FEDERAL COURT OF AUSTRALIA Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 1685 KOSALA GIHAN TENNAKOON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 601 OF 2001 DRUMMOND, RD NICHOLSON AND SUNDBERG JJ 23 NOVEMBER 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 601 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KOSALA GIHAN TENNAKOON APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: DRUMMOND, RD NICHOLSON AND SUNDBERG JJ DATE OF ORDER: 23 NOVEMBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for leave to amend the notice of appeal and for adjournment of the hearing is refused. 2. The appeal be dismissed. 3. 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 VICTORIA DISTRICT REGISTRY V 601 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KOSALA GIHAN TENNAKOON APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: DRUMMOND, RD NICHOLSON AND SUNDBERG JJ DATE: 23 NOVEMBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 DRUMMOND J: Counsel who now appears for the appellant has made application to the Court for leave to amend the notice of appeal to raise the following new ground of appeal: "There was no evidence or other material to justify the making of the decision relating to the appellant by the Refugee Review Tribunal that 'the Tribunal affirms the decision not to grant a protection visa', made at Melbourne on 14 February 2001 in Tribunal File V00/12114. Particulars The member constituting the Tribunal based the Tribunal's decision relating to the appellant on the existence of a particular fact, namely the non-existence of an arrest warrant relating to the appellant, and that fact did not exist because the arrest warrant did and does exist." 2 An adjournment of the hearing of the appeal is also sought: if leave to amend is granted, the appellant would need time to assemble the evidence he would need to put before this Court to make good the new ground of appeal. 3 The question for the Court is whether the appellant has laid a sufficient foundation to justify the Court granting an adjournment, which the appellant's counsel acknowledges is necessary, to give the appellant the opportunity to marshal the evidence that would be required, if the proposed new ground of appeal were to be able to be sustained. Evaluation of the material put before us to justify such an adjournment does not require the Court to form a concluded view on the substantive matter the subject of the proposed new ground of appeal. But it is, in my view, essential to carefully evaluate the cogency of the material now before the Court in order to determine whether any point would be served by granting the adjournment sought, that is, in order to determine 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 if the adjournment were granted. 4 It seems to me that on the material before the Court today there is no or only the most remote prospect that the appellant will be able to put forward the necessary proofs to make out the subject matter of the proposed new ground of appeal if he were granted the adjournment sought. 5 The matter can be approached I think in this way. Taking the view most favourable to the appellant, it can be assumed that the Tribunal's decision was based on the existence of a particular fact for the purposes of s 476(4)(b) of the Migration Act 1958 (Cth), namely the non-existence of the 1993 arrest warrant. It can also be accepted that evidence of the existence of the warrant would be admissible in proceedings in this Court to prove the fact that such a warrant was issued against the appellant. But before this Court would look at interfering with the decision of the Tribunal on the ground of the existence of an arrest warrant contrary to the view formed by the Tribunal on that matter, the evidence that the appellant would have to put before the Court would have to be evidence in legally admissible form proving the existence of the warrant, and it would have to be of such cogency as to demonstrate that matter clearly. That is, the evidence would have to be of sufficient probative force to establish the existence of the arrest warrant. 6 The affidavits relied on by the appellant today, coupled with the document put before the Court as a facsimile copy of the arrest warrant, the subject of discussion today, do not, in my opinion, suggest that if the adjournment is granted evidence of the requisite cogency to make out the proposed new ground of appeal is likely to be obtained. 7 Against the background of the case, the affidavit evidence explaining the eleventh hour discovery of what is said to be the arrest warrant is lacking in plausibility. The appellant raised the issue of the existence of a warrant for his arrest in 1993 at the outset of proceedings for his protection visa, that is, in the statutory declaration which he swore in December 2000 in support of his protection visa application. It was a matter that was canvassed at the hearing by the appellant in his evidence to the Tribunal. It was dealt with at some length in the reasons of the Tribunal given in February 2001 where the Tribunal explained why it did not accept that any such warrant had been issued. The Tribunal summarised the appellant's evidence as constituting a claim that in December 1993 the police came to his home and gave his mother a warrant for his and another person's arrest. The Tribunal recorded that the appellant told the Tribunal at the hearing that the warrant had stated that the appellant was charged with doing things against the government. 8 In his affidavit, the appellant says his mother found the warrant only a couple of days ago. It has been at her home in Colombo since she was given it in 1993. It is a document of central importance to the appellant's claim to be a refugee. There is no explanation for why his mother has only now been able to locate it. 9 There are explained inconsistencies in the position before us as to the production now of a facsimile of the warrant. For example, in his evidence to the Tribunal, the appellant sought to explain the non-production of the warrant at that stage on the basis that his mother was fearful of posting the document to him here in Australia. In contrast, there appears to be no such concern now on the mother's part: the appellant deposes to discussions a couple of days ago with his mother, about despatching by facsimile a copy and then by post the original of the warrant to the appellant. 10 Importantly, the document that has been put before us in facsimile form falls far short of providing a foundation for thinking that, if the adjournment were granted, the appellant would be able to demonstrate that proceedings were taken against him in Colombo in 1993 by the authorities for his arrest. 11 The document is plainly not a warrant for the arrest of the appellant. It appears to be a form of summons to an accused person to attend a Magistrates Court. More significantly, the document is incomplete in important respects. No date of required attendance appears in the document. That is left blank. The date of issue of the document is also left blank. The offence in respect of which the document purports to be a summons for the appellant's attendance at court is not identified: there is merely an incomplete reference to the penal code. In short, there is nothing on the face of the document to indicate that, if time is given to produce the original, the original will be able to be identified as an authentic process issued out of the Magistrates Court requiring the appellant's attendance to answer a criminal charge. 12 For these reasons, I do not consider that any purpose would be served by granting the adjournment sought and I would refuse the adjournment and leave to amend. 13 Counsel for the appellant who has presented a careful argument in written submissions, supplemented with helpful oral submissions, acknowledges that if the adjournment is refused with the consequence that the appellant does not have the opportunity to raise the proposed new ground of challenge to the decision below, the appeal must fail. It would therefore follow, in my opinion, that the appeal should also be dismissed. 14 NICHOLSON J: I agree. 15 SUNDBERG J: I am of the same opinion. 16 DRUMMOND J: The order of the Court will be the application for leave to amend the notice of appeal and for adjournment of the hearing is refused and the appeal is dismissed. The Court will further order that the appellant pay the respondent's costs of the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, RD Nicholson and Sundberg. Associate: Dated: 29 November 2001 Counsel for the Appellant: Mr A Krone Solicitor for the Appellant: Hunt & Hunt Counsel for the Respondent: Mr G Gilbert Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23 November 2001 Date of Judgment: 23 November 2001