SZUYP v Minister for Immigration
[2016] FCCA 3115
•2 December 2016
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 |
| Cases cited: IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382 Ainsworth v Burden [2005] NSWCA 174 |
| 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 instructed to advise that our client does not wish to attend the scheduled interview and requests a decision to be made on the papers before the Department as per the attached signed authority.”
See also at CB 56 which on its face, appears to be an authority signed by the applicant (that which is referred to in the letter to the Minister’s department from Mr Issa reproduced at [6] above, and see also references to the applicant’s non-attendance at the interview at CB 77.5 and [5] at CB 113).
The application was refused by the delegate (CB 58 to CB 82). The applicant applied for review to the Tribunal on 12 March 2013 (CB 83 to CB 89). Mr Issa continued to represent the applicant at that time (CB 83 and CB 86).
The applicant was invited by letter dated 16 April 2013 to attend the hearing before the Tribunal scheduled for 29 May 2013 (CB 98 to CB 99). The letter was sent to Mr Issa who had been authorised to receive correspondence on the applicant’s behalf in relation to the review (CB 97).
A completed “Response to Hearing Invitation” form was sent to the Tribunal on 23 April 2013. It advised that the applicant would attend the hearing. It appears the response was signed by Mr Issa (CB 106 to CB 107).
On 16 May 2013 Mr Issa sent a letter to the Tribunal, which contained the following (see CB 108):
“We refer to above matter and are instructed to request that a decision be made on the papers before the Tribunal.
We enclose herewith Authority for your records.”
See also CB 109 which appears to be an authority signed by the applicant and dated 16 May 2013 (that which is referred to in the letter sent from Mr Issa to the Tribunal and reproduced at [11] above).
The Tribunal affirmed the delegate’s decision on what had been put before it (CB 112 to CB 116).
The applicant applied to the Court for judicial review of the Tribunal’s decision. Although it was not entirely clear from the grounds of the application, the applicant and his wife made clear at the first Court date on 1 October 2014, that his complaint was directed to Mr Issa. That is, as his migration agent, Mr Issa engaged in certain conduct which led to the Tribunal affirming the delegate’s decision without the applicant having the opportunity to be heard.
Following the first Court date, the applicant was referred for pro bono assistance pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth) (see order 1 of the orders made on 1 October 2014). Ultimately, with the assistance of Counsel, the applicant pressed grounds in support of the application to extend time and the proposed substantive application which sought to impugn the conduct of Mr Issa.
The matter was set down for hearing on 20 May 2016. At the hearing, the applicant sought leave to tender into evidence a document headed “Decision Record” made on 10 October 2014, and being a decision, with reasons, of a “Senior Professional Standards Officer” of the Office of the Migration Agents Registration Authority (“OMARA”). This officer had been delegated by the Minister to conduct the investigation of a number of complaints concerning Mr Issa (“the OMARA delegate”). The delegate decided that Mr Issa’s registration as a migration agent be cancelled (“the OMARA decision”).
The Minister objected to the tender of the OMARA decision on the basis that it was “inadmissible” because of s.91 of the Evidence Act 1995 (Cth) (“the Evidence Act”), and that the applicant needed to persuade the Court of the basis on which the document could be otherwise admitted.
The parties made oral submissions. While the purpose of the tender was not made entirely clear, argument ensued. The Court ultimately agreed with the Minister. The document was not put into evidence. The Court decided that the OMARA decision fell within s.91(1) of the Evidence Act because it was “evidence of [a] decision, or a finding of fact, in an Australian … proceeding”. The applicant was unable to otherwise satisfy the Court that the document should be entered into evidence. That matter was later adjourned part heard.
During the course of the hearing on resumption on 24 May 2016, the applicant again sought to agitate this matter. I gave the parties the opportunity to make written submissions, and the following derives essentially from those submissions.
The applicant argues that s.91 of the Evidence Act does not make a “previous decision” inadmissible, rather it “only” prevents the tender of a decision to prove the facts that were in issue in the proceedings.
It emerged from submissions that, in essence, the tender was focused on the OMARA delegate’s examination of what were said to be 50 protection visa applications in respect of which Mr Issa was the relevant migration agent for each of the applicants.
In particular, some of those applicants did not attend an interview with the delegate for the protection visa application, and some did not attend the hearing before the Tribunal. It is to be remembered, the applicant in the current case did not attend an interview before the delegate or a hearing before the Tribunal. The applicant now submits that in these circumstances, the consequence of not accepting the Tribunal hearing invitation is that “an applicant would be certain to lose their appeal” (that is, in context, the review before the Tribunal).
Having regard in particular to the applicant’s first written submissions filed in Court with leave of the Court on 24 May 2016 at [34] and [35], and the Minister’s submissions filed on 1 June 2016 at [1] and [2], attention is directed to [115] and the first sentence of [127] of the OMARA decision which are in the following terms:
“[115] The review of the 53 Protection visa applications indicates that the Department invited 50 of the Agent’s clients to attend an interview. Of the 50 clients, 11 did not attend an interview resulting in a refusal decision. Applications for review by the Tribunal were lodged in all 11 cases. The Agent’s client files have no evidence of discussion about prospects of success and/or concerns that the Agent may have had with the client’s claims. Of the 11 cases, six clients did not attend the Tribunal hearing. In these six cases the Tribunal affirmed the Department’s decision. Of these, the Agent assisted five clients to lodge requests for Ministerial Intervention without any evidence of discussions about prospects of success and/or concerns that the Agent may have had with the strength of, or reasons for, requesting Ministerial Intervention. In one matter, the Agent assisted the client to appeal to the Court.
…
[127] The evidence demonstrates that the majority of the Agent’s clients are making protection visa applications, with the Agent lodging an average of 3.6 Protection visa applications per week and within the last five years the vast majority of these applications for protection being refused.”
[Footnotes omitted.]
It is clear from submissions that the applicant seeks to rely on findings expressed in these parts of the OMARA decision to argue that Mr Issa had a tendency, from the conduct “evidenced” in the OMARA decision, to engage in the conduct referred to at [115] and in the first sentence of [127].
The applicant’s submissions, in support of the tender, can be ultimately understood as having two foci. First, with reference to [115] of the OMARA decision, for the purpose of adducing that of 50 of Mr Issa’s migration cases, 11 applicants of that cohort of cases did not attend the interview with the protection visa delegate. Further, in 6 cases the applicants declined the invitation to attend the Tribunal hearing.
The “similar fact evidence” that the applicant seeks to adduce, therefore, is that in 6 cases the applicant declined to go to the Tribunal hearing. The applicant submits (at [5] of the applicant’s written submissions of 8 June 2016):
“The fact in issue is whether or not the applicant was informed of the content of the hearing waiver for the RRT when he signed it. That 6 out of 11 clients of Mr Issa asked to have the RRT determine their cases on the papers in circumstances where this meant that their appeal would be rejected is evidence of significant probative force to the determination of the fact in issue. The fatal consequence of signing the request for the matter to be determined without a hearing suggests that it is improbable that such a large percentage of applicants would consciously waive their rights. This in turn suggests a pattern by Mr Issa of having clients sign requests that their decision in the RRT be made on papers without informing them of what they were in fact signing and its effect.”
Second, with reference to the first sentence of [127] of the OMARA decision, the applicant asserts that this was a representation of the number of protection visa applications made by Mr Issa each week in the period relevant to the time the applicant’s application was made.
The applicant has now given the respondent the relevant notice for the purposes of s.97 of the Evidence Act. In this context, I note the provisions of s.97(1)(b) of the Evidence Act:
“The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
The starting proposition is that such evidence is not admissible. It is admissible if the Court thinks that the evidence will have significant probative value. For the purposes of s.97 of the Evidence Act, I proceed on the basis that the evidence is credible and reliable (IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382) for the purposes of the assessment of the probative value of this evidence and its significance.
I am of the view that given the facts in the current case, that what is set out in those parts of the OMARA decision relied on by the applicant, do not reveal any “tendency” on the part of Mr Issa.
The applicant’s position is that he was denied an opportunity to attend the hearing before the Tribunal because of the conduct of Mr Issa and this meant that his application was unsuccessful.
While the applicant relies specifically on [115] and the first sentence of [127], the context for what is set out there, is that over a 15 year period Mr Issa represented 2973 matters before the Minister’s department, 1,854 were for substantive visas and of those, 48.5% were for protection visas. That is, for that period, about 870 cases (as indicated at footnote 37 at [114] of the OMARA decision).
Of this cohort, the OMARA delegate focused on 53 protection visa applications. It is not clear how this number was chosen. Further, this number is not easily reconciled with the complaints set out at [67] of the OMARA decision, or of the 73 files said to have been examined (see [12] of the OMARA decision).
Of this entire cohort of 2973 matters, only 53 were considered, and only 50 of those matters were considered in the context of having been invited by the Minister’s department to attend an interview before the protection visa delegate. Of those 50, 11 refused the invitation to the interview, and 6 of those 11, did not attend the hearing before the Tribunal.
Plainly the applicant, as did the OMARA delegate, focused on these instances where the applicant did not attend a hearing before the Tribunal, or even it may be said, the interview before the delegate. However, what remains is that in context a large number of those 50 did attend interviews, that is, 39 out of 50. Of the 11 that the OMARA delegate said were refused a protection visa by the protection visa delegate, in context, 6 who lodged applications for your review to the Tribunal did not attend the Tribunal hearing.
I do not accept that in this light what is set out at [115] of the OMARA decision can be said to show any “tendency” on the part of Mr Issa. Nor it must be said, was this the focus of the OMARA delegate. That delegate looked individually at a comparatively small number of cases involving Mr Issa in the context of a number of specific complaints made about Mr Issa’s conduct as a migration agent. He did so for the purpose to determine whether the complaints could be made out, and if so, what sanction should be imposed on Mr Issa in relation to each individual complaint.
It is also relevant to note that the statistics referred to at [115] of the OMARA decision were not directed to the issue of Mr Issa’s conduct in relation to whether “his” applicants attended interviews or hearings, but rather whether he failed to advise these clients of their prospects of success when “pursuing” a review application to the Tribunal (see also the heading “above” [113] of the OMARA decision).
Similarly, the first sentence of [127] of the OMARA decision is not directed to the issue of any attendance at the Tribunal hearing. Rather, it relies on statistics over a different time scale to that in [115] of the OMARA decision (see footnote 42 to [127] of the OMARA decision).
Putting to one side, as is required for current purposes, that 47% (see again footnote 42 to [127] of the OMARA decision) is not a “majority”, what the first sentence of [127] of the OMARA decision asserts is that of the 3.6 protection visa applications made each week with the assistance of Mr Issa for the period of five years up to October 2014, the “vast majority” were refused.
I cannot see the probative value, let alone significant probative value, of this statement to the matter of Mr Issa’s conduct in relation to his clients attendance at the Tribunal hearing. The “refusal” may have been for any number of other quite separate reasons.
In all, I cannot see that [115] and the first sentence of [127] of the OMARA decision either of themselves, or with other evidence, could reasonably found a submission from the applicant that Mr Issa had a tendency to prevent applicants from attending Tribunal hearings. To the extent that the applicant relies on those for the purpose of adducing tendency evidence, such evidence is not admissible pursuant to s.97 of the Evidence Act.
Section 91 of the Evidence Act provides that:
“Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.”
At the hearing, the applicant submitted that the OMARA decision was not a relevant proceeding. However, the applicant’s written submissions do not appear to dispute that the OMARA decision fell within the definition of “an Australian… proceeding”. In this regard, an “Australian or overseas proceeding” as it appears in s.91 of the Evidence Act is defined, for the purposes of the Evidence Act, as:
“Australian or overseas proceeding (however described) in an Australian court or a foreign 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.
This conclusion, in my view, is reinforced by the applicant’s written submissions of 8 June 2016. The applicant submits that the number of Refugee Review Tribunal (“RRT”) applications made, and the number of hearing invitations declined, is “evidence of what was observed by the [OMARA] delegate of the respondent when he examined the 50 applications” ([8] of the applicant’s written submissions of 8 June 2016). That is, what is contained there are not “finding[s] of fact”.
This directs attention to [115] and the first sentence of [127] of the OMARA decision. Plainly, references are made there to statistics “assembled” by the OMARA delegate. However, as the words “indicates” and “the evidence demonstrates” reveal the essence of what is contained there are findings on the evidence before the OMARA delegate as to the conduct of Mr Issa.
Nor can the relevant paragraphs of the OMARA decision be fairly read in isolation of the remainder of the document. What the applicant says was “observed” by the OMARA delegate were matters “in issue in the proceeding”.
As the applicant otherwise submits, “numbers” or statistics referred to in these paragraphs were indeed in a “notice” given pursuant to s.309 of the Migration Act to Mr Issa.
Section 309(2) of the Migration Act relevantly provides that if consideration is being given to cancellation or suspension of a registered migration agent’s registration, the agent must be informed of that fact, and the reasons for it, and given the opportunity, by invitation, to make submissions.
Not only did Mr Issa make submissions, he disputed the statistics and the reasons given by the OMARA delegate for the consideration. That is, the likely use to which the statistics would be put in the consideration (see in this regard, the OMARA decision at [23] to [26], [27] and [44] to [47] and [48] to [51]).
Further, I note that [67] to [69] of the OMARA decision and the difference in numbers between the “files” provided by Mr Issa and those in respect of which the OMARA delegate “conducted a detailed analysis”. It is also of note that at [96], the OMARA decision reports that Mr Issa provided “34 client files”. Yet at [68] of the OMARA decision, it reports that Mr Issa provided “27 of the 29 files that he had indicated he would provide.”
Finally, in this regard, as the Minister submits, Prysmian does not assist the applicant. As the Court made clear in that case (at [179]) it would not treat any finding of fact made in the document being tendered, as a finding of fact for the purposes of the proceeding before it.
In oral submissions, the applicant argued that the tender was for the purpose of providing background. In written submissions, this is described as being that the tender is to provide “context” (see [7] of the applicant’s written submissions of 8 June 2016).
The current circumstances can be contrasted with the situation in Prysmian where the party seeking to tender the relevant judgement was also seeking to tender affidavit evidence upon which the “first” judgment was based (see Prysmian at [142]). In that circumstance, the judgment was tendered to assist in the understanding of the otherwise admissible affidavit evidence. That is, the actual context the issues to which the affidavit evidence had been addressed. That is not the case here.
Conclusion
For the reasons set out above, the second application by the applicant to tender the OMARA decision is refused.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 December 2016
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