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

The applicant, Ms Darvishi, sought to appeal a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for Australian citizenship. The application for review was lodged 28 days out of time, prompting Ms Darvishi to apply for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975. The Administrative Appeals Tribunal (the Tribunal) considered the application for an extension of time, with the Minister opposing the application.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant an extension of time for the lodging of the application for review. This required the Tribunal to consider the applicant's explanation for the delay and the merits of her substantive application, alongside the general principles governing the exercise of discretion to extend time. The Tribunal was required to determine if the applicant had provided an acceptable explanation for the delay and if it was fair and equitable to grant the extension, considering any prejudice to the respondent and the prospects of success of the substantive application.

The Tribunal accepted the applicant's explanation for the delay, attributing it to her difficulties with English literacy and understanding her review rights. It found that the delay was not so significant as to cause prejudice to the Minister or infringe public interests. However, the Tribunal found that the applicant's substantive application had no reasonable prospect of success, as she had failed the citizenship test on seven occasions and therefore could not meet the requirements of s 21(2A) of the relevant Act. The Tribunal noted that while there is no limit to the number of times a person can sit the citizenship test, the Minister can decide an application at a point when an applicant has not yet passed.

Consequently, the Tribunal refused the application for an extension of time.