Mirza and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1739

Mirza and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1739 (10 October 2017)

Division:GENERAL DIVISION

File Number:           2016/5937

Re:Ayyub Baig Mirza

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:10 October 2017

Date of written reasons:        13 October 2017

Place:Melbourne

Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that:

1.on or before 20 October 2017, the Applicant may lodge with the Tribunal and serve on the Respondent:

(1)a statement from Ms Soumaya Issawi;

(2)a copy of any birth certificates of the Applicant’s son;

2.on or before 27 October 2017, the Respondent may lodge with the Tribunal and serve on the Applicant:

(1)any closing submissions on which they intend to rely; and

3.on or before 10 November 2017, the Applicant may lodge with the Tribunal and serve on the Respondent:

(1)any closing submissions in reply on which they intend to rely.

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

Ms Anna Burke, Member

PRACTICE AND PROCEDURE – Directions – request from Respondent for direction allowing parties to lodge written closing submissions post-hearing – proposed direction opposed by Applicant – late lodgement of Applicant’s material and Statement of Facts and Contentions – no adjournment sought by either party at commencement of hearing – no ability for Applicant to recover costs – Tribunal would be assisted by written closing submissions from both parties

LEGISLATION

Administrative Appeals Tribunal Act 1975; ss 33 & 39

REASONS FOR DECISION

Ms Anna Burke, Member

13 October 2017

1. On 9 June 2015 the Applicant, Mr Ayuub Baig Mirza, lodged an application for Australian citizenship. On 19 October 2016, a delegate of the Minister for Immigration and Border Protection decided to refuse the Applicant’s application for citizenship as they were not satisfied he was of good character at the time of the decision. The Applicant made an application for review to this Tribunal on 2 November 2016 and the application for review was heard on 10 October 2017. At the conclusion of the hearing, a direction was made allowing the Applicant to lodge further specific evidence mentioned at hearing to assist the Tribunal in reaching its decision (see clause 1 of the direction above). Following a request from the Respondent’s representative at the conclusion of the hearing to lodge written closing submissions, the Tribunal directed that both parties lodge written closing submissions (clauses 2 and 3 of the direction above).

2. Counsel for the Applicant formally objected to the Tribunal’s granting of the request to submit written closing submissions and requested written reasons for the direction. Whilst the Tribunal has no obligation at common law or under the Administrative Appeals Tribunal Act 1975 to provide written reasons in respect of this direction, the Tribunal decided it was appropriate to provide written reasons. The reasons for the direction for the lodgement of written closing submissions are outlined below.

3. The Respondent’s representative stated at the outset of the hearing that they had been disadvantaged by the lateness of the Applicant’s lodgement of a Statement of Facts and Contentions (SFC) and evidence which was, in effect, one business day prior to the proceedings. Although indicating that they did not wish to seek an adjournment of the hearing, the Respondent reserved the right to seek directions to provide written submissions if it was necessary in order to assist the Tribunal or ensure that they had a proper opportunity to make their case. No objection was raised to this by the Applicant at the time.

4. The Tribunal did not express a view on the issue of disadvantage but noted neither party had sought for the matter to be vacated to a later date to ensure appropriate preparation. The Tribunal was also mindful that both parties had been hampered in their preparation for the matter as a result of contention over the release of certain documents.

5. The Respondent exercised their right at the conclusion of the hearing to seek directions concerning written closing submissions. The Respondent’s representative highlighted that, as a result of the late lodgement of the Applicant’s evidence and SFC (and the objections the Respondent raised to a number of statements made in the Applicant’s SFC) and the evidence arising from the hearing, the Tribunal would be greatly assisted in reaching its decision if the Respondent was able to lodge written closing submissions. Counsel for the Applicant objected to this proposed course of action, stating that the Minister was the author of his own misfortune and argued that the late lodgement of the Applicant’s documents had occurred as a result of the considerable amount of time which had been spent discussing the release of certain documents leading up to the hearing. Counsel for the Applicant also highlighted that as the Tribunal is a ‘no costs’ jurisdiction, written closing submissions would incur additional fees for the Applicant which could not be recovered from the Respondent if they succeeded.

6. The Tribunal decided that it was appropriate to make a direction allowing the parties to lodge written closing submissions, as doing so would be of great assistance to the Tribunal in reaching its substantive decision. In this regard, the Tribunal notes s 33(1AB) of the Administrative Appeals Tribunal Act 1975 (AAT Act) which places a duty on all parties to a proceeding to use their best endeavours to assist the Tribunal in fulfilling its objective under s 2A of the AAT Act. The Tribunal was not concerned with where blame lies in regard to the late lodgement of the Applicant’s documents. What was evident was that as a result of the late lodgement of the evidence, as well as the evidence that arose at hearing and the evidence that may be lodged by the Applicant post-hearing (in accordance with clause 1 of the above direction), the Respondent needed a proper chance to evaluate the evidence before the Tribunal and be given a reasonable opportunity to present his case (AAT Act; s 39(1)). In turn, the Applicant should and has been given the opportunity to respond.

7. The Tribunal also notes the Respondent objected to a number of legal contentions in the Applicant’s SFC at the outset of the hearing and was of the view that it would be best assisted if both parties were able to clearly outline their views on these legal issues in the form of written closing submissions. Accordingly, the Tribunal made directions under s 33 of the AAT Act for the lodgement of written closing submissions.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

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

Associate

Dated: 13 October 2017

Date of hearing:

10 October 2017

Date of written reasons:

Counsel for the Applicant:

13 October 2017

Mr Angel Aleksov

Advocate for the Applicant:

Ms Claire Stratton

Solicitors for the Applicant:

Nevett Ford Lawyers

Advocate for the Respondent:

Mr Tal Aviram

Solicitors for the Respondent:

Clayton Utz