Senanayake and Migration Agents Registration Authority (Migration)
[2019] AATA 225
•22 February 2019
Senanayake and Migration Agents Registration Authority (Migration) [2019] AATA 225 (22 February 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6023
Re:S M Senarath B Chanaka Senanayake
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:22 February 2019
Place:Sydney
The Tribunal therefore directs that:
1.the records produced by the Department of Home Affairs pursuant to the summons issued on 30 October 2018 be made available for inspection by the applicant except those records which relate to personal information. Accessibility to records relating to the personal information of the clients will abide the hearing of these proceedings; and
2.the documents referred to in the summons issued on 1 February 2019 at the request of the Applicant be produced and made available to both parties.
......................[sgd].............................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application to set aside summons – substantive proceedings concern decision to cancel applicant’s registration as a migration agent – purpose of summons is to impugn the credit of a witness – whether legitimate purpose – witness credibility is a fact in issue – summons upheld
LEGISLATION
Evidence Act 1995 (Cth) s 101A
Migration Act 1958 (Cth) ss 287, 292, 303
Migration Agents Regulations 1998 (Cth) reg 8, Sch 2
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Proprietary Limited (1955) 72 WN (NSW) 250
Australian Securities and Investments Commission v Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526
Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588
Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911
Jack Brabham Engines Limited v Malcolm John Beare [2010] FCA 35
Mackintosh v The Commissioner of Police (NSW) [2010] NSWSC 1064
Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109
Taylor v O’Neill (t/a O’Neill Marengo) (a firm) [2012] NSWSC 626Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90
WRITTEN REASONS FOR ORAL DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
22 February 2019
The applicant was registered as a migration agent under the provisions of the Migration Act 1958 (Cth) (“the act”), and the Migration Agents Regulations 1998 (Cth) (“the regulations”). Such registration was also subject to compliance with the Migration Agents Code of Conduct (“the code”) which was prescribed under Regulation 8 and Schedule 2 to the regulations. The name of the applicant was placed on the register of migration agents kept under section 287 of the act.
On 9 October 2017 a decision was made by the Migration Agents Registration Authority (“the authority”) to cancel the applicant’s registration as a migration agent under subparagraph 303(1)(a) of the act (“the decision”). Such cancellation was based upon a finding that the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance; and that the agent had not complied with clauses of the code. In accordance with section 292 of the act, an agent who has had their registration cancelled must not be registered within five years of such cancellation. Accordingly the cancellation was proposed to be in effect for five years from 9 October 2017.
On 9 October 2017 the applicant lodged an application to review the decision and made an application for a stay. On 27 February 2018 a summons was issued at the request of the applicant to the Department of Home Affairs (“the Department”), requiring it to produce the following documents:
“All visa applications, statements, medicals, medical declarations, health insurances and other supporting documents of two persons who had been former clients of the applicant (“the clients”).”
The Department produced the records called for by the summons to the Tribunal on 19 July 2018, but lodged an objection to releasing the documents to the applicant on the following grounds:
“The documents returned relate to third-party information, including medical information. It is not apparent to the respondent that the third parties have been made aware that their documents are subject to summons. Accordingly, we have placed the documents in a sealed envelope, pending Tribunal access orders that it considers appropriate.”
Directions Hearings were held thereafter on 3 August 2018 to address the objection and on 14 August 2018. At the latter hearing, the Tribunal directed the applicant to lodge an application relating to non-compliance with records referred to in the summons by 24 August 2018. On that day and on 13 September 2018 the applicant filed two affidavits of Adrian Joel in support of the non-compliance application (“the affidavits”).
On 8 October 2018 the Department responded to the issues raised in the affidavits.
On 30 October 2018 the Tribunal issued two additional summonses at the request of the applicant requiring production by the Department for movement records in respect of the two clients and production by Medibank for all health insurance applications, health declarations and policies of the clients.
On 13 November 2018 the Department objected to the issue of each of these summonses.
On 3 December 2018 the applicant filed submissions relating to an application by the applicant for dismissal of a complaint against him; and enforcement of the summons issued on 27 February 2018 and of the two summonses issued on 30th of October 2018.
On 4 December 2018 the Department produced an additional 27 pages of documentation which was relevant to the summons issued on 27 February 2018. On 5 December 2018 the Tribunal ordered that such material be made available to the parties. An explanation was provided by the Department that such records were overlooked when the first production of documents was made by it.
At a Directions Hearing held on 6 December 2018 the applicant stated that he accepted that the material produced under this first summons satisfied the summons, but contended that the outstanding matter which is unresolved related to the summons issued to the Department relating to movement records for the clients.
ISSUE FOR DETERMINATION
The issue for determination on this interlocutory application is the Minister’s objection to production of documents directed to the Department of Home Affairs and dated 30 October 2018. The objection is based upon the submission that the material of which production is sought does not disclose a legitimate forensic purpose and constitutes otherwise a fishing expedition.
APPLICANT’S SUBMISSIONS
The applicant submits that the principal reason for the cancellation results from false information provided by the clients to the authority. The applicant submits that it is essential that the complaints made against the applicant be thoroughly tested and that such investigation will necessitate an examination of the veracity of the complaints made by the clients to the authority. The applicant acknowledges that the purpose of the summons is to obtain information so that extensive cross examination can be made of the clients with a view to showing that their credit will be impugned. The applicant acknowledges that the purpose of the summons is to seek to discredit the clients.
PRINCIPLES
Part 3.7 of the Evidence Act 1995 (Cth) (Uniform Evidence Law) relates to “credibility evidence” as defined in section 101A. Where evidence is adduced solely for the purpose of discrediting a witness, this has been held to be not a legitimate purpose. The rationale for such principle lies in the fact that a party may use evidence relevant to a fact in issue. A fact in issue is one which means “ultimate fact in issue”. Frequently there will be many facts and issues which are relevant to facts in issue, but these are not facts “in issue”. For example, in Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109, it was held that it is not a legitimate purpose to seek production of documents that are sought solely because of their capacity to impugn the credit of a witness. However, where the purpose goes beyond the witnesses’ general credibility, and the production of documents may “throw light” on the particular credibility of the witnesses’ evidence in the proceedings, it may be admissible: see Mackintosh v The Commissioner of Police(NSW) [2010] NSWSC 1064; Taylor v O’Neill (t/a O’Neill Marengo)(a firm) [2012] NSWSC 626. It has been held that where material might be adduced that could be of apparent relevance to a fact in issue, then the admission of evidence would be appropriate. In Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103, Beaumont J said: –
“Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the party issuing the subpoena].
…
The test of adjectival relevancy is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.”
In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17] , Stone J referred to the decision of Spender J in Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504 where his Honour said of the decision of Beaumont J In Arnotts:
“Notwithstanding the use of the word “possibly” in this paragraph, in my opinion, that word is not used in any speculative sense. I take His Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.”
In Re Bird the documents sought included details of the witnesses’ service history and reports relating to a period of service during which the events in question occurred. The AAT accepted the “possibility that some of the documents amongst the service records could possibly throw some light on the issues to be determined at the hearing”. However, the summons was set aside because (i) the generality of the documents sought; (ii) the certainty that a substantial proportion of them would have no relevance to the proceedings; (iii) the fact that the documents contained personal information of the persons involved and (iv) the inability of the applicant to demonstrate probable existence of relevant documents.
It is not always that a subpoenae should be set aside: in Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911, Weinberg J said at [24]:
“I accept, for present purposes, that it may be legitimate to issue a subpoena directed to third party in order to obtain documents which are to be used solely to impeach the credit of a witness. There is authority for the proposition – see In Re Emma Silver Mining Co (1875) LR 10 Ch App 194 at 197; Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; R v Sleam (1989) 16 NSWLR 14 at 19; Carter v Hayes (1994) 72 A Crim R 387 at 389; and Hunt and Boyce v Judge Russell (1995) 63 SASR 402 at 410.”
In Jack Brabham Engines Limited v Malcolm John Beare [2010] FCA 35, Jagot J referred to the observations of Weinberg J, stating at [12]:
“His Honour noted (at [25]) that there was some statements of principle that a subpoena may not be issued solely for that purpose [to impeach the creditable witness], but clearly accepted in the preceding paragraph that the weight of authority favoured the contrary view.”
Her Honour referred to paragraphs [29] and [30] of Weinberg J when his Honour said: –
“[29]. It is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The Court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness.
[30). The explanation given as the purpose for which the documents identified in the subpoena were sought was altogether too vague and unsatisfactory to persuade me of its legitimacy. It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value. It was for these reasons that I order that the subpoena be set aside.”
Yet the rule is not inflexible. In Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 at [36], Hunter J said:
“I think it is indisputable that, if the subpoenaed documents are by their description, arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.”
In Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285 Bennett J referred to the decision in Fried. Jagot J in Jack Brabham noted that Bennett J observed that, in Fried, the documents sought were “wholly unconnected” to the issues. Bennett J accepted that the purpose in seeking the relevant documents “must be identifiable and are likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness” (citing Fried at [29]). However Jagot J declined to set aside the subpoenas, stating at [25] that the subpoenae related to the criminal history of the second respondent in the proceedings; that that party’s credit was directly relevant to the resolution of the issues in the proceedings; that the respondent was a critical witness in the proceedings; and related to conduct involving offences alleged against him. For this reason Her Honour followed the approach of Gzell J in Australian Securities and Investments Commissionv Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526 in which Gzell J distinguished the decision in Fried, because the documents in question related to the defendant’s conduct with respect to companies whose conduct was before the court.
CONSIDERATION
Mr Joel has frankly acknowledged that the purpose of the issue of the summons is to discredit the clients. Yet in debate, it is clear that the applicant claims that he was misled by the witnesses. It is possible that the information sought in the summons may assist the applicant in establishing the alleged misleading conduct.
The Tribunal notes that the cancellation decision of the applicant’s registration appears to be based on several grounds. One of the grounds alleges conduct in breach of the code by the applicant based upon allegations made by the clients. The Tribunal has been informed that the clients will provide evidence and will be available for cross examination.
The authority also claims that the purpose in issuing the summons is that of a “fishing expedition”, and accordingly it should be set aside. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Proprietary Limited (1955) 72 WN (NSW) 250 at 254, Owen J defined a “fishing expedition” as follows:
“A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a party who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”
FINDINGS
The summons issued by the applicant identifies the class of documents which are sought. To this extent, it does not constitute a “fishing expedition”, since the documents sought to be produced are identified. The applicant hotly contests the grounds upon which the cancellation has been made and claims that the allegations made against him by the clients are wholly fabricated. Accordingly an issue arising in the proceeding will be the veracity of the allegations. It is possible that the applicant may secure an advantage for his application to have the cancellation of his authority set aside if he can establish information relied upon by the authority was baseless or, as is claimed, the applicant was misled by the witnesses. In this event, the credibility of the clients becomes a fact in issue.
The Tribunal therefore directs that:
1.the records produced by the Department of Home Affairs pursuant to the summons issued on 30 October 2018 be made available for inspection by the applicant except those records which relate to personal information. Accessibility to records relating to the personal information of the clients will abide the hearing of these proceedings; and
2.the documents referred to in the summons issued on 1 February 2019 at the request of the Applicant be produced and made available to both parties.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
........................[sgd]............................................
Associate
Dated: 22 February 2019
Date(s) of hearing: 22 February 2019 Solicitors for the Applicant: Mr A Joel, Adrian Joel & Co. Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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