FEDERAL COURT OF AUSTRALIA Myakhail v Minister for Immigration & Multicultural Affairs [2001] FCA 613 PROCEDURE – appeal – migration – refusal of protection visa – motion for leave to amend notice of appeal – motion for adjournment to adduce new evidence – whether new evidence could be cogent in face of evidence already on record – whether new evidence could produce opposite result – whether proposed new evidence could have been called before tribunal Migration Act 1958 (Cth) s 476(1)(g) Tua Gul v Minister for Immigration & Multicultural Affairs (2000) 181 ALR 325 distinguished Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied Connection Fire Insurance Co v Kavanagh [1892] AC 473 cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 cited Green v Sommerville (1979) 141 CLR 594 cited O'Brien v Komesaroff (1982) 150 CLR 310 cited University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 cited Coulton v Holcombe (1986) 162 CLR 1 cited Water Board v Moustakas (1988) 180 CLR 491 cited Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 cited Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 cited Teoh v Minister for Immigration & Multicultural Affairs (1994) 49 FCR 409 cited SAID ANWAR MYAKHAIL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 288 of 2001 RD NICHOLSON, NORTH and GYLES JJ 29 NOVEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W288 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SAID ANWAR MYAKHAIL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON, NORTH and GYLES JJ DATE OF ORDER: 29 NOVEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appellant's application for leave to amend the notice of appeal be refused. 2. The appellant's application to adjourn the hearing of the appeal be dismissed. 3. The appellant's notice of motion dated 28 November 2001 be dismissed. 4. The appeal be dismissed. 5. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W288 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SAID ANWAR MYAKHAIL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON, NORTH and GYLES JJ DATE: 29 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT RD NICHOLSON: 1 On behalf of the appellant a notice of motion is brought seeking leave to amend the notice of appeal in terms of a minute and seeking adjournment of the hearing of the appeal. 2 The new ground of appeal in relation to which leave is sought is one which would raise the issue of whether the decision of the Refugee Review Tribunal ("the Tribunal") given on 21 December 2000 whereby it affirmed the decision of a delegate of the respondent not to grant a protection visa to the appellant, was judicially reviewable under s 476(1)(g) of the Migration Act 1958 (Cth) ("the Act"). That ground is supported by reference to specific instances of what are said to be findings in relation to which there was no evidence or other material to justify the Tribunal making the decision. Those particular aspects I will refer to subsequently. 3 The motion for adjournment is supported by an affidavit of a pro bono solicitor. It is stated that the solicitor's firm received the appeal book on 23 November 2001 and there has been inadequate time for preparation of the matter. However, the affidavit also makes it apparent that the papers in the matter, in almost identical form to the appeal book, were received on 15 November 2001. It is said in the affidavit that the applicant's counsel is not the counsel who appeared before the primary judge whose decision was given on 3 July 2001. Additionally, that affidavit identifies further evidence which is sought to be adduced. That evidence is described as being such as would require the solicitors to obtain "further information", some of which was received on 27 November 2001 and some of which requires "expert evidence". It is also said in the affidavit that the most appropriate expert from whom it is proposed to obtain evidence is overseas until 9 December 2001. Furthermore, it is said that the solicitor's firm has not had the opportunity to consider the tapes or procure a transcript of the appellant's hearing before the Tribunal and that these were not considered prior to the hearing before the primary judge. 4 These affidavit descriptions of the proposed new evidence were supplemented in submissions from the bar table. From those submissions it became apparent that such new evidence, although not being able to be identified with precision, would involve some evidence which may contradict facts which were before the Tribunal at the date of its hearing and other evidence which would relate to events which have occurred since then. One such event, it is posited on behalf of the appellant, is that the appellant is of the Pushtin tribe and that due to events occurring recently in Afghanistan, that is, since the date of the Tribunal hearing and since the hearing before the primary judge, would disclose that as a Pushtin he would nevertheless arguably suffer persecution in Afghanistan or have a well‑founded fear of such for a reason recognised by the Refugees Convention (The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967). 5 The question for the Court is whether the appellant makes apparent a sufficient foundation to justify the Court granting an adjournment to give the appellant the opportunity to marshal the evidence which apparently would be required if the proposed new ground of appeal were to be sustained. Evaluation of the material which was put before us to justify such an adjournment does not require this Court to form a concluded view on the substantive matter the subject of the proposed new ground. However, it is essential for the Court to carefully evaluate the cogency of the material now before it in order to determine whether any point would be served by granting the adjournment sought. That is, the Court must consider whether there is a sufficient prospect that the appellant would be able to put forward the necessary proofs to sustain the new ground of appeal so that an adjournment would serve a purpose if granted. 6 That may be tested firstly by turning to the particular findings referred to in the proposed new grounds of appeal. They are findings for which it is said there was no evidence or other material. The first finding by the Tribunal was to the effect that it is safe for Afghan citizens to return to the appellant's province and the United Nations is facilitating that return. I accept the submission for the respondent that there was evidence upon which this finding was based in the form of CISNET documents CX40735 and 45308 referred to in the reasons of the Tribunal before this Court. 7 The second finding was that "the applicant is not from an area where hostilities are occurring". Again, the evidence in the form of country information and the appellant's evidence was supportive of this finding. 8 The third finding was that "Papeen is a place to which it is possible to return without risk of persecution". There was evidence of the appellant's personal circumstances and the country information from which evidence and other material support for that finding can be seen to exist. 9 The fourth finding was that "the applicant is not included in most of the groups at risk…that the only category into which he may fall from those categories mentioned above is that he is a person considered as holding anti‑Taliban views". Again, I accept that the evidence before the Tribunal, the country information and the way in which the appellant conducted the case before the Tribunal supported these findings. 10 The fifth finding proposed to be in issue is that "there is no evidence to suggest that there has been fighting in the applicant's district for seven years". This is a negative finding to which on one view of the law, s 476(1)(g) read with s 476(4) is incapable of application. However, construing the Act in the most favourable way to the appellant, namely, that it would so apply, there was evidence or other material on which this finding could be based, being the same evidence or material supporting the abovementioned findings. 11 The final finding in issue was that "there is nothing in the evidence before me to suggest, nor was it submitted, that the applicant has a well‑founded fear of being persecuted for a Convention reason if he returned to Afghanistan". Reading this quotation in its full context, I accept that the submission for the respondent to the effect that there is nothing in the paragraph which would attract the no evidence ground of review is a correct submission. 12 So the position is that even if it was the case that the appellant, if given leave and an adjournment, could adduce new evidence arguably to the effect that the particular facts relied upon by the Tribunal in the above-quoted findings did not exist, that finding could not be made in favour of the appellant in the face of evidence and other material already in the reasons of the Tribunal which show that not to be the case. There would therefore be a futility to the adduction of the proposed further evidence. 13 Counsel for the appellant was not able to make submissions which in any way cast doubt on that view. She, however, did rely upon the decision of Tua Gul v Minister for Immigration & Multicultural Affairs (2000) 181 ALR 325, and particularly at pars 39-41. However, as Matthews J there made apparent in the final sentence of par 41, "where there is evidence which can arguably support the finding of the Tribunal, then there is no room for the application of s 476(1)(g)". That decision can therefore be distinguished on the facts presently before this Court as I view them. 14 It should also be said that the proposed evidence which the appellant's case contends should be called would bring to this Court evidence which was not evidence available at the relevant date, namely, the date on which the Tribunal reached its decision, which was 20 December 2000. That is not evidence which would assist in detecting an error of law in the reasons of the Tribunal unless the evidence had about it the character which would cast doubt on the matters to which I have referred, but that position is not contended for. 15 There is a further reason why it is apparent that the adduction of further evidence would not assist the appellant. The conclusions of the Tribunal were reached and expressed in two paragraphs which are set out in the reasons of the Tribunal: "I accept the applicant was once a minor functionary associated with the Jamiat-i-Islami party. I do not accept he was a senior or prominent official. I am satisfied that he has exaggerated his connection with the Party. I am not satisfied that his role as a minor functionary many years ago now gives rise to a well‑founded fear of persecution upon return to Afghanistan. The applicant said that the Taliban knew he was sent to Saudi by Rabbani to study, however the applicant had returned nearly 10 years earlier, and I am satisfied that this does not give rise to a fear of persecution for the applicant. I do not accept that the Taliban wants the applicant for attempting to start an uprising or for gathering weapons. Given his complete lack of involvement in military matters, the lack of military action in his area for several years, the distance from the area where Jamiat-i-Islami is operating, and his admission of lack of action in his interview with DIMA, I am not satisfied that he faces a real chance of being persecuted upon return to Afghanistan." It is apparent from these two paragraphs in the reasons of the Tribunal that the state of military action in the appellant's area was but one of a number of parallel links in the chain of reasoning of the Tribunal in coming to its conclusion. The findings of fact referred to in the proposed grounds of appeal all relate to that issue namely, the security in the appellant's district and home town. More fundamental to the conclusion of the Tribunal, perceived from a reading of its reasons as a whole, is that the appellant's involvement with the Jamiat-i-Islami Party was not such as would give rise to a well-founded fear of persecution. 16 There is a further evidentiary feature of the application namely, that the appellant does not bring before the Court any precise description of the proposed new evidence. The Court takes into account that it is said for the appellant that this may be due to the inaccessibility of the proposed expert. However, in circumstances such as here where it is apparent from the Tribunal's reasons and the matters presently before the Court that there is evidence available to support the findings of the Tribunal, any such additional evidence would not be of cogency to displace the matters which I have previously addressed. 17 It is additionally to be borne in mind that the application for leave to amend and the application for the adjournment are founded on the need to produce fresh evidence. The test for the admission of fresh evidence at the appellate level was restated by the High Court in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-142 where it was said: "In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of the 'demands of justice' and 'policy' that there be an end to litigation at least prima facie (or 'generally') dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest." The appellant's case as brought here does not bring any argument which would assist in meeting that stringent test. 18 It must also be borne in mind that the application for leave seeks to raise a new issue which was not considered before the primary judge. Three submissions were made on behalf of the appellant at first instance where he was represented, again pro bono. It is not sought to argue that he was in error of law in relation to any of those grounds. Where leave is sought to raise a new issue by amendment of grounds of appeal the authorities establish that the general proposition is that where the new grounds could possibly have been met by calling evidence at the hearing or may have resulted in the case of the respondent being differently conducted at the trial, leave will be refused. However, where all the facts have been established beyond controversy or where the point is one of construction or of law, then it is a question for the Court of Appeal whether it is expedient and in the interests of justice to entertain the point: Connection Fire Insurance Company v Kavanagh [1892] AC 473 at 480; Sutter v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Green v Sommerville (1979) 141 CLR 594 at 607-8; O'Brien v Komesaroff (1982) 150 CLR 310 at 319; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 482-3; Coulton v Holcombe (1986) 162 CLR 1 at 7-9; Water Board v Moustakas (1988) 180 CLR 491 at 497; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284; Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 at 455; Teoh v Minister for Immigration & Multicultural Affairs (1994) 49 FCR 409 at 411, 415, 416, 428 and 441. The present case falls into the former category and not the latter. 19 For these reasons I consider that leave to amend the notice of appeal in terms of the minute before the Court must be refused. That may not necessarily mean that the appellant is foreclosed from having considered by the appropriate authorities anything which fresh evidence developing since the date of the Tribunal hearing discloses. Counsel for the respondent has referred to the provisions in s 48B and s 417 of the Act to which the appellant may be able to have resort. 20 It follows, therefore, that the adjournment of the hearing of the appeal should also be refused. 21 It has been accepted on behalf of the appellant that failing the grant of leave to amend the notice of appeal, there is no other basis upon which the appeal should succeed. Accordingly, it follows that the appeal should be dismissed. 22 NORTH J: I agree with the reasons of Nicholson J and agree that the appeal should be dismissed. 23 GYLES J: I also agree with the reasons of Nicholson J and agree with the order proposed. I certify that the preceding twenty- three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson, Justice North and Justice Gyles. Associate: Dated: 14 December 2001 Pro Bono Counsel for the Appellant : Ms EA Lacey Solicitor for the Appellant: Minter Ellison Counsel for the Respondent: Mr MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2001 Date of Judgment: 29 November 2001