Federal Court of Australia AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 707 Appeal from: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1084 File number: WAD 303 of 2023 Judgment of: FEUTRILL J Date of judgment: 18 June 2024 Date of publication of reasons: 1 July 2024 Catchwords: PRACTICE AND PROCEDURE – application to reopen appeal after judgment reserved – appellant seeking to rely on new evidence – oversight of the appellant's legal representative – re-agitation of argument – not in the interests of justice to reopen – application to reopen dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Migration Act 1958 (Cth) s 473DD Cases cited: DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 Featherby v Commissioner of Taxation [2016] FCA 454 Fisk v Chief of Defence Force [2017] FCA 1489 Frigger v Trenfield (No 3) [2023] FCAFC 49 Frigger v Trenfield (No 7) [2020] FCA 1740 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 18 June 2024 Counsel for the Appellant: Mr D Taylor Solicitor for the Appellant: Sydney West Legal and Migration Counsel for the First Respondent: Ms C Taggart Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear ORDERS WAD 303 of 2023 BETWEEN: AAI20 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: FEUTRILL J DATE OF ORDER: 18 JUNE 2024 THE COURT ORDERS THAT: 1. Paragraph 1 of the appellant's interlocutory application dated 14 May 2024 be stood over and reserved to be addressed in the judgment on the appeal. 2. Paragraphs 2, 3 and 4 of the interlocutory application be dismissed. 3. The appellant pay the first respondent's costs of today and the application to date fixed at $3,000, and, otherwise the costs of the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT FEUTRILL J: 1 This is an interlocutory application on the part of the appellant, filed after written submissions and oral submissions in the appeal were made at the hearing on 9 May 2024. The appellant seeks, in effect, leave to reopen the appeal, orders to amend the notice of appeal, an order for leave to file and serve, and essentially rely on in the appeal, an affidavit of Mr Daniel Robert Taylor affirmed 13 May 2024, leave to file and serve additional submissions addressing additional arguments that the appellant wishes to run if the appeal were reopened, and also to provide the first respondent, the Minister, with an opportunity to file his own written submissions in response to them. 2 At the conclusion of the oral hearing on 9 May 2024, I made orders that granted the parties leave to file and serve a written outline of submissions limited to five pages addressing a narrow issue of, in substance, the correct approach to the question of materiality for non-compliance with the requirements of s 473DD of the Migration Act 1958 (Cth) as expressed by Colvin J in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 at [45]-[54], and if so, two additional questions were sought to be determined. 3 The Minister filed written submissions in response in accordance with that leave on 16 May 2024. On 24 May 2024, the appellant filed written submissions, in part addressing that issue upon which leave had been granted, and in part addressing submissions on the interlocutory application that is before me today, as well as other submissions relating to the merits of the issue the appellant wishes to agitate if the matter were reopened. The Minister then filed submissions in reply on 30 May 2024. 4 It is well-established that a superior court of justice has full power to rehear or review a case until judgment is drawn up, passed and entered: Featherby v Commissioner of Taxation [2016] FCA 454 at [8] (Gilmour J). However, it is a power that, in circumstances such as the present, where, after there has been an oral hearing, and although leave had been granted to deliver further written submissions on a limited question, in substance the matter had been reserved is rarely exercised. In those circumstances, in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [29], McHugh J said: Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing. 5 It was in accordance with the usual practice referred to in that quotation that I granted the parties leave to file further written submissions on the question of materiality. It was a matter that was not addressed squarely in the parties' written or oral submissions at that hearing, but a matter that arose from the way in which the arguments developed. 6 While the power is described as being exercised in extraordinary circumstances, the discretion is nonetheless exercised in accordance with well-established principles regarding applications to reopen. In short, the ultimate question is where the interests of justice lie: Frigger v Trenfield (No 7) [2020] FCA 1740 at [22] (Jackson J) and the cases his Honour there cites. His Honour also observed, based upon those well-established principles, that (at[23]): Broadly speaking, there are four recognised classes of cases where leave to reopen may be given, although the classes are not closed: (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law: Bradshaw at [24] (Kenny J); Spotlight [Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1] at [25]-[26]. Jackson J also noted that (at [24]): Likely prejudice to the party resisting the application will be relevant: [Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471] at 478. So will the public interest in the timely conclusion of litigation: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18]. ... 7 Having regard to the public interest in the finality of litigation, it is a general principle that leave to reopen is not granted for the purpose of re-agitating arguments already considered by the Court, nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its respects or as well as it might have been put: Fisk v Chief of Defence Force [2017] FCA 1489 at [28(4)] (Perry J) and the cases her Honour there refers to. 8 The appellant here not only seeks to reopen the appeal, but wishes to rely, as I have mentioned earlier, on an affidavit of Mr Taylor. Again, the principles upon which a Court will receive further evidence on appeal are well-established and was summarised in Frigger v Trenfield (No 3) [2023] FCAFC 49 at [151]-[152] (Allsop CJ, Anderson and Feutrill JJ): 152 The power is not limited to 'fresh' evidence (i.e., evidence of which the [appellant] was unaware at the time of the original hearing and with reasonable diligence could not then have been obtained), but the exercise of the power is informed by the principles applicable in common law proceedings with respect to the allowance of a motion for a new trial on the ground of discovery of fresh evidence. The power should be construed liberally, although it is not unfettered, and is to be exercised having regard to the subject matter, scope and purpose of s 27 of the [Federal Court of Australia Act 1976 (Cth)]. That includes having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M of the [Federal Court Act]. The discretion must be exercised judicially and s 27 should not be construed in such a way as to obliterate the distinction between original and appellate jurisdiction. The principles generally mean the application should provide an explanation of the reasons for failing to adduce the evidence at trial. But, the power is remedial. Thus, an important consideration in determining whether it should be exercised is whether, if the further evidence had been available at the trial, it would have produced, or at least would be likely to have produced, a different result. 9 Turning now to the application to reopen, the appellant wishes to reopen the appeal so as, in effect or in substance, to make a further argument as to the reasons for the appellant contending that the Immigration Assessment Authority's decision, in particular in para 22 of the Authority's decision, was legally unreasonable when it reached the conclusion that it was not satisfied that a photograph allegedly depicting the appellant was in fact that of the appellant as claimed. 10 There were two versions of the photograph, one photograph itself, and another a screenshot of a photograph, that were in the materials before the Authority. The appellant wishes to now argue that on one view of para 22 of the Authority's reasons it had misunderstood or misapprehended that the screenshot did not originate from the appellant's nephew, but rather originated from the appellant's legal representative, and the distinction was not a factor the Authority took into account in reaching the conclusion expressed at para 22 of its reasons. There were various ways in which it was said that the issue arose, including that the question of whether that misapprehension occurred was in fact identified in the Minister's written submissions of 3 May 2024, at para 36 and para 37 of those submissions in particular. What is immediately apparent is that if and to the extent that issue was raised by the Minister, it was raised before the oral hearing on 9 May 2024. 11 The appellant was asked to provide submissions on the ground upon which he seeks to have the Court grant leave to reopen the appeal. The submissions in response were not particularly precise, however, it emerged during the course of oral argument on this topic that it might be categorised as inadvertence or oversight on the part of the appellant's legal representative in that, although variously expressed, the expression used was words to the effect it had not occurred to the legal representative that the Authority would have made such a mistake. He had given the benefit of the doubt to the Authority in the way in which para 22 of the reasons of the Authority had been construed and other expressions to similar effect. 12 None of those kinds of expressions readily fall within recognised categories for exercising the power to reopen before final judgment, and as the issue became clearer as to what the appellant wishes to argue if the matter were reopened, in my view, it falls squarely within the characterisation of re-agitating arguments already considered by the Court, or parties seeking a rehearing because they failed to present the argument in all respects or as well as might have been put on 9 May 2024. 13 Having regard to the principle of finality and s 37M of the Federal Court of Australia Act 1976 (Cth), I am not satisfied that this is an appropriate case to permit a reopening so as to allow the appellant to, in effect, as I have said, re-agitate an argument that has already been run. 14 That conclusion more or less also addresses or deals with the application to adduce further evidence in the appeal, because if there is no reopening, there can be no further evidence. But, for the sake of completeness, I would also refuse, even if the matter were reopened, the application for leave to rely on further evidence because the further evidence upon which the appellant seeks to rely, in effect, is evidence as to the provenance of the screenshot, but that is not evidence that would assist the Court, either before the primary judge or on appeal, to determine whether or not the Authority made an error of the kind that can be set aside on judicial review. It is an affidavit of evidence that takes issue with the factual finding, if made, by the Authority on that question. Therefore, in accordance with the well-established principles, it is not evidence that could have resulted in a different conclusion before the primary judge. 15 There are two issues that arise from the consequences that flow from what I have just said. In my view, it does not entirely address or deal with the appellant's application to amend the notice of appeal because the proposed amendments to the notice of appeal, at least in part, capture the substance of arguments that were articulated by the parties in written submissions and in oral submissions on 9 May 2024. Therefore, insofar as the application concerns the notice of appeal, I intend to reserve my decision on that and deal with that in the reasons on the actual appeal itself, and consider whether or not it would be appropriate, having regard to the way in which the arguments actually were run on the appeal, to amend the notice of appeal so as to conform with the arguments the parties addressed. 16 The final matter concerns the submissions that the appellant filed on 24 May 2024 that, to a substantial degree, go outside the leave granted on 9 May 2024. In the course of the oral argument, I asked counsel for the appellant to identify those paragraphs of the written submissions that are directly responsive or that address the issues upon which the parties had been granted leave, and these were identified as paras 18-21 of those submissions and paras 46-52. Accordingly, I will receive those paragraphs as the appellant's submissions on the questions upon which leave was granted and will ignore the submissions insofar as they address any other topics. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate: Dated: 1 July 2024