LIKUMBO MAKASA and MINISTER FOR IMMIGRATION AND CITIZENSHIP Ms G Ettinger, Senior Member
[2011] AATA 658
•23 September 2011
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2011] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2011/3061
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | LIKUMBO MAKASA | ||
Applicant
| And | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
Respondent
INTERLOCUTORY DECISION
| Tribunal | Ms G Ettinger, Senior Member |
Date23 September 2011
PlaceSydney
| Decision | The Tribunal directs that the summons be set aside. |
.....................[sgd].....................
Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - visa cancellation - character test
SUMMONS - legitimate forensic purpose for production of documents - relevance of documents to questions for determination by Tribunal - abuse of process - fishing - summons set aside
Migration Act 1958 s 501
Administrative Appeals Tribunal Act 1975 s 40, 43
Administrative Decisions (Judicial Review) Act 1977
Re Dunstan v Comcare (2009) 113 ALD 176
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196
YYMT and FRFJ (2010) 115 ALD 590
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR INTERLOCUTORY DECISION
| 23 September 2011 | Ms G Ettinger, Senior Member |
BACKGROUND
The substantive matter before the Tribunal is the application of Mr Likumbo Makasa who is appealing the decision of the Minister for Immigration and Citizenship (the Minister) dated 27 July 2011. The delegate of the Minister cancelled Mr Makasa’s Class BS Subclass 801 Spouse Visa because he held that Mr Makasa fails the character test pursuant to section 501(2) of the Migration Act 1958. Mr Makasa’s application before the Tribunal is listed for hearing on 27 and 28 September 2011.
The Minister, the Respondent in the proceedings before the Tribunal, has sought production of material relating to the criminal proceedings in which Mr Makasa was involved. An interlocutory hearing was listed in order to deal with the issue of the summons.
I have directed that the summons be set aside. Although I am not required by the Administrative Appeals Tribunal Act 1975, (AAT Act), to give reasons in an interlocutory decision, I gave brief oral reasons immediately after the hearing which was conducted with the parties by telephone on 12 September 2011.
The Respondent has now asked me to give written reasons, and in order to clarify my oral reasons, I agreed to provide the following very brief written reasons. I am mindful of the time frames involved in this matter, and the fact that the date of the substantive hearing should not be changed.
ISSUE BEFORE THE TRIBUNAL
At the request of the Respondent the Tribunal issued a summons to the Office of the Director of Public Prosecutions for the following documents.
The Appeal Book(s) relating to the following Criminal Appeal proceedings R y Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa vR, Rv Likumbo Makasa; Mumbi Peter Mulenga vR, Rv Mumbi Peter Mulenga (proceedings 2007/14576011, 2007/14576012, 2007/14574021 2007/14574020, 2007/14575011, 2007/14575010).
Video recordings of statements made to Police by the complainant in District Court proceedings R v Tyrone Chishimba (2007/11/0097), R v Likumbo Makasa (2007/11/0097) and R v Mumbi Peter ulenga (2007/11/0097).
The issue before the Tribunal was whether the material produced on summons should be released and accessed by the parties.
In making a decision regarding the summons documents, I had to take into account the principles involved. They have been well stated by Senior Member Creyke in Re Dunstan v Comcare (2009) 113 ALD 176 as follows:
The general principles relating to the issue of subpoenas by a court are applicable to the issue of a summons by the Tribunal. In particular, the information sought must be relevant to the substantive issues of the case. A summons for the purpose of a ‘fishing expedition’ is not authorised. Nor is it appropriate for a return of summons if the summons serves no legitimate forensic purpose, if the terms of the summons are too general, or if responding to the summons would be oppressive. The summons must also not result in the production of material which would breach the privacy of third parties.
In addition, the documents sought must be ‘sufficient … to ground a suspicion that the party applying … has a good case’. In other words, the person applying must be able to make a prima facie case that the documents are relevant to and will assist the Tribunal in its decision on the substantive claim. Ultimately, the rationale for the summons power is ‘to ensure that the parties, and ultimately the Tribunal, can gain access to all material relevant to the review of the decision’.
The question is whether or not, on a prima facie basis, the information which is in those documents would be relevant to the issues to be considered by the Tribunal, and not a fishing expedition, nor an abuse of process, nor breach the privacy of third parties, and not result in prejudice to the Applicant; further whether it would be of assistance to the Tribunal in order for it to make the correct or preferable decision.
RELEVANT LEGISLATION
The relevant legislation is the AAT Act. Section 40 empowers the Tribunal to issue summons, and although there is no explicit power to set summons aside, it is implicit. There was no disagreement by the parties in that regard. Section 40 follows as relevant.
40 Powers of Tribunal etc.
…
Summons
(1A) Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a) to give evidence; or
(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.
(1B) A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.
(1C) A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.
(1D) A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.
(1E) A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.
…
Section 43 of the AAT Act deals with the Tribunal’s decisions on review, and section 43(2), with the giving of reasons.
43 Tribunal’s decision on review
…
Tribunal’s decision on review
(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.
Tribunal must give reasons for its decision
(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Tribunal must give copies of its decision to parties
(3) The Tribunal shall cause a copy of its decision to be given to each party to the proceeding.
The leading case on the meaning of the term decision within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Mason CJ said there that a reviewable decision under the AD(JR) Act had a number of characteristics, including the fact that it must be a substantive determination. His Honour said (at 337–338):
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in subss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to ‘doing or refusing to do any other act or thing’ should be read as referring to the exercise or refusal to exercise a substantive power. …
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of “decision under an enactment.
A direction setting aside a summons cannot constitute a substantive determination, but is more properly described, to use the words of Mason CJ in Australian Broadcasting Tribunal v Bond as a procedural determination. However, as already stated above, I have provided short oral, and now, written reasons.
RESPONDENT’S SUBMISSIONS FOR THE SUMMONS TO BE ISSUED
The request for the release of the summons material by the Respondent was in connection with Mr Makasa’s charges and convictions in relation to non-consensual sexual intercourse with a 15 year old girl. There were co-defendants involved. In brief, Mr Makasa was initially convicted of aggravated sexual intercourse without consent which was quashed by the Court of Criminal Appeal. In the Court of Criminal Appeal, Mr Makasa was found guilty of three counts of sexual intercourse without consent with a girl aged over 14 years and under 16 years, was convicted of those charges, and has served a two year prison sentence.
Mr Sharpe who represented the Minister for Immigration and Citizenship, the Respondent in these proceedings, referred to the case of Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196, noting that in that case, the Minister in cancelling the visa, had taken into account information which had been put to a criminal court, and of which Mr Ngaronoa had been acquitted. Mr Sharpe submitted that both the Federal Court and the Full Federal Court held that one of the questions to consider was whether or not the Minister was entitled to rely upon that evidence.
Mr Sharpe submitted that an accurate description of the state of the law or the state of the authorities on this point was that the Tribunal may not make findings of fact that contradict those that had to be found in order to establish the elements of the offence of which the person was convicted. He noted however that the extract from the decision of YYMT and FRFJ (2010) 115 ALD 590 on which the Applicant had relied, at paragraph 26 of his written submissions, applied to convictions but not to acquittals. In YYMT and FRFJ, Deputy President Forgie stated as follows:
When all of the cases are considered, it seems to us that the five propositions set out by Branson J in Ali have not been qualified by subsequent authority and, for the reasons we have given, are not affected by the general law relating to pleas of autrefois acquit and autrefois convict or the like. Applying those principles in this Tribunal means that we must:
(1)first identify the source of jurisdiction;
(2)where jurisdiction is dependent upon a person’s having been convicted of a particular offence or sentenced in a particular way:
(a)the fact that the conviction has been entered or the particular sentence imposed by a court cannot be questioned;
(b)in the case of a conviction, the Tribunal may not make findings of fact that contradict those that had to be found in order to establish the elements of the offence of which the person has been convicted or the findings of fact on which the sentencing Judge imposed the sentence; and
(c)in the case of a sentence, it should look upon the facts found by the sentencing Judge as strong prima facie evidence of those facts but may also look behind and beyond them provided it does not go so far as to make findings of fact that, had they been made by the court, would not have supported the conviction or the particular sentence imposed; and
(3)where jurisdiction is not dependent upon a person’s having been convicted of a particular offence or sentenced in a particular way:
(a)the Tribunal must identify the particular issue(s) that it must decide in order to review the decision;
(b)where an issue relates to the commission of an offence but not to a conviction for that particular offence and the person has been convicted and sentenced in respect of that particular offence, the Tribunal:
(i) cannot question the fact that a conviction has been entered or that a particular sentence has been imposed by a court;
(ii) is entitled to treat evidence of the conviction and sentence as probative material of the factual matters upon which the conviction and sentence were necessarily based but may have regard to other probative material; and
(iii) must have regard to the particular findings of fact it must make on the standard of proof applicable to it:
·and is neither bound nor confined by the findings of fact underpinning either the conviction or the sentence when making those particular findings; and
(c)where the issue relates to the commission of an offence arising from a course of events that has led to a conviction and imposition of a sentence for an offence or offences other than that whose commission is in issue, the Tribunal:
(i) cannot question the fact that a conviction has been entered or that a particular sentence has been imposed by a court;
(ii) is entitled to treat evidence of the conviction and sentence as probative material of the factual matters upon which the conviction and sentence were necessarily based;
(iii) may have regard to offences that might have been committed in the course of the events apart from the offence for which the person has been convicted and sentenced; and
(iv) must have regard to the particular findings of fact it must make and make those findings on the standard of proof applicable to it:
·and is not bound by the findings of fact underpinning either the conviction or the sentence when making those particular findings.
In support of his argument for the release of the summons material, Mr Sharpe submitted that facts relevant to an acquittal, are because of the standard of proof beyond reasonable doubt, not a positive finding by a criminal court that those facts did not occur. He submitted that in that case, the situation was simply that the Court was not able to find, on a positive basis, facts did occur, using the standard of proof of beyond reasonable doubt.
He submitted that the point of wanting access to the summons material was simply to determine whether or not the information contained in those documents was, on a prima facie basis, relevant. He submitted that the situation in Ngaronoa showed that the type of information put to a criminal court, which was not relied upon for a conviction, can be information which is relevant to the exercise of the discretion under section 501(2). He submitted that the Minister wanted to use the material to assess Mr Makasa’s general conduct.
He also submitted that Senior Member Creyke had stated in Re Dunstan v Comcare (2009) 113 ALD 176:
Ultimately, the rationale for the summons power is to ensure that the parties, and ultimately the Tribunal, can gain access to all relevant material to the review of the decision.
MR MAKASA’S SUBMISSION FOR THE SUMMONS TO BE SET ASIDE
In summary, Mr Ahmad of counsel, who appeared for Mr Makasa, submitted that the summons material was required by the Minister for what is:
Not a legitimate forensic purpose;
Not relevant to the questions for determination by the Tribunal; and
An abuse of process.
At paragraph 11 of his written submissions, Mr Ahmad put forward the following contentions in support of the Tribunal directing that the summons be aside.
The Applicant puts forward the following contentions in support of the relief :
i.The Summons for Production of the Appeal Books (Appeal Books) and Video recordings of statements made by the Complainant to the police (Recordings) are not relevant to the issues for review and accordingly are not a legitimate forensic purpose.
ii.Production of the Appeal Books and Recordings are not relevant to assess the serious of the conviction.
iii.Production of the Appeal Books and Recordings are not relevant to an assessment of the risk of reoffending:
1.The genesis of the Tribunal’s jurisdiction is the Conviction.
2.In so far as the material are allegations of the complainant in respect ancillary conduct, cannot throw light (or in any way rationally bear) on the Tribunal‟s assessment of the risk of reoffending.
iv.Production of the Appeal Books and Recordings will invite the Tribunal to impugn the propriety of the acquittal.
v.Production of the Appeal Books and Recordings will have a prejudicial and unfair effect on the Applicant to conduct the litigation going forward.
THE TRIBUNAL’S DECISION ON THE DIRECTION
I acknowledge the comprehensive written and oral submissions made by the parties with references to decided case law. The ones which I have considered most fully in the short time available are Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 where Branson J enunciated five principles which I have found very helpful. I note that Ali has not been overtaken by subsequent authority, and is good law. I quote from Ali [41] – [45]:
First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).
Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).
Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b)limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
Fourthly, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
Cosco Holdings Pty Ltd v Cmr for Taxation [1997] FCA 1504 and Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196, are also of assistance in this context.
I am mindful that this Tribunal has power under section 40 of the AAT Act to issue summons, and although it does not have an explicit power to set aside, that is implied.
In deciding whether to direct that the summons material be made available as requested by the Minister, I must take into account the purpose for which the request is made, and the principles which apply in either releasing or setting aside the summons material. The purpose for wanting the material as I understand it from Mr Sharpe’s submissions on behalf of the Minister, is to prepare his case to further inform the Tribunal of the full circumstances of the initial charges made in regard to Mr Makasa and his co-accused, and to prepare a statement of evidence of the victim.
There is no disagreement, and I accept that Mr Makasa fails the character test pursuant to section 501(6) of the Migration Act because he was convicted of three acts of non-consensual sexual intercourse with a female who was then aged over the age of 14 and under the age of 16 years, and for which he was sentenced to two years in prison.
What the Tribunal must do then in the substantive hearing which will deal with Mr Makasa’s application against the decision of the Minister, is to apply the discretion, Direction [no. 41] - Visa Refusal and Cancellation under section 501, and consider the primary considerations and the other considerations. The primary considerations are the protection of the Australian community which look at the seriousness and nature of Mr Makasa’s conduct, and any recidivism or the chance of his conduct recurring.
In that regard, the Tribunal is entitled, as Branson J said in Ali, to receive evidence of a conviction and sentence, and treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.
In considering the Minister’s interest in having the documents subject of the summons released for the hearing, I considered whether the request meets the test for legitimate forensic purpose, or whether it could be an abuse of process. In that regard, and having perused the G-documents, I find that the sentencing remarks in the District Court are there in full, as well as the judgment of the Court of Criminal Appeal. I can't imagine what else is relevant to a determination by the Tribunal. Certainly Branson J says in Ali that:
A decision maker is entitled to have regard – does not mean that the decision maker is not subject to the limitations to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
Based on her Honour’s remarks, I note that the Tribunal can receive evidence of the conviction, but cannot go behind it. Mr Makasa was convicted of non-consensual sexual intercourse three times with a minor aged over the age of 14 and under the age of 16 years, and he pleaded guilty to those offences.
I also considered whether the inclusion of the material produced under summons would be prejudicial to the Applicant. As Mr Ahmad has pointed out, clearly it would, because Mr Makasa would, in the short time available, have to meet a far different case from the one he now has before him. I am mindful that the material also goes to the charges of which Mr Makasa was exonerated, and charges related to his co-accused who are not before this Tribunal.
However, that alone does not outweigh the fact that the Tribunal has to make the correct or preferable decision, and have before it the relevant evidence to do so. I am mindful that the Respondent has a duty to put before the Tribunal evidence which will assist it to make the correct or preferable decision. That means of course that the parties must also have available the material each requires to put forward his case. In that regard, I am mindful that Mr Makasa will be subject to cross-examination, and I am satisfied that having all that further material will not be of assistance to the Tribunal in order to make its decision.
So whether there will be a statement of the victim or not, is a matter for the Respondent. I will be relying on Mr Makasa's evidence, his cross-examination, and all the other material which will be before the Tribunal. Obviously the Tribunal can take into account the Applicant’s total conduct, present and past.
I am not satisfied that material surrounding the acquittal of Mr Makasa of an offence different from the ones to which he pleaded guilty, and for which he has served a sentence, will assist with the decisions which I have to make at the substantive hearing. The Tribunal’s decision will be made by considering the evidence and the primary considerations and the other considerations in Direction 41. The Tribunal’s jurisdiction in these matters is the conviction itself, and regard to matters outside is only permitted insofar as it can affect the seriousness and affect the Tribunal’s decision regarding the seriousness and the nature of the conduct and the risk of re-offending.
Mr Sharpe made the point that obviously the Tribunal’s decision making involves a different standard from that of the Criminal Court. There is no question about that.
In relation to the summons material, I preferred the argument put for Mr Makasa, and I direct that the summons be set aside.
DECISION
The Tribunal directs that the summons be set aside.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Geri Ettinger.
Signed: .....................[sgd]..........................................................
Casey Comans, Associate
Date of Interlocutory Hearing 12 September 2011
Date of Decision 23 September 2011
Counsel for the Applicant Mr A Ahmad
Solicitor for the Applicant Mr G Mason (Corrs Chambers Westgarth)
Solicitor for the Respondent Mr W Sharpe (Sparke Helmore Lawyers)
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