Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19

Resolution 15 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.) 16 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". 17 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]. 18 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. 19 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. 20 Thus, all material falling within this definition, including written information, is covered by the restriction in s 500(6J). 21 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]. 22 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. 23 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. 25 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. 26 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]. 27 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.) 28 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 29 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. As the authorities recognise, s 500(6H) will apply across a range of circumstances in a review, and may only apply to part of the oral evidence of a witness. 30 Here however, the Tribunal was correct to find that there was no compliance at all with s 500(6H). As the transcript of the Tribunal hearing and the affidavit before the primary judge demonstrated, the first respondent's partner was proposed to be called to give oral testimony in support of the first respondent. That proposal engaged s 500(6H). The "information" to be provided by the partner was information in support of the first respondent's testimony about the importance and closeness of his relationship to his partner and to her children. There was no "written statement" setting out information from the first respondent's partner to this effect. The only written statements in the material before the Tribunal which could, with certain inferences, be said to express the partner's views about the first respondent and his relationship with her and her children were statements adverse to the first respondent's case, not in support of it. 31 In those circumstances, in conducting proceedings before it, it was open to the Tribunal to consider that s 500(6H) would operate to preclude the partner from giving any oral testimony in support of the first respondent's case. Therefore, the Tribunal was correct to see this as a circumstance in which it would be appropriate to refuse to allow the partner to be called at all, because the Tribunal would not be able to "have regard to" any of her oral evidence. This will not always be the way s 500(6H) will be engaged, as DCR19 demonstrates. However, in this case, the Tribunal took the appropriate approach. The primary judge appeared to recognise at [11] of the Reasons that if all of the evidence that the applicant's partner was being called to give was information that the Tribunal could not have regard to by reason of s 500(6H), then there would be no utility in permitting the evidence to be called and hence the Tribunal's refusal to allow it may have been free of any error.

Adjournment of the review if s 500(6H) is not complied with 32 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. 33 Ultimately, in this case the Tribunal did not adjourn the review. That was a matter for its discretion.

Conclusion 34 The appeal should be allowed and the primary judge's orders should be set aside. There is no basis for anything but the usual order as to costs in the appeal. The first respondent should pay the Minister's costs of the proceeding before the primary judge. In accordance with the Court's usual practice, costs should be payable by way of a lump sum. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Mortimer, Halley and O'Sullivan.