ADPA and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 603

ADPA and Minister for Immigration and Border Protection (Citizenship) [2015] AATA  603 (18 August 2015)

Division	General Division
File Number	2014/0035
Re	ADPA
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	18 August 2015
Place	Sydney

The Tribunal makes the following orders under s 35 of the Administrative Appeals Tribunal Act 1975:

The Tribunal’s reasons for decision in this matter dated 30 January 2015 are to be amended, before they are made public, so that any references to the applicant’s name are changed to “the applicant” and any content that may tend to identify the applicant is changed to eliminate that possibility, or alternatively be removed.  In the title to the published decision the applicant will be referred to, as in this decision, by the pseudonym “ADPA”.

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

Deputy President S E Frost

CATCHWORDS

PRACTICE AND PROCEDURE – application for confidentiality orders – whether basis for confidentiality application – whether real risk of applicant being identified in other proceedings – risk of danger and harm to application and his family – application granted

PRACTICE AND PROCEDURE – withdrawal – whether application can be withdrawn after decision on review has been made – Tribunal functus officio – withdrawal has no effect

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(1A), 35

REASONS FOR DECISION

Deputy President S E Frost

18 August 2015

INTRODUCTION AND BACKGROUND

1. The applicant applied for Australian citizenship.  His application was refused on character grounds.  He applied to the Tribunal for review of the decision but the decision was affirmed by Senior Member Isenberg.

2. Upon receiving notification of the Tribunal’s decision, the applicant sent an email to the Tribunal Registry, not so much requesting as demanding that his name not be published.  He also said:

   Some of the information may harm my situation and more importantly my son’s future employment and social prospects.

   The decision is being appealed in the Federal Court and Naida Isenberg’s qualification to hear immigration matters, and judgement of AAT to assign her the same, taken up with the Attorney-General.

   Please note that I raised concern with [one of the Tribunal’s registry staff] regarding a Zionist (probably an Israeli dual citizen) being given my case, an Iranian critical of Israel, but I was rebuffed.

   Consequently that Zionist, who approved the citizenship application of a convicted criminal and violent druggie with Jewish name just 6 weeks prior to my decision, brought her hatred and self-righteous ideology into her decision regarding an Iranian.

   The likes of Isenberg bring disgrace to AAT and its image as an impartial judge. Perhaps amalgamation of AAT and serious reduction of its staff could bring change and prevent such assigning mistakes.

3. That was surprisingly intemperate language for an obviously intelligent and articulate person to use, particularly in light of SM Isenberg’s comments at [31]-[35] of her written reasons for decision, where she dealt with multiple prior instances of abusive conduct on the applicant’s part, including:

   ·sending abusive emails to government departments;

   ·making threats to government employees;

   ·using inappropriate language to school staff;

   ·intimidating school staff; and

   ·abusing an immigration detention officer to such an extent that the applicant had to be restrained by handcuffs.

4. It would not seem entirely out of character for the applicant now to direct his abuse towards this Tribunal and its members (see also [14] below).

5. The applicant’s correspondence (at [2] above) was treated as a request for a confidentiality order. The Tribunal sought the views of the Minister. The Minister opposed the making of any such order.

6. On 13 March 2015 I conducted a hearing to deal with the confidentiality application.  The applicant attended in person; the Minister’s representative, with leave, by phone.

7. I asked the applicant if there was anything else that he wanted to rely on apart from his email.  He nominated a Federal Court case which he said he had already provided to the Tribunal.  He said that he was the applicant in that case and his name had been suppressed by the Court.  He was now claiming that SM Isenberg had made a reference to that case in her reasons for decision, and if his name were published now, he would be exposed as the applicant in that case and that would put him and his family in danger.

8. I informed the applicant that neither Ms Graham, for the Minister, nor I could find any reference in SM Isenberg’s reasons to the case that the applicant was now referring to. 

9. Perhaps sensing at that point that his current application for a confidentiality order may not be successful, the applicant handed me a completed form headed Administrative Appeals Tribunal – Notice of Withdrawal.  He confirmed that his intention was to withdraw his application for review of the Minister’s decision to refuse his application for Australian citizenship.  This was not simply an attempt to withdraw his application for a confidentiality order. 

10. I asked him what he thought the status of his Federal Court appeal against SM Isenberg’s decision would be if his application to the Tribunal were withdrawn.  He told me his Federal Court appeal had been withdrawn. 

11. I expressed my doubts as to whether it was possible, in the context of Tribunal review, to withdraw an application for review that had already been determined.  The applicant insisted that it was possible.  I told him I thought the Tribunal was functus officio – it had done its job – and aside from some residual power to order confidentiality in relation to the application, its power was spent.

12. Over the applicant’s objection, I allowed the Minister’s representative some time to obtain instructions on the question and to provide written submissions.  I subsequently made directions allowing time for the applicant to respond, and indicated to the parties that I would decide both the withdrawal issue and the application for confidentiality on the papers.

13. The Minister provided written submissions, contending, in summary, that (a) the application could not be withdrawn once the Tribunal had proceeded to review the decision and made its decision on review, (b) the Tribunal nevertheless retained the power to make confidentiality orders, and (c) the Minister opposed the making of confidentiality orders in this case. 

14. The applicant responded in writing in the following terms:

    To the farcical Sydney branch of the Tribunal (where anyone without professional qualification can be appointed to serious decision making positions).

    I have withdrawn my application to the Tribunal as per “explicitly worded” SECT 42A(1A) of AAT Act 1975:

    “Sect 42A(1A)     A person who made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”

    And

    “(1B)        If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.” (Emphasis)

    Public servants may be able to justify bullshit decisions without oversight, as Isenberg did, to an extent, but there will be a line drawn at some point. 

    The jargon submitted by Clayton Utz in regards to functus officio is irrelevant to this case and utter nonsense, because the Tribunal is not asked to reopen or revisit a case.

    The Tribunal does not have the power to refuse an application for withdrawal, and Sect(s) 42A(1A) and (1B) do not qualify an Applicant’s withdrawal based on Minister’s consent, nor the Tribunal’s.  Engaging Clayton Utz Lawyers in the matter of my withdrawal application is an error of judgement by an unqualified Member.

    The Administrative Appeals Tribunal Act 1975 has given me, the applicant, the right to withdraw my application at any time and I have done so. The confidentiality order is irrelevant as the Tribunal has been dismissed by my withdrawal. Nevertheless, the Tribunal will be in breach of the Federal Court order to keep my details confidential; Particularly as [redacted – sensitive personal information relating to the applicant].

    An uninformed deputy president with minimal legal qualification, and wrongly-appointed senior member anti-Iranian self-righteous Israeli with absolutely no qualification for her position, or to hear immigration matters, do not have the power or authority to subvert the AAT Act 1975.

    Your clinging to my case is impeding my dealing with DIBP, as they will not accept my new application for citizenship as long (sic) you idiots hold on to my case.

    Incidentally, you know what you can do with your Ex parte Directions.

    (Underlining in the original; the word “Emphasis” at the end of the quoted legislative provisions also appears in the original.)

15. The applicant evidently thought it was acceptable to communicate with the Tribunal in that way.  I do not.  Both the tone and content of that communication are disgraceful.

    WITHDRAWAL

16. An application to the Tribunal for review of a decision cannot be withdrawn once the Tribunal has proceeded to review the decision and made its decision on review.  The Tribunal is then functus officio. What has been done cannot be undone, unless by order of the Federal Court on appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act) or on some other application for judicial review.

17. Although s 42A(1A) of the AAT Act provides that an application may be withdrawn at any time, the provision needs to be read in context.  The “application” referred to in s 42A(1A) is the “application to the Tribunal for a review of a decision”.  The application ceases to answer that description once the Tribunal has actually reviewed the decision and made its own decision.  Once that occurs, there is no “application” left; there is nothing that can be withdrawn.

18. The set of circumstances created by a valid withdrawal – the Tribunal is taken to have dismissed the application without proceeding to review the decision – cannot come into existence once the Tribunal has actually proceeded to review the decision.  It is one thing for a state of affairs to be “taken” as existing from nothing; it is quite another for an actual state of affairs to be undone by an applicant dissatisfied with the outcome.  On that basis, any applicant could dip his toe in the water but retreat to dry land if not happy with the temperature.  The proposition is without merit. 

19. The document relied on by the applicant as amounting to the withdrawal of his application to the Tribunal (although described by him, inaccurately, as an application for withdrawal) did not have the effect that he claims it to have had.  It had no effect at all.

    CONFIDENTIALITY

20. Since the filing of the applicant’s request for confidentiality orders, the AAT Act has been amended by the Tribunals Amalgamation Act 2015 (Cth). The former s 35 was repealed and a new s 35 has now been substituted. There are some changes in expression between the former and the current provisions but no fundamental change in their intent or effect. These changes have been of no consequence to the applicant’s request.

21. Orders of the kind sought by the applicant are clearly capable of being made by the Tribunal. The Tribunal has extensive powers under s 35, including to prohibit or restrict publication of information that could identify parties or witnesses (subsection (3)).

22. Those powers, however, are to be exercised in accordance with s 35(5), which provides as follows:

    (5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

    (a)   that hearings of proceedings before the Tribunal should be held in public; and

    (b)   that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

    (c)   that the contents of documents lodged with the Tribunal should be made available to all the parties.

    However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

23. The applicant’s original application for his name not to be published provided no sound basis for an order under s 35 of the AAT Act.

24. However, now that he has explained the position, I accept that there is a real risk that publication of the applicant’s name may allow him to be identified as the applicant in the Federal Court proceedings to which he referred in the hearing on 13 March 2015.  That could expose him and his family to danger.

    DECISION

25. I therefore order that SM Isenberg’s reasons for decision be amended, before they are made public, so that any references to the applicant’s name be changed to “the applicant” and any content that may tend to identify the applicant be changed to eliminate that possibility, or alternatively be removed.  In the title to the published decision the applicant will be referred to, as in this decision, by the pseudonym “ADPA”.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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

Associate

Dated 18 August 2015

Heard  on the papers	17 August 2015
Applicant	In person
Solicitors for the Respondent	Clayton Utz