Goldie and Minister for Immigration and Multicultural Affairs
[2001] AATA 513
•12 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 513
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/180
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN GERALD GOLDIE
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Date11 June 2001
PlacePerth
Decision The Tribunal decides that: (a) it has no jurisdiction under subs (9) or (10) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") to reinstate the applicant's application for review of the decision made by the respondent's delegate on 20 May 1997, and, accordingly, the applicant's application for reinstatement of that application for review is unsuccessful; (b) the applicant's application for the grant, pursuant to s29(7) of the AAT Act, of an extension of time until 9 May 2000 for the making of a fresh application to the Tribunal for a review of the decision made by the respondent's delegate on 20 May 1997 is refused, and the applicant's application for review of that decision, which was lodged with the Tribunal on 9 May 2000, is therefore dismissed.
........…(sgd S D Hotop)..........
Deputy President
ADMINISTRATIVE APPEALS TRIBUNALü
ý No W2000/180
GENERAL ADMINISTRATIVE DIVISION þ
Re:BRIAN GERALD GOLDIE
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER TO AMEND DECISION
Tribunal: Associate Professor S D Hotop, Deputy President
Date: 12 June 2001
Place: Perth
Pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the decision given on 11 June 2001 in accordance with the following directions:
that the words "of s42A" be inserted after the words "it has no jurisdiction under subs (9) or (10)" in paragraph (a) of the Tribunal's decision, and in paragraph 58(a) of the Tribunal's reasons for decision, in this matter.
..............................................
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement of application for review – applicant's application for review dismissed for failure to appear – applicant applied for reinstatement of application for review – whether Tribunal has jurisdiction to reinstate application for review – application for reinstatement not made within 28 days of notification of dismissal – whether application for review dismissed in error – applicant subsequently lodged fresh application for review of same reviewable decision – whether Tribunal has jurisdiction to consider and decide fresh application for review – extension of time – whether appropriate to grant extension of time for lodging fresh application for review
Acts Interpretation Act 1901 ss 15AA, 15AB
Administrative Appeals Tribunal Act 1975 ss29(7), 42A(2), 42A(6), 42A(8), 42A(9), 42A(10)
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Comcare v A'Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Huynh and Minister for Immigration and Multicultural Affairs [2001] AATA 31
Maric v Comcare (1993) 40 FCR 244
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537
Re Pham and Minister for Immigration and Multicultural Affairs [2000] AATA 1159
Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916
REASONS FOR DECISION
11 June 2001 Associate Professor S D Hotop, Deputy President
Brian Gerald Goldie ("the applicant") has made an application, pursuant to s42A(8) or s42A(10) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), to the Tribunal for the reinstatement of an application for review which was dismissed by the Tribunal on 17 December 1999 pursuant to s42A(2)(a) of the AAT Act. The applicant has, in the alternative, also made an application, pursuant to s29(7) of the AAT Act, to the Tribunal for an extension of time for lodging a fresh application for review. These applications will hereafter be referred to as "the preliminary applications".
At the hearing of the preliminary applications, the applicant appeared in person without representation. The Minister for Immigration and Multicultural Affairs ("the respondent") was represented by Mr P Macliver of counsel. The Tribunal had before it various documentary exhibits tendered by the applicant and the respondent (numbered A1-A6 and R1-R2, respectively). The applicant gave oral evidence. There were no other witnesses.
The Relevant Factual BackgroundThe following background facts which are relevant to the preliminary applications are not in dispute.
The applicant, who is a citizen of the United Kingdom, was granted a Class 660 visitor visa on 7 February 1992. That visa, which was valid until 7 February 1996, authorised a stay of 6 months in Australia upon each entry to Australia, subject to specified conditions. The applicant first entered Australia on 24 February 1992 and subsequently re-entered Australia on 4 December 1992.
On or about 27 March 1993 the applicant married an Australian citizen in Australia. On or about 17 May 1993 the applicant applied for a Class 820 (Extended Eligibility (Spouse)) visa and entry permit and a Class 801 (Spouse (After Entry)) entry permit. On 28 January 1994 the applicant was granted a Class 820 visa and entry permit valid until 17 July 1995. As from 1 September 1994, however, the applicant's outstanding application for a Class 801 entry permit was, pursuant to the Migration Reform (Transitional Provisions) Regulations 1994, treated as an application for a Transitional (Permanent) visa.
On 20 May 1997 a delegate of the respondent refused the applicant's application for a Transitional (Permanent) visa, pursuant to s501 of the Migration Act 1958 ("the Act"), on the ground that the applicant was not of good character. The applicant was formally notified of that decision by an officer of the Department of Immigration and Multicultural Affairs ("DIMA") by letter dated 29 May 1997.
On 3 July 1997 the applicant lodged with the Brisbane Registry of the Tribunal an application for review of the abovementioned decision of 20 May 1997.
On 18 February 1998 the Tribunal affirmed that decision.
On 25 February 1998 the applicant appealed to the Federal Court of Australia against the Tribunal's decision of 18 February 1998.
On 27 February 1998 the applicant was granted a Bridging E visa subject to specified conditions.
On 30 March 1999 the Federal Court of Australia dismissed the applicant's appeal against the Tribunal's decision of 18 February 1998.
In April 1999 the applicant appealed to the Full Court of the Federal Court of Australia against the Court's decision of 30 March 1999.
On 14 September 1999 the Full Court of the Federal Court of Australia allowed the applicant's appeal and ordered that the matter be remitted to the Tribunal to be heard according to law. Upon remittal to the Tribunal the matter was designated Application for Review No Q1999/1070.
On 17 December 1999 the Tribunal dismissed the remitted application for review, pursuant to s42A(2)(a) of the AAT Act.
On 15 February 2000 the applicant was arrested in New South Wales and extradited to Western Australia to answer 3 charges of stealing as a servant.
By letter dated 24 March 2000 (Exhibit A2) the applicant wrote to the Brisbane Registry of the Tribunal as follows:
"I have been in custody at Canningvale Remand Centre in Western Australia since February 15th 2000 and as a result I have been unable to contact you prior to now.
The application, referred to above, having been remitted to the Tribunal from the Full Bench of the Federal Court, was dismissed by the tribunal on 18th December 2000 (sic) as a result of my non appearance. I had sent counsel to request an adjournment however that was unsuccessful.
My reasons for adjourning the matter were:-1.The respondent failed to provide the required documents to counsel in a timely manner; and
2.I had been unable to properly review the material; and
3.The respondent had informed my counsel that key witnesses for the respondent would not be available for cross examination; and
4.There were matters outstanding in respect of the Full Bench Decisions (sic) remitting the matter to the Tribunal, particularly costs.
I now seek leave to revive the application on the basis of the matters referred to above. I realise it falls outwith the required period however the greater part of the time delay is as a result of the respondent currently holding me on an immigration detention order in Custody.
Further I do not feel that the respondent will be unfairly prejudiced should the Tribunal consent to the matter being relisted.
…".
By letter dated 13 April 2000 (Exhibit A3) a Deputy Registrar of the Tribunal replied to the applicant's letter of 24 March 2000 as follows:
"I refer to your correspondence dated 24 March 2000 (received 6 April 2000) in which you requested that the Tribunal revive your application for review.
Your application was dismissed under ss42A(2)(a) of the Administrative Appeals Tribunal Act 1975 on the basis that you had failed to appear for the listed hearing.
As the Tribunal has not made a decision on the merits of your application, you may still lodge a fresh application to have the decision of the Minister for Immigration and Multicultural Affairs reviewed. I should point out however that the application would now be well out of time and consequently you would have to also apply for an extension of time to lodge.
I have included an application form and a Form 2 (Extension of time to lodge) for your use should you wish to pursue the matter."
In the meantime on 24 March 2000 an application for a Bridging E visa had been lodged with DIMA on behalf of the applicant.
On 28 March 2000 the applicant's application for a Bridging E visa was refused by a delegate of the respondent on the ground that the applicant did not pass the "character test" as set out in s501(6) of the Act.
On 31 March 2000 the applicant lodged with the Perth Registry of the Tribunal an application for review of the delegate's decision of 28 March 2000.
On 12 June 2000 the Tribunal affirmed the delegate's decision of 28 March 2000.
On 22 December 2000 an appeal by the applicant to the Federal Court of Australia against the Tribunal's decision of 12 June 2000 was dismissed.
In the meantime on 9 May 2000 the applicant had lodged with the Brisbane Registry of the Tribunal a fresh application for review of the decision of the delegate of the respondent , dated 20 May 1997, refusing his application for a Transitional (Permanent) visa (see paragraph 6 above), together with an application for an extension of time for lodging that application for review. Those applications were both dated 24 April 2000 and were sent to the Tribunal by the applicant under cover of a letter dated 28 April 2000 (Exhibit A4).
By letter dated 23 May 2000 an officer of DIMA notified the Tribunal that DIMA opposed the applicant's abovementioned application for an extension of time.
On 29 May 2000 the abovementioned application for review and accompanying application for an extension of time lodged by the applicant were transferred from the Brisbane Registry to the Perth Registry of the Tribunal.
The Applicant's EvidenceThe applicant tendered in evidence a written statement dated 2 January 2001 (Exhibit A1). The relevant paragraphs of that statement are as follows:
"1. I am the applicant in this matter.
2.I am making this statement in support of my application for an extension of time in which to submit an application to the Administrative Appeals Tribunal ('the AAT') in respect of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 20th May 1997.
3.I filed an application for review with the AAT on 3rd July 1997 in matter number Q97/621.
4.The hearing took place on 29th, 30th and 31st October 1997.
5.The AAT handed down a varied decision on 18th February 1997 (sic).
6.I appealed the original AAT decision to the Federal Court of Australia in matter QG9 of 1998 on 25th February 1997 (sic).
7.On 30th March 1999 Cooper J of the Federal Court in Brisbane dismissed the appeal.
8.On 19th April 1999 I instructed counsel to appeal the decision of Cooper J in matter number Q115 of 1999 to the Full Court of the Federal Court of Australia.
9.On 14th September 1999 the Full Court of the Federal Court of Australia upheld the appeal in a unanimous decision and remitted the matter to the AAT in Brisbane.
10.On 14th September 1999 the matter was relisted by the AAT in matter Q99/1070.
11.On 15th September 1999 my de-facto, Valerie Finnis, was contacted by my counsel, Lorenzo Bocabella and he asked me to contact him. Valerie took the call as I was not available.
12.On 16th September 1999 I spoke at length with my counsel and we discussed the approach to be taken in the tribunal hearing and I gave him instructions and paid funds into trust to cover directions hearing and other procedural matters.
13.I spoke with Lorenzo Boccabella on several occasions between September 1999 and December 1999 and we discussed routine issues in relation to the directions hearing and other matters. I do not recall the exact conversation but at some stage he advised me that the hearing was set down for 15th December 1999, although I do not recall a summons ever being given to me.
14.On a couple of occasions I asked Lorenzo Boccabella about the material to be relied upon by the respondent and at that time the only documents on the AAT file were the original Section 37 'T' documents. Lorenzo advised me that the respondents had been given various directions to file material that they had not complied with and that the last possible day for filing material was 26th November 1999. The respondents were first ordered to file the material by 28th October and failed to do so, then again failed to file the material by 11th November. I was unable to adequately prepare any response as the provision of the material was so haphazard. There then arose a question as to whether it was even possible for the respondents to file the material outside of the 28 day period prescribed in s37 of the AAT Act.
15.On 14th December 1999 I spoke with Lorenzo Boccabella and he told me that he had received a large bundle of documents from Murray Belcher of the AGS in Brisbane under cover of a letter dated 13th December 1999, and that he had arranged a courier to deliver the documents to me. I asked him how many documents were involved and he told me 'about 400'. I immediately raised the issue that we would be unable to examine the documents and prepare responses in less than 24 hours. Lorenzo agreed and we agreed that we would request that the hearing be adjourned.
16.About 2 o'clock in the afternoon of 14th December 1999 I spoke to Lorenzo and asked him further questions as to the nature of the documents. He told me that some appeared to be statements of a previous action in the Supreme Court of Western Australia, and that others were statements from WA police.
17.I called Lorenzo again at about 5 o'clock in the afternoon after receiving the courier pack and confirmed that I would provisionally examine the documents but that an adjournment would be a necessity. It was his opinion that there would be no difficulty in obtaining an adjournment as it was through no fault of mine that the respondents had failed to deliver the documents in a timely manner.
18.I also instructed Lorenzo that I would be available by telephone on the morning of the Tribunal, and I spoke to him again by telephone at about 9 am on the morning of the 15th to confirm that we would seek an adjournment.
19.I was advised by Lorenzo on 17th December 1999 that an adjournment had been refused and the case dismissed. He advised that we had strong grounds for appeal because it was his opinion that I had been denied procedural fairness, and that in any event it was possible that the documents could not be admitted at such a late stage in the proceedings, or at all. I did not give any instructions as I wanted to consider the position and we researched appealing the decision.
20.In early January I spoke to Lorenzo. He advised that I could reapply to the AAT for review in an out of time application. I did not give any indication as to what I wanted to do as I was unsure. I asked him about the expected cost because I was not able to work and had very little funds available. He told me it would cost about $15,000 to take the action, but it was an option to merely file a fresh application for review with the Tribunal.
21.On 15th February 2000 I was arrested and placed in custody.
22.In late February 2000 I instructed AVMS in Perth to contact the AAT in Brisbane with a view to putting the review back on foot.
23.In early March 2000 I was instructed by AVMS that it was possible to re-apply to the AAT and that they had contacted the Brisbane registry, but AVMS would require a trust fund deposit of at least $5000 to take the case on. Due to financial considerations at the time that was impossible. I was told by AVMS that they had spoken to a senior registrar with the AAT in Brisbane and that although it was some time since such an application had been made it was legally possible because the merits of the case had not been reviewed.
24.On 24th March 2000 I wrote to the Brisbane registry of the AAT myself to inquire as to the procedure to be followed.
25.On April (sic) I received communication for (sic) the AAT in Brisbane advising that it was possible to lodge a fresh application with an application for extension of time.
26.On 9th May 2000 I filed the further application for review now before this Tribunal.
…".
In his oral evidence the applicant concentrated on the period of time immediately following the decision of the Full Federal Court on 14 September 1999 allowing his appeal and remitting the matter of his application for review of the delegate's decision of 20 May 1997 to the Tribunal to be heard according to law (see paragraphs 6-13 above). In so doing he referred to various documents in a bundle of documents tendered in evidence by the respondent (Exhibit R1) as follows:
an "order" of the Tribunal, dated 14 October 1999, that the respondent file and serve a statement of facts and contentions, list of witnesses and witness statements and "supplementary s37 documents" by 28 October 1999, and that the applicant file and serve a statement of facts and contentions, list of witnesses and witness statements by 11 November 1999 (Exhibit R1, p1);
a letter dated 21 October 1999 from an officer of the Australian Government Solicitor's ("AGS") office (who was acting for the respondent) to the Tribunal requesting that each of the dates specified in the Tribunal's "order" for the filing and serving of documents be postponed by 14 days, and stating that "(s)uch extension will not affect the hearing dates in December" (Exhibit R1, pp2-3);
a file note by the abovementioned AGS officer, dated 28 October 1999, of a telephone conversation with the applicant's counsel to the effect that the latter had no objection to the abovementioned extension of time being granted (Exhibit R1, p4);
an "order" of the Tribunal, dated 29 October 1999, extending the time for the filing and serving of the relevant documents by the respondent and by the applicant until, respectively, 11 November 1999 and 25 November 1999 (Exhibit R1, p5);
a letter dated 11 November 1999 from the abovementioned AGS officer to the Tribunal enclosing the respondent's statement of facts and contentions, list of witnesses and witness statements but stating that he was "unable at this stage to file a supplementary set of T documents" and that such documents would be filed "as soon as practicable" (Exhibit R1, pp6-7);
a letter dated 11 November 1999 from the abovementioned AGS officer to the applicant's counsel enclosing a copy of his abovementioned letter to the Tribunal and "all attachments thereto" (Exhibit R1, p8);
a letter dated 10 December 1999 sent by facsimile from the abovementioned AGS officer to the applicant's counsel in effect noting that the applicant's statement of facts and contentions, list of witnesses and witness statements had not been served on him and requesting that they be served at the "earliest opportunity" (Exhibit R1, p41);
a letter dated 13 December 1999 sent by courier from the abovementioned AGS officer to the applicant's counsel enclosing supplementary s 37 documents and an additional witness statement (which documents, it was stated, had been filed with the Tribunal) (Exhibit R1, p42);
a letter dated 14 December 1999 sent by facsimile from the abovementioned AGS officer to the applicant's counsel requesting the applicant's statement of facts and contentions, list of witnesses and outlines of evidence "as a matter of great urgency" and stating that it was "unacceptable that two days before the hearing the respondent has still not been made aware of [the applicant's] case" (Exhibit R1, p43);
a file note dated 15 December 1999 by the abovementioned AGS officer to the effect that the respondent's counsel had spoken to the applicant's counsel and the latter had indicated that he would be requesting an adjournment of the hearing on the basis of "late receipt of T-documents" (Exhibit R1, p45).
The applicant also referred to the transcript of proceedings in the Tribunal on 16 and 17 December 1999 (Exhibit R1, pp46-52). The transcript records that:
on 16 December 199 the applicant's counsel applied for an adjournment on the ground that he had received from the respondent the "supplementary documents … some 400 odd pages" only 2 days earlier and that it had not been possible for him to absorb, and to obtain instructions on, those documents;
the Tribunal indicated that it was prepared to grant an adjournment until 17 December 1999 and, after a brief submission from the respondent's counsel who said that she had no objection to an adjournment until 17 December 1999, the Tribunal adjourned the hearing until 10.15 am on that date, adding:
"and if there is no appearance from the applicant, it will be dismissed under 42A(2)";
at 10.19 am on 17 December 1999 the hearing resumed and the applicant's counsel again applied for an adjournment of the matter "until next year" on the basis that he had been "supplied with some 380 pages of material earlier th(at) week" and "it was not possible to meet the material in those documents between when they were delivered and the hearing";
the Tribunal then heard further brief submissions from both counsel and the following exchange then occurred between the Tribunal and the applicant's counsel:
"THE D. PRESIDENT: Yes, of course. I am very sympathetic to your application. I am mindful that natural justice has to take place. If anything arises in cross-examination of your client, you can renew your application.
MR BOCCABELLA: My instructions are that – my instructions only go to the making of an adjournment, after which I have no further instructions.
THE D. PRESIDENT: Mr Boccabella, I gave you a very clear indication yesterday as to what my attitude would be. The matter will proceed today as far as we can take it, and if it should transpire that you are caught by surprise, that you are prejudiced, then you can renew your application for an adjournment.
MR BOCCABELLA: I can only do what my instructions go to, and my instructions are - - -
THE D. PRESIDENT: Well, if you wish to withdraw from the case, Mr Boccabella, I give you leave to do so.
MR BOCCABELLA: Yes, thank you, your Honour.
THE D. PRESIDENT: Well, in that case, the matter will be struck out under Section 42A(2).
MR BOCCABELLA: Yes. I am only going by my instructions.
THE D. PRESIDENT: Very well, the matter is dismissed under Section 42A(2)."
The matter was then adjourned indefinitely. A decision was subsequently made by the Tribunal on 17 December 1999 in the following terms:
"Pursuant to s42A(2)(a) of the Administrative Appeals Tribunal Act 1975 the Tribunal decides that, there being no appearance by or on behalf of the applicant, the application be dismissed without the Tribunal proceeding to review the decision."
(Exhibit R1, p53)
The applicant, having referred to the abovementioned documents, said that after his application was dismissed by the Tribunal - which he described as "somewhat a surprise" – he spoke to his counsel "some days later" and they discussed "several options" that might be pursued, including an appeal to the Federal Court, and an application to the Tribunal for a reinstatement of the application for review. He said that a Federal Court appeal was not pursued because of cost and an application to the Tribunal for reinstatement was not immediately pursued because:
"our opinion at that time was that perhaps a reinstatement before [the Deputy President who had dismissed the application for review] wouldn't be favourably looked upon".
(Transcript, p25)
The applicant said that his counsel and he each spoke directly to staff in the Brisbane Registry of the Tribunal in the second week of January 2000 about this matter and were advised that it was possible to "relist" or "revive" his application for review. He said that in February/March 2000 he instructed a company, AVMS (Australian Visa & Migration Services Pty Ltd), to make inquiries to the Brisbane Registry on his behalf and similar advice was received in response to those inquiries. As regards his acting on that advice, the applicant said:
"…I eventually got round to actually putting it in writing, because I realised in March that I had all these telephone conversations going on between AVMS and the Tribunal and myself and the Tribunal and it really was time to put something into writing. And then the letter of March 24 [Exhibit A2 – see paragraph 16 above] transpires where I wrote to the District Registrar and I had spoken to them, I believe the previous day."
(Transcript, p27)
Questioned by the Tribunal as regards his whereabouts during the relevant period, the applicant said that he left Brisbane and went to Sydney in July 1998 where he remained until 15 February 2000 when he was arrested and extradited to Perth. He said, however, that his counsel was located in Brisbane.
The applicant then referred to the contents of his letter of 24 March 2000 to the Tribunal and the Deputy Registrar's letter of 13 April 2000 (Exhibit A3 – see paragraph 17 above) in which he was advised that he could lodge a "fresh" application for review but that the grant of an extension of time for lodging that application would be required. The applicant subsequently sent an application for review and an application for an extension of time to the Brisbane Registry of the Tribunal under cover of a letter dated 28 April 2000 (Exhibit A4). The applicant did not dispute that that letter and the enclosed applications were not received by the Tribunal until 9 May 2000, adding that :
"(t)he mail in the particular facility that I'm in can take up to two weeks to travel 300 metres".
(Transcript, p30)
The applicant was cross-examined by Mr P Macliver (for the respondent), chiefly in relation to his employment after moving from Brisbane to Sydney in July 1998. He said that he commenced "contract work" with Rail Services Australia in late 1998 and he finished that work at about the end of November 1999. He said that he did not work at all during December 1999 and resumed work "possibly late January" 2000.
The Relevant LegislationSubsection (7) of s29 of the AAT Act authorises the Tribunal, upon application in writing by a person, to extend the time (otherwise prescribed by that section) for the making by that person of an application to the Tribunal for review of a decision. Subsection (8) of s29 provides that the time for making such an application for review may be extended under subs (7) although that time has expired.
Section 42A of the AAT Act relevantly provides:
"…
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or
(b)in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
…
(6)If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
…
(8)If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances."
The Submissions
The primary submission of Mr Macliver (for the respondent) was that, the Tribunal having dismissed the applicant's application for review on 17 December 1999, the Tribunal has no jurisdiction in respect of the applicant's fresh application for review and the accompanying application for an extension of time which were lodged on 9 May 2000. Mr Macliver submitted, in the alternative, that if the Tribunal did have jurisdiction it should not, in the exercise of its discretion, grant the necessary extension of time to the applicant pursuant to s29(7) of the AAT Act. As regards the applicant's application for reinstatement of his earlier application for review, Mr Macliver submitted that the Tribunal had no power to reinstate that application under s42A(9) of the AAT Act because the applicant did not apply to the Tribunal for such reinstatement within 28 days after receiving notification that his application for review had been dismissed, as required by s42A(8). Alternatively, Mr Macliver submitted that if the Tribunal did have such power in this case, it should not, in the exercise of its discretion, reinstate the application. Mr Macliver also submitted that the Tribunal has no power to reinstate the application under s42A(10) of the AAT Act because that power is conditional on the application having been dismissed by reason of an administrative error on the part of the Tribunal, and that condition was not fulfilled in this case.
The applicant submitted that the Tribunal did have the power, under either s42A(9) or s42A(10), to reinstate his earlier application for review and that the Tribunal, in the exercise of its discretion, should reinstate that application. He submitted that the Tribunal's dismissal of his application for review on 17 December 1999 involved an error on its part in at least the following respects:
the Tribunal had no power to dismiss his application under s42A(2)(a) of the AAT Act because his counsel did appear at the hearing on 17 December 1999 and, accordingly, the relevant statutory condition precedent to the existence of that power, namely a failure by him to appear either in person or by a representative, was not satisfied;
the Tribunal failed to give to the applicant or his counsel a reasonable opportunity to consider and respond to the "supplementary s37 documents" (comprising 380 pages) which had been served on his counsel on either 13 or 14 December 1999, and to make any additional submissions, before deciding to dismiss his application for review on 17 December 1999 and, in those circumstances, that decision by the Tribunal involved a denial of natural justice;
the Tribunal failed to consider and act upon options, other than the dismissal of the applicant's application for review, that were open to it, including proceeding to conduct a review of the delegate's decision of 20 May 1997 on the merits either by holding a hearing in the absence of the applicant or his counsel, pursuant to s40(1)(b) of the AAT Act, or by determining the matter "on the papers", pursuant to s34B of the AAT Act, without holding a hearing.
Alternatively, the applicant submitted that the Tribunal should, in the exercise of its discretion pursuant to s29(7) of the AAT Act, grant the necessary extension of time until 9 May 2000 for the lodging with the Tribunal of his fresh application for review of the delegate's decision of 20 May 1997. He submitted that the grant of such an extension of time would not prejudice the respondent and would be fair and equitable in all the circumstances.
Consideration and Findings
Application for Reinstatement – s42A(8) and s42A(9) of the AAT Act
An application for reinstatement of an application for review, pursuant to s42A(8) of the AAT Act, is required, in accordance with the terms of that subsection, to be made "within 28 days after receiving notification that the application has been dismissed". No provision is made in that subsection, or elsewhere in the AAT Act, whereby that period of time may be extended.
In the present case the applicant, according to his own evidence (see para 19 of his written statement dated 2 January 2001 (Exhibit A1), set out in paragraph 26 above), was notified by his counsel on 17 December 1999 that his application for review had been dismissed by the Tribunal. There was, however, no documentary evidence presented to the Tribunal that written notification of that dismissal was given by the Tribunal to the applicant or to his representative. The applicant did not dispute before the Tribunal, however, that such written notification was given by the Tribunal to him or to his representative and the Tribunal is prepared to infer that the Brisbane Registry of the Tribunal, in accordance with standard Tribunal practice, gave such notification to the applicant or to his representative shortly after the date of the decision to dismiss his application for review. The date of that decision was 17 December 1999 and it is common ground that the applicant did not make an application to the Tribunal for reinstatement of that application for review until 6 April 2000 when his letter of 24 March 2000 was received by the Tribunal (Exhibits A2 and A3 – see paragraphs 16 and 17 above). In those circumstances the Tribunal finds that the applicant did not apply to the Tribunal for reinstatement of the abovementioned application for review "within 28 days after receiving notification that the application ha(d) been dismissed", within the meaning and for the purposes of s42A(8) of the AAT Act. Because no proper application for reinstatement in accordance with s42A(8) of the AAT Act was made by the applicant, it follows that no power of reinstatement under s42A(9) of the Act arises in this case.
Application for Reinstatement – s42A(10) of the AAT ActSection 42A(10) of the AAT Act confers on the Tribunal a discretionary power to reinstate an application for review if "it appears to the Tribunal that [such] application has been dismissed in error". There have been conflicting decisions of the Tribunal as regards the meaning of the jurisdictional fact on which the existence of that discretionary power is conditioned – in particular, as regards the nature and source of the error that is required to have been made in dismissing the application. Clear guidance regarding the correct interpretation of the phrase "in error" in s42A(10) of the AAT Act has, however, recently been provided by the Full Court of the Federal Court of Australia in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385. The Full Court said (at 389 – 390):
"[23] Section 42A of the AAT Act, under subs (2) of which the tribunal acted
when dismissing Mr Brehoi's application to it, contains provisions in subss
(8)–(10) thereof which enable the reinstatement by the tribunal of an application
it has dismissed under that section. Those provisions are (relevantly) as follows:(8) If the Tribunal, under subsection (2), has dismissed an application . . ., the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application
...(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application . . .
[24] It will be noticed that, although s 42A(8) deals only with dismissals under
s 42A(2), s 42A(10) is not so limited. It therefore applies to dismissals, not only
under s 42A(2), but also under s 42A(1), (4) and (5).[25] The three provisions which we have set out in para 23 above were inserted
into the AAT Act in 1993 by the Administrative Appeals Tribunal Amendment
Act 1993 (Cth). As was made plain by the Attorney-General at the time (see, for
example, p2 of the Senate explanatory memorandum for the bill which became
the 1993 Act), most of the provisions to be inserted by the amending Act
(including the ones presently under discussion) were being enacted in order to
give effect to the recommendations of the Report of the Review of the
Administrative Appeals Tribunal, which report had been presented to both the
Attorney-General and the president of the tribunal in November 1991.[26] In that report, what became s 42A(8) and (9) had been dealt with together
and what became s 42A(10) had been dealt with separately.[27] As to what became s 42A(8) and (9), the report had identified as a problem
(see App 9, Proposal 28) the following: 'An application which has been
dismissed for failure to appear cannot at present be reinstated although such
failure is found to be excusable.' Its proposed amendments to overcome that
problem had been to provide (relevantly): first, that 'the applicant may apply to
the tribunal within 28 days of receipt of notification of dismissal for a direction that the dismissal be vacated'; and, second, that 'if the tribunal is satisfied that
it is appropriate to do so, it may so direct'.[28] As to what became s 42A(10), the report had identified as a problem (see
App 9, proposal 29) the following:The amendment proposed by proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if proposal 23 [which was that an applicant be permitted to 'discontinue' an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT.
In other words, the problem identified was the absence of a 'slip' rule. The
report's proposed amendment to overcome that problem had been to provide that
'the tribunal may vacate the dismissal of any application for review where such
dismissal has occurred through administrative error on the part of the tribunal'.[29] The Senate explanatory memorandum for the bill which became the 1993
Act, in explaining the clause which became, without debate or amendment,
s 42A(10), adopted (at p 11) the language which had been used in the report,
saying that the clause provided for the tribunal 'to reinstate an application which
has been dismissed through administrative error on the part of the tribunal'."
Given the uncertainty in the meaning of the phrase "in error" in s42A(10) of the AAT Act, it is appropriate to have regard to ss15AA and 15AB of the Acts Interpretation Act 1901 ("the AI Act"). Those sections relevantly provide:
"15AA Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…".
Subsection (2) of s15AB then lists, non-exhaustively, categories of material that may be considered, in accordance with subs (1), in the interpretation of a provision of an Act, including:
"…
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
…".
As the Full Federal Court noted in Brehoi (above), the Senate Explanatory Memorandum relating to the Bill which subsequently became the Administrative Appeals Tribunal Amendment Act 1993, whereby s42A(10) was inserted into the AAT Act, indicated (at p11, para 56) that the purpose or object of that provision was to authorise the Tribunal to "reinstate an application which has been dismissed through administrative error on the part of the Tribunal". There was no suggestion that s42A(10) was intended by the legislature to provide a means of correction by the Tribunal of errors of law made by it in dismissing an application for review.
Having regard to the purpose or object for which s42A(10) was inserted into the AAT Act, as indicated in the abovementioned Senate Explanatory Memorandum, that provision must, in accordance with s15AA of the AI Act, be construed in such a way as to promote that purpose or object. The appropriate construction of s42A(10) is, therefore, that the Tribunal's power to reinstate an application for review pursuant to that subsection is enlivened only where it appears to the Tribunal that the relevant application has been dismissed by reason of administrative error on the part of the Tribunal.
In the present case, if, as submitted by the applicant, the Tribunal dismissed his application in error on 17 December 1999 – and this Tribunal expresses no opinion on that matter – any error made by the Tribunal (of the kinds described in his submissions – see paragraph 37 above) would have been an error of law, and not a mere administrative error. There is, furthermore, no evidence before the Tribunal that the dismissal of the applicant's application for review on 17 December 1999 was the result of any administrative error on the part of the Tribunal. Accordingly, the Tribunal finds that the applicant's application for review was not "dismissed in error" within the meaning, and for the purposes, of s42A(10) of the AAT Act, on 17 December 1999, and the Tribunal, therefore, does not have jurisdiction under that subsection to reinstate the applicant's application for review.
Fresh Application for Review and Application for Extension of Time – s29(7) of the AAT ActAs a preliminary matter, the Tribunal must first determine whether it has jurisdiction to consider the fresh application for the review of the delegate's decision of 20 May 1997, and the accompanying application for an extension of time for the making of that application for review, lodged with the Tribunal by the applicant on 9 May 2000, or whether, having dismissed the applicant's previous application for review on 17 December 1999, it is functus officio by reason of s42A(6) of the AAT Act.
In support of his submission that the Tribunal had no such jurisdiction, Mr Macliver cited 3 recent decisions of the Tribunal – namely, Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916, Re Pham and Minister for Immigration and Multicultural Affairs [2000] AATA 1159 and Re Huynh and Minister for Immigration and Multicultural Affairs [2001] AATA 31 – in which Deputy President Block expressed the view that, by reason of s42A(6) of the AAT Act, an application for review which is dismissed by the Tribunal under the Act is taken to be "concluded" and it necessarily follows that a subsequent application for review of the same decision is not "competent". In Re Truong (above), Deputy President Block cited (at para 10(d)) G A Flick Federal Administrative Law, para 1412/10, where it is stated:
"The jurisdiction of the Tribunal to review a decision is exhausted by an order for dismissal and a subsequent application seeking to review the same decision is a nullity"
and (at para 10(f)) he expressed his agreement with that statement. He also commented that, by reason of the conferral of reinstatement powers on the Tribunal by the 1993 amendments to the AAT Act, the decisions of the Tribunal in Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 "became distinguishable".
In Re Nicholson (above) Deputy President Forgie (at 544) distinguished between the Tribunal's powers under s42A of the AAT Act to dismiss an application for review of a decision without proceeding to review that decision, and the Tribunal's power under s43 of that Act to make a decision following a merits review of the relevant reviewable decision. Deputy President Forgie concluded that, whereas in the event of a decision by the Tribunal following a review on the merits under s43 the Tribunal is then functus officio, in the event of a dismissal by the Tribunal of an application for review without proceeding to review the relevant decision on the merits, that is not the case and "the applicant may bring a fresh application to review that decision". In Re Mulheron (above) President O'Connor J (at 314) expressed agreement with Deputy President Forgie's analysis. The same view has been expressed, notwithstanding the 1993 amendments to s42A of the AAT Act, in D C Pearce (ed) Australian Administrative Law Service at para 270H where it is stated:
"Subsection 42A(6) says that if an application is dismissed and not reinstated 'the proceeding to which the application relates … is taken to be concluded'. This would not seem to prevent a fresh application being made to review the decision in question. It was held in Re Mulheron and Australian Telecommunications Corp (1991) 23 ALD 309 that a distinction must be drawn between the dismissal of an application after a decision on the merits and a dismissal on other grounds. In the former case the principles of estoppel arise: see [279A]. In the latter case, provided that the applicant can justify the grant of an extension of time to apply, the AAT has jurisdiction to hear a new application. See also Re Nicholson and Secretary, DSS (1990) 21 ALD 537 at 544;…".
This Tribunal is persuaded by, and adopts, the reasoning in Re Nicholson (above) and Re Mulheron (above) and does not accept the view of Deputy President Block in Re Truong (above) that the reasoning in those earlier decisions has been superseded or rendered "distinguishable" by the 1993 amendments to s42A of the AAT Act.
Accordingly, the Tribunal finds that the decision of the Tribunal on 17 December 1999 to dismiss the applicant's application for review of the delegate's decision of 20 May 1997 pursuant to s42A(2)(a) of the AAT Act, without proceeding to review that decision, does not prevent the applicant from making a fresh application to the Tribunal for a review of that decision and, if the Tribunal in the exercise of its discretion pursuant to s 29(7) of the AAT Act grants to the applicant the necessary extension of time for the making of such fresh application, the Tribunal will have jurisdiction to consider that application. The final issue is, therefore, whether, in the circumstances of the applicant's case, it is appropriate to grant to him such an extension of time until 9 May 2000 – that being the date on which he lodged with the Tribunal a fresh application for a review of the delegate's decision of 20 May 1997, and an application for an extension of time for lodging that application for review.
Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to extend the time (otherwise prescribed in s29) for making an application to the Tribunal for a review of a decision. That discretionary power is, in terms, unfettered or unstructured. The Tribunal, however, commonly has regard, in deciding whether to exercise that discretionary power in individual cases, to the general principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those principles were succinctly summarised by the Tribunal in Re Mulheron (above, at p314) as follows:
"(a) Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b) It is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested.
(c) Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d) Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e) The merits of the substantial application are relevant.
(f) Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant."
General considerations of fairness and equity are also relevant to the exercise of the discretion conferred by s29(7) of the AAT Act: Hunter Valley Developments (above) at 348; Maric v Comcare (1993) 40 FCR 244 at 249.
Although the provision by an applicant of an acceptable explanation for his or her delay in making an application to the Tribunal for a review of a decision is not an essential pre-condition of a favourable exercise of the Tribunal's discretionary power to extend the time for the making of such application, the provision of such an explanation will generally be expected by the Tribunal in support of an application for an extension of time, and a failure by an applicant to provide such an explanation will be a relevant factor for the Tribunal to take into account in deciding whether it is appropriate to grant the relevant extension of time: Comcare v A'Hearn (1993) 45 FCR 441 at 444.
In the present case, the period from 20 May 1997 (the date of the relevant reviewable decision by the delegate of the respondent) until 17 December 1999 (the date of the Tribunal's ultimate decision to dismiss the applicant's application for review of that reviewable decision) was occupied by the following events:
the applicant's initial application to the Tribunal for a review of that decision;
the Tribunal's decision to affirm that decision on the merits;
the applicant's appeal to the Federal Court of Australia against the Tribunal's decision;
the decision of the Federal Court, at first instance, to dismiss the applicant's appeal;
the applicant's appeal to the Full Court of the Federal Court;
the decision of the Full Court to allow the applicant's appeal and remit the matter to the Tribunal;
the Tribunal's decision to dismiss the remitted application for review.
There is obviously no question of any delay, or "resting on his rights" and taking no action to contest the delegate's decision of 20 May 1997, during that period. The real matter for the Tribunal's consideration is whether, in relation to the period after 17 December 1999, there is an acceptable explanation for the applicant's not lodging a fresh application for review with the Tribunal until 9 May 2000.
According to the applicant's own evidence:
in January 2000 he and his counsel, having each contacted the Brisbane Registry of the Tribunal, discussed several options that might be pursued, including an appeal to the Federal Court, an application to the Tribunal for reinstatement of his application for review, and an "out of time" application for review, but none of those options was pursued at that stage;
in February/March 2000 he instructed AVMS to make inquiries of the Brisbane Registry of the Tribunal on his behalf and was advised by AVMS that it was possible to re-apply to the Tribunal;
he "eventually got round to actually putting it in writing" on 24 March 2000 when he wrote to the Brisbane Registry of the Tribunal seeking "leave to revive the application".
Thereafter, he received a letter dated 13 April 2000 from a Deputy Registrar of the Tribunal advising him that he "may still lodge a fresh application to have the decision of the Minister for Immigration and Multicultural Affairs reviewed" but that "the application would now be well out of time and consequently [he] would have to also apply for an extension of time to lodge". The relevant application forms were enclosed with that letter. The applicant replied by letter dated 28 April 2000 enclosing the completed application forms but that letter was not received by the Tribunal until 9 May 2000.
Having regard to the abovementioned circumstances, the Tribunal does not regard the applicant's explanation for his delay in lodging with the Tribunal a fresh application for review as satisfactory. He was not inexperienced as regards the Tribunal's procedures and he was, at all material times, in communication with, and in receipt of advice from, experienced legal counsel who advised him in early January 2000 that he could "reapply to the AAT for review in an out of time application" (see para 20 of his written statement (Exhibit A1) set out in paragraph 26 above). On his own evidence, there were no physical or practical circumstances – including his being taken into custody on 15 February 2000 – which would have prevented him from lodging his application for review substantially earlier than he did. Even if the Tribunal were to regard the applicant's letter dated 24 March 2000 (Exhibit A2) as, in effect, constituting a fresh application for review, the Tribunal, for the same reasons as abovementioned, is not satisfied that that letter was sent to the Tribunal by the applicant as soon as practicable, or within a reasonable time, after the applicant became aware on 17 December 1999 that his previous application for review had been dismissed by the Tribunal on that date.
Furthermore, on the material before the Tribunal, there are no other circumstances or considerations which, in the Tribunal's opinion, would warrant the granting of the necessary extension of time in the interests of justice. In particular, the Tribunal is not presently in a position to assess the merits of the applicant's fresh application for review; suffice it to say that there is no material before the Tribunal which indicates that that application clearly has merit. Nor, on the other hand, is there any material before the Tribunal regarding any prejudice that might be caused to the respondent or to the public by the granting to the applicant of the necessary extension of time, or regarding any unfairness as between the applicant and other persons in similar circumstances that the grant of such extension of time might involve.
Having regard to all the circumstances of the applicant's case - including, in particular, his failure to lodge with the Tribunal his fresh application for review as soon as practicable, or within a reasonable time, after 17 December 1999 and his failure to provide to the Tribunal a satisfactory explanation therefor – the Tribunal is not satisfied that those circumstances make it appropriate to grant to the applicant, pursuant to s29(7) of the AAT Act, the necessary extension of time for the lodging of that fresh application for review. Accordingly, the Tribunal refuses to grant that extension of time to the applicant.
It follows, from the Tribunal's refusal to grant the necessary extension of time for the lodging of the applicant's fresh application for review, that the Tribunal does not have jurisdiction to consider and decide that application for review and it must, therefore, be dismissed.
DecisionFor the above reasons, the Tribunal decides that:
(a)it has no jurisdiction under subs (9) or (10) of the AAT Act to reinstate the applicant's application for review of the decision made by the respondent's delegate on 20 May 1997, and, accordingly, the applicant's application for reinstatement of that application for review is unsuccessful;
(b)the applicant's application for the grant, pursuant to s29(7) of the AAT Act, of an extension of time until 9 May 2000 for the making of a fresh application to the Tribunal for a review of the decision made by the respondent's delegate on 20 May 1997 is refused, and the applicant's application for review of that decision, which was lodged with the Tribunal on 9 May 2000, is therefore dismissed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed:
.................................(sgd S Railton)..................................
AssociateDate of Hearing 5 April 2001
Date of Decision 11 June 2001
Counsel for the Applicant In person
Solicitor for the Applicant
Counsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
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