Singh and Commonwealth Ombudsman (Freedom of information)

[2021] AATA 3889

Singh and Commonwealth Ombudsman (Freedom of information) [2021] AATA 3889 (22 October 2021)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2020/5740

2020/7746

Re:Pravindra Kumar Singh

APPLICANT

AndCommonwealth Ombudsman

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:22 October 2021

Place:Sydney

The Applicant’s application to the Tribunal to issue summons’ is refused.

................................[SGD]........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Application to issue summons to witnesses – Witnesses the primary decision-maker and internal reviewer of the Respondent – Whether summons relevant to the Tribunal’s task of review – Application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 40A

Freedom of Information Act 1982 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

22 October 2021

BACKGROUND

1. On 11 October 2021, the Applicant in these proceedings applied to the Tribunal requesting the issue of summons’ to give evidence to both a current and a former employee of the Respondent. This decision arises out of and pertains to that application.

2. The procedural history of this matter is somewhat complex. The Applicant currently has two applications on foot in the Tribunal, which are being considered together. The background of each application can be briefly summarised as follows.

   Application 2020/5740

3. The Applicant’s engagement with the Respondent dates back to 2017 when he made a complaint to the Respondent about the Department of Home Affairs’ decision not to waive a condition on his visa. The Applicant disagreed with the decision of the Respondent to finalise the complaint in 13 June 2018 and sought reconsideration. The Applicant applied to the Federal Court for judicial review of the decision not to continue to investigate and not to reconsider the decision. The Australian Government Solicitor (AGS) represented the Respondent in those proceedings.

4. As a result of those proceedings, the Respondent agreed to reconsider the complaint. The outcome of that reconsideration was that the Respondent decided not to investigate the complaint.

5. On 8 May 2019, the Applicant applied under the Freedom of Information Act 1982 (Cth) (FOI Act) to the Respondent for access to a broad range of materials relating to the Respondent’s reconsideration of the complaint.

6. On 6 June 2019, the Respondent decided to grant full access to 1 document, and partial access to 10 documents on the basis of ss 42, 47E(c) and 47E(d) of the FOI Act. The Respondent refused access to items 11-14 of the Applicant’s request on the basis of s 24A of the FOI Act because the Respondent was satisfied that the documents did not exist.

7. On 27 July 2019, the Applicant applied for internal review of that decision. On 28 August 2019, the Respondent located 16 additional documents and decided to exempt them in full on the basis of s 42 of the FOI Act and affirm the original decision in respect of the original 11 documents (first reviewable decision).

8. On 29 August 2019, the Applicant applied for review of the first reviewable decision by the Office of the Australian Information Commissioner (OAIC). On 24 August 2020, the OAIC made a decision that the first reviewable decision ought to be considered by this Tribunal.

   Application 2020/7746

9. On 20 November 2018, the Applicant applied under the FOI Act to the Respondent for access to a number of documents. The application related primarily to the Respondent’s engagement of the AGS to act on its behalf in the Federal Court proceedings in respect of the Respondent’s decision not to continue to investigate and not to reconsider the Applicant’s earlier complaint.

10. On 6 December 2018, the Respondent decided to refuse access to 14 documents under ss 47(1)(b) and 42 of the FOI Act. The Respondent also refused access to another document on the basis of s 24A of the FOI Act because it was satisfied that the document did not exist (second reviewable decision).

11. On 6 December 2018, the Applicant applied for review of the Respondent’s decision by the OAIC. The OAIC then made the decision that the second reviewable decision be considered by the Tribunal.

    The Summons Application

12. On 11 October 2021, the Applicant’s representative emailed the Tribunal enclosing two requests to issue summons’ and noted the following:

    …In the Applicant’s hearing certificate filed/served 27 July 2021, I asked the Respondent to produce his current employee GP and former employee KH as witnesses. The Respondent refused to do so.

    I now attach request [sic] to issue summons and draft summons for both GP and KH. The fee for attendance of both these witnesses should be borne by the Commonwealth or the respondent.

13. In relation to GP, the Applicant’s reasons for requesting the issue of the summons’ were outlined as follows:

    1. The addressee GP is the delegate of the Respondent who made FOI decisions in both matters now subject to AAT review.

    2. The Applicant, through his representative asked the Respondent to produce GP as a witness. The Respondent has refused to do so, asserting that the Respondent’s sole witness LC is the only appropriate witness in these proceedings.

    3. The Applicant says that LC had no prior involvement in these proceedings. She has no direct knowledge of the issues relevant to the proceedings. Her affidavit dated 16 July 2021 simply relays what others including GP told her.

    5. [sic] It is the deliberate attempt by the Respondent to prevent GP to give evidence and subject himself to cross examination.

    5. As the original decision maker, GP has direct knowledge of issues relating to the proceedings and hence is able to give first hand evidence that would have bearing on matters and the significance of those matters in the context of the proceedings as a whole.

    6. It is in the interests of justice that AAT issue summons for GP to give evidence in the proceedings.

14. In relation to KH, the Applicant’s reasons for requesting the summons were substantially the same, however noted that KH conducted the internal review of the decision made by her colleague GP, which gave rise to the first reviewable decision.

    LEGAL FRAMEWORK

15. Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the power of the Tribunal to summon a person to give evidence or produce documents as follows:

    (1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

    (a) appear before the Tribunal to give evidence;

    (b) produce any document or other thing specified in the summons.

    (2) The President or an authorised member may refuse a request to summon a person.

    (3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:

    (a) the summons or another summons requires the person to appear before the Tribunal; or

    (b) the Tribunal directs the person to attend the hearing.

    ISSUE

16. The primary issue for the Tribunal is whether the Applicant’s application to issue the summons’ to give evidence should be granted.

    DISCUSSION

17. It is well established that it is the task of the Tribunal to review a decision, rather than the reasons for it. The reasons for a decision are those contained within it. It is of no assistance to the Tribunal what may or may not have been in the reviewer’s mind at the time or the various thought processes that the reviewer may or may not have gone through in writing his or her decision. There is even less relevance in relation to someone who is further removed from the actual decision the Tribunal is asked to review, including the primary decision-maker.

18. In Re Phillips and Inspector-General in Bankruptcy,[1] Forgie DP at [46] opined as follows:

    The power to issue a summons may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose. It may not be used in that way even if it is a purpose that bears a relationship to the decision being reviewed by the tribunal but does not raise an issue that is reviewable. As it would be expressed by a court in the context of a subpoena, a summons must be issued in good faith, and so bona fide, for a purpose relevant to the review. (emphasis added)

    [1] (2011) 127 ALD 113.

19. I respectfully agree with those comments. The statutory power of the Tribunal to issue a summons is not unfettered and must be for a purpose relevant to the review being undertaken. In Drake v Minister for Immigration and Ethnic Affairs,[2] Bowen CJ and Deane J outlined the review function of the Tribunal as follows at 589:

    The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal

    [2] (1979) 24 ALR 577.

20. In exercising that function, the Tribunal is often said to ‘stand in the shoes of the original decision-maker’ (see Shi v Migration Agents Registration Authority [2008] HCA 31, Kiefel J at [134]).

21. In light of these principles, is not clear how oral evidence as to the deliberative process undertaken by the primary decision maker or the internal reviewer is relevant to the task of the Tribunal. Further, it is not possible to be satisfied that the summons’ requested are bona fide or for the purposes of the review at hand. Rather, they are not directly related to the review in question and appear to have been requested to inconvenience or embarrass the Respondent.

22. It is of further concern that the witnesses the Applicant is seeking to call are unlikely to be well-disposed to the Applicant and may in fact be of little value to the Applicant’s case. Moreover, any evidence given by the witnesses may be limited to evidence in-chief, unless the Applicant successfully obtains leave from the Tribunal to cross-examine his own witnesses. Such leave would not be given lightly.

    DECISION

23. The Applicant’s application to the Tribunal to issue summons’ is refused.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................

Associate

Dated: 22 October 2021