Ilave and Minister for Immigration and Multicultural Affairs

[2006] AATA 375

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 375

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/451

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER ILAVE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date28 April 2006

PlaceBrisbane

Decision  The application for reinstatement is refused.

.........[Sgd].............
   B J McCabe

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement of Tribunal proceedings – application withdrawn by applicants representative – representative did not have the consent of the applicant to withdraw  – whether it was appropriate to reinstate  – application for review had no merit

Administrative Appeals Tribunal Act 1975 s 42A(1A), s 42A(10)

Australian Citizenship Act 1948 s10C

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

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694

Schramm and Repatriation Commission (1998) 54 ALD 501

REASONS FOR DECISION

28 April 2006 Senior Member B J McCabe         

introduction

1. Mr Peter Ilave asked the Tribunal to review a decision of the Minister for Immigration and Multicultural Affairs refusing him Australian citizenship pursuant to s 10C of the Australian Citizenship Act 1948 (the Act). The application was withdrawn by Mr Oberleuter (Mr Ilave’s then representative) on 2 November 2005. Mr Ilave says that was done without his consent. He wants the review to proceed. He has asked the Tribunal to reinstate the application pursuant to s 29(10) of the Administrative Appeals Tribunal Act 1975.

2.      For reasons I will explain, I do not propose to reinstate Mr Ilave’s application for review.

the original decision and the application for review

3. The decision of the Minister’s delegate to refuse the application for citizenship was communicated to the applicant in a letter dated 15 June 2005. The delegate concluded the applicant was unable to satisfy the requirement imposed by s 10C(4)(a) of the Act in that neither of his parents held Australian citizenship when he was born. In his submissions to the Tribunal, the applicant argued his mother was a resident of Papua New Guinea before independence and was therefore an Australian citizen prior to 1975. He claimed he was therefore able to satisfy the requirements of s 10C.

withdrawal

4.      The original application was listed for hearing on 12 December 2005 in Cairns. Mr Ilave says he travelled from Port Moresby to Cairns for the hearing only to learn the matter had been withdrawn by his representative. He says that while he discussed a number of options with his representative, he did not consent to withdrawing the proceedings before the Tribunal.

5. The Tribunal received a written request for withdrawal signed by Mr Oberleuter on 2 November 2005. Accordingly the proceeding was dismissed pursuant to s 42A(1A) of the Administrative Appeals Tribunal Act 1975.

the power to reinstate proceedings that have been dismissed or withdrawn

6. The power to reinstate proceedings that have been dismissed pursuant s 42A(1A) is found in s 42A(10). This section provides the Tribunal may reinstate an application that appears to have been dismissed in error if it is “appropriate in the circumstances”.

7.      The respondent concedes the application may have been dismissed in error. I was referred to the decision in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652. The Full Court of the Federal Court in that case expressly stated (at paragraph 29) that “error’, as contemplated by s 42A(10), would arise where:

a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance.

8. The Minister points out that an application dismissed in error is not automatically reinstated. The power to reinstate under s 42A(10) is discretionary, and the Tribunal must be satisfied in each case that it is appropriate to exercise the discretion in all the circumstances.

9. The discretion in s 42A(10) was discussed in Schramm and Repatriation Commission (1998) 54 ALD 501 by Deputy President Burns. The learned Deputy President said (at paragraph 29):

the tribunal should not be so constrained as to be required to have regard to any one or more specified factors in the exercise of the discretion but should be at liberty to give consideration to a wide variety of factors in considering what the justice of the particular case requires having regard to the whole of the circumstances of the particular case.

10.     In my view, there are a number of matters that need to be taken into account when considering whether or not to exercise the discretion:

·     I am satisfied the applicant acted promptly when he realised the mistake had been made. There is no doubt he was acting in good faith.

·     I am unaware of any prejudice to the respondent that will follow if the application is brought back on. There is no real dispute as to the facts, so the fact-finding process is unlikely to be compromised. On the other hand, there is obvious prejudice to the applicant if I decide against reinstatement – assuming, of course, that he has some prospect of success.

11.     The real issue here is in relation to the merits of the applicant’s case. I should not reinstate an application that has been dismissed in error if the application is bound to fail in any event.

the applicant’s case

12.     The bulk of the respondent’s submissions focus on the merits of the case. They argue reinstating the application “would be futile and a waste of time and resources”.

13. I note the Minister’s submissions appear to retreat from the reasoning in the original decision. As I have already explained, that decision rested on a finding that the applicant’s parents were not Australian citizens at the time of his birth. The respondent now appears to focus on the fact the applicant was born within Australia. There does not appear to be any dispute that this is so: he was born 4 February 1964 in Papua, which was then an Australian territory. Section 5 of the Act provided at the relevant time that territories like Papua formed part of Australia. That means the applicant is unable to satisfy the criteria in s 10C(4)(c)(i).

14.     The respondent relies in particular on the decision of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694. The Court concluded on similar facts that the application for citizenship could not succeed.

15. The applicant in his submissions argued the original decision refusing him citizenship only raised the objection that his mother was not an Australian citizen. He says “it was accepted by the Minister that I did satisfy the other requirements of section 10C”. That is not my reading of the decision.

16.     I understand the applicant’s frustration. The case which he was required to answer appears to have changed. Even so, I am satisfied he was given the opportunity to answer the case so there is no breach of the rules of procedural fairness. Given the decision of the Full Court in Walsh, it seems unlikely that he could have answered the respondent’s case.

conclusion

17.     After careful analysis of the considerations I do not believe this is an appropriate case for the exercise of the discretion to reinstate. The application for reinstatement is refused.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:   [Sgd]
  A Ryan
  Associate      Adam Ryan

Date of Hearing        3 February 2006

Receipt of written submissions      28 February 2006
Date of Decision  28 April 2006
The applicant appeared in person.
The respondent was represented by Ms Teo.