Almadhi and Minister for Home Affairs (Citizenship)

Almadhi and Minister for Home Affairs (Citizenship) [2019] AATA 633 (13 March 2019)
Division:GENERAL DIVISION
File Number: 2019/0289
Re:Mr Ali Almadhi
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:13 March 2019
Date of Written Reasons: 4 April 2019
Place:Melbourne

For the reasons provided orally during the hearing, the Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for the decision under review.
.......[sgd].........................................................
Ms Anna Burke AO, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time – delay of 3 years in lodging application – whether reasonable excuse for delay – no reasonable excuse for extensive delay – where prejudice would be incurred by allowing extension of time - where prospects of success do not weigh in favour of applicant – not reasonable in all the circumstances to allow extension of time – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION

Mr Almadhi (the Applicant) is seeking an extension of time to lodge an appeal against the decision of the delegate of the Minister for Immigration and Border Protection, dated 6 March 2016, to refuse his application for Australian citizenship by conferral under s 24(6)(a) of the Australian Citizenship Act (the Act).
On 16 January 2019 Mr Almadhi applied to the AAT for an extension of time to appeal the delegates decision stating:
I am a mental ill person, I was admitted to mercy hospital werribee, I had a court case that I was accused wrongly in fight when I was a victim of a robury, my court case was not finalised at that time as it tooks around 2 years to be finalised and resolved as I had a community correction order which was satisfactory completed and I was not able to review my application till my cause has been finalised and resolved, as I will attach my outcome of the case with this application, I had a lower and she said you are eligible and you need to explain to the department as all what happened because you got robbed and your case has been finalised as I was not able to review it during my medical illness and my court issues [sic]
my lower told me that I can review it after I have my court finalized and my community correction order finished and I have to explain to the department of immigration that the court issue I had is because I was robbed, I was a victim of a robbery my room got robbed and I got involved in a fight with the robbers that is why I had to court matter and it has been satisfactory completed and finished and I got 12 months community correction order which was satisfactory completed [sic]
The application was heard by telephone on 13 March 2019. Mr Almadhi was self-represented and Mr William Staples, Clayton Utz, appeared for the respondent. Mr Almadhi agreed to the hearing proceeding without the aid of an interpreter.
The Tribunal provided an oral decision at the hearing, dismissing the application as there was no reasonable explanation for the delay, there were no reasonable prospects of success and it was not reasonable in all the circumstances to grant the extension. Mr Almadhi subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975, (the AAT Act). These are those reasons.
THE ISSUES IN CONTENTION
The issue in contention is whether the Tribunal is satisfied that it is reasonable, in all the circumstances, to extend the time for Mr Almadhi to make an application under s 29 (7) of the AAT Act .
BACKGROUND
Mr Almadhi is a 27 year old Bahraini National who first arrived in Australia on a visitor subclass 676 Visa on 30 September 2009, and was granted a permanent protection Visa subclass 866 on 7 September 2014. Mr Almadhi advised the Tribunal that whilst in Australia he had been predominantly studying. He indicated he had been in receipt of a disability support pension, which he claimed had been cancelled as he had to leave Australia for medical reasons.
Mr Almadhi advised the Tribunal that he had suffered from significant mental health issues and had been admitted to the Mercy Hospital in Werribee for treatment.
On 18 November 2015 Mr Almadhi applied for Australian citizenship by conferral.
On 8 March 2016 the delegate of the Minister refused Mr Almadhi’s application for Australian citizenship by conferral, as the delegate was prohibited from approving the application under section 24(6)(a) of the Act because Mr Almadhi had outstanding proceedings for offences against an Australian law at the time of his application.
Mr Almadhi advised the Tribunal that he had subsequently departed Australia; as his Visa was due to expire and he did not wish to be in breach of any Visa requirements. He has returned to Bahrain and is awaiting the outcome of his application for a resident return visa.
Mr Almadhi provided the Tribunal with an Order Completion Record from the Department of Justice dated 9 October 2018, which indicated he had been officially discharged from his community corrections order (CCO) as he had satisfactory completed his 12 months CCO between 24 August 2016 and 23 August 2017.
Relevant Legislation and Issues
Sections 29(7) and 27(10) of the AAT Act provide that:
(7) 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 (emphasis added)
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
The AAT Act provides the Tribunal with a broad discretionary power to grant an extension of time, if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The AAT Act does not provide guidance on what is reasonable. However, the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Limited v Cohen (1984) 58 ALR 305 (Hunter Valley) at [17]-[18]:
Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(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
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24(6) of the Act provides the Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
…..
EVIDENCE
Mr Almadhi provided oral evidence to the hearing indicating he had received the CCO as a result of pleading guilty to an altercation which occurred when he had been the victim of a robbery in his bedroom, in a shared house, whilst living in Melbourne. He insisted that he was the victim in this matter, becoming involved in a fight with the robbers who were in his room. The police charged him nevertheless so on advice from his lawyer he had pled guilty and received a CCO for 12 months.
Mr Almadhi explained to the Tribunal that, at the time, he asked the lawyer involved in the criminal proceedings about the implications for his migration status and was advised he should consult with a migration lawyer. He subsequently spoke with a migration lawyer who advised him that his appeal would be rejected because his court proceedings hadn’t been finalised. The lawyer advised he needed to wait and to apply again one year after finishing his CCO. He had followed his lawyer’s advice and put in the appeal a year after his CCO had expired, but in the meantime his substantive Visa had expired and he had left Australia.
The respondent, on behalf of the Minister, indicated that Mr Almadhi’s delay in filing his application for appeal was excessive by some three years, for which he had not provided a reasonable explanation. The respondent argued Mr Almadhi had not explained why he had not sought a review earlier, given he indicated that he received the decision on 8 March 2016 and was aware of his appeal rights.
The respondent referred the Tribunal and Mr Almadhi to the decision of Hunter Valley, indicating this provided guidelines for the Tribunal. Specifically, that Mr Almadhi must provide an acceptable explanation of the delay, that must be fair and equitable in the circumstances to grant the extension; and that consideration must be given to the merits and likelihood of success of the proposed appeal.
The respondent indicated it would appear that Mr Almadhi was aware of his review rights, but had simply chosen not to exercise them until he considered he was best placed to address the statutory prohibition. The respondent contended that Mr Almadhi should not be permitted to delay for multiple years, until he considers the merits of his application may have improved, before filing applications for extensions of time. The respondent argued that if the Tribunal permitted an extension of this length, especially when a new application for citizenship can be made at any time, would effectively undermine the finality of the administrative decision making process.
The respondent argued there were no prospects of success in the matter as, at the time of his citizenship application, the delegate was prohibited from considering Mr Almadhi’s application as he had outstanding court matters. Furthermore, given that Mr Almadhi’s circumstances have substantially changed since making his citizen’s application, the merits of his proposed appeal were negligible as he was no longer a permanent resident of Australia and would not satisfy the requirements of the Act. Additionally, the delegate will now have to consider Mr Almadhi’s character in light of his conviction and subsequent CCO.
The respondent submitted that it would be futile for Mr Almadhi to be granted an extension of time, as it would be an inappropriate use of the time and resources of the Tribunal and would put the respondent to the expense of proceeding to a hearing where there were no prospects of Mr Almadhi’s success.
CONSIDERATION
The Tribunal considers Mr Almadhi’s application for an extension of time in light of the decision of Justice Wilcox in Hunter Valley, where he stated special circumstances must be shown for a grant of an extension of time; and on the principles further explored in Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886 where Von Doussa J stated at [6]:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.
Whilst the Tribunal finds that Mr Almadhi may have been provided with misleading legal advice, given the timing of his citizen application, or that he had been confused by the legal advice provided by the migration lawyer he consulted in Melbourne, this did not provide a reasonable explanation for his lengthy delay. Indeed, the advice provided by the lawyer that Mr Almadhi’s appeal would have failed at the time due to outstanding proceedings against him, did appear to be accurate. However, this explanation did not address why Mr Almadhi had not lodged an appeal within the 28 days as clearly stated on the delegate’s decision, but instead chose to wait some three years.
The Tribunal finds that no acceptable explanation for the delay was proffered. The Tribunal is not satisfied with Mr Almadhi’s explanation for his lengthy delay in submitting his application to appeal the original delegate’s decision. The Tribunal also does not find it plausible that Mr Almadhi had been prevented from submitting an appeal application for over three years.
The Tribunal finds Mr Almadhi’s application had limited prospects of success, as the delegate in 2016 was prohibited from approving his application for citizenship by conferral because Mr Almadhi had outstanding proceedings against him at the time.
Subsequently, Mr Almadhi was found guilty of a crime resulting in a CCO of 12 months. This would have brought his character into question and it could be argued that sufficient time had not lapsed, since the completion of the CCO, for a delegate to determine Mr Almadhi was now of good character.
Further, Mr Almadhi’s circumstances have now substantially changed and he is not currently a permanent resident of Australia. Therefore, he would not satisfy the eligibility requirements of the citizenship by conferral application. The Tribunal finds it was not fair and equitable in all the circumstances to extend time as consideration of the merits indicated no likely prospect of success.
The Tribunal does not find that it would be reasonable, in all the circumstances, to allow an extension of time in accordance with the AAT Act as Mr Almadhi has lodged his application almost 3 years after the reviewable decision was made; had no valid reason for the delay; had rested on his rights awaiting time when his application may have greater prospects of success and had no likelihood of success.
DECISION
The Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of a decision of the delegate of the Minister for Immigration and Border Protection dated 6 March 2016.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke AO, Member

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Associate
Dated 4 April 2019

Dates of interlocutory hearing 13 March 2019

Advocate for Applicant Self-represented

Advocate for the Respondent

Solicitors for the Respondent

Mr William Staples

Clayton Utz

[2019] AATA 633

13 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Remedies