Wang and Minister for Immigration and Border Protection (Migration)
[2016] AATA 595
•12 August 2016
Wang and Minister for Immigration and Border Protection (Migration) [2016] AATA 595 (12 August 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6676
Re
Jian Wang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms S Taglieri, Member
Date 12 August 2016 Place Hobart The application dated 21 December 2015 is dismissed.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
Application to extend time to review; prior application of same nature regarding reviewable decision; whether jurisdiction; abuse of process and application dismissed, section 42 B (1)(c).
LEGISLATION
Australian Citizenship Act 2007 (the ACA)
Administrative Appeals Tribunal Act 1975 (the Act)
CASES
Re Filsell and Comcare (2009) 109 ALD 198 at 211
Miller v University of New south Wales (2003) 132 FCR 147
REASONS FOR DECISION
Ms S Taglieri, Member
This application dated 21 December 2015, concerns an extension of time sought by Mr Wang in regard to the Tribunal reviewing a decision of the Respondent made on 22 May 2012 to cancel approval that had been granted to Mr Wang to become an Australian citizen (“the cancellation decision”).
Mr Wang had applied for Citizenship pursuant to the Australian Citizenship Act 2007 (“the ACA”) and was granted it on usual terms, including that he participate in a Citizenship Ceremony within 12 months.
For various and many reasons, Mr Wang did not participate in the Citizenship Ceremony and that is why the cancellation decision was made. It is unnecessary for the purposes of this application to detail the reasons for his non-participation. It is sufficient to note that they have all been the subject of extensive documents and submissions filed in the Tribunal in this proceeding and prior proceeding, file number 2013/1683.
As Mr Wang had already sought an extension of time to review the cancellation decision and been unsuccessful[1], the Respondent raised a jurisdictional issue about whether the Tribunal had power to consider and determine the second application to extend time.
[1] Decision of Senior Member McDermott on 10 July 2013, [2013] AATA 483.
On 28 April 2016, the Tribunal conducted a hearing about the jurisdictional issue. Mr Wang participated by telephone with an interpreter. The Respondent was represented by Counsel. Respondent’s Counsel argued that the Tribunal did not have jurisdiction or alternatively that the second application to extend time ought be dismissed for being frivolous, vexatious, misconceived, lacking in substance or having no reasonable prospects of success.
The contentions of the Respondent were explained fully and clearly to Mr Wang. He was not equipped to immediately respond, so directions were made that the Respondent file written submissions and Mr Wang then file submissions in response. The Tribunal also directed that the jurisdictional issue and the application to extend time would then be determined on the papers. The parties were in agreement with this course.
Written submissions were filed by the Respondent dated 12 May 2016 and were also served on Mr Wang. Mr Wang made written submissions, which are not dated, but are headed “Written Report”. These were considered for the purposes of the determination which follows.
MR WANG’S STATEMENTS AT HEARING ON 28 APRIL 2016
Mr Wang agreed that he had been involved in the pre-hearing processes before the decision was made by DP McDermott on 10 July 2013 to refuse the first application to extend time. However, during the hearing he was hesitant to state equivocally whether he in fact received the Decision of DP McDermott. He did eventually state that he had.
In an email on 29 April 2016 to the Tribunal, which I have considered, Mr Wang sought to clarify this issue and it is now unclear whether he accepts that he received the Decision referred to in paragraph 8 shortly after it was made.
In his Written report having considered the Respondent’s written submissions about the jurisdictional issue, Mr Wang says that there was a clerical error in his email of 29 April 2016 and he did not mean that his last communication with Sparke Helmore (acting for the Respondent at the time), about the first application to extend time, was on 6 May 2013. Instead, he meant that he did not receive any emails about the first extension of time after Yahoo completely shut down its email for China in August 2013.
Enquiries with the Brisbane Registry have been made to ascertain how and when the decision of DP McDermott was given to Mr Wang, this being a requirement of section 43 of the Administrative Appeals Tribunal Act 1975 (“the Act”). I have been informed that the Decision and letter with notice of appeal rights was emailed to Mr Wang at the address he provided to the Registry, being [email protected] on 10 July 2013.
Mr Wang has not disputed that he received and sent emails using the address [email protected] up until 3 July 2013.[2] Further, his evidence is that the address was shut down in August 2013. This is after the date the decision of DP McDermott and notice of rights, was sent to him by the Brisbane Registry.
[2] Being the date referred to in the Respondent’s Submissions of 12 May 2016 at paragraph 18
THE ISSUE AND DECISION ON THE FIRST AND SECOND APPLICATION FOR EXTENSION OF TIME
The issue sought to be agitated by Mr Wang in the first and now this application to extend time to review is precisely the same. There is no change in circumstances and Mr Wang relies on the same facts and explanations in his attempt to persuade the Tribunal to grant the extension of time on the second application, as he did in the first application[3].
[3] Emails of 19.1.16 and oral statements at hearing on 28.4.16
JURISDICTION OF THE TRIBUNAL
The law is uncertain as to whether principles of action estoppel, res judicata and functus officio apply to decisions of the Tribunal[4]. For the purpose of determining the application before the Tribunal, it is not necessary to address the uncertainty in detail and reach a conclusive view. I consider that the principles have less relevance and application because of the administrative character of the Tribunal’s decisions. Further, I agree with the views expressed by Deputy President Jarvis in Re Filsell and Comcare.[5] In this matter, Section 42B of the Administrative Appeals Tribunal Act 1975, is the preferable mechanism to be applied, to promote integrity of the Tribunal’s processes and finality of decisions (subject to appeal rights).
[4] Miller v University of New south Wales (2003) 132 FCR 147
[5] (2009) 109 ALD 198 at 211
CONSIDERATION
The materials before the Tribunal satisfy me that it is likely Mr Wang received notice of the first decision of DP McDermott to refuse his extension of time to review the cancellation decision. It may not have been received immediately after it was made, but it did come to his attention.
I find that he probably received and sent emails from the [email protected] address up until at least early July 2013 and the server was not shut down until after the date the Decision was sent to him by email.
Further, even if he did not receive the Decision of DP McDermott of 10 July 2013, it is clear that the Tribunal did what was reasonable to give notice to him of the decision and his appeal rights pursuant to section 43(5AA) of the Act.
Either Mr Wang was aware of the Decision soon after it was made or at the latest it came to his attention in December 2015, when he filed the second application for extension of time.[6] If he only became aware of it at the later date, it is not through deficiency or error on the part of the Tribunal.
[6] Mr Wang’s email of 29 April 2016
Clearly Mr Wang is now aware of the Decision on the first application to extend time. I consider that it would constitute an abuse of process to embark on deciding again what has already been the precise subject matter of earlier decision. To do so would totally undermine the principles referred to in paragraph 14. There is nothing said or submitted by Mr Wang that persuades me that he ought to be permitted to revisit over two years later exactly the same question determined against him before.
His explanations for the delay in seeking to review the cancellation decision are the same now as they were before and he has not advanced new evidence that his substantive case on review would have merit.
If Mr Wang had meritorious grounds for appealing the decision to refuse his first extension of time application, the proper and legally correct mechanism for doing so was to seek extension of time to appeal the earlier decision of 10 July 2013. However, there would only have been merit in an appeal if there was demonstrable error of law.[7]
[7] Section 44(1) of the Act
For all the above reasons, I conclude that the application dated 21 December 2015 is an abuse of process and is therefore dismissed pursuant to section 42B (1)(c) of the Act.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member .....................................................................
Associate
Dated
Date(s) of hearing 28 April 2016 Date final submissions received 1 June 2016 Applicant In person Solicitors for the Respondent Mr David Wilson, Australian Government Solicitor
2
3
0