Submissions from Mr Seyfarth's family and friends
64 The 24 November 2004 submissions expand upon the stated ground:
'… [A] material submission made by the Applicant's father on behalf of the Applicant would appear to have not been taken into consideration …
… [T]here is an indication that indeed the Minister was presented with the Applicant's father's submission on behalf of the Applicant … [This is a reference to the letter reproduced at [23] above]
… [I]t is evident that material of great significance that was favourable to the Applicant … [was] omitted causing great unfairness and injustice. In particular the Applicant draws the Court's attention to two issues of significance … that were clearly omitted from the material placed before the Minister …
The first issue was the failure to present the submission of the Applicant's father on behalf of the applicant to the Minister for his consideration. It is clear from the material provided to this Court and the Applicant that the submission made by the Applicant's father on behalf of the Applicant was never placed before the Minister …
[The 'second issue' is reproduced below under the heading 'Evidence by police officers']
(emphasis in original)
65 On 2 December 2004, when the matter first came on for hearing, Mr Seyfarth gave evidence that had he sent DIMIA submissions from his sister, aunt and grandfather, as well as two submissions from his father ('the further submissions'). Mr Seyfarth said that he conveyed the further submissions in two batches: the first, being the submissions by his sister, and grandfather, as well as his father's initial submission, formed part of the bundle which he sent on 24 January 2003, and which was received by DIMIA on 29 January 2003. The second batch, which consisted of his father's final submission, he forwarded to DIMIA 'two or three days' after the 4 February 2003 fax reproduced at [12] above.
66 There are a number of problems with Mr Seyfarth's evidence on this matter.
67 First, there is no evidence that the further submissions were ever received by DIMIA or have ever formed part of DIMIA's files. On 26 November 2004 Dale Watson, the solicitor with carriage of this matter on behalf of the respondent, swore an affidavit in these proceedings, in which she states:
'I note that the applicant has stated in his submission to this Court … that there was a failure to present a submission by his father to the respondent. I have perused the files which contain all the materials received by the Department in relation to this cancellation decision and have not seen a submission by the applicant's father.'
68 Ms Watson gave oral evidence to the effect that she was certain that the only mention in the DIMIA files of submissions made by Mr Seyfarth's family was the reference to 'final submission from my father' in the fax reproduced at [12] above. She also gave evidence that she had received three files in relation to Mr Seyfarth from DIMIA, and that she had received the third file after requesting that DIMIA ensure that she was given all the files. When cross-examined, she denied that it was possible that DIMIA might have further files. Mr Udall, a legal officer employed by DIMIA, gave evidence that he has sighted the original files maintained by DIMIA, none of which contain submissions prepared by Mr Seyfarth or his father, or comments from other family and friends. He confirmed that copies of these files were supplied by DIMIA to the Australian Government Solicitor.
69 Mr Hinderry has also sworn an affidavit in these proceedings. In it, he makes three main points. Two of those points are relevant here (the third is reproduced below under the hearing 'Evidence by police officers'):
(1) He does not recall receiving either the first or second batch of Mr Seyfarth's further submissions, but he states that any such material would have been placed on the client file and attached to the papers forwarded to the Minister; and
(2) The reference in the Notification letter (see [23] above) to 'written comments from your family and friends [which] were carefully considered and taken into account' was:
'[A]n error on my part in not modifying the template document to reflect that no such submissions had been received. If such submissions had been received by me they would have been placed on the client files in relation to the applicant which I had custody of and would have been attached to the issues paper to the Minister.'
70 Second, the documents filed by Mr Seyfarth in the High Court appear to contradict his claim. An affidavit sworn by Mr Seyfarth on 5 September 2003 and filed on 30 September 2003 states:
'9. That the decision was made in breach of the rules of natural justice in that the Minister failed to inform and obtain the views of my family as to what impact the cancellation of my visa would not only have on the myself but also on my family by the Minister's decision to cancel my visa.
(a) That in the original notice of "liability of cancellation of visa" dated the 9th January sent to me by the Department of Immigration and Multicultural and Indigenous Affairs I was invited to make submissions nominating family, friends or others who I wished to make comment upon my "liability to cancellation of my visa". That the applicant so did nominating members of his family and friends.
(b) That in the final notice dated the 8th March from the Department of Immigration and Multicultural and Indigenous Affairs informing me that my visa had been cancelled that I was informed in the second paragraph "You provided submission on 29th January 2003. The submission consisted of written comments from your family and friends were carefully considered and taken into account …"
· In actual fact there were no submissions from either the Applicant's family or friends nor was the Applicant's family or friends ever contacted.'
(emphasis in original)
71 A further High Court document filed by Mr Seyfarth on 18 September 2003 was entitled 'Order' (in truth a draft order nisi). That document states:
'… The respondents DO SHOW CAUSE … WHY A WRIT OF CERTIORARI should not be issued … upon the grounds that:
… That the decision was made in breach of the rules of natural justice in that the Respondent failed to inform and obtain the views of my - father, mother, brothers and sister as to what impact myself or my family would endure if the Respondent decided to cancel the [sic] my visa.'
(emphasis in original)
72 Mr Seyfarth and his father endeavoured to explain these documents by saying that the phrases 'failure to contact' and 'there were no submissions' should be interpreted to mean 'failure to obtain follow-up submissions or views'. They were of the opinion that this becomes clear if the phrases are 'taken in context'.
73 Third, Mr Seyfarth was unable to explain clearly the sequence of events by which he conveyed the further submissions to DIMIA. In evidence-in-chief Mr Seyfarth said that he gave the further submissions to a welfare officer at the PCC for communication to DIMIA. When asked to name the officer to whom he passed the further submissions, Mr Seyfarth said that he could not remember, but that it must have been one of the two welfare officers handling his case: either Arthur Hodge or Thomas Ng. Mr Seyfarth gave evidence that he did not keep a copy of the further submissions, but instead gave all his copies to the welfare officer. The welfare officers were called to give evidence, and neither could recall any information supplied to them by Mr Seyfarth for transmission to DIMIA which was not transmitted to DIMIA. I accept the evidence of these officers.
74 Mr Seyfarth's father was similarly vague. He said that he sent a 'tentative submission' of 'about five or six pages' to his son at the PCC 'some time in January'. He followed the tentative submission with a 28 page 'full submission' that he also sent to his son at the PCC, this time in 'early February'. He then said that it was only in recent times that he 'discovered that in fact none of my submissions had been placed before the Minister'.
75 Fourth, Mr Seyfarth was unable to explain why there is no mention of the further submissions in a table of contents included with his 24 January 2003 submissions (see [11] above). Initially, he said that the omission was because the index was intended to follow the template of the questionnaire included with the Notice (see [6(d)] above). Later, he claimed that the table of contents was intended to list everything from himself, but not material from third parties. Mr Johnson asked the following series of questions in relation to this second contention:
'There are a lot of things listed [on the table of contents] which you did not create, that's true isn't it? --- Right…
[O]nce again I suggest to you, the absence from this list of contents … of any description of any statement of your father or an aunt or a sister is an indication that no such statement was sent with this material, that's true isn't it? --- No, I disagree because the notice of intention to consider and the section 501 I was in possession of those documents and what I merely did was I actually gave them back to Immigration as part of my entire submission, everything purely about me from me. Anything that was written by a third party, okay, in my mind I treated as a separate entity that I was just merely forwarded to Immigration through Welfare on behalf of the parties' behalf.
You were listing the things that you were forwarding whether they were provided or written by third parties or not, weren't you? --- No, I was listing everything that I was providing by me.'
76 Fifth, Mr Seyfarth was unable to explain why his submissions filed in this Court omitted to mention submissions by family members and a second set of submissions by his father, except to state that his father had prepared the submissions on his behalf. Mr Seyfarth's father gave the following evidence on this issue:
'… I discussed it with other members of the family and other people and the answer was … the court is going to say, I mean, so who are you, you're just the father … [So I thought] if the court is not even going to worry about my submission, why would they want to hear about you know other members of the family who are a little bit more distance away from the applicant. So I didn't really. That's why I just concentrated just on my mine and just left mine there.'
77 Sixth, there is the lack of documentation in the evidence in relation to the second batch of submissions, which Mr Seyfarth claimed were sent 'two or three days' after 4 February 2003. By contrast, his handwritten 'Criminal History' submissions (see [14] above) were attached to fax which is in evidence (see [13] above).
78 Seventh, there is the somewhat eleventh hour nature of Mr Seyfarth's claim. The first mention in the evidence of further submissions is in the 30 September 2004 amended application. Further, Ms Watson gave evidence that in a telephone conversation with Mr Seyfarth's father in August 2004 he had said that his family was surprised about the Minister's decision because at the time the decision was made they were waiting for DIMIA to contact them. When this conversation was put to Mr Seyfarth's father, he denied that this showed he was in 'quite a different state of mind from a belief that there was no need for [DIMIA] to contact you because you'd already said everything you had to say in writing'.
79 Notwithstanding the somewhat ambiguous nature of the evidence in relation to the telephone conversation, it is nonetheless clear that the 'further submissions' claim only began to be agitated some 18 months after the Minister's decision.
80 Eighth, there is in the absence of any copy of the further submissions in the evidence before me. When questioned on the issue, Mr Seyfarth's father thought that there might be a copy of one or both of his submissions on a computer hard drive in his garage, but he had not checked any of the hard drives as he had not thought it to be necessary. Under further questioning he agreed that he had known for over a week that Ms Watson had said that no copy any submission from him was on the DIMIA file, but he justified his inaction by stating that there were six computers in his garage, and that they were each in various stages of disassembly. Finally, although he agreed that had he found the Minister's decision to be surprising given what he had put in his submissions, he disagreed that that was a sufficient reason for him to determine whether he had a copy of his submissions. Ultimately Mr Seyfarth's father stated from the bar table that he neither had a copy of the submissions nor was he able to obtain a copy from the hard drives. This statement was accepted by counsel for the Minister.
81 Ninth, and finally, neither the sister, aunt or grandfather was called to give evidence, nor was their absence explained.
82 I accept that in January and February 2003 Mr Seyfarth had it in mind to include a submission from his father in his submission to the Minister. However, I find that no such submission was included in the package of documents which Mr Seyfarth attached to his letter of 24 January 2003. Nor am I satisfied that any submissions from his sister, aunt or grandfather were even prepared, let alone included in that package, or later submitted to DIMIA. The problems with Mr Seyfarth's evidence on this matter outlined above are such that I am also unable to find that a submission from his father was later forwarded by Mr Seyfarth to DIMIA. It is possible that one or more of these submissions were prepared, which went awry in the PCC, although I think that this is unlikely.
83 I accept Mr Hinderry's evidence that the reference in the notification letter to 'written comments from your family and friends [which] were carefully considered and taken into account' was an error on his part, as no such submissions were received by DIMIA. It would be beyond the bounds of reason to treat that letter as an admission that such submissions were received, but not passed on to the Minister.