AJY19 v Minister For Immigration and Anor (No.2)

[2019] FCCA 3463

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJY19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 3463

Catchwords:
MIGRATION – Application for leave to file and read late affidavit material not before the Immigration Assessment Authority – no exceptional circumstances demonstrated – application refused.

Legislation:

Migration Act 1958 (Cth) s.476.

Cases cited:

SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145.

Chandra v Webber [2010] FCA 705.

Applicant: AJY19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 90 of 2019

Judgment of: Judge Egan

Hearing date: 15 November 2019

Date of Last Submission: 15 November 2019

Delivered at: Brisbane

Delivered on: 15 November 2019

REPRESENTATION

Solicitors for the Applicant: Mr Markwell of WJ Markwell & Associates Lawyers

Counsel for the First Respondent: Mr A. Psaltis

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Application to read and file further affidavit of applicant refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 90 of 2019

AJY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. A preliminary matter was raised at the commencement of the hearing as to admissibility of an affidavit sworn by the applicant. That affidavit sought to have annexed to it documentation which supported the proposition, as advanced in paragraph 35 of the applicant’s outline of argument, which was to the affect that the Authority, in making the findings which were adverse to the applicant, was wrong. It is to be noted that, in one respect, a letter alleged to be from a police station in Ethiopia supportive of the applicant’s case was dated 9 July 2018, that being approximately six months before the decision of the Immigration Assessment Authority in this matter. 

1. It was suggested that that letter was received by the applicant via a DHL Express document delivery on 4 January 2019. No satisfactory reason has been given as to why, if that document had been received in early January 2019, it could not have been provided to the Authority soon after that at a time well before it handed down its decision on 18 January 2019. 

2. Otherwise, the affidavit seeks to annexe medical notes which in large part post-date the decision of the authority. 

3. The question of the admission of fresh evidence by a court of review in circumstances similar to this was considered by McKerracher J in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [20] where it was said:

   “[20] There is no indication in the transcript of the Tribunal hearing or any other record, that this document was ever put before the Tribunal.  There is also no indication either that any request was made to the Tribunal for it to consider the document.  The document has not been translated and its content is uncertain.  To the extent it could possibly be taken as a suggestion that it was an arrest warrant for the appellant’s father, that contention does not sit well with the evidence the appellant gave before the Tribunal that his parents had never been in trouble with the authorities.  There is no indication or evidence supporting any negligence or fraud on the part of the appellant’s migration agent.  All indications would appear to be to the contrary as the appeal book shows a substantial amount of activity having been conducted on behalf of the appellant by the migration agent.  But, in any event, if all of this were wrong, it does appear to me that the learned Federal Magistrate was correct in saying that it was neither open to the Federal Magistrates Court (any more than it would be open to this Court) to receive fresh evidence going only to the merits.  The document can only be relevant to the finding as to any real risk of suffering harm for reasons of his religion or for any other reason.  While it may theoretically be arguable or conceivable that this document should have been brought to the attention of the Tribunal or at least the content or the substance of the document raised with the Tribunal at an earlier time, its receipt now is only capable of going to a merits review on the fear of persecution point.”

4. In this case, the applicant seeks to rely upon the material annexed to his affidavit as a means of inviting this Court to conduct a merits review of the factual findings of the Authority. That is something which this Court cannot do. 

5. Mr Markwell appeared on behalf of the applicant. He argued that it was open for this court to allow into evidence before it, documentation of the character sought to be introduced today. Reliance was placed upon the decision of Bromberg J in Chandra v Webber [2010] FCA 705 at [40] – [42] inclusive.

6. The factual circumstances, in which a Court of review might receive evidence in the nature of new evidence, or fresh evidence, must be exceptional. The regime within which applications for review are conducted pursuant to the provisions of s. 476 of the Migration Act1958 (Cth) necessarily involve a review of decisions in its capacity as a court of review.

7. This Court is not in the position of being able to conduct a further hearing of the matters which are the subject of the application for a visa.

8. This Court is not minded, in the exercise of its discretion, to receive into evidence that which is sought to be introduced. The application for reliance upon the affidavit filed on 8 May 2019 by the applicant is dismissed accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 November 2019