Asfaw and Minister for Immigration and Citizenship (Practice and procedure)
[2025] ARTA 1818
•17 September 2025
Asfaw and Minister for Immigration and Citizenship (Practice and procedure) [2025] ARTA 1818 (17 September 2025)
Decision and
Reasons for DecisionApplicant/s: Kelemwa Kebede Asfaw
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/9808
Tribunal:Senior Member K. Raif
Place:Sydney
Date:17 September 2025
Decision:The application for an extension of time is refused.
Statement made on 17 September 2025 at 5:13pm
Catchwords
PRACTICE AND PROCEDURE – Citizenship – Application for extension of time – whether the length of delay was justified – whether there was a reasonable explanation for the delay – whether the substantive application for review has merits – whether granting of extension of time would prejudice the Respondent or the general public – whether there are alternative avenues of relief for the Applicant should the extension of time not be granted – Refusal of Citizenship by conferral – extension of time request refused
Legislation
Administrative Review Tribunal Act 2004 (Cth)
Administrative Review Tribunal Rules 2025 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
WAAD v MIMA [2002] FCAFC 399
STATEMENT OF REASONS
Background
Ms Asfaw made an application for the Australian citizenship by conferral on 26 May 2023. On 24 April 2024 the delegate made the decision not to approve the applicant’s application for citizenship, finding that the Applicant did not satisfy s. 21(2)(d), (e) and (f) of the Citizenship Act 2007.
The Applicant was notified of the delegate’s decision by email at the email address for correspondence nominated by the Applicant in the application form. The notification correspondence included a cover letter and a decision record outlining the reasons for the delegate’s decision. Importantly, the cover letter dated 24 April 2024 contained the following information relating to the review rights:
“You are entitled to apply to the Administrative Appeals Tribunal (AAT) for a review of this decision…An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taking to have received this letter. As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted. “
The Applicant applied for review of the delegate’s decision on 28 November 2024 and has subsequently made a request to extend the time to make a valid application for review. The Respondent is opposed to that request.
The parties attended a hearing on 17 September 2025. For the reasons that follow, the Tribunal has decided that the application for an extension of time to file the review application should be dismissed.
Legal principles
Section 19 of the ART Act provides that an Applicant may apply to the Tribunal to extend the period during which the Applicant may apply to the Tribunal for review of the decision and the Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.
The relevant principles for consideration of what may be reasonable in the circumstances were set out in Hunter Valley Developments Pty Ltd v Cohen[1] (‘Hunter Valley Developments’). Those principles comprise:
(a)the length of the delay;
(b)the explanation for the delay;
(c)the merits of the substantive application for review;
(d)any prejudice to the Respondent or the general public arising from an extension of time; and
(e)any alternative avenues of relief for the Applicant should the extension of time not be granted.
[1] (1984) 3 FCR 344.
Should the extension of time be granted?
While acknowledging that the above list is non-exhaustive, the Tribunal will now turn to each of these considerations.
The length of the delay and the explanation for the delay
The Tribunal is satisfied that the notification of the decision, which included a statement of reasons for the decision under review, was sent to the applicant’s nominated email address.
Section 18 of the Administrative Review Tribunal Act 2024 (ART Act) provides that an application to the Tribunal for review of a decision must be made within the period prescribed by the Rules. Rule 5 of the Administrative Review Tribunal Rules (ART Rules) relevantly prescribes 28 days after notice is given as the period within which an application for review must be made. This means that the Applicant had until 22 May 2022 to apply for a review of the Citizenship decision. The application was made on 28 November 2024, exceeding the prescribed time limit by over six months. This is a significant period of time and an extensive delay.
In her application for the extension of time, dated 2 June 2025, the Applicant stated under Section 4 of the Form, that she was unaware of the 28 day limit and did not realise the deadline had passed until she received the letter from the Tribunal. The Applicant states that she did not intentionally delay the process and acted as soon as she became aware of the issue. In oral evidence, the Applicant told the Tribunal that she was constantly checking her emails but there was a misunderstanding about the time limit and she was also trying to reach her mother who was dying. The Applicant stated that may be her English was not good and if she saw the letter before, she would have applied for review earlier.
The Tribunal is mindful that the 28 day limit was expressly set out in the notification letter that accompanied the delegate’s decision. The Tribunal is satisfied that the Applicant was informed of the delegate’s decision, having made the application to the Tribunal for its review, and had thus received the notification which sets out the review rights and the time limits that apply. However, the Tribunal also accepts the applicant’s evidence that she would have lodged the application for review earlier if she was aware of the time limit and that she may have misunderstood the requirements. It is not apparent that the Applicant had deliberately delayed her application for review.
The Applicant refers to various hardships and she told the Tribunal that she needs to get the Australian citizenship in order to be able to travel. The Respondent, in the submission dated 11 August 2025, submits that this is not a satisfactory explanation in the circumstances where the Applicant has not provided any documents addressing her personal circumstances, her claims are generalised and broad and do not relate to why she had failed to exercise the review rights within the statutory time limit. The Respondent notes that it was the applicant’s responsibility to ascertain her review rights and applicable time limits.
The Tribunal is not satisfied that any hardship to which the Applicant referred, caused her to delay the lodgement of the application for review. However, the Tribunal accepts the applicant’s argument that she would have made the application earlier if she was aware of the time limit, given that there was simply no benefit for the Applicant in delaying her application. The Tribunal accepts that the Applicant may have misunderstood the requirements and that had caused her to delay making the application.
The Tribunal considers the delay to be significant but finds that the delay in lodgement was likely due to the applicant’s lack of understanding and was not deliberate. The Tribunal finds that this principle is in favour of the grant of the EOT.
The merits of the proposed substantive application
The Respondent submits, by reference to WAAD v MIMA[2] and other authorities that it is permissible to consider the prospects of success. Importantly in WAAD the Court stated at [9]:
“An extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal…”
[2] [2002] FCAFC 399.
The Respondent submits that the sole issue that falls for determination of the Tribunal is whether the Applicant satisfies the requirements of ss. 21(2)(d), (e) and (f), which refer to the Applicant undertaking the test and successfully completing the test. The Respondent states that the Applicant has been provided with a reasonable opportunity to complete the test failed the test six times in three different attempts (with the most recent score of 55%) and is not capable of satisfying the above criteria. The Respondent submits that the test requirement is not discretionary and there is no opportunity for exemption. The Respondent submits that the application would have no prospect of succeeding if the EOT was granted.
The Tribunal accepts the Respondent’s submission that the Applicanthas not demonstrated that she has successfully completed the citizenship test. The Applicanttold the Tribunal that she has been studying but there is no evidence that she has been successful in completing the test and there is no discretion to waive the test requirement. In the circumstances, the Tribunal accepts that the application has little merit. This consideration does not favour the grant of the EOT.
Prejudice to the Respondent
The Respondent submits that there is no specific prejudice to the Minister but there is a public interest in the finality of administrative decision making, particularly given the lengthy delay. The Respondent submits that it is in Respondent’s interest and public interest that action to challenge administrative decisions is taken within reasonable time.
The Tribunal accepts that this is so. This consideration does not support the grant of the EOT.
Any alternative avenues of relief for the Applicant should the extension of time not be granted
The Applicant is eligible to make another application for the Australian citizenship at any time, should the application for an extension of time be refused. While such an application would require the payment of the new fee, and involve a delay during its processing, the Applicant has not identified any significant hardship arising from these factors.
The Tribunal has weighed the above factors and has considered the applicant’s circumstances. The Tribunal has decided to give greatest weight to the fact that the application has little prospect of success and that the Applicant has alternative avenues of relief, should the EOT not be granted. The Tribunal also places some weight on the public interest in the finality of administrative decision making. These factors weigh against the grant of the EOT. The Tribunal determines that they outweigh other factors that may weigh in favour of the EOT such as the explanation for the delay.
Having regard to all the circumstances, the Tribunal is not satisfied that it is reasonable to extend the time for lodgement of the review application. Therefore the EOT Application should be refused.
Decision
The application for an extension of time to file the review application, pursuant to s. 19 of the ART Act is refused.
Date(s) of hearing: 17 September 2025 Advocate for the Applicant: Self-represented Solicitors for the Respondent: S Tucakovic, Sparke Helmore Lawyers
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