Likumbo Makasa and Minister for Immigration and Citizenship Deputy President, RP Handley 12 March 2013 Sydney
[2013] AATA 145
[2013] AATA 145
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3061
Re
Likumbo Makasa
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Deputy President, RP Handley
Date 12 March 2013 Place Sydney The application to set aside the summons issued to the Office of the NSW Director of Public Prosecutions is refused.
........................................................................
Deputy President, RP Handley
CATCHWORDS
PRACTICE AND PROCEDURE - summons to produce documents from original criminal trial - objection on grounds of abuse of process, fishing expedition and unfair and prejudicial to Applicant - summons allowed
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 2A, 33
Migration Act 1958 ss 499, 501
CASES
Likumbo Makasa and Minister for Immigration and Citizenship [2011] AATA 658
Likumbo Makasa and Minister for Immigration and Citizenship [2011] AATA 719
Makasa v Minister for Immigration and Citizenship [2012] FCA 321
Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196
SECONDARY MATERIALS
Direction no. 55 - Visa refusal and cancellation under s 501
WRITTEN REASONS FOR DECISION
Deputy President, RP Handley
18 March 2013
I gave my reasons for this interlocutory decision orally having heard submissions from the parties. This statement of reasons has been prepared at the request of one of the parties.
BACKGROUND
The Federal Court quashed the Tribunal’s previous decision in this matter and remitted it to the Tribunal to be re-determined according to law: Makasa v Minister for Immigration and Citizenship [2012] FCA 321. The proceedings concern Mr Makasa’s application to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (the Respondent) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
On the commencement of the remittal proceedings, the Tribunal issued a summons at the request of the Respondent to obtain documents from the Office of the NSW Director of Public Prosecutions (DPP) in relation to Mr Makasa’s trial on sexual assault charges. The Applicant has applied to set aside the summons.
After four trials, three of which were aborted, Mr Makasa was convicted of a number of sexual assault charges but acquitted of several other charges. On appeal to the NSW Court of Criminal Appeal against one of the convictions, the Court upheld the appeal and acquitted him of that charge. The Crown’s appeal against the sentence imposed by the trial judge was dismissed. Details of the relevant court proceedings can be found in the Tribunal’s original substantive decision in this matter: Likumbo Makasa and Minister for Immigration and Citizenship [2011] AATA 719.
In the original Tribunal proceedings, an application to issue a similar summons was also the subject of interlocutory proceedings and in that instance the Tribunal decided to set aside the summons: Likumbo Makasa and Minister for Immigration and Citizenship [2011] AATA 658.
In the present remittal proceedings, the Applicant has sought to set aside the summons on three grounds: first, that it constitutes “a collateral attack on an earlier Tribunal Decision” and an abuse of process; second, that it constitutes “a fishing expedition”; and, third, that it is manifestly unfair and prejudicial to the Applicant.
The Respondent submits that given it is not in dispute that the Applicant fails the ‘character test’ because of his substantial criminal record, the issue for the Tribunal is whether to exercise the Minister’s discretion under s 501(2) of the Migration Act 1958 to cancel Mr Makasa’s visa. In exercising the discretion, the Tribunal must act in accordance with the Minister’s Direction made pursuant to s 499 of the Migration Act on ‘Visa refusal and cancellation under s 501’, Direction No 55, made on 25 July 2012. Direction No 55 is the latest in a series of Directions made by the Minister. One of the four primary considerations to which the Tribunal must have regard, pursuant to paragraph 9(1) of Direction 55, is the “Protection of the Australian community from criminal or other serious conduct”. Further guidance in paragraph 9.1(2) refers to “the nature and seriousness of the person’s conduct to date” and in paragraph 9.1.1(1) to “the nature and seriousness of the person’s criminal offending or other conduct to date”. Thus, it is not only the person’s criminal offending but also the person’s conduct to date that must be considered.
The Respondent referred me to the Full Federal Court decision in Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 (Ngaronoa). In that decision, Bennett and Buchanan JJ, with whom Moore J agreed, said, at paragraph 11:
… the primary Judge took the view, correctly, that a failure to prove a criminal charge beyond reasonable doubt did not immunise the conduct from consideration by the minister in the exercise of a general discretion. The substance and detail of the allegations were put to the appellant. He made no response denying the factual allegations which had been drawn to his attention. The fact that a jury did not convict him of specific charges did not put his conduct beyond legitimate consideration.
And, at paragraph 21:
We agree with the primary judge that the minister was not bound to disregard all the facts which led to the charges being brought, notwithstanding that the appellant was acquitted of specific charges as framed.
Thus, the Respondent submitted the Tribunal is not precluded from considering conduct which may have ultimately resulted in an acquittal. However, where there has not been a conviction but a party seeks a finding that conduct has occurred, the conduct must be proved to the satisfaction of the Tribunal whose findings must supported by probative material or logical grounds.
The Tribunal is bound by the decision in Ngaronoa and, therefore, must take into consideration relevant conduct by the Applicant. I am satisfied that the documents sought under the summons issued to the DPP are potentially relevant to the Applicant’s conduct in respect of the charges of which he was ultimately acquitted and which may be the subject of the Respondent’s cross-examination of the Applicant. Thus, the summons has a legitimate forensic purpose and I do not consider the summons to be a fishing expedition. I do not accept that the forensic purpose is outweighed by the effect the production of the summonsed documents will have on the proceedings and the Applicant although, as stated below, I have concerns about these matters. I also do not accept that the issue of the summons is manifestly unfair or prejudicial to the Applicant. I do accept, however, that nearly seven years after the incidents in question, the Tribunal will need to give careful consideration to whether any material produced in response to the summons and tendered by the Respondent should be admitted at the remittal hearing, and, if such evidence is admitted, what weight to be accorded to it. That is a matter for the Tribunal constituted for the purpose of the hearing. In my view, it is not fair on the Respondent to foreclose the avenues it may pursue in preparing its case for the hearing.
As I said to the parties, I have concerns about the reliability of any further oral evidence concerning the events in question, which took place on 30 and 31 August 2006, given the number of trials that have taken place and the time that has elapsed – nearly seven years. I am also concerned about the effect on the Applicant of having to revisit these events, remembering that he has been in immigration detention since July 2011. Once again, however, it is appropriate that the Tribunal hearing the matter addresses these issues in managing the proceedings.
I am equally concerned about the volume of material with which the Tribunal – an administrative body – may have to deal. I reminded the Respondent in this regard of the Tribunal’s objects in s 2A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) not only to be fair and just, but also to be economical, informal and quick. Moreover, the Respondent has a duty under s 33(1AA) of the AAT Act to use its best endeavours to assist the Tribunal in making a decision in relation to a proceeding. It will be incumbent on the Tribunal to manage this matter in such a way as to achieve the Tribunal’s objects. In this regard, s 33(1) empowers the Tribunal to determine its own procedure, to proceed with as much expedition as the requirements of the matter permit, and states that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
With regard to the Applicant’s submission that the summons amounts to a collateral attack on the interlocutory decision of the original Tribunal member on this issue, the Tribunal on the remittal is not estopped from considering such issues afresh and is not limited to the material that was before the original Tribunal. I note that while the Tribunal member referred to the decision in Ngaronoa as having been relied on by the Respondent in its submissions with regard to the summons, the Tribunal did not otherwise discuss the decision. The Tribunal did, nevertheless, acknowledge that “the Applicant’s total conduct, present and past” is a relevant matter for the Tribunal.
As I have stated, the Tribunal is bound by the decision in Ngaronoa, and, pursuant to Direction 55 (and its predecessors), must take into account relevant conduct by the Applicant. My view is that the concerns which I have expressed in relation to further material that may be produced in answer to the summons and the consequences that flow from that should be more appropriately addressed by the Tribunal constituted to conduct the hearing in these remittal proceedings.
I have listed this matter for further directions and I have told the parties that, prior to the substantive hearing, the Tribunal constituted to conduct the hearing will wish to discuss with the parties the evidence on which they intend to rely at the hearing and the witnesses they propose to call or who are required for cross-examination. This case will require careful management to ensure procedural fairness is accorded to both parties and that the proceedings are also economical, informal and quick.
DECISION
The application to set aside the summons issued to the Office of the NSW Director of Public Prosecutions is refused. It should be noted, however, that the Respondent agreed to refine the terms of the summons to clarify the documents sought.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. .......................................................................
Associate
Dated 18 March 2013
Date(s) of hearing 12 March 2013 Date final submissions received 12 March 2013 Counsel for the Applicant A Ahmad Solicitors for the Applicant Corrs Chambers Westgarth Lawyers Counsel for the Respondent N Sharp Solicitors for the Respondent Sparke Helmore
0
4
0