FEDERAL COURT OF AUSTRALIA Mautner v Minister for Immigration & Citizenship [2009] FCA 1475 MIGRATION – Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) – Sch 3 – Items 7(8)(1) and 7(8)(4) – insufficient evidence to support application - Tribunal declined to exercise discretion – whether Tribunal required to invite applicant to provide additional evidence PRACTICE AND PROCEDURE – application of rule in Browne v Dunn to proceedings before Administrative Appeals Tribunal Administrative Appeals Tribunal Act 1975 (Cth) Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) Migration Act 1958 (Cth) 3D Scaffolding Pty Limited v Commissioner of Taxation (2008) 105 ALD 475 3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75 Browne v Dunn (1894) 6 R 67 Haberfield v Department of Veterans Affairs as delegate for Comcare (2002) 121 FCR 233 Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 463 Lawrance v Centrelink (2005) 88 ALD 664 Mautner v Minister for Immigration and Citizenship [2008] AATA 1041 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 In Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Sullivan v Department of Transport (1978) 20 ALR 323 West v Mead [2003] NSWSC 161 PETER MAUTNER v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL NSD 1967 of 2008 STONE J 11 DECEMBER 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1967 of 2008 General Division ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: PETER MAUTNER Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: STONE J DATE OF ORDER: 11 DECEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1967 of 2008 General Division ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: PETER MAUTNER Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: STONE J DATE: 11 DECEMBER 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal delivered on 20 November 2008 in which the Tribunal dismissed an application for review of the first respondent's decision refusing to grant Australian citizenship to the applicant; Mautner v Minister for Immigration and Citizenship [2008] AATA 1041. Factual background 2 The factual background of this matter is not in dispute and the following summary draws on the facts as set out in the Tribunal's reasons. Mr Mautner was born in Austria and currently holds an Austrian passport. He is a permanent resident of Australia and was issued a resident return visa on 9 July 1997. Mr Mautner arrived in Australia in 1958 at the age of seven and from that time to 2003 he lived in Australia with little time abroad. Since 2003, however, he has spent the majority of his time in Thailand where he has been developing a business importing organic coconut milk for retail sale in Australian supermarkets run by Woolworths, Coles and others. Mr Mautner's application for Australian citizenship, made on 16 February 2007, was refused by the first respondent on 16 August 2007. 3 It is common ground that Mr Mautner does not satisfy the residential requirements for Australian citizenship laid down in Item 7(8)(1) of Sch 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth). Item 7(8)(1) stipulates that to satisfy the residential requirements he must, as a permanent resident, have spent in Australia: (a) a total of at least one year of the two year period immediately before the day on which he made his application; and (b) a total period of two years in the five year period immediately before the day on which he made his application. 4 Where this requirement is not met the Minister has a discretion under Item 7(8)(4) of the above Act as follows: The Minister may treat a period as one in which the person was present in Australia as a permanent resident if: (a) the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and (b) the person was not present in Australia during that period but was a permanent resident during that period. 5 The Tribunal declined to exercise the discretion conferred by Item 7(8)(4) as it was not satisfied that in the five year period prior to making his application for citizenship, that is from 15 February 2002 to 16 February 2007, Mr Mautner was engaged in activity beneficial to Australia. 6 At the hearing of the appeal Mr Withers, counsel for Mr Mautner, sought and was granted leave to file in Court an amended notice of appeal. Mr Withers stated that the purpose of the amended notice was to formalise the appellant's position that the challenge to the Tribunal's decision was based on an alleged denial of natural justice. The amended notice claims that: "The Tribunal erred in not affording the Applicant natural justice by drawing adverse inferences against the Applicant in respect of matters, including the truthfulness of his evidence, which were not put to the Applicant by either the Tribunal or the Respondent. 7 Mr Mautner submitted that he had been denied procedural fairness because the Tribunal had not put to him that his evidence could not be accepted without further corroboration. 8 The Tribunal gave detailed consideration to Mr Mautner's activities in the second and fifth years before he made his application for citizenship. In determining whether his activities during those periods were beneficial to the interests of Australia the Tribunal was guided by the Australian Citizenship Instructions 1 July 2005 – 30 June 2007. These instructions stated that the discretion should only be exercised in favour of an applicant who was self-employed and whose "frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis". In considering these instructions the Tribunal commented: The ACIs further provide that the applicant must have "personally engaged in activities overseas beneficial to the interests of Australia, not just, for example the company or organisation for which the applicant worked". Furthermore, "activities" also means "a series of transactions, not just a one-off transaction". 9 The Tribunal also took into account the comment of Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87 that the phrase "activities beneficial to the interests of Australia" may refer to commercial or non-commercial activities and "necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent". 10 The Tribunal considered Mr Mautner's evidence concerning his activities overseas. It summarised evidence concerning his experience in the retail sector, his connection with major Australian food retailers, including Woolworths and Coles, and the revenue generated by his business. Mr Mautner's evidence was that it was necessary for him to reside in Thailand in order to develop and carry out his business but that he intended to return to Australia permanently once the business had reached a sustainable level. 11 The Tribunal also referred to documentary evidence provided by Mr Mautner and the evidence of a witness, Mr Laurie Cavallo who commented on the quantity of imports by Mr Mautner's company in 2007, in particular sales to Woolworths. 12 Mr Mautner's evidence emphasised that his organic coconut milk product is unique because it is sourced from a company, Merit Food Products Co Ltd, which is accredited by Australian Certified Organic Pty Ltd. This accreditation was said to be essential for the product to be accepted by Woolworths. Mr Mautner's evidence was that since 2005 he had imported products worth $1.1 million into Australia and that he is importing a product that is otherwise unavailable. He also made the point that he paid income tax on the business and purchasers paid goods and services tax on the product. 13 The problem for Mr Mautner was that the Tribunal took the view that significant aspects of his evidence were incomplete or not corroborated. For example Mr Cavallo had said: In the calendar year 2007 Woolworths sourced from ATF [Mr Mautner's company] in excess of 400,000 cans of organic coconut products. In addition, Woolworths imported through ATF in the order of 1,200,000 cans. 14 There was no documentary evidence to support this statement. Moreover the Tribunal commented, "I am also uncertain what the 1,200,000 cans contained, but I infer that it was not certified organic coconut milk". Other examples to which the Tribunal referred are: · There was no issue date on a certificate to show that canned coconut milk met Woolworth's quality standard. · The certifications relied on dated only from 2008. · There was no evidence of the amount of tax paid by Mr Mautner before 2006. · There was no evidence of the source of Mr Mautner's income for the year ending 30 June 2007. · There was no supporting contemporaneous documentation such as invoices, receipts or shipping records in respect of sales made in the period 2005 to 2007. · There was no evidence to support sales in the period before "some time in the calendar year 2007". · The references provided by Mr Mautner "emphasise his promotion of exports from Australia rather than imports into Australia". 15 Referring to these gaps and difficulties in the evidence for Mr Mautner, the Tribunal observed that it was "not persuaded that Mr Mautner's activities in terms of exporting organic coconut milk or any other product" were as time-consuming or as valuable as he contended. The Tribunal was also not satisfied that in the 5 year period before he made his application, Mr Mautner was engaged in activity beneficial to Australia. Rather, in the Tribunal's view, the evidence suggested that there had been a burst of activity after his application was refused, that is after 16 August 2007. 16 The appellant complains that in not advising him that his evidence would be disbelieved without corroboration, the Tribunal denied him procedural fairness and breached the rule in Browne v Dunn (1894) 6 R 67. The rule was summarised by Gummow and Heydon JJ in In Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [55]: In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner's client proposes to rely in contradiction of that witness. 17 Their Honours held at [56]-[57] that the rule did not apply to proceedings in the Refugee Review Tribunal (RRT). That conclusion was made in reliance on s 420(2) of the Migration Act 1958 (Cth) which provides that the RRT is not bound by "technicalities, legal forms or rules of evidence;" and also on the view that proceedings in the RRT are not adversarial but inquisitorial and "the tribunal is not in the position of a contradictor of the case being advanced by the applicant"; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282. 18 I note that s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) gives similar freedom to the Tribunal. It provides 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". However, while the rules of evidence may not apply, the Tribunal is specifically enjoined to ensure that every party to a proceeding before it "is given a reasonable opportunity to present his or her case"; s 39(1). In Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Deane J referred to s 39 as "statutory recognition of an obligation which the law would, in any event, imply", namely the duty to act "with judicial fairness and detachment". His Honour added, at 343: In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. (Original emphasis) 19 As the written submissions for the Minister note, there has been some debate in the cases as to whether the rule in Browne v Dunn applies to proceedings in the Tribunal; cf Lawrance v Centrelink (2005) 88 ALD 664 at [31] per Hely J and Haberfield v Department of Veterans Affairs as delegate for Comcare (2002) 121 FCR 233 at [58] per Sackville J. Ultimately, the rule is an aspect of procedural fairness and like other elements of procedural fairness its application "depends on the circumstances of the particular case"; 3D Scaffolding Pty Limited v Commissioner of Taxation (2008) 105 ALD 475 per Edmonds J at [21]. Thus, as his Honour said: Where the Tribunal makes a finding contrary to the evidence of a witness in the circumstances where the matter found was not put to the witness, this will generally involve a denial of procedural fairness and would be a denial of natural justice on the part of the tribunal to do so. 20 It is not, however, incumbent on the Tribunal to point out the obvious. As Hill J commented in Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 463 at 473: Where the issues in a case are such that it would readily be apparent to a party that a particular imputation has been made, there will be no necessity to put that imputation to a witness who denies it and, in consequence, there will have been no denial of procedural fairness. 21 This comment was quoted with approval by the Full Court which dismissed an appeal from the decision of Edmonds J; 3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75 at [30]. 22 Counsel for Mr Mautner interpreted the Tribunal's rejection of Mr Mautner's evidence as raising the implication that the evidence was fabricated and that Mr Mautner was not regarded as a truthful witness. There is, however, nothing in the Tribunal's reasons to suggest that the Tribunal was making any such imputation. It is clear that the Tribunal did not find the evidence sufficiently reliable, comprehensive or detailed to meet the statutory criteria. As indicated at [14] above, there were gaps and uncertainties in the evidence which led the Tribunal to reject Mr Mautner's claim. There is, however, a clear distinction between the Tribunal rejecting a claim because, on the weight of the evidence put to it, it is not satisfied that the claim is made out and the Tribunal rejecting evidence because it believes that evidence to be fabricated. In the former case it would generally not be necessary for the Tribunal to advise the claimant that the evidence is not sufficient and, expressly or by implication, invite him or her to provide additional evidence. 23 It was submitted that, in the circumstances under consideration, the Tribunal was obliged to put its doubts about the evidence to Mr Mautner. I do not accept that submission. There has been no suggestion that Mr Mautner was unaware of the criteria he had to meet. Moreover, before the Tribunal there was, in the words of the Minister's written submissions, "a full-blooded attack on the sufficiency and adequacy of the appellant's evidence to satisfy the statutory criteria". The statement of facts and contentions that the Minister put to the Tribunal specifically referred to the paucity of the evidence concerning the nature of Mr Mautner's business overseas and the amount of his time that those business activities involved. It asserted that there was no evidence as to Mr Mautner's specific role or how the claimed business activities were of public benefit. 24 In my view, Mr Mautner must have been aware before the hearing that the Minister was taking issue with his claims and submitting that the evidence was not sufficient to substantiate them. This much was obvious from the Minister's statement; see West v Mead [2003] NSWSC 161 at [98]-[99] per Campbell J, quoted with approval by Young CJ in Eq in Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624. He was given the opportunity to put before the Tribunal the evidence that he believed would support his claim. As Mr Potts, who appeared for the Minister submitted, "The possibility that the Tribunal might not regard the evidence as sufficient was one of a number of entirely foreseeable findings that the Tribunal could have made". That being so it was not incumbent on the Tribunal to raise the issue with him. There was no breach of the rule in Browne v Dunn and no denial or procedural fairness. 25 The application must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 11 December 2009 Counsel for the Applicant: CH Withers Solicitor for the Applicant: Carneys Lawyers Pty Ltd Counsel for the First Respondent: JAC Potts Solicitor for the First Respondent: DLA Phillips Fox Solicitor for the Second Respondent: D Humphreys, Administrative Appeals Tribunal Date of Hearing: 23 July 2009 Date of Judgment: 11 December 2009