Barari and Minister for Immigration and Citizenship

[2010] AATA 897

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3803

GENERAL ADMINISTRATIVE DIVISION		)
Re		Indrani Barari

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Deputy President G L McDonald

Date8 November 2010

PlaceMelbourne

Decision The Tribunal decides to dismiss the application for an extension of time in which to lodge an application for review.  

…....(sgd G L McDonald).....

Deputy President

CATCHWORDS – Immigration and citizenship – extension of time - whether applicant had valid reason for being overseas when citizenship refused – s 24(5) Australian Citizenship Act 1997 - application dismissed

Australian Citizenship Act 2007 s 24(5)

REASONS FOR DECISION

15 November 2010 Deputy President G L McDonald

1.      The applicant is seeking an extension of time in which to lodge an application for the review of a decision refusing her a grant of Australian citizenship.

2.      The facts are undisputed.  The applicant is a citizen of the Republic of India.  She holds a permanent resident's visa for Australia, which was granted on 8 June 2006, and remains in effect until 8 June 2011.

3.      In July 2009 after successfully completing the citizenship test the applicant applied for a grant of Australian citizenship.  The grant is made by the Minister, under the provisions of the Australian Citizenship Act 2007 (the Act).  Subject to certain exceptions, not relevant to the circumstances of this case, it is a term of the Act that an applicant be present in Australia when a decision about that person's citizenship is made (s 24(5) of the Act).

4.      On 14 August 2009, the applicant returned to India in order to address some family issues.  She has remained in India but her uncle, who represented her by telephone from India, informed the Tribunal that she is expected to return to Australia in the near future.  The date of her return remains uncertain.

5.      At the time she left Australia, the application for a grant of citizenship had not been decided.  The applicant claims that she received no correspondence from the department concerning her citizenship application.  As a result, she made enquiries at the Australian High Commission in India and was subsequently informally told that her application for citizenship had been refused in January 2010.

6.      One of the main issues to determine in an extension of time application is whether the substantive application has any real chance of succeeding.  Here, on the evidence of the applicant, she was outside Australia when her citizenship application was refused.  The fact that she was outside Australia was the reason it was refused.  Section 24(5) of the Act provides limited circumstances in which an application may succeed if the applicant is overseas.  The circumstances of the applicant do not fall within the limited circumstances provided for in the section.  There is no relevant general discretion that permits the provisions of s 24(5) of the Act to be disregarded.  As a consequence, her substantive application has no chance of success.  The application for an extension of time should be dismissed.

7.      For the reasons stated, the application is dismissed.

I certify that the seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President McDonald

Signed:         .............(D De Andrade)................

Personal Assistant

Dates of Hearing  8 November 2010
Date of Oral Decision                8 November 2010
Date of Written Reasons          15 November 2010
For the Applicant  Mr Ramdin Sing, relative
Solicitor for the Respondent     Ms Melissa Gangemi
  Australian Government Solicitor