Hua and Minister for Immigration and Citizenship

[2009] AATA 147

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION

[2009] AATA 147

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No 2006/2567

GENERAL ADMINISTRATIVE DIVISION        )   

ReYong Hua

Applicant

AndMinister for Immigration and Citizenship

Respondent

INTERLOCUTORY DECISION

TribunalProfessor GD Walker, Deputy President

Date10 March 2009

PlaceSydney

Decision       1.The documents and other evidence relating to the previous

proceedings will be available to the tribunal on the rehearing pursuant to s 33 of the AAT Act;

2. An order under s 35(2)(a) of the AAT Act prohibiting the publication of the names of witnesses; and

3.        The questions of a costs certificate is reserved until the conclusion of the proceedings.

....................[sgd]..........................

Professor GD Walker
  Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – evidence of previous tribunal to be made available to the tribunal on rehearing – confidentiality order granted in respect of witnesses – costs order – reserved until the conclusion of the proceedings.

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RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act):ss 35, 33

Federal Proceedings (Costs) Act 1981 (Cth) (the Act):10A

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CITATIONS

Re Ahmed and Secretary, Department of Education and Workplace Relations [2008] AATA 962

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REASONS FOR COSTS ORDER DECISION

10 March 2009	Professor GD Walker, Deputy President
Basic facts

1. At a directions hearing on 21 January 2009, the applicant noted that the member who had been hearing this application previously had recused himself and that the matter was now ready to set down for rehearing. He sought a costs certificate under s 10A of the Federal Proceedings (Costs) Act 1981 (Cth) (the Act). The applicant also sought an order suppressing the identity of the applicant and witnesses under s 35(2)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

2. The respondent sought a direction under s 33 of the AAT Act directing that all documents and other evidence created in relation to the previous proceedings should be available at the rehearing.

3.      The applicant submitted that the termination of the previous proceedings had occurred through no fault on the applicant’s part and that the applicant had spent more than the $2,000, which was the limit currently provided for such a certificate.

4.      The applicant noted that he had raised the possibility of a suppression order in relation to the identities of the applicant and witnesses in the earlier proceedings, but the matter had not been resolved.

5.      As the applicant’s case turned to a great extent on the adverse impact of China’s one child policy, the applicant feared that reprisals might be taken against the visa applicant and her child if it became known to the authorities that the applicant was proceeding in this tribunal on that basis.  Further, if the applicant were unsuccessful in the current proceedings, he would move to the People’s Republic of China, where he also could face risks of harm.  The applicant referred to evidence which he said corroborated his fears concerning possible harm to the interests of the spouses and the child.

6.      The respondent submitted that all documents and evidence related to the previous proceedings should be available to the tribunal on rehearing.  The respondent indicated that he might have a new witness and that witnesses who had given oral evidence would be called again.

7. The respondent neither consented to, nor opposed, the application for an order under s 10A.

8.      The applicant had no objection to reliance on the evidence in the previous proceedings but pointed out that on the first day of the original hearing there were some objections to the accuracy of the interpreter's translations.  If an appropriate interpreting regime were in place, there should not be any further problems of that nature at the rehearing.

Consideration

9.      It is both appropriate and convenient that the evidence and documents relating to the earlier proceedings should be made available to the tribunal for the purposes of the rehearing.  Neither party has any objection to that course of action.

10. I am satisfied that it is desirable to make an order under s 35(2)(a) prohibiting or restricting the publication of the names and addresses of witnesses appearing before the tribunal. That provision does not, however, empower the tribunal to prohibit or restrict the publication of the applicant’s name, even when the applicant is also a witness. The difference in treatment has been justified on the basis that witnesses can be compelled to give evidence in proceedings in which they may have no personal interest. Applicants have a choice in the matter.

11. The only known authority referring to s 10A of the Act is that of Deputy President Forgie in Re Ahmed and Secretary, Department of Education and Workplace Relations [2008] AATA 962. The reference to s 10A is not relevant for present purposes.

12. I note that the other provisions relating to costs certificates in that Act, namely ss 6, 7, 7A, 8, 9 and 10, contemplate that an order will be granted when an appeal has succeeded on an error of law. While s 10A is not expressly limited in that way, I think it appropriate to reserve the question of a costs certificate until the conclusion of the proceedings. At this stage I should indicate, however, that I have reached the provisional view that the applicant is entitled to such a certificate.

13.     There will therefore be the following directions:

(a)The documents and other evidence relating to the previous proceedings will be available to the tribunal on the rehearing pursuant to s 33 of the AAT Act;

(b)An order under s 35(2)(a) of the AAT Act prohibiting the publication of the names of witnesses; and

(c)The questions of a costs certificate is reserved until the conclusion of the proceedings.

14.     Representing the applicant for this directions hearing was Mr Patrick Reynolds of counsel instructed by Mr Jia Li of Parish Patience Immigration Lawyers, with Ms Alice Linacre of Clayton Utz appearing on behalf of the respondent.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ...........................[sgd]...................................................
               Renee Wallace, Associate

Date/s of Interlocutory Hearing:    21 January 2009
Date of Interlocutory Decision:     10 March 2009
Solicitor for the Applicant:             Mr J Li, Parish Patience Immigration
Counsel for the Applicant:             Mr P Reynolds
Solicitor for the Respondent:        Ms A Linacre, Clayton Utz