WAGF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT HILL J: 1 The appellant appeals to this Court from the judgment of a Judge of this Court, French J, dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa. 2 The appellant is a national of Iran who came to Australia on 1 October 2000. He applied for a protection visa which application was refused, and thereafter applied to the Tribunal for review of that decision. The Tribunal affirmed the decision not to grant a protection visa and it was in respect of that decision that the appellant sought judicial review in this Court. 3 The appellant at the outset of the proceedings this morning sought leave to file an amended notice of appeal. The last ground in that amended notice relied upon a decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 as providing what the notice of appeal referred to as a new ground of appeal pursuant to s 461(a) or (e) of the Migration Act 1958 (Cth) ("the Act"). 4 The appellant also indicated that the other grounds of appeal contained in the amended notice of appeal were abandoned. Accordingly the only matter that would be in issue if the leave was granted to file the amended notice of appeal would be the matter said to arise out of Muin's case. Counsel for the respondent opposed leave to file the amended notice of appeal to the extent that it introduced, as a fresh ground of appeal, the matter said to depend on Muin's case. 5 Some reference might be made to the argument as to what the ground was intended to convey. On 4 July 2001 the Tribunal notified the appellant, as it was required to do under the Act that it had looked at all the material related to his application but was not prepared to make a favourable decision on that information alone. The applicant was accordingly invited to a hearing to present oral evidence and arguments in support of his claim. The notice indicated that the appellant was entitled to ask the Tribunal to obtain oral evidence from another person or persons. The letter requested that the appellant complete a response to hearing invitation and return it. 6 The appellant did complete the response to hearing invitation and indicated that it wished the Tribunal to take evidence from two witnesses; namely, the appellant's father and his older brother. The evidence that it was suggested the witness could give about the application was said to be, "You can ask him, 'Why did I leave my country?'" The form at the top of the second page in quite prominent print says: "If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name." 7 Thereafter a solicitor/migration agent forwarded a submission to the Tribunal. That submission made no reference to the evidence which the appellant had requested the Tribunal to obtain. Finally it may be noted that there is no reference in the Tribunal's reasons to the request nor was there any notification given by the Tribunal to the appellant specifically that it declined to contact the father or elder brother. 8 In short, the ground of appeal sought to be raised can be said to be as follows: that Muin's case holds that there is a distinction between natural justice on the one hand, being a ground on which this court had no jurisdiction having regard to s 476(2)(a) and procedural fairness. In the present case the appellant was refused procedural fairness, it is said, because the appellant was led to believe and in fact believed that the Tribunal would contact his father and brother in Iran to obtain an answer to the question, "Why did I leave my country?" But for that belief, he would have arranged for the father and brother to give that evidence to the Tribunal which may have affected the outcome of the proceedings. 9 The prime matter to be considered when leave is sought to amend a notice of appeal is whether it is in the interests of justice that the amendment be granted. However, where an amendment is sought to be made which not only introduces a matter not argued in the Court below but also a matter which necessarily requires fresh evidence to be considered it is difficult to see that the interests of justice require that leave be granted, particularly where that fresh evidence may well be challenged. 10 In the circumstances I am of the view that leave should not be granted to permit the new ground of appeal to be argued from which it would follow that leave not be granted to proceed with an amended notice of appeal. Since no other ground of appeal is pressed it would follow, in my view, that the appeal should be dismissed with costs. TAMBERLIN J: 11 I agree with the reasons given by the primary presiding Judge and with the proposed orders. HELY J: 12 I also agree. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Tamberlin & Hely JJ.