Aguek and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1114
•10 May 2022
Aguek and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1114 (10 May 2022)
Division:GENERAL DIVISION
File Number: 2021/10048
Re:Wilson Aguek
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member P.Q. Wood
Date:10 May 2022
Place:Melbourne
The Tribunal refuses the application, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, for an extension of time to lodge this application for review of a decision.
...........................[sdg].............................................
Senior Member P.Q. Wood
Catchwords
EXTENSION OF TIME – application out of time – whether appropriate to exercise discretion in favour of Applicant to extend time – section 29(7) of the Administrative Appeals Tribunal Act 1975 – consideration of extent of delay and explanation for delay – consideration of prejudice to the Respondent or general public arising from the grant of an extension of time – whether the Applicant rested on their review rights – the merits of a substantive application for review – application significantly out of time and without proper explanation – application for extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Rahimzadeh and Secretary Department of Social Services [2019] AATA 3201
WZAUH & Anor v Minister for Immigration & Anor [2019] FCCA 2018
REASONS FOR DECISION
Senior Member P.Q. Wood
10 May 2022
BACKGROUND
The Applicant, Wilson Aguek, lodged an ‘Application for Review’ with the Tribunal on 21 December 2021, seeking a review of a decision made by a delegate of the Minister (‘the Respondent’) made on 8 April 2020, which the Applicant claims to have received on 15 April 2020. Alongside this application, the Applicant also lodged an ‘Application for Extension of Time for Making an Application for Review of Decision’ form.
The Respondent lodged with the Tribunal a ‘Notice of Opposing Application for Extension of Time’ form on 6 January 2022.
An interlocutory hearing for a determination of whether to grant or refuse the extension of time request made by the Applicant was held on 24 January 2022. During this interlocutory hearing, the Tribunal heard submissions from the Applicant, who was self-represented, and the Respondent’s representative, Mr Allen Zabrdac.
For the reasons given below, the Tribunal has decided to refuse the application.
CONSIDERATION
Relevant legislation allowing discretion to extend time
This Tribunal has legislative discretion to extend time for making an application for review. That discretion resides in s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which relevantly provides:
The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for a review of a decision…if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Relevant principles in deciding whether to exercise the discretion to extend time
The matter of Rahimzadeh and Secretary Department of Social Services [2019] AATA 3201 (at paragraphs [5]-[8]) provides a non-exhaustive list of relevant factors to consider in determining an application of this kind. Those factors include:
(a)the extent of the delay and any explanation provided for it;
(b)any prejudice to the Respondent or the general public arising from the grant of an extension of time;
(c)whether the Applicant rested on their review rights; and
(d)the merits of the substantive application for review.
At the interlocutory hearing, the Applicant told the Tribunal that he previously applied for merits review but had withdrawn that application. This occurred on 16 March 2021 and is discussed further below.
In its written submission opposing the current application, the Respondent correctly observed that the Applicant is approximately 1 year and 7 months out of time from the date of the delegate’s decision, and 8 months out of time in terms of ss 42A(8) and 42A(8B) of the AAT Act.
At the interlocutory hearing, the Tribunal questioned the Applicant with respect to the extent of the delay. As best as I understood the Applicant’s submission, he asserted that his previous solicitor withdrew his merits review application without advising him, because the Applicant ‘took a long time’ to consult with the solicitor and ‘provide him with paperwork’. The Applicant said that the solicitor explained to him that the case could have proceeded virtually during the COVID-19 pandemic, and that he should have engaged with the solicitor during this time. The withdrawal for this previous application was finalised on 16 March 2021.
Given the professional obligations which exist between a solicitor and a client, in the absence of independent evidence, I consider the Applicant’s assertion that his solicitor discontinued, by withdrawing, an application of this kind, without instructions to do so, unlikely. Regardless, even if I were to accept the Applicant’s explanation, responsibility for the situation would then fall further towards the Applicant himself, for failing to instruct his solicitor in a timely manner. Arguably, he could be said to have rested on his review rights. Further, in respect of this application, it cannot be said to have been made in a timely manner.
The Respondent did not submit that any particular prejudice would be occasioned by a grant of an extension of time, only that in the ‘interests of administrative decision making’, the Applicant’s application for an extension of time should be refused.
I consider that prejudice to the Respondent would arise if this application for an extension of time was granted. As stated by His Honour Judge Lucev in the matter of WZAUH & Anor v Minister for Immigration & Anor [2019] FCCA 2018 (“WZAUH”) at [45]:
There is prejudice to the Minister arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the Proposed Judicial Review Application. The Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his, or, more formally that the Minister had “a vested right to retain the judgment or decision”: Marks at [17] per McHugh J. In those circumstances there is additional prejudice to the Minister by reason of the costs incurred as a consequence of the filing of the Proposed Judicial Review Application and consequent hearing.
Further, at paragraph [58(c)], His Honour goes on to state:
the length of delay in making the Proposed Judicial Review Application, together with the failure to provide an adequate explanation for that delay, and the significant prejudice to the Minister, taken together, are also a sufficient basis for dismissal of the Extension of Time Application…
In respect to considering the merits factor in determining an extension of time application, His Honour in WZAUH stated at [53]:
The Court need not embark upon a full consideration of the merit of each of the grounds of review for the purposes of an Extension of Time Application, but rather is to determine, on an impressionistic and preliminary examination, whether any of the grounds of review might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their merit…
My impression and preliminary examination is that, given the Applicant’s criminal history between 2005 and 2013, the merits of the substantive application for review do not appear favourable for the Applicant at all.
Overall, with consideration of the above, I find that:
(a)the Applicant is significantly out of time, and without proper explanation;
(b)prejudice to the Respondent may arise out of granting the extension of time;
(c)the Applicant failed to prosecute his review rights; and
(d)the merits of a substantive application for review do not appear favourable to the Applicant.
In respect to the above, I do not consider that it would be reasonable in these circumstances to extend the time for making the relevant application.
DECISION
The Tribunal refuses, pursuant to s 29(7) of the AAT Act, an extension of time to lodge this application for review of a decision.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood
.........................[sdg]...............................................
Associate
Dated: 10 May 2022
Date of hearing: 24 January 2022 Applicant: Self-represented Advocate/Counsel for the Respondent:
Allan Zabrdac
Solicitors for the Respondent: HWL Ebsworth Lawyers
0
2
0