Al-Taie and Minister for Home Affairs (Citizenship)

[2019] AATA 1720

Al-Taie and Minister for Home Affairs (Citizenship) [2019] AATA 1720 (5 July 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2381

Re:Teeba Abdalkadhum Abawd Al-Taie

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Professor P A Fairall, Senior Member

Date:5 July 2019

Place:Sydney

Pursuant to s 29(7) of the Administrative Appeals Tribunal Act1975 (Cth), the Applicant’s application for an extension of time in which to seek review of the Respondent’s decision dated 2 January 2018 is granted to 1 May 2019.

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Professor P A Fairall, Senior Member

Catchwords

EXTENSION OF TIME – principles to be applied – where substantial period of inaction – where reasonable explanation for delay – merits of substantive matter – extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Professor P A Fairall, Senior Member

5 July 2019

1. This is an application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

2. The applicant appears before the Tribunal unrepresented, aided by an Arabic interpreter.  The Department is represented by Mr Tom Hillyard. The facts may be briefly stated.

3. On 21 July 2016 the Applicant applied for citizenship.

4. By letter dated 10 October 2017, Dr Stephenson, a Fellow of the Royal College of Psychiatrists, provided an assessment for the purposes of the Applicant’s citizenship application. Dr Stephenson diagnosed the Applicant as suffering from Adjustment Disorder with Depression.

5. Dr Stephenson also stated that:

   In the foreseeable future it is improbable that family circumstances and depressive symptoms will improve sufficient to enable Mrs A to demonstrate:

   Adequate knowledge of the English language

   Adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

6. By letter dated 2 January 2018 the Department advised the Applicant that her application for citizenship by conferral was refused. The letter enclosed a decision record. The decision record states:

   I am not satisfied that this information is conclusive evidence that your medical condition is a permanent or enduring incapacity which means that you are not capable of understanding the nature of your citizenship application…

7. The delegate also noted:

   I note that you have provided a certified copy of a current NSW drivers’ licence. This demonstrates that you are capable of learning new information and of sitting a computerised multiple choice test.

8. Importantly, the covering letter from the Department also referred to the process for reapplying, and in relation to review rights, stated that

   No further assessment of this citizenship application can be taken at this office.  However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a review of this decision if…you were 18 years of age or over when you made the application to become an Australian citizen, and you are a permanent resident.

   An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taken to have received this letter.

9. On 16 January 2018 the Applicant sent a letter by registered post enclosing a further letter dated 16 January 2018 from Dr Stephenson which stated:

   I draw to your attention to (sic) the false assumption that Mrs A possesses a NSW drivers’ license.  Further inquiry confirmed that this lady only has an identification card, issued by RMS [Roads and Maritime Services].  No test is required to obtain such a card.  Therefore she has NOT demonstrated that she is “capable of learning new information and of sitting a computerised multiple choice test”.

10. It was however, not until 22 January 2019 (some 12 months later) that the Applicant sent an email to the Respondent headed “Application for citizenship by Conferral” following up on her application. Receiving no response, on 30 March 2019 the Applicant sent a further email to the Respondent headed “Application ID 1535592903”.

11. On 2 April 2019 the Department responded by email to the Applicant. The email stated:

    Please be advised that as a decision has been made on your application on 02/01/2018, no further assessment can be done.

12. This appears to be the first communication by the Department to the Applicant since the original 2 January 2018 letter advising that the application for citizenship had been refused.

13. On 1 May 2019 the Applicant lodged an Application for Review in relation to the 2 January 2018 decision and also applied for an extension of time.  As to her reason for challenging the decision she said:

    I believe that I have a mental incapacity as it is shown on my dr’s report (Dr Ann Stephenson).

14. She provided the following reason for applying for an extension of time:

    I was waiting for the Department of Home Affairs to send me a reply for my objection to their refusal decision which took long time. The Department of home Affairs did not reply to my correspondence therefore I am applying for review for your department (sic).

15. Under s 29(7) the Tribunal may extend the time for the making of an application if the Tribunal “is satisfied that it is reasonable in all the circumstances to do so”.

16. The principles governing applications for an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, a decision by Wilcox J under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Tribunal is guided by this decision in reaching its conclusion.

17. In particular, the Tribunal accepts that although there is no onus of proof on the Applicant, special circumstances will need to be shown to justify the grant of an extension, especially where the delay is of a significant order, as it is in this case. 

18. As noted above, the Department notified the Applicant of its decision refusing citizenship by conferral by letter dated 2 January 2018.  Her application for review was not filed until 1 May 2019, some 15 months later. This is a very substantial period of time. There needs to be “some acceptable explanation of the delay” (see Hunter Valley at p. 348-9).

19. Although the period of delay is substantial, it cannot be said that the Applicant rested on her rights.  One can point to action taken by the Applicant, other than by making the application for review, which may be relevant to the question of whether there is an acceptable explanation for the delay. The Applicant acted very quickly upon receiving the letter from the Department dated 2 January 2018 that her application had been refused. On 16 January 2018 she sent a letter by registered post containing a letter from her psychiatrist that was directly relevant to the stated basis upon which the Department had reached its decision (namely that she held a valid NSW Drivers’ Licence).  At the hearing, having been duly affirmed, she stated that after sending the registered letter she phoned the Department to ensure that the letter had been received and was told that it had been received and that the Department would contact her in due course.

20. Between 16 January 2018 and 22 January 2019 there does not appear to have been any further action taken by the Applicant to follow up on her request for the further information to be taken into account. This is a very substantial period of inaction.

21. On 22 January 2019 she sent the first of two emails to the Department. The second was sent on 30 March 2019.

22. It is significant that the Applicant was not advised until 2 April 2019 (after sending the follow up email on 30 March 2019) that it was futile for her to provide additional material in relation to the original application, because a decision had been made and “no further assessment can be done”. This is consistent with the advice provided to the Applicant by the Department in the letter of 2 January 2018.

23. It is open to the Tribunal to infer that up until 2 April 2019 the Applicant was unaware that her only recourse was by way of review under s 43 of the AAT Act. The letter of 2 January 2018 clearly sets out that the only means of challenging the decision was by means of an application for review under the AAT Act. As a non-English speaker the Applicant would not have been able to read the letter for herself and would have needed to rely on an interpreter. In any event, the Applicant appears to have made the not unreasonable assumption that she could correct a factual error by providing the correct information to the Department, as she tried to do on 16 January 2018 by writing to the Department. She also gave evidence at the hearing that she was told by a departmental officer that the Department had received her letter of 16 January 2018 and that someone would get back to her. This would tend to support her assumption that a factual error could be set right by communicating directly with the Department, rather than by way of application for review.

24. It is however also relevant to note that 29 days passed between when she was so advised (2 April 2019) by email and the filing of her application for review (1 May 2019). As counsel for the Respondent noted, even on the assumption that time started to run on 2 April 2019 (which he did not concede), she was out of time by one day when she filed the application for review.

25. The Tribunal is mindful of the basis of the original application, namely that the Applicant suffers from a psychiatric condition associated with depression and experiences considerable hardship in caring for her husband and four children. At the hearing it transpired that the Applicant had given birth to her fifth child on 5 February 2019.  She would have been pregnant from May 2018. With four children and an elderly disabled husband to care for, as well as limited opportunities to leave the home due to her own mental health problems, she was indeed carrying a difficult load, a fact recognised by counsel for the Respondent. The Tribunal proceeds on the basis that such factors may be relevant to determining whether there is a reasonable explanation for a delay in exercising a right of review.

26. Given the speed with which the Applicant contested a critical basis of the Department’s refusal of her application for citizenship, and the failure of the Department to respond immediately in the way it finally did on 2 April 2019, and the language difficulties involved, the Tribunal finds that there is reasonable explanation for delay.

27. In deciding whether to grant an extension of time, the Tribunal is obliged to consider the merits of the application. The application was based on s 21(3)(d) of the Australian Citizenship Act 2007 (Cth), which required the decision-maker to be satisfied inter alia that the applicant:

    (d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means a person …

    (ii) is not capable of demonstrating a basic knowledge of the English language at that time.

28. There is evidence before the material which supports a finding that at the time the Applicant made the application she was suffering from a mental health condition of a permanent or enduring nature.

29. This was the professional judgment of Dr Stephenson, a well-qualified psychiatrist whose evidence was accepted by the delegate, and should be accepted by the Tribunal.

30. Counsel for the Respondent also quite properly acknowledged that the Department had a record of receiving a communication from Dr Stephenson on 11 May 2016, but that it had been misplaced. Counsel undertook to take steps to locate it. It appears that this correspondence was not before the decision-maker at the time the decision was made. It is hoped that it will be available to the Tribunal on a full hearing of the review application.

31. There is also material before the Tribunal which supports a finding that by reason of the mental health condition described by Dr Stephenson the Applicant was not capable of demonstrating a basic knowledge of the English language at the time she made the application. Moreover, Dr Stephenson expressed the view that:

    in the foreseeable future it is improbable that family circumstances and depressive symptoms will improve sufficient to enable Mrs A to demonstrate adequate knowledge of the English language…

32. A final matter requiring consideration is whether any prejudice to the Respondent arises from granting this application. Counsel for the Department argued that if this review application is kept on foot, the eligibility criteria will need to be applied to the date of the original application, and given the passage of time and the Applicant’s reliance on mental health issues this is likely to be a difficult exercise.

33. It is no doubt true that the matter has not become easier with the passage of time, and it would possibly be easier to make an assessment using fresh psychiatric reports. As against this, the task of assessment against the date of application is likely to be much assisted by the location of Dr Stephenson’s missing May 2016 letter. The Tribunal is unpersuaded that it should decline to grant the extension of time because of possible prejudice to the Department.

34. There is no doubt that the delay is substantial, on the outer limits of redemption. But taking into account some special features of this application, especially the errors by the Department relating to the drivers’ licence and the missing May 2016 report from Dr Stephenson, it is desirable for the application to proceed to a full hearing. In short, the Applicant has provided a reasonable explanation for the long delay, there is no real prejudice to the Respondent, and there is sufficient merit in the application. 

35. The Tribunal is satisfied that in all the circumstances it is reasonable to grant the application for an Extension of Time under s 29(7) of the AAT Act.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Professor P A Fairall, Senior Member

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Associate

Dated: 5 July 2019

Date(s) of hearing:	18 June 2019
Applicant:	In person
Solicitors for the Respondent:	T Hillyard, Sparke Helmore