Pham and Minister for Immigration and Multicultural Affairs
[2000] AATA 1159
•20 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1159
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/1716
GENERAL ADMINISTRATIVE DIVISION )
Re THO HOANG PHAM
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date20 December 2000
PlaceSydney
Decision The Tribunal does not consider that it has jurisdiction to entertain an application for an extension of time. However, even if the Tribunal does have jurisdiction to grant an application for an extension of time, it does not exercise its discretion in favour of the Applicant.
............[sgd. J Block]...........
Deputy President
CATCHWORDS
IMMIGRATION – deportation order - application for extension of time to submit further application for review where previous application for review dismissed – jurisdiction of the tribunal under the Administrative Appeals Tribunal Act 1975 in respect of an extension of time – effect of 1993 amendments to the Administrative Appeals Tribunal Act 1975 – whether assuming jurisdiction to grant an extension of time, the tribunal should exercise its discretion in favour of the applicant – consideration of Hunter Valley principles
Administrative Appeals Tribunal Act 1975 – sections 3, 29(7), 42A
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315; (1984) 3 FCR 344; (1984) 58 ALR 305
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; (1991) 14 AAR 42
Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537; (1990) 12 AAR 298
Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916
Flick, G A, Federal Administrative Law, 2nd edition. Sydney: Law Book Co, 1984-
REASONS FOR DECISION
20 December 2000 Deputy President J Block
(a) This is an application for an extension of time within which to file an application for the review of a deportation order made against the Applicant on 20 February 1998.
(b) After the deportation order was made, the Applicant applied on 22 April 1998 for the review of that decision; that application is referred to in these Reasons as "the first application". The application referred to in paragraph (a) above is referred to as "the second application". The first application (N98/446) was dismissed under section 42A(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and there is thus an initial and jurisdictional question as to whether the Tribunal has jurisdiction to entertain the second application. If it does not, then clearly an application for an extension of time within which to file the second application is purposeless.
(c) The hearing of this matter was conducted by telephone link to the Applicant, an interpreter in Vietnamese, and in addition Mr Muthalib, a legal officer employed by the Respondent. I note in this context that although the Applicant may not be fluent in English he is by no means without some knowledge of the English language; there were occasions when he answered without waiting for the interpreter. The Tribunal was furnished with certain of the T Documents and Supplementary T Documents referable to the first application; references to them are prefaced, as appropriate, by either "T" or "S".
(d) The proceedings commenced, with the consent of the Applicant, with an address by Mr Muthalib setting out the Respondent's case and thus the case for the Applicant to answer. Such a procedure, in my experience, is often desirable in a case such as this where the Applicant is self-represented. Mr Muthalib then proceeded to paraphrase his facsimile dated 29 November 2000 and addressed to the Tribunal (and referred to hereafter as "the Respondent's facsimile"). That facsimile indicates on its face that it was copied to the Applicant; however the Applicant denied that he received it. That denial may not have been truthful having regard to certain aspects of the Applicant's evidence which were untruthful.
(e) The Respondent's facsimile sets out the background and the Respondent's submissions and is set out in full in these Reasons as follows:Background
1. On 20 February 1998 a delegate of the Respondent signed a deportation order against Mr Pham for a conviction for supply of prohibited drug, pursuant to section 200 of the Migration Act 1958.
2. On 22 April 1998 Mr Pham lodged a review application (Matter No. N98/446) with respect to the deportation order with the AAT ("first review application")
3. On 11 August 1998 Mr Pham was sent a listing notice informing him that the first telephone conference had been listed for 13 October 1998.
4. On 9 September 1998 Mr Pham was charged at the Central Local Court, Kings Cross, with one count of possess prohibited drug and one count of supply prohibited drug. He was subsequently convicted on 20 October 1998 and sentenced to 6 months imprisonment.
5. The first AAT telephone conference was held on 13 October 1998. Mr Pham failed to attend.
6. A second telephone conference was held on 22 December 1998. Mr Pham failed to attend.
7. A telephone directions hearing was held on 28 January 1999. Mr Pham failed to attend.
8. On 28 January 1999 the AAT (DP Chappell) dismissed Mr Pham's application pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") due to his failure to appear at the first and second telephone conferences and subsequent telephone directions hearing.
9. Mr Pham had until 24 February 1999 to apply for reinstatement of his application pursuant to s42A(8) of the AAT Act.
10. Mr Pham elected not to do so.
11. On 15 August 1999 Mr Pham was charged at the Fairfield Local Court, Cabramatta with one count of possess prohibited drug.
12. He was then taken into Immigration detention on the 16 August 1999.
13. On 22 November 1999 and fined $800.00 in respect of the one count of possess prohibited drug.
14. On 15 November 2000 Mr Pham applied to the AAT for an extension of time in which to lodge another application of review.
The Respondent makes the following submissions:
15. A second application for review is not competent where the first application for review of the same decision was dismissed without a merits review: Tan Phuong Truong - Decision dated 20 October 2000 (Block DP) N1997/1283 & N2000/870. The AAT in that case agreed with Flick's Federal Administrative Law that a second review application of the same decision, where the first review application had been dismissed, was a nullity.
16. Assuming the above argument is not accepted and a second application to review the same decision is competent, then this would mean that if the AAT exercises its discretion under section 29(7) of the AAT Act to grant an extension of time a merits review of the second application is possible.
17. However, the Respondent contends that that discretion should not be exercised in this case for the following reasons:
This case is very similar to the facts in the case of Truong referred to above. In Truong the AAT considered whether it should grant an extension of time in the event that that a second application to review the same decision was competent and the AA T elected not to do so.
Mr Pham has "rested on his rights" - Mr Pham's current extension of time application has been lodged over 20 months after the time for lodging an application for reinstatement of his first review application.
The only reason specified in the application for applying for an extension is: "very little english. Did not have legal advice in custody."
Mr Pham was released from criminal detention on 21 February 1998.
On 30 March 1998 Mr Pham was served with the deportation order at the Respondent's Bankstown Office, where he was put in contact with a Vietnamese interpreter through the telephone interpreter service. Mr Pham was explained the significance of the deportation order and how he could lodge an appeal. On that date Mr Pham signed an acknowledgement form which stated:
"I was informed that I was entitled to make an application to have the decision to deport me reviewed by the Administrative Appeals Tribunal, and that I was handed a notice detailing the relevant procedures and information as well as an application form."
Mr Pham was discharged from his parole on 3 July 1998. Since that date his whereabouts were unknown to the Respondent until he was placed into Immigration detention on 16 August 1999 when police charged him with an offence.
Mr Pham was not in custody at the time he lodged his first review application with the AAT and received the listing notice for the first telephone conference. Therefore, he had a greater opportunity to seek and obtain legal advice in respect of his case. If Mr Pham had been serious about his first review application, which he completed, signed and lodged with the AAT on 22 April 1998, he would have notified the AAT that he had been taken into custody and that other arrangements would have to be made. Moreover, the AAT was aware that Mr Pham needed the assistance of an interpreter as he had requested this service in his original review application.
It was Mr Pham's responsibility to notify the AAT that he had been taken into custody. It was his responsibility to notify the AAT of any change of address, irrespective of whether he received the listing notice.
The merits of the substantial application are weak. This is because, although Mr Pham arrived in Australia on 15 May 1987 under the Indo Chinese Refugee Program at age 20 years and 4 months, he has a lengthy criminal history with over 23 convictions. Some of these involve convictions for possess prohibited drug, possess shortened firearm, break, enter and steal, goods in custody, supply prohibited drug and unlawful wounding.
His first criminal conviction was on 18 August 1989 for possession of prohibited plant and his last conviction for the supply of prohibited drug, was on 20 October 1998. As mentioned previously he was charged and convicted of this latter crime after he made his first review application to the AAT.
Mr Pham received his first warning about deportation on 2 November 1991 and his second warning was on 18 March 1996. However, they did not deter him from committing further offences.
Most of Mr Pham's offences are regarded as very serious. Since his deportation order and first review application to the AAT he has been charged with and convicted for similar drug offences.
There is a high risk of recidivism. He has never been employed in Australia and he has made no positive contribution to Australia. His mother and four sisters currently live in Vietnam and he has a brother in Australia with whom he has lost contact. The expectations of the Australian community would strongly favour deportation.
The Respondent's facsimile referred at some length to my decision in Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916 and indeed the facts are so similar that such reference was clearly appropriate; in this regard:
(a) As occurred with Mr Truong, the Applicant embarked on a life of crime soon after arrival in Australia. The only difference is that the Applicant's list of convictions is longer and more extensive and includes crimes of violence. (Mr Truong said that he was not a criminal because he dealt in drugs but did not bash people). The Applicant cannot make even this demonstrably untenable claim. As to just one of his crimes involving violence, the Tribunal refers to T54, page 139:On sentencing, the judge said that Mr Pham stated he was a person with a short temper. After an argument with a person in the house in which he was a guest, Mr Pham had taken a knife from the kitchen and stabbed his victim three times, once to the liver, once to the buttock and once to the heel.
(b)Mr Truong was warned of deportation on one occasion prior to the making of the deportation order; the Applicant received two prior warnings. Like Mr Truong, the Applicant was again convicted after he had been warned of deportation.
(c) Like Mr Truong, the Applicant sought the review of his deportation order (the first application). Like Mr Truong his application was dismissed because he failed to attend hearings. Like Mr Truong he then disappeared and was rediscovered some considerable time thereafter when he was re-arrested; (in this regard see paragraph 17 of the Respondent's facsimile set out in paragraph 1(e) of these Reasons).
(d)As was the case with Mr Truong the Applicant has virtually no family in Australia. He does have a brother in Australia but the Applicant has lost contact with him and is unaware of his whereabouts. In respect of his second application, the Applicant stated that his father was in Australia; that statement was untrue; his father did reside in Melbourne but he died some years ago. His mother and sisters live in Vietnam.
(e) Mr Truong said that for him to return to Vietnam would be dangerous because he had deserted the Vietnamese Armed Forces; however the evidence in his case indicated that he had returned to Vietnam on a lengthy visit. The Applicant too said that a return to Vietnam would be dangerous but did not specify what danger was involved.
(f) In Re Truong there was an additional aspect not relevant in this matter. Mr Truong's application was treated both as an extension of time and as a reinstatement application. This application does not include a reinstatement application.
It is perhaps of marginal relevance that the Applicant's grounds of application as contained in the first application differ from those contained in the second application but it is not necessary to detail the differences. In all other respects, the Applicant's evidence consisted for the most part of repeated requests for information as to when he would be deported because, as he indicated, he strongly disliked the remand centre where he is currently confined.
The Applicant's criminal record (up to November 2000) is substantial; it is set out (edited to include the main details only) as follows:
CHARGE DATE COURT NAME CHARGE STATION OFFENCE COURT DATE . . . SENTENCE
12/01/1989 FAIRFIELD LOCAL COURT CABRAMATTA POSSN PROHIBITED DRUG 08/02/1989 NBC
31/07/1989 PARRAMATTA LOCAL COURT FAIRFIELD BE&S 20/10/1989 NBC
17/08/1989 FAIRFIELD LOCAL COURT CABRAMATTA POSSESS PROHIBITED PLANT FAIL TO APPEAR (1ST INSTANCE WARRANT) 18/08/1989 $200 RISING OF THE COURT
30/04/1990 FAIRFIELD LOCAL COURT CABRAMATTA GIC POSSESS IMPLEMENT 23/05/1990 1 & 2 ON EACH CHARGE NBC 1 & 2 ON EACH CHARGE NBC
31/05/1990 FAIRFIELD LOCAL COURT FAIRFIELD POSSESS SHORTENED FIREARM 11/07/1990 RECOG S.558 SELF $500 GB 3 YRS ACCEPT SUPV PRD & PAROLE ALSO FD $600 RECOG ENTERED MR CULLEN
18/10/1990 FAIRFIELD LOCAL COURT FAIRFIELD BE&S (1ST INSTANCE WARRANT) FAIL TO APPEAR (1ST INSTANCE WARRANT) 01/03/1991 MIN TERM 12 MTHS FROM 101290 ADDITIONAL TERM 4 MTHS DURING WHICH DEFENDANT MAY BE RELEASED ON PAROLE (APPEALED) FD $300
18/10/1990 LIVERPOOL DISTRICT COURT FAIRFIELD APPEALED AGAINST CONVICTION OF 110391 (BE&S) 31/05/1991 APPEAL DISM. CONVICTION CONFIRMED (JUDGE WALSH0
10/12/1990 CAMPSIE LOCAL COURT CAMPSIE BE&S RESIST ARREST (2 COUNTS) 01/02/1991 MIN TERM 12 MTHS FROM 101290 ADD TERM 3 MTHS ON EACH COUNT $100 (APPEALED)
10/12/1990 LIVERPOOL DISTRICT COURT CAMPSIE APPEALED AGAINST CONV OF 010291 (BE&S) 31/05/1991 APPEAL DISM. CONV CONFIRMED. (JUDGE WALSH)
31/12/1991 FAIRFIELD LOCAL COURT CABRAMATTA POSSESS PROH DRUG POSSESS EQUIPMENT FOR ADMINISTRATION 22/01/1992 ON EACH CHARGE FD $500 ON EACH CHARGE FD $500
23/05/1992 FAIRFIELD LOCAL COURT CABRAMATTA OBTAIN BENEFIT BY DECEPTION 16/09/1992 FIXED TERM 14 DAYS
31/05/1992 FAIRFIELD LOCAL COURT CABRAMATTA POSSESS PROH DRUG (HEROIN) 13/07/1992 FIXED TERM 3 MTHS FROM 030792 TO 181092
08/07/1992 FAIRFIELD LOCAL COURT CABRAMATTA POSSESS PROH DRUG 13/07/1992 FIXED TERM 4 MTHS FROM 090792 TO 081192
27/12/1992 FAIRFIELD LOCAL COURT CABRAMATTA DRIVE UNREG DRIVE UNINS UNLIC PLATES CALCU TO DECEIVE 16/06/1993 1 2 3 &4 ON EACH CHARGE FD $400 1 2 3 &4 ON EACH CHARGE FD $400 1 2 3 &4 ON EACH CHARGE FD $400 1 2 3 &4 ON EACH CHARGE FD $400
15/07/1994 BURWOOD LOCAL COURT CABRAMATTA POSSN PROH DRUG (HEROIN) 11/11/1994 FIXED TERM 3 MTHS
30/03/1995 LIVERPOOL LOCAL COURT CABRAMATTA SUPPLY PROH DRUG 10/04/1995 MIN TERM 12 MTHS FROM 300395 ADD TERM 4 MTHS (APPEALED)
30/03/1995 LIVERPOOL DISTRICT COURT CABRAMATTA APPEALED AGAINST CONV OF 100495 12/05/1995 APPEAL DISM. CONV CONF. IN LIEU MIN TERM 6 MTHS FROM 300395 ADD TERM 6 MTHS RELEASE SUBJECT TO SUPV (JUDGE O"REILLY)
06/12/1996 BURWOOD LOCAL COURT CABRAMATTA STEALING 02/05/1997 FINE: $600 COSTS – COURT: $50
30/01/1997 FAIRFIELD LOCAL COURT CABRAMATTA SUPPLY PROH DRUG 30/03/1997 MINIMUM TERM: 12 MONTHS COMMENCING 22/02/1997 CONCLUDING 22/02/1998 ADDITIONAL TERM: 4 MONTHS COMMENCING 22/02/1998 CONCLUDING 21/06/1998
22/02/1997 FAIRFIELD LOCAL COURT CABRAMATTA SUPPLY PROH DRUG 13/03/1997 MINIMUM TERM: 12 MONTHS COMMENCING 22/02/1997 CONCLUDING 22/02/1998 ADDITIONAL TERM: 4 MONTHS COMMENCING 22/02/1998 CONCLUDING 21/06/1998
09/09/1998 CENTRAL LOCAL COURT KINGS CROSS POSSESS PROHIBITED DRUG SUPPLY PROHIBITED DRUG 20/10/1998 FIXED TERM: 6 MONTHS COMMENCING 09/09/1998 FIXED TERM: 6 MONTHS COMMENCING 09/09/1998
15/08/1999 FAIRFIELD LOCAL COURT CABRAMATTA POSSESS PROHIBITED DRUG 22/11/1999 FINE: $800 COST – COURT: $54
(The term "BE&S" refers, of course, to "break, enter and steal"; the other abbreviations used are self-explanatory.)
The Applicant was asked why, after making an application in 1998, he then failed to appear at conferences leading to the dismissal of his application pursuant to section 42A(2) of the AAT Act. The Applicant said that he was not aware of the deportation order or of his appeal rights in this regard. He said also that he had not received any paper from the Tribunal regarding his deportation. This cannot be correct. The fact that the Applicant has lodged two applications with the Tribunal to review his deportation order indicates that the Applicant was aware of the fact that a deportation order had been made against him.
Moreover the Applicant received two warnings as to the possibility of deportation. A written warning was given to the Applicant at Parramatta gaol on 15 November 1991 (T54, page 141); another warning was given to the Applicant on 18 March 1996 (T69, page 195).As to the various convictions and sentences, the Applicant could not explain why he had stated in a letter to the Tribunal, received 21 November 2000, that "I have not committed any crimes and I am not a criminal". The Applicant also said during the hearing "I always respect the law". When it was put to him that his statement that he was not a criminal could not be correct, the Applicant said "I accept what you say. I made a mistake. I am sorry". That the Applicant is indeed a criminal, and a serious one at that, is borne out by the criminal record set out in paragraph 4 of these Reasons.
In his Statement of Reasons, in support of the making of the deportation order, Mark Anthony Sullivan, Deputy Secretary of the Department of Immigration and Multicultural Affairs said on 20 February 1998 (S1, pages 1 to 2):
3. I based my decision on the facts as set out in Ms Speed's submission.
4. I agreed with the evidence as set out in Ms Speed's submission.
5. I agreed with the assessment of the case as set out in Ms Speed's submission.
6. I took into account the following factors weighing against deportation:
· Mr Pham was twenty two years of age when he arrived in Australia from Malaysia with his brother. As a result he may suffer a degree of hardship re-adjusting to life in Vietnam.
· Mr Pham fears he may be gaoled on his return to Vietnam but has given no explanations as to his fears.
7. I found however that the following factors weigh in favour of the applicant's deportation:
· Mr Pham's previous warnings about deportation.
· Mr Pham has made no contribution to the Australian community.
· His risk of recidivism has been assessed as high
8. I concluded that in the interests and protection of the Australian Community, the factors in favour of deportation far outweigh those factors in favour of Mr Pham being permitted to remain in Australia.
Mr Sullivan made a comment on Ms Speed's submission dated 20 January 1998 as follows:
Mr Pham has been warned twice before. He continues to indulge in serious crime. His conduct in prison has not been good. Mr Pham has not adapted to life in Australia, it would seem he has few people close to him here. He has concerns about return to Vietnam but deportation would seem the only appropriate action. Submission approved (T69, page 202).
The first and initial question then, as to whether I have jurisdiction in respect of the second application, is to consider the grant of an extension of time to enable the Applicant to bring the second application. For precisely the reasons set out in Re Truong, I hold that I do not. As a matter of convenience, paragraphs 9 and 10 of my decision in Re Truong are set out and incorporated in this decision as follows:
9. (a) Section 42A of the AAT Act reads as follows:
Discontinuance, dismissal, reinstatement etc. of application
42A (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant-dismiss the application without proceeding to review the decision; or
(b) in any other case-direct that the person who failed to appear shall cease to be a party to the proceeding.(3) For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing, conference, mediation or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A
(4) If:
(a) a person makes an application to the Tribunal for a review of a decision; and
(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision.(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;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.(6) If, under this Act the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded. (Emphasis added by the Tribunal)
(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.
(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41 the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(b) An application for reinstatement of the original application is competent only under subsection (9) or (10). Under subsection (8) (which is linked to subsection (9)) the application must be made within 28 days. This is different from section 29(7) of the AAT Act, which does not specify a period within which an application for an extension of time must be made. Subsection (9) is linked to subsection (8) having regard to the reference in subsection (9) to "the application". Subsection (10) is available only if the original application was dismissed in error. It was not at any time suggested that the dismissal was in any way erroneous and indeed all of the evidence before the Tribunal is to the contrary. This being so the Tribunal has no jurisdiction in respect of an application made pursuant to subsection (9) of section 42A and for the reasons set out previously, could not grant such an application under subsection (10).
10. (a) The Respondent contends that if the original application cannot be reinstated, then a further application is not competent.
(b) In Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537, Deputy President Forgie came to the conclusion that a further application was competent where the original application was dismissed without review. See paragraphs 28 and 29 of her decision, which read as follows:(28) It follows that the Tribunal may have exercised all of its power in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to the review of a decision. It follows that the applicant may bring a fresh application review that decision. There is some weight added to this view by the fact that there is no condition or limitation placed on the power given to the Tribunal under s43 to review a decision, ie. It is not limited to review of decisions in relation to which no application has previously been made. In adopting this view I am mindful of the words of Gaudron J in the FAI case where she said at 442: "Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion. The position was put, in relation to statutory discretion by Earl Loreburn LC in Hyman v Rose [1912] AC 623 at 631 in these words: 'It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all.'"
(29) Against this interpretation, it may be said that the administration of justice is prolonged. Whether or not that is a matter for parliament. I would observe that this interpretation does not give carte blanch to any applicant whose application has been dismissed to bring endless line of fresh applications. Once the original application has been dismissed, his subsequent applications will usually be out of time. He will need to seek an extension of time and make out a case for such an extension.(c) And in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309, President O'Connor J of this Tribunal came to the same conclusion, approving the decision of Deputy President Forgie in Re Nicholson (supra). The Tribunal refers to paragraphs 13, 14 and 15 of her decision, as follows:
(13) The issue ultimately falls to be determined under the AAT Act. The AAT Act uses the term "decision" in ss 43(1) and 34(2). Gibbs J observed in Daera Guba, supra, that the word "decision" prima facie connoted that the Land Board in that case was to make a binding determination. Whether the same connotation arises in the AAT Act is not clear; indeed, Deane J observed in Director-General of Social Services v Chaney (1980) 3 ALD 161; 47 FLR 80 at 101 that the word is clearly used in the narrow sense of the operative or ultimate decision of the Tribunal in ss 43 and 43A, but is used in a different sense in s 42. What is of greater significance is that the phrase "dismiss the application" rather than the word "decision" is used in s 42A. Had the legislature intended dismissal to have the same result as a decision it presumably would have in my view used the same language.
(14) The distinction between a decision and a dismissal of an application was raised by Deputy President Thompson in Re Nolan and Minister for Immigration and Ethnic Affairs (unreported No 3557, 29 August 1987): "Section 42A provides simply for the dismissal of an application. Such dismissal results in the termination of the proceedings on the application; consequently the decision of which review was sought remains unchanged. But no decision is made to affirm the decision under review, as may be made after the hearing of an application for review": at 2.
It follows that "the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review that decision": Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 at 544 per Deputy President Forgie.
(15) In my view this is an accurate statement of the effect of dismissal under s 42A. In support of this I note that if the parties consent, a decision can be affirmed. It seems unlikely that the legislature would have provided two means of obtaining an identical result and I consider that this conclusion is consistent with the purpose of the AAT Act. The Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and other Acts and a proper consideration of the matters before the Tribunal permit: s 33(1)(b). The Tribunal is also required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case: s 39. These provisions are manifestations of an underlying policy in the Act that the Tribunal should provide substantial review on the merits and not allow undue technicalities to prevent this happening.(d) Flick's Federal Administrative Law states under the heading "Power to bring second application" at page 287 (as at Update 85) that:
The jurisdiction of the Tribunal to review a decision is exhausted by an order for dismissal and a subsequent application seeking to review the same decision is a nullity.
(e) Section 42A of the AAT Act was amended by the Administrative Appeals Tribunal Amendment Act 1993. For the sake of completeness section 42A as it was before the 1993 amendment is set out below:
Power of Tribunal to dismiss application or strike out party
42A (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may:
(a) where the only other party to the proceeding is the person who made the decision - dismiss the application without proceeding to review the decision; or
(b) in any other case-direct that the person who failed to appear shall cease to be a party to the proceeding.It is noted in particular that subsections (1A), (1B) and (5)-(10) (inclusive) were inserted by that Act. Subsection (6) states that where an application is dismissed, the proceeding to which it relates, if not reinstated, is "taken to be concluded" (emphasis added). And "proceeding" is defined in section 3 of the AAT Act so as to include "an application to the Tribunal for review of a decision".
(f) It is my view that when the statutory regime altered in 1993, so as to include reinstatement powers (exercisable in accordance with the relevant statutory provisions), the decisions in Re Nicholson (supra) and Re Mulheron (supra) became distinguishable. Subsection (6) in particular states that the proceeding is concluded if not reinstated and the definition of proceeding includes the application. This being so I do not think that a second application for review is now competent even where the original application was dismissed without a merits review. I agree with Flick's (supra) view that a second application, where the first has been dismissed, is a nullity.
(g) In case my view set out in the previous subparagraph (f) is incorrect, the remainder of these Reasons is based on the hypothesis that a further application is competent and so that if the Tribunal exercises its discretion under section 29(7) of the AAT Act, to grant an extension of time, a merits review of the further application is possible. On this basis (the validity of which is doubtful) I must then consider whether I should exercise my discretion in favour of the Applicant.
I note also in this matter too, that at no time was it suggested that the dismissal by Deputy President Chappell of the first application on 28 January 1999, pursuant to section 42A(2) of the AAT Act, was in any way erroneous.
In Re Truong I then went on to consider, in case my view as to jurisdiction was incorrect, whether it was a proper case for the exercise of my discretion, and came to the conclusion that it was not. I propose to follow the same course in this case, although I do not think it necessary to set out and repeat in detail the non- exhaustive list of principles extracted from the decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. Suffice it to say that, for reasons similar to those in Re Truong, I do not think that the discretion should be exercised in favour of the Applicant; in this regard:
(i) On the merits the Applicant's case is even weaker than that of Mr Truong. He is, based on his record, a hardened criminal and the danger of recidivism is clearly very high. He has made no contribution to Australia, and in my view, the Australian public would expect such a person to be deported.
(ii) The Applicant has given no reason at all for the delay.
(iii) The Applicant did in fact rest on his rights.
(iv) The Respondent accepts that prejudice to him is not a factor.
This then is, in my view, not a case where my discretion should be exercised in favour of the Applicant.
In the circumstances, the Tribunal does not consider that it has jurisdiction to grant an extension of time in respect of the application now under review, and does not consider that, even if it does have jurisdiction, its discretion should be exercised in favour of the Applicant.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: ...........[sgd. M Ryan]......................................
AssociateDate of Hearing 14 December 2000
Date of Decision 20 December 2000
Applicant self-represented
Representative for the Respondent Mr Isham Muthalib
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