Bozena Becek and Department of Immigration and Citizenship
[2012] AATA 237
•26 April 2012
[2012] AATA 237
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3416
Re
Bozena Becek
APPLICANT
And
Department of Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 26 April 2012 Place Adelaide The applicant’s application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.
.......................[Sgd}.................................................
Senior Member K Bean
CATCHWORDS
PRACTICE AND PROCEDURE - Application for extension of time - Delay of twenty months - Reasonable explanation provided - Some merit in substantive application - Open to applicant to make fresh application for citizenship - Fresh application has better prospects than original application - Preferable for applicant to have application assessed on basis of her current circumstances - Absence of utility in substantive application - Application for extension of time refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29(7)
Australian Citizenship Act 2007 (Cth), ss 21, 22(1), (1A), (1B), (9)
CASES
Brown v Commissioner of Taxation (1999) 42 ATR 118
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740
SECONDARY MATERIALS
Australian Citizenship Instructions
Pearce, D. Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007)
REASONS FOR DECISION
Senior Member K Bean
26 April 2012
This is an application for an extension of time to seek review of a decision dated 10 December 2009 made by an officer of the respondent. In that decision, the officer refused Mrs Becek’s application for Australian citizenship. The main reason for that decision was the decision-maker’s conclusion that Mrs Becek did not meet the residency requirements imposed by ss 21 and 22 of the Australian Citizenship Act 2007 (Citizenship Act).
On 24 August 2011, Mrs Becek applied to this Tribunal for an extension of time in which to seek review of the decision.
Section 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) requires applications for review to be lodged within 28 days of the decision of which review is sought. As Mrs Becek’s application has been made approximately 20 months after the decision under review was made, her application cannot proceed unless an extension of time is granted pursuant to s 29(7) of the AAT Act.
Therefore the only issue currently before me is whether an extension of time should be granted.
THE LEGAL FRAMEWORK
Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if "it is reasonable in all the circumstances to do so".
Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:
"18. … In Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:
'In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).
Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
19 The Court respectfully approves of McInnis FM's articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act."
The applicable principles were discussed in Budd and Phillips in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a "slavish" way, these principles are also relevant in the context of s 29.[1] Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights.[2]
[1] Brown v Commissioner of Taxation (1999) 42 ATR 118.
[2] Pearce, D. Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007), pp 56-62, [5.6]-[5-20].
Whilst the merits of the substantial application are clearly a relevant consideration, recent authorities have also suggested that caution should be exercised in reaching a view on the merits of an application in the context of an extension of time application and that a court or tribunal should be "slow to reject an application for an extension of time … for no reason other than that the appeal, if prosecuted, would be unlikely - even very unlikely - to succeed".[3]
[3] See Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12]-[13] and the authorities there referred to.
CONSIDERATION
I propose to address each of the most relevant criteria in turn.
Explanation for the delay
Mr Becek, who appeared on behalf of his wife at the hearing, pointed out that although the letter forwarding the reviewable decision to Mrs Becek had referred to the decision being reviewable by this Tribunal, it did not state that there was any time limit for this. He indicated accordingly that he and his wife had not appreciated that they were required to seek review of the decision within any particular timeframe. He explained that as he and his wife were residing in Brunei at the time and were intending to remain there for the time being, they did not regard the citizenship issue as urgent and for that reason did not immediately seek review of the decision refusing Mrs Becek’s application for citizenship.
Mr Swan, who appeared for the respondent, acknowledged that the letter advising Mrs Becek of the decision did not advise of the timeframe within which she was required to seek review of the decision and in these circumstances, I consider that Mrs Becek has provided an acceptable explanation for her delay in seeking review of the decision.
Prejudice to the respondent
Mr Swan did not submit that there would be any prejudice to the respondent if an extension of time were granted and accordingly in my view this consideration militates in favour of an extension of time being granted.
Consequences of refusal for the applicant
Whilst he did not rely on prejudice being occasioned to the respondent if the application was granted, Mr Swan submitted that it was relevant for me to consider what the consequences for Mrs Becek would be if her application for an extension of time were refused. In that regard, he pointed out that there was no barrier to her making a further application for citizenship, and contended in effect that that was the most practical way forward for her, particularly given that her claims to be granted citizenship appeared to have become stronger since her original application was lodged.
For reasons I will discuss further below, I consider there to be some force in these submissions and that this consideration accordingly militates against an extension of time being granted.
Other actions taken by the applicant
On the material before me, prior to lodging her application with this Tribunal, Mrs Becek had not taken any other action to contest the correctness of the decision under review. Accordingly, reference to this consideration militates against an extension of time being granted.
Length of the delay
As I have noted above, the reviewable decision was made on 10 December 2009 and in her application for an extension of time, Mrs Becek acknowledged receiving it on 17 December 2009. However, her application was not lodged until 24 August 2011, some 20 months after she received the reviewable decision. That is a relatively lengthy delay and therefore reference to this criterion militates against an extension of time being granted, although less so than it would have if Mrs Becek had been advised of the timeframe within which she was required to seek review of the reviewable decision.
Fairness
Similarly, given the length of the delay, considerations of fairness as between Mrs Becek and other applicants militate against an extension of time being granted, but less strongly than they would have if she had been advised of the applicable 28 day time limit.
The merits of the substantive application
As I have alluded to above, Mrs Becek’s substantive application is for Australian citizenship and the success of her application depends in particular upon the application of s 22 of the Citizenship Act, which defines the general residence requirement imposed by s 21. Section 22 relevantly provides as follows:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application;
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences were not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then for the purposes of paragraph (1)(c), the person is taken to have been in Australia as a permanent resident during each period of absence.
...
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
In relation to the exercise of the discretion contained in s 22(9), the Australian Citizenship Instructions (ACIs) also relevantly provide as follows:
Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
·the applicant was the spouse or de facto partner of a person who was an Australian citizen, and
·the applicant was a permanent resident and
·the applicant had a close and continuing association with Australia (see below).
If the applicant is the surviving spouse or de facto partner of an Australian citizen, they can only count time while their Australian citizen spouse or de facto partner was alive.
Policy is that this discretion would usually only be exercised if the applicant was overseas with the Australian citizen spouse or de facto partner.
Factors that may contribute to a close and continuing association with Australia include:
·Australian citizen children
·length of relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·return visits to Australia
·periods of residence in Australia
·intention to reside in Australia
·employment in Australia (for example, public or private sector)
·ownership of property in Australia
·evidence of income tax payment in Australia and
·current bank accounts in Australia.
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian (sic) for at least this period.
Where the applicant is the spouse, de facto partner, or surviving spouse or de facto partner of an Australian citizen and they are overseas at the time of the decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the legislative and policy criteria as outlined above. It may be applied even though the discretion may not be required for the purposes of meeting the residence requirement.
Mrs Becek’s application for citizenship was made on 22 October 2009 and therefore must be assessed as at that date. As to her compliance with the general residence requirement, Mrs Becek conceded at the hearing that she was only present in Australia for a period of 63 days in the four years prior to her application, having been present in Australia as a permanent resident for only 24 days in the 12 months prior to her application. Therefore it is clear that she does not satisfy the residence requirements laid down by the Citizenship Act in relation to her application. However as her husband is an Australian citizen, subsection 22(9) is potentially applicable to her and Mrs Becek argued that there were strong grounds upon which the discretion available in s 22(9) of the Citizenship Act could be exercised in her favour.
Having regard to the matters referred to in ACIs, Mrs Becek relied upon the fact that she has two daughters in Australia, both of whom are Australian citizens, and that she and her husband plan to live in Australia from the middle of this year. She said both daughters are currently employed in Australia. She also relied upon the fact that she and her husband have been a couple since October 2003 and were married in September 2004. In documentation filed with her application, Mrs Becek also drew attention to the fact that she has extended family in Australia, most notably her husband’s brother, Mr Christopher Becek, who is an Australian citizen and resides in Melbourne. She also relied upon the fact that she had visited Australia relatively frequently in March 2004, August 2005, December 2005, May to July 2007, September until October 2008, September 2009 and October 2009. She also referred to having had a registered business in Australia, although at the hearing she indicated that this business had not eventuated and was not currently operating.
Whilst acknowledging that Mrs Becek’s substantive application was not futile, Mr Swan submitted that aspects of her application were weak. He pointed out that the Tribunal was required to assess her application as at the time it was made, and submitted that in that regard some of her claims against the criteria relevant to the exercise of the s22(9) discretion were weaker when she made her application than they are now. He also directed attention to the fact that the ACIs require greater weight to be given to the factors mentioned in the ACIs where a person has been “lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident)”. He pointed out that Mrs Becek had not been present in Australia for at least 365 days in the four years prior to making her application.
As I have alluded to above, it is not possible or appropriate for me to attempt to exhaustively assess the merits of Mrs Becek’s substantive application in this context. However, having regard to the matters she has put forward, including her intention to reside in Australia from the middle of this year and the fact that she has two adult daughters in Australia, each of whom are Australian citizens, I consider that she had an arguable case on the merits for the discretion contained in s 22(9) of the Citizenship Act to be exercised in her favour. I acknowledge that her case is weaker than it would have been if she had been in Australia for 365 days out of the previous 4 years and it is probably also weaker than it would otherwise have been by virtue of the fact that it must be assessed as at the time that her application was lodged rather than at the time of the Tribunal’s consideration. Nevertheless, on the material before me, her case is far from hopeless and in my assessment has some prospects of success.
Overall assessment
As will be apparent from the observations I have made above, in my view most of the applicable criteria do not militate strongly against or in favour of Mrs Becek’s application for an extension of time being granted. I would have been much less sympathetic to her application if she had been advised of the applicable timeframe within which to seek review from this Tribunal. In those circumstances, I consider that it would have been necessary for her to establish a reasonably strong case on the merits in order to justify an extension of time being granted. As I have indicated above, however, I am satisfied that she was not aware of the applicable timeframe and in those circumstances, I believe it is appropriate for me to put less weight upon her delay in seeking review than otherwise would have been appropriate. I am also satisfied that she has an arguable case on the merits.
At that same time however, it is also relevant that in the event Mrs Becek was refused an extension of time, she is free to make a further application for Australian citizenship. Further, I accept Mr Swan’s submission that as her claims to have the discretion in s 22(9) exercised in her favour appear to have become stronger over time, any further such application would appear to have better prospects of success than her original application. Indeed, against that background it is difficult to see the utility in the Tribunal considering whether there were grounds for the discretion to be exercised in her favour in October 2009, before the primary decision maker has had an opportunity to consider whether there are sufficient grounds currently for the discretion to be exercised in her favour as at the date of any fresh application. Of course in the event that Mrs Becek was to make a further application for citizenship and the decision on that application was adverse, she could seek review of that further decision by this Tribunal.
In summary, I consider the applicable considerations to be finely balanced and I acknowledge that the fact Mrs Becek was not advised of the timeframe within which she must seek review, and that there is some merit in her application, each militate in favour of an extension of time being granted. However I must also have regard to the other considerations I have referred to above, including the length of the delay and the utility in Mrs Becek’s application proceeding. Ultimately, I have concluded on balance that, particularly in light of what I consider to be the relative lack of utility in her substantive application, Mrs Becek’s application for an extension of time should be refused. In all the circumstances, I consider the most appropriate course of action is for Mrs Becek to make a further application for citizenship which can be considered having regard to her current circumstances. Of course in the event that application is refused, it will be open to Mrs Becek to make a further application to the Tribunal.
DECISION
The applicant’s application for an extension of time pursuant to s 29(7) of the AAT Act is refused.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean.
......................[Sgd]..................................................
Administrative Assistant
Dated 26 April 2012
Date(s) of hearing 28 February 2012 Advocate for the Applicant Mr Kazimierz Becek Advocate for the Respondent Mr Nick Swan Solicitors for the Respondent Sparke Helmore, Canberra
3
13
0