Thompson and Secretary, Department of Home Affairs
[2024] AATA 2853
•9 August 2024
Thompson and Secretary, Department of Home Affairs [2024] AATA 2853 (9 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9977
Re:Sean Thompson
APPLICANT
Secretary, Department of Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:9 August 2024
Place:Adelaide
The application for reinstatement is refused.
..........................[Sgnd]..............................................
Senior Member George
Catchwords
PRACTICE AND PROCEDURE – application for reinstatement – matter dismissed for non-appearance of applicant – whether appropriate to reinstate matter – merits poor – application for reinstatement refused
Legislation
Administrative Appeals Tribunal Act 1975
Maritime Transport and Offshore Facilities Security Regulations 2003
Cases
Ahmad and Secretary, Department of Home Affairs [2022] AATA 4779
Sobczuk and Commissioner of Taxation [2004] AATA 655
REASONS FOR DECISION
Senior Member George
9 August 2024
Mr Sean Thompson applied for a Maritime Security Identification Card. Mr Thompson has a significant criminal history. Amongst other criminality, he has been convicted and sentenced to periods of imprisonment for drug trafficking and money laundering. These are Tier 3 maritime security offences within the meaning of the Maritime Transport and Offshore Facilities Security Regulations 2003.
Mr Thompson’s application for a Maritime Security Identification Card was refused. He applied to the Tribunal for merits review on 20 December 2022.
On 6 June 2023, Mr Thompson’s application was dismissed for non-appearance pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975. The Tribunal was satisfied that Mr Thompson was given appropriate notice of the time and place of the telephone directions hearing. Mr Thompson failed to appear at the telephone directions hearing.
Mr Thompson was notified of the dismissal of his application. He was notified that he had 28 days to apply for reinstatement, but that more time may be allowed in special circumstances. The Tribunal’s power of reinstatement in special circumstances is conferred under section 42A(11)(b) of the Administrative Appeals Tribunal Act 1975.
On 2 April 2024, Mr Thompson applied for reinstatement of his application. Mr Thompson wrote that he had been unable to appear before the Tribunal because he had been in prison. He advised that he tried to notify the Tribunal that he could not attend. Mr Thompson said that he had been sentenced in April and released onto home detention in August. He denied being a threat to national security. He wrote that he had learned from his mistakes. He indicated that he wanted to get his life back on track and that he has a growing family. Mr Thompson says that he can access a rail yard but not the port and it is affecting his employment prospects. Mr Thompson has also given the details of a new Maritime Security Identification Card application that he has made.
The Respondent opposes Mr Thompson’s reinstatement application. It regards the reinstatement application as an abuse of process and an attempt to circumvent an internal review decision of 28 March 2024. In that decision, the Respondent found that Mr Thompson constituted a threat to the security of maritime transport and that there were no conditions that may be imposed on Mr Thompson as a condition of holding a Maritime Security Identification Card that would ameliorate that threat.
The question for the Tribunal is whether, or not, special circumstances arise such that would enliven the discretion to reinstate Mr Thompson’s application under section 42A(11)(b) of the Administrative Appeals Tribunal Act 1975.
With significant reservations, the Tribunal accepts that Mr Thompson was unable to appear on 6 June 2023 because he was imprisoned and that he was unable to apply for an adjournment. However, Mr Thompson was physically released from prison onto home detention in August 2023. He did not apply for reinstatement until April 2024. His indifference to these proceedings during that interval are unexplained.
There are significant issues with the merits of Mr Thompson’s application due to his criminal record. Indeed, the evidence before the Tribunal is that Mr Thompson is currently under a sentence of imprisonment for money laundering. In Ahmad and Secretary, Department of Home Affairs [2022] AATA 4779, Emeritus Professor Fairall posited at [49] that it must be an exceptional case to justify the granting of a Maritime Security Identification Card to a person under sentence of imprisonment for a Tier 3 offence. The Tribunal concurs with that view and adds that it is irrelevant whether a person is physically incarcerated or otherwise serving their sentence on home detention.
The Tribunal has had regard to Sobczuk and Commissioner of Taxation [2004] AATA 655 where Senior Member McCabe (as his Honour was) declined to allow a reinstatement application after a preliminary assessment of the merits of the case. Senior Member McCabe found that reinstatement would be a waste of time and resources in that matter.
The Tribunal’s preliminary assessment is that Mr Thompson’s application has poor merits as he is still under sentence for money laundering. He has displayed indifference to his proceedings after being released on home detention and prior to applying for reinstatement, where reinstatement now would also be costly to the Respondent. Mr Thompson can, and has, reapplied for a Maritime Security Identification Card and thus any prejudice to him is minimal. No special circumstances arise in this matter.
Accordingly, the Tribunal is satisfied that it is not appropriate in the circumstances to reinstate these proceedings. The application for reinstatement is refused.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for the decision herein of Senior Member George.
...............................[Sgd]...................................
Feng Jiang, Associate
Dated: 9 August 2024
Date of hearing: 25 July 2024 Advocate for the Applicant:
Self-Represented Advocate for the Respondent: Mr Millea
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