Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 1
•2 January 2020
Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1 (2 January 2020)
Division: GENERAL DIVISION
File Numbers: 2019/1813
Re: Kylie Rob
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R West
Date:2 January 2020
Place:Melbourne
The Tribunal declines to reinstate the application for review pursuant to s 42A(9) of the AAT Act.
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Member R. West
Catchwords
CITIZENSHIP - Citizenship by conferral – citizenship test – refusal for failure to complete – application for review – failure to attend hearing – dismissal under s 42A(2)(a) AAT Act – application for reinstatement – factors to consider – reinstatement refused.
Legislation
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Serpinli v Secretary, Department of Social Services [2019] FCA 2029
Fitzgibbon and Secretary, Department of Social Services [2018] AATA 2385
REASONS FOR DECISION
Member R. West
2 January 2020
This matter concerns an application under s 42A(9) of the Administrative Appeals Tribunal Act 1975 (AAT Act) to reinstate the Applicant’s application for review of the Respondent’s decision to refuse the Applicant’s application for Australian citizenship by conferral made under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act).
The application for review was dismissed by the Tribunal under s 42A(2)(a) of the AAT Act on 2 October 2019 by reason of the Applicant’s failure to attend a hearing of the Tribunal. The Applicant applied for reinstatement of her application for review pursuant to s 42A(9) on 24 October 2019.
An interlocutory hearing (by telephone) was held on 19 December 2019 to consider the application for reinstatement. The Applicant was self-represented. The Respondent was represented by Ms Danielle Nicholson, solicitor.
The application for reinstatement was filed within the time limit stated in s 42A(8B) of the AAT Act, being 28 days after the Applicant received notice of the decision to dismiss.
Upon receipt of a proper application for reinstatement the Tribunal is empowered by s 42A(9) of the AAT Act, which provides:
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.
The Tribunal’s discretion under s 42A(9) is broad.[1] In the instant case the relevant considerations are:
a.the reasons why the Applicant failed to appear at the hearing on 2 October 2019;
b.the Applicant’s conduct in prosecuting her application for review generally;
c.the merits of the application for review;
d.any prejudice to the Respondent in reinstating the application for review;
e.any prejudice to the Applicant in not reinstating the application for review; and
f.the public interest as reflected in the objects of the AAT Act and the Citizenship Act
[1] Serpinli v Secretary, Department of Social Services [2019] FCA 2029, O’Callaghan J at [26], see also Fitzgibbon and Secretary, Department of Social Services [2018] AATA 2385 at [8].
The Respondent contends that it is not appropriate to reinstate the application for review having regard to the Applicant’s unsatisfactory explanation for failing to attend the hearing on 2 October 2019, her ongoing failure to prosecute her application for review and the lack of merit in the application for review.
Background
The documents contained in the Tribunal file indicate that:
a.the Applicant failed to attend four different appointments to sit an approved citizenship test between July 2018 and February 2019 – her failure to sit the test provided the basis for the delegate’s decision to refuse her application for citizenship;
b.having filed an application for review of the delegate’s decision, the Applicant failed to attend a Tribunal telephone preliminary conference listed on 12 July 2019 without notice or explanation;
c.on 23 August 2019, the Applicant made a late adjournment request prior to the telephone preliminary conference scheduled that day, causing that teleconference to be vacated;
d.on 13 September 2019, the Applicant failed to attend a further telephone preliminary conference without notice; and
e.on 2 October 2019, the Applicant failed to attend an interlocutory hearing convened to consider the Respondent’s application to dismiss the application for review pursuant to s 42A(2)(a) of the AAT Act – the Applicant’s failure to attend this hearing was the basis for the dismissal of the application for review which she now seeks to reinstate.
Consideration of Issues
Reasons why the Applicant failed to appear at the hearing on 2 October 2019
In her application for reinstatement the Applicant claimed that she failed to attend the interlocutory hearing because she was unable to access the internet “as I was no longer staying at my address in Spring Street, Thomastown”. At the interlocutory hearing on 19 December 2019 the Applicant attributed her failure to attend the hearing on 2 October 2019 to “personal issues”. She said that she had been suffering anxiety and stress as a result of a marital separation which caused her to forget appointments. She claimed her lack of access to the internet meant she was not reminded of the hearing. When questioned by the Tribunal as to why she did not respond to repeated telephone calls on the day of the hearing she said she must have gone out without her phone. The Applicant was given the opportunity to produce medical evidence related to her claimed anxiety and stress. She produced a report from Mr Warrick Arblaster, psychologist, dated 2 April 2018. It confirmed that she had been diagnosed with an adjustment disorder with anxiety and depression. However, the report concerns the Applicant’s mental condition twelve months prior to the date upon which she lodged her application for review. The report gave no indication that the Applicant had the memory or cognitive deficits which she claimed caused her to forget appointments to sit the citizenship test and attendances before the Tribunal. In fact the report indicates to the contrary as it confirms that the Applicant was able to attend some ten appointments with Mr Arblaster over the period from August 2017 to March 2018.
The Tribunal is not satisfied that Mr Arblaster’s report confirms the Applicant’s explanation for non-attendance at the hearing on 2 October 2019 and finds that the Applicant does not have an adequate explanation for her non-appearance on that date.
The applicant’s conduct in prosecuting her application for review generally
The Tribunal’s file demonstrates a continuing pattern of failure on the part of the Applicant to engage in any of the steps necessary to advance her citizenship application or to prosecute her application for review. Her failure has resulted in significant inconvenience to the Respondent and to the Tribunal. Her explanation was that these failures were due to her “personal issues”, including her anxiety and depression. The Applicant failed to provide evidence to substantiate this claim other than the medical report of Mr Arblaster which, for reasons discussed earlier, is of little probative value. As a result the Tribunal is not satisfied that the Applicant had a reasonable explanation for her failure to engage in any of the steps necessary to advance her citizenship application or to prosecute her application for review.
The merits of the application for review
The Respondent contends that the application for review has no reasonable prospects of success.
The material currently before the Tribunal indicates that the Applicant has not sat or passed the citizenship test, which is necessary in order for an applicant to meet the general eligibility requirements stated in s 21(2)(d),(e) and (f) of the Act. The Applicant conceded that she did not meet this requirement and indicated that what she sought by reinstating her application for review was to secure a further opportunity to sit the test. In that regard, the Respondent correctly asserts that an Applicant does not have an express or implied “right” to re-sit the test as many times as the Applicant wishes before the application is decided. The Applicant has had a reasonable opportunity to sit the test and the Tribunal has an obligation to resolve the issues on review without undue delay. The Applicant’s argument that she should have her case reinstated in order to secure an adjournment of the hearing so that she can have a fifth opportunity to sit the test is a weak one.
Prejudice to the respondent in reinstating the application for review
The Respondent is entitled to have this matter resolved, but it has not identified any significant prejudice it would suffer if the matter were reinstated. The Tribunal gives this consideration little weight.
Prejudice to the Applicant in not reinstating the application for review
There is no statutory impediment to the Applicant lodging a fresh application for citizenship if the application for review is not reinstated. In fact, given the lack of merit in her case, the Applicant would be better served by making a new application rather than continuing on with a contested proceeding in the Tribunal.
The public interest
Section 2A of the AAT Act requires the Tribunal to pursue the objectives of providing a mechanism of review that is, among other things, economical and quick and that promotes public trust and confidence in its decision-making.
These objectives are not served by facilitating the continuation of unmeritorious claims or by ignoring delay and turning a blind eye to a party’s persistent failure to engage in the mechanisms of review provided by the Tribunal.
Conclusion
Having regard to each of the considerations identified in paragraph 6 above, the Tribunal is not satisfied that it is appropriate to reinstate the Applicant’s application for review.
Decision
The Tribunal declines to reinstate the application for review pursuant to s 42A(9) of the AAT Act.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Member R. West
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Associate
Dated: 2 January 2020
Date of hearing: 19 December 2019
Applicant: Self-represented
Solicitor for the Respondent: Danielle Nicholson
SPARKE HELMORE
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