Obeya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] AATA 3601

Obeya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3601 (7 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/4138

2020/4139

Re:John George Obeya

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Decision Maker

RESPONDENTS

DECISION

Tribunal:Senior Member A Poljak

Date:7 August 2020

Date of written reasons:        16 September 2020

Place:Sydney

2020/4138

1.The Tribunal has no jurisdiction to review the decision dated 16 July 2020.

2.In accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the application is dismissed.

2020/4139

1.The Tribunal has no jurisdiction to hear the application for review lodged on 8 July 2020.

2.In accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the application is dismissed.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction question – decision refusing to give notice that applicant is an Australian citizen – section 37 of the Australian Citizenship Act 2007 – freedom of information requests – NSW Roads and Maritime Services – decision to refuse to renew or issue driving licence – no jurisdiction found – applications dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25

Australian Citizenship Act 2007 (Cth) ss 37, 52

Freedom of Information Act 1982 (Cth)

WRITTEN REASONS FOR DECISION

Senior Member A Poljak

16 September 2020

1. Mr John George Obeya, the applicant, arrived in Australia from Nigeria on 20 October 2000 on a subclass 421 visa or a subclass 940 Olympic Family Member (Special Purpose) visa. The applicant acquired Australian citizenship on 23 February 2006.

2. The applicant lodged multiple Freedom of Information (FOI) amendment requests to amend his date of birth by 20 years. This triggered an investigation into the applicant’s identity.

3. The applicant seeks review of the following decisions:

   (a)the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the respondent, dated 16 June 2020, to affirm the decision of a delegate of the respondent dated 7 February 2019 to refuse to give the applicant notice stating that he was an Australian citizen under section 37 of the Australian Citizenship Act 2007 (Cth) (the Act) (section 37 decision); and

   (b)the decision of NSW Roads and Maritime Services (RMS) dated 24 January 2020 refusing to renew or issue a driving licence for the applicant (RMS decision).

4. On 7 August 2020, the section 37 decision and RMS decision came before the Tribunal on the question of jurisdiction. The applicant provided extensive written submissions dealing with the question of jurisdiction. As advised, the applicant’s written submissions were read in detail prior to the commencement of the interlocutory hearing. The applicant did not provide a copy of the RMS decision but contended that it should be reviewed with the section 37 decision as a matter of convenience.

5. By way of oral reasons, the Tribunal found that it did not have jurisdiction to deal with the section 37 decision nor the RMS decision. The matters were dismissed. As requested by the applicant, below is a written account of those reasons.

   Reasons and Decisions

6. The Tribunal has no general power to review decisions, it may only review decisions in relation to which jurisdiction has been conferred on it by an enactment; section 25 of the Administrative Appeals Tribunal Act1975 (Cth).

7. The section 37 decision was clearly made under subsection 37(2) of the Act. Section 37 provides that regard must be had to individual identifiers (section 37(4) of the Act notes that Division 5 contains the identity provisions) as the Minister must not give a person a notice under section 37 unless the Minister is satisfied of the person’s identity. The section 37 decision was not a request under the Freedom of Information Act 1982 (Cth) as the applicant contends.

8. Section 52 of the Act sets out the decisions which may be reviewed by the Administrative Appeals Tribunal (AAT). Having regard to the provisions contained in section 52 of the Act, a decision under section 37 of the Act is not reviewable by the AAT. As such I find that the AAT does not have jurisdiction to review the section 37 decision dated 16 June 2020, and the matter is dismissed.

9. Regarding the RMS decision, that is a state issue and is dealt with under state legislation. The AAT does not have jurisdiction to review that decision. The application is dismissed.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 16 September 2020

Date(s) of hearing:	7 August 2020
Advocate for the Applicant:	Mr E Ezekiel-Hart
Solicitors for the Respondent:	HWL Ebsworth Lawyers