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

This appeal involves the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and DOM19, who is appealing a decision of the Federal Court. The central issue in this appeal is the proper construction of section 500(6H) of the Migration Act 1958 (Cth) and whether it requires a written statement outlining the evidence of a witness to be provided to the Minister at least two business days prior to a hearing in the Administrative Appeals Tribunal. DOM19's visa had been cancelled on character grounds, and he sought a review of that decision. At the hearing before the Tribunal, DOM19 sought to call his partner as a witness but was prevented from doing so because she had not provided a written statement of her evidence to the Minister two clear days prior to the hearing, as required by s 500(6H). The primary judge held that the provision did not require a written statement to identify the witness, and DOM19's appeal to the Full Court followed.

The court found that the proper construction of s 500(6H) does require a written statement outlining the evidence of a witness to be provided to the Minister at least two business days before a hearing. The court found that the term "written statement" in the provision means what it says, and 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. The court held that the primary judge erred in his construction of the provision and that the Tribunal's decision to refuse to receive the evidence of DOM19's partner was free of error. The court found that the requirement in s 500(6H) is not restricted to the "content" of information, but also to the "source" of the information, i.e., the particular witness. The court held that proper notice of the source of the information must be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing.

The appeal was allowed, and the application for judicial review was dismissed. The applicant was ordered to pay the Minister's costs of the judicial review proceeding, and the Minister was ordered to pay the applicant's costs of the appeal. This decision clarifies the requirements of s 500(6H) of the Migration Act and ensures that the Administrative Appeals Tribunal can conduct a fair and efficient review process.