Darvishi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 5295

Darvishi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 5295 (12 July 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3656

Re:Masoumeh Darvishi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R. West

Date:12 July 2021

Date of written reasons:        12 July 2021

Place:Melbourne

The Tribunal refuses the application for an extension of time under s. 29(7) of the Administrative Appeals Act 1975 (Cth).

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Member R. West

CATCHWORDS

APPLICATION FOR CITIZENSHIP – appeal lodged out of time – application for extension of time under s.29(7) of the AAT Act – no reasonable prospect of success – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Hunter Valley Developments Pty Ltd Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Khoshaba and Minister for Immigration and Border Protection [2018] AATA 1829

Saifi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5872.

REASONS FOR DECISION

Member R. West

12 July 2021

Introduction

1. The Applicant seeks to review the decision of the delegate of the Minister to refuse her application for citizenship dated 7 April 2021 (Decision). 

2. A written statement of the reasons for the decision was received by the Applicant on 7 April 2021.

3. The Applicant lodged an application for the review of the Decision by the Tribunal on 2 June 2021.

4. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.

5. The application for review of the Decision was required to be lodged with the Tribunal by 5 May 2021 and so the application is 28 days out of time.

6. Subsection 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review if an application for an extension of time is made in writing by the Applicant. In this case, the Applicant lodged a written application for an extension of time on 2 June 2021.

7. Under s.29(7) the Tribunal may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

8. If the extension of time is opposed by the Respondent, s.29(10) of the AAT Act requires the Tribunal to give the parties a reasonable opportunity of presenting their respective cases.

9. In this case, the Respondent objected to the extension of time and the parties were afforded the opportunity to present their respective cases at a directions hearing conducted by telephone on 12 July 2021.  The Applicant was represented by Ms Zahra Sharifi, a friend, and the Respondent was represented by Ms Sarah Hardie, a solicitor with HWL Ebsworth.

   Applicant’s Submission

10. The Applicant acknowledged having received the reasons for the Decision on 7 April 2021 and raised the following argument in support of an extension of time:

    As the applicant does not speak, read and understand English fluently, she did not understand she had the rights to get her citizenship application reviewed by any department and only heared from friends that anyone who's application was refused got another chance. She took the letter to many offices and interpretors she knew to see if the letter mentions anythings when she was told the only thing she can do is wait and hear from Department of Home Affairs or apply for a new citizenship application. After many attempts which took this long a friend who was interpretetor translated the document saying she has the right to get it reviewed but she needs to call the AAT and that's when applicant called and decided to apply for a review online.

    Respondent’s Submission

11. The Respondent conceded that there would be no substantial prejudice to the Respondent in granting an extension of time but relied on the absence of merit as the basis for opposing the application.  The Respondent’s principal argument was:

    In circumstances where the applicant was afforded seven opportunities on four occasions to undertake the Australian citizenship test, which she failed, it is appropriate to finalise the application for Australian citizenship.

    In Minister for Immigration v Zadeh (No 2) [2018] FCA 1828, Thawley J confirmed that there is no limit to the number of times a person can sit the Australian citizenship test, but that this 'does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test' (see paragraph [37]).

    As the applicant failed to successfully complete the Australian citizenship test, the applicant is unable to meet the requirement of s 21(2A) of the Act and therefore paragraphs 21(2)(d), (e) and (f).

12. The Applicant accepted that she had failed to pass the citizenship test seven times and in her substantive application, explained that:

    In my many attempts to pass the citizenship test I have failed as I lack the required English skills to read and understand and although I have been studying English for past years I still lack the required skills and I cannot figure why is learning so hard for me and the context I have been learning is very different to citizenship test which doesn't help with understanding the questions and there wasn't opportunities for me to learn about Australia common bond (for instance citizenship related classes)…

    Relevant Considerations

13. The Federal Court has confirmed the prima facie rule that proceedings commenced outside the 28-day period should not be entertained.  In relation to the discretion to extend time under s.29(7) the Court said:

    It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.[1]

    [1] Hunter Valley Developments Pty Ltd Hunter Valley Developments Pty Ltd v Cohen (1984] 3 FCR 344, 348.

14. The relevant considerations for the exercise of the discretion may be summarised as follows: [2] 

    (a)there is no onus of proof upon an applicant for an extension of time but special circumstances need not be shown, and the Tribunal should not grant the application unless positively satisfied it is proper to do so;

    (b)it is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay be given but such an explanation will normally be given and is a relevant matter to be considered;

    (c)action taken by the applicant other than making an application to the Tribunal is relevant in assessing the adequacy of the explanation for the delay;

    (d)it is relevant to consider whether the applicant has rested on their rights;

    (e)any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a relevant consideration, but the absence of prejudice is not enough to justify the grant of an extension;

    (f)it is appropriate to take the merits of the substantial application into account; and

    (g)considerations of fairness as between the applicant and other persons in a similar position may be relevant.

    [2] See Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 [18].

    Assessment

15. The Tribunal accepts the Applicant’s explanation for the delay in making her application for review of the Decision.  While the prima facie position is that prescribed time limits should be complied with, the delay in this case, given the Applicant’s circumstances, is not so long as to cause prejudice to the Respondent or to infringe on the interests of the public generally. 

16. However, the Applicant’s grounds for seeking review of the Decision disclose that the application has no reasonable prospect of success.  The Applicant has conceded that she had sat the citizenship test on seven occasions and failed to pass the test on each occasion. 

17. Under s.24(1A) of the Citizenship Act 2007 (Act) the Minister must not approve a person becoming an Australian citizen unless the person meets the eligibility requirements in subsections 21(2)–(8).

18. Paragraphs 21(2)(d),(e) and (f), set out eligibility criteria based on the Applicant’s understanding of the nature of the application, knowledge of the English language and knowledge of Australia and the responsibilities and privileges of Australian citizenship. Subsection 21(2A) provides that those criteria are only satisfied if the applicant had successfully completed the citizenship test approved by determination under s.23A. Accordingly, the Applicant is ineligible for Australian citizenship. 

19. If the Tribunal was to hear the substantive application, it could not approve her application.  At best, it could consider remitting the matter back to the Respondent to provide the Applicant with another opportunity to sit the citizenship test. This course is unlikely.  The Applicant has had a reasonable opportunity to complete the citizenship test and her failure to pass the test on seven occasions is due to her lack of English language skills.  Nothing has changed in this regard.

20. Taking these matters into account and the fact that the Applicant is able to re-apply for citizenship in the future, the Tribunal is satisfied that there is no reasonable prospect that the Tribunal would do anything other than affirm the Decision if an extension of time were granted. This is consistent with the approach taken in Khoshaba and Minister for Immigration and Border Protection [2018] AATA 1829 and Saifi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5872.

21. For this reason, the Tribunal is not satisfied that it is reasonable to extend the time for the making of the application.

    DECISION

22. The application for an extension of time under s. 29(7) of the Administrative Appeals Act 1975 (Cth) is refused.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Member R. West

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Associate

Dated: 12 July 2021

Date(s) of hearing:	12 July 2021
Advocate for the Applicant:	Ms Zahra Sharifi
Advocate for the Respondent:	Ms Sarah Hardie
Solicitors for the Respondent:	HWL Ebsworth