Bahnam and Minister for Home Affairs (Citizenship)

[2018] AATA 4615

Bahnam and Minister for Home Affairs (Citizenship) [2018] AATA 4615 (20 November 2018)

Division:GENERAL DIVISION

File Number:2018/5102           

Re:Maryna Bahnam  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 November 2018

Date of written reasons:        18 December 2018

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – whether application for extension of time is reasonable in all the circumstances – whether the applicant rested on her rights – merits of substantive matter – refusal to approve Australian citizenship under Australian Citizenship Act 1975 (Cth) – preferable alternative available – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

18 December 2018

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 20 November 2018. The following paragraphs are the reasons for my decision.

   INTRODUCTION

2. On 21 September 2018, Miss Maryna Bahnam lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made on 18 May 2018 by a delegate of the Minister for Home Affairs (the Minister) to refuse Miss Bahnam’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act) (the reviewable decision).

3. The Minister opposes the extension of time sought.

4. The application was heard by the Tribunal in Sydney on 20 November 2018. Miss Bahnam’s mother, Mrs Amel Hanna, attended the hearing and provided submissions on behalf of her daughter. Mrs Hanna was assisted by an interpreter of the Arabic language.

5. I note that Miss Bahnam’s application was heard together with the application made by Mrs Hanna (2018/5105) and I have provided separate decisions for each of these applications.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

6. 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.

7. 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].

8. 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)considerations of “fairness as between the applicant and other persons” in a similar position.

9. 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) 45 FCR 441, 444.

10. 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

11. The length of delay in Miss Bahnam seeking a review of the reviewable decision is more than three months after the 28 day time limit.

12. In her application to the Tribunal for an extension of time, Miss Bahnam stated:

    Due to my limited English speaking and reading capacity, I was unaware that I had 28 days to lodge the application. Further, I was not advised that I had a limited time frame to lodge the application.

13. I note that these reasons are identical to the reasons provided by Mrs Hanna. Mrs Hanna told the Tribunal that she was assisted by a legal secretary to make the application to the Tribunal for herself and Miss Bahnam. She accepted that she received the reviewable decision on 18 May 2018 and gave the decision to Miss Bahnam to read but said it took her some time to make an appointment to see a lawyer and seek assistance to file her application with the Tribunal. Mrs Hanna also said she was “in pain” and “forgetful”, and this delayed her showing the decision to Miss Bahnam and seeing a lawyer.

14. I note the reviewable decision was accompanied by a letter from the Minister’s delegate, also dated 18 May 2018, which set out Miss Bahnam’s review rights to the Tribunal within 28 days of receiving the reviewable decision. I am therefore satisfied that Miss Bahnam was notified about her review rights.

15. I find the explanation for the three month delay indicates that Miss Bahnam “rested on her rights” and this weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

16. 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.

17. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Miss Bahnam’s application. Given the delay of more than three months, I am satisfied that there would be significant prejudice to the Minister and the general public if the extension of time is granted. This factor weighs against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

18. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. Miss Bahnam was included in Mrs Hanna’s application to become an Australian citizen under subsection 21(1) of the Act.

    Relevant legislation and consideration

19. Section 21(5) of the Act states:

    Person aged under 18

    (5)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a)  is aged under 18 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.

20. The Minister’s delegate considered Miss Bahnam’s application and was satisfied she met the requirements in subsection 21(5) of the Act. However, the delegate decided to use their discretion and refused to approve Miss Bahnam becoming an Australian citizen; they considered the “best interests of the child” and found their decision to refuse to approve Miss Bahnam becoming an Australian citizen would not change her immigration status in Australia, deny Miss Bahnam protection and rights provided by Australian law whilst she is present in Australia, or separate Miss Bahnam from her mother, Mrs Hanna.

21. Miss Bahnam did not attend the Tribunal hearing and has provided no evidence or submissions to support the merits of her substantive application.

22. The Minister’s representative provided brief submissions to the Tribunal that, as Miss Bahnam is now 17 years old, she is eligible to make a further application for Australian citizenship in her own right. If Miss Bahnam makes a new application, this application would then be assessed against a different section of the Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016, to the one considered by the Minister’s delegate; this would require her to attend an interview to demonstrate that she understands the nature of her application, has an adequate knowledge of the responsibilities and privileges of Australian citizenship, and possesses a basic knowledge of the English language.

23. In considering Miss Bahnam’s circumstances and the limited evidence before the Tribunal, I find that there is a preferable alternative available to Miss Bahnam and this weighs against an extension of time being granted.

    CONCLUSION

24. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

    The application for an extension of time is refused.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 18 December 2018

Date(s) of hearing:	20 November 2018
Applicant:	By phone
Solicitors for the Respondent:	Mr Max Gao,  Australian Government Solicitor