Grass and Minister for Immigration and Citizenship

[2011] AATA 495

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2795

GENERAL ADMINISTRATIVE DIVISION		)
Re		Corazon Grass

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date19 July 2011

PlaceSydney

Decision The application for an extension of time is refused.

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

Senior Member

CATCHWORDS

CITIZENSHIP – approval revoked on ground applicant no longer of good character – application for review withdrawn

PRACTICE & PROCEDURE – application to reinstate after withdrawal – applicant represented – whether power to reinstate application – whether application could be treated as an application for extension of time – application for extension of time refused

Administrative Appeals Tribunal Act 1975, ss 29, 42A

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652

ReMulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537

Hunter Valley Developments v Cohen (1984) 3 FCR 344

Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371

REASONS FOR DECISION

19 July 2011	Senior Member Jill Toohey
Background

1.      This matter concerns whether an application to the Tribunal can be reinstated after it has been withdrawn; if not, whether the applicant can make a further application and, if so, whether she should be granted an extension of time to do so.

2.      The applicant, Corazon Grass, is a citizen of the Philippines.  She is married to an Australian citizen.  In February 2009, she applied for Australian citizenship.  Her application was approved but, on 5 July 2010, before she had satisfied the requirement to make a pledge of commitment, the Minister for Immigration and Citizenship (the Minister) cancelled the approval on the ground that Ms Grass was no longer considered of good character. 

3.      Ms Grass has had dealings with the Department of Immigration and Citizenship (the Department) over the course of several years.  It is not necessary to set out the history in detail other than to say that the Minister alleges certain conduct on Mrs Grass’s part which makes her not of good character and, in turn, she and her husband are aggrieved by their dealings with the Department.

4.      On 8 July 2010, Ms Grass applied to this tribunal for review of the Minister’s decision to cancel approval of her citizenship application.  She attended several preliminary conferences and directions hearings. At times she was represented or assisted by a solicitor.  She was also assisted throughout the proceedings by her husband. 

5. On 2 May 2011, the Tribunal received a letter from Ms Grass’s then solicitor advising that he had received instructions to withdraw her application. Accordingly, on 2 May 2011, the Tribunal dismissed her application pursuant to s 42A (1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

6.      On 6 June 2011, the Tribunal received a letter from Ms Grass asking for her application to be reinstated or, alternatively, for an extension of time in which to lodge a new application. 

The issues

7.      Ms Grass’s application raises the following issues:

(i)whether her application can be reinstated;

(ii)if not, whether she can lodge a fresh application;

(iii)if a fresh application can be lodged, whether she can be given an extension of time to do so.

Can the application be reinstated

8. Section 42A of the AAT Act concerns the discontinuance, dismissal and reinstatement of applications. Sub-sections 42A (8), (9) and (10) concern reinstatement.

9. Sub-sections 42A (8) and (9) concern reinstatement of an application after dismissal under s 42A (2) of the Act for failure by the applicant to appear before the Tribunal. In such cases, the applicant may apply within 28 days of notification of the dismissal for reinstatement of the application, and the Tribunal may reinstate the application if it considers it appropriate to do so.

10. Ms Grass’s application was not dismissed under s 42A (2). It follows that the power in s 42A (9) is not enlivened.

11. An application may also be reinstated under s 42A (10) which provides:

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.

12. As the language of the provision makes clear, the discretion to reinstate under s 42A(10) relies on the identification of an error in the dismissal.

13.     The meaning of dismissed in error was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652. Prior to this decision, there had been different views as to whether the meaning of error in s 42A(10) was limited to an administrative error on the part of the Tribunal. In Goldie the Full Federal Court decided that the expression dismissed in error comprehended any error in the application of s 42A that led to the dismissal.

14.     Mr Grass has explained that, in the course of preliminary proceedings before the Tribunal, a number of matters were raised on behalf of the Minister which, in Mr and Ms Grass’s view, indicated administrative and other errors on the part of the Department.  Some of these matters relate to Ms Grass’s application for citizenship; others concern her other dealings with the Department.  None are matters that the Tribunal could correct, or deal with except in passing, in considering Ms Grass’s substantive application. 

15.     Ms Grass says that, at a preliminary conference at the Tribunal, the conference registrar suggested that there were aspects of her case that should be investigated by the Commonwealth Ombudsman.  When she contacted the Ombudsman, she was advised that the matters would not be investigated while the proceedings were on foot in the Tribunal. At this point, Mr and Ms Grass, who were represented by a solicitor, decided they would withdraw their application to the Tribunal and let the Ombudsman’s investigation proceed.

16.     Ms Grass does not assert any error on the part of the Tribunal in dismissing her application.  Her decision to withdraw was conveyed by her solicitor who has extensive experience in immigration law.  There is nothing to suggest that he acted other than in accordance with her instructions.  Nor is there anything to suggest that her decision to withdraw was made under a misapprehension about its implications.        

17. As there is nothing to suggest that the dismissal of Ms Grass’s application by the Tribunal involved any form of error, administrative or otherwise, the Tribunal has no power to reinstate her application under s 42A (10).

Can Ms Grass lodge a fresh application

18. Sub-section 42A(6) of the AAT Act provides:

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.

19.     Proceeding includes an application to the Tribunal for review of a decision:      s 3 of the Act.

20.     The effect of the dismissal of Ms Grass’s substantive application is that that proceeding is concluded unless reinstated.  However, this of itself would not seem to preclude a fresh application: see ReMulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 at 544.

21.     I do not propose to deal further with this question because, even allowing that a fresh application can be made, I am not satisfied, in all the circumstances, that it would be reasonable to grant Ms Grass an extension of time in which to do so.

Would an extension of time be reasonable in all the circumstances

22. As a general rule, an application for review must be given to the Tribunal no later than 28 days after an applicant has been given the decision: s 29 (2). The Tribunal may extend the time for making an application if, in all the circumstances, it is satisfied that it is reasonable to do so: s 29 (7) of the AAT Act.

23.     The Minister submits, and I agree, that Ms Grass’s application for reinstatement should be treated as encompassing an application for extension of time to lodge a fresh application.

24.     The decision under review was made on 5 July 2010.  Ms Grass’s original application for review was within time, but a fresh application would now be out of time by approximately a year.  The Minister accepts that the period up until 2 May 2011 is accounted for because Ms Grass was pursuing her application in the Tribunal.  However, the Minister contends that the period of delay after 2 May 2011, when Ms Grass withdrew her application, and 6 June 2011 when she sought reinstatement, is not adequately explained and weighs against granting an extension of time.

25.     The Minister further submits that Ms Grass’s decision to pursue her grievances against the Minister with the Commonwealth Ombudsman in preference to the Tribunal should not be regarded as excusing the delay.

26.     In Hunter Valley Developments v Cohen (1984) 3 FCR 344, Wilcox J described at 348-349 the factors which guide the discretion to extend time as follows:

(a)      whether there is an acceptable explanation for the delay;

(b)whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;

(c)       any prejudice to the respondent;

(d)public considerations including the unsettling of others and established practices;

(e)      the merits of the substantive application;
(f)       fairness between the applicant and others in a like position; and
(g)      whether it is fair and equitable in all the circumstances to extend time.

27.     These factors are not exhaustive and are only intended to guide; no one factor is determinative and all may be relevant; the weight given to each factor is a matter for the Tribunal: Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371 at 376- 379.

28.     I think it is reasonable to regard the delay in making a fresh application (assuming a fresh application can be made) to be relatively short.  I am not persuaded that there would be any real prejudice to the Minister in allowing an extension.  However, I am not satisfied, in all the circumstances, that it is reasonable to grant Ms Grass an extension of time. 

29.     The Minister contends that Ms Grass’s substantive application has limited prospects of success because of strong evidence indicating that she has submitted fabricated documents to the Department.  Mr and Ms Grass dispute that contention.  I have not examined the documents in any detail and make no finding about the prospects of success of a fresh application.

30.     An extension of time should be refused because there are sound policy reasons for not allowing parties to withdraw an application and make a fresh application without very good reason.  As already noted, Ms Grass was represented by an experienced solicitor.  She made a decision at the time that her matter was better dealt with by the Commonwealth Ombudsman.  Finality of decision-making is an important consideration and it would be unfair to others in a like position to grant an extension.

31.     In reaching this conclusion I have taken into account that nothing prevents Ms Grass from making a further application for citizenship at any time.  If such application is refused she could again seek review by the Tribunal.  She is not seriously prejudiced by refusing to grant the extension and any prejudice is outweighed by more important public considerations.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed:         ............................[sgd]...................................................
           Diana Weston, Associate

Date of Hearing  5 July 2011
Date of Decision  19 July 2011
Applicant  Self-represented   
Solicitor for the Respondent     Katherine Hooper, DLA PIPER AUSTRALIA