Gjergji and Minister for Home Affairs (Citizenship)

[2018] AATA 1823

Gjergji and Minister for Home Affairs (Citizenship) [2018] AATA 1823 (13 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0910

Re:Albert Gjergji

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:13 June 2018

Place:Canberra

The parties are granted access to the contested documents as redacted.

........................................................................

Mark Hyman, Member

Catchwords

PRACTICE AND PROCEDURE – access to summoned documents – where documents provided in redacted and clean copies – police and court records – records include personal information of third parties – relevance of material – relevance of redacted information – access granted to documents with redactions

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Australian Citizenship Act 2007 ss 20, 21, 24

Cases

Comcare v Maganga (2008) 101 ALD 68

Hunt v Wark (1985) 40 SASR 489

Kennedy and Comcare [2014] AATA 369

Trade Practices Commission v Arnotts [1989] FCA 248

REASONS FOR DECISION

Mark Hyman, Member

13 June 2018

1. This matter involves an application by Mr Albert Gjergji for review of a decision by a delegate of the Minister for Home affairs (the Minister) to deny Mr Gjergji’s application for citizenship by conferral. In the course of preparing for a hearing on the matter, the Minister requested a summons directed to the South Australia Police (the Police) seeking all documents held by the Police that related to Mr Gjergji. The Police returned four documents under the summons, but asked that certain information be redacted unless the Tribunal decided otherwise. Mr Gjergji has now asked that the redactions be removed, and the purpose of this decision is limited to deciding that question.

2. The tribunal held a hearing on 24 May 2018. Ms Marion Le, a migration agent, represented Mr Gjergji; Ms Eleanor Cannon of Clayton Utz represented the Minister. Both parties participated by telephone.

   ISSUE

3. The only issue before the tribunal is whether some or all of the redactions in the documents produced by the Police (the contested documents) should be removed.

   LEGISLATION

4. The context to the issue to be decided is provided by Mr Gjergji’s application for citizenship by conferral. That application is governed by the Australian Citizenship Act 2007 (the Act). Although the parties in this matter are yet to set out their views on the scope of the matter and the issues to be decided, it appears from the decision under review and the papers submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and other documents already filed and served in the matter that the application of subsections 21(2) and 21(2A) of the Act is likely to be central to the tribunal’s deliberations. Matters raised in section 24 of the Act are also likely to be important. The thrust of the relevant legislative provisions is therefore outlined below.

5. Section 20 of the Act provides that a person becomes an Australian citizen if the Minister gives approval under subsection 24(1) and, where relevant, that the person takes the appropriate pledge. Section 21 then sets out the basis for making an application and the criteria that it needs to meet if citizenship is to be granted. Subsection 21(1) provides that a person may apply to become a citizen; subsection 21(2) sets out the general eligibility requirements for an adult, including age, residence, familiarity with Australia and, in paragraph 21(4)(f), that the person is of good character at the time of the Minister’s decision.

6. Subsections 24(1), (2) and (3) of the Citizenship Act provide, respectively, that the Minister must approve or refuse an application made under section 21, that approval may only be granted where the person satisfies the relevant subsection or subsections of that section, and that the Minister may refuse an application even where those subsections are satisfied. Subsection 24(6) provides a temporal constraint on the Minister’s decision: approval for a person to become a citizen may not be given where one of a number of listed actions relating to offences are on foot (e.g. while the person is in prison, or for two years after release from prison, or when proceedings are pending, or where a person is covered by a good behaviour bond or the like).

   THE SUMMONED DOCUMENTS

7. On 26 April 2018, at the Minister’s request, the tribunal issued a summons to the Police in the following terms:

   All documents in the possession, custody or control of the South Australia Police relating to Albert Gjergji, date of birth 9 August 1986, including but not limited to criminal history/record (including pending charges), all police reports, briefs of evidence, all disclosable court outcomes and all other records otherwise held by the South Australian Police Service.

8. On 14 May 2018 the Police produced four documents in response to the summons:

   (a)a police incident report dated 23 November 2012 recorded at Henley Beach Police Station; the incident involved an alleged threat of violence by Mr Gjergji against another man, but the police concluded that no offence was revealed;

   (b)an arrest record dated 2 July 2013, relating to the cultivation of three cannabis plants;

   (c)a record of the seizure of property forfeited to the crown under court order, dated 16 July 2013, but apparently relating to the arrest made on 2 July 2013; and

   (d)a record of a court outcome from a hearing on 23 June 2014 at the Magistrates Court of South Australia, Port Adelaide; the offences were the cultivation of cannabis plants – artificially enhanced and the possession of prescribed equipment. No conviction was recorded, but Mr Gjergji was fined $400 and costs were awarded against him; the plants and equipment were forfeited to the crown.

9. The redactions made by the Police in the contested documents obscure the personal details of those involved (dates of birth, addresses, telephone numbers) and the addresses of locations where the offences or incidents occurred. The details obscured include some detail about Mr Gjergji, including his occupation. In some (but not all) cases the name of a witness or otherwise involved person has also been obscured.

10. An original version of the documents was provided and the decision was left to the tribunal (slightly misidentified as “the presiding Justice”) whether to allow inspection by counsel for the parties.

    CONSIDERATION

11. The tribunal has examined the contested documents.

12. Access to relevant material is plainly critical to procedural fairness in the tribunal. Subsection 39(1) of the AAT Act requires that the tribunal ensure that parties to a proceeding are given every reasonable opportunity to present their case, and in particular, to inspect documents to which the tribunal proposes to have regard in reaching a decision. The reach of that provision is clearly limited, however, to documents and information that are relevant to the matter, as the tribunal will inevitably limit its attention to such material.  But at this early stage of a matter a party is still putting its case together and identifying evidence that may be relevant; the net is therefore appropriately cast broadly rather than narrowly and a party should not lightly be denied access to material that may prove relevant.

13. The leading case on access to summoned documents in the tribunal is Comcare v Maganga (2008) 101 ALD 68 (Maganga). In that case Bennett  J noted that:

    ·a party seeking to inspect documents does not need to demonstrate that they exist (at [34]);

    ·a party seeking to inspect documents does not need to show that they are relevant; rather, the basis for inspection of documents is that there is a real possibility that they may assist in resolving matters before the tribunal (at [37]); and

    ·among the bases for allowing inspection is that the documents are apparently relevant, or on the subject matter of the proceedings, or might legitimately be used for cross-examination (at [38]).

14. These and other issues of relevance are also canvassed in Kennedy and Comcare [2014] AATA 369. Among the reasons cited for a decision allowing inspection of documents are “There must be some reason to suppose that the documents sought will be capable of being used ...” (Hunt v Wark (1985) 40 SASR 489 at 493); and that the documents “could reasonably be expected to throw light on some of the issues in the principal proceedings” (Trade Practices Commission v Arnotts [1989] FCA 248 at [41]).

15. Ms Le was concerned to access the information in the documents in the hope that it would yield information to advance Mr Gjergji’s case. Ms Cannon said that the Minister did not take a position and would abide by any decision by the tribunal.

16. There is no doubt in my mind that the documents summoned from the Police are sufficiently relevant to the matter, taking into account the above criteria: clearly they potentially bear on questions of good character (paragraph 21(4)(f) of the Act) and may also constrain the Minister’s decision-making under section 24 of the Act. I am therefore persuaded that the parties should have access to the documents.

17. In the present matter, the contested papers, in unredacted form, also contain information about third parties, and therefore raise issues of privacy and confidentiality. Those concerns need to be considered in the context of the balance to be struck between the administration of justice (broadly understood to encompass the work of the tribunal) and the interests of third parties otherwise uninvolved in the matter.

18. In my view the relevance of the documents for the resolution of the matters being brought before the tribunal does not extend to the identity, contact details and dates of birth of people who may have been involved in those matters now almost five years past and earlier; I cannot see how that information could assist the tribunal. In respect of the matter involving cannabis, in particular, I cannot see any reason why the tribunal would wish to go behind the outcome of that matter as reflected in the court record.

19. Access is granted to the redacted versions of the contested documents. Should either party wish to seek access to any particular detail that has been obscured, the party may do so by demonstrating its specific relevance to the tribunal. Liberty to apply is therefore preserved.

20.     I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.

........................................................................

Associate

Dated: 13 June 2018

Date(s) of hearing:	25 May 2018
Date final submissions received:	25 May 2018
Advocate for the Applicant:	Ms M Le, Marion Le Consultancy
Solicitors for the Respondent:	Ms Eleanor Cannon, Clayton Utz