Tismanaru and Minister for Immigration and Multicultural and Indi Genous Affairs
[2002] AATA 1322
•20 December 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 1322
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/9
GENERAL ADMINISTRATIVE DIVISION ) Re ADRIAN JOHN TISMANARU Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Hon R N J Purvis Q.C., Deputy President Date20 December 2002
PlaceSydney
Decision 1. The Tribunal has jurisdiction under section 42A(10) of the Administrative Appeals Act 1975 to reinstate the Applicant’s application and exercises its discretion under that section to do so.
2. The Tribunal sets aside the decision under review and reinstates the application for review of the decision for deportation made on 8 April 1997.
3. The Tribunal is to be reconstituted and directions given as to the progress of the application.
[Sgd] Hon R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – jurisdiction - deportation order – application dismissed for non-attendance of Applicant – applicant not personally notified of adjourned date - application for extension of time to apply to set aside dismissal or to lodge a new application or for an order to reinstate part-heard application – application to AAT for review – proceedings part-heard – Applicant not present on adjourned date – reason for delay – fairness to other’s in a like position – prejudice to Respondent – merit of the application for review – whether part-heard application dismissed in error – nature of error - Tribunal has jurisdiction – application reinstated.
Administrative Appeals Act 1975 – sections 29, 42A
Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344
Re Mulheron and Australia Telecommunications Corporation (1991) 23 ALD 309
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs, Federal Court of Australia, W427 of 2001, 22 November 2002
Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1159
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 31REASONS FOR DECISION
20 December 2002 Hon R N Purvis Q.C., Deputy President THE APPLICATION
1. This is an application by Adrian Tismanaru (“the Applicant”) seeking to have the Tribunal continue with or commence again the hearing of a review of a decision made on the 8 April 1997 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) ordering his deportation.
2. The application for review had proceeded to a hearing on the 9, 10 and 11 November 1999. At the conclusion of the hearing on the 11 November 1999 the hearing was “adjourned indefinitely”, the presiding Deputy President stating:
“Mr Tismanaru, is there anything else that you want, at this stage, to say or to put into evidence, remember that we now have agreed that we will obtain an independent report about the best interests of the children and that will involve interviews with you and other people. I’m not sure how long that will take but, as soon as it is finished and complete and ready, then, we’ll do all we can to have a resumed hearing at which it will be necessary to call whoever it is who does the report.
I don’t think there’s probably much more we can do this afternoon. I’m afraid it’s taken a little longer than we had anticipated and I’m sorry there have been disruptions. That tends to be the way these things go. So, we’ll resume at a date to be established but hopefully in the not too distant future. …”
3. The review application was again before the Tribunal on the 19 December 2000. There was no appearance by or on behalf of the Applicant and no evidence of the Applicant having been made aware of the adjourned date. The presiding Deputy President stated:
“… I don’t think I can dismiss the matter for want of appearance, given the fact that the matter is part heard and that obviously there are grave consequences for Mr Tismanaru in the proceedings if that were to occur but what I think I will do now is list the matter for a directions hearing. The listing will include a notice to Mr Tismanaru that having failed to appear at the listed hearing that the matter will be in fact struck out if he fails to proceed and then we will ensure that that is delivered by a registered mechanism so that we have a record of him receiving it.”
4. The application was so listed for a directions hearing on the 1 February 2001 when on the Applicant not appearing and on the application of the Respondent, the application was dismissed purportedly pursuant to section 42A of the Administrative Appeals Tribunal Act 1975 (“the Act”).
5. A letter had been addressed to the Applicant at the address 517/55 Walker Street, Redfern being “the usual address” which the Applicant had given in his original application. The letter was sent by registered mail advising him of the adjourned date and of the possible consequence of his not appearing. However the same was returned to the Tribunal unclaimed. The Applicant confirmed in his oral evidence during the present hearing, which evidence is accepted by the Tribunal, that he did not receive the letter or notice of the part heard application being so re-listed for directions.
6. The application was dismissed by reason of the non-attendance of the Applicant, even though he had not been made aware of the listing. However the transcript of the proceedings of the Tribunal on the 1 of February 2001 records the Deputy President as saying:
“I am advised by our Registry that a registered letter with the listing of today’s hearing was sent to Mr Tismanaru at that address in Walker Street, Redfern, and it is the one we used in the past as I understand it there has been no return of that material, indicating that it wasn’t received, which is what, I understand, is the one which they operate on. This is, of course the second occasion on which the matter has been listed and Mr Tismanaru did not appear on the last occasion either. However, on that occasion there was no evidence we had sent him a registered letter. … I am satisfied that there has been adequate notice given to Mr Tismanaru … I will dismiss the matter under section 42A …”
7. The Applicant now asks in the alternative that:
(a) the part-heard application be reinstated pursuant to section 42A(8) and (9) of the Act; or
(b) the part-heard application be reinstated pursuant to section 42A(10) of the Act; or
(c) an extension of time be granted to the Applicant to lodge a fresh application.
THE HEARING
8. At the hearing of the present application for reinstatement or extension of time the Applicant appeared on his own behalf, the Respondent being represented by Mr Cureton, then Ms Hanstein and then Mr Palmisano Solicitors of Messrs Blake Dawson Waldron Lawyers.
9. There was admitted into evidence the documents lodged by the Respondent pursuant to section 37 of the Act marked T1 to T40 and supplementary document S1. The following written material was tendered by the Applicant and marked accordingly:
Exhibit
Description
Date
A
Letter from Applicant to AAT
23 October 2001
B
Letter from Dorothy & Norman Sleightholme
Undated
C
Letter from Kylie Fogarty
1 February 2002
D
Reference of Rev Francis J Chalwell
3 February 2002
E
Report of Dr Ibrahim Hanna
28 October 2002
F
Reference of Rev Francis J Chalwell (Refer D)
3 February 2002
G
Statement of Dorothy Sleightholme (Refer B)
Undated
H
Reference of Kylie Fogarty (Refer C)
1 February 2002
J
Registered Post customer receipt – from letter to the Applicant
22 December 2000
K
Transcript of a hearing before Deputy President Chappell at AAT
1 February 2001
1
Minute of Care Order (2) for Missy and Lisa Casey
27 October 2000
2
Eight pages of print out of criminal record of the Applicant
Various
10. The Applicant, the Reverend Francis Chalwell, Mr Robert Raves, Mrs Dorothy Sleightholm and Dr Ibrahim Hanna gave oral evidence on which they were cross-examined.
RELEVANT LEGISLATIVE PROVISION
11. The provisions of the Act which are relevant to the present application are:
“Section 29
29Manner of applying for review
…
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
…”
“Section 42A
42A Discontinuance, dismissal, reinstatement etc. of application
…
(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
…
(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.
…
(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(2)), 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.”
OTHER RELEVANT FACTS
12. The Applicant was born in Romania on the 24 May 1962 and came to Australia on the 7 October 1981 as a Refugee.
13. Whether by reason of a lack of social support or otherwise, the Applicant from 1987 to 1997 engaged in numerous acts of anti-social conduct and obtained a lengthy criminal record, detailed particulars of which are set forth later in these reasons. After having been in Australia for 7 years, 10 months and 10 days, and on the 17 August 1989 he committed the offences in respect of which a deportation order was made against him on the 8 April 1997.
14. In his statement of the 30 April 1999 setting forth the reasons for the deportation decision the delegate of the Respondent stated (Supplementary T-Documents, p 1-2):
“…
REASONS FOR THE DECISION
4. I found the following factors pointing against deportation:
qThe Applicant’s desire not to return to Romania, a country he fled from, but to remain in Australia.
qThe Applicant would experience a degree of hardship if deported.
qHe has an Australian born son from a previous relationship, although he has had no contact with him for over nine years.
qHe asserts that he has no reason to commit further crime as he is drug free and a new person.
5. I found that on balance the factors in favour of deportation outweighed those against:
qThe Applicant’s criminal history is extensive and ongoing. He has been sentenced to imprisonment for 12 months or longer for eighteen offences.
qThe Applicant has stated that he intends to holiday in Romania, which indicates that he considers that he would face little danger on his return.
qThe Applicant is not in any relationship. He has no close family ties. It is unlikely that anyone would suffer hardship if he is deported.
qThe Applicant has already exhibited substantial recidivistic tendencies and the likelihood is that he will re offend. The Australian community should not be expected to bear further risk.
qThe Applicant has been a burden on the Australian community and is unlikely to make a meaningful contribution in the future.
qThe Applicant is unemployed. He has not provided evidence of the employment that he claims that he will commence in January 1996.
qThe Applicant has not seem his son in over nine years and has made no real attempt to contact him.”
15. The Applicant applied to the Tribunal for a review of the deportation order on 22 December 1998. As earlier indicated the application came on for hearing on the 9, 10 and 11 November 1999. The Applicant and his then de facto wife Ms Michelle Casey, Detective C T Kostogiannis, Mr N J Sperotto (a friend of the Applicant) and Mr L G Besant, a Pastor, gave evidence on which they were each cross-examined. Such evidence, apart from that of the Detective, was to the effect that the Applicant, whilst admitting the nature of his criminal record, maintained that he had become a Christian, forgone his past and was living with Ms Casey, their two young daughters having been made wards of the court. Ms Casey gave evidence that she was appealing that decision. Indeed the proceedings were adjourned on the 11 November 1999, especially in order to obtain information as to the then welfare of the children and the progress of the appeal.
16. It would seem that little, if any, action was taken during the year 2000 to reactivate the proceedings and it was not until the Tribunal restored the matter to the list in December 2000 that further information was sought. The representative of the Respondent then indicated that the appeal process was still afoot and that it was thought the Applicant was still living at the Walker Street address.
17. In fact, the Applicant had lived at the Walker Street address during 1999 and 2000 and into the early months of 2001. He left Ms Casey and that address in about March 2001, lived at Canley Heights “with some Christians” in March and April and then, whilst having accommodation at an address in Sadlier, lived mainly “on the streets” until he was taken into preventive custody in July 2001. He has been detained at the Villawood detention centre since that time.
18. The Applicant had seemingly not notified the Respondent between February and July 2001 of any change of his address. Ms Casey had remained at Walker Street, the Applicant saying “everything that goes to Walker Street I should receive”. He said that “the problems had been building up” in his life whilst living at Redfern and that he wanted to “move forward” and leave “everything behind”. He left, he said, “for a better life to put the past behind me”. In his evidence before the Tribunal he said:
“I had to run away from everything and everyone, to leave it behind and grab hold of my life, what was left of it and try. It was a hard process, extremely hard. But with God’s grace I got through … I had nights and days and weeks and months when I used to sleep on the streets and in parks and under roofs and anywhere I could. … I became a Christian again. I be praying to Jesus on the streets, when I sleeping on the streets of Kings Cross and that and take drugs and everything, I be praying to the Lord, I say why am I doing this. I don’t want to. I don’t want to do this, why can’t I pull through. One day just a miracle happened. I know ……. of the Lord but he pulled me through.
Where was that? --- 6 March last year. 6 March last year.
…
How did you remember that day? --- That is the date of the Lord, you cannot forget. I cannot forget that date. Jesus came to me and said you are the one. He was the reason all the things that happen in my life that was good and bad. I thank God for it because I have experience and acknowledge it and examined it and I created a future. From that bad past I created a beautiful future.
…
My anger stopped in Villawood Detention. I was extremely bad. The Lord gave me the power and the strength to conquer all evil in my sight and leave all that past behind me.
…
I have done gaol, I have been a criminal, I had been a bad guy. As I said, the evil from the past it helps me to plan a beautiful future and I see that …” (Transcript of the hearing on 5 February 2002, p 9, 10, 11 and 12)
19. The Applicant was interviewed shortly after his arrival at Villawood by an officer of the Respondent and sometime thereafter informed of the fact that his application for review had been dismissed in February 2001. In his evidence before the Tribunal, he said that he found out his application before the Tribunal had been dismissed,
“When I got locked up.
At Villawood? --- Yes.
When was that? --- Just that day, that morning when we got locked up”.
When asked,
“What did you do about it when you were told that you have to be deported?”
The Applicant replied,
“I done nothing. I went in and sit down and …… because I think well, what’s happened here. I didn’t know this. …… This is not true because I never knew about it.
So what did you do?”,
he was asked.
He replied,
“I went to the official there and I talked to the officers and they had my DIMA numbers and everything and when DIMA come to within about a week or two weeks after, I can’t remember exactly, this lady come in and she talk to me and then she said, the same thing, she said you know that your application for deportation or something, I don’t know, something like that …… and I said, okay. So what can we do about. She wanted me to sign the passport to get deported and I said no, I don’t want to get deported. Because to me it was all just a mistake. Just a misunderstanding, a mistake. I said no. So I done nothing about it. I waited months and months and then …… and then everything started to fall into place, all the paperwork started to build up and people started reading through and that’s it, that’s how this took place now. Because I was not …… ta [sic] the time, I had nothing, nobody knew nothing. Just a couple of words and that’s it.”
When asked,
“When you say paper built up?”
He replied,
“Yes, the paper for the courts, it started coming to me slowly one by one. People start to send me.
What people and what paper? --- From DIMA. People from DIMA, they start to send me papers and the documents and it slowly starts to build up.
Do you have any of that paper? --- No. The only paper I got is this. Just the courts and from DIMA. Mrs Harris her name is.
MR SPEROTTO: He made an application from the Freedom of Information office at DIMA and they began to send papers by fax to him. All that he needed, all that he asked, all that were given to us.” (Transcript from the hearing on 5 February 2002, p 12 and 13)
20. In September 2001 the Applicant telephoned the Tribunal and was told that he needed to make a written application with reasons. On the 23 October 2001 the Applicant wrote to the Tribunal inter alia stating:
“I Adrian Tismanaru was not residing 517-55 Walker St Redfern from late September 2001 because my children, two girls were taken from me by DOCS I was hurt and depressed and grieved so I decided to leave the council flat and the mother of the two little girls I could no longer bear to stay there & see the toys & fotos. Therefore I could not stay there any longer
I lived on the streets & slept where any abandoned house could be found, for my life was empty and destroyed and I never returned to live with Michelle the mother of my two little girls.
That is the reason why I was not there to receive the mail from The Immigration Department.
Michelle did not mention of any letters she received, for I did bump into her in the streets …
I also like to (add & explain) that since my leaving No 55 Flat 517 Walker St late September I met often Michelle the mother of my two girls, on the street and never did she mention of any mail that arrived for me at that address except for one letter from St George Bank that was pushed under the door of a friend of mine who lived in same blocks of flats and was given to me by him.
I personally redirect the mail from (DOCS) and phone calls to a friend Mr N Sperotto … because I had no permanent address. …
I personally suspect now that Michelle the mother of my two girls who lives at No 55 Flat 517 Walker my former address deliberately kept or destroyed mail sent to me by the Immigration Dept. & any other & this is the reason I did not attend the Tribunal meetings.
…” (Exhibit A)
21. The Applicant has a 17-year-old son, the child of an earlier association who is presently living with his mother in South Australia. His grandmother, Mrs Sleightholme, lives nearby. In late 2001, the son, Robert Raves, became aware of his father being detained at Villawood, travelled to Sydney and visited the Applicant five or six times. Since then a bonding has developed, the son telephoning the father quite often. There is no contact at this time between the Applicant and his two daughters.
22. The witnesses, Mr Sperotto, Reverend Chalwell and Mr Besant all speak of the Applicant having a firm belief in Jesus Christ. As Mr Sperotto put it:
“… But I have known him when he lived on the streets, how he struggled with the problem of having lost his children and dealing with the fact and the knowledge that he was a nobody. … It’s not easy to come out of a life that he has come out from and make a complete change. He has got to change one life of bad for one life of good and that takes time. …
So in the evening we had Bible studies and I constantly approached Adrian [the Applicant] to say come in to the Bible study to hear what God can do for you, at least what is available. … and eventually he received the Lord as his saviour and he was baptised. … I found him on the street again. … Meanwhile all these things began to take place whereby the children were taken away and then he went back on the streets again, so it was like a great big circle again. … So that it was how I found Adrian and that is how I come to help him in the detention centre because he phoned me there. I eventually came to know the reason that he was to be deported, his criminal activities and that I found in the paper that I just read that the reason to be deported because he is a danger to the society of Australia. So I cannot see it presently now. But I will be honest with you, I have been fooled many times by men who have said one thing and done another. But they do not see the genuineness about him. Yes, a genuineness about him to leave the old ways and go on. He has children here and as I said, I’m sure he will make it if he is given a chance.
…
He made the commitment to Jesus when you first met him? --- Yes. When I first met him, that is right, but he backslid since then. …
So Mr Tismanaru could backslide again, couldn’t he? --- Most definitely. I can backslide myself. I certainly can. It’s possible, yes. Even the greatest of saints backslide sometimes and I am not one of them. So yes, it is possible. Of course it is. But on the evidence of what I have seen he is showing promise at least that he is going good. That’s all I can say”. (Transcript of the hearing on 5 February 2002, p 16, 26, 27 and 31)
23. The Reverend Francis Chalwell, an Anglican priest ministering in Surry Hills, said that the Applicant had attended his church and presented as a person demonstrably committed to a Christian relationship. To his observation the Applicant had endeavoured to follow “the principles of Jesus Christ” and had the intention to be a model citizen and to provide support for his children. In his statement Reverend Chalwell said,
“Adrian’s Christian commitment is no hoax. He has a genuine and committed relationship with God and a sincere desire to obey God and help those he comes into contact with obey God also.
Because of his reformed ways, his strength and hope in God, and his desire to care for his family, I am confident Adrian Tismanaru would be a valuable resident in our wonderful country”. (Exhibit F)
24. Ms Kylie Fogarty, a welfare officer, said that she had known the Applicant for 12 months and had a “significant association” with him. She said that she met the Applicant through Adracare, a Christian drop-in centre, located in Cabramatta and became aware of his background and the kind of life he had led in the past.
“In the time since then however, I have witnessed his lifestyle and behaviour dramatically and genuinely change. Adrian has accepted Jesus Christ as his saviour and through his relationship with Him he has been able to deal with and release past hurt and anger in addition to overcoming his drug dependency. Adrian has changed from a person whose addiction controlled his every activity to a responsible man who communicates a joyous and caring relationship with all those he comes in contact with. He demonstrates integrity and true commitment to God and the seeking of continued and lasting change in his life.
…
I write this letter in the capacity of a plutonic [sic] friend and I work as a Welfare Officer at the Langton Centre, which is a drug and alcohol rehabilitation centre in Surry Hills. It is in this function that I can measure and verify that Adrian has made momentous and authentic transformations to his lifestyle. I am pleased to notify the court that Adrian has my full support in both a personal and professional capacity upon his release”. (Exhibit H)
CRIMINAL RECORD OF THE APPLICANT
25. The following is a brief resume of the Applicant’s criminal activities since his arrival in Australia as a refugee from the then regime in Romania.
Date
Offence
Sentence
28 September 1987
Possession of amphetamines
Fined $150.00
11 August 1988
Offensive manner in a public place and been drunk in a public place
Fined $180.00
2 February 1990
Traffic heroin
Six months
Possession of heroin
Two months to be served concurrently
7 May 1990
Theft of motor vehicles
One month on each charge to be serve concurrently
Failure to answer bail
Fined $300.00
Possession of
heroin
Fined and two charges of use of heroin; fined $100.00 on each charge
15 May 1990
Attempt theft of a motor vehicle
Fined $300.00
22 May 1990
Reputed thief and suspicion of loitering in a public place
Fined $250.00
13 June 1991
Two charges of armed robbery
12 months of each charge to be served concurrently, sentence suspended for six months
Two charges of robbery
12 months, sentence partially suspended six months term of imprisonment to be served
Handle, receive, retention of stolen goods
Six months
Unlicensed driving
Seven days
Failure to answer bail
Three months
Theft of motor vehicle
Six months to be served concurrently
14 June 1991
Two charges of theft, one charge of robbery, one charge of armed robbery, one charge of attempted armed robbery
Sentence to two years and six months imprisonment
28 August 1992
Theft of motor vehicle
One month of imprisonment
Failure to answer bail
14 days imprisonment to be served concurrently
2 March 1993
Possession of cannabis and use of cannabis
Community based order for 12 months and 130 hours of community work
29 November 1993
Consuming intoxicating liquor in a public place
Fined $50.00
18 January 1994
Two charges of theft of a motor vehicle, failure to answer bail, four charges of theft, two charges of attempted theft, one charge of handling of stolen goods, one charge of going equipped to steal, one charge of possession of drug of dependence, one charge of use of drug of dependence
12 months imprisonment on all charges
31 May 1994
Three charges of theft
One month on each charge to be served concurrently or to pay $2937.82 restitution
31 July 1995
Theft from a shop
Three days imprisonment
6 October 1995
Theft from motor vehicle, wilful damage, going equipped to steal
Six months imprisonment, suspended for 24 months, sentences of one month on minor charges to be served concurrently
14 June 1996
Reputed thief suspected of loitering
Three months imprisonment
16 December 1997
Self administer prohibited drug
Fined $250.00
APPLICANT’S MEDICAL CONDITION
26. The Applicant has been the subject of medical examination whilst he has been in detention. On 28 October 2002 Dr Ibrahim Hanna, a consultant physician and a neurologist, reported that a blood test revealed hepatitis B and hepatitis C. The Applicant was complaining of severe pain and numbness and a shooting pain between his shoulder blades. Dr Hanna reported,
“… I organised for him to have a blood test again for … endomesial antibody for coeliac disease which is more specific and repeating …
Looking for spinal cord demyelination I organised for him to have repeated brain and cervical cord MRI scan. Depending upon the results of the test we should start high on immunotherapy like Rebif 44 mcgm subcutaneous injection three times per week. He was given a small booklet to read about MS.” (Exhibit E)
27. In his evidence before the Tribunal, Dr Hanna reiterated his concern for the onset of suspected “MS” and the presence of hepatitis B and hepatitis C. Dr Hanna stressed the need for treatment to slow the progression of the disease.
FACTORS RELEVANT TO EXTENSION OF TIME
28. In considering an application for an extension of time pursuant to section 29(7) of the Act, the Tribunal is to consider the various factors identified in Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344 and as referred to in Re Mulheron and Australia Telecommunications Corporation (1991) 23 ALD 309. They are as here relevant, reason for delay, the unsettling of people or established practices, fairness to other persons in a like position, any prejudice to the Respondent, whether an Applicant has rested on his rights and the merits of the case sought to be put by an Applicant.
29. There is no certainty as to the date on which the Applicant became aware of the dismissal of his application. It was suggested to him during his cross-examination that he made contact with an employee of the Tribunal on the 14 September 2001. He did not remember. Suffice it to say that after becoming aware, he consulted Mr Sperotto before making a decision. He also, to no avail, sought legal assistance. It is apparent that a period in excess of 28 days transpired before the application was made. The Applicant says that during this period of time, being in the detention centre, he was without advice and assistance and it was not until an application was made pursuant to the Freedom of Information legislation that he was able to obtain the relevant documentation. He then made his application in October 2001.
30. There is not any evidence that by allowing a fresh application to be made any people would be unsettled. Indeed, the son Robert would be encouraged to maintain his relationship. The position so far as the daughters and Ms Casey is concerned is not apparent.
31. The Respondent maintains that the Applicant had been given the opportunity to have the deportation decision reviewed by the Tribunal and that he had chosen “not to actively pursue that review”. It is further maintained that to grant an extension of time would be unfair to applicants who “have stayed and faced this difficult problem and have not taken the opportunity to extend their stay in Australia by unscrupulous means”. Again it is maintained that to grant an extension of time would be unfair to applicants who have not had an extension of time granted in similar circumstances.
32. The Tribunal is not of the view that the Applicant did not pursue his application for review. He is a person who has passed through various stages of trauma not the least being that from March to July 2001 he was seeking to leave his former way of life and, in effect, “rediscover” himself. It took him several months, with the assistance with Mr Sperotto, before he was able to clearly identify the course that he should pursue. It cannot be said that he has not now sought to “face a difficult problem” nor that he was “unscrupulous” in any way. The Tribunal does not see the granting of an extension of time as being unfair to others.
33. The Respondent maintains that if time is extended this would severely prejudice the Respondent in relation to other deportation matters in that it may be thought an application would not be prejudiced by inaction or avoidance. As the Tribunal sees the position it is the facts particular to this case not those as suggested in a wider context that need to be considered. But as Mr Cureton, then appearing on behalf of the Respondent, maintained “[w]e would submit that while there is no great prejudice to the Respondent other than having to retain and detain the applicant for a longer period of time … there is no great prejudice to the respondent”.. (Transcript of the hearing on 5 February 2001, p 45)
34. The Tribunal does not concur with the submission that the Applicant “has not actively pursued the review of his deportation order and has rested on his rights”. Whilst it may be true that between March and July the Applicant did not contact the Respondent or the Tribunal and only sought to reinstate his application after he was detained in Villawood, this only illustrates the difficulties he was experiencing in his life at that time.
Merits of the Case
35. The present application is one seeking in effect to have the application for review of the deportation order duly heard and determined. In exercising any discretion available to it and implicit in considering an extension of time application, the Tribunal is to take into account inter alia the merits of the case sought to be made by the Applicant. Such a consideration does not entail the making of findings as to relevant primary and secondary considerations detailed in the Minister’s General Direction under section 499 of the Migration Act 1958, but rather the forming of a view as to whether the case so sought to be made by the Applicant is credible and has merit.
36. Thus, the Tribunal is to consider the primary considerations referrable to protection of the Australian community, the risk of re-offending, the seriousness of the criminal conduct and the deterrence to others, as well as the best interests of any children. The secondary considerations referable to hardship that may be suffered by the Applicant and to Australian citizens and permanent residents is also relevant.
37. It is right to say that the Australian community has an entitlement to not be put at risk of criminal activity, especially when the offences in question relate to drugs and crimes of violence. It is said on behalf of the Respondent that an assessment of the level of the risk to the community can be gauged by examining the seriousness and nature of the criminal offences in question. It is true to say that the Applicant engaged in a series of offences of various degrees of gravity. Some of the offences were very serious involving a challenge to the life of innocent people and the use of an imitated weapon. However, to be balanced against the criminal record of the Applicant is the fact that since the committal of the last of such offences in 1996, other than for the self-administer drug offence in 1997, the Applicant has not committed any anti-social acts attracting the law enforcement agencies. He resided with Ms Casey til March 2001 and on the evidence experienced a significant change in motivation for living.
38. It is difficult to assess the possibility of the Applicant re-offending. The Tribunal has before it the evidence of two church ministers, a welfare officer and a lay worker all deposing to the change observed in him. This is an issue that might have to be the subject of a psychological assessment in due course. However, it would be open to a Tribunal, properly informed, to make a finding as to the risk of recidivism not being overly significant. Whilst the Respondent maintains that the Applicant is a habitual criminal, there is evidence that might persuade a Tribunal to find this not being now so and that the Applicant has demonstrated a capacity to lead a law abiding existence.
39. On the issue of rehabilitation and expectation of positive contribution to the community, there is again the evidence of the people above-mentioned and the support that they indicate will be available to the Applicant, if he remains in Australia. Whilst the Applicant’s employment history in Australia demonstrates periods of time when he was in receipt of government benefits in the form of unemployment payments, he has worked and has expressed a preparedness to assist in supporting his daughters if he is able so to do. It is open to a Tribunal to find that the Applicant has been rehabilitated and will continue so to be and engage in efforts to make a positive contribution to the Australian community.
40. It is true to say that deportation of the Applicant might act as a deterrence to the commission of criminal acts by other people in a like position. It is true that the Australian community is to be protected from breaches of the law and that deportation might serve to deter others from committing criminal acts. However, this is one factor to be considered and is not necessarily to outweigh others.
41. On the basis of the evidence before the Tribunal the best interests of the Applicant’s son would undoubtedly be served by the Applicant remaining in Australia. Even be it the son is now 17 years of age, he has begun a significant relationship with his father which would be maintained in the event of the order being set aside. Whilst this relationship might well be dependent upon the Applicant not re-offending, the chance of the latter has already been considered. There is no evidence as to the Applicant having a significant relationship at this time with his two daughters.
42. The Applicant would undoubtedly suffer hardship mentally and physically if he were deported. The faith that he now professes, and which is accepted by the witnesses as already discussed, could well be significantly affected by his transport to a culture that he has not known since he left Romania as a refugee nearly 23 years ago. He has been a member of the Australian society for a relatively long period of time, even be it that the relationship has not been reflected in the stability of the Applicant. However, it does exist. He has contact with the various persons already mentioned and they are prepared to assist him. His medical condition is the subject of treatment at this time which might not be maintained elsewhere.
43. Thus, whilst a finding cannot nor need not be made at this time as to the risk of the Applicant re-offending, it is open to a Tribunal to find that such risk is not great. He has a long criminal history including a drug problem, but recent apparent good conduct may have ameliorated this significance. The nature of the offences committed by him are serious as evidenced by the sentencing courts views and by their very nature.
44. Looking at the matter overall, it is apparent that there are significant factors warranting consideration, this based on the evidence already given in November 1999 and that given before the present Tribunal in February and November 2002. It cannot be said that the case sought to be made by the Applicant is without merit.
JURISDICTION
Reinstatement – section 42A(8) and (9)
45. It is contended on behalf of the Respondent that the Tribunal has no jurisdiction to consider an application for reinstatement of an application dismissed under section 42A(2) of the Act, where the application for reinstatement is not made within 28 days after the person received notification of the dismissal of the initial application.
46. As earlier indicated, it is not apparent from the evidence as to the date when the Applicant was informed or notified of the order of dismissal made by the Tribunal on the 1 February 2001. However, it is apparent that he was so notified shortly after he was detained at Villawood on the 31 July 2001. He did not make his application until October 2001, clearly at a time more than 28 days after he received notification of the dismissal of the initial application. It is not of moment that he was not given written notification of the Tribunal’s order (Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367, Federal Court of Australia, W427 of 2001, 22 November 2002, paras 24 and 25). The time would have commenced to run from the date when he was orally informed of the dismissal.
47. Accordingly, the Tribunal is satisfied that it does not have jurisdiction to reinstate the dismissed application pursuant to section 42A(9) of the Act.
Reinstatement – section 42A(10)
48. The Tribunal on the 19 December 2000 indicated that in order for it to be satisfied that the Applicant had received notice of a listing of the application that he be served by Registered Post. The Tribunal sought to so serve the Applicant, but as appears from the evidence before it, the letter addressed to the applicant at Walker Street, Redfern was returned unclaimed. Seemingly the Tribunal on or about the 1 February 2001 was informed by an officer of the Tribunal, not a Member, that service had been effected by Registered Post. This was in error. Thus, the dismissal of the application was consequent upon an error being made.
49. The stated condition for the exercise of the power given by section 42A(10) is that “it appears to the Tribunal that an application has been dismissed in error”.. As noted in Goldie (supra) para 27, 28 and 29, the subsection does not impose any qualification or limitation on the word “error”.. The only relevant limitations are that the Tribunal has dismissed the application and that the act of dismissal was attended with error. It is not necessary in order to enliven the Tribunal’s power, that the Tribunal or a Member or employee of the Tribunal should have been at fault in relation to the dismissal. The fault may have lain elsewhere provided it induced the error. As was noted by Carr J in Goldie (supra) para 77:
“In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”. More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.”
50. Even be it that in the present instance the procedure for restoring the application may not be seen as a “prompt and inexpensive means” whereby errors can be corrected, it was through no fault of the Applicant that the application was dismissed. He was not informed of its being listed, and could not be expected to have been present.
51. It is desirable that the Applicant be given the opportunity of having his application fully and appropriately considered on its merits. It is noted that the power conferred by section 42A(10) is discretionary, this denoted by use of the word “may”. Having considered, as detailed earlier in these reasons, the matters that would be before a Tribunal considering the substantive application and the matters that would also be relevant to an extension of time, the Tribunal would exercise its discretion in favour of reinstatement.
Extension of Time
52. In view of the decision reached by the Tribunal as to the application of section 42A(10), it is not necessary for it to consider the existence or otherwise of a power to extend time. It was submitted on behalf of the Respondent that the Tribunal has no jurisdiction in respect of any fresh application brought by an Applicant to review a decision that was the subject of review on an initial application, because any fresh application would in effect be a second application, not competent and a nullity. Reliance was made in this regard to Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs (2000) AATA 1159 at para 8 and Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 31 at para 5.
53. A fresh application, it is said, is not competent because where the Tribunal dismisses an application under section 42A(2) the proceedings to which the application relates is taken to be concluded unless reinstated under section 42A(9) or (10).
54. There would seem to the Tribunal to be merit in the submission made on behalf of the Respondent. Where an application is dismissed pursuant to section 42A(2) and not able to be reinstated by reason of the non-existence of the prerequisites referred to in section 42A(9) and (10), the matter is deemed to be concluded. If an application for an extension of time was competent then this would in effect mean that a second application could be made referable to the same subject the latter having already been before the Tribunal and “completed”. If the Tribunal had power to extend the time, it would have been so extended.
DECISION
55. For the reasons herein before set forth, the Tribunal is satisfied that it has jurisdiction under section 42A(10) to reinstate the subject application and exercises its discretion under that section to do so. Accordingly, the decision under review is set aside and the application of the Applicant for review of the decision for deportation, made on the 8 April 1997, is reinstated.
56. As it is not now competent for the earlier Tribunal to proceed with a hearing of the application, it will be necessary for the Tribunal to be reconstituted and directions given as to the progress of the application.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N Purvis,
Q C, Deputy PresidentSigned: L Bonouvrie
AssociateDates of Hearing 1 February 2001
5 February 2002
15 and 29 April 2002
22 October 2002
22 and 28 November 2002
Date of Decision 20 December 2002
Solicitor for the Applicant Self-represented
Solicitors for the Respondent Mr Nathan Cureton
Ms Sharon Hanstein
Mr Edward Palmisano
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