Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "prevent[s] the Tribunal having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"?
Question 2: Must ss 500(6H) and (6J) be read together?
Question 3: Is s 500(6H) directed towards witness testimony and s 500(6J) directed towards all other forms of material before the Tribunal?
Question 4: Should the term "document" in s 500(6J) have the meaning given under s 2B of the Acts Interpretation Act 1901 (Cth)?
Question 5: Do oral submissions do not fall within s 500(6H)?
Question 6: Does the word "statement" in s 500(6H) "refer to a document that records in writing the substance of what a person will say when that person gives oral testimony to the Tribunal"?
Question 7: Must the "statement" in s 500(6H) "be a statement made by the person who will give evidence"?
Question 8: Can the "statement" in s 500(6H) be given in a letter or email?
Question 9: Can the "statement" in s 500(6H) provide an outline of what more than one person will say?
Question 10: Can it be said that "excessive or unreasonable scrutiny should be applied to the content of the written statement"?
Question 11: May s 500(6H) apply only to part of the oral evidence of a witness?
Question 12: Can it be said that "if all of the evidence that the applicant’s partner was being called to give was information that the Tribunal could not have regard to by reason of s 500(6H), then there would be no utility in permitting the evidence to be called and hence the Tribunal’s refusal to allow it may have been free of any error"?
Question 13: Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?
The FCAFC answered those questions as follows:
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