Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1499

FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1499

CITIZENSHIP & MIGRATION – protection visa – application to adduce additional evidence to establish that there was no evidence or other material to justify the making of the decision by the Refugee Review Tribunal ("RRT") – where other evidence before RRT to establish the fact in dispute

Migration Act 1958 (Cth) s 476(1)(g) NIZAM UDDIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 591 OF 2000 EMMETT J 18 OCTOBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 OF 2000

BETWEEN: NIZAM UDDIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 18 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed 3 October 2000 be dismissed. 2. The applicant pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 OF 2000

BETWEEN: NIZAM UDDIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 18 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 4 September 2000 I heard an application for review of a decision of the Tribunal. For the reasons that I then gave, I concluded that the application should be dismissed. In the course of the hearing there had been an application for an adjournment which I refused. However, because of some disquiet that I had concerning communications from the Department, I stayed the orders that I then made up to 6 October 2000. I directed the applicant, if he wished 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 intended to rely in support of such an application. In fact 2 October 2000 was a public holiday. 2 On 3 October 2000 a notice of motion was filed by the applicant seeking orders that the orders for dismissal and the payment of costs that I made on 4 September 2000 be set aside and that the applicant be granted leave to adduce additional evidence. At that stage there was some evidence before me as to the nature of the further evidence that the applicant wished to adduce. In order to explain the significance of that additional evidence it is necessary to refer again to the reasons of the Tribunal. 3 In its reasons the Tribunal said that of critical importance to the case was whether the applicant had travelled to Greece or not. There was evidence before the Tribunal consisting of the applicant's passport, which contained stamps that implied that the holder of the passport had been in Greece in 1996. The passport contains stamps for a visit to Athens. It has stamps for leaving Dhaka and arriving in Athens on 11 August 1996 and leaving Athens and arriving back in Dhaka on 30 August 1996. It also contains an Australian visa issued in Athens on 27 August 1996. 4 The Tribunal observed that in order to explain the stamps in the passport it would have required someone else to take the applicant's passport through customs and immigration control in Bangladesh and Greece and for the Australian mission in Greece to issue a visa without sighting the applicant. It would then have been necessary for someone to bring the passport back to Bangladesh and again, pass through immigration control in Bangladesh. 5 The Tribunal then said this: "Even assuming that the stamps for the visit to Greece and for Dhaka Airport were bogus, the visa is a genuine Australian visa and would require that the applicant's 'travel agents' have an accomplice within the Australia mission in Athens. Even if there were such an accomplice, there would be no reason for the Australian visa to be backdated and the claim that it had been was implausible. According to the applicant's account when the Australian visa was issued on 27 August 1996, he had not even arranged to see his 'travel agent'." 6 The evidence that the applicant foreshadowed in support of the motion when it first came on for hearing on 6 October 2000 was, first, evidence from the applicant's aunt, who resides in Bangladesh, that the applicant was residing with her at the relevant time. Secondly, evidence from Greek officials in New Delhi that would establish that the Embassy of Greece at New Delhi has not issued a visa to the applicant. While there was no admissible evidence as to those matters, there was evidence of the nature of the further evidence that the applicant wished to adduce. On 6 October 2000, over the objection of the Minister, I adjourned the hearing of the motion to today to enable the applicant further time to file further evidence in admissible form. 7 There is now further evidence before me that the applicant has made a written application to the authorities in Athens. The relevant written application says as follows: "…we are trying to verify whether the applicant actually entered Greece as purported by the enclosed stamp of the entry and exit on his passport. We are trying to procure a copy of his passenger card as soon as possible. ……………………… May we now thank you very much in anticipation of your co-operation to procure the above document and making a copy of it available to us! Whatever the outcome of this exploration, we invite you to affirm it in the form of an affidavit." 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. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.