Re Wright and Child Support Registrar

Case [2004] AATA 1362


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 385

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

REASONS FOR DECISION

Ms G Ettinger, Senior Member

31 August 2015

SUMMARY

  1. 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…

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Details
AGLC
Re Wright and Child Support Registrar [2015] AATA 658
Case
[2004] AATA 1362
Decision Date

CaseChat Overview and Summary

In the case of Re Wright and Child Support Registrar, the Applicant sought an extension of time to lodge an application for review of a decision made by a delegate of the Department of Immigration and Citizenship (as it then was) concerning the cancellation of the Applicant’s approval for Australian citizenship. The Respondent opposed the application for an extension of time, arguing that it would be inappropriate to grant an extension given the two-year delay between the receipt of the reviewable decision and the application for an extension of time. The Applicant also sought reinstatement of her application for review, which had been voluntarily withdrawn by the Applicant’s legal representative. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the application for an extension of time should be granted and whether the application for reinstatement should be upheld.

The legal issues before the AAT included whether the application for an extension of time should be granted given the two-year delay, whether the application for reinstatement should be granted, and whether there had been an identifiable error in the dismissal of the application for review. The AAT considered the principles regarding reinstatement as expressed in Kalafatis and Commissioner of Taxation, and whether there had been an identifiable error in the dismissal of the application for review. The AAT also considered the principles regarding extensions of time, including 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.

The AAT found that the application for an extension of time should be refused, as the delays resulted from deliberate steps taken by the Applicant and her legal representative to pursue other avenues of appeal. The AAT also found that the application for reinstatement should be refused, as there had been no voluntary withdrawal of the application for review, and the Tribunal could not discern any identifiable error in the dismissal of the application for review. The AAT considered the principles regarding extensions of time and found that it was not fair and equitable to extend time in the circumstances of this case.

The AAT refused 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 dated 8 April 2013. The AAT also refused Mr Grass’ application for reinstatement of the application for review of the decision of the Departmental delegate dated 8 April 2013.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.