Gunawan and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 798
•13 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 798
ADMINISTRATIVE APPEALS TRIBUNAL N2002/951; N2002/952;
N2003/979; N2003/981.
GENERAL ADMINISTRATIVE DIVISION
Re:Carfian Gunawan and Prissilia Gunawan
Applicants
And: Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal P.J. Lindsay, Senior Member
Date: 13 August 2003
Place: Sydney
Decision:The Tribunal orders the reinstatement of the applications in N2002/951 and N2002/952. The applications in N2003/979 and N2003/981 are dismissed.
…………………………………….
P.J Lindsay, Senior Member
© Commonwealth of Australia (2003)
CATCHWORDS
MIGRATION – applications for review of decision to cancel business skills visa – applications withdrawn by applicants and dismissed by Tribunal – application for re-instatement of applications – applications for extension of time to make an application for review – applications reinstated
Administrative Appeals Tribunal Act 1975 ss.29, 42A
Migration Act 1958 s.134
Australian Citizenship Act 1948 s.13Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Re Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916
Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772
Commissioner of Taxation v Brown 99 ATC 4,852REASONS FOR DECISION
13 August 2003 P.J. Lindsay, Senior Member
1. On 6 June 2002 a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) cancelled the business skills visa that had been granted to Silvan Hartanto Gunawan. The respondent considered that Mr Gunawan had not met the requirements of s.134 of the Migration Act 1958. Consequently, pursuant to s.134(4) of the Migration Act 1958, on 6 June 2002 the respondent cancelled the secondary business skills visas that were held by Carfian Gunawan and his sister Prissilia Gunawan, the applicants in this matter.
2. The applicants and their father Silvan Hartanto Gunawan applied to the Tribunal on 4 July 2002 for review of the respondent’s decisions cancelling their visas. Some months later their agent, Rukma Paramita of A1 Migration Services, informed the Tribunal by letter dated 28 October 2002 that he was instructed “ … to withdraw all of the above application for review”. An officer of the Tribunal’s Sydney registry wrote to the applicants, care of their agent A1 Migration service, on 28 October 2002 as follows:
I confirm receipt of your request pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on 28 October 2002 that the above application be withdrawn.
Under section 42A(1B) of the AAT Act, the effect of the notification is that the Tribunal has dismissed the application without proceeding to review the decision.
Please treat this letter as official confirmation from the Tribunal that the application was finalised by being dismissed on 28 October 2002.
3. At the hearing of this matter there were four applications before the Tribunal:
· N2002/951, being an application by Carfian Gunawan for reinstatement of the application for review of the respondent’s decision to cancel his business visa.
· N2002/952, being an application by Prissilia Gunawan for reinstatement of the application for review of the respondent’s decision to cancel her business visa.
· N2003/981, being an application by Carfian Gunawan for an extension of time to make an application for review of the respondent’s decision to cancel his business visa.
· N2003/979, being an application by Prissilia Gunawan for an extension of time to make an application for review of the respondent’s decision to cancel her business visa.
The respondent opposed each application.
4. Mr R Turner, solicitor, appeared for the applicants at the hearing. The respondent was represented by Mr G Peek from the office of the Australian Government Solicitor. The applicants gave evidence at the hearing.
evidence
5. The following documents were accepted in evidence in each application without objection by the respondent:
-Outline of evidence by Carfian Gunawan dated 18 July 2003. Cafian confirmed the contents of the document to be true, save for par 13 which he said needed to be corrected so that it reads as follows:
Before my application was withdrawn, I went to the DIMIA at 26 Lees Street, Sydney, and spoke to a woman behind the counter. To the best of my recollection, the following conversation took place:
I said:“my permanent residence visa has been cancelled but I am studying here. Can I apply for a student visa.”
After looking at her computer,
She said:“it is not necessary for you to apply for a student visa because your citizenship application has been approved. You just have to wait for the ceremony.”
-Outline of evidence by Prissilia Gunawan dated 18 July 2003. At the hearing Ms Gunawan confirmed the contents of the document to be true.
- Statement of Andrew Lam dated 16 July 2003.
-Letter dated 16 July 2003 from Yulianty Tambun to the Tribunal.
-Letter dated 17 July 2003 from Mr Erwin Marzukie of Uniland Migration.
-Statement of 16 July 2003 made jointly by Lyn Lam and Tom Lam.
-Letter dated 23 September 2002 from the Minister for Citizenship and Multicultural Affairs to Carfian Gunawan.
-Letter dated 30 May 2003 from the State Director (NSW), Department of Immigration and Multicultural and Indigenous Affairs (the Department) to Carfian Gunawan.
-Letter dated 23 September 2002 from the Minister for Citizenship and Multicultural Affairs to Prissilia Gunawan.
-Letter dated 30 May 2003 from the State Director (NSW) of the Department to Prissilia Gunawan.
6. Carfian Gunawan’s evidence is that he is an Indonesian of Chinese descent. He moved to New Zealand from Indonesia in 1993 when he was aged 14, and came to Australia in 1995 to continue his schooling. Since then he has successfully completed a Certificate in Information Technology from Spherian College and expects to be granted a Diploma in Information Technology in October 2003. Since leaving Indonesia he has returned only twice, firstly in 1995 and then in 1999 in connection with the grant of his secondary business visa on 16 February 1999. He stated in his outline of evidence dated 18 July 2003 (Exhibit A1 in N2002/951 and N2003/981; Exhibit A2 in N2002/952 and N2003/979) that:
During the racial riots in Indonesia in September 1998 our family’s home and our Church were burnt down. I have been told by family in Indonesia that resentment and harassment of people of Chinese background continues in Indonesia.
As a practising Christian, I do not feel that I can worship in Indonesia freely and without harassment.
He stated that he is in a steady relationship with Ms Yulianty Tambun, a permanent resident of Australia. They intend to become engaged in 2004. Ms Yulianty wrote a letter dated 16 July 2003 (Exhibit A4 N2002/951 and N2003/981) to be used in these proceedings and stated that she and Carfian intended to marry within the next eighteen months. She added “Both Carfian and I, foresee our future together in this country.”
7. Carfian Gunawan’s outline of evidence stated that on or about 7 June 2002 he was notified in writing by the respondent that his business visa had been cancelled. The respondent’s letter noted that full consideration had been given to representations that cancellation would result in extreme hardship to him and other members of his family. He was informed that the cancellation of his visa would take effect on the latest of: 28 days from receipt of the notification; or if he applied to the Tribunal for review of the cancellation, 28 days after the Tribunal’s decision; or if his father applied to the Tribunal for review, 28 days after the Tribunal’s decision. He stated that on or about 24 September 2002 he received a letter from the Minister for Citizenship and Multicultural Affairs (the Minister). The following was contained in that letter of 23 September 2002 (Exhibit A7 in N2002/951 and N2003/981):
I am pleased to tell you that your application for the grant of Australian citizenship has been approved. …
The final step in becoming an Australian citizen is making a Pledge of commitment at a citizenship ceremony. You should note that you will not acquire the legal status of an Australian citizen until you make this pledge.
…
If you have any enquiries in regard to your ceremony arrangements or if your address has changed since you lodged your application, please contact the Citizenship Information Line on 131880 quoting the reference number at the top of this letter.
…Generally, citizenship ceremonies are scheduled within 3 months of approval but waiting periods vary between local councils. …
8. After receiving that letter Carfian Gunawan stated that he called the information line to find out the date of his citizenship ceremony. He was informed that the ceremony would be arranged by the local council and should take place approximately three or four weeks from the date of the approval letter.
9. Carfian Gunawan’s outline of evidence stated that his parents decided that, because his and his sister Prissilia Gunawan’s citizenship applications had been approved, the applications to the Tribunal for review of the decision to cancel their business visas should be withdrawn.
10. He made further contact with the Department, in the circumstances referred to in paragraph five of these reasons, some time before 28 October 2002, the date his agent wrote to the Tribunal to withdraw the applications. He stated that he contacted the Department again in December 2002. He was given confirmation of the earlier advice from the Department that even though his business visa had been cancelled, he did not have to apply for another visa because his citizenship application had been approved. For the purposes of these proceedings, Erwin Marzukie of Uniland Migration, registered migration agents, made a statement on 17 July 2003 (Exhibit A5 in N2002/951 and N2003/981) wherein he noted that he acted as a migration agent for Carfian in relation to his application for Australian citizenship. Mr Marzukie stated that he made enquiries of the Department as to the timing of the citizenship ceremony as follows:
While waiting for the letter for the date of ceremony, I had made at least two inquiries. In each occasion, I was told that schedule of ceremony depended on the availability of places in his own council.
In my second last conversation with an officer of citizenship department, I was advised that Mr Gunawan should not have been held for so long and that he would put him in the priority.
A few months later Mr Gunawan received a letter advising that his citizenship had been refused.
11. Carfian Gunawan stated that he received a letter from the Department on or about 1 June 2003 informing him that his application for a grant of Australian citizenship had not been approved. The brief letter from the Department dated 30 May 2003 (Exhibit A8 in N2002/951 and N2003/981) advised:
Section 13(1)(a) of the Australian Citizenship Act 1948 provides that applicants for the grant of Australian citizenship must satisfy the Minister that they are a permanent resident of Australia.
An officer of this Department delegated by the Minister has carefully assessed your application but has determined that you do not satisfy this requirement. Your application has therefore been refused.
Carfian Gunawan stated that on receipt of the Department’s letter, he took steps to ensure that his application for citizenship would be granted. He instructed his solicitor to apply to the Tribunal for review of the decision to cancel his business visa. This led to the applications for reinstatement. In addition, the alternative course was taken to apply for an extension of time to seek a review of the respondent’s decision to cancel his business visa.
12. Prissilia Gunawan’s outline of evidence (Exhibit A1 in N2002/952 and N2003/979; Exhibit A2 in N2002/951 and N2003/981) stated that she came to Australia in 1996 when she was aged 15. Currently she is enrolled in a TAFE real estate course. She has returned to Indonesia four times. While there to visit her parents during 2000 she stated that she was alarmed to see “… Javanese crowds in the streets chanting ‘Kill the Chinese, Kill the Chinese’”. She said one of her friends returned to Indonesia during the riots taking place in Jakarta in 1998 and was killed. For the past fifteen months Prissilia Gunawan has lived in a de facto relationship with Andrew Lam, an Australian citizen, at his parents’ house. Shortly after moving in with Mr Lam she applied for Australian citizenship because she felt her future was in this country with him. She said “we were so happy when I received the letter advising me that my citizenship had been approved”, a reference to the letter dated 23 September 2002 (Exhibit A7 in N2002/952 and N2003/979) from the Minister. Mr Lam’s parents Lyn and Tom, wrote a letter dated 16 July 2003 (Exhibit A6 in N2002/952 and N2003/979) in which they stated that Prissilia Gunawan had become a much loved and respected part of their family. They said they were happy to see their son in love and planning his future with Prissilia Gunawan.
13. Prissilia Gunawan stated that in the period subsequent to being informed she would be granted citizenship, she accompanied her brother when he went to the Department to enquire about their citizenship ceremony and whether they needed to apply for student visas:
We didn’t know what to do or understand what had happened to us which is why we went to the DIMIA.
14. The Department wrote to her on 30 May 2003 and informed her that her citizenship application had not been approved (Exhibit A8 in N2002/952 and N2003/979). Prissilia has subsequently taken similar action to her brother, Carfian. She is applying to the Tribunal for reinstatement of her application to review the decision to cancel her business visa. Also, she has applied for an extension of time to make an application for review of that decision.
applicable legislation
15. Section 42A of the Administrative Appeals Tribunal Act 1975 (the Act) provides for the dismissal of applications for review in the following circumstances: where the parties consent (s.42A(1)); where the applicant discontinues or withdraws the application (s.42A(1A)); where the applicant fails to appear (s.42A(2)); where the Tribunal lacks jurisdiction to determine the application (s.42A(4)); and where the applicant fails within a reasonable time to proceed with the application or comply with a direction by the Tribunal (s.42A(5)). The Tribunal has the power to re-instate an application that has been dismissed. The applicants in this matter contend that the Tribunal has such power by reason either of s.42A(9) or s.42A(10). Because this matter depends very much on the proper construction of a number of provisions in s. 42A, it is appropriate to set out the section in full:
42ADiscontinuance, dismissal, reinstatement etc. of application
(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
(1A)A person who has 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.
(1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.
(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.
(3)For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing, conference, mediation or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A.
(4) If:
(a)a person makes an application to the Tribunal for a review of a decision; and
(b)the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision.
(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;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.
(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.
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.
(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.
16. Pursuant to s.29(7) of the Act, the Tribunal at its discretion may extend time for the making of an application for a review of a decision; ss.29(7) and (8) provide:
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
17. A consequence of cancelling a person’s business visa is the cancellation of certain business visas held by members of the person’s family unit pursuant to s.134(4) of the Migration Act 1958:
(4) Subject to subsection (5) and to section 135 if:
(a)the Minister cancels a person's business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person's business permit or business visa by giving written notice to that person.
However, s.134(5) provides that consequential cancellation is not automatic if the family member would suffer extreme hardship:
(5)The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
Section 134(8) explains when the decision to cancel the business visa will come into effect:
(8) A cancellation under this section has effect on and from:
(a)if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(b) if:
(i)the person's visa was cancelled under subsection (4); and
(ii)the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person's visa;
the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(c)the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
findings and consideration
18. Mr Turner firstly addressed the application for reinstatement and submitted that the Tribunal has power under either s.42A(9) or s.42A(10) of the Act to reinstate the applications for review of the decision to cancel the business visas. He submitted that s.42A(9) was not restricted in its operation only to situations where s.42A(8) applied. As for s.42A(10), he argued that the applicants withdrew their applications because they received erroneous advice from the Department’s counter staff. The advice given was that a student, whose application for citizenship has been approved, need not apply for a student visa even though the student is not a permanent resident. Mr Turner referred to s.13 of the Australian Citizenship Act 1948 which provides, broadly, that citizenship will not be granted to a person unless he or she is a permanent resident. The counter staff did not inform Carfian Gunawan of this requirement. Nor did they inform him that withdrawal of the application to the Tribunal would result in the respondent’s decision to cancel his business visa coming into effect, and thus bring to an end his status as a permanent resident.
19. If the application for reinstatement were refused, Mr Turner submitted that it was appropriate for the Tribunal to exercise its discretion in s.29(7) of the Act and grant the applicants an extension of time to make fresh applications for the review of the respondent’s decision to cancel their business visas. He referred to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 which summarises the guiding principles for the Tribunal when considering whether to exercise the discretion.
20. For the respondent it was submitted that s.42A(9) operated only in the circumstances where s.42A(8) was engaged, which was not the case here because the applications were not dismissed under s.42A(2). Mr Peek contended that the power in s.42A(10) was not available to the Tribunal because what he described as a jurisdictional fact, or pre-condition, was missing. In his submission s.42A(10) operates only where an application has been dismissed in error, the error having been made by the Tribunal, but not where the error was made by an applicant. In this regard he cited the Full Federal Court’s judgment in Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367. Mr Peek submitted that if the Tribunal were to find that the power in s.42A(10) is available, then as a discretionary power, the Tribunal ought have regard to the considerations relevant to the exercise of the discretion in s.29(7) and he referred to the decision of Deputy President Purvis in ReTismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322. He contended that, in relation to both s.42A(10) and s.29(7), the Tribunal should not exercise the discretion because on the merits, the applicants would not succeed in establishing ‘extreme hardship’ as that expression has been interpreted by the Tribunal in decisions such as Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899.
21. The Tribunal finds that the letter written on 28 October 2002 by Rukma Paramita, as agent for the applicants and their father Silvan Hartanto Gunawan, to the Tribunal was valid notification under s.42A(1A) that each application was withdrawn. Consequently, s.42(1B) had the effect of deeming the Tribunal to have dismissed the applications without proceeding to review the decision to cancel the business visas, and the Tribunal so finds. By reason of s.42A(6), dismissal of the applications had the effect of deeming the proceedings to be concluded, unless the applications are reinstated under s.42A(9) or s.42A(10). The applicant’s solicitor applied in writing on 4 July 2003 for the applications to be reinstated.
22. In relation to the power in s.42A(9) to reinstate an application for review, the Tribunal agrees with the view expressed by Deputy President Block in Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916 at [9] that s.42A(9) is linked to s.42A(8), given sub-section (9)’s reference to ‘the application’ and notes that Goldie at [24] supports such a construction. Thus the power in s.42A(9) is not available because an application for reinstatement made under s.42A(8) is restricted to the situation where an application for review was dismissed pursuant to s.42A(2). Here, the Tribunal is taken to have dismissed the applications under s.42A(1B).
23. As for reinstatement pursuant to s.42A(10), the Tribunal must be satisfied that the application has been dismissed in error. The joint judgment of Wilcox and Downes JJ in Goldie at [28] states that the only limitations in s.42A(10) are “(i) that the Tribunal has dismissed the application; and (ii) that the act of dismissal must be attended with error.” In deciding not to follow Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772, an earlier decision of the Full Court that had held that the error referred to in s.42A(10) must be an administrative error, their Honours noted that the language of the provision differed from that employed in the relevant Explanatory Memorandum circulated at the time that s.42A(10) was introduced, and said:
[29] We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".
On this point Carr J agreed with the joint judgment, though supporting his opinion on broader grounds:
[77] In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.
24. The applicants’ uncontradicted evidence is that subsequent to receiving the Minister’s written advice, dated 23 September 2002, that their applications for citizenship had been successful, they made enquiries of the Department about the expected timing of the citizenship ceremonies. Carfian Gunawan’s evidence is that at some point prior to their withdrawing the applications for review on 28 October 2002, he asked Departmental counter-staff whether he needed to apply for a student visa because his permanent residence visa had been cancelled. The Tribunal finds, however, that until the application was withdrawn, the respondent’s decision to cancel their business visas had not come into effect (s.134(8) of the Migration Act 1958). Carfian Gunawan’s outline of evidence referred to the enquiries officer advising him, after first looking at her computer, that it was not necessary to apply for a student visa because his citizenship application had been approved. Mr Peek asserted that the counter-staff would have dealt with Carfian Gunawan’s enquiry as being by a person who was still a permanent resident. The Tribunal is satisfied that the response by the enquiries officer at this time was accurate because the cancellation of Carfian Gunawan’s business visa had not become operative. His status as a permanent resident, essential for citizenship, had not been affected and therefore he was not required to apply for the student visa. Carfian Gunawan did not ask what would be the effect on his citizenship application if he were to withdraw his application to the Tribunal. His and Prissilia Gunawan’s action in withdrawing their applications was not the result of incorrect advice from counter-staff.
25. It does not follow, however, that the decision to withdraw the applications was not made in error. Mr Peek submitted that the applicants withdrew their applications because they believed they would be granted citizenship as a matter of course and thus their applications were unnecessary. He urged the Tribunal to infer that their migration agent would have provided accurate advice as to the effect of withdrawal on their citizenship applications and despite such advice, they went ahead and so acted imprudently. Taking into account the evidence and the submissions, the Tribunal is satisfied that the applicants’ decision to withdraw was primarily due to their reliance upon the Minister’s letter. As stated by Carfian Gunawan, the applicants’ parents decided that the applications should be withdrawn. His evidence, which the Tribunal accepts, is that the parents took that action based on the Minister’s letter. By 23 September 2002, the date of that letter, the applications to the Tribunal for a review of the respondent’s decision to cancel the business visas had been on foot for nearly three months. The Tribunal is satisfied that it would be reasonable for the applicants to expect that the Minister’s letter would refer to the potential impact of the cancellation of the business visas on their application for citizenship. While that letter referred to the necessity to make the pledge of commitment at a citizenship ceremony, there was no mention of the importance of being a permanent resident and the effect on that status if they withdrew their applications in respect of the business visas. The applicants’ failure to ask the counter-staff about the consequences of withdrawing their applications to the Tribunal should be assessed in context. The Tribunal is satisfied that the applicants would not have knowingly jeopardised their applications for citizenship. The Tribunal finds that the withdrawal of the applications was a mistake, an act taken in error.
26. It should be noted that in a case to which s.42A(1A) applies, the Tribunal does not dismiss the application, as it does in the situations to which s.42A(1), 42A(2), 42A(4) and 42A(5) refer. By contrast, where an applicant notifies the Tribunal that his or her application is withdrawn, s.42(1B) deems the Tribunal to have dismissed the application. The dismissal is the direct product of an applicant’s act of withdrawing their application. In the present case, any error associated with such a dismissal will be that of the applicants or their agent and cannot be attributed to the Tribunal. It is clear, however, from Goldie that the error inducing the Tribunal to dismiss a matter does not have to have originated in the Tribunal. For example, the majority referred to an error on the part of an applicant’s adviser as being covered by s.42A(10) and Carr J considered that any error would suffice. There is no reason to exclude an error on the part of an applicant. The Tribunal finds, therefore, that there is power available to it in s.42A(10) to reinstate the applications.
27. In considering whether to exercise the discretion in s.42(10) the Tribunal should have regard to the object of the provision. The passage from Carr J’s judgment in Goldie quoted above held that where a matter has been dismissed summarily in error, s.42A(10) provides an informal and convenient mechanism for bringing the matter back to the Tribunal for consideration on the merits. In a case of this kind, the Tribunal considers it appropriate to apply the guiding principles that are referred to in deciding whether to exercise the discretion to extend time for making an application. The Tribunal is mindful of the following matters in considering whether to exercise its discretion:
· the Minister’s letter of 23 September 2002 would allow a reasonable person to infer that the grant of citizenship was a formality. On enquiry at the counter this belief was confirmed. There was no warning, however, about the need to continue with the applications for review of the respondent’s decision to cancel the business visas. The Tribunal, therefore, accepts the submission that there is an acceptable explanation for the applicants’ decision to withdraw.
· in taking into account public considerations such as the interests of other people concerned, the Tribunal is mindful of the unsettling effect that will be caused to the lives of Mr Lam and his family, in Prissilia Gunawan’s case, and to Ms Tambun who has formed a close relationship with Carfian Gunawan.
· there was no evidence of there being any unfairness as between the applicants and others in a similar position.
· the advice given by counter-staff to Carfian Gunawan on his enquiry in December 2002 was incorrect. By that time the review applications had been withdrawn. Thus it was incorrect to tell him that, as his application for citizenship had been approved, he did not have to apply for another visa. When informed in early June 2003 about the refusal of their citizenship applications the applicants did not rest on their rights. Their solicitor lodged an application with the Tribunal on 16 June 2003.
· Mr Peek conceded that if the applications were reinstated the respondent would not suffer any prejudice, although he did submit that the interests of finality should be taken into account and he referred to some limited increase in administrative procedures caused when a case becomes active again.
· it was mainly in relation to the merits of the review applications that Mr Peek submitted the Tribunal should not exercise its discretion in s.42A(10). He contended that the evidence did not establish that either applicant would suffer extreme hardship from cancellation of their business visa. He referred to Re Salim. In that decision Deputy President Purvis said the following:
[47] The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.
The Tribunal is mindful that the relevant consideration is whether the applicants can show an arguable case on the merits, taking their case at its highest (Commissioner of Taxation v Brown 99 ATC 4,852). The applicants will have to return to Indonesia to pursue their citizenship applications. Both are engaged in courses of study that will have to be interrupted, though the Tribunal notes that there was no evidence that similar courses were unavailable in Indonesia. In Prissilia’s case she will have to live apart from her de facto spouse. Her plans for the future with Mr Lam will be suspended for a period of up to twelve months, in Mr Turner’s submission, while her application for permanent residency is assessed. She has lived in Australia for about seven years, returning to Indonesia on only four occasions. While it is the case that she has gone back to Indonesia since her parents’ house was burnt down during the riots in Jakarta, the Tribunal finds that, at its highest, her contention that cancellation will result in extreme hardship is an arguable case. Notwithstanding Carfian Gunawan is not in a de facto relationship, he and his long term partner will have to live apart for at least twelve months to enable his application to be considered. He has lived in this country for about eight years. He has spent less than two months in Indonesia during the couple of visits he has made in that time. His evidence (Exhibit A1 in N2002/951 and N2003/981) is that his family in Indonesia have told him that resentment and harassment of people with a Chinese background continues in Indonesia. As a practising Christian, he feels he would not be able to worship in Indonesia freely and without harassment. The Tribunal does not consider that Carfian Gunawan’s case is frivolous or bound to fail; he has an arguable case.
28. The Tribunal is persuaded that this is a proper case to exercise the discretion to reinstate the applications. It is, therefore, unnecessary to consider the alternative applications for an extension of time. Accordingly, the Tribunal orders the reinstatement of the applications in N2002/951 and N2002/952, and the dismissal of the applications in N2003/979 and N2003/981.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, senior member:
Signed: A. Krilis
AssociateDate of Hearing 23 July 2003
Applicant’s written submissions received: 31 July 2003
Date of Decision 13 August 2003
Solicitor for the applicants Mr R. Turner
Solicitor for the respondent Mr G. Peek
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