SZUYP v Minister for Immigration
[2017] FCCA 860
•5 May 2017
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 |
| 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 depending on the admissibility of the Pinder Affidavit, there was a possibility he would seek to re-open his case. I then made orders for the filing of written submissions in relation to the Pinder Affidavit.
The issue to be determined now is whether the Pinder Affidavit is capable of being admitted, and if so, whether it should, in any event, be admitted into evidence at this stage of the proceedings.
Before the Court
The hearing for the application for an extension of time was on 20 May 2016 and continued on 24 May 2016, 1 November 2016 and 9 December 2016.
At the hearing for the application for an extension of time, the applicant sought leave to tender into evidence a document headed “Decision Record” made on 10 October 2014, being a decision, with reasons, of a “Senior Professional Standards Officer” of the Office of the Migration Agents Registration Authority (“the OMARA Decision”). On 2 December 2016 I refused the application by the applicant to tender the OMARA Decision (see SZUYP v Minister for Immigration & Anor [2016] FCCA 3115).
Before the Court is the following evidence:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)Examination-in-chief, cross-examination and re-examination of the applicant on 20 May 2016.
c)Examination-in-chief, cross-examination and re-examination of Mr Julio Gash, Migration Agent, on 1 November 2016.
d)Examination-in-chief and cross-examination of the applicant on 27 February 2017.
e)Examination-in-chief, cross-examination and re-examination of Mr Issam Issa on 27 February 2017.
The Pinder Affidavit
Pages 4 and 5 of the records that are annexed to the Pinder Affidavit (annexure “JDP01”) are two letters to the applicant and his then migration agent, about a “Ministerial Intervention request under section 417”. Pages 7 to 23 of the records are essentially “notes” by officers of the Minister’s department, of interviews with the applicant, and his now wife, and contain previous representations as to (see [3] of the Minister’s written submissions of 6 March 2017):
a)what the [departmental] officers making the record said and did during the interviews;
b)what the applicant, and his now wife, and other persons attending with him said and did during the interviews; and
c)what other [departmental] officers said and did during the interviews.
Submissions
The Minister submits that the records are admissible as an exception to the “hearsay rule” by reason of s.69(1) and (2) of the Evidence Act 1995 (Cth) (“the EA”).
The relevant parts of s.69 of the EA are in the following terms:
“69 Exception: business records
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.”
The Minister submits that the records fall within s.69(1) of the EA because ([7] of the Minister’s written submissions of 6 March 2017):
“(a) the first respondent is a ‘business’ within the meaning of the EA: see paragraphs 1(b) and (d) of Part 2 of the Dictionary to the EA (activities by the ‘Crown in any capacity’ and by ‘a person or body exercising power under an Australian law’ etc); and
“(b) it contains representations made for the purpose of that ‘business’: here being interviews with respect to the applicant’s visas, immigration status and potential removal.”
The Minister also says the records meet the requirements of s.69(2) because ([8] of the Minister’s written submissions of 6 March 2017):
“the interviewing officer who made the notes had ‘personal knowledge’ of the what was said and done because the records are based on what the officer ‘saw, heard or otherwise perceived’ during the interview as being said or done by the officers themselves, the applicant or his support person: subsection 69(5) of the EA.”
The applicant submits that the Minister has not properly proved the records are “business records” pursuant to s.69 of the EA. He submits that pursuant to s.171(1) of the EA ([9] of the applicant’s written submissions of 13 March 2017):
“[E]vidence concerning records can be given by the affidavit of a person who had a position of responsibility in relation to the making or keeping of the document or thing or an authorised person.”
The applicant submits that there is no evidence Mr Pinder falls into any of those categories.
The Minister accepts that Mr Pinder is not an “authorised person” within the meaning of s.171(3) of the EA. He submits that it is the contents of the documents themselves that give rise to the “obvious” inference that they are the department’s records, pursuant to
s.58(1) of the EA. He relies on Australian Competition and Consumer Commission v Air New ZealandLimited(No.1) [2012] FCA 1355; (2012) 207 FCR 448 (“ACCC v ANZ”) at [92] to [107] for the proposition that “there is no doubt” that s.58 of the Act applies to determining the “authenticity” of the documents ([15] of the Minister’s written submissions of 21 March 2017).
The applicant’s submission focusing on s.69(1) of the EA is limited to one point. That is, that Mr Pinder is not a person who meets any of the elements set out at s.171(1) of the EA. Therefore, the Minister has not established that the documents annexed to the Pinder Affidavit are “business records” for the purposes of s.69 of the EA.
Consideration
It is to be remembered that the immediate question before the Court is whether the documents annexed to the Pinder Affidavit should be admitted into evidence. Section 171(1) of the EA provides one mechanism by which, amongst other matters, “business records” may be given in evidence as an exception to the “hearsay rule” in s.59 of the EA.
In the current case, Mr Pinder does not appear to meet any of the descriptions set out at s.171 of the EA and therefore cannot be said to be a person who may give such evidence within the ambit of s.171 of the EA.
However, and as the Minister has made clear, there has been no attempt to assert reliance on s.171 of the EA by the Minister. Rather, the basis of the Minister’s approach is to direct attention to s.58(1) of the EA which is in the following terms:
“Section 58 – Inferences as to relevance
(1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.”
The extent of Mr Pinder’s evidence is limited to the source of these documents. The Minister’s argument is that s.58 of the EA allows the Court to determine the “authenticity” of these documents, in the context of considering their relevance to a fact in issue in the proceedings.
While a contrary view to that put by the Minister was expressed in NAB v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 (“Rusu”), in ACCC v ANZ Justice Perram reviewed relevant authorities and found Rusu was “plainly wrong” (ACCC v ANZ at [100]). His Honour held (see [94] – [101]), that a Court may draw “reasonable inferences” from the contents of such documents for the purpose of determining their authenticity (see also DPP v Pinn [2015] NSWSC 1684 at [42] – [46]).
The applicant has not made any submission that the documents are not “authentic”. On an examination of the documents, it is reasonable to infer, given the subject matter, the authors of the documents (the departmental investigation officers), and their stated purposes, that the documents are authentic. I find that the documents are authentic.
The Minister also submits that the evidence should be admitted pursuant to s.60 of the EA, as an exception to the “hearsay rule”. Section 60 of the EA provides the following:
“60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.”
The Minister submits that it is the fact of what was said during the interview that is relevant. He provides an example (at [10] of the Minister’s written submissions of 6 March 2017), that on page 9.3 of the Pinder Affidavit, where the interviewing officer records that the applicant said that “he did not receive the notification letter” from the Refugee Review Tribunal (“RRT”) (regarding its decision), “but his migration agent did”. The Minister submits that he does not rely upon what was said to prove as a matter of fact that the applicant did not receive the letter and that his migration agent did. Rather, he seeks to prove, through the applicant having said those words, that the applicant knew that an adverse RRT decision had been made.
The Minister submits that it is the fact of what was being said between the investigating officer and the applicant that is relevant and that “[t]his distinction is particularly pertinent to the consideration of what is recorded as being said by the applicant” ([9] of the Minister’s written submissions of 6 March 2017).
The applicant submits that s.60 of the EA does not operate in the current circumstance, because for s.60 of the EA to operate, the evidence must have already been admitted for some other purpose. As the evidence is being tendered only as to the truth of the representation in the records that the applicant said something, the applicant says s.60 of the EA does not “waive” s.59 of the EA in these circumstances. The applicant submits that the situation would be different if the interviewing officer was called to give evidence, as that evidence could then be admitted for the non-hearsay purpose of proving the fact of what was said ([7] of the applicant’s written submissions of 13 March 2017).
In all therefore, the essence of the dispute between the parties in relation to this point arises from the applicant’s submission that s.60 of the EA “would then have waived the operation of s.59 [of the EA] in respect of that evidence”, if the departmental officer(s) who authorised the file notes (the documents), had been called to give evidence.
The argument is that given that the officer(s) was not called, the file notes are a hearsay record of what was alleged to have been said by the applicant. Section 59 of the EA prevents the tender of the file notes for the purpose of proving the “truth” that the applicant said what was recorded in the file notes. Section 60 of the EA does not therefore “waive” s.59 of the EA.
However, as is made clear by the Minister’s submissions, the Minister’s attempt to put the documents (file notes) into evidence is not confined simply to s.60 of the EA, but requires s. 60 to be considered with s.69 of the EA.
In essence, the argument is that the departmental officers reporting on the interviews with the applicant had “personal knowledge”
of what was said and done at the interviews (s.69(2) of the EA). The reports of the interviews are based on what the officers “saw, heard or otherwise perceived” as being said or done by the officers or the applicant (s.69(5) of the EA).
The Minister seeks to distinguish between the fact of what was being said, rather than the truth of what was said. The applicant proceeds on the basis that the file notes are not business records and focuses his response on s.60 of the EA. However, I agree with the Minister, for the reasons he gives, that the records are business records, and in that light, I also agree that in the circumstances they fall within the exception set out at s.69 of the EA.
The applicant also argues that even if the documents are admissible, the tender should not be allowed. There are essentially two reasons put for this. Both concern prejudice to the applicant.
The applicant submits that there is prejudice to him as the Pinder Affidavit was not served until 27 February 2017, and that the Minister has made a “forensic choice” to “ambush” the applicant ([16] of the applicant’s written submissions of 13 March 2017). Therefore, the Court should refuse to tender the evidence under s.135 of the EA for the Minister’s failure to comply with ss.170, 172 and 173 of the EA.
In response, the Minister submits that there is no proper basis for the applicant to allege he has been “ambushed” because ([3] of the Minister’s written submissions of 21 March 2017):
“a) the applicant has been aware of the nature and existence of the department notes since 20 May 2016 when he was
cross-examined upon them: see transcript 20 May 2016 at T36.9, T67.27; and
b) the applicant and the Court were expressly told on 9 December 2016 that the first respondent might “authenticate” the “department records” at the final hearing: see transcript 9 December 2016 at T43.43.”
The Minister says that given the applicant has, at no time, called for “copies of the department records when he was being cross-examined or seek orders as to the filing of any evidence by the first respondent in relation to those records”, any allegation that the Minister has obtained a forensic advantage by serving the Pinder Affidavit after the
cross-examination of Mr Issa “cannot be sustained” ([5] of the Minister’s written submissions of 21 March 2017). Especially in circumstances where the applicant has accepted the possibility that he could re-open his case.
The applicant prefaces his submissions by noting that from 20 May 2016 (the first day of the hearing of the application for an extension of time), the Minister was aware of the need to call his own evidence of matters where the applicant did not accept what was put to him as occurring in the course of conversations with departmental officers.
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 20/5/16
Ms 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).
Finally, the Minister submits that in any event, the applicant could
re-open his case, or be re-called, to address any prejudice to the applicant that the Court considers could arise from admitting the Pinder Affidavit ([12] of the Minister’s written submissions of 21 March 2017).
I agree with the Minister that the applicant would have been aware of the existence of these departmental records (the file notes), at least from 20 May 2016 when he was cross-examined upon them.
The applicant’s claim now that he would be “ambushed” by the Minister’s attempt to put these documents into evidence, cannot be accepted to the extent that that term implies that he had no prior knowledge of them.
However, I agree with the applicant that the extent of the Minister’s reliance on these documents was not made clear as at that earlier time. The Minister’s submissions on 9 December 2016, that he “might authenticate” the “departmental records” at a later time, was, in context, far too general a statement such as to serve as reasonable notice to the applicant as to the Minister’s specific intention in relation to all of the departmental records.
It is true, and as the Minister now submits, that the applicant did not call for those documents on 20 May 2016 or for that matter, at any time thereafter, as he had done in relation to the cross-examination of Mr Gash (a migration agent). But, it is also the case that the Minister has elected not to satisfactorily explain why he did not seek to tender these documents or file the Pinder Affidavit at some earlier time.
In all however, the “charge” and “counter-charge”, of the respective claims of “forensic advantage”, in my view, assist neither party in the circumstances.
Notwithstanding this, what remains is that there is prejudice to the applicant at this stage of the proceedings if the entirety of the documents annexed to the Pinder affidavit are allowed. This is particularly so in circumstances where the applicant has closed his case and the key witness called by the Minister (the person against whom fraud is alleged), had completed his evidence.
In my view, it is not in the interests of justice to allow the Minister to “expand” his response to the applicant’s case at this “late” stage of the proceedings, with material in respect of which the applicant had no specific notice of the Minister’s intention to rely on any such material.
Having said that, I am satisfied that the applicant did have reasonable notice of the Minister’s intention to rely on such material in relation to parts of these documents, given questions asked of him, in
cross-examination.
In all therefore, the Pinder Affidavit should be read into evidence. However, only those parts of the departmental records annexed to the affidavit that can be directly connected to questions put to the applicant during cross-examination, should be allowed into evidence. To allow all of the documents would be prejudicial to the applicant. It would further, and unfairly, protract these proceedings in a fashion inimical to the interests of the administration of justice.
Therefore, the order that I propose would be to allow those parts of the departmental records that the Minister identifies, with reference to the transcript of the cross-examination of the applicant, as having a direct connection with questions put during the cross-examination of the applicant.
It is also appropriate that the applicant, if he elects to seek it, be given leave to re-open his case, only in relation to those parts of the documents identified by the Minister. I note that the Minister’s submissions appear to contemplate this course of action if the Court were minded to agree to allowing the departmental records into evidence (see [12] of the Minister’s written submissions of 21 March 2017).
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 5 May 2017
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