YBCF and Minister for Immigration and Citizenship

[2007] AATA 1863

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1863

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/4673

GENERAL ADMINISTRATIVE DIVISION		)
Re		YBCF

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date17 October 2007

PlaceSydney

Decision The application for reinstatement under s 42A(10) of the Administrative Appeals Tribunal Act 1975 is refused.

...............[Sgd]...............................

SENIOR MEMBER

CATCHWORDS

PRACTICE & PROCEDURE – Application for reinstatement – no identifiable error – application refused

Administrative Appeals Tribunal Act 1975 ss 42A(1B), 42A(10)

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383

REASONS FOR DECISION

17 October 2007 Senior Member B J McCabe         

1. The applicant has been fighting the Minister’s attempts to deport him. Those attempts began in 1996, when the Minister’s delegate refused to grant the applicant a protection visa. The applicant engaged a migration agent who commenced proceedings in the Tribunal on 2 May 1996 seeking review of the decision. The migration agent subsequently wrote to the Tribunal and asked that the proceedings be dismissed. An order dismissing the proceedings under s 42A(1B) of the Administrative Appeals Tribunal Act 1975  was made on 9 September 1996.

2. The applicant has now asked that those proceedings be reinstated pursuant to s 42A(10) of the Act. It appears those proceedings are his last opportunity to avoid deportation: he is currently in immigration detention although the Minister has given an undertaking that the applicant will not be removed from Australia pending the outcome of the Tribunal’s proceedings.

3. The power to reinstate under s 42A(10) is only available where the earlier proceedings were dismissed in error. It will be necessary to consider the applicant’s account and the other material to determine if there has been an error in this case. If I am satisfied there was an error, I am then free to consider whether the proceedings should be reinstated. If there was no error, that is the end of the inquiry.

the power to reinstate applications that have been dismissed

4. An applicant before the Tribunal is free to withdraw or discontinue his application for review at any time: s 42A(1A). When notification of withdrawal is given, the Tribunal is deemed to have dismissed the application without proceeding to a review: s 42A(1B). The proceedings are concluded once they have been dismissed. The Tribunal may only reinstate the proceedings in the circumstances set out in the Act: s 42A(6).

5. The only circumstances in which proceedings may be reinstated after they have been withdrawn (as opposed to a dismissal order made pursuant to s 42A(2) after the applicant failed to appear) are set out in s 42A(10). That sub-section permits the Tribunal to reinstate the application “[i]f it appears to the Tribunal that [the] application has been dismissed in error…”.

6.      The word error is not defined in the legislation. The Full Federal Court held in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 that it was not confined to administrative errors on the part of the Tribunal or its staff. It was enough that the act of dismissal was attended by error: at [28]. Wilcox and Downes JJ explained [at 29]:

The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".

7.      Was the dismissal of the proceedings in this case attended by error? The applicant gave evidence on this issue at the hearing of reinstatement. He explained he was living in Griffith with friends in 1996. His friends used a migration agent in Melbourne, Mr Harold Jones. The applicant went to Melbourne to speak with Mr Jones about an application for a protection visa. The applicant says Mr Jones told him if he paid Mr Jones a quantity of money, Mr Jones would arrange an appeal of the Minister’s decision to deny the visa. The applicant said he did not have a good command of English, and Mr Jones tended to communicate with him through his friends. He signed the application for review that was lodged with the Tribunal but made it clear he did not understand the basis of the application. He insisted in his evidence that he paid his money to Mr Jones and expected him to get on with whatever course of action he thought appropriate.  According to his evidence, he did not know what Mr Jones planned or did in his name. He said Mr Jones had indicated there were a variety of options open. He said he was confident one of those options would yield the outcome sought by him.

8.      The applicant says he does not recall Mr Jones advising him to withdraw the application before the Tribunal. The applicant claims he was surprised to learn recently Mr Jones had formally withdrawn the proceedings in 1996. He insists he did not authorise Mr Jones to terminate the proceedings. He says he signed nothing and assumed the proceedings were still on foot.

9.      Mr Jones’s statement of issues was included in the T-documents, at tab 4. On page 5 of that document, Mr Jones says he has discussed flaws in the case with his client, and noted that his client was advised to pursue other avenues that would meet his objectives.

10.     I do not accept the applicant’s claim that he believed the proceedings were still on foot until as recently as several months ago. He acknowledged he had not paid Mr Jones any money or had any advice regarding the case since 1996. He has not given any instructions and has retained other migration agents to act on his behalf, and on behalf of his wife, in relation to other matters without mentioning the Tribunal proceedings. He says it never occurred to him to call Mr Jones and inquire about the fate of his application. The applicant is plainly not a stupid man. He has had extensive dealings with the Minister and other migration agents. Even if he was unaware in advance that Mr Jones proposed withdrawing the proceedings, he must have realised his application was not being dealt with soon thereafter.

11.     The statement of issues suggests the applicant agreed with the migration agent’s recommendation to discontinue the proceedings. The applicant says that is wrong, but his explanation of what occurred does not assist him. His own evidence suggests he did not have a view either way about whether the Tribunal proceedings should be commenced or concluded. He had placed himself in the hands of the migration agent with a view to achieving a particular outcome. He did not care how that end came about. If the migration agent had told him what he proposed to do with respect to the proceedings – and the contemporaneous documents suggest the agent did precisely that – the applicant is unlikely to have taken a different view.

12.     There is no evidence that Mr Jones made a mistake in the execution of his client’s instructions. He did not misunderstand or ignore what the applicant asked him to do.  Even if I accept the applicant was not aware at the time that the Tribunal proceedings were to be withdrawn, it is clear that the decision to withdraw the proceedings was effectively within the scope of the applicant’s instructions to Mr Jones. The applicant understood the advocate would try a variety of options that might yield a positive outcome; he left the execution of that strategy to his advocate.

13.     The applicant apparently dispensed with Mr Jones’s services not long after the proceedings in the Tribunal were terminated. He did not make any further contact with Mr Jones but subsequently made contact with other migration agents. His failure to follow up with Mr Jones or discuss his proceedings with anyone else suggests he had consciously given up on the Tribunal proceedings – which is consistent with Mr Jones’s assertion in the statement of issues that his client was unlikely to persist with his application.

conclusion

14. The dismissal of the proceedings in the tribunal pursuant to s 42A(1A) of the Act was not attended by any obvious error. It follows the discretion to reinstate the proceedings under s 42A(10) has not been enlivened. The application for reinstatement must therefore be refused.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  12 October 2007
Date of Decision  17 October 2007
For the applicant  Self-represented
For the respondent                   Mr Smith, of counsel