Boga Momo and Minister for Immigration and Border Protection
[2013] AATA 840
[2013] AATA 840
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4981
Re
Boga Momo
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 27 November 2013 Place Brisbane The extension of time application is refused.
...........................[Sgd].............................................
Senior Member Bernard J McCabe
CATCHWORDS
PRACTICE AND PROCEDURE – Extension of time – Reasons for delay – Prospects of success – Lack of prospect of success in the substantive case – Application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth) ss 29, 30
Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) reg 4Constitution of the Independent State of Papua New Guinea (Papua New Guinea) s 65
CASES
Buchanan v Administrative Appeals Tribunal [2013] FCA 1099
Hunter Valley Developments Pty Ltd v Cohen (1984) 11 ALD 447
Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31
REASONS FOR DECISION
Senior Member Bernard J McCabe
27 November 2013
INTRODUCTION
Mr Boga Momo, the applicant, applied to become an Australian citizen but his application was refused. He delayed making an application to the Tribunal to review the decision. He has now applied to extend the time for making an application for review pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The applicant was represented at the hearing by Ms Anna Momo and Ms Marcella Dindillo, his mother and cousin, respectively.
The application for an extension of time should be refused. I explain my reasons below.
BACKGROUND
Mr Momo was born in 1973 in what was then the Australian territory of Papua.
He became an Australian citizen on the date of his birth because the territory was deemed to be part of Australia for citizenship purposes. After Papua New Guinea (“PNG”) became independent in 1975, most residents of PNG, including Mr Momo, became citizens of PNG and lost their Australian citizenship.
On 1 May 2013 Mr Momo applied to resume his Australian citizenship under s 29 of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). The Minister rejected that application on 26 June 2013. Mr Momo subsequently lodged an application with the Tribunal for a review of this decision and an application for extension of time on
1 October 2013, which is outside the prescribed 28 days for bringing an application:
s 29(2) of the AAT Act.
THE LAW
The Tribunal may grant an extension of time pursuant to s 29(7) of the AAT Act if the Tribunal is satisfied it is reasonable in all the circumstances to do so. The decision to allow an extension of time involves the exercise of discretion.
The AAT Act does not specify what matters are to be considered in deciding whether to exercise the discretion to grant an extension of time. In Hunter Valley Developments Pty Ltd v Cohen (1984) 11 ALD 447 (and, more recently, in Buchanan v Administrative Appeals Tribunal [2013] FCA 1099) the Federal Court identified a number of matters that were likely to be relevant to the ultimate question of whether it was appropriate to extend time. These include:
·the length of, and reason for, the delay;
·the prejudice to the applicant and the respondent; and
·the merits of the applicant’s case.
CONSIDERATION
The length of, and reason for, the delay
The applicant’s representatives submitted that although the letter outlining the respondent’s decision was dated 26 June 2013, the respondent did not receive the letter in PNG until 14 August 2013. A photocopy of a registered post envelope in evidence supports this contention (respondent’s EOT Documents p. 16). But there was a further delay: even if it is accepted the applicant did not receive the respondent’s letter until
14 August 2013, the application for review was still lodged some 20 days late.
The applicant’s representatives said the application could not be filed until Mr Momo or his representatives returned to Australia. I was told there were difficulties associated with lodging an application from PNG and finding the necessary money for the application fee.I accept there was a breakdown in communication between the applicant and respondent that contributed to the delay in filing an application for review. This breakdown was in part due to the locality of the applicant and difficulty he had in accessing postal services. The length of the delay is not excessive and the reasons given for Mr Momo’s delay in lodging his application are understandable.
The prejudice to the applicant and the respondent
Ms Graham, for the respondent, has conceded the respondent will not be prejudiced if this application were allowed. Ms Momo identified a number of reasons why a failed application would likely prejudice the applicant. Ms Momo pointed towards hardships Mr Momo faces in living in PNG and the strain family separation has on him with a number of his family members living in Australia.
The merits of the applicant’s case
Section 30 of the Citizenship Act provides that the Minister must not approve the resumption of Australian citizenship unless a person ceased being an Australian citizen in circumstances identified in s 29(2) and (3) of the Citizenship Act. Mr Momo did not cease being an Australian citizen due to any of the circumstances enunciated in either
s 29(2) or (3) of the Citizenship Act, namely the loss of citizenship by operation of the Citizenship Act or the repealed Australian Citizenship Act 1948 (Cth).
Rather Mr Momo ceased being an Australian citizen by operation of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) (“PNG Regs”), which provides:
4. A person who-
(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b) on Independence Day becomes a citizen of the Independent State of Papua
New Guinea by virtue of the provisions of the Constitution of the Independent
State of Papua New Guinea,
ceases on that day to be an Australian citizen.
Section 65 of the Constitution of the Independent State of Papua New Guinea (“PNG Constitution”) directs that:
(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.
…
(4) Subsections (1) and (2) do not apply to a person who –
(a) has a right (whether revocable or not) to permanent residence in Australia; or
(b) is a naturalized Australian citizen; or
(c) is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or
(d) is a citizen of a country other than Australia,
unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).
I also considered whether Mr Momo may have had a right to permanent residence in Australia in the terms of s 65(4) of the PNG Constitution through one or both of his parents. This however is not the case as a right to permanent residence did not flow from either of his parents in light of their entitlements to permanent residence for the reasons explained in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31.
There has also been no suggestion reg 4 of the PNG Regs and s 65 of the PNG Constitution failed to apply to Mr Momo, so that in effect his Australian citizenship ceased by their combined operation. Nor is there a suggestion that any of the other scenarios provided for in s 65(4) of the PNG Constitution applied to Mr Momo when he lost his Australian citizenship. As such Mr Momo’s substantive case would very likely fail.
CONCLUSION
I am satisfied it is not reasonable in all of the circumstances to grant Mr Momo an extension of time in this matter. The extension of time application is refused.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .......................[Sgd].................................................
Associate
Dated 27 November 2013
Date of hearing 1 November 2013 Advocates for the Applicant Ms Anna Momo and Ms Marcella Dindillo Solicitor for the Respondent Ms Amanda Graham, Clayton Utz
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