Re Wright and Child Support Registrar
[2004] AATA 1362
•17 December 2004
Grass and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 658 (31 August 2015)
Division
General Division
File Number
2015/2037
Re
Corazon Grass
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
File Number
2013/1680
Re
John Grass
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 31 August 2015 Place Sydney The Tribunal refuses Mrs Grass’ application for an extension of time to lodge an application for review of the decision of a delegate of the Department of Immigration and Citizenship (as it then was), dated 8 April 2013 pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975.
The Tribunal refuses Mr Grass’ application for reinstatement of the application for review of the decision of the Departmental delegate dated 8 April 2013 pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975.
........................[sgd]................................................
Ms G Ettinger, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review – cancellation of approval of Australian citizenship following delay resulting from unlawful actions of a delegate of the Minister for Immigration and Citizenship (as he then was) - two year delay between receipt of reviewable decision and application for extension of time - well established principles from well-known cases applied - application refused
PRACTICE AND PROCEDURE – Application for reinstatement pursuant to s 42A(10) – withdrawal of application – whether dismissed in error – whether any identifiable error – Tribunal cannot discern error - application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 29(2), 29(7), 42A(1B), 42A(8), 42A(10)
Australian Citizenship Act 2007 s 25(2)(a)(iii)
CASES
Grass v Minister for Immigration and Citizenship [2013] FMCA 74
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176
Comcare v A’Hearn (1993) 119 ALR 85
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Jackamarra v Krakouer (1998) 195 CLR 516
Re Kalafatis and Commissioner of Taxation [2012] AATA 150
Re Wright and Child Support Registrar [2004] AATA 1362
Re Hamilton and Commission for Superannuation [2003] AATA 122
Re Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care [2000] AATA 72
Re Iacovetta and Comcare [2005] AATA 955
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
REASONS FOR DECISION
Ms G Ettinger, Senior Member
31 August 2015
SUMMARY
Mrs Corazon Elauria Grass, the Applicant, lodged an application dated 27 April 2015 for review of a decision of a delegate of the Department of Immigration and Citizenship (as it then was),(the Department). The Department’s decision dated 8 April 2013, cancelled the approval of her application for Australian citizenship pursuant to section 25 of the Australian Citizenship Act 2007 (the Citizenship Act). Pursuant to section 29(2) of the Administrative Appeals Tribunal Act 1975, (the AAT Act), an application for review must be made within 28 days of receipt of the reviewable decision. Mrs Grass’ application for review of the delegate’s decision was lodged almost two years out of time.
The Tribunal has powers under section 29(7) of the AAT Act to extend the time for Mrs Grass to apply to the Tribunal for review of the decision if it is satisfied that it is reasonable in all the circumstances to do so.
This case has some unusual elements, and a brief history of the background will put it in context. The documents before me indicate that Mrs Grass made an application for Australian citizenship by conferral which was approved on 21 May 2009. However, citizenship is only conferred when an approved applicant makes a pledge of commitment. Mrs Grass’ attendance to take the citizenship declaration and pledge was delayed by the Department. She was not advised of the real reasons for the delay. However it appears from the material before me that doubts had arisen regarding documentation she had provided to the Department which raised issues of good character. The delegate implementing the delay acted without lawful authority, and ultimately misled Mrs Grass with regard to the reasons for the delay.
The Minister’s first cancellation decision, dated 5 July 2010 and made prior to Mrs Grass making a pledge of commitment, cancelled approval for Mrs Grass’ application for Australian citizenship due to a finding of bad character pursuant to section 25(2)(a)(iii) of the Citizenship Act. It was set aside by consent by the Federal Magistrates Court of Australia (as it then was) on 13 February 2013, on the basis that by the making of this decision, Mrs Grass had been denied procedural fairness. Further, that the delays Mrs Grass experienced with regard to the pledge of commitment were improper (Grass v Minister for Immigration and Citizenship [2013] FMCA 74). The implementation of the Order setting aside the cancellation of the approval of the Applicant’s application for Australian citizenship was, on the Minister’s application, delayed by the Federal Magistrates Court until 8 April 2013.
On 8 April 2013, the same day that the Order of the Federal Magistrates Court came into effect quashing the first decision of the Minister’s delegate, a second delegate made a further decision cancelling approval for Mrs Grass’ application for Australian citizenship. It is in relation to this decision that Mrs Grass now seeks an extension of time to lodge an application for review pursuant to section 29(7) of the AAT Act.
At the hearing of this application Mr John Raymond Grass and Mrs Grass were represented by Professor Kim Rubenstein, Director, Centre for International and Public Law, Australian National University, acting on a pro bono basis. The Tribunal acknowledges Professor Rubenstein’s assistance with thanks.
The Minister was represented by Mr Patrick Knowles of counsel, and Ms Katherine Hooper, solicitor of DLA Piper Australia.
The parties filed a number of documents which I have taken into evidence, and which have assisted with my decision making. They are as follows:
·Exhibit A1 is an affidavit of Mr Grass with attachments, dated 21 July 2015.
·Exhibit A2 is a report of Ms Lander, a psychologist, dated 12 November 2012.
·Exhibit A3 is a further report of Ms Lander dated 14 February 2014.
·Exhibit A4 is Mrs Grass’ application for an extension of time to lodge an application for review of the decision of a delegate of the Department dated 8 April 2013. Exhibit A4 also has attachments.
·Exhibit R1 is an affidavit of Ms Hooper, dated 17 July 2015, with attachments.
·Exhibit R2 is a compilation of cases in which Mr and Mrs Grass have had involvement at this Tribunal, the Federal Magistrates Court (as it then was), the Federal Court of Australia and the Federal Circuit Court.
I have decided to refuse Mrs Grass’ application for an extension of time to lodge her application for review of the decision of the Departmental delegate dated 8 April 2013.
I have also refused to reinstate the application which Mr Grass withdrew at the Tribunal on 1 November 2013, and which was dismissed pursuant to section 42A(1B) of the AAT Act. My reasons follow.
ISSUES TO BE DECIDED
The application before the Tribunal was the application of Mrs Grass for an extension of time to lodge her claim for review in this Tribunal of the decision of a delegate of the Department dated 8 April 2013, which cancelled approval of her application for Australian citizenship.
I must decide whether it is reasonable in all the circumstances of this case to grant Mrs Grass an extension of time to lodge her application for review of the delegate’s decision (section 29(7) of the AAT Act).
Professor Rubenstein submitted that in the alternative, Mr Grass was seeking reinstatement of his application to the Tribunal dated 16 April 2013 for review of the decision of a delegate of the Department dated 8 April 2013. It is undisputed that Mr Grass withdrew that application on 1 November 2013, and that the Tribunal dismissed the matter pursuant to section 42A(1B) of the AAT Act.
MRS GRASS’ EXTENSION OF TIME APPLICATION
The well-known case of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176 sets out the principles that are generally taken into account when considering whether to exercise the discretion to grant an extension of time. Mr Knowles submitted that the factors assuming particular importance in this case were the length of the delay in Mrs Grass applying for review, the explanation for this delay, and whether it was fair and equitable in all the circumstances to extend time. He submitted that the extension should not be granted because the application was an attempt to re-litigate matters already determined, and because the Applicant had deliberately chosen other avenues of review.
Explanation for the delay and whether the Applicant rested on her rights
I am mindful that in Hunter Valley Developments, the Court stated that prima facie, the 28 day time limit, which is the statutory period for appeal, cannot be ignored. In the case of Mrs Grass, it is two years (application dated 27 April 2015), since the second decision to cancel approval of her application for Australian citizenship was made on 8 April 2013.
One of the main factors explored in Hunter Valley Developments was whether there was an acceptable explanation for the delay. I note however from Comcare v A’Hearn (1993) 119 ALR 85 that such an explanation is not an essential pre-condition for the granting of the extension.
I noted that it was Mr Grass who made the application to the Tribunal for review of the decision of 8 April 2013 referable to Mrs Grass, as he characterised himself as a person affected by the decision of the delegate of the Minister. He deposed at Exhibit A1, and as submitted by Professor Rubenstein, that he withdrew the application on 1 November 2013. The reason Mr Grass gave for withdrawing his application from this Tribunal was that, he was told by Ms Katherine Hooper, a solicitor representing the Respondent that Mrs Grass and her children would be required for cross-examination, which would include discussion of distressing events which occurred when she was very young. Mr Grass said that her children had no knowledge of their mother’s trauma, and that he did not wish to subject Mrs Grass to more trauma through cross-examination. He stated that he is not legally qualified, and did not know he could request confidentiality orders over sensitive material.
Mr Knowles submitted that Mr Grass had been represented by a lawyer at various times, and that he knew exactly what he was doing in regard to appeals.
I note both submissions, and note further that prior to making an application to the Tribunal, Mr and Mrs Grass made a decision to pursue other avenues of appeal, being the Commonwealth Ombudsman, the Federal Magistrates Court (as it then was), the Federal Court and the Federal Circuit Court.
Professor Rubenstein submitted that Mr Grass’ explanation for the delay should be accepted as Mrs Grass had not rested on her rights. She submitted that Mrs Grass, with the assistance of her husband who has represented her interests extensively, pursued all avenues of appeal until they were virtually exhausted. She made a conscious decision not to seek special leave to appeal to the High Court due to financial considerations, and hence, following the decision of the Full Federal Court in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, applied for review of the decision of the Department with this Tribunal.
Professor Rubenstein also submitted that Justice Kirby in Jackamarra v Krakouer (1998) 195 CLR 516 stated that the principles in relation to extensions of time canvassed in Hunter Valley Developments were not exhaustive, and that a consideration of whether the delays were intentional or contumelious, whether they were the result of a bona fide mistake, and whether the delay was that of legal representatives or of the party, were relevant. She submitted with reference to Mr Grass’ affidavit, that it was to protect his wife’s interests that he withdrew the application for review with this Tribunal on 1 November 2013.
Professor Rubenstein submitted that the present application was in no way an attempt to re-litigate a matter which the Tribunal has determined. Ultimately both parties agreed, and I accepted, that no issues of res judicata or estoppel have arisen as a result of the withdrawal of Mr Grass’ application because no final decision was made by the Tribunal. I have also noted the Respondent’s submission that the withdrawal is relevant to the exercise of the Tribunal’s discretion to extend time (Re Kalafatis and Commissioner of Taxation [2012] AATA 150).
I note that Mrs Grass’ two year delay in applying for review of the decision of 8 April 2013 was due to the fact both she and Mr Grass had made a decision to pursue and exhaust other avenues of appeal before returning to this Tribunal. I am satisfied that they have not rested on their rights in that they have pursued these other avenues. However, the reasons for not proceeding at the Tribunal are not convincing, and I find the delay excessive. I am not satisfied that the explanation for the delay gives weight to the argument for an extension of time.
I have also noted Mr Grass’ stated reason
sfor withdrawing his appeal to the Tribunal which were to protect Mrs Grass from being publicly examined about distressing events which occurred in her youth. I note from the reports of Ms Lander, a psychologist, prepared in 2012 and 2014 which are before the Tribunal (Exhibits A2 and A3 respectively), that Mrs Grass suffers symptoms of depression and anxiety, and that her immigration issues are causing her stress. I am satisfied however that Mr Grass was legally represented at various times, and I am not satisfied that he could not he could have made inquiries with the Tribunal or elsewhere, and ascertained that in certain circumstances, the Tribunal will agree to close a hearing to the public, and treat evidence and documentation on a confidential basis.I am not satisfied with Mr Grass’ explanation for not applying sooner for a reinstatement of the application which he had withdrawn, and which was therefore dismissed pursuant to section 42A(1B) of the AAT Act.
The issue of prejudice to either party
I have also considered the issue of prejudice to either party in relation to the application by Mrs Grass for an extension of time to lodge an application for review. Mrs Grass contends that if she is not permitted to have the decision reviewed by the Tribunal, then her opportunities to demonstrate that it is not the correct or preferable decision will be curtailed. Amongst other things, she would be denied the rights that flow from Australian citizenship, including the vote, and the freedom to travel in and out of Australia. Professor Rubenstein also pointed out that all Mrs Grass’ family, including her children, are Australian citizens.
The Respondent however, argued that prejudice to the Commonwealth exists in that it would be faced with the necessity of further defending proceedings concerning the decision of 8 April 2013, noting also that no costs are recoverable at the Tribunal.
I note that the Applicant has sought to have the decision reviewed in a number of different Courts, and that the Respondent has spent public moneys in each case. Mr Grass, as his wife’s representative, and because he has argued that his interests have been affected by the decision of the Minister, has been permitted to make applications for review in his own name. Most recently, Mrs Grass’ application was rejected by the Full Federal Court on 27 March 2015 (Grass v Minister for Immigration and Border Protection [2015] FCAFC 44). Rather than seeking leave to apply to the High Court, Mrs Grass applied for an extension of time to lodge her application for review with this Tribunal, some two years after the decision of 8 April 2013 was made.
I prefer the argument of the Respondent in this case, and find that costs to the community and the resulting prejudice to the Respondent would flow from having to defend Mrs Grass’ application at the Tribunal.
Public considerations
In regard to public considerations, Professor Rubenstein argued that the grant of an extension of time in this case would not unsettle established practices, but rather acknowledge the particular circumstances of the matter.
I have noted the Applicant’s submission on the issue of public considerations, which is not of great import in this case.
Merits of the substantive application
Professor Rubenstein submitted that there had not yet been an opportunity to test the merits of the substantive application due to the concerns Mr and Mrs Grass had in that they might be unable to protect Mrs Grass from further trauma during a Tribunal hearing. She suggested however, that Mrs Grass would mount a strong case to show that the cancellation of her approval for Australian citizenship was not the correct or preferable decision.
The Respondent did not make detailed submissions with regard to the merits of the case.
Whilst it is not appropriate in an interlocutory hearing of this type to conduct an extensive review of Mrs Grass’ case, or its prospects of success at the Tribunal, I have to conclude that notwithstanding certain obstacles, her case is not entirely without merit.
Fairness between the Applicant and others in a like position; Fair and equitable in all the circumstances to extend time
I have also considered whether it is fair and equitable in all circumstances to extend time. Professor Rubenstein submitted that fairness in the matter demanded that Mrs Grass be given the opportunity of pursuing merits review of the cancellation decision of 8 April 2013. She submitted that there would be few cases where a consideration of situations such as that encountered by Mrs Grass in her youth would have given rise to the delays in making the application, and be accompanied by what she termed as obstructive behaviour on the part of the Department. Professor Rubenstein also noted that the Department’s behaviour towards Mrs Grass had drawn criticism from the Ombudsman and Full Federal Court.
Professor Rubenstein also submitted that in his affidavit, Mr Grass had fully explained the reasons for the length of the delay in applying to the Tribunal, and explained that he was not aware he could apply for the hearing to be held in private. She submitted that whilst the principles in the case of Hunter Valley Developments were relevant, Justice Kirby in Jackamarra v Krakouer stated that the principles in relation to extensions of time canvassed in Hunter Valley Developments were not exhaustive, and that a consideration of whether the delays were intentional or contumelious, whether they were the result of a bona fide mistake, and whether the delay was that of legal representatives or of the party, were relevant.
Mr Knowles submitted emphatically that it was not fair and equitable to extend time in circumstances where the Applicant had deliberately chosen not to exercise her rights of review by the Tribunal, and had chosen another course of action. I could not discern any error of a legal representative contributing to the delay, there was no evidence of a bona fide mistake, and I am satisfied to conclude that the delays resulted from deliberate steps taken by Mr and Mrs Grass to pursue other avenues of appeal.
The Respondent cited various cases in support of its argument, including Re Wright and Child Support Registrar [2004] AATA 1362, Re Hamilton and Commission for Superannuation [2003] AATA 122, Re Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care [2000] AATA 72 and Re Iacovetta and Comcare [2005] AATA 955.
Mr Knowles did not refer to the above cases in his oral submissions. I quote however from the Respondent’s written submissions on the application for an extension of time:
17.1 In Wright and Child Support Registrar [2004] AATA 1363, the AAT refused to grant the applicant an extension of time to apply for review of a child support assessment decision made by the Child Support Registrar (at [22]). The applicant did not seek review of the decision by the AAT, but instead sought to resolve the matter through negotiations with her former spouse (at [9]). The AAT held that it would not be fair and equitable to exercise its discretion to extend time where the applicant ‘deliberately chose’ other courses of action instead of challenging the relevant decision in the manner permitted by the legislation (at [21]).
17.2 In Hamilton and Commissioner for Superannuation [2003] AATA 122, the AAT refused to grant the applicant an extension of time to apply for review of a decision made by the Commissioner of Superannuation not to grant the applicant a late election to preserve his superannuation benefits (at [10]). The applicant, seven years prior to applying for an extension of time applied to the AAT for review within time of the decision, but withdrew under section 42A(1A) of the AAT Act. The AAT identified eight factors of special significance in reaching the decision, including the fact that the applicant was legally represented, aware of his rights, and in those circumstances deliberately chose not to exercise those rights fully by withdrawing (at [9]). Other factors included the lack of an acceptable explanation for the delay, the prejudice to the respondent (because the application was extremely late), and the weak substantive case of the applicant.
17.3 In Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care [2000] AATA 72, the AAT exercised its discretion to grant the applicant an extension of time to apply for review of the Minister for Health and Aged Care’s decision not to register the applicant’s therapeutic good (at [35]). The applicant accepted the Minister’s decision, until the AAT published a decision in another matter concerning a similar product, in which it set aside the Minister’s decision and remitted the matter to the respondent. The AAT held that in normal circumstances it would have refused the application for extension of time, on the basis that the applicant made a deliberate decision not to seek review by the AAT, and as such should not be held to that decision (at [32]). However, the AAT made its decision on the basis of public interest considerations, namely that the drug’s registration advances the common good in terms of competition and therapeutic good choice (at [27]), and on the basis that the applicant had reasonable prospects of success given that AAT’s decision in relation to the similar product (at [28]).
17.4 In Iacovetta and Comcare [2005] AATA 955, the AAT refused to grant the applicant an extension of time to apply for review of a Comcare decision rejecting the applicant’s claim for compensation in relation to a back injury (at [57]). The AAT held that the applicant made a ‘deliberate and strategic choice’ not to seek review of the decision with full knowledge of the time limits, and chose instead to obtain further medical reports to persuade Comcare to reconsider its decision (at [33]). The AAT held that the applicant rested on his rights, because after he failed to persuade Comcare, he waited for a significant period of time without reasonable explanation to apply to apply for an extension of time (at [34]).
As can be seen from the Respondent’s summaries reproduced above, those cases mainly deal with situations where applicants have made informed choices, often with legal representation, to try other modes of settling their cases, before returning to make extension of time applications to the Tribunal. I make comment on two of the abovementioned cases.
In Hamilton and Commissioner for Superannuation, the Tribunal’s refusal to grant an extension of time was based upon eight factors, including the fact the applicant was legally represented, aware of his rights, and chose not to exercise those rights. Paragraph 9 of the Decision which I have reproduced below, provides information about those factors:
….
The Respondent provided the Tribunal with a lengthy written submission that the Applicant should not be granted an extension of time. The submission contained 66 paragraphs over 14 pages. It is not necessary to repeat all of those submissions in this decision. However, the Tribunal accepts that all of the submissions were valid and adopts the following submissions as being of special significance in this decision.
There is no acceptable explanation given by the Applicant for the cause of the delay from 1994 until 2002 in seeking the review for the second time.
The Applicant was legally represented in the First Application, he was aware of his rights, and he deliberately chose not to exercise those rights fully.
In the years from the date of the withdrawal of the first application to the date of the second application, the Applicant gave no indication to the Respondent that he did not consider the reviewable decision to be final.
The Respondent would be prejudiced by the extremely late application for review because:
The events which surrounded the Applicant’s resignation and election in 1981/82, occurred over 20 years ago.
The Applicant’s file was destroyed in accordance with archival policy before the reviewable decision was made. Therefore, potential evidence as to what advice the applicant obtained from the RBO before his resignation in 1981 is not available.
The Respondent is potentially prejudiced in being unable to identify witnesses to give oral evidence as to the circumstances of the applicant’s completion of the Form S2A. If witnesses were available, it is unlikely that after more than 20 years, their memories would be reliable as to what resigning employees in general and the Applicant in particular, were told about their superannuation options. Consequently, the Respondent and the Tribunal are not able to test properly the Applicant’s evidence as to what he was advised about superannuation.
Elections play a central role in the determination of the entitlements of contributors and the orderly administration of the scheme. The regime of internal and external review of decisions established by section 154 of the Act is designed to promote the orderly administration of the scheme by ensuring that the question of whether a person is entitled to late election is capable of being determined unequivocally and in a timely manner. Failure to comply with the time limits prescribed under the Act is prejudicial to the orderly administration of the scheme. It is especially prejudicial to the respondent having to devote considerable resources to investigating events which occurred over 20 years ago, as is the case here.
In the circumstances, it is unreasonable for the Respondent again to be made a party to litigation in the same forum and incur the costs of litigation of the same decision, particularly as the Applicant cannot be the subject of a costs order.
It is in the public interest that procedural time limits should be enforced unless the merits of the particular application warrant an extension: Commissioner for Superannuation v Boardman (1994) 50 FCR 236 at 245.
On the basis of the material presently available, the Applicant’s substantive case is weak.
The Applicant’s central argument is that at the time he completed the Form S2A he was ignorant of the preservation option. However, there is no compelling evidence before the Tribunal to indicate that the Applicant’s decision was not informed.
There is no evidence that the Applicant was unable to understand the choice he made by reason of physical or mental incapacity.
On re-employment by Telecom in 1987 the Applicant would have been made aware of superannuation options. The Applicant did not make a late election until 1990.
For a late election to be treated as though it were not late, the Commission had to be ‘satisfied that in all the circumstance of the case it is desirable that the election should be recognised’. By ‘desirable’ it is meant ‘that of being fair in order to do justice between the person who seeks to make the late election and the requirements of the fund’: Commissioner for Superannuation v Boardman (1994) 50 FCR 236 at 247. It is only desirable to recognise a late election if there are objectively good reasons which justify the person’s not being required to comply with the time limits otherwise specified in the Act: Re Liddle and Commissioner for Superannuation 1991 14 AAR 456. The evidence before the Tribunal does not demonstrate objectively good reasons why the Applicant’s election, made eight years after the time prescribed by the Parliament, should be recognised or that to do so is necessary to do justice between the Applicant and the Respondent.
The Tribunal considers that this is a case where the balance of factors is strongly against the granting of an extension of time to the Applicant to make application for review of the decision made on 30 November 1992.
In Pharmacia & Upjohn, the Tribunal decided that in the particular circumstances of the case, notwithstanding the applicant had made a deliberate decision not to seek review at the Tribunal, it allowed the extension of time on the basis of public interest considerations with regard to a drug’s registration, and on the basis that the applicant had a reasonable prospect of success given the Tribunal’s previous decision in relation to a similar product. I find there is no such persuasive factor in Mrs Grass’ case.
Mr Knowles also submitted that the Tribunal should consider that Mr Grass, as a person whose interests were affected by a decision of the Department, sought review, and was granted standing to do so in various courts, and in this Tribunal, and ultimately withdrew the application made at this Tribunal. Mr Knowles submitted that Mr Grass was seeking to re-litigate the matter at the Tribunal, and cited the case of Kalafatis and Commissioner of Taxation as authority for the fact that in considering Mrs Grass’ application for extension of time, Mr Grass’ withdrawal should be included in a consideration of all the circumstances surrounding the application.
I have considered the submissions of both parties and the situation of fairness between the Applicant and others in a like position. A two year delay is not an inconsiderable time, and unless the reasons were compelling, and not an example of court shopping, an extension of time would not be granted to an Applicant.
I prefer the submissions of the Respondent. I am satisfied and find that applying the indicia in Hunter Valley Developments, and noting also Kirby J in Jackamarra v Krakouer, it would not be fair and equitable in all the circumstances to extend time.
The application to extend time is refused.
MR GRASS’ APPLICATION FOR REINSTATEMENT PURSUANT TO SECTION 42A(10)
I have noted above that the primary application before this Tribunal was the application of Mrs Grass for an extension of time to lodge her application for review of the decision of the Departmental delegate dated 8 April 2013, which cancelled approval of her application for Australian citizenship. Professor Rubenstein submitted that if this application were not to be successful, Mr Grass was, in the alternative, seeking reinstatement of his application to the Tribunal dated 16 April 2013 (for review of the same 8 April 2013 decision) pursuant to section 42A(10) of the AAT Act. It was undisputed that he had withdrawn that application on 1 November 2013, and that it was subsequently dismissed by the Tribunal pursuant to section 42A(1B) of the AAT Act.
Mr Grass’ application for reinstatement was referred to both in the document titled ‘Applicant’s Submissions for Application for an Extension of Time’ and during Professor Rubenstein’s oral submissions. Although the application has been made in the alternative, that is, if Mrs Grass’ application was to be unsuccessful, I have treated the application as if it were a formal application for reinstatement for the purposes of this decision.
Professor Rubenstein submitted that Mr Grass’ reason for the withdrawal of the application was to protect his wife from having to be cross-examined in the Tribunal, and with regard to possible publicity regarding distressing events which had occurred in her early life. She submitted that Mr Grass understood Ms Hooper to have made threats about Mrs Grass having to be cross-examined at the Tribunal hearing, and that Mr Grass withdrew the application as he did not understand how else he could protect his wife.
Professor Rubenstein submitted that Mr Grass’ application should be reinstated pursuant to section 42A(10) of the AAT for all the reasons given in the document ‘Applicant’s Submissions for Application for an Extension of Time’.
Professor Rubenstein submitted that the identifiable error which made reinstatement preferable, evolved from the activity of the Department in its treatment of Mrs Grass, and the belief Mr Grass held that he could not protect his wife against what he perceived as the threats and actions of Ms Hooper if the matter proceeded to hearing.
The Respondent agreed that no issues of res judicata or estoppel arise because Mr Grass withdrew his application, and no decision on the issues had therefore been made, but submitted that Mr Grass would not be successful in having his application reinstated pursuant to section 42A(10) of the AAT Act
In coming to a decision I note that the power to reinstate an reinstate an application is available pursuant to sections 42A(8), (8A), (9) and (10) of the AAT Act. Section 42A(10) which deals with error, follows:
Reinstatement of application
(8) …
(8A) …
(9) …
(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.
A person affected by a dismissal of his or her claim may apply for reinstatement either 28 days after receiving notification that the application has been dismissed, or may request an extension. The Tribunal has the power pursuant to section 42(8A)(b) to permit a longer period in special circumstances. Pursuant to section 42A(9) of the AAT Act, the Tribunal may reinstate an application and give directions in regard to it. The Tribunal may also, pursuant to section 42A(10) of the AAT Act, reinstate an application which it finds was dismissed in error.
I am mindful of the arguments of both parties in regard to the Applicant’s extension of time as noted above in relation to her application made under section 29(7) of the AAT Act. I have refused that application on the basis of applying the principles discussed by Wilcox J in Hunter Valley Developments and Jackamarra v Krakouer.
I have also noted Professor Rubenstein’s submissions in regard to section 42A(10) of the AAT Act, and the interpretation of error by reference to the cases of Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385, and Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367. Her submission in particular was that, pursuant to Goldie, it need not have been an error of the Tribunal or its Members or officers, and that the fault may have lain elsewhere. I am not satisfied that she has identified an error of the Tribunal or elsewhere.
I am not satisfied that the application was dismissed in error. Mr Grass voluntarily withdrew his application, and the Tribunal dismissed it pursuant to section 42A(1B) of the AAT Act. I take into account also the principles regarding reinstatement as expressed in Kalafatis and Commissioner of Taxation. I did not discern from the submissions of the parties, or elsewhere, that there had been an identifiable error. The application for reinstatement is not made out, and must be refused.
DECISION
The Tribunal refuses Mrs Grass’ application for an extension of time to lodge an application for review of the decision of a delegate of the Department of Immigration and Citizenship (as it then was), dated 8 April 2013 pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975.
The Tribunal refuses Mr Grass’ application for reinstatement of the application for review of the decision of the Departmental delegate dated 8 April 2013 pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .............................[sgd]...........................................
Associate
Dated 31 August 2015
Date of hearing 22 July 2015 Solicitors for the Applicants
Professor K Rubenstein, of Centre for International and Public Law, Australian National University
Counsel for the Respondent Mr P Knowles Solicitors for the Respondent Ms K Hooper, DLA Piper
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