Kaur and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2739

Kaur and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2739 (28 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/5335

Re:Punit Kaur

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:28 August 2023

Place:Brisbane

The application is dismissed pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

.............................[SGD]...........................................

Member Lee Benjamin

Catchwords

PRACTICES AND PROCEDURES – Applicant’s failure to proceed and failure to comply with directions in citizenship refusal decision review application

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

Secondary Materials

REASONS FOR DECISION

Member Lee Benjamin

28 August 2023

1. On 12 June 2021, Ms Punit Kaur (born in India in 1981) lodged an application for Australian citizenship.[1]

   [1] In the same application, Ms Kaur declared “no” in the character declaration section that she had not been convicted of, or found guilty of, any offences overseas or in Australia. However, Ms Kaur has committed multiple offences of stealing/unauthorised dealing with shop goods in Australia across a 10-year period from 2008-2018.

2. On 20 June 2022, the Minister’s delegate decided to refuse Ms Kaur’s application for Australian citizenship by conferral[2] on the basis that the delegate was not satisfied that Ms Kaur was of good character[3] (Minister’s Decision).

   [2] Pursuant to subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (Act).

   [3] Subsection 21(2)(h) of the Act.

3. On 21 June 2022, Ms Kaur lodged an application in the Tribunal for review of the Minister’s Decision. Ms Kaur’s review application has a long procedural history in the Tribunal:

   ·On 7 October 2022, the Tribunal put in place directions for Ms Kaur to file materials on or before 2 December 2022. On 30 November 2022, Ms Kaur requested an extension of time to file her materials.

   ·On 5 January 2023, the Tribunal put in place directions for Ms Kaur to file materials on or before 2 February 2023. On 1 February 2023, Ms Kaur requested an extension of time to file her materials.

   ·On 11 April 2023, the Tribunal issued a listing notice for a case conference on 12 May 2023 for the purpose of setting a revised timetable for the parties to file their materials.

   ·On 12 May 2023, the Tribunal held a case conference. Ms Kaur failed to appear at the case conference.  

   ·On 12 May 2023, the Tribunal put in place directions for Ms Kaur to file materials on or before 7 July 2023. The directions put Ms Kaur on notice that her review application was liable to be dismissed if she failed within a reasonable time to comply with directions. Ms Kaur failed to file her materials on or before 7 July 2023.

   ·On 8 June 2023, the Tribunal issued a listing notice for the hearing of this matter on 17 July 2023. On 8 July 2023, Ms Kaur requested that the hearing on 17 July 2023 be vacated for “personal reasons”.

   ·On 10 July 2023, the Tribunal wrote to Ms Kaur and requested further and better particulars of the "personal reasons" for the Tribunal to vacate the hearing on 17 July 2023. The Tribunal put Ms Kaur on notice that her review application was liable to be dismissed in certain circumstances:

   …if a party to a proceeding fails to appear at a hearing, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision… This power is set out in subsection 42A(2) of the Administrative Appeals Tribunal Act 1975. Notwithstanding this, the Tribunal may also dismiss an application if an Applicant fails, within a reasonable time, to (a) proceed with their application or (b) comply with the Tribunal's direction. This power is set out in subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.

   ·On 13 July 2023, Ms Kaur wrote to the Tribunal and provided a medical certificate in support of an illness. On 14 July 2023, the Tribunal decided to vacate the 17 July 2023 hearing. The Tribunal put Ms Kaur on notice that her review application was liable to be dismissed in certain circumstances as per its 10 July 2023 correspondence.

   ·On 24 July 2023, the Tribunal convened a directions hearing for the purpose of setting a revised timetable for the parties to file their materials, and to consider Ms Kaur’s past non-compliance with Tribunal directions. I again put Ms Kaur on notice that her review application was liable to be dismissed in certain circumstances as per the Tribunal’s 10 July 2023 correspondence.  

   ·On 31 July 2023, the Tribunal put in place directions for Ms Kaur to file materials (or advise that no materials would be filed) on or before 11 August 2023. The directions put Ms Kaur on notice that her review application was liable to be dismissed if she failed within a reasonable time to comply with directions. Ms Kaur failed to file her materials or advise that she would not file materials on or before 11 August 2023.

   ·On 9 August 2023, the Tribunal issued a listing notice to the parties for the substantive hearing for the review application on 28 August 2023.

   ·On 27 August 2023, Ms Kaur wrote to the Tribunal and indicated that she was ill and would be unable to attend the substantive hearing on 28 August 2023.

   ·On 28 August 2023, Ms Kaur provided a medical certificate to the Tribunal dated 28 August 2023 indicating that she will be unfit to continue her usual occupation for the period 28 August 2023 to 1 September 2023.[4] I do not accept that the medical certificate is evidence that Ms Kaur is too ill to appear before the Tribunal. Ms Kaur was subsequently advised that the Tribunal would proceed to hear her review application at the time/date listed.         

   ·On 28 August 2023, the Tribunal conducted a hearing for the review Application. Ms Kaur failed to appear at the hearing.

   [4] Ms Kaur claims to be unemployed - it is unclear what usual occupation the medical certificate is referring to.

4. At the hearing on 28 August 2023, the Minister submitted that the Tribunal should dismiss Ms Kaur’s review application. I accept the Minister’s submissions.

5. Subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:

   (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;

   the Tribunal may dismiss the application without proceeding to review the decision.

6. Ms Kaur was repeatedly put on notice that her review application becomes liable for dismissal in circumstances where, within a reasonable time, she fails to procced with her application or fails to comply with Tribunal directions in relation to the same. In my view, Ms Kaur has been afforded ample time and opportunity over the course of one year to both proceed with her application and comply with Tribunal directions in relation to her application. Ms Kaur has repeatedly failed to do both.[5]

   [5] As an aside, even if I was to accept that Ms Kaur’s alleged medical condition prevented her from proceeding with her application at the hearing (and I do not accept that), the mere fact that delay had been caused by a medical condition is not in itself sufficient to give Ms Kaur a right to maintain a matter before the Tribunal indefinitely. Ms Kaur may make a fresh application for citizenship if she wishes to do so.  

7. Accordingly, the conditions for the exercise of the dismissal power are made out. I dismiss Ms Kaur’s application pursuant to subsection 42A(5) of the AAT Act for failure to proceed.

   I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

   ................[SGD]..........................

   Associate

   Dated: 28 August 2023