Binga and Minister for Home Affairs (Citizenship)

[2019] AATA 755

Binga and Minister for Home Affairs (Citizenship) [2019] AATA 755 (13 March 2019)

Division:GENERAL DIVISION

File Number(s):      2019/0351

Re:Simpe Binga

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member M O'Loughlin

Date:13 March 2019

Place:Adelaide

The application for extension of time is granted.

....................[Sgnd].....................................

Member M O'Loughlin

CATCHWORDS

EXTENSION OF TIME - extension of time application – length of delay – reason for delay – merits of substantive case - extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1975

CASES

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

REASONS FOR DECISION

M O'Loughlin

13 March 2019

1. The Applicant has applied for an extension of time within which to seek review of a decision by the Respondent to refuse his application for conferral of Australian citizenship.

2. The decision was made by a representative of the Respondent and communicated to the Applicant by letter dated 30 October 2018.  That letter attached a copy of the decision record and advised the Applicant of his right to seek review with the Administrative Appeals Tribunal.

3. It was made clear in that letter that the Applicant had 28 calendar days after the receipt of the letter to seek that review.  It was also stated that, because the letter had been sent by email, the 28 days would be counted from the end of the day on which it was transmitted, namely 30 October 2018.

4. The Applicant did not apply for a review of the decision until 21 January 2019, about 83 days after 30 October 2018 and 55 days outside the time limit.

5. His application for an extension of time was made on the 22 January 2019, the day after he was advised by the Tribunal (by email) that he was required to do so.

6. In the application, under the pro-forma request for “REASONS FOR THE APPLICATION” he stated:

   “For the reason that when they sent the E-mail about the decision I had no access my E-mail account, when I finally accessed my E-mail it was already too late.”

7. The Respondent opposed the making of an order extending time principally for the reasons that:

   (a)The delay is not insignificant;

   (b)The explanation for the delay is inadequate; and

   (c)The application lacks merit.

8. In submissions, Ms Stokes for the Respondent also submitted that proper weight should be accorded to the inclusion of a time limit in the Act, which time limit must be assumed to have a purpose.

9. The Tribunal elected to hear evidence from the Applicant.  He essentially said that he did not expect the notification of the decision to come by email and that he was waiting for a letter in the post.

10. He said that he did not use the account to which the decision had been directed and that it was not until he made a job application and was checking to see if there had been a response that he found the email from the Respondent annexing the decision.

11. He was not able to say exactly when that happened but said it was sometime in January 2019. On that version, he did apply within 28 days of becoming aware of the decision.

12. He also said that he would have checked the email account if he had known that he would be advised by email and that he didn’t remember providing his email address to the Respondent. He conceded that he must have done so.

13. He further provided access to the relevant email account during the hearing, using his mobile phone which he had with him in the Tribunal. That showed that he did indeed receive the email on 30 October 2018, but not when he had opened it.

14. The Applicant was briefly cross-examined by Ms Stokes. He agreed that he has had access to the internet via his mobile phone since 2017. He was also asked about other emails that he had received which might have prompted him to check the account, in particular his pay slips.  He said that he was not in the habit of checking them.

15. Having given evidence, the Applicant had little to add other than that he had been waiting for a letter in the post.

16. Ms Stokes noted that the extension of time sought, although not particularly lengthy, was not insignificant. 

17. She further submitted that there is no suggestion that the decision was not properly served. The Tribunal agrees that was demonstrated in evidence.

18. She said that the explanation proffered for the delay was inadequate. She also submitted that the Applicant could not sustain the suggestion that he did not have access to the internet at the time that the decision was sent.

19. In relation to the Applicant’s access to the internet, the Tribunal notes that, although the Applicant’s English seemed good, it was not clear whether in saying “I had no access my email account…” he meant that he had not accessed the account or that he had no access to his email account.

20. The evidence on this was not clear and was further confused by the Applicant referring to a brief period in gaol in 2016, which did not seem to be relevant at all. In any event, the thrust of his evidence was that he had not accessed his email account between the end of October 2018 and January 2019.

21. The final point that the Respondent relied on was the merits of the application. The Respondent submitted that the Applicant has demonstrated a pattern of behaviour that puts other road users at risk, and has been subjected to periods of obligation by the courts.

22. The Tribunal observes that the delegate of the Minister, in her decision of 30 October 2018, viewed herself as compelled by s 24(6)(f) of the Australian Citizenship Act 2007 to refuse the application because the Applicant was still subjected to a bond.

23. Without making a finding on the correctness of that decision, it is worth noting that bond did not expire until February 2019, a few weeks before the hearing of this application. 

24. The Respondent’s submission may have had much greater persuasive power if the bond was still in force at the time of the hearing.

25. As it is, the bond has expired and, although the disqualification of the Applicant’s licence has some time to run, it is not obvious at this stage that the application must fail for that reason.

26. The Respondent referred to an often cited authority in relation to extension of time in this jurisdiction, being Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] – [349]. The Tribunal has had regard to this decision and agrees that the issues of the extent of delay, the adequacy of the explanation for the delay, and the merits of the Applicant’s substantive case are all proper considerations in this application.

27. Having said that, s 29(7) of the Administrative Appeals Tribunal Act 1975 clearly provides discretion for the Tribunal to grant an extension of time of the type sought by the Applicant.

28. The Tribunal finds that although the extension of 55 days is not “insignificant”, it is not lengthy, and that this consideration should not outweigh other relevant findings.

29. The Tribunal finds that the explanation for the delay is quite limited.  It is not uncommon for Applicants to suggest that a document delivered by email simply did not arrive or was not attached. The Applicant in this case has not said either of those things.

30. While the Tribunal observes that there is nothing in the address details of the letter that made it clear that it was sent by email, this was not ultimately a matter of dispute. However, the Tribunal finds that, although for the purposes of the Act the Applicant received the decision on 30 October 2018, he was not actually aware of the decision until January 2019. This does not exclude the exercise of the Tribunal’s discretion to extend time.

31. Finally, the Tribunal is unable to properly review the merits of the application in this context. It cannot be said that the Applicant’s case is unarguable and the Tribunal is reluctant to find that it lacks substantive merit at this stage, particularly in the absence of evidence and submissions.

32. The Tribunal finds that its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 should be exercised and grants the application for an extension of time for the Applicant to bring his application for review to 21 January 2019.

    DECISION

33. The Tribunal grants the application for extension of time.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin

..................[Sgnd].............................

Associate

Dated: 13 March 2019

Date of hearing:

12 March 2019

Applicant:

Advocate for the Respondent:

In person

Claire Stokes, Australian Government Solicitor