appeal he sought to explain what he meant when he said that the issue date had been backdated. It seems that the appellant suggests that the Tribunal may not have appreciated that the appellant was speculating that the issue date was backdated rather than asserting a matter of fact known to him. 35 It is not clear whether this argument was put to the primary judge. His Honour does not specifically record that it was, although he dealt with several arguments cryptically as appears in the extract in par 19. In favour of the appellant we will assume that the argument was put to his Honour. The argument would not advance any ground of review under s 476(1)(g) of the Act. The only other ground relied upon by the appellant before his Honour was s 476(1)(d) which provides for the following ground of review: "(d) that the decision was an improper exercise of the power conferred by this act or the regulations." 36 On this ground the primary judge held: "As I understood what he [the Migration Agent then appearing for the appellant] was saying, the Tribunal failed to accept the evidence of the applicant in relation to his explanation for some of the inconsistencies to which the Tribunal referred. That would not establish any ground under s 476(1)(d)." 37 The argument which the appellant put in relation to the issue date of the passport does not make out the grounds of review under s 476(1)(d). The complaint amounts to a challenge to the view taken by the Tribunal of the evidence of the appellant. The assessment of the evidence is a matter for the Tribunal. 38 The appellant also contended that the Tribunal misunderstood his evidence about the date on which he obtained his passport. The Tribunal found that his evidence was that he arranged for his father to obtain his passport in September 1996. It found that his evidence was that on 27 August 1996 when the Australian visa was obtained the appellant had not even seen his "travel agents". The Tribunal rejected the argument that the issue date of the passport was backdated. That meant that the Tribunal rejected the evidence of the appellant that he had obtained the passport after 27 August 1996. 39 On the appeal the appellant contended that he had told the Tribunal that he had asked his uncle to obtain a passport from 5 August 1996, being the date of the riot which lay at the centre of his alleged fear of persecution. 40 Again we assume in favour of the appellant that this argument was put to the primary judge as a ground of review arising under s 476(1)(d). Again, the argument does not give rise to the ground of review provided by that section. It was for the Tribunal to determine the facts from all the evidence before it. The appellant has not shown that the Tribunal failed in this respect. When properly understood his contention amounts to a challenge that the Tribunal should have come to a different conclusion on the merits. 41 The appellant remains adamant that he did not travel to Greece and that the Tribunal was wrong to conclude that he did. The appeal has been brought on narrow grounds and in any event, the rights of review under s 476 of the Act are limited. There may be evidence now available to the appellant which he did not place before the two Tribunal hearings which would establish that he did not travel to Greece. If he gathers that evidence he may be able to persuade the Minister to exercise his discretion under s 48B of the Act to permit a further application for a protection visa.

Conclusion 42 For the reasons given the appeal must be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Mansfield and Katz .

Solicitor for the Respondent: Australian Government Solicitor