QAAX of 2004 v Vanstone

[2005] FCA 573

FEDERAL COURT OF AUSTRALIA

QAAX OF 2004 v Vanstone [2005] FCA 573

QAAX OF 2004 v AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 291 OF 2004

DOWSETT J
27 APRIL 2005
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 291 OF 2004

BETWEEN:	QAAX OF 2004 APPLICANT
AND:	AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	27 APRIL 2005
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.The documents marked “C” exhibited to the affidavit of Qeumars Ulysses (sworn 26 April 2005) be excluded from evidence in these proceedings.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 291 OF 2004

BETWEEN:	QAAX OF 2004 APPLICANT
AND:	AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	27 APRIL 2005
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. The applicant seeks to lead in evidence documents which form part of an affidavit filed on 26 April 2005.  They are marked as exhibit C to that affidavit.  The documents comprise a customs document, a postage slip of some sort, a letter from the applicant to her husband, and an application for a long-term temporary business visa.  It is the last-mentioned document which is primarily relevant for present purposes, according to the submissions made on behalf of the applicant.  However that relevance is a little difficult to identify with precision.  It appears to arise out of the fact that when the visa was granted as requested, it was made subject to a condition that the applicant make no further application to stay in Australia.  The applicant’s case is that she did not discover this until after she had come to Australia and married her husband.  She says that the imposition of this condition was as a result of some sort of pressure exerted on an officer of the Australian Embassy in Tel Aviv by her family, designed to prevent her from marrying her husband who is not Jewish and does not have Israeli citizenship.  This assertion, if proven, it is said, assists in demonstrating the applicant’s fear of persecution and that such fear is well-founded.

2. The relevance of the document depends upon an email on the respondent’s file which indicates the reasons for imposing the condition.  In that document, the relevant officer gave his reasons for imposing the condition as:

   ‘Given the relatively high non-return rate for people in her circumstances and the fact that she was unemployed, unskilled, and supported by parents.  This added to her stated links in Australia (cousins) resulted in the decision maker having residual concerns that she may seek to remain.’

3. The applicant now submits that a number of these matters were factually wrong.  In particular, she claims to have had employment, to have had funds and to be skilled.  She has produced a purported copy of her application which is one of the documents in the group marked “C”.  It sets out details of her employment and financial situation which appear to be at odds with some of the factual assertions in the officer’s reasons.  The applicant submits that the application shows that the officer could not have been motivated by his stated reasons in imposing the condition, for on its face, it demonstrates that she had assets, skills, and resources.  It is submitted that he must have been motivated by some ulterior purpose.

4. An obvious basis for refusing to receive the documents is that they were not before the Tribunal.  They were apparently in the applicant’s possession at the relevant time.  The applicant’s response is that she raised the question of the condition with the Tribunal, urging investigation of the matter, but she was not aware, and did not realize, that the officer’s email was on the file.

5. In my view, such an argument may have some merit as a basis for admitting this evidence if there were any suggestion that the Tribunal had denied the applicant natural justice, or that the Tribunal had failed to investigate a matter which ought to have been investigated.  However, having perused the application and the particulars of the application, I find no assertion that could be said to raise any such ground.  As neither ground has been raised, neither may be argued before me.  That inevitably leads to the conclusion that the documents marked “C” are inadmissible.  They will be excluded.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            6 May 2005

Counsel for the Applicant:	Mr A Wrenn
Counsel for the Respondent:	Mr P G Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 & 27 April 2005
Date of Judgment:	27 April 2005