FEDERAL COURT OF AUSTRALIA

Lesi v Administrative Appeals Tribunal [2015] FCA 1186

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the second respondent’s costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    On 26 October 2015, the applicant issued an originating application for judicial review in relation to conduct engaged in by the Administrative Appeals Tribunal (“the Tribunal”). The conduct identified by the applicant in his originating application is the Tribunal’s refusal to adjourn a proceeding before it until after 14 January 2016. The applicant relies on s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and he claims that the Tribunal committed an error of law or exercised its power improperly.

2    The Tribunal is the first respondent and has filed a submitting notice. The Minister for Immigration and Border Protection is the second respondent and he contends that the application should be dismissed.

The Facts

3    On 21 June 2012 the applicant made an application for citizenship under s 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). Although it is not clear precisely when this occurred, at some point a delegate of the Minister commenced considering the applicant’s application.

4    On 14 July 2014 the applicant was convicted of “commit assault – basic offence” and the Court imposed a good behaviour bond of $500 for 18 months. The bond is due to expire on 14 January 2016.

5    On 1 May 2015 a delegate of the Minister refused the applicant’s application because (among other reasons) s 24(6)(g) of the Act applied to his application. Section 24(6) is in the following terms:

24    Minister’s decision

(6)    The Minister must not approve the person becoming an Australian citizen at a time:

(a)    when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or

(b)    when the person is confined to a prison in Australia; or

(c)    during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or

(d)    if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or

(e)    if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or

(f)    if the person:

(i)    has been released by a court from serving the whole or a part of a sentence of imprisonment; and

(ii)    has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

(g)    if, in respect of proceedings for an offence against an Australian law in relation to the person:

(i)    a court does not impose a sentence of imprisonment on the person; and

(ii)    the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

(h)    during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

6    On 28 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.

7    On 6 August 2015, the solicitors acting for the applicant wrote a letter to the Tribunal with a copy of the letter sent to the Minister’s solicitor in the following terms:

At the directions hearing on 23 July 2015 I indicated that I would obtain instructions from my client regarding withdrawal of the appeal. However, it occurs to me that if the AAT were to list the matter for hearing after January 2016 (when the bond concludes) there is no impediment to a favourable decision being made by the Tribunal in relation to Mr Lesi’s citizenship application. Given the very extensive delay in the previous application (application date 21 June 2012), Mr Lesi is not inclined to start again with a fresh application for Australian citizenship once his bond has concluded.

I would be grateful if you would indicate whether the Tribunal and the Minister are willing to await a listing of this matter to, say, February 2016.

8    The solicitor for the Minister responded by advising the Tribunal that the Minister did not consider that it would be appropriate for the application for review to be delayed to allow it to be heard after 14 January 2016 so that the prohibition in s 24(6)(g) of the Act no longer applied. The solicitor contended that delaying the matter would be contrary to the objects of the Tribunal and the solicitor identified those objects as the provision of a mechanism of review that is economical, informal and quick. The Minister referred to the Tribunal’s objective as set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

9    On 14 September 2015 there was a directions hearing before Deputy President K Bean in the applicant’s application for review. The Deputy President made a direction that on or before 21 September 2015 both parties were to file and serve hearing certificates. The Minister put forward evidence about what occurred at this hearing and I accept that evidence. The Deputy President considered that the applicant’s application to delay the hearing amounted to a request to proceed other than in accordance with the Tribunal’s ordinary course which would see a hearing date set later in the year. The Deputy President said that the Tribunal was being asked to use its powers and discretions having regard to a consideration that went to the merits of the application, and a consideration which removed an existing barrier to the application. The Deputy President said that, in those circumstances, the Tribunal was not satisfied that it was appropriate to proceed in accordance with the applicant’s application, and it was arguably an improper exercise of the power in any event. The Deputy President then made the order about the filing and serving of hearing certificates. The Deputy President indicated that she would direct the Registry to list the case for directions within 7 to 14 days of the hearing certificates being filed and the purpose of the directions hearing would be to determine whether a preliminary argument should be had about the operation of s 24(6)(g) of the Act to the facts of the case or whether to list the matter for a full hearing, including the calling of all witnesses relevant to the question of whether the applicant was of good character. The Deputy President also indicated that a substantive hearing could be listed at any time between late October 2015 and December 2015. The Deputy President did not deliver reasons for the direction she made on 14 September 2015.

10    On 24 September 2015 there was a directions hearing conducted by telephone before Senior Member Dunne. The Minister has put forward evidence as to what occurred at this hearing and I accept that evidence. The Senior Member asked the parties to confirm that the purpose of the directions hearing was to determine whether a preliminary hearing should be listed in relation to the operation of s 24(6)(g) of the Act. The solicitor for the Minister confirmed that that was the case. However, the applicant’s solicitor informed the Tribunal that it was her understanding that the purpose of the directions hearing was for the Senior Member to determine if the matter could be listed on a date after January 2016. The solicitor for the Minister informed the Tribunal that the Deputy President had already considered such an application on the last occasion and agreed that it amounted to a request to proceed other than in accordance with the Tribunal’s ordinary course which would see a hearing date set later in the year. The Senior Member agreed that the Deputy President’s notes suggested that the Tribunal was not satisfied that it was appropriate to proceed in accordance with the applicant’s wishes, and that it was an improper exercise of power. In the circumstances, the Senior Member said he was going to list the matter for hearing on 5 November 2015.

11    The Tribunal has listed matter for hearing on 5 November 2015 and this application has come before me on an urgent basis.

The Issues on the Application

12    The effect of the conduct of the Tribunal which the applicant challenges is to list his application for review on 5 November 2015 and not to adjourn the application until after 14 January 2016. As I understand it, if the hearing proceeds on 5 November 2015 the applicant accepts that his application for review will fail because of the operation of s 24(6)(g) of the Act.

13    In his application, the applicant seeks the following substantive orders:

...

3.    An order directing the First Respondent to refraining from conducting a hearing of the review on 5 November 2015.

4    An order directing the First Respondent to consider the Applicant’s application to adjourn the hearing of the review until after 14 January 2016 according to law.

14    Unless there was some reason to think that the Tribunal could not consider an application to adjourn the hearing of the review on or before 5 November 2015 (and there is no such reason suggested in this case), I would not make the order in paragraph 3 above even if the applicant was otherwise successful. The appropriate order if the applicant is successful is an order in terms of paragraph 4.

15    The applicant drew attention to the words “at a time” in the chapeau to sub-s 24(6), and the words “during the period” or “during any period” in paragraphs (a), (d), (e), (f), (g) and (h) of sub-s 24(6). He submitted that the Minister was not required to determine an application within a particular period of time. He submitted that it followed from these matters that there was nothing to prevent the Minister from postponing consideration of an application as the Minister considered appropriate. He submitted that these provisions were to be contrasted with the provisions of the Australian Citizenship Act 1948 (Cth) where the Minister was given an express power to defer consideration of an application until the end of a period determined by the Minister, but not so as to defer consideration of an application for a period that exceeded, or for periods that in total exceeded, 12 months (ss 14 and 14A of the Australian Citizenship Act 1948).

16    The applicant submitted that the Tribunal had all the powers and discretions that were conferred by relevant enactment on the delegate (s 43 of the AAT Act) and that it was to exercise its power of review having regard to the facts and circumstances as they exist at the time it is making its decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). The applicant submitted that the Tribunal had a power to adjourn a proceeding for the review of a decision from time to time under s 40(1)(c) of the AAT Act.

17    The applicant submitted that in considering whether or not to adjourn the proceeding before it, the Tribunal committed an error of law in that it held that it would be improper to defer the matter until after January 2016. The applicant submitted that the Minister could have postponed consideration of the application from time to time and the Tribunal could do the same either because it could exercise the same powers as the Minister or by reason of its general power to adjourn the proceeding from time to time. The applicant submitted that, in any event, there was no reason to read down the general power to adjourn.

18    The applicant submitted that in addressing the applicant’s application for an adjournment the Tribunal should have considered the following matters:

(1)    the statutory objectives of both the Act and the AAT Act;

(2)    the delay since the making of the application to the Minister;

(3)    the facts and circumstances surrounding the conviction and the imposition of the good behaviour bond;

(4)    the finite period sought for the adjournment;

(5)    the short duration of the adjournment (when compared to the period that had elapsed since the making of the application to the Minister); and

(6)    any prejudice that may be suffered by reason of the failure to adjourn.

19    The applicant submitted that the Tribunal erred in not taking these matters into account. It committed an error of law, or in the alternative, failed to take into account relevant considerations. In the further alternative, the applicant submitted that the Tribunal’s exercise of its power was unreasonable (Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332 (2013) 297 ALR 225).

20    In response, the Minister relied on my decision in Minister for Immigration and Citizenship v Hassani (2007) 219 FCR 144 (“Hassani”). That case involved the provisions of the previous Act, the Australian Citizenship Act 1948, and a respondent who faced criminal charges. The applicant was the Minister and the applications were made under the Administrative Decisions (Judicial Review) Act and s 39B of the Judiciary Act 1903 (Cth). I upheld the Minister’s challenge to the Tribunal’s decision to adjourn the application for review. I held that the Tribunal’s exercise of the power to adjourn or defer, insofar as it relied on the power in s 14A of the Australian Citizenship Act 1948, had miscarried. As to the Tribunal’s general power to adjourn, I held that that power was not excluded by the fact that the power to defer is a power available to the Tribunal. However, I held that the general power to adjourn was effected by the provisions of the Australian Citizenship Act 1948. I said that if an application was made to adjourn or defer an application for review on the ground that a charge was pending, it was appropriate that the decision-maker proceed under s 14A of the Australian Citizenship Act 1948 rather than the general power to adjourn in s 40(1) of the AAT Act. Secondly, and in any event, I said that I doubted whether there would be grounds to adjourn because of a pending charge. I said that the alternative to the granting of an adjournment would not be that the applicant for review would be required to compromise his or her right to silence before the hearing of the criminal charge because the effect of s 13(11)(a) of the Australian Citizenship Act 1948 was quite clear. The Minister was not to grant a certificate of Australian citizenship while proceedings for an offence were pending. I held that it would not be a proper exercise of the discretion to adjourn the application on the ground that criminal charges against the applicant were outstanding. I said (at [37]):

The exercise by the Tribunal of its general power to adjourn miscarried because it was not entitled to take into account the pending charge in considering whether to adjourn and, in any event, the Tribunal member misunderstood what would occur if the application was not adjourned. If not adjourned, then the application should have been listed and if the facts fell within s 13(11)(a) it should have been dismissed and the delegate’s decision affirmed.

21    I do not think the words “at any time” and “during the period” or “during any period” lead to the conclusion that the Minister has the power to defer consideration of an application. They simply provide that the Minister is not to approve an application during the periods identified. Where an application is made, the Minister is required by s 24(1) of the Act to approve or refuse a person becoming an Australian citizen.

22    The Explanatory Memorandum for the Australian Citizenship Bill 2005 does not assist in terms of explaining the reasons an express power to defer of a similar nature to that contained in s 14(1) and s 14A(1) of the Australian Citizenship Act 1948 was not included in the Australian Citizenship Act 2007. It simply says that certain provisions, including ss 14 and 14A were no longer required and should be repealed.

23    As I understand it, there is no restriction under the Act on the applicant making another application for citizenship after January 2016. I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister’s consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.

24    I think that this case is, in one sense, stronger than that in Hassani because there is in this case no express power to defer. It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the Act to that effect. I will follow my decision in Hassani.

25    In his submissions, counsel for the applicant gave examples of cases where he submitted the Tribunal should be able to adjourn a hearing to allow a matter to expire or no longer be relevant. One example was of a case where a security or bond was to expire a few days after a scheduled Tribunal hearing. However, even if I am wrong in the conclusion I express above (at [24]) and the Tribunal could adjourn the hearing for a short period on the basis of such a consideration, that would be because of a consideration that the Tribunal was permitted to take into account but not required to take into account (Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24 at 39 per Mason J (as his Honour then was)). It seems that the Tribunal did not take the expiry of the bond into account in this case, but in my opinion it was not bound to do so.

Conclusions

26    The applicant’s application must be dismissed. The Minister applied for indemnity costs, but I do not consider the application was so hopeless that an award of costs should be made on that basis. The applicant is to pay the second respondent’s costs to be taxed in default of agreement.

Associate:    

Dated:    4 November 2015