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

[2023] AATA 114

CHOK and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 114 (9 February 2023)

Division:GENERAL DIVISION

File Number(s):      2021/3136

Re:Mohammed Mahmoud CHOK

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

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

Date:9 February 2023

Place:Sydney

The application is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

PRACTICE AND PROCEDURE – citizenship – refusal of application for citizenship by conferral – delegate not satisfied that the applicant had a permanent or enduring physical or mental incapacity – whether the applicant has failed to proceed with his application before the Tribunal – where the applicant has failed to appear repeatedly – where the applicant has failed to comply with directions – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

Australian Citizenship Act 2007 (Cth) s (21)

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

9 February 2023

1. On 13 May 2021, the applicant applied for review to the Tribunal of a decision of the a delegate of the Minister, dated 19 April 2021, who refused the applicant’s application for conferral of Australian citizenship as they were not satisfied that the delegate was not satisfied that the applicant had a permanent or enduring physical or mental incapacity at the time of the application that meant that he was not capable of understanding the nature of the application at that time; or was not capable of demonstrating a basic knowledge of the English language at that time; or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time, as per s 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

   Background

2. This matter has been before the Tribunal for just under two years.

3. The matter was first listed for a telephone case conference (‘TCC’) on 12 July 2021. The applicant’s representative failed to attend, despite numerous attempts to contact him by the Tribunal. The applicant’s representative later made contact with the Tribunal and stated that he had asked someone from his office to call and have the conference rescheduled. The applicant’s representative was warned that a failure to appear at the next listing may result in the matter being referred for a dismissal hearing.

4. The Tribunal listed the matter for another TCC on 16 August 2021, and at this event the applicant’s representative indicated that the applicant intended to attend a specialist health practitioner and obtain a report in support of his application. The Tribunal subsequently made directions for the applicant to notify both the Tribunal and the respondent of the time and date of the relevant appointment on or before 31 August 2021. The applicant later request, and was given, an extension of time to 5 October 2021 to comply with the direction.

5. On 25 November 2021, the applicant’s representative was listed for a non-compliance directions hearing for failing to comply with the direction. The applicant’s representative appeared and stated that the applicant had struggled to get an appointment with the relevant specialist, and requested more time. The Tribunal made directions that the applicant was to advise of the relevant appointment by 16 December 2021.

6. On 17 December 2021, the Tribunal received notification that the applicant had an appointment with the specialist booked for 6 May 2022.

7. On 7 June 2022, the matter was listed for a further TCC. The applicant’s representative failed to appear, and no further material had been filed in the matter. The matter was referred for a non-compliance hearing on 23 June 2022.

8. The applicant’s representative failed to appear at the non-compliance hearing, having emailed the Tribunal to indicate he was unwell and could not attend. The Tribunal made directions requiring the applicant to provide evidence as to why the matter should not be dismissed, with reference to his failure to appear at the non-compliance hearing and most recent TCC, and his failure to comply with the direction of the Tribunal.

9. On 10 July 2022, the applicant’s representative emailed the Tribunal stating that the appointment had been organised for 12 August 2022, and stated that the delay had been due to the issues the applicant had with getting an appointment. He requested more time to submit the report as the delay had been due to a “reason beyond [the] applicant’s control” [sic].”

   The matter has referred for an interlocutory hearing to determine if the application should be dismissed. Law

10. Section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act’) relevantly provides:

    Discontinuance, dismissal, reinstatement etc. of application

    Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction

    (5)  If an applicant for a review of a decision fails within a reasonable time:

    (a)to proceed with the application; or

    (b)to comply with a direction by the Tribunal in relation to the application;

    the Tribunal may dismiss the application without proceeding to review the decision.

    dISMISSAL hEARING

11. At the outset, it should be said that the applicant’s advocate requested an Arabic interpreter be organised for the interlocutory hearing at after 8PM on the night before the hearing. It is fortunate that an appropriate interpreter was able to be found, and that the applicant was able to address the Tribunal directly and discuss the reasons for his delay in this matter. These reasons were echoed by the applicant’s advocate.

12. The explanation for the lengthy delays, failure to comply with directions made by the Tribunal, and a general failure to file material evidence as required was that the COVID-19 epidemic had meant that the applicant was unable to attend his medical appointments during 2021 and that he was unable to attend his appointment in August 2022 because the applicant was unwell and ‘COVID was coming and going in the community’. There was medical evidence given in support of any reason as to why the applicant had not attended the appointment in August 2022.

13. The applicant’s advocate said that there was no reason for him to delay, that people were still getting sick with COVID, and the applicant also had difficulties with communication.

14. It was argued on behalf on the Minister that the application should be dismissed under s 42A(5) of the Act because of the applicant’s repeated failure to comply with directions, file material, or even provide any explanation to the Tribunal as to why directions were not complied with or material filed as required, despite being given opportunities to do so.

15. The respondent also argued that the applicant’s claim had no reasonable prospects of success, and that it would also be appropriate for the Tribunal to dismiss the application on this basis

16. Turning first to the question of prospects of success, I am unable to make any finding as there is simply no material at all filed with the Tribunal which would enable the Tribunal to reach any conclusion.

17. However when looking at s 42A(5) of the Act, the evidence is clear. The applicant has failed to comply with directions of the Tribunal on numerous occasions, as set out in the background above. Looking at the progress of the matter as a whole, there have been repeated failures to comply with directions or provide evidence to support the applicant’s claim.

18. Although the applicant’s argument that COVID-19 prevented him from attending doctors appointments in 2021 is worthy of some weight, there was no explanation as to why the applicant could not have made an effort to attend an appointment by videolink, even though he said he does not have an email address.

19. There was no real explanation as to why he did not attend the appointment in August 2022, or make another appointment between then and now and provide a report and an explanation to the Tribunal.

20. The applicant said that he is now getting the report, and could provide it to the Tribunal, but there was no evidence to give the Tribunal any reassurance in this regard, particularly given the history of the matter.

21. I note that the applicant forwarded a medical report dated 27 January 2023 to the Tribunal which was received on 2 February 2023. There was no explanation provided as to why the report had not been provided before the hearing or at the hearing.

22. This late filing does not remedy repeated failures to comply with directions and may be of little to no probative value.

23. Overall, having considered the progress of the matter to date, and the material that is before the Tribunal, it is my view that the matter should be dismissed under s 42A(5) for a failure to progress.

24. I note that it is open to the applicant to make a fresh application for citizenship, and to ensure that he has all of the relevant documentation necessary to enable his application to progress.

    Decision

25. The application is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 25 (twenty - five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 9 February 2023

Date(s) of hearing:	31 January 2023
Advocate for the Applicant:	Mr M. Nanda, Global Visa Help
Solicitors for the Respondent:	Ms L. Taylor, MinterEllison