Atahee and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 3278

Atahee and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3278 (16 October 2023)

Division:GENERAL DIVISION

File Number(s):      2023/6732

Re:Mohammad Atahee

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:16 October 2023

Place:Brisbane

The extension of time application is refused.

...............................[SGD].........................................

Member Lee Benjamin

Catchwords

PRACTICES AND PROCEDURES – Extension of time to lodge review application – whether prejudice to respondent exists – reasonable explanation for delay not found – alternative avenue of relief present – extension of time application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment (1984) 58 ALR 306
Johnson and Minister for Home Affairs [2018] AATA 3469
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

Watiwat v Secretary, Department of Social Services [2021] FCA 1327

REASONS FOR DECISION

Member Lee Benjamin

16 October 2023

WHAT IS THIS DECISION ABOUT?

1. Mr Atahee made an application for Australian citizenship by conferral on 23 April 2015. On 4 August 2023, the Minister’s delegate refused Mr Atahee’s application for citizenship[1] because Mr Atahee was the subject of pending proceedings for an offence against an Australian law. On 4 September 2023, Mr Atahee lodged an application with the Tribunal, seeking review of the Minister’s delegate’s decision, however he was out of time. Mr Atahee now seeks an extension of time for making his review application. The issue for the Tribunal is whether it is reasonable in all the circumstances to grant the extension. I find that it is not.

   WHAT HAPPENED?[2]

   [1] Under subsection 24(6) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

   [2] The Minister’s written submissions dated 11 October 2023 helpfully set out the uncontested background facts in this matter.

2. Mr Atahee was born in Afghanistan (in 1994) and first arrived in Australia in August 2010. He was granted a Protection (Class XA) (subclass 866) visa in April 2011. Mr Atahee is currently the holder of a Resident Return (Class BB) (subclass 155) visa granted in November 2018.

3. On 23 April 2015, Mr Atahee lodged an application for Australian citizenship by conferral.

4. On 26 May 2023, the Department of Immigration, Citizenship and Multicultural Affairs (Department) invited Mr Atahee to comment on or provide an explanation concerning adverse information regarding a pending criminal proceeding (invitation to comment). The invitation to comment enclosed a copy of Mr Atahee's National Police Check Results Report which recorded that Mr Atahee was charged with a single offence against an Australian law.

5. By email dated 31 July 2023, Mr Atahee’s representative confirmed to the Department that proceedings for an offence against an Australian law were pending in relation to Mr Atahee, and had been listed for trial review on 5 September 2023 and summary trial to commence on 9 October 2023.

6. On 4 August 2023, a delegate of the Minister (the delegate) refused Mr Atahee's application for citizenship. The delegate refused the application because a prohibition in subsection 24(6) of the Citizenship Act applied.

7. On 4 September 2023, Mr Atahee lodged an application for review of the delegate's decision with the Tribunal. Mr Atahee requires an extension of time to bring the application.

8. On 8 October 2023, Mr Atahee’s representative issued written submissions to the Tribunal in support of the extension of time application.

9. On 9 October 2023, Mr Atahee’s representative wrote to the Minister’s representative and advised that Mr Atahee’s charge for an offence against an Australian law had been referred to 'restorative justice mediation' and had not been finalised.

10. On 11 October 2023, the Minister’s representative issued written submissions to the Tribunal opposing the extension of time application.

    WHAT QUESTION NEEDS TO BE ANSWERED?

11. An application for review must be filed within 28 days from when an applicant is notified of the decision: subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

12. Subsection 29(7) of the AAT Act permits the Tribunal to extend the time for lodgement of an application for review if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. Accordingly, the question for the Tribunal is whether it is so reasonable.

    WHAT IS THE ANSWER TO THE QUESTION?

13. I am of the view, and I find, that it is not reasonable in all the circumstances to grant Mr Atahee an extension of time to file his application. Accordingly, I refuse Mr Atahee’s extension of time application.  

    WHY IS THIS THE ANSWER TO THE QUESTION?

14. The principles governing whether the Tribunal should grant an extension of time to lodge an application are succinctly outlined in Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment.[3] The Minister also points me to MZABP v Minister for Immigration and Border Protection;[4] and Johnson and Minister for Home Affairs.[5] Broadly, the principles can be summarised as follows:

    (a)the extent of, and explanation for, the delay;

    (b)any prejudice to the respondent or the general public arising from an extension of time;

    (c)whether the applicant rested on their review rights;

    (d)the merits of the substantive application for review; and

    (e)any alternative avenues of relief for the applicant should the extension of time not be granted.

    [3] (1984) 58 ALR 306.

    [4] (2015) 242 FCR 585.

    [5] [2018] AATA 3469.

    Extent of, and explanation for, the delay

15. As noted above, the prescribed period for making an application to the Tribunal for review of a decision is within 28 days after the applicant is given the decision.

16. Mr Atahee was issued the delegate's decision by email on 4 August 2023. The delegate's decision included a cover letter of the same date which stated:

    An application for review of this decision must be given to the AAT within 28 calendar days after the day in which you are taken to have received this latter [sic].

    As the letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

17. Mr Atahee filed his review application for the delegate's decision with the Tribunal on 4 September 2023, some 31 days after he received notice of the decision. In his review application to the Tribunal, Mr Atahee indicated that the delay in making his application was due to:

    …the Migration Agent was away on annual leave. The applicant was not aware of the stringent time limits and is extremely sorry for this. He had lodged this application in 2015 and has almost waited 8 years for this. The Crimtrack Report that the Citizenship Team has depended on has an error. The case is still ongoing.

18. Mr Atahee does not deny the fact that he applied for review a “little late”. He says that “he has gone through so much, that he does not want to leave any stone unturned.” Mr Atahee’s representative says that, “unfortunately, I was out of Australia due to family emergency and [Mr Atahee] has been going through a lot of stress due to which he missed the deadline.” Mr Atahee did not make any submissions elaborating on what stresses he is referring to. 

19. The Minister contends that, in circumstances where Mr Atahee's review rights and the relevant timeframes in respect thereof were set out in the cover letter notifying Mr Atahee of the delegate's decision, the explanation for the delay provided by Mr Atahee is inadequate. The Minister says that Mr Atahee’s representative sent a response to the email containing the delegate's decision on 4 August 2023, the day it was received. That email was lengthy and attached many documents in support of Mr Atahee’s application. The Minister submits that Mr Atahee’s explanation is unsatisfactory and weighs against the granting of an extension of time, notwithstanding the short period of delay. In my view, the Minister’s submission must be accepted. 

    Prejudice

20. The Minister submits that “no particular prejudice” would be occasioned by the grant of an extension of time, but contends that the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.[6]

    [6] Watiwat v Secretary, Department of Social Services [2021] FCA 1327 at [17].

    Merits of the proposed substantive application

21. Mr Atahee’s representative has told the Tribunal that the proceeding for an offence against an Australian law was referred to ‘restorative justice mediation’ on 9 October 2023 and has not been finalised. Mr Atahee’s representative also says that Mr Atahee is innocent of the charge and expects the charge to be withdrawn in due course.

22. The Minister says that the same proceedings are pending, and therefore subsection 24(6)(a) of the Citizenship Act applies to prohibit the Tribunal from approving the application for Australian citizenship. Mr Atahee acknowledges this point. The Minister further contends that the Tribunal has no power to postpone its consideration of the application merely on the ground that a bar in subsection 24(6) of the Citizenship Act will expire in the future.[7]

    [7] Lesi v Administrative Appeals Tribunal [2015] FCA 1186 at [23]-[24].

23. Accordingly, the Minister submits that the only decision that can be made on the current evidence is that the prohibition in subsection 24(6)(a) of the Citizenship Act continues to apply. It follows that the Minister says that the proposed substantive application for review lacks merit and has no reasonable prospects of success.

24. In my view, the Minster’s submission must be accepted. Ultimately, the Tribunal is not in a position to determine the substantive application in Mr Atahee’s favour while a proceeding for an offence against an Australian law is on foot.

    ALTERNATIVE AVENUES OF RELIEF

25. The Minister contends that Mr Atahee has an alternative avenue for relief, which is to reapply for Australian citizenship, if and when the proceedings for an offence against an Australian law are no longer pending in relation to him.

26. Mr Atahee submits that the Department took more than 3,000 days to make its decision on his citizenship application. Mr Atahee contends that the alternative avenue of relief proffered by the Minister may, based on Mr Atahee’s past experience, result in similar delay, making it a wholly unacceptable and unrealistic avenue for relief.

27. While I sympathise with Mr Atahee’s concerns about the length of time the Department took to reach a position on his citizenship application, it is the case that making a fresh citizenship application remains an alternative avenue of relief. Indeed, in circumstances where the Tribunal is currently prohibited from approving his application for Australian citizenship, it seems to be the most appropriate course for Mr Atahee.     

    DECISION

28. The extension of time application is refused.

    I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

    .............................[SGD]........................................

    Associate

    Dated:   16 October 2023

    Date of hearing:   13 October 2023

    Representative for the Applicant:      Nikki Oberroi, Slight Edge Migration

    Solicitor for the Respondent:             Lily Butterfield, Minter Ellison