ZAHRA RAHIMI and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 594

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1529

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ZAHRA RAHIMI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date12 August 2009

PlaceCanberra

Decision Mrs Rahimi's application is not reinstated.

....................[sgd]..............................

Mr S. Webb, Member

CATCHWORDS

PRACTICE AND PROCEDURE - application dismissed for failure to appear - explanation provided - fresh evidence concerning applicant's age contrary to application – age-based exclusion from citizenship test not previously raised or considered – consideration of jurisdiction – consideration of prejudice to Commonwealth concerning official records - consideration of merit – reinstatement not appropriate in the circumstances - application not reinstated

Administrative Appeals Tribunal Act 1975 s 25, 42A, 68AA

Citizenship Act 2007 s 21, 46, 53

Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385

Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241

Davies v Pagett and Others (1986) 10 FCR 226

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Shi v Migration Agents Registration Authority [2008] HCA 31

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Hospital Benefit Fund of Western Australia v Minister for Health (1992) 111 ALR 1

REASONS FOR DECISION

13 August 2009 Mr S. Webb, Member         

1.      Zahra Rahimi arrived in Australia from Afghanistan in August 2005. After two years, she applied to become an Australian citizen. The Minister’s delegate refused her application on the ground that she had failed to meet the English language requirements of the citizenship test. Mrs Rahimi applied for review of that decision and the matter was set down for hearing on 7 May 2009 in Wagga Wagga. Mrs Rahimi failed to appear. I dismissed her application for that reason. Subsequently on 27 May 2009, Margaret King, Coordinator of the Griffith City Council Migrant Settlement Service, made representations on Mrs Rahimi’s behalf, seeking reinstatement of the application.

2.      That matter was set down before me on 3 August 2009. An interpreter in the Dari (East Persian) language assisted the Tribunal. Mrs Rahimi gave oral evidence and participated with the assistance of the interpreter.

3.      The only issue to be decided, presently, concerns the reinstatement of Mrs Rahimi’s original application.

4.      The relevant history can be shortly stated.

5.      Mrs Rahimi arrived in Australia in the company of her daughter and two grand children on 22 August 2005.[1] On 22 August 2007 Mrs Rahimi signed an application for conferral of Australian citizenship.[2] On 27 September 2007 she attended a citizenship interview conducted by an officer of Australia Post at the Griffith Post Office and provided relevant information.[3] As can be seen, Mrs Rahimi’s date of birth is clearly stated to be 21 March 1951 in the documents provided at that interview.[4] The interviewing officer recorded that Mrs Rahimi did not meet the English language requirement.[5] On 12 March 2008, the Minister’s delegate notified Mrs Rahimi that her application for Australian citizenship had been refused.[6]

[1] T5 folios 31 and 32; Respondent’s Supplementary Statement of Facts and Contentions, Attachment A, 5 May 2009.

[2] T4.

[3] T5.

[4] T5 folios 28-34.

[5] T5 folio 30.

[6] T2 folio 3.

6.      On 8 April 2008 Mrs Rahimi lodged an application for review of that decision, citing her address as 1/5-9 Ulong Street, Griffith.[7] Tribunal correspondence and listing notices relating to the proceedings were sent to Mrs Rahimi at that address. On 17 July 2008 a preliminary conference was held by telephone with the assistance of an interpreter in the Dari language; Mrs Rahimi participated using her home telephone. On 28 July 2008 Mrs Rahimi departed from Australia, returning in or about November 2008. On 4 December 2008 the Tribunal conducted a telephone directions hearing, in which Mrs Rahimi participated by telephone from her home in Griffith. Mrs Rahimi was ordered to file all evidence on which she would rely at hearing within a specified period. Mrs Rahimi did not file any additional evidence despite her avowed intention to do so. A further telephone directions hearing took place on 30 January 2009 and a further period was allowed for Mrs Rahimi to file her evidence. Subsequently on 23 February 2009, Mrs Rahimi’s daughter, Shahjan Nouri filed additional materials on Mrs Rahimi’s behalf. These new materials record Mrs Rahimi’s date of birth as 21 March 1944. On 23 March 2009 a telephone directions hearing was conducted, Mrs Rahimi participated using her home telephone.

[7] T1 folio 2.

7.      On 30 March 2009 hearing certificates were sent to the parties. Mrs Rahimi did not return the hearing certificate. Efforts were made by the Tribunal to contact Mrs Rahimi by telephone on 9, 16, 17 and 20 April 2009, without success. Messages were left requesting Mrs Rahimi to telephone the Tribunal and providing information about a proposed listing in Wagga Wagga on 7 May 2009. The matter was listed for hearing at Wagga Wagga on 7 May 2009 and a listing notice was sent to Mrs Rahimi at her home address on 20 April 2009. The Tribunal attempted to contact Mrs Rahimi by telephone at her home on that day, without success. A message was left informing her of the date, time and location of the hearing. On 22 April 2009 a male person telephoned the Tribunal on Mrs Rahimi’s behalf to discuss the proposed listing. The Tribunal file note indicates that the proposed listing in Wagga Wagga was discussed and the possibility of listing the matter in Griffith was raised, but was not pressed. The Tribunal and the Respondent proceeded to prepare for the listed hearing on 7 May 2009. Prior to the listed hearing the Tribunal made repeated efforts to contact Mrs Rahimi by telephone at her home number on 4 and 7 May 2009. Messages were left asking her to contact the Tribunal. No such contact was made. Mrs Rahimi did not ask for the listed hearing to be vacated at any stage.

8.      At 10am on 7 May 2009 the listed hearing proceeded. Mrs Rahimi did not appear and could not be contacted by telephone. I dismissed the application at 10.50am.

9.      On 27 May 2009 Ms King’s letter requesting reinstatement of Mrs Rahimi’s application was received by facsimile.

10. The Minister did not take issue with the form or nature of Mrs Rahimi’s request for reinstatement of her application as conveyed by Ms King. Even though Ms King has informed the Tribunal that she is not representing Mrs Rahimi in these proceedings, I will proceed on the basis that her letter constitutes a valid application, on Mrs Rahimi’s behalf, for reinstatement of the application pursuant to subs 42A(8) of the Administrative Appeals Tribunal Act 1975 (AAT Act). As can be seen the application was made within the statutory 28 day period.

11.     Nevertheless, the Minister objected to Mrs Rahimi’s request for reinstatement of her application on a number of grounds that I will address below.

12.     Mrs Rahimi contends that her application should be reinstated and that Australian citizenship should be conferred upon her. In her submission she did not receive notice of the hearing set down for 7 May 2009, as her address had changed and the listing notice was sent to her old address. She asserts that she could not understand telephone messages that were left in the English language and she did not know that the hearing was listed in Wagga Wagga on the specified day. For this reason Mrs Rahimi asserts that her application should be reinstated and dealt with. With regard to the issue of merit, she asserts that her correct date of birth is 21 March 1944 and that she was over 60 years old when she applied for Australian citizenship, whereby the general eligibility criteria do not apply to her.

13.     In the present circumstances the Tribunal has discretion to reinstate Mrs Rahimi’s application if it is appropriate to do so or if the application was dismissed in error.[8] As will appear, I am not satisfied that it is appropriate exercise the discretion to reinstate Mrs Rahimi’s application in the circumstances.

[8] Subs 42A(8) and (10), Administrative Appeals Tribunal Act 1975; Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 at 389.

14.     There are a number of relevant matters to consider in relation to the discretion to reinstate an application. These were discussed in Re Oates and Secretary, Department of Social Security.[9] Broadly, an application for reinstatement of an application that has been dismissed for failure to appear has similarities to an application to set aside a court order dismissing a matter because a person has failed to prosecute it or has failed to comply with procedural directions. Nevertheless, the duty of the Tribunal is to do justice between the parties, allowing each a proper opportunity to present their case without attempting to impose a limitation, in the manner of professional discipline or general deterrence, in the exercise of discretion.[10]

[9] (1994) 37 ALD 241 at 243-247.

[10] Davies v Pagett and Others (1986) 10 FCR 226 at 232.

15.     Thus, when considering a reinstatement application arising from dismissal for failure to appear, issues of prejudice and fairness must be considered as well as the person’s explanation for the failure to appear, although the absence of a reasonable excuse is not necessarily determinative. In that context it may also be relevant to have regard to any history of non-compliance.[11] The Tribunal must also consider the apparent substance of the case arising for reinstatement and whether the applicant can establish a prima facie case.

[11] Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395-397

explanation

16.     The Minister contends that Mrs Rahimi was properly served notice of the listed hearing on 7 May 2009 and she did not provide any reasonable excuse for her failure to appear. The application was properly dismissed and should not now be reinstated.

17.     Mrs Rahimi’s explanation for her failure to appear was that she did not receive the listing notice and she was not aware of the hearing. Her explanation must be considered in the light of the telephone conversation that took place on 22 April 2009, in which the proposed listing on 7 May 2009 was discussed in detail with the person who telephoned the Tribunal on Mrs Rahimi’s behalf. It is possible that the telephone call made on her behalf on 22 April 2009 was in response to the listing notice that was sent to Mrs Rahimi’s home address on 20 April 2009. If that is correct, it cannot be said that Mrs Rahimi did not receive the listing notice. Furthermore, Mrs Rahimi gave sworn evidence during the reinstatement hearing that she moved into her present address in May 2009. I am satisfied that the listing notice for the hearing in Wagga Wagga was sent to the address Mrs Rahimi provided to the Tribunal for the purposes of the proceedings, that was also her last known address.

18.     Curiously, however, a file note on the Tribunal file suggests that a listing notice was returned to the Tribunal as Mrs Rahimni was no longer living at the address provided.[12] Unfortunately, the file note is far from clear and the notice that was purportedly returned is not on the file. It is not possible, therefore, to determine whether the listing notice for the hearing on 7 May 2009 was returned to the Tribunal, although that appears likely. On that basis it appears that Mrs Rahimi may not have received the listing notice and the notice may not have been given pursuant to subs 68AA(1)(b) of the AAT Act.

[12] File note dated 15 May 2009.

19.     Even so, I am satisfied that Mrs Rahimi’s representative was informed of the listing on 22 April 2009 and to that extent at least Mrs Rahimi was aware of the hearing listed on 7 May 2009. Furthermore, numerous messages were left on her home telephone concerning that listing. I am reasonably satisfied that Mrs Rahimi’s representative telephoned the Tribunal on that day in response to either the listing notice that was sent to her nominated address on 20 April 2009 or in response to telephone messages that were left on Mrs Rahimi’s home telephone service concerning that listing. I note Mrs Rahimi’s evidence that she retained her telephone number when she moved into her new address.

20.     It is true that the messages left by Tribunal staff after 22 April 2009 were in the English language. Nevertheless, the file notes reveal that the information provided in these messages was sufficient for Mrs Rahimito understand that the message was from the Tribunal, even though she does not speak English. I note that the information Mrs Rahimi provided in support of her application for citizenship includes material indicating that she has attended English language classes at various times. Nevertheless, she chose to do nothing in response to the messages left by the Tribunal. Furthermore, Mrs Rahimi did not provide information concerning any change of address until 15 May 2009, more than three weeks after the listing notice was sent.

prejudice and fairness

21.     As it appears that Mrs Rahimi may not have received the listing notice it may be said that she has been denied a reasonable opportunity to present her case and, on that basis, refusing to reinstate her application would be unfair to her. But that is not the only issue to consider.

22.     The Minister asserts that reinstating the case will be prejudicial on a number of grounds.

23.     As I understand the Minister’s submission, those grounds go to the nature of the new material on which Mrs Rahimi seeks to rely and the adverse implications for departmental processes and records if that new material, which the Department has not had the opportunity to properly test, is accepted.

24.     Mrs Rahimi provided certain information concerning her date of birth to the Department of Immigration when she entered Australia and in her application for citizenship.[13] That information includes her Afghan passport and a Document for Travel to Australia.[14] These documents record her date of birth as 21 March 1951, or “1951” in the case of the passport. On that basis Mrs Rahimi was 56 years old when she applied for Australian citizenship. The information she provided in this manner is recorded in a variety of official records. On 23 February 2009 Mrs Rahimi provided fresh material in the context of the Tribunal proceedings in which her date of birth is recorded as 21 March 1944. This fresh material was not considered by Departmental officials or the Minister when assessing her application for citizenship.

[13] T4 folio 22 and T5 folio 28.

[14] T5 folio 31 and 32.

25. The Minister asserts that Mrs Rahimi has not applied to amend her official records pursuant to s 55 of the Freedom of Information Act 1982 in light of the new material and, in consequence, the information in her official records must be applied. Her application was rejected under the general eligibility criteria set out in subs 21(2) of the Australian Citizenship Act 2007 (Citizenship Act) on the grounds that the English language aspect of the citizenship test, as determined by the Minister, applied and the requirement for a basic knowledge of English was not satisfied.

26.     Mr Orford informed me that he was not instructed to raise a jurisdictional point on this basis. Rather, the submission goes to an issue of law and an issue of prejudice. The legal issue concerns the status of the official record of Mrs Rahimi’s date of birth in the present proceedings. The issue of prejudice is that if Mrs Rahimi’s date of birth recorded in the new material is accepted, it will not be consistent with the official records and such an inconsistency would compromise the integrity of the official records and related departmental administrative processes.

27. As it appears to me, the Minister, and in those shoes this Tribunal, must consider and determine Mrs Rahimi’s application having regard to the information contained in the application form. The Citizenship Act requires an application for conferral of Australian citizenship to contain information that is prescribed by the approved form.[15] That information includes the applicant’s date of birth. As it happens that information is consistent with Mrs Rahimi’s official records.

[15] Subs 46(1) Australian Citizenship Act 2007.

28. Thus, in the present circumstance, if Mrs Rahimi has fresh information concerning her date of birth, then it is open for her to apply to amend her official records and to make a fresh application containing that information pursuant to subs 21(4) of the Citizenship Act. In that way, the fresh information may properly be considered and tested by the Minister when determining her application. That has not occurred.

29. As it appears to me Mrs Rahimi’s new material raises an interesting jurisdictional point. The presently reviewable decision is the Minister’s decision under s 24(1) of the Citizenship Act applying eligibility criteria set out at subs 21(2) of that Act. Pursuant to s 53 of the Citizenship Act and s 25 of the AAT Act the Tribunal has jurisdiction to review that decision. The Tribunal must decide the application on the material before it.[16] It may have regard to fresh evidence that was not before the original decision-maker, but it must address the same question that was before the original decision-maker.[17] Thus, presently the question before the Tribunal is framed by the terms of Mrs Rahimi’s application, including the date of birth set out therein. The merit of that application must be assessed and determined on all of the relevant material that is before the Tribunal. The Tribunal may only have regard to Mrs Rahimi’s fresh evidence insofar as it is relevant to the decision that is under review.

[16] Shi V Migration Agents Registration Authority [2008] HCA 31 at [30]-[41] (per Kirby J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (per Bowen CJ and Deane J).

[17] Shi V Migration Agents Registration Authority [2008] HCA 31 at [42]-[51] (per Kirby J); Hospital Benefit Fund of Western Australia v Minister for Health (1992) 111 ALR 1 at 11.

30. The new material exposes information that is not consistent with the terms of her present application and would require consideration of eligibility criteria under statutory provisions that have not previously been raised or applied when determining her application. Mrs Rahimi has made no effort to amend the date of birth in her present application and s 46 of the Citizenship Act does not expressly provide for the amendment of essential information in an application form once the application has been made. Considering these matters it is likely that the Tribunal’s jurisdiction may not extend to consideration of Mrs Rahimi’s application for conferral of citizenship on the fresh grounds she presently contends. Even though the Tribunal decision-making process is a part of the continuum of administrative decision-making concerning matters such as this, the Tribunal does not exercise power at large. The grounds for which Mrs Rahimi presently contends, and the materials on which they are based, have not previously been raised, assessed, considered and determined at an earlier stage. To proceed to determine the present application on the basis of the new material may be attended by jurisdictional error. It is not necessary or appropriate for me to decide the jurisdictional point for present purposes; before doing so, in any event, it would be desirable to hear properly considered argument concerning the content of the new material and the matters to which I have referred. For present purposes it is sufficient to say that the application cannot simply proceed on the basis of Mrs Rahimi’s fresh evidence without, first, determining the jurisdictional point.

31.     Thus, with regard to the Minister’s assertion that prejudice will flow from the reinstatement, I accept that it may insofar as additional costs and delays will result, especially if the matter is to be listed in Griffith or Wagga Wagga. I note that significant costs were incurred attending the listed hearing on 7 May 2009.

32.     It is also relevant to note that Mrs Rahimi’s application before the Tribunal has been attended by delay. The application was lodged on 8 April 2008. Mrs Rahimi left Australia on or about 28 July 2008 and did not return until in or about November 2008. She did not inform the Tribunal or the Minister about her travel arrangements in advance. On 4 December 2008 Mrs Rahimi was directed to file all the evidence on which she intended to rely by 12 January 2009. She failed to comply with this direction and a further directions hearing was conducted on 30 January 2009. On 23 February 2009 Mrs Rahimi filed the new material.

33.     I accept that these delays have increased the costs of the proceedings for the Minister, but alone they are not determinative.

substance and merit

34.     It does not appear to be in dispute that Mrs Rahimi does not speak English. That is one of the grounds she has raised in her submission for reinstatement. She asserts that she could not understand Tribunal communications and messages in the English language.

35. On that basis, in the Minister’s submission, applying the general eligibility criteria at subs 21(2) of the Citizenship Act, Mrs Rahimi’s application lacks merit and is not made out prima facie: she did not possess a basic knowledge of the English language when the citizenship test was applied. As that situation has not changed, the Minister, and in those shoes the Tribunal, must not approve conferral of citizenship if the eligibility criteria have not been satisfied.[18] On that basis the Minister says that the application has no prospect of success and should not be reinstated.

[18] Subs 24(1A) Australian Citizenship Act 2007.

36.     Plainly enough there is an issue concerning the content of the new material and the related assertion that Mrs Rahimi has previously provided incorrect information about her date of birth. The veracity of the new material has not been tested and the weight it should be given is a matter to be determined. Those are not matters for present consideration.

37.     When considering the prospective strength or merit of an application for reinstatement, it is not necessary or appropriate to conduct a mini trial. The task is simply to assess whether the substantive application is raised on relevant evidence, with some prospect of success. In this case, there is no compelling evidence that Mrs Rahimi satisfied the citizenship test and, on that basis, her application has little prospect of succeeding.

conclusion

38.     I am compelled to conclude that it is not appropriate to reinstate Mrs Rahimi’s application. Even if it is accepted that she did not receive the listing notice for the hearing set down on 7 May 2009, and that is not clear, I am satisfied that she was aware of the hearing following communication between her representative and the Tribunal on 22 April 2009. Nevertheless, if the notice was not properly given it may be said that Mrs Rahimi has been denied an opportunity to present her case. If that was the only consideration, the unfairness that would result from refusing to reinstate her application would compel me to a different conclusion. But it is not the only consideration.

39.     In its present terms, the application Mrs Rahimi made for conferral of Australian citizenship is not well supported. By her own account she does not speak English. The evidence is plain enough – she did not meet the citizenship test requirement concerning a basic knowledge of the English language. From a policy perspective,[19] there is no evidence I have seen to support a finding that, at the date of her present application Mrs Rahimi had completed at least 300 hours of English language tuition with the Adult Migrant English Program and could respond in simple English on aspects of the application. That being so her present application, in terms, cannot succeed.

[19] See T3 folio 16.

40.     The only basis on which Mrs Rahimi has any prospect of succeeding in her application to the Tribunal is in relation to the new material concerning her date of birth and the new assertion that the citizenship test is not applicable on the basis of her age. As I have said, that material and that assertion have not been raised, assessed, considered or determined before. In effect, Mrs Rahimi is asking the Tribunal to reinstate her application in order to apply statutory provisions and eligibility criteria that have not previously been considered or applied in relation to her application. In consequence there are real questions concerning the extent of the Tribunal’s jurisdiction, and it is unlikely that those questions would be resolved in a manner favourable to Mrs Rahimi, although that is not certain.

41.     Thus, even though there may be some unfairness to Mrs Rahimi, on balance I am satisfied that it is not appropriate to reinstate her application.

42.     Of course, it remains open for her to make a fresh application for conferral of Australian citizenship on the grounds for which she presently contends in relation to her date of birth and the new material she has obtained. That is a matter for her.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed:  ...............[sgd].....................................................
  J. Lakin, Associate

Date of Hearing  4 August 2009
Date of Decision  12 August 2009
Applicant self-represented
Solicitor for the Respondent  Mr A Orford, Clayton Utz Lawyers