SZMJM v Minister for Immigration and Border Protection

[2016] FCCA 2884

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMJM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2884

Catchwords:
PRACTICE & PROCEDURE – Application for leave to rely on affidavit evidence attaching certain documents – whether it is in the interests of the administration of justice to allow the evidence – consideration of documents in light of the decision in MZAFZ v Minister for Immigration & Anor [2016] FCA 1081 – leave granted.

Legislation:

Evidence Act 1995 (NSW), s.55

Migration Act 1958 (Cth), ss.418, 438(3)(b)

Cases cited:

CQZ15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 2788
Muin v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30

MZAFZ v Minister for Immigration & Anor [2016] FCA 1081

Applicant: SZMJM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2816 of 2015

Judgment of: Judge Smith

Hearing date: 2 November 2016

Date of Last Submission: 2 November 2016

Delivered at: Sydney

Delivered on: 2 November 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms C. Hillary, DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2816 of 2015

SZMJM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The first respondent seeks leave to read the affidavit of Chloe Ann Hillary affirmed on 25 October 2016. He argues that it is relevant to an issue that arises in the proceedings in light of the decision of Beach J in MZAFZ v Minister for Immigration & Anor [2016] FCA 1081 (“MZAFZ”). What I have to determine under the Evidence Act1995 (Cth) in the first instance, leaving aside questions of prejudice in light of late service of the affidavit, is whether the affidavit contains relevant material. Relevant evidence means evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

2. That requires identification of the fact in issue. The first factual issue must be whether or not there was a certificate before the Tribunal. That is clearly relevant. If there was no such certificate before the Tribunal the issue in MZAZF would not arise. So annexure A to the affidavit must be relevant and admissible unless otherwise excluded. I cannot see that it can be excluded by any of the rules of evidence, nor for any prejudice because its admission favours the applicant, even though it is late.

3. That leaves annexure B to the affidavit. This annexure was in the same category of documents which Beach J refused to admit in MZAZF. His Honour’s approach was followed by Judge Riley in CQZ15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 2788 (“CQZ15”) in another interlocutory decision. The first reason for Beach J’s decision in this respect was at [55], that the certificate would not have been before the Tribunal had it not been relevant.

4. Minds might differ about that because it is a question for the Secretary of the Department to decide relevance rather than the Tribunal or the Court: s.418 of the Migration Act 1958 (Cth). That is one of the reasons why a breach of s.418 ordinarily will not constitute jurisdictional error: see Muin v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30.

5. The second point made by Beach J in MZAFZ and Judge Riley in CQZ15 is that it is not the court’s task to review the documents, but rather the Tribunal’s task to do so. While that is true, it only so to a certain extent. The Tribunal’s task is to review the delegate’s decision. In the course of that task, it must consider the material before it. However, this does not affect the admissibility of documents in proceedings for judicial review. That is because the task of the court is different: its role is to determine whether the Tribunal has kept within the boundaries of the power given to it by Parliament. Depending on the issues that arise, it is part of the court’s task to have regard to whatever relevant material was before the Tribunal.

6. The third reason given by Beach J in MZAFZ concerns procedural fairness: see [50]. His Honour said there that procedural fairness required a number of things, including that the Tribunal at least give an applicant an opportunity to seek a favourable exercise in discretion under sub-s.438(3)(b). I cannot demur from that proposition. I am bound to apply it. However, the statement does not mean that annexure B is irrelevant and so inadmissible.

7. At [12] of her judgment, Judge Riley referred to this statement of Beach J at [40]; that the court is “entitled to assume that the Tribunal had acted in some unspecified way on the invalid certificate…”.

8. That might be so. However, whatever the entitlement of the court is, the question of whether the Tribunal did in fact act in some unspecified way must be determined on admissible evidence. It does nothing, in my view, to answer the question posed by s.55 of the Evidence Act 1995 (Cth) as to whether or not these documents actually have some probative force in respect of the issue of whether the Tribunal acted in that way.

9. Therefore, even though I might be entitled to assume that the Tribunal acted on it, I do not draw that inference for the purposes of the interlocutory decision of whether or not to admit the documents. Even if I did, I would have thought that if the documents went to establish that the Tribunal acted on it, they would have been probative of that fact, and therefore relevant within the meaning of s.55 of the Evidence Act.

10. I can see nothing in Beach J’s decision which binds me in a way to reject these documents. They were not the documents before Beach J. I have had regard to these documents for the purpose of determining their relevance (see s.58(1) of the Evidence Act) and I conclude that they relate directly to this applicant’s case. I find it highly improbable that they would have also been the documents considered by Beach J or indeed by Judge Riley. For those reasons I find that the documents are relevant and I admit them into evidence.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 November 2016