Chittoory ApplicantAndMinister for Immigration and Citizenship

[2010] AATA 291

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0772

General Administrative DIVISION		)
Re		Kalyan Thrisul Chittoory

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date23 April 2010

PlaceSydney

Decision The application for an extension of time is refused.

................[sgd]..............................

Senior Member

CATCHWORDS

CITIZENSHIP –– Application for citizenship approved - applicant failed to take citizenship pledge within time - decision to cancel approval of citizenship – application for review made two years after reviewable decision – whether extension of time should be granted – no acceptable explanation for delay in seeking review – no acceptable explanation for failing to take pledge – no merit in substantive application – no reason to exercise discretion to extend time – application for extension refused

Administrative Tribunal Act 1975 – s.29
Australian Citizenship Act 2007 – s.25
Australian Citizenship Regulations 2007

Brown v Commissioner of Taxation (1999) 42 ATR 118; [1999] FCA 563

Hunter Valley Developments v Cohen (1984) 3 FCR 344
Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371; [1999] FCA 848

REASONS FOR DECISION

23 April 2010	Senior Member Jill Toohey
Background

1.      Kalyan Thrisul Chittoory applied for Australian citizenship on 13 September 2005.  His application was approved on 14 November 2005.

2.      Records of the Department for Immigration and Citizenship (the Department) show that, on 16 December 2005, a letter was sent to Mr Chittoory inviting him to attend a citizenship ceremony.  Further letters were sent on 3 April 2006, 25 May 2006 and 1 June 2006.  Mr Chittoory did not respond.  On 28 August 2008 a letter was sent to Mr Chittoory about his non-attendance.

3.      The Tribunal is advised that copies of the letters sent to Mr Chittoory have not been retained by the Department.  However, entries in its computerised records system show, and Mr Chittoory does not dispute, that letters were sent on the above dates.  Department records show that he was invited to attend citizenship ceremonies on 26 April 2006 and 26 August 2006.

4.      On 25 January 2008 the Minister for Immigration and Citizenship (the Minister) cancelled the approval of Mr Chittoory’s application for citizenship.  Mr Chittoory received notification of the cancellation on 31 January 2008.

5.      On 24 February 2010 Mr Chittoory lodged an application with the Tribunal for review of the Minister’s decision.  The Tribunal notified Mr Chittoory that his application was outside the 28 days required by s 29(2) of the Administrative Tribunal Act 1975. 

6.      On 4 March 2010 Mr Chittoory lodged an application for extension of time.  The Minister opposes the application.

7.      Mr Chittoory is living in India.  On 8 April 2010 the Tribunal attempted several times, without success, to convene a hearing by telephone.  Both parties have had an opportunity to provide further evidence and make submissions and neither objects to the application being determined on the documents before the Tribunal.

Relevant legislation

8. By s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal may extend the time for making an application if it is satisfied that it is reasonable in all the circumstances to do so.

9.      Section 25 (3) of the Australian Citizenship Act 2007 provides that the Minister may cancel an approval of a citizenship application if:

(a)the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

(b)the person's reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

10.     By subreg 7 (3) of the Australian Citizenship Regulations 2007 (the Regulations) a person has a prescribed reason for failing to make a pledge of commitment if:

(a)the person could not make a pledge, either in Australia or at an Australian mission overseas, because during that period, the person was overseas:

(i)for medical treatment that was not available in Australia; or

(ii)for a purpose unrelated to medical treatment, and was unexpectedly hospitalised; or

(iii)to care for a person who was critically ill; or

(iv)    for a funeral and other associated arrangements; and

(b)    either:

(i)the person still cannot make a pledge for the reason mentioned in paragraph (a); or

(ii)the person is now able to make a pledge, but the person has not yet had a reasonable period in which to do so.

11.     Subreg 7(5) provides that, for the purposes of (3), a person has a prescribed reason only if the person gives the Minister:

(a)a signed statement to support the claim that includes a description of any effort that the person made to make a pledge of commitment within the relevant period; and

(b)    written evidence that supports the statement.

Factors to be taken into account

12.     The Administrative Appeals Tribunal Act 1975 does not prescribe how the discretion to extend time for lodging an application is to be exercised. In addition to the general principles about how discretion is to be exercised, in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348 – 349, Wilcox J set out the factors guiding the discretion to extend time:

(a)whether there is an acceptable explanation for the delay;

(b)whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;

(c)any prejudice to the respondent;

(d)public considerations including the unsettling of others and established practices;

(e) the merits of the substantive application;

(f) fairness between the applicant and others in a like position; and

(g) whether it is fair and equitable in all the circumstances to extend time.

13.     These factors are not exhaustive and are a guide only.  No one factor is determinative and all may be relevant; the weight given to each is a matter for the Tribunal: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451; [1999] FCA 848. Time should be extended where the justice of the case requires it: Brown v Commissioner of Taxation (1999) 42 ATR 118; [1999] FCA 563.

Consideration

14.     In his application for an extension of time, Mr Chittoory states only that the reason for the delay in seeking review of the Minister’s decision was that he was “in and out of the country because of my business overseas”.  He does not explain why he did not, or could not have, applied for review in the two years since the reviewable decision.

15.     On the evidence he has presented, Mr Chittoory’s substantive application has no prospect of success.  In that application, he stated only that “one of my aunties expired and had to leave the country and was not present at the time of ceremony”.  He has submitted a copy of a death certificate for A Govindamal who died on 9 April 2007.  This date is approximately a year after the citizenship ceremonies in 2006 that Mr Chittoory was invited to attend.  It does not explain his inability to attend and does not constitute a prescribed reason for failing to take the commitment pledge.

16.     No adverse consequences will flow to Mr Chittoory if the extension of time is refused.  It is open to him to apply for citizenship again and there is nothing to suggest that any future application would be prejudiced. 

17.     The Minister concedes that no prejudice would flow to the Minister from granting an extension of time but says other factors outweigh an extension.  I agree.  There would need to be a compelling reason to grant an extension after a two-year delay but there could be circumstances in which it would be reasonable to do so and justice would require an extension.  Nothing in Mr Chittoory’s circumstances makes it such a case.

18.     Mr Chittoory’s application for extension of time is refused.

I certify that the 18 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ............[sgd].............................................................
           Diana Weston  Associate

Date of Hearing  22 April 2010

Date of Decision  23 April 2010

ApplicantSelf-represented

Representatives for the Respondent:             Alison Tibell, Anthony Orford and Rhys Bower, Clayton Utz