MUHAMMAD v Minister for Immigration

[2020] FCCA 1586

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUHAMMAD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1586

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Where documents not before the Tribunal were annexed to an affidavit sought to be relied upon by the applicant – whether documents were admissible for the purpose of the hearing of the application for review – where deponent of affidavit failed to establish that documents were applicable documents which could have been considered by the Tribunal – documents irrelevant and ruled inadmissible.

Applicant: NOOR MUHAMMAD

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 881 of 2019

Judgment of: Judge Egan

Hearing date: 15 June 2020

Date of Last Submission: 15 June 2020

Delivered at: Brisbane

Delivered on: 15 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Mr Psaltis

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The oral application made on behalf of the applicant to rely upon the affidavit of Carina Ford filed on 8 May 2020 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 881 of 2019

MUHAMMAD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. At the commencement of the hearing before the Court today, Mr Aleksov of Counsel made application on behalf of the applicant for admission into evidence of an affidavit of one Carina Ford filed on 8 May 2020. 

2. The affidavit of Ms Ford purported to annex documents which were not before the Administrative Appeals Tribunal (‘the Tribunal’) at the time of hearing or decision. 

3. The documents marked as annexure CF-1 which were sought to be relied upon by the applicant related to the type of academic entry requirements which were submitted as having to be met for entry into a Graduate Diploma of Telecommunications Network Engineering.  The documents which constituted annexure CF-1 had a 2018 copyright stamp on them.  It was submitted by Mr Aleksov that because of the existence of such copyright stamp on the documents, and because the documents had been printed out, presumably by Ms Ford in April 2020, the Court should infer that the documents were current for the purpose of assessing relevant academic entry requirements as at the date of the decision of the Tribunal on 13 September 2019.  The Court is not prepared to accept that submission.

4. Nowhere in the affidavit of Ms Ford was it deposed that the documents annexed to her affidavit set out the relevant academic entry requirements as at the date of decision.  It is trite that although a document which bears a 2018 copyright stamp may be able to be searched on the internet and downloaded, subsequent but different editions of a document dealing with the same or similar topic, also bearing a 2018 copyright stamp, can also be searched and downloaded. A similar document relating to the same topic but bearing a 2019 copyright stamp might also be searched, downloaded, and printed.

5. The Court is not satisfied that the documents annexed to the affidavit of Ms Ford have been appropriately identified by Ms Ford as being  documents which were applicable for the consideration of the Tribunal at the time of decision. As a consequence of such lack of proof, the annexure is irrelevant for the purpose of this Court’s consideration of the applications for review, and therefore inadmissible.

6. As to annexure CF-2 to the affidavit of Ms Ford, the same considerations apply in respect of the documents there sought to be relied upon. It is noted that no copyright stamp appears on such documents.

7. The Court dismisses the application made on behalf of the applicant for inclusion of such documents as part of the evidence before this Court.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 19 June 2020