Dwa17 v Minister for Immigration and Anor (No.2)

[2019] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWA17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 367

Catchwords:
PRACTICE AND PROCEDURE – Whether the Court should exercise its powers under s 136 of the Evidence Act 1995 (Cth).

Legislation:

Evidence Act 1995 (Cth), s.136

Applicant: DWA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 460 of 2017

Judgment of: Judge Street

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Perth

Delivered on: 18 February 2019

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. The oral application under s 136 of the Evidence Act 1995 (Cth) in respect of the written record of interview is rejected.

DATE OF ORDER: 18 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 460 of 2017

DWA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. Mr Guo of counsel on behalf of the applicant took objection to pages 2 to 22 of the Court Book under s 136(a) and (b) of the Evidence Act 1995 (Cth). Mr Guo took the Court to the content of the Immigration Assessment Authority’s (“the Authority”) reasons in which the Authority referred to the written record for the entry interview. Mr Guo took the Court to the identification on the record of the interview that there was a recording and also drew attention to the fact that the recording was one that occurred over two parts, one on 16 June 2013 and the second on 23 August 2013.

2. Mr Guo drew attention to the content of the written record and, in particular in relation to question 32 on page 9 of the Court Book, the example of switching between the first person, second person and third person. Mr Guo submitted that it would be unfairly prejudicial and/or misleading to admit the written record into evidence.

3. The document on its face is plainly a written record summary and does not purport to be a comprehensive and exhaustive record of the interview. The limitations of the summary are obvious. The applicant has had an opportunity to put on evidence, both before the Authority and also before this Court. No copy of the transcript of the record of interview has been adduced into evidence.

4. It was not suggested that the written record is irrelevant. In circumstances where there was an interpreter and in which it is apparent that it is a summary which appears to be signed by both the applicant, the interviewer and the interpreter, it does not disclose any proper basis of possible danger upon which this Court should exercise the power to limit the use of the same under s 136 of the Evidence Act 1995 (Cth). The Court does not accept that there is a danger the written record might be unfairly prejudicial to a party or misleading or confusing. The Court declines to limit the use of the written record.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 August 2019