Al-Zeebaree and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 1119
•4 May 2020
Al-Zeebaree and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1119 (4 May 2020)
Division:GENERAL DIVISION
File Number: 2020/1338
Re:Philip Yako Yohanna Al-Zeebaree
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:4 May 2020
Place:Sydney
The application for an extension of time is refused.
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Dr L Bygrave, Member
CATCHWORDS
EXTENSION OF TIME – citizenship – principles to be applied – applicant seeking an extension of time to make an application for review – whether application for extension of time is reasonable in all the circumstances – merits of substantial application – whether applicant meets general eligibility requirements – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) s 21
CASES
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
4 May 2020
On 10 March 2020, Mr Philip Yako Yohanna Al-Zeebaree lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 29 January 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse Mr Al-Zeebaree’s application for Australian citizenship by conferral because he did not successfully complete a citizenship test as required by subsection 21(2A) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) (the reviewable decision).
The Minister opposes the extension of time sought.
The application was heard by the Tribunal in Sydney on 23 April 2020. The Minister’s legal representative and Mr Al-Zeebaree, with the assistance of an interpreter of the Arabic language, participated in the hearing by teleconference.
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)“[c]onsiderations of fairness as 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] FCA 498 [15]; (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 Al-Zeebaree seeking a review of the reviewable decision is approximately one week after the 28-day limit.
In his application to the Tribunal, Mr Al-Zeebaree stated “I don’t agree with this decision I would like to review the case again and reconsider about the decision”.
Mr Al-Zeebaree told the Tribunal that when he received the reviewable decision, he was working and had limited time to seek legal advice and lodge his application with the Tribunal. He also said that his English was “not good”. I accept Mr Al-Zeebaree’s explanation, noting that his delay in making an application for review was relatively short.
While this principle weighs neither for nor against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the Minister and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.
I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mr Al-Zeebaree’s application. Given the delay is approximately one week, I am satisfied that there would be minimal prejudice to the Minister and the general public if the extension of time is granted. This factor weighs neither for nor against granting an extension of time.
MERITS OF SUBSTANTIVE APPLICATION
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Mr Al-Zeebaree can meet the general eligibility requirements set out in subsection 21(2) of the Citizenship Act.
Relevant legislation and consideration
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. The general eligibility requirements for Australian citizenship are set out in subsection 21(2) of the Citizenship Act.
The provisions of the Citizenship Act relevant to the substantive application are:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
…
Subsection 21(2A) of the Citizenship Act provides that these requirements are satisfied if a person has sat and successfully completed a citizenship test.
Records provided by the Department of Immigration and Border Protection (the Department) show that Mr Al-Zeebaree attended the Department and sat citizenship tests on 28 October 2019, 4 December 2019 and 24 January 2020. At the Tribunal hearing, Mr Al-Zeebaree confirmed his attendance on these dates. On each of these dates, Mr Al-Zeebaree attempted the citizenship tests and did not pass the citizenship test on any of these occasions.
As Mr Al-Zeebaree has not successfully completed the citizenship test, he is unable to meet the general eligibility requirements for citizenship in subsection 21(2) of the Citizenship Act.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mr Al-Zeebaree’s substantive application has no prospects of success. This weighs against an extension of time being granted.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 4 May 2020
Date(s) of hearing: 23 April 2020 Applicant: In person Solicitors for the Respondent: HWL Ebsworth Lawyers
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