Nikaghanrin and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2024] AATA 3311

Nikaghanrin and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 3311 (10 September 2024)

Division:GENERAL DIVISION

File Number:          2024/3482

Re:Tuoyo Clement Nikaghanri

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member J Papalia

Date of decision:               10 September 2024

Date of written reasons:         10 September 2024

Place:Perth

The Tribunal orders that the Respondent have leave to inspect the documents produced under summons by the Commissioner of Police (Australian Federal Police) in relation to the proceeding.

.............................[Sgd]...........................

Member

CATCHWORDS

PRACTICE AND PROCEDURE – Summons to produce documents – objection to inspection by issuing party – objections disallowed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(2)(h), 24(1)

Administrative Appeals Tribunal Act 1975 (Cth), ss 33(1), 39(1), 40A(1), 40B(1)

CASES

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350

Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504

Kabamba v Administrative Appeals Tribunal [2024] FCA 514

National Employers’ Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372

Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 13

REASONS FOR DECISION

Member J Papalia

10 September 2024

BACKGROUND

1. The Applicant is a 46-year-old permanent resident who seeks review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) dated 31 May 2024, to refuse him approval to become an Australian Citizen under s 24(1) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act). The delegate was not satisfied that the Applicant met the character requirements to be eligible for citizenship found in s 21(2)(h) of the Citizenship Act.

2. On 9 July 2024, an authorised officer of the Tribunal issued a summons to produce documents to the Australian Federal Police (hereafter the Commissioner) under s 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  The summons issued at the request of the Respondent and sought that the Commissioner produce the following to the Tribunal so far as they relate to the Applicant or any of his aliases:

   (a)Any history for Court;

   (b)All statements of material facts in which the Applicant was charged for an offence;

   (c)All incident reports in which the Applicant was nominated as a person of interest but uncharged;

   (d)All violence restraining orders and police orders taken out against the [A]pplicant; and

   (e)Any associated [Computer Aided Dispatch] (CAD) reports.

3. On 6 August 2024, the Commissioner, under cover letter dated 5 August 2024, produced documents in accordance with the summons and relating to three separate incidents:

   (a)An intelligence report from the then Department of Corrective Services (Western Australia) dated 14 January 2014, summarising intelligence received by Corrective Services about potential unlawful activity involving the procurement of a foreign travel document, which was distributed to the Australian Federal Police (AFP) and the Applicant’s parole officer;

   (b)AFP Case Summary for Case 5932085 and Information Report number 1069656 relating to police attendance at Perth International Airport on 7 March 2016 at the request of the Australian Border Force (ABF) in circumstances where the Applicant had been found by the ABF to be in possession of someone else’s credit card;

   (c)AFP Case Summary and CAD Report for Case 6446811 relating to police attendance and investigation at Perth International Airport on 9 October 2019 after allegations had been made in respect of the Applicant regarding the potential theft of cash on a flight from Kaula Lumpur to Perth where the Applicant had been sitting next to the complainant. 

4. The Commissioner redacted the personal information of third parties contained within the documents but otherwise did not object to inspection of the documents produced. 

5. On 6 August 2024, a Member of the Tribunal made orders granting the parties leave to inspect the material produced by the Commissioner under s 40B(1) of the AAT Act. The orders provided for staggered inspection by the Applicant, followed by the Respondent and allowed for any potential objections to be dealt with on the papers.

6. On 12 August 2024, the Applicant objected, in writing, to the Respondent being granted leave to inspect the material produced. The Respondent provided written submissions in support of their request for leave to inspect the documents on 3 September 2024. The Applicant gave responsive submissions on 6 September 2024. 

7. The Tribunal has determined that leave to inspect should be granted for the following reasons.

   ISSUE

8. The issue before the Tribunal is whether it should exercise its power under s 40B(1) of the AAT Act to grant leave to the Respondent to inspect the documents produced under summons.

   DISCUSSION

9. In this matter, the substantive issue is whether the Applicant is of good character as at the date of the Tribunal’s decision. The principles governing that assessment were recently summarised by O’Sullivan J in Kabamba v Administrative Appeals Tribunal [2024] FCA 514, at [18]-[22].

10. Section 39(1) of the AAT Act provides that

    …the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to the document.  

11. The Tribunal’s power to issue summonses is contained in s 40A(1)(b) of the AAT Act. Section 40B(1) of the Act gives the Tribunal power to give leave to a party to inspect a document produced under summons.

12. The relevant procedure of the Tribunal is generally within the Tribunal’s discretion.[1] However, the Tribunal has long adopted similar procedures with respect to summonses to those used in the courts.[2]

    [1] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1).

    [2] see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504.

13. There are three steps in having a third-party bring documents to the Tribunal and in their use thereafter. The first is obeying the summons, by the witness bringing the documents to the Tribunal. The second step is the decision of the Tribunal concerning the preliminary use of the documents, which includes whether or not leave should be given to a party or parties to inspect the documents. The third step is the admission into evidence of a document, in whole or in part, or the use of it in the process of evidence being put before the Tribunal by cross-examination or otherwise. That is ultimately a question for the presiding member at the substantive hearing of the matter in light of the evidence and evidentiary issues that have arisen.[3] 

    [3]

14. In terms of the second step (inspection), the crucial question is whether the documents have apparent relevance to the issues before the Tribunal.[4] Once apparent relevance is demonstrated, inspection will generally be ordered as a matter of discretion in the absence of a good reason being shown to the contrary.[5] 

    [4] Waind (1978) 1 NSWLR 372, 385; Apache Northwest (1998) 19 WAR 350, 373.

    [5] Apache Northwest (1998) 19 WAR 350, 374.

15. In Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487, at [37]-[38], the Federal Court confirmed that a party seeking to inspect documents does not need to establish, on the balance of probabilities, that the documents will establish anything. Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of the issues in the proceedings. It is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceeding or whether the documents themselves will prove a fact in issue. 

16. The thrust of the Applicant’s objection to the Respondent inspecting the documents produced was that:

    (a)‘[t]he document[s] in question [have] not been presented before a court of law and therefore should be deemed inadmissible as evidence in this matter;’

    (b)the documents are prejudicial and the Applicant has not been afforded an opportunity to refute their contents; and

    (c)the Respondent will be given an unfair advantage. 

17. The Respondent submitted that the documents are likely to be highly relevant to the issues before the Tribunal in circumstances where the Tribunal is required to ‘look holistically at the Applicant’s behaviour over time to determine whether he has demonstrated enduring moral qualities.’ 

18. The reviewable decision in this matter rested heavily upon the Applicant’s criminal record in Western Australia between October 2006 and June 2020. When criminal offences have been committed by an applicant, they will be taken into account by the Tribunal in the manner described by Deputy President Wright QC in Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]. That criminal record appears to include a series of frauds committed by the applicant between 2006 and 2008 involving the use of fraudulent travel documents. On that basis and having regard to the contents of the documents produced by the Commissioner, I accept that the documents have apparent relevance to the Tribunal’s assessment of the Applicant’s character over time.

19. That is not to say that I think the documents will establish anything, and, in my view, they are only of marginal significance. At best, the documents may provide some basis for potential cross-examination of the Applicant (particularly documents described at paragraphs 3(a)-(b) above). 

20. It will be a matter for the forensic judgment of counsel representing the Respondent as to whether the documents are sought to be tendered or otherwise relied upon at the final hearing of this matter. It is at that third step that questions between the parties of relevance and admissibility are ruled upon, noting that the Tribunal is not bound by the rules of evidence but that they may well provide a guide in appropriate cases. 

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member J  Papalia

...[Sgd]..................................................................

Associate

Dated: 10 September 2024

Date of hearing:	On the papers
Applicant:	Self-represented
Solicitors for the Respondent:	Ms G Ellis, Sparke Helmore Lawyers

see National Employers’ Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372 (Waind), 381-386 per Moffitt P, with whom Hutley and Glass JJA agreed; see also Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 (Apache Northwest), 371-373 per Kennedy, Pidgeon and

Franklyn JJ.