Bonimpa and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 1755

Bonimpa and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1755 (21 June 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2100
Re:Alain Bonimpa
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:21 June 2023
Place:Canberra

Extension of time granted to 27 March 2023.
………………….[SGD]……………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time in which to make an application for review – factors relevant to exercise of discretion – no notice of prescribed period – length of delay – explanation for delay – prejudice – merit – alternative remedy –exercise of discretion reasonable in the circumstances – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975, s 25, 27A, 29
Australian Citizenship Act 2007, s 21, 22, 24, 47, 52
Cases
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 181 CLR 541
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Mr S. Webb, Member
21 June 2023

Alain Bonimpa lodged an application for review of a decision of the Minister’s delegate refusing his application for conferral of Australian citizenship. His application was lodged 30 weeks after the delegate’s decision, and it was accompanied by an application for an extension of time.
The Secretary opposes the grant of an extension of time.
It is this matter, alone, which is the subject of this decision.
Short facts
Mr Bonimpa is recorded to have been born in the Democratic Republic of Congo in 1994.
On 8 May 2014, he was granted an Orphan Relative (Subclass 117) visa.
He first arrived in Australia on 29 May 2014.
On 26 May 2020, Mr Bonimpa applied for conferral of Australian citizenship under s 21 of the Australian Citizenship Act 2007 (Citizenship Act).
On 30 May 2022, Mr Bonimpa was sent an invitation to comment on adverse information in relation to alleged discrepancies in personal information he provided in his original visa application and in his citizenship application.
On 14 July 2022, Mr Bonimpa provided a response to the invitation.
On 29 July 2022, Mr Bonimpa was sent notice of a decision refusing his citizenship application under s 24 of the Citizenship Act.
On 27 March 2023, pursuant to s 52(1) of the Citzenship Act and s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act), Mr Bonimpa lodged an application for review of this decision by the Tribunal.
Legislation
The period in which an application for review by the Tribunal may be lodged is prescribed, subject to other enactment, in s 29(2) of the AAT Act:
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
(b) if the decision does not set out those findings and reasons:
(i) if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is so given;
(ii) if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection—the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or
(iii) in any other case—the day on which a document setting out the terms of the decision is given to the applicant.
As can be seen, the 28-day prescribed period in which an application for review of a decision may be lodged commences after a document or statement setting out the decision is given to the person. Notice of the right of a person affected by a reviewable decision to have the decision reviewed by the Tribunal must be given: s 27A, AAT Act. Failure to give a person such notice does not invalidate the reviewable decision.
Discretion to extend time
Mr Bonimpa’s application for an extension of time to lodge his substantive application for review is to be decided under s 29(7) of the AAT Act. It is necessary to determine if it is reasonable in all the circumstances to exercise the discretion to extent time in order to enable his substantive application to proceed.
Albeit not exhaustive, the applicable principles are well established. [1] These include:
(a)An extension of time will not be granted unless the Tribunal is positively satisfied there is a good reason to do so. The prescribed period cannot be ignored. In Brisbane South Regional Health Authority v Taylor[2] McHugh J observed “A limitation provision is the general rule; an extension provision is the exception to it” and “when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension”.
(b)The prospective applicant should provide an acceptable explanation for the delay and satisfy the Tribunal it is fair and equitable in the circumstances to extend time.
(c)The prospective applicant’s knowledge of the prescribed period for lodgement of an application for review, and the length of the delay after that period has elapsed are relevant considerations. It is also relevant to consider if the prospective applicant has rested on their rights or the respondent is entitled to treat the case as finalised. The public interest in the timely review of administrative decisions must be weighed against any public interest in the delivery of fair and just decisions.
(d)Any prejudice to the respondent is likely to weigh against the grant of an extension, although the absence of prejudice, without more, does not justify the grant of an extension of time. Any unfairness to another person in a like position is also relevant.
(e)A high-level consideration of the reasonable prospects of the substantive application should it be allowed to proceed. An application which lacks any reasonable prospect of success may not be allowed to proceed.
(f)The availability to the prospective applicant of alternative remedies may also be a relevant consideration.
[1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350; Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18]-[19].
[2] [1996] HCA 25; (1996) 181 CLR 541.
An extension of time beyond the prescribed 28-day period prescribed in s 29(2) of the AAT Act will not be granted unless the Tribunal is positively satisfied it is reasonable and there is a good reason to do so.
Mr Bonimpa asserts he was not aware of any time limit on applying for review of the decision refusing his application for conferral of Australian citizenship.
In his submission, Mr Bonimpa maintains he did all he could to prepare his application for review, having no experience of such processes and requirements. He asserts he undertook extensive efforts to compile information for the purposes of applying for review, but his efforts were delayed by language and health issues, as well as by delays obtaining advice from friends and associates, and relevant information from sources in Africa. It was necessary, he contends, to seek assistance from his sister (Ansila Bonimpa) and then from someone who understood the processes involved (Michael Rowan) with the assistance of an informal translator (Yvette Nyanguile). The time required for this assistance was delayed as it was necessary for Mr Bonimpa to travel from Brisbane to consult with Mr Rowan and Ms Nyanguile in Melbourne, and then Mr Rowan fell ill.
The Minister asserts nothing prevented Mr Bonimpa from lodging his application for review within the prescribed 28-day period and his explanation for not doing so is inadequate. In the Minister’s submission, the length of the delay of approximately 30 weeks weighs heavily against exercise of the discretion to extend time. As Mr Bonimpa did not inform the Minister’s Department he intended to contest the decision and he did not contact the Tribunal for information or assistance, the Minister contends Mr Bonimpa rested on his rights until a more convenient time arose for him to apply for review.
The grant of additional time in such circumstances, the Minister argues, stands against the desirability of promoting certainty in administrative decision-making and it would be contrary to established practices. In the Minister’s submission, it would be unfair to others in similar circumstances who were denied additional time or who grappled with difficult circumstances and managed to meet the prescribed time limit. The Minister considers the grant of additional time to Mr Bonimpa would not be consistent with the objectives of the Tribunal or the interests of the Minister and the public in the adherence to prescribed time limits for review, such that administrative decision-making processes have a predictable and orderly conclusion.
Notice, explanation and delay
Mr Bonimpa’s application is 7 months out of time. He was given the decision refusing his application for conferral of Australian citizenship on 29 July 2022. The 28-day prescribed time limit for lodging an application for review of this decision by the Tribunal expired on 27 August 2022.
I am satisfied Mr Bonimpa was not given notice of the prescribed time in which he was entitled to lodge an application for review of the 29 July 2022 decision refusing his application for conferral of Australian citizenship.
Absent knowledge of the prescribed time limit, I accept Mr Bonimpa proceeded to prepare an application for review on the mistaken belief he would be able to lodge such an application once he had obtained and compiled additional supporting information. I also accept he experienced mental health issues which contributed to the delay in lodging his application for review.
Mr Bonimpa is not legally represented. He acknowledged he was not familiar with the process or the requirements of applying for review of the 29 July 2022 decision by the Tribunal. His understanding aligns with a common misconception that additional supporting information is required when applying for review of a decision by the Tribunal.
I accept he encountered delays obtaining information he considered necessary to support his application for the reasons he explained.
The failure to provide Mr Bonimpa with information about the period in which he was entitled to apply for review by the Tribunal weighs very heavily in favour of exercising the discretion to extend time.
Failure to act
There is no evidence Mr Bonimpa alerted the Minister’s Department of an intention to apply for review of the 29 July 2022 decision or that he contacted the Tribunal prior to 27 March 2023.
The Minister’s assertion the 29 July 2022 decision could properly be taken to be final once the 28-day prescribed period for lodging an application for review elapsed would be persuasive if notice of the prescribed period had been given to Mr Bonimpa. Absent that, it was not safe for the Minister to assume Mr Bonimpa was resting on his rights. Of course, any doubt could have been removed had Mr Bonimpa informed the Minister’s Department he cavilled with the decision, but there is no requirement he should do so: his avenue for review is by application to the Tribunal, not to the Minister.
This consideration does not weigh for or against exercise of the discretion.
Prejudice
No prejudice is asserted by the Minister.
Nevertheless, the Minister asserts prejudice to good Departmental administration occasioned by leaving decisions lying in a state of uncertainty. The submission proceeds on the basis good administration requires finality in decision-making once avenues for review have expired or been exhausted.
The difficulty with the submission is inherent in its terms. The uncertainty complained of is a likely consequence of the Minister’s failure to give Mr Bonimpa notice of the prescribed period in which he was entitled to apply for review by the Tribunal. On grounds of procedural fairness and relative justice, this consideration weighs for rather than against the exercise of discretion.
The proposition Mr Bonimpa is at liberty to make a new application for conferral of Australian citizenship does not advance the matter. For Mr Bonimpa to adopt this course of action, he would incur an additional application fee. This amounts to prejudice to him in the circumstances of his present application.
These considerations weigh for the grant of an extension of time.
Relative merits
On consideration of the materials presently available, at a high level, I am not persuaded Mr Bonimpa’s application lacks any reasonable prospect of success should it be allowed to proceed.
There are controversies in respect of Mr Bonimpa’s character and his identity. Those are matters for evidence which will be tested in the usual manner should the application be allowed to proceed. While Mr Bonimpa’s case may not be clear cut or especially strong, I am not satisfied it is hopeless.
This consideration does not weigh for or against exercise of the discretion.
Alternative relief
As I have said, Mr Bonimpa is at liberty to make a new application for conferral of Australian citizenship should his present application not proceed. Should he do so, he will be required to pay a new application fee. Thus, while there is an alternative avenue for relief open to him should this application not proceed, it is one with attendant cost to Mr Bonimpa.
This consideration weighs marginally for exercise of the discretion.
Conclusion
On balance, having considered all relevant factors, I am satisfied it is reasonable and appropriate to exercise the discretion to grant Mr Bonimpa’s application for an extension of time in which to lodge his application for review of the 29 July 2022 decision.
Decision
Extension of time granted to 27 March 2023.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

...............................[SGD]........................................
Associate
Dated: 21 June 2023

Date(s) of hearing:

Solicitor for the Applicant:

Solicitor for the Respondent:

25 May 2023

Self-represented

Mr O. Morris, Clayton Utz

Date final submissions received: 8 May 2023