SZUYP v Minister for Immigration - [2017] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYP v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 860

Catchwords:
MIGRATION – Leave sought by the first respondent to read affidavit – applicant’s case had already closed – whether certain annexures are “business records” within s.69 of the Evidence Act 1995 (Cth) – hearsay exception – whether the evidence should otherwise be admitted – leave granted.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Evidence Act 1995 (Cth), ss.58, 59, 60, 69, 135, 170, 171, 172, 173

Cases cited:

SZUYP v Minister for Immigration & Anor [2016] FCCA 3115

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355; (2012) 207 FCR 448
NAB v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309
DPP v Pinn [2015] NSWSC 1684

Applicant:

SZUYP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2372 of 2014

Judgment of:

Judge Nicholls

Hearing date:

27 February 2017

Date of Last Submission:

21 March 2017

Delivered at:

Sydney

Delivered on:

5 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Minter Ellison

ORDERS

The first respondent is to file and serve a list identifying, with reference to the transcript of the cross examination of the applicant, those portions of the departmental records annexed to the affidavit of Julian D’Arcy Pinder affirmed on 24 February 2017 which are directly relevant to the questions put to the applicant in cross examination.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2372 of 2014

SZUYP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The current issue in this matter involves the admission of an affidavit and annexed documents into evidence which the first respondent (“the Minister”) has sought to have read in these proceedings.
On 25 August 2014, the applicant applied, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), for an extension of time within which to make a competent application pursuant to s.476 of the Act, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 16 May 2013, which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
On 9 December 2016, I granted the application for an extension of time.
The final hearing on the substantive application occurred on 27 February 2017. In short, the central issue in the substantive application is the question of fraud by a third party, being the applicant’s former migration agent.
During the final hearing, and after the applicant had closed his case, the Minister sought leave to read the affidavit of Julian D’Arcey Pinder affirmed on 24 February 2017 (“the Pinder Affidavit”). The affidavit annexed certain departmental records from the Minister’s department (“the records”).
The applicant, who said he had no prior notice of the Pinder Affidavit, indicated that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 860
Decision Date: 5 May 2017

CaseChat Overview and Summary

This matter came before Judge Nicholls of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The central dispute concerned the admissibility of certain evidence, specifically a note detailing a conversation about the applicant's visa status and the notification of a Refugee Review Tribunal (RRT) decision. The applicant contended that the contents of this note were not put to him during cross-examination, and therefore, should not be relied upon by the Minister.

The legal issue before the Court was whether the Minister could rely on the contents of the note, which recorded the applicant's acknowledgment that his migration agent had received notification of the RRT decision, despite the applicant not being directly cross-examined on the precise wording of that note. The applicant argued that the Minister had failed to adequately put the specific allegations contained within the note to him during cross-examination, even on a subsequent occasion when further cross-examination was permitted.

Judge Nicholls considered the applicant's evidence in chief and the transcript of the cross-examination. The Court noted that while the applicant was questioned about the department explaining the 28-day period to request a ministerial intervention and the consequence of his agent not acting within that time, the specific statement within the note that "the client stated that he did not receive the notification letter but his migration agent did" was not put to the applicant. The Minister argued that the applicant was on notice that his credit was challenged regarding his awareness of the RRT decision and that the note was not being used to impugn credit but to corroborate other evidence. However, the Court found that the specific statement in the note was not put to the applicant in cross-examination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant submits that the contents of the records were not put to the applicant in cross examination. At [4] of the applicant’s written submissions, he addresses the example given by the Minister in his written submissions of 6 March 2017 (at [10])):“The respondent's submissions on the present application give as an example in support of the tender the applicant's acknowledgment in August 2013 that Mr Issa had received the notification of the RRT decision.The relevant portion of the note which is sought to be tendered says (p 9.2 of the affidavit of Julian Pinder): ‘I consulted with my manager, Vassili Efimov, regarding visa condition 8101 being imposed and told him the situation. Vassili then accompanied me to the interview room with my colleague Mona (so that she can help interpret in Arabic). Vasili explained to the clients why it is mandatory for 8101 to be imposed and there is nothing the department can do as it is the law. Vasili further explained that the client and his Migration Agent had 28 days from when the RRT made their decision to lodge his Ml and it is stated in the Tribunal notification letter that the visa will automatically cease 28 days after the Tribunal decision has been made. The client stated that he did not receive the notification letter but his migration agent did.’ The applicant's evidence in chief about this conversation was (affidavit 2 March 2015 [25][26]):‘I went to the Lee Street office of Immigration. I took my girlfriend Nisrine Elafchal who is now my wife and discovered that Sam applied for my visa after my old visa expired and that I had become unlawful.The immigration manager met us and explained why I was without a visa after the old visa expired and that I had become unlawful.’It was not put to the applicant in cross examination that he said the words now sought to be relied upon by the respondent.The question put in cross examination was exhibit 5 T 39.36 20/5/16Ms Francois: Well the department explained to you that you had 28 days after the Tribunal decision to make the ministerial intervention request and because your agent hadn't done it that's why you couldn't work, didn't they?Answer: yes.”[Emphasis in original.] [Errors in original.] The applicant submits that on 27 February 2017, the Minister had further opportunity to cross-examine the applicant on the matter, but he did not do so. In response, the Minister submits that ([9] of the Minister’s written submissions of 21 March 2017):“the applicant was on notice and was cross-examined on the basis that the first respondent challenged his evidence that he was aware of the Tribunal decision from July 2013 and that he was not a witness of credit: see, eg., transcript 20 May 2016 at T39.5 – T39.10, T39.31, T39.36, T78.25 to T80.6, T81.40 to T88.25; transcript 27 February 2017 at T15.10 and T20.1.” The Minister submits that he does not intend to rely upon the applicant’s statement that “he did not receive the notification letter but his [m]igration [a]gent did”, for the purpose of impugning the applicant’s credit, but to corroborate the evidence given by Ms Issa (the person against whom the allegation of fraud is directed) ([11] of the Minister’s written submissions of 21 March 2017).