Hasani and Minister for Immigration and Multicultural Affairs
[2006] AATA 282
•28 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 282
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/50
GENERAL ADMINISTRATIVE DIVISION ) Re ARTAN HASANI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date28 March 2006
PlaceAdelaide
Decision The Tribunal directs that:
(a) the matter be adjourned until 1 May 2006 for a further telephone directions hearing;
(b) either party is at liberty to apply for an earlier telephone directions hearing in the event that the criminal proceedings in the Magistrates Court involving the applicant are finalised before 1 May 2006.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – application for Australian citizenship – “good character” – pending criminal proceedings – whether review should be adjourned – whether contempt of court for Tribunal to proceed – matter adjourned.
Australian Citizenship Act 1948 ss 13(1), 13(1)(f), 13(11)(a), 14A(1)(b)(ii), 14A(2)
Administrative Appeals Tribunal Act 1975 ss 33(1), 39(1), 40(1), 43(1)
Administrative Appeals Tribunal Listing and Adjournments Practice Direction
McMahon v Gould (1982) 7 ACLR 202
Elliot v Australian Prudential Regulation Authority [2004] FCA 586
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167
Commonwealth of Australia v Ford (1996) 65 ALR 323
Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192
Sullivan v Department of Transport (1978) 1 ALD 383
Re Street Nation Pty Ltd and Australian Communications Authority [2004] AATA 1251
Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317
Re Taxation Appeals (No 163) and Commissioner of Taxation (AAT 3500, 26 May 1987)
Re Lane and Conservator of Wildlife (1984) 5 ALN N297
Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463
Hammond v Commonwealth of Australia (1982) 152 CLR 188
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25REASONS FOR DECISION
28 March 2006 Senior Member R W Dunne 1. The issue in this case in whether the Tribunal should adjourn the hearing of the application for review until after criminal charges against the applicant, Artan Hasani (“applicant”), have been heard and determined in the Magistrates Court in Adelaide.
2. Mr Jonathan Wells, QC, appeared as counsel for the applicant and Mr Rodger Prince appeared as counsel for the respondent.
3. Mr Wells contended (and Mr Prince, on behalf of the respondent, accepted) that the applicant had been charged on information with a major indictable offence under s 32(1)(a) of the Controlled Substances Act 1984 (SA) for the production of cannabis. The offences were alleged to have been committed between 8 November 2005 and 8 December 2005 and, at a telephone directions hearing on 18 January 2006, the Tribunal was advised by the applicant’s instructing solicitor that the charges had been laid on or around 6 January 2006.
4. The background to this case was that, on 28 January 2003, the applicant had applied for a grant of Australian citizenship. After protracted correspondence, on 27 January 2004 the applicant was advised by the respondent that, because of his criminal history, he had failed to satisfy the Minister that he was of good character and his application for citizenship had been refused. The applicant applied to this Tribunal for review of the respondent’s decision on 11 February 2004. However, the application was adjourned pending the resolution of outstanding criminal proceedings against the applicant, which were finalised in the Magistrates Court in June 2005. The application was listed for hearing before this Tribunal on 23 and 24 January 2006. However, at a telephone directions hearing on 18 January 2006 the Tribunal was advised that further criminal proceedings were pending against the applicant and another adjournment was sought. At the conclusion of the directions hearing, the Tribunal made the following directions:
“The TRIBUNAL DIRECTS that at the hearing of the application listed for 23 January 2006 the applicant and the respondent make submission to the Tribunal on the following:
1.Whether s 13(11) of the Australian Citizenship Act 1948 is a bar to a decision of the Tribunal being given effect to.
2. Whether the application before the Tribunal should be withdrawn.”
legislation
5. The legislation that is relevant to this case is as follows:
Australian Citizenship Act 1948 (“Act”)
“13(1)Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f) the person is of good character;
…
13(11)The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):
(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or
…”
14A(1)If:
(a)an application is made to the Minister under section 13; and
(b)it appears to the Minister that:
(i)…
(ii)the person has been charged, or may be charged, with an offence under a law of the Commonwealth, a State or a Territory;
the Minister may defer consideration of the application until the end of a period determined by the Minister.
(2)The Minister must not defer consideration of an application for a period that exceeds, or for periods that in total exceed, 12 months.
…”
Administrative Tribunal Act 1975 (“AAT Act”)
“40(1) For the purpose of reviewing a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b)proceed in the absence of a party who has had reasonable notice of the proceeding; and
(c) adjourn the proceeding from time to time.
…
43(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…”
submissions
6. On behalf of the applicant, Mr Wells submitted that the application for review should be adjourned. Section 13(11)(a) of the Act imposed a prohibition on the Minister (and the Tribunal) from granting a certificate of Australian citizenship whilst proceedings against the applicant for an offence against the law of a State were pending. Section 14A contained a complementary power for the Minister to defer consideration of the application for a period or periods of up to 12 months. Moreover, for the Tribunal to proceed with the application before the determination of the criminal proceedings may well be a contempt of court.
7. On behalf of the respondent, Mr Prince submitted that the application for review should be listed for hearing. Section 13(11)(a) of the Act was not a limitation on the Tribunal’s jurisdiction, but a limitation on the power that the Tribunal may exercise within its jurisdiction. The Tribunal did not have the power to defer consideration of the application pursuant to s 14A as that power did not survive the making of the reviewable decision.
consideration
Does s 13(11)(a) act as a bar to the Tribunal hearing the application where there are proceedings against the applicant pending in the Magistrates Court and should s 14A allow the Tribunal to defer consideration of the application for up to 12 months ?
8. Section 13(1) of the Act gives the Minister a discretionary power to grant a certificate of Australian citizenship to a person on being satisfied as to a number of matters, including that the person is of good character. A number of sub-sections and paragraphs follow, including paragraph (11)(a) which prohibits the Minister from granting a certificate to a person under sub-section (1):
“(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or
…;”
It is evident that paragraph 11(a) is expressed in general terms and it will not always be the case that proceedings pending against a law of the Commonwealth, a State or a Territory will bear centrally, if at all, upon the matters the Minister is considering under sub-section (1) that might affect the grant of a certificate of Australian citizenship.
9. Sub-sections 14A(1)(b)(ii) and (2) then provide (in a manner which the Tribunal views as clearly complementary to s 13(1)) that, if an application for a certificate is made by a person pursuant to s 13 and it appears to the Minister that the person has been charged or may be charged with an offence under a law of the Commonwealth, a State or a Territory, the Minister may defer consideration of the application until the end of a period determined by the Minister. The Minister must not defer consideration of the application for a period or periods that exceed 12 months.
10. Mr Prince submitted that the Tribunal does not have power in the present case, under s 14A, to defer consideration of the application for review because that power does not survive the making of the reviewable decision. Once the reviewable decision has been made, there can be no power to defer consideration of the application unless and until the decision is set aside by the Tribunal. As Mr Prince put it, unless the reviewable decision is set aside by the Tribunal there is no consideration left to defer. The Tribunal is unable to accept this submission. As has been said in many cases in the past, the Tribunal is part of the decision-making continuum and, in the present case, is conducting a review de novo in which it has all the powers of the Minister under s 14A. The fact that the Tribunal is not referred to in s 14A is irrelevant. As was said by Brennan J, sitting as President of the Tribunal, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167 (at pages 175-6), and adopted by Wilcox J in Commonwealth of Australia v Ford (1986) 65 ALR 323 at pages 328-329:
“The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s 43(1) to take effect under the ‘relevant enactment’, the grant to the tribunal of the original repository’s powers and discretions makes its order effective under the enactment. … Section 43(1) grants the original powers and discretions to the tribunal, but it does not require the tribunal to exercise them unless the tribunal is making a fresh order the effectiveness of which depends upon their exercise.
…
The Tribunal may exercise its powers with the same flexibility as the administrator whose decision is under review. All that is necessary is that the administrator whose powers and discretions are conferred upon the tribunal should perform his functions under a relevant enactment, for the tribunal may then make the decision which that administrator ought to make if he were then substituting a fresh decision for the decision which is set aside.”
11. It is the Tribunal’s view that s 13(11)(a) can act as a prohibition to the Minister from proceeding to grant a certificate of Australian citizenship whilst proceedings against the applicant for an offence against the law of a State are pending. As to the prohibition, the limitations imposed in s 13(11)(a) on the exercise of the jurisdiction of the Minister are also limitations on the exercise of jurisdiction by the Tribunal on review. In relation to an application that attracts the prohibition, the Minister (and the Tribunal) has a discretionary power in s 14A(1)(b)(ii) to defer consideration of the application for a period of up to 12 months. This discretionary power, which appears clearly complementary to s 13(11)(a), applies in the present case because the circumstances of the alleged offending are obviously relevant to the application before the Tribunal. If the circumstances of the alleged offending were not relevant to the application under s 13, the Minister (and the Tribunal) could exercise the discretion and refuse to defer consideration of the application. Moreover, to make any practical sense in the present case, the reference to the period of 12 months must be taken as the period commencing at the time the alleged offending occurred, not at the time the application for review is (or was) made.
12. The Tribunal accepts the submissions by Mr Wells that the prohibition imposed on the exercise of the jurisdiction of the Minister in s 13(11)(a) is also a prohibition on the exercise of jurisdiction by the Tribunal on review (see Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192 at pages 200-202). Accordingly, the Tribunal is not presently at liberty to proceed to hear the application for review. As to deferral of consideration of the application, there is nothing in s 14A(1) or elsewhere in Part III, Division 2 of the Act which suggests that the Tribunal does not have the power to defer, notwithstanding that the reviewable decision has been made, unless and until the decision is set aside. Such a power reposes in the Tribunal and, in the present circumstances, consideration of the application should be deferred for the time being.
Notwithstanding the provisions of s 13(11)(a) and s 14A of the Act, should the Tribunal otherwise adjourn the application for review?
13. The power of the Tribunal to adjourn an application for review is contained in s 40(1)(c) of the AAT Act. It was Mr Prince’s submission that the application for an adjournment, in the present case, should be assessed having regard to s 40 of the AAT Act, the Listing and Adjournment Practice Direction (“Practice Direction”) issued by the President of the Tribunal which took effect on 1 May 2005, the scheme provided for in Part III, Division 2 of the Act and the history of the present application. Mr Prince referred to s 33(1) of the AAT Act which relevantly provides:
“(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and…” [Mr Prince’s emphasis added]
He also referred to the Practice Direction which provides, in part, that:
“An application for an adjournment made less than ten working days prior to the hearing date will not be granted unless there are particular and compelling reasons for the matter to be adjourned. Applications made the day of a hearing, even when advanced notice has been given, will not be granted unless there are exceptional reasons.” [Mr Prince’s emphasis added]
14. The direction to the Tribunal in s 33(1)(b), that it conduct its proceedings with as little formality and technicality and with as much expedition as a proper consideration of the matters before it permit, is subject to the overriding requirement for procedural fairness recognised in s 39(1) of the AAT Act. The same approach must be taken when applying the Practice Direction. The Tribunal is required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case. As was said by Deane J (with whom Fisher J agreed) in Sullivan v Department of Transport (1978) 1 ALD 383 at page 402:
“Section 39 of the Administrative Appeals Tribunal Act provides, for present purposes, that ‘the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case’. In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. In these circumstances, the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a Tribunal is under duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moodie (1977) 17 ALR 219 at 225). …”
15. The hearing of the application before the criminal proceedings involving the applicant have been determined would be likely to prejudice him unfairly and deprive the Tribunal of the ability to enquire into all the relevant facts. In the Tribunal’s view and in the relevant cases, the Practice Direction should be considered as a procedural guide, and where there are compelling or exceptional reasons, as the Tribunal finds there are here, it is appropriate that the application should be adjourned.
16. The Tribunal also accepts the submissions by Mr Wells that the hearing of the application would involve an enquiry into the very issues raised in the criminal proceedings. The applicant would be placed in the invidious position of having to make his case before the Tribunal and, in so doing, having to compromise his right of silence in the criminal proceedings. For the applicant to proceed with his application in these circumstances would not be consistent with the principle inherent in s 14A(1)(b)(ii) of the Act.
Would it be a contempt of Court for the Tribunal to proceed before the determination of the criminal proceedings?
17. In considering the question of whether it would be a contempt of court for the Tribunal to proceed before the determination of the criminal proceedings involving the applicant, the Tribunal has had the benefit of the useful analysis of Deputy President S A Forgie in Re Street Nation Pty Ltd and Australian Communications Authority [2004] AATA 1251. In her reasons, Deputy President Forgie referred to numerous authorities in which the question of contempt has arisen or a Tribunal has been involved. In Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317, the Tribunal considered an application by Mrs Pluta to adjourn consideration of a decision to cancel her Sole Parent Pension on the basis that criminal proceedings were contemplated, were going ahead or had been instituted. Had Mrs Pluta been charged or had criminal charges been under active consideration by the prosecutions section of the Department of Social Security or by the DPP, the Tribunal indicated that it would have adjourned the proceedings. At page 319 of its reasons, the Tribunal said:
“The Tribunal would have no difficulty in granting the adjournment sought by the respondent if criminal proceedings were under way. Indeed, in a case where the issues in criminal proceedings are the same as those before the Tribunal, it may well be a contempt of court for the Tribunal to proceed. …”
18. The Tribunal in Pluta did not explain how its proceeding could be a contempt of Court, but Davies J did in Re Taxation Appeals (No 163) and Commissioner of Taxation (AAT 3500, 26 May 1987). Where the issue to be decided in criminal proceedings is precisely the same as that to be decided in the Tribunal’s proceedings, Davies J did not decide whether there would be contempt of Court if the Tribunal was to proceed, but he observed (at paragraph 12):
“… It is … strongly arguable that the investigation of that issue by this Tribunal, including the examination and cross-examination of witnesses and the production of documents, while the same issue is being considered in the committal proceedings, would be a contempt of court as prejudicing the committal proceedings and the subsequent conduct of the trial.”
19. In an earlier decision in Re Lane and Conservator of Wildlife (1984) 5 ALN 429 at N430 Davies J said:
“It is, I think, unnecessary for me to come to any final view as to whether or not, if there is a conviction, the Court of Petty Sessions will have power to order forfeiture on the subject plants and it is, I think, undesirable that I should say anything upon that matter. That is an issue to be determined by the Court of Petty Sessions. Had I thought that it was necessary to come to a view on that point, I may have considered it proper to adjourn the proceedings of this Administrative Tribunal until the court had dealt with the matter before it. An Administrative Tribunal should not act in such a manner as to prejudice the conduct of proceedings which are on foot before a court of law: see State of Victoria and Another v Building Construction Employees’ and Builders Labourers’ Federation (1982) 56 ALJR 506; 41 ALR 71).”
20. In Re Taxation Appeals (No 163) (supra), Davies J referred to the situation where the issue to be decided in criminal proceedings was the same as the issue to be decided in the Tribunal’s proceedings. In the application for review in the present case, the question is whether the applicant is a person of good character for the purposes of s 13(1)(f) of the Act. Good character is presumed, but where there is a criminal record the question is whether that record displaces the presumption. In the Tribunal’s view, although the issue in the Magistrates Court is not strictly the “same” as that before the Tribunal, they each raise the same questions, as to the applicant’s conduct and his character, that are to be considered in both proceedings (cf the decision of the Tribunal in Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463 at page 465).
21. In Hammond v Commonwealth of Australia (1982) 152 CLR 188, Deane J notes that “… The mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court. …”. (at page 206). He drew a distinction, however, between such administrative inquiries as to whether penal proceedings should be instituted while a civil trial is proceeding and those in an administrative tribunal. He said of the latter:
“… it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court. …”
22. It is clear from the principles enunciated by Deputy President Forgie in Re Street Nation (supra) and the cases referred to above that, whether or not there is contempt of Court, will depend upon whether the facts in a particular situation show that there would be interference with the due administration of the law and not upon the principle that a particular type of proceeding always constitutes contempt of Court.
23. Would there be either actual interference or a real risk that there would be an actual interference with the administration of justice if the Tribunal was to proceed with its hearing while the criminal proceedings involving the applicant remained to be determined in the Magistrates Court? The consideration of the issue, and the evidence before the Tribunal relating to the applicant’s conduct and character, will impinge upon the proceedings before the Magistrates Court. There is, therefore, a real risk that there would be an actual interference with the administration of justice if the Tribunal was to proceed and, if it did, it may well be a contempt of Court.
24. Mr Prince referred the Tribunal to the principles, relating to whether civil proceedings should be stayed pending resolution of criminal proceedings on related issues, that were established in McMahon v Gould (1982) 7 ACLR 202 and Elliot v Australian Prudential Regulation Authority [2004] FCA 586. Without analysing these decisions in any detail, the Tribunal would seek to follow and apply the reasoning of the High Court in The State of Victoria and Another v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 which was followed by Davies J in Re Lane (supra).
conclusion
25. Balancing all of the considerations referred to in these reasons, the Tribunal is of the view that, because there is a real risk of interference with the administration of justice, it should not presently proceed to a hearing of the application for review.
decision
26. For the reasons given, the Tribunal directs that:
(a)The matter be adjourned until 1 May 2006 for a further telephone directions hearing;
(b) either party is at liberty to apply for an earlier telephone directions hearing in the event that the criminal proceedings in the Magistrates Court involving the applicant are finalised before 1 May 2006.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard..........................................
AssociateDate of Hearing 23 January 2006
Date of Decision 28 March 2006
Counsel for the Applicant Mr Jonathan Wells, QC
Solicitor for the Applicant Patsouris & Associates
Counsel for the Respondent Mr Rodger Prince
Solicitor for the Respondent AGS
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