Ghomrawi v Minister for Immigration and Multicultural Affairs

[1999] FCA 1357

FEDERAL COURT OF AUSTRALIA

Ghomrawi v Minister for Immigration & Multicultural Affairs [1999] FCA 1357

PRACTICE & PROCEDURE – application for leave to re-open – whether court should grant leave to adduce fresh evidence – where failure to adduce evidence in question the result of inadvertence – potential importance of the evidence to applicant’s case – whether any prejudice to the respondent that could not be remedied by an appropriate costs order

HASSAN GHOMRAWI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N398 OF 1999

EMMETT J
24 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	24 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to re-open his case to rely on the affidavits of Kylie Ghomrawi sworn 24 September 1999 and Alex Lee sworn 23 September 1999.

2.        The costs of today be reserved.

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	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	24 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This application was brought initially under Part 8 of the Migration Act 1958 (“the Act”). The relief now sought, however, goes beyond the matters that are covered by Part 8, although it may be that section 196(3) of the Act will preclude the additional relief that is sought. I commenced the hearing of the proceeding on 14 September 1999. The matter proceeded part-heard on 15 September 1999 and 22 September 1999. On 22 September 1999, the parties indicated that both cases were closed. I adjourned the matter for submissions to Tuesday, 28 September 1999.

2. In the course of the hearing, an affidavit of Kylie Ghomrawi sworn 17 June 1999 was read.  In that affidavit, Mrs Ghomrawi said that, on or about 18 November 1996, she, her husband (the applicant) and a friend, Rhonda Jaber, went to the Bankstown office of the Department of Immigration & Multicultural Affairs (“the Department”) for the purpose of lodging an application for a residence visa for the applicant.  Mrs Ghomrawi said that she handed the visa application to Irene Capra, an officer of the Department.  Mrs Ghomrawi's evidence was that Ms Capra would not accept the visa application and handed it back. 

3. I inquired in the course of the first day's hearing whether the document, which Mrs Ghomrawi said she handed to Irene Capra, would be in evidence.  I understood counsel for the applicant to say that it would be.  That may have been a misapprehension on my part.  In any event, on the second day of the hearing, counsel said that there would be no tender of the document in question. 

4. I observed, before I adjourned the matter on the third day, that it would be difficult for me to make any findings as to the nature of the document that is alleged to have been tendered on 18 November 1996.  That apparently prompted Mrs Ghomrawi to speak to her solicitor.  Today I have seen an affidavit from the solicitor for the applicant and a further affidavit from Mrs Ghomrawi in which it is asserted that a document, which is marked AL1 and which is referred to in both affidavits, was handed by Mrs Ghomrawi to the applicant's solicitor, Mr Alex Lee, in about May 1999.

5. Leave is now sought on behalf of the applicant to re-open the applicant's case in order to adduce evidence as to the provenance of that document, including evidence that it is the document which is said to have been handed to Ms Capra on 18 November 1996.  The affidavit of Mrs Ghomrawi that was read on the first day of the hearing was sworn, as I have said, on 17 June 1999.  It is somewhat extraordinary that the document was not exhibited to Mrs Ghomrawi at the time of swearing that affidavit.  Mr Lee says that, although the documents were handed to him with other documents in about May, he did not at that time notice the documents that are now marked as AL1.

6. The application for leave to re-open was opposed.  Counsel for the Minister for Immigration & Multicultural Affairs (“the Minister”) did not point to any prejudice, so far as the Minister is concerned, that could not be remedied by an appropriate order for costs.

7. One matter adverted to is that the inquiry as to what happened on 18 November 1996 may well be pointless because of the provisions of section 196(3) which, on one view, would preclude the court from ordering the release of the applicant from immigration detention. That, of course, is one of the issues that I will have to decide in the case. It would have been possible for the operation of that prohibition to be the subject of argument before hearing evidence. However, that course was not adopted. Having embarked on a hearing of the factual matters that are said to support the relief sought by the applicant, I am bound to take all of the evidence as to that issue that the parties wish to have before me.

8. In ordinary circumstances, there must be an end to litigation.  Where a party is represented by legally qualified practitioners, a decision made to close a case and not to adduce further evidence should be binding.  However, I accept that, for whatever reason, documents that are significant to the applicant's case were overlooked by the applicant's legal advisers.  In the absence of any prejudice to the Minister that cannot be corrected by an order for costs, I consider that it is appropriate to give the applicant leave to re-open to adduce such evidence as he is advised concerning the provenance of the documents in question.

9. It has, of course, been necessary for an extra appearance to deal with this question.  It may be that, as a consequence of the new material, further evidence will be required from the Minister.  It is also possible that, when the Minister has obtained full instructions, a submission might be made that the conduct of the case might have been different, so far as the incurring of costs is concerned, had this document been made available at the time when the affidavit of Mrs Ghomrawi of 17 June 1999 was served.

10. It has not been suggested on behalf of the Minister that the conduct of the case would have been different had this material been presented in good time such that the Minister has been prejudiced in the way in which his case has been conducted.  On the other hand, it may well be that costs have been incurred that would not have been incurred.  The question of who should bear those additional costs will have to await the outcome of the proceeding, but it may well be that I would have to consider an order for costs against the applicant’s legal advisers.  I will not, of course, consider such an order unless an application is made and an appropriate opportunity to be heard has been given.

11. In the circumstances, I propose to give leave to the applicant to re‑open his case to rely on the affidavit of Kylie Ghomrawi sworn today and the affidavit of Alex Lee sworn on 23 September 1999.  Mrs Ghomrawi, of course, must be available for cross‑examination if required at the further hearing next Tuesday.  I will reserve the question of whether or not the Minister wishes to adduce further evidence in the light of this additional evidence from the applicant.

12. I will not make a direction about the matter but would expect the Minister to notify the applicant as soon as practicable of the nature of any additional evidence intended to be adduced next Tuesday.  I have in mind, for example, that a document, which was tendered on behalf of the Minister and objected to and therefore not pressed, may now be re-tendered.  That, of course, is a matter for the Minister.

13. The order I propose to make at this stage is to give leave to the applicant to re‑open his case in the manner which I have just foreshadowed.  I propose to reserve the costs of 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.

Associate:

Dated:             29 September 1999

Counsel for the Applicant:	J.M. Gersten
Solicitor for the Applicant:	Alex Lee
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 September 1999
Date of Judgment:	24 September 1999