Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, a permanent resident of Australia, sought an extension of time to appeal a decision of the Administrative Appeals Tribunal (AAT) that dismissed his application for review of the delegate's decision to refuse his application for Australian citizenship. The AAT's decision was based on the pending criminal proceedings against the applicant, in accordance with section 24(6) of the Australian Citizenship Act 2007, which prohibits the approval of a citizenship application when criminal proceedings are pending. The AAT refused to grant an adjournment pending finalisation of the applicant's criminal proceedings, citing its lack of power to do so based on the decision in Lesi v Administrative Appeals Tribunal [2015] FCA 1186; 238 FCR 145 (Lesi). The applicant contended that the AAT's decision was plainly wrong and that the Tribunal should have had the power to adjourn the review pending the finalisation of the criminal proceedings.

The court considered the legal issue of whether the applicant's application for an extension of time lacked merit because he did not contend that the decision in Lesi was plainly wrong. The court observed that there were serious doubts about whether Lesi was correctly decided and that it was not in issue that the AAT's decision in the present case was based on Lesi. The court further considered the relationship between judicial comity and the assessment of merit in the context of applying for an extension of time. The court noted that the applicant failed to explain the whole of the delay in instituting the proceedings, as his solicitors had erroneously filed an application for an extension of time in the Federal Circuit Court out of time. However, the court granted the application for an extension of time, with the recommendation that the matter be referred to a Full Court of the Federal Court of Australia.

The court's decision in this case highlights the importance of considering the relationship between judicial comity and the assessment of merit when applying for an extension of time. The court recognised that there were serious doubts about the correctness of the decision in Lesi, which was relied upon by the AAT in dismissing the applicant's application for review. The court also noted that it was not in issue that the AAT's decision in the present case was based on Lesi. The court's decision to grant the application for an extension of time, with the recommendation that the matter be referred to a Full Court, demonstrates the court's willingness to consider the merits of an application for an extension of time, even in cases where the applicant has not contended that a previous decision was plainly wrong. This decision provides guidance to applicants for extensions of time in similar circumstances and highlights the importance of considering the relationship between judicial comity and the assessment of merit when applying for an extension of time.