SZUYP v Minister for Immigration - [2016] FCCA 3115

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYP v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3115

Catchwords:
MIGRATION – Application to tender document into evidence – OMARA decision record – whether an Australian or overseas proceeding – document not admissible under s.91 of the Evidence Act 1995 (Cth) – application refused.

Legislation:

Migration Act 1958 (Cth), ss.309, 476, 477

Evidence Act 1995 (Cth), ss.91, 97
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382

Ainsworth v Burden [2005] NSWCA 174
Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L (No 4) [2012] FCA 1323; (2012) 298 ALR 251
Attorney General of New South Wales v Martin [2015] NSWSC 1372

Applicant:

SZUYP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2372 of 2014

Judgment of:

Judge Nicholls

Hearing date:

20 May 2016, 24 May 2016 and 1 November 2016

Date of Last Submission:

1 November 2016

Delivered at:

Sydney

Delivered on:

2 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr Godwin

Counsel for the Respondents:

Ms Francois

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application made on 24 May 2016 to tender the OMARA decision record is refused.

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 a document into evidence which the applicant has sought to tender in these proceedings.
The background is as follows. On 25 August 2014, the applicant applied pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for an extension of time within which to make a competent application pursuant to s.476 of the Migration Act, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 16 May 2013, which affirmed the delegate’s decision to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant is a citizen of Lebanon who arrived in Australia on 23 September 2012 (CB 4). He applied for a protection visa on 24 October 2012 (CB 1 to CB 34). He was assisted with the application by a person who, at that time, was a registered migration agent and also a solicitor (Mr Issam Issa). The agent was authorised to receive correspondence on the applicant’s behalf (CB 1 to CB 25 and CB 28 to CB 31).
The applicant was invited by letter sent to Mr Issa from the Minister’s department to attend an interview with the delegate (CB 47 to CB 51).
On 2 February 2014, Mr Issa responded to the Minister’s department on the applicant’s behalf in the following terms (CB 55):
“We refer to above matter and are…

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: [2016] FCCA 3115
Decision Date: 2 December 2016

CaseChat Overview and Summary

This matter concerned an application by SZUYP (the applicant) against the Minister for Immigration (the Minister). The dispute revolved around the admissibility of a decision made by an OMARA delegate in previous proceedings. The case was heard by Judge Nicholls.

The central legal issue before the court was whether the OMARA decision could be admitted as evidence in the current proceedings, specifically in light of section 91 of the Evidence Act. Section 91 of the Evidence Act generally prevents the tender of evidence of a decision or finding of fact in an Australian or overseas proceeding for the purpose of proving that fact. The applicant contended that the OMARA decision was admissible to demonstrate the issues before the OMARA delegate and the evidence presented, relying on the definition of "Australian court" in the Evidence Act and case law such as *Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L (No 4)*.

Judge Nicholls reasoned that while the OMARA delegate was authorised to hear, receive, and examine evidence, and thus potentially fell within the definition of an "Australian court" for certain purposes, section 91 of the Evidence Act operated to exclude the OMARA decision from being used to prove the facts that were in issue in those prior proceedings. The court applied the principles from *Attorney General of New South Wales v Martin*, which require an analysis of the facts in issue in the prior proceedings, the facts found, and the purpose for which the judgment is sought to be used. The applicant's stated intention was to use the OMARA decision to prove the facts contained within it, which was precisely what section 91 prohibited.

The court agreed with the Minister that the applicant sought to use the "facts" contained in specific parts of the OMARA decision for the purpose of proving those facts, thereby falling foul of section 91 of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The term “Australian court” is further defined in the Evidence Act, for the purposes of the Evidence Act, as:“Australian court means:(a) the High Court; or(b) a court exercising federal jurisdiction; or(c) a court of a State or Territory; or(d) a judge, justice or arbitrator under an Australian law; or(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.”[Emphasis added.] With that in mind, I find that the OMARA decision is “evidence of [a] decision, or a finding of fact, in an Australian or overseas proceeding”. As the OMARA delegate was authorised to “hear, receive and examine evidence”. As the applicant submits, s.91 of the Evidence Act does not simply make the OMARA decision inadmissible. What s.91 of the Evidence Act does, is to prevent the tender of the OMARA decision to prove the facts that were in issue in the proceedings (Ainsworth v Burden [2005] NSWCA 174 at [109]). The applicant argues that the OMARA decision can be received into evidence for the purposes of understanding the issues before the OMARA delegate, and the evidence by which those issues were addressed. He relies on Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L (No 4) [2012] FCA 1323; (2012) 298 ALR 251 (“Prysmian”) at [178] in support of that submission. I will return to Prysmian below. In the meantime, the applicant’s submission overlooks what is central in the current case. That is, that even if the “evidence” in the OMARA decision is otherwise relevant to these proceedings, and even admissible for some other purpose, s.91 of the Evidence Act prevents its use for the purpose of proving a fact that was in issue in the OMARA proceeding. Here regard may be had to such authorities as Attorney General ofNew South Wales v Martin [2015] NSWSC 1372 at [13]:“Counsel for the Attorney General submitted that the Attorney General was entitled to rely upon the ‘findings’ in these judgments because none of the earlier proceedings dealt with the question of whether the claims made by Mr Martin are ‘vexatious’ within the meaning of s 6 of the Vexatious Proceedings Act. That, in my opinion, implies too broad a test. Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things – (i) what the facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments – that is, what facts she seeks to prove by their use.” In the current case, this immediately directs attention to the use which the applicant says he wants to put those parts of the OMARA decision. I agree with the Minister that having regard to the notice which the applicant says he has given to the Minister (the Minister otherwise disputes the efficacy of the notice, and see [28] above) the use to which the applicant seeks to put the “facts” contained in [115] and the first sentence of [127] of the OMARA decision (when read with the footnotes) is for the purpose of proving those facts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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