Akram and Commissioner of Police (NSW) - [2021] AATA 1209

Akram and Commissioner of Police (NSW) [2021] AATA 1209 (11 May 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1361
Re:Naveed Akram
APPLICANT

Commissioner of Police (NSW)And
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:11 May 2021
Place:Sydney

The application for an extension of time made pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
.................................[SGD].......................................
Dr L Bygrave, Member
CATCHWORDS
EXTENSION OF TIME APPLICATION – review application lodged outside 28-day limit – interlocutory hearing held – provisions of the Administrative Appeals Tribunal Act 1975 (Cth) considered – provisions of the Mutual Recognition Act 1992 (Cth) considered – provisions of the Security Industry Act 2003 (ACT) considered – provisions of the Security Industry Act 1997 (NSW) considered – reasons for delay considered – prejudice to the respondent and general public considered – merits of substantive application considered – application for extension of time refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Mutual Recognition Act 1992 (Cth)
Security Industry Act 2003 (ACT)
Security Industry Act 1997 (NSW)

CASES
Andriotis v Victorian Building Authority [2018] FCAFC 24
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Victorian Building Authority v Andriotis [2019] HCA 22
REASONS FOR DECISION
Dr L Bygrave, Member
11 May 2021
INTRODUCTION

On 8 March 2021, Mr Naveed Akram lodged an application seeking an extension of time under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to make an application to review a decision made on 26 November 2020 by a delegate of the Commissioner of Police (NSW) (the Commissioner) (the reviewable decision).
The reviewable decision was to refuse to grant Mr Akram a Class 1ACE New South Wales (NSW) security licence in accordance with the Mutual Recognition Act 1992 (Cth) (the MR Act).
The Commissioner opposes the extension of time sought.
The application was heard on 28 April 2021 by teleconference. Mr Akram participated in the hearing and gave oral evidence with the assistance of an interpreter of the Urdu language.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:
(a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(b)a distinction is to be made between an applicant who has ‘rested on his rights’ and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application; and
(f)considerations of fairness between the applicant and other persons in a similar position.
These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) 45 FCR 441, 444.
All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
REASONS FOR DELAY
The length of delay in Mr Akram seeking review is approximately ten weeks after the 28-day limit.
In his application to the Tribunal, Mr Akram stated his reasons for delay in seeking review were medical. He attached a medical certificate from a general practitioner to his application that was dated 4 December 2020 and noted Mr Akram was suffering from ‘anxiety and stress’ and was advised to ‘reduce [his] study load’.
Mr Akram confirmed at the hearing that he received and read the reviewable decision dated 26 November 2020 and was aware he was required to lodge an application for review within 28 days. However, he said the review ‘slipped his mind’ because he was dealing with issues in relation to his family and property in Pakistan. He confirmed that, despite his medical condition, he was able to continue his studies as well as part-time employment in the period from December 2020 to March 2021.
While I accept Mr Akram’s explanation, I am not satisfied that his reasons are sufficient in view of the length of delay and his awareness of the timeframe for seeking review.
I find this principle weighs against granting an extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of the Commissioner and the general public that prescribed time limits are followed to ensure a predictable and orderly conclusion to appeal processes.
I accept the Commissioner and the general public would have expectations about the finality of the decision-making process in relation to Mr Akram’s application. Given the delay in Mr Akram seeking review is approximately ten weeks, I am satisfied there would be some prejudice to the Commissioner if the extension of time is granted.
I find this factor weighs against granting an extension of time.
MERITS OF SUBSTANTIVE APPLICATION
I now consider the merits of the substantive application: Mr Akram’s substantive application for administrative review is whether the decision made by a delegate of the Commissioner on 26 November 2020 to refuse to grant him a Class 1ACE NSW security licence under the MR Act was the ‘correct and preferable’ decision.
Background
Mr Akram lodged an application for grant of a Class 1ACE NSW security licence that was received by the Security Licensing and Enforcement Directorate (SLED) on 26 June 2020. Attached to his application was a certified copy of his Australian Capital Territory (ACT) security employee licence with an expiry date of 3 September 2020 and a copy of his Pakistan passport.
A delegate of the Commissioner considered Mr Akram’s circumstances and determined on 26 November 2020 that he had obtained his ACT security employee licence using ‘a false address’ and had applied for an NSW security licence under mutual recognition principles to avoid NSW licensing requirements.
Relevant legislation
Relevant to the substantive application, Part 3 of the MR Act sets out the ability of a person who is registered in connection with an occupation in a State (the ‘first State’) to carry on an equivalent occupation in another State (the ‘second State’). Subsection 20(1) of the MR Act provides that:
(1) A person who lodges a notice under section 19 [of the MR Act] with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
Also relevant are the following applicable ACT and NSW statutory provisions:
·Subsection 18(2) of the Security Industry Act 2003 (ACT) states that where an applicant has lived in a foreign country as an adult for a continuous period of one year or more in the five years prior to making an application, the ACT Commissioner for Fair Trading may require a copy of the applicant’s criminal history record from that country.
·Paragraph 15(1)(f) of the Security Industry Act 1997 (NSW) sets out restrictions on granting a licence that include, amongst other matters, a person on a student visa.
Consideration
Mr Akram was initially granted a student visa on 13 June 2018. He commenced living and studying in Sydney, and was initially issued a NSW drivers licence on 15 August 2018.
On 18 March 2020, Mr Akram made an application to the ACT Government for a security licence. In written submissions dated 26 April 2021 and at the Tribunal hearing, the Commissioner’s legal representative contended that Mr Akram made false or misleading declarations in this application in relation to:
·whether he resided in the ACT and/or provided a false ACT address; and
·whether he had not lived outside of Australia for a continuous period of one year, in the last five years.
Mr Akram told the Tribunal that he moved to the ACT for two-three months during 2020. He said that he did not intentionally falsely declare that he had not lived outside of Australia for a continuous period of one year, in the last five years, although he accepted that he first arrived in Australia after the grant of his student visa on 13 June 2018.
Based on the evidence before the Tribunal, I make the following findings of fact:
·Mr Akram, as the holder of a student visa, is restricted from being granted a security licence pursuant to paragraph 15(1)(f) of the Security Industry Act 1997 (NSW).
·Mr Akran made an application for a security licence to the ACT Government on 18 March 2020, which contained false declarations – albeit, Mr Akram has said that any false declarations were unintentional.
·On the basis of being granted an ACT security licence, Mr Akram lodged an application to SLED that was received on 26 June 2020 (approximately three months later), for grant of a Class 1ACE NSW security licence under the provisions of the MR Act.
The Commissioner made submissions referring to the authorities of the Full Court of the Federal Court in Andriotis v Victorian Building Authority [2018] FCAFC 24 (Andriotis FCA) and the High Court on appeal in Victorian Building Authority v Andriotis [2019] HCA 22 (Andriotis HCA). I have also had regard to these judgments, which confirm that the provisions in the MR Act do not support a person who has obtained registration in the first State through fraud obtaining ‘the benefit of the mutual recognition principle’ and, further, it is ‘open to a local registration authority to refuse the application on the basis that such a person is not eligible to lodge, and has not lodged, “a notice under section 19” as is required by s 20(1)’.[1]
[1] Andriotis FCA at [124].
Considering the available evidence, I am of the view that Mr Akram’s substantive application has very limited prospects of success because the application he made for a security licence to the ACT Government on 18 March 2020 contained false declarations.
I find this factor weighs against granting an extension of time.
CONCLUSION
I am not satisfied that it is reasonable in these circumstances to grant the extension of time.
DECISION
The application for an extension of time made pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[SGD]...........................................
Associate
Dated: 11 May 2021

Date of hearing: 28 April 2021

Applicant: Self-represented

Solicitors for the Respondent:
Mr A Grey, Office of the General Counsel

Ms I Penna, Office of the General Counsel