6.7 Is the applicant to be believed in his account that he gave the documents to a Serco officer to send to the Department?
63 I do not accept the Minister's submission that I should find that the applicant's evidence that he gave further documents to Serco officers to be faxed to the Department after his telephone call with Ms Anthea Hammond is a fabrication; nor, to the extent to which it was challenged, his evidence that he gave the letter from the social worker to a Serco officer for the same purpose prior to that interview. To the contrary I find the applicant to be a witness of truth and accept his account of what happened.
64 First, the applicant remained steadfast in his evidence notwithstanding, as counsel for the applicant described it, "a considerable attack" on his credit in cross-examination.
65 Secondly, as earlier found, the primary basis for the attack on the applicant's evidence in cross-examination, being the Minister's evidence as to procedures said to be followed at Villawood IDC, was not established.
66 Thirdly, the applicant had the most compelling of reasons to take up the opportunity extended to him by Ms Hammond to provide further information in support of his revocation request, given his wife's terminal illness and the pressing need for him to continue as her full-time carer, as he had done in the past when not incarcerated (see the Minister's reasons at [20]). As the applicant pointedly said in his evidence "so I could get out and look after my missus, so yes, I did it." Equally, his wife had the most compelling of reasons to obtain that information and, as counsel for the applicant submitted, "[t]he thrust of it was that his partner was the one who was in effect doing things for him, gathering the evidence for him, which again wouldn't be surprising. She was on the outside, and he wasn't." Furthermore, he had a minor daughter from a previous relationship with whom he had had fortnightly personal contact (Minister's reasons at [13]).
67 Fourthly, the applicant was able to give a detailed description of the further documents which he received from his wife and endeavoured to send to the Department, including identifying third parties who were said to have provided letters in support save where he could not remember the name of his wife's chemotherapy doctor. Those further documents also accorded with what he explained "the lady on the phone said I had to get. More submissions on my daughters, father's work, neighbours…." (see above at [49]). Moreover, he referred to filling in request forms to request that the documents be sent by an officer at the Villawood IDC (see above at [39] and [48] above) and giving the documents to an officer through a window (see above at [49]). This evidence demonstrated that the applicant was familiar with those parts of the procedure described by Mr Lara at Villawood IDC applicable to detainees such as the applicant.
68 Fifthly, the Minister sought to make much of the fact that the applicant had not raised earlier the lack of any reference to the further documents obtained by his wife (with one exception) in the reasons for the Minister's non-revocation decision. However, even in his application in the Federal Circuit Court filed on 24 July 2015 a short time after the non-revocation decision, the applicant alleged that "[i]n making her decision, the Assistant Minister didn't take into account statements provided by hospitals and treating doctors, denying the seriousness of an advanced cancer, and hardship [his wife] was experiencing while the Assistant Manager [sic] was writing her decision not to revoke a visa cancellation" (emphasis added). That allegation, while it does not expressly state that documents which the applicant sought to provide to the Department do not appear to have been before the Minister, is consistent with the applicant's evidence as to the documents which he says were not received by the Minister, as opposed to the one medical report from Dr Athour which is attached to the Minister's non-revocation decision.
69 Next, the applicant gave a number of reasons to explain why he had not raised the matter earlier. He explained that he did not know that the further documents were missing, that his wife was dying, that she did everything for him and is now gone, and that he did not know the documents were not present when he received the Minister's reasons but only when someone read the reasons to him. That explanation is entirely credible given his circumstances including his unchallenged evidence that he has the reading ability of a five year old and the fact that he had no legal representative at that time who might have advised as to the potential significance of the failure by the Minister to refer to the missing documents.
70 Furthermore, Mr Lara very properly accepted the possibility that the fax attaching the further documents following the interview from the applicant may not have been sent, it being apparent that the procedures which he outlined in his evidence in chief were not invariably followed by Serco officers. This is consistent with the applicant's evidence that documents had not been sent on previous occasions.
71 Moreover and perhaps supporting the alternative option available on the evidence that the documents were sent to the Department but for some unknown reason were not placed before the Minister, Ms Zammit accepts in her evidence that the applicant may have sent a fax on 11 May 2015. The timing of that fax is not long outside the 14 day period which the applicant had been given within which to provide further material and the time within which the applicant said that he had requested the documents be sent (about a week after the interview). Given the passage of time since those events and the stress under which the applicant was no doubt suffering given in particular his wife's terminal illness, I would give little weight to the small discrepancy in his evidence as to timing. Moreover, I consider that it is plausible that the applicant did not request the material back or fax confirmation sheet, given his evidence that this had not happened before and given the evidence that procedures were not necessarily followed by Serco officers.
72 As against this, the Minister submitted that the applicant would have had the material he sent returned to him together with a confirmation sheet under the procedures in place at Villawood IDC. As such, he submitted that an adverse inference should be drawn from the failure by the applicant to provide those documents in support of his case. However, as I have earlier found, the evidence established that, while the procedures described by Mr Lara are followed on some occasions, they are not followed on other occasions. Nor can I give any weight to Mr Lara's evidence that he was not aware of any complaints having been made about correspondence not being logged or not sent. The tenor of his evidence was that the only way that he would know that there was a problem was if a complaint was made, yet there is no evidence that he was responsible for handling complaints or of any process by which he would have been informed if complaints were made. Nor was he present at the offices for the two compounds supervising at all times. In addition, little weight could in any event be given to an absence of complaints by detainees against those who detain them where those who might complain are in a highly vulnerable position or may be unaware of a failure to send the documents in accordance with their instructions.
73 Finally, in making the findings above, I do not give any weight to the dishonesty related charge against the applicant in 2004. While evidence of that charge was reproduced in the Court Book as part of the material provided to the Minister, if it had not otherwise been in evidence the applicant's counsel understandably submitted that it would have been objected to under s 102 of the Evidence Act 1995 (Cth). Further, the offence occurred a significant time ago and was not an offence, for example, in relation to statements made under oath. I was also in a position to make my own assessment of the applicant who impressed me, as I have said, as a witness of truth with every reason to provide further information to the Minister in support of his request for the cancellation decision to be revoked. Ultimately, the role of the Court is to assess the applicant's credit and not to 'leap' to assumptions about credit based on a previous unrelated offence.