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On a proper construction of Section 500(6H) of the Migration Act 1958 (Cth), did the AAT err in in not allowing oral evidence from witness where applicant had not provided Minister with a written statement outlining evidence of that witness?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21 (28 February 2022)

Intro:-

This appeal raises a question concerning the proper construction of s 500(6H) of the Migration Act 1958 (Cth).

Facts:-

The background to this proceeding is set out in the Reasons of the primary judge: see DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 at [5]- [7]:

In or around 1994, the applicant was born in South Sudan. In 2004, the applicant was granted a humanitarian visa and arrived in Australia. He remains in Australia. Between 22 June 2012 and 24 November 2017, the applicant was convicted of a number of criminal offences. On 16 January 2018, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act. The applicant made representations for the cancellation to be revoked. On 21 September 2018, a delegate of the Minister (delegate) determined not to revoke the cancellation of the applicant’s visa.

On 27 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision. It is not in contest that, as required by s 500(6F), the Minister lodged with the Tribunal copies of the documents in the Minister’s possession relevant to the making of the delegate’s decision which the Tribunal’s reasons refer to as the “G documents”. On 11 October 2018, the Tribunal made directions, including a direction that the applicant file submissions and any further evidence on which he proposed to rely at the hearing and serve a copy on the Minister by 22 November 2018. The applicant did not file any submissions, nor did he submit any further evidence prior to the Tribunal hearing held on 3 December 2018. However, immediately before the hearing commenced, the Tribunal was informed that the applicant’s partner and his former teacher were present and that the applicant, who was self-represented, wanted to call them as witnesses. The Minister did not object to the former teacher giving evidence on account of the fact that the documents before the Tribunal included a letter written by the teacher. Objection was taken, however, to the Tribunal receiving any evidence from the applicant’s partner. The Minister submitted to the Tribunal that s 500(6H) of the Act prevented the applicant from calling his partner as a witness because she did not provide a witness statement to the Minister two clear days prior to the hearing.

The Tribunal determined not to permit the applicant’s partner to give evidence.

Section 500(6H) of the Migration Act relevantly provides:

500 Review of decision

...

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

There was no debate between the parties before the primary judge that the factual preconditions in s 500(6H)(a) and (b) were met: Reasons at [5].

Section 500(6J) should also be set out:

(6J) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

Decision of Primary Judge

The primary judge framed the question of construction in the following way at [13]-[14] of the Reasons:-

The issue for determination is therefore this: Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

If the answer to that question is yes, the Tribunal did not misconstrue s 500(6H) and its decision to refuse to receive the evidence of the applicant’s partner was free of error. Subject to the issue of materiality later discussed, if the answer is no, the Tribunal misconstrued s 500(6H) of the Act, denied the applicant procedural fairness and jurisdictional error would be established.

The primary judge held the answer to this question was “no”. His Honour drew a distinction between notice being given about the “content” of information and notice being given about the information’s “source” (i.e., the particular witness): see Reasons at [33], read with [42]-[47]. His Honour found prior notice of the “source” need not always be given; it would depend on whether proper notice of the source was “critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing”: Reasons at [45]-[46]. His Honour rejected the Minister’s contention that “statement” should be read as though it means “witness statement”: Reasons at [41].

Subject to circumstances where the source was critical, his Honour found all that needed to exist in the materials before the Tribunal were “written communication[s] asserting particular facts about a situation, person or event”: Reasons at [40].

Applying this construction to the facts, the primary judge found that the Tribunal had misconstrued s 500(6H) by construing it as always requiring prior notice of the source of the information to be presented orally, and by requiring that there must be a written statement outlining the evidence to be given: Reasons at [48].

In the circumstances before the Tribunal, no advance notice had been given that the first respondent sought to call his partner to give oral evidence. At [17] of the Reasons, the primary judge set out the first respondent’s contention about where in the material before the Tribunal there were written statements sufficient to comply with s 500(6H), on the construction for which the first respondent contended:

The applicant submitted that the oral evidence of his partner should have been heard and taken into account to the extent that it substantively conformed to what had previously been set out in written statements provided to the Minister. The applicant referred to various information which the applicant’s partner could have addressed contained in the documents before the Tribunal (and of which the Minister had prior notice), including:-

- descriptions of the applicant’s relationship with his partner and her children in the statement of personal circumstances in the applicant’s application to revoke the cancellation of his visa; and

- a record of an interview with the applicant describing his relationship with his partner.

The documentary materials before the Tribunal also included a personal statement from the applicant in which he expressed his remorse about his misconduct and the hurt caused to his family. On the applicant’s contention, each of those documents contained information set out in a written statement and provided to the Minister within the meaning of s 500(6H).

Although later in his reasons the primary judge does not make an express finding about where in the materials before the Tribunal the written statements were, it appears that his Honour accepted the first respondent’s contention, which he had extracted at [17]. In other words, the primary judge considered s 500(6H) was not engaged because there were, in the materials already before the Tribunal, “written communication[s] asserting particular facts about a situation, person or event”, that being his Honour’s conclusion of what s 500(6H) required: Reasons at [40].

The primary judge admitted, over the Minister’s objection, an affidavit from the first respondent’s partner about the evidence she would have given to the Tribunal if permitted to do so. His Honour found at [53] that:-

"the applicant’s partner would have given evidence about a broad range of matters, including her relationship with the applicant, her children and how they might be affected if he were deported."

The primary judge relied on this affidavit to find the Tribunal’s error was material and therefore jurisdictional, although this passage also illustrates the breadth of the evidence that was proposed to be given by the first respondent’s partner.

Issue:-

Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

Consideration:-

The Minister contends on the appeal that the primary judge erred in the construction he gave to the prohibition in s 500(6H). The Minister submits that s 500(6H):-

"prevent[s] the Tribunal having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing."

(Original emphasis.)

The Minister makes the following submissions in support of his overall contention:

(a) The use of the word “statement” in the provision does not suggest any particular form of document, in the sense that there need not be a signature, nor any affirmation: see Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; 196 FCR 509 at [38]- [39].

(b) However, Parliament’s use of the term “written statement” means what it says, especially since s 500(6J) uses “document” in quite a different context. Therefore, a review applicant must provide, at least two days before a review hearing, a written statement setting out the information to be given by a particular witness. A “piecemeal” collection of documents already in existence before the Tribunal does not suffice.

(c) The Tribunal’s procedures for receiving evidence inform the construction of s 500(6H), even if the Tribunal is directed to conduct its proceedings with as little formality and technicality as consideration of the matter before the Tribunal permits. The use of the word “statement” in s 500(6H) should be construed accordingly to mean “a document containing or outlining the evidence to be given by a particular (and identified) witness”.

These submissions and the Minister’s overall contention should be accepted. In our opinion, they reflect the basic requirement imposed by the provision which is evident from the text and context of the prohibition, without any artificiality or strained approach being applied. There may be some nuances in its application to particular circumstances: see DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 at [69]. However, as the High Court made clear in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. The provision does not fetter the power of the Tribunal to adjourn a review, so as to ensure that the review is conducted thoroughly and fairly: Uelese at [57], [70], [77].

The Minister’s comparison with the text of s 500(6J) is justified and important. The two provisions must be read together. When that is done, it is clear that Parliament intended the two provisions to cover all the categories of material likely to be before the Tribunal on a merits review of a decision under s 501 or s 501CA(4) of the Migration Act, and to impose some restrictions across all those categories of material.

In particular, Parliament’s choice of the phrases “information presented orally in support” and “written statement given to the Minister” in s 500(6H) on the one hand, compared with the phrases “any document submitted in support” and “a copy of that document” in s 500(6J), makes it clear that s 500(6H) is directed towards witness testimony and s 500(6J) is directed towards all other forms of material before the Tribunal. Counsel for the first respondent on the appeal is correct to note that the term “document” includes material wider than written information. The word is not relevantly defined in the Migration Act, but the Acts Interpretation Act 1901 (Cth) provides an extended definition in s 2B:

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

Thus, all material falling within this definition, including written information, is covered by the restriction in s 500(6J).

Witness testimony – oral testimony in chief – is the subject matter of the restriction in s 500(6H): Uelese at [104]. Oral submissions do not fall within s 500(6H): Uelese at [103]-[104].

In addition to Uelese, the Minister relied on DCR19 at [68] and [73], SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; 141 ALD 395 at [70], and SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (SZRTN (Full Court)) at [27], all of which the Minister submits are consistent with these contentions.

The following points emerge from these authorities:

(a) A witness may give evidence orally which expands upon what is in a statement so long as they do not stray outside the subject matter of the statement, fairly understood: see SZRTN at [70].

(b) In any given review, the application of s 500(6H) may be somewhat iterative. Where there has been some compliance with s 500(6H), the restriction may nevertheless apply to some parts of a witness’s oral evidence. Through a process of adducing oral evidence and objections, the Tribunal may need to form a view about which, if any, oral evidence departs, in a substantive way, from the content of any written statements: see DCR19 at [71]; SZRTN (Full Court) at [27].

(c) Section 500(6H) does not require a written statement to be in any particular form. Its purpose is to give fair notice to the Minister of what a review applicant’s case will be, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case: DCR19 at [58]. See also Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; 111 FCR 378 at [25].

(d) The restriction does not impede cross-examination, nor questioning by the Tribunal itself: Uelese at [59].

(e) Section 500(6H) does not deny a review applicant an “entitlement” to rely upon evidence adduced by the Minister or elicited by the Tribunal itself, if that evidence happens to be supportive of the applicant’s case: Uelese at [72].
24 The dictionary meaning of “statement” as including a “communication” or “document” does not take the task of determining the correct meaning of s 500(6H) any further. This is a situation where the statutory term is not just “statement”, but a larger phrase. The whole phrase, which has as its subject “any information presented orally”, is “set out in a written statement given to the Minister...”. In that context, it is clear that Parliament intends to refer to a document that records in writing the substance of what a person will say when that person gives oral testimony to the Tribunal. It must also be a statement that is “given” to the Minister, being a verb that requires some kind of advance notice to the Minister in a positive sense, about what testimony a person is proposed to provide in support of the review of the applicant’s case.

It does not have to be a statement made by the person who will give evidence; for example, it could be an outline provided by a migration agent or lawyer on behalf of a review applicant, or by a review applicant themselves in a letter or an email. The “written statement” might provide an outline of what more than one person will say. The terms of s 500(6H) are not prescriptive about these matters.

The construction advanced by the Minister, and which we consider to be correct, has nothing to do with “perfection”, contrary to the first respondent’s submissions. While the written statement must “set out” the information in support to be given orally, no excessive or unreasonable scrutiny should be applied to the content of the written statement. Otherwise, the point of calling a person to give oral evidence would be defeated: SZRTN at [70].

The Minister also submits that the primary judge’s construction of s 500(6H) would give rise to significant uncertainty and impracticality, and contends that a construction which would lead to such anomalous results should not be adopted without clear and cogent language to that effect:

Without some written indication of the evidence to be given by each particular witness, the Minister will not be in a position to effectively identify the case that they are required to meet, nor to assist the Tribunal in identifying the evidence to which it is permitted to have regard under s 500(6H). If a ‘written statement’ merely means that evidence consistent with that anticipated to be given by a witness has been recorded in writing at some point in the material provided to the Tribunal (even if, as in this case, that material records the evidence of a completely different person), then the resolution of any objection to evidence in chief under s 500(6H) will require parties and Tribunal alike to scour the entirety of the written material before the Tribunal to determine if anything equivalent has ever been recorded in writing at any previous point. Parliament cannot and should not be taken to have intended that s 500(6H) should require a prolonged, complex and potentially contested inquiry of that kind without clear language to that effect.

(Original emphasis.)

We agree. The Tribunal operates in a practical and pragmatic jurisdiction, with many self-represented litigants who also need to comply with its processes and any statutory restrictions or directions. It operates under a great deal of time pressure (including time limits imposed under this Act for the conduct of these kinds of reviews: see Migration Act s 500(6L)), with a high volume of reviews to conduct. Provisions regulating its processes must be construed in that context. In this legislative scheme, it is unlikely Parliament intended that the application and operation of the restriction in s 500(6H) could only be understood after an exhaustive search of all the material before the Tribunal, and the piecing together of bits of information from different sources to see if they correlate with the proposed oral evidence of a witness.

The Tribunal’s refusal to allow the first respondent’s partner to be called at all

There was some suggestion in the first respondent’s submissions that the Tribunal erred in not permitting the first respondent’s partner to give oral evidence at all. In the circumstances of this review, and given the construction of s 500(6H) which we consider to be correct, there was no error in the approach taken by the Tribunal.

Adjournment of the review if s 500(6H) is not complied with

As the Tribunal itself recognised in the transcript of the hearing of the review, the Tribunal has a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given. The Minister submitted an exercise of power of that kind would defeat the purpose of s 500(6H). We do not accept that submission. These are matters to be determined by the Tribunal on a case-by-case basis, with the ultimate objective of ensuring, as the plurality said in Uelese at [73], the fair conduct of the review hearing. Much will depend on the particular facts of the review hearing, and the course of conduct leading up to it.

Ultimately, in this case the Tribunal did not adjourn the review. That was a matter for its discretion.

Conclusion:-

The appeal be allowed.

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