Kabue and Minister for Home Affairs (Migration) [2019] AATA 3753 (23 September 2019)

Administrative Appeals Tribunal Act 1975 (Cth) - ss 29(7), 42A, 42A(1A), 42A(1AA), 42A(1B), 42A(2), 42A(8), 42A(8A), 42A(9), 42A(10)

Migration Act 1958 (Cth) - ss 500(6B), 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501G(1)

De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

Kalafatis and the Commissioner for Taxation [2012] AATA 150

Mori and Secretary, Department of Social Services [2013] AATA 737

Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811

Ristic and Secretary, Department of Social Services (Social services second review) [2017] AATA 2

1. On 9 January 2018, the Applicant's Class BB Subclass 155 Five Year Resident Return visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) (Exhibit A2). This will be referred to as the Original Decision.
2. The Original Decision was made on the basis that the Applicant did not pass the character test because he had a substantial criminal record (ss 501(6)(a) and 501(7)(c) of the Migration Act) (Exhibit A2). This was because he was convicted of six counts of aggravated sexual penetration without consent and one count of aggravated indecent assault, for which he was sentenced on 3 November 2015 in the District Court to a total term of imprisonment of five years, with eligibility for parole after having served three years of his term of imprisonment. Also, at the time of the cancellation he was serving a full-time sentence of imprisonment at Karnet Prison Farm in Western Australia.
3. The Applicant was invited to make representations as to why the Original Decision should be revoked (Exhibit A2). The Applicant made representations within the period and in the manner specified.
4. After considering the Applicant's representations, on 14 August 2019 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Original Decision (Exhibit A2). The delegate was not satisfied that the Applicant passed the character test, nor was the delegate satisfied that there was another reason why the original decision should be revoked. This will be referred to as the Delegate's Decision.
5. The Delegate's Decision was sent to the Applicant's legal representative by email under cover of a letter dated 20 August 2019 (Exhibit A2).
6. On 24 August 2019, the Applicant lodged an application for review of the Delegate's Decision (the Application for Review) with the Administrative Appeals Tribunal

(the Tribunal) (Exhibit A1). Consequently, the Applicant was within the nine day time frame for lodging his Application for Review (s 500(6B) of the Migration Act). 7. On 29 August 2019, the Applicant sent the following email to the Tribunal (Exhibit A4):

Hi I would like to withdraw my case, Re: 2019/5240 from aat and volunteer to go to Kenya. Thank you

1. The effect of this email is provided for in s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which states:

(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

(1B) If notification is given in accordance with subsection (1A) or (1AA),

the Tribunal is taken to have dismissed the application without proceeding to review the decision.

1. Thus, the effect of these provisions is that following receipt of the Applicant's email of

29 August 2019, the Applicant's Application for Review was taken to have been dismissed. The Applicant was notified of the dismissal in a letter from the Tribunal dated

30 August 2019 (Exhibit T1). 2. However, on 7 September 2019, the Applicant sent a further email to the Tribunal

I would like to have my case 2019/5240 re-considered/reopened by AAT, after my quick withdrawal. I did not put much thought into it at the time and I need to give it a fighting chance for my children and family.

1. On 11 September 2019, a telephone directions hearing was held to discuss the Applicant's request for reinstatement of his Application for Review with the Tribunal. Submissions were received from the Respondent the day before (10 September 2019), and the morning of the telephone directions hearing (11 September 2019) (Exhibit R1). Consequently, the Tribunal re-listed the matter for an interlocutory hearing on

Friday 20 September 2019 in order to give the Applicant an adequate opportunity to read and consider the Respondent's submissions, to make submissions in reply, and to allow him to seek legal representation if desired.

1. The interlocutory hearing took place on 20 September 2019. The Applicant was

self-represented and the Respondent was represented by Mr Gerard. 2. The Tribunal admitted the following documents into evidence at the interlocutory hearing: * (a) Applicant's Application for Review, filed with the Tribunal on 24 August 2019 (Exhibit A1); * (b) Letter from the Department of Home Affairs to the Applicant, dated

20 August 2019, enclosing the Reviewable Decision of 14 August 2019 with attachments (Exhibit A2); * (c) Applicant's email requesting reinstatement of his Application for Review, dated

7 September 2019 (Exhibit A3); * (d) Applicant's email to the Tribunal requesting withdrawal of his Application for Review, dated 29 August 2019 (Exhibit A4); * (e) Letter from the Tribunal to the Applicant notifying the Applicant that his Application for Review had been dismissed, dated 30 August 2019 (Exhibit T1); and * (f) Email correspondence from the Respondent to the Tribunal and the Applicant dated 10 September 2019 and 11 September 2019 comprising submissions opposing reinstatement of the Applicant's Application for Review (Exhibit R1).

1. Both Mr Gerard and the Applicant made oral submissions to the Tribunal regarding the issue of reinstatement of the Applicant's Application for Review of the Delegate's Decision.
2. Mr Gerard, on behalf of the Respondent, submitted that the Applicant's Application for Review could only be reinstated if it had been dismissed in error, and that there was nothing before the Tribunal to indicate such an error. Mr Gerard submitted that although "error" has a broad meaning, a change of mind or regret on the part of an applicant is not sufficient to establish an error.
3. The Applicant submitted that the reason for withdrawing his Application for Review was that, after speaking to others in immigration detention, he had decided that he did not want to put his family through a further court process. The Applicant stated that

he subsequently changed his mind, and sought reinstatement of his application because he thought it would be a lot easier for his family and children if he were to remain in Australia, and that he would be better able to provide for them in Australia. The Applicant agreed with the Respondent's submissions that there had not been any error in the dismissal of his Application for Review, but that he regretted withdrawing his application.

1. Sections 42A(8) through to 42A(10) of the AAT Act set out the circumstances in which an Applicant may apply for reinstatement of an application for review with the Tribunal and the circumstances in which the Tribunal may reinstate an application. Sections 42A(8) through to 42A(10) of the AAT Act are as follows:

(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

(8B) For the purposes of subsections (8) and (8A), the period is:

(a) 28 days after the party receives notification that the application has been dismissed; or

(b) if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.

(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.

1. Section 42A(8) of the AAT Act is not applicable because a party "other than the Applicant" may apply for reinstatement in the circumstances contemplated in that subsection.
2. Section 42A(8A) of the AAT Act is also not applicable because it applies to dismissals in circumstances where a party fails to appear (under s 42A(2)).
3. Section 42A(9) of the AAT Act appears applicable at first glance because it provides, "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". However this provision has been held only to apply to applications that have been dismissed under

s 42A(2) of the AAT Act for failing to appear, and not to a deemed dismissal under

s 42A(1B) of the AAT Act (Kalafatis and Commissioner of Taxation [2012] AATA 150 at [59]) (Kalafatis). 4. As noted by Deputy President Forgie in Kalafatis at [58], the only applicable provision in circumstances where an Applicant has voluntarily withdrawn an application and seeks to have it reinstated is s 42A(10) of the AAT Act which provides:

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.

1. Thus, the Tribunal agrees with the Respondent's submission that, in order to reinstate the Applicant's application, the Tribunal must be satisfied that the application has been dismissed in error. The Tribunal notes that if there is no error, the AAT would be

"functus officio" (Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811 at [18]). The term "functus officio" is defined in the Oxford Dictionary of Law (7th ed, 2013) as:

... a person who has discharged his duty and whose office or authority is at an end. Once a judgment has been given, the judge is functus officio_: he has no power to make changes in his decision, which can only be questioned by others presiding in the further courts of appeal._

1. Further, the Applicant has the burden of establishing that his application should be reinstated (De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269 (De Los Santos-Aguilar) at [35]).
2. In Goldie v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 367 the Full Court of the Federal Court adopted a broad interpretation of the word "error", which is not limited to administrative errors. The Full Court stated at [27]-[29] that:

...The subsection does not impose any qualification or limitation on the word "error".

...The only limitations that we can see in s42A(10) are:

(i) that the Tribunal has dismissed the application; and

(ii) that the act of dismissal was attended with error.

...We do not think it is necessary, in order to enliven the Tribunal's power under s42A(10), 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. 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".

1. In Ristic and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 2, Member Brigadier Warner, at [18], summarised the case law with respect to the meaning of "dismissed in error" in s 42A(10) of the AAT Act as follows:

Further guidance on the applicability of s 42A(10) to Mr Ristic's circumstances in the present proceedings is found in a number of cases cited by the respondent ... This guidance can be summarised as follows:

"Dismissed in error" comprehends any error in the application of s 42A that led to the dismissal;

For the discretion in sub-section 42A(10) to be invoked, there must be an error which bears some relation to the dismissal;

The error must be related to the dismissal rather than broader or peripheral circumstances; and

An unwise withdrawal of an application does not constitute dismissal in error.

1. The Respondent brought to the Tribunal's attention the decision in Mori and Secretary, Department of Social Services [2013] AATA 737 where the Tribunal found, at [15], that:

...regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of

s 42A(10).

1. In most circumstances, an applicant who later regrets their decision to withdraw their application can apply for an extension of time to lodge a fresh application to the Tribunal, under s 29(7) of the AAT Act. The Tribunal will then decide whether or not to exercise discretion to grant the extension of time. However, in the present circumstances the Tribunal is precluded from exercising any discretion to grant an extension of time due to the operation of s 500(6B) of the Migration Act. In summary, s 500(6B) of the Migration Act provides that applications for review of decisions under s 501CA(4) of the Migration Act must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1) of the Migration Act.

The subsection continues on to exclude the application of s 29(7) of the AAT Act under which an applicant can apply for an extension of time. 2. There is no claim or evidence before the Tribunal that the Applicant's application was dismissed in error. Indeed, at the interlocutory hearing the Applicant agreed that there was no error, but rather that he regretted withdrawing his application. The Tribunal agrees with the Respondent's submission that the Applicant's claim that "he did not put much thought into it [his withdrawal] at the time" (Exhibit R1), and his regret after withdrawing his application, falls short of the threshold required for an error pursuant to s 42A(10) of the AAT Act. 3. Consequently, the Applicant has not satisfied the burden of establishing that his application should be reinstated (De Los Santos-Aguilar).

1. The Tribunal refuses the Applicant's request for reinstatement of his Application for Review of the Delegate's Decision dated 14 August 2019.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

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