Ali Soukarie and Minister for Immigration and Border Protection

[2015] AATA 442

[2015] AATA  442

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/1725
Re	Ali Soukarie
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	27 May 2015
Date of written reasons	24 June 2015
Place	Sydney

The application for an extension of time to lodge an application for review of the Respondent’s decision dated 4 December 2014 is refused

........................................................................

Professor R Deutsch, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - extension of time to lodge application for review - extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Australian Citizenship Act 2007 (Cth) ss  21(2)(e), 21(2)(h)

CASES

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

REASONS FOR DECISION

Professor R Deutsch, Deputy President

24 June 2015

INTRODUCTION

1. On 4 December 2014, a delegate of the Respondent made a decision refusing the Applicant’s application to become an Australian citizen by conferral.

2. On 8 April 2014, the Applicant lodged on application for an extension of time in which to lodge an application for review of the decision.

3. On 27 May 2015 I made an oral decision not to grant the extension following an interlocutory hearing.

4. On 28 May 2015, the Applicant asked for written reasons and I now provide those reasons.

   ISSUE

5. The issue before the Tribunal was whether an extension of time within which to lodge an application for review should be granted.

   RELEVANT LEGISLATION AND PRINCIPLES

6. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows:

   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

7. The leading judgement in relation to the factors that are to be taken into account in exercising the discretion conferred by s 29(7) is that of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 where his honour stated at page 348 that “it is the prima facie rule that proceedings commenced outside the (prescribed) period will not be entertained”.

8. His Honour then went on to set out six guiding principles that should be used by a decision maker in exercising the discretion to grant an extension of time.

9. The six principles outlined by Wilcox J are:

   ·that the application for extension of time must show an acceptable explanation for the delay and that it is 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 claims been finalised;

   ·any prejudice to any other party;

   ·the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;

   ·the merits of the substantive application; and

   ·consideration of fairness between the applicant and other persons in a similar position.

10. In my oral decision, I focused primarily on the lack of an acceptable explanation for the delay and the merits of the substantive application. Accordingly, I will focus on those matters now.

    ACCEPTABLE EXPLANATION

11. The application for extension of time was dated 8 April 2015 and is recorded as having been received by the Tribunal on 13 April 2015. At item 4 of the extension of time application form there is an accompanying box in which the printed words are “Outline the reasons for applying for an extension of time for lodging your application for review of the decision.” In handwriting the only comment made is as follows “I have no one speak English.”

12. Other items in the forms were filled out including the family name, the given name, the business phone number, the address, the name and address of the representative of the applicant, the date of decision, the decision reference and the date decision received together with the signature box and the date of the signature. The items appear to be correctly completed other than the decision reference which mistakenly includes a date and “date decision received” cannot be correct as it precedes the date of the decision..

13. No full explanation has been provided by the Applicant for the delay in applying for review of the decision. A delay of over three months is significant.

14. Furthermore, it appears to be the case that the citizenship application was conducted with the assistance of a registered migration agent and he appears to have benefited from the assistance of the representative for the purpose of his application to the Tribunal.

15. I also note that the applicant met the eligibility requirement in section 21(2)(e) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) regarding his knowledge of the English language.

16. We were assisted by an interpreter at the extension of time application hearing but the Applicant frequently sought to answer questions directly without the use of the interpreter and needed to be reminded on a number of occasions to speak through the interpreter.

17. Overall, I am far from convinced that the English language skills of the Applicant are as poor as is suggested in the completed form or that he had no way of securing any help from others more accomplished in the required English language skills.

18. This factor weighs against granting the extension of time application.

    MERITS OF THE SUBSTANTIVE APPLICATION

19. The Respondent’s delegate took the view that the applicant failed to satisfy s 21(2) (h) of the Citizenship Act as he was not of good character at the time of the decision.

20. In this regard it is relevant that on 18 December 2011 the Applicant was involved in an incident which led him to being convicted on 5 April 2012 of the offence of “Assault occasioning actual bodily harm.”

21. The Applicant was given a 12 month good behaviour bond and was ordered to pay certain court costs.

22. The good behaviour bond concluded on 4 April 2013.

23. The Applicant has had no other convictions either prior to or since the conviction on 5 April 2012.

24. Under the guidelines which are of relevance to the assessment of the Applicant’s character, the decision maker is required to have regard to the nature of any offences and in particular whether the offences are minor or serious.

25. In this case the offence is clearly serious.

26. There are  two  other factors regarding the offence which are relevant:

    ·The offence was viewed by the decision maker as being in the middle range of serious offences; and

    ·The decision maker found no evidence of either extenuating circumstances relating to the offence or rehabilitation.

27. Without prejudging what might emerge at a full hearing, I consider this factor weighs against granting the extension of time application because the prospects of success where the Applicant has been convicted of a serious offence involving violence only a little over three years ago are poor.  

    THE OTHER MATTERS

28. In relation to the other matters raised by Wilcox J, I note the following matters in the paragraphs below.

29. The refusal of the extension of time application will not cause an irreversible prejudice to the Applicant as he is not precluded from submitting a fresh application at a later date when more time will have elapsed since his serious conviction and will thus put him in a better position to secure a favourable outcome from the Respondent.

30. After the expiration of the time to lodge an application to the Tribunal for a review of his 4 December 2014 decision, the Respondent was entitled to assume the matter was finalised and for three months the applicant took no steps to indicate this may be otherwise. For example, he did not take steps to notify the Respondent of his intention to seek an extension of time which would have at least put the Respondent on notice.  

    DECISION

31. For the reasons set out above the application for an extension of time to lodge an application for review of the Respondent’s decision dated 4 December 2014 is refused.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

.............................[sgd]...........................................

Associate

Dated 24 June 2015

Date(s) of hearing	27 May 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore