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PRACTICE AND PROCEDURE – application for reinstatement of Tribunal proceedings – application withdrawn by applicants representative – representative did not have the consent of the applicant to withdraw  – whether it was appropriate to reinstate  – application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 The application was withdrawn by Mr Oberleuter (Mr Ilave’s then representative) on 2 November 2005.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).…