Aileen Lee v Minister for Immigration and Citizenship
[2011] AATA 145
•2 March 2011|
Administrative Appeals Tribunal
ORDER AND REASONS FOR ORDER [2011] AATA 145
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2011/0016
GENERAL ADMINISTRATIVE DIVISION )
Re: AILEEN LEE
Applicant
And: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ORDER
| Tribunal | G. D. Friedman, Senior Member |
Date2 March 2011
PlaceMelbourne
| Order | The Tribunal refuses the application for an extension of time to lodge the application for review. |
.................[sgd].............................
Senior Member
PRACTICE AND PROCEDURE – extension of time to lodge application for review of refusal of application for Australian citizenship - whether discretion to extend time should be exercised
Administrative Appeals Tribunal Act 1975 s 29(7)
Australian Citizenship Act 2007 s 22(9)
Australian Citizenship (Transitionals and Consequentials) Act 2007 Item 5B of Schedule 3
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR ORDER
2 March 2011 G. D. Friedman, Senior Member
Ms Lee became a permanent resident of Australia on 21 January 2000, following her marriage to an Australian citizen in March 1995. On 13 April 2010 she lodged an application with the Department of Immigration and Citizenship for conferral of Australian citizenship, and on 28 October 2010 a delegate of the respondent refused the application because Ms Lee did not satisfy the residence requirements or the discretion provisions of the citizenship legislation.
On 5 January 2011 Ms Lee applied to the Tribunal for an extension of time to lodge her application for review as she was outside the time limit.
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review to this Tribunal should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 states:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Item 5B of Schedule 3 of the Australian Citizenship (Transitionals & Consequentials) Act 2007 (the Transitional Act) states:
5B Citizenship by conferral — persons who are permanent residents at commencement
(1) This item applies if:
(a) a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and
(b) the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.
(2) In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1) For the purposes of section 21, a person satisfies the general residence requirement if the person has been present in Australia as a permanent resident for:
(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total period of at least 2 years in the period of 5 years before that day.
(2) Paragraph (1)(b) does not apply if the person:
(a) was born in Australia; or
(b) was an Australian citizen at any time before the person made the application.
Section 22(9) of the Australian Citizenship Act 2007 (the Citizenship Act) provides further qualification of the residence requirements:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
In Hunter Valley Developments Pty Ltd v Cohen (1984)
3 FCR 344, Wilcox J set out the following principles guiding the use of the discretion to grant an extension of time:
whether the applicant has demonstrated an acceptable explanation for the delay and whether it would be fair and equitable in the circumstances to extend the time;
whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
any prejudice to any other party;
any wider prejudice to the general public is a relevant factor;
the merits of the substantive application; and
considerations of fairness between the applicant and other persons in a similar position.
CONSIDERATION
Explanation for the Delay
Ms Lee told the Tribunal that she is living in Singapore and has been busy with work commitments as a university lecturer. She also described significant obligations in caring for her ageing parents. She said that these factors caused the delay in lodging the application, and that she needed more time to prepare her application.
The Tribunal accepts that Ms Lee had ongoing commitments to her work and the care of her parents. However she was aware of the requirement to lodge her application within 28 days of receipt of the respondent’s decision and is familiar with email and the use of the internet. She had sufficient opportunity to the lodge her application within the prescribed time limit, even if she provided supporting documentation at a later date.
Has the Applicant Rested on her Rights?
Since receiving the respondent’s decision Ms Lee has given no indication to the respondent of her intention to seek review. The first action appears to be her application to the Tribunal on 5 January 2011.
Prejudice to Other Parties and Wider Public Considerations
There is no evidence to suggest that the respondent or the wider community would suffer significant prejudice if an extension of time were granted. However, there is an expectation that time limits for review of decisions will be observed in order to assist the proper administration of government agencies.
The Merits of the Substantive Application
The provisions of the Citizenship Act and the Schedules to the Transitional Act commenced 1 July 2007. As Ms Lee was a permanent resident prior to the commencement of the Citizenship Act, and she applied within three years of the commencement of that Act, the residence requirements found in Item 5B of the Transitional Act apply to her. While Ms Lee meets the residence requirements in Item 5B(2)(1)(b), she does not meet the requirements of 5B(2)(1)(a) as she was present in Australia for less than one year in the two years prior to her application.
Ms Lee submitted that she was a surviving spouse at the time of her application for citizenship, as provided for s 22(9) of the Citizenship Act, which enables the Minister to treat a period as one in which the person was present in Australia, as a permanent resident subject to the four factors specified in s 22(9)(a) to (d), which must be satisfied. Section 22(9)(a) states that the person must be a spouse or de facto partner of an Australian citizen during that period, which in
Ms Lee’s case is the two years before her application. As Ms Lee’s husband died in 2000 and she was therefore not a spouse or de facto partner of an Australian citizen in the two years prior to her application, the Minister’s discretion in s 22(9) cannot be exercised in her favour.Therefore, there is no merit in Ms Lee’s substantive application.
Considerations of Fairness
Ms Lee’s situation is not sufficiently different from other applicants in a similar position to suggest she is suffering any unfairness.
CONCLUSION
In considering the relevant factors, the Tribunal is not satisfied that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
ORDER
The Tribunal refuses the application for an extension of time to lodge the application for review.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the order of:
G. D. Friedman, Senior Member
Kate Conners
Associate
Date of hearing: 2 March 2011
Date of order: 2 March 2011
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr T Eteuati
Solicitor for the respondent: Clayton Utz
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