s 500(6H) interpreted

Federal Court. Does s 500(6H): preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information and, if so, does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"; "require that the Tribunal must not have 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"; always require that prior notice of the source of the information to be presented orally be given?

A delegate of the Minister refused to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant's. The FCA described the next relevant facts as follows:

6. ... immediately before the hearing commenced, the Tribunal was informed that the applicant’s partner and his former teacher were present and that the applicant, who was self-represented, wanted to call them as witnesses. The Minister did not object to the former teacher giving evidence on account of the fact that the documents before the Tribunal included a letter written by the teacher. Objection was taken, however, to the Tribunal receiving any evidence from the applicant’s partner. The Minister submitted to the Tribunal that s 500(6H) of the Act prevented the applicant from calling his partner as a witness because she did not provide a witness statement to the Minister two clear days prior to the hearing.

Section 500(6H) of the Act provided:

500 Review of decision

(6H)     If:

(a)     an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b)     the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

The Tribunal allowed the teacher, but not the partner, to give evidence, based on the decision of the Full Court of the FCA in Goldie, finding as follows (emphasis added):

On this basis, the Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court, and to hear the evidence of the Applicant’s teacher, but not his partner. The Tribunal was mindful that the Applicant’s partner was likely to give evidence about his relationship with his step-children, which is a primary consideration for the Tribunal. The Tribunal sought to ensure that the Applicant gave evidence about his relationship with the children by asking its own questions of the Applicant, in addition to considering his written submissions in the G documents regarding the children. There were also other relevant materials before the Tribunal obtained under summons from the Western Australia Police, which contained information relevant to the best interests of the children.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Does s 500(6H) preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information?

Question 2: If the answer to Question 1 is "yes", does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"?

Question 3: Does a fair reading of the Tribunal's decision suggest that "the Tribunal construed s 500(6H) as requiring that it not have regard to any information given by a witness in support of an applicant’s case unless that information was set out in a written statement outlining the evidence of that witness which had been provided to the Minister at least two business days prior to the Tribunal’s hearing"?

Question 4: Does s 500(6H) apply to information elicited in cross-examination or in response to questions from the Tribunal?

Question 5: Does the "written statement" in s 500(6H) need not be in any particular form?

Question 6: For the purpose of s 500(6H), could a witness elaborate on his or her written statement while giving oral evidence?

Question 7: "Does s 500(6H) require that the Tribunal must not have 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 8: Does the reference to "information presented orally" suggest that s 500(6H) only addresses witness evidence, or does it also encompass information presented informally, for instance, by a party from the bar table?

Question 9: Can it be said that the "apparent purpose of s 500(6H) supports an implication that where prior notice of the source of the information to be presented orally is critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing, that notice is required to be given", but that otherwise prior notice of the source of the information to be presented is not required?

The FCA answered those questions as follows:

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