ISLAM and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 335
•20 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 335
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0689
GENERAL ADMINISTRATIVE DIVISION ) Re SHAFIN ISLAM Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date20 May 2011
PlaceSydney
Decision The Tribunal dismisses the application of Mr Shafin Islam for review of the decision of the Minister for Immigration and Citizenship pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.
....................[sgd]....................
Ms G Ettinger
Senior Member
CATCHWORDS
Practice and procedure – frivolous or vexatious application – no prospects of success – futility of proceedings – application dismissed.
Administrative Appeals Tribunal Act 1975 s 42B
Australian Citizenship Act 2007
Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Australian Electoral Commission and the Greens (party joined) (1995) 38 ALD 366
Re Zografakis and Telstra Corporation Ltd (1996) AATA 805
REASONS FOR DECISION
20 May 2011 Ms G Ettinger
Senior Member1. Mr Shafin Islam, who first arrived in Australia on 14 November 2005 as the holder of a subclass 676 Visitor (temporary) Visa and has since held various temporary visas, applied on 28 January 2011 for citizenship under the Australian Citizenship Act 2007 (the Act). Mr Islam was the holder of a Bridging Visa E at the time of his application. That application was refused by the Department of Immigration and Citizenship on 14 February 2011 on the basis that he did not meet the criteria pursuant to section 21(2)(b) of the Act.
2. Mr Islam appealed that decision to this Tribunal on 23 February 2011. Ms M Stone of DLA Phillips Fox who represented the Minister for Immigration and Citizenship made a written application, dated 31 March 2011, to the Tribunal for the matter to be dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the basis that Mr Islam has never been a permanent resident of Australia, and that there would be no utility in the proceedings because the Applicant does not meet a threshold criterion for the grant of citizenship under section 21(2) of the Act.
3. Section 21(2) of the Act states, inter alia, that:
21 Application and eligibility for citizenship
…
(2) A person is eligible to become an Australian citizen if the Minister
is satisfied that the person:
…
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application;
…
4. The matter came before me on 21 April 2011. The Applicant, his father, Mr Mafizul, and Ms Stone, made submissions. We were assisted by Mr Khan, an interpreter in the Bangla language.
5. Mr Islam submitted that on his interpretation of the Act and the policy, the Tribunal could exercise its discretion to grant him citizenship.
6. Ms Stone, on the other hand, reiterated the Minister’s position which was that a person is only eligible to become an Australian citizen if the Minister, and therefore the Tribunal standing in his shoes, is satisfied that the person was a permanent resident at the time of the application, and at the time of the Minister’s decision on the application.
7. Ms Stone’s submission was that the application should be dismissed pursuant to section 42B(1) of the AAT Act. She submitted that the policy underpinning a provision in the nature of section 42B is to promote the proper dispatch of the business of the Tribunal and to ensure that the time and personnel of the Tribunal are dedicated to substantive cases. In her submission she referred to Re Zografakis and Telstra Corporation Ltd (1996) AATA 805.
8. In Re Zografakis, Senior Member Allen cited with approval Hunt J in Peter Kent Developments Pty Ltd v Australia and New Zealand Banking Group Ltd which is noted in Ritchie’s Supreme Court Procedure NSW at paragraph 13017 who examined the analogous Part 13 Rule 5 of the New South Wales Supreme Court Rules and stated (emphasis added):
... under Pt 13 R5 the court may go beyond the pleading and enquire into the actual facts of the case... The power given by the latter is thus much wider than that given by the former. Both rules reflect the inherent jurisdiction of the court to deal with the abuse of its process… Under that inherent [power]… there is power to stay an action which, although properly pleaded, is bound to fail. Such an action may be called either vexatious or an abuse of process.
9. She also submitted that the power to dismiss an application on the basis that it is vexatious or frivolous may be exercised if the application is devoid of utility, and cited Re Williams andAustralian Electoral Commission and the Greens (Party Joined) (1995) 38 ALD 366 in support of her argument.
10. In Re Williams the Full Court of the Federal Court of Australia expressed the test for determining whether proceedings are vexatious or frivolous as such, approving of the test in Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 (emphasis added):
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
…
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
THE TRIBUNAL’S CONCLUSIONS
11. I heard the argument of both parties, and having considered both, and the legislation, explained that I preferred the argument of the Respondent. I explained the situation to Mr Islam, namely that the record indicated he had never become a permanent resident of Australia, and that he accordingly could not succeed with his application for citizenship.
12. I also explained to Mr Islam that neither the Tribunal nor Ms Stone could give him legal advice, but that I was prepared to adjourn for him to obtain advice. I told him that I would give him until close of business on 29 April 2011 to let the Tribunal know if he wanted to proceed and have the application dismissed, or withdraw it.
13. As the Tribunal did not hear from Mr Islam, I proceeded on 2 May 2011 to make an Order as follows:
The Tribunal is satisfied that the application for review of the decision is frivolous or vexatious.
The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975:
1. Dismisses the application; and
2. Directs that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of the following kind:
a.for review of the decision of the Minister for Immigration and Citizenship dated 14 February 2011.
14. Mr Islam wrote to the Tribunal on 9 May 2011 asking for my reasons.
15. As noted above, my reasons for dismissing Mr Islam’s application are that, pursuant to section 21(2) of the Act, a person is only eligible to become an Australian citizen if the Minister, and therefore the Tribunal standing in his shoes, is satisfied that the person was a permanent resident at the time of the application and at the time of the Minister’s decision on the application. As Mr Islam has never been a permanent resident of Australia and was not a permanent resident at the relevant times, he cannot succeed in his application for citizenship, and the application must be dismissed.
DECISION
16. The Tribunal dismisses the application of Mr Shafin Islam for review of the decision of the Minister for Immigration and Citizenship pursuant to section 42B of the AAT Act.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger
Senior MemberSigned: ................[sgd]..............................................................
AssociateDate of Hearing 21 April 2011
Date of Decision 20 May 2011
The Applicant Self-represented
Respondent’s solicitor Ms M Stone, DLA Phillips Fox
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