Dela Rosa and Minister for Immigration and Border Protection (Citizenship)

Dela Rosa and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1262 (10 May 2018)
Division:GENERAL DIVISION
File Number: 2018/0088
Re:Jethro Dela Rosa
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:10 May 2018
Place:Perth

The Tribunal refuses to grant the Applicant an extension of time to lodge an application for review of a decision dated 11 September 2017 of the Minister for Immigration and Border Protection to refuse to grant the Applicant citizenship.
......[sgd]..................................................................
Member S Burford
CATCHWORDS
Citizenship application - extension of time application – factors that are relevant when considering an application for extension of time – length of delay – prospects of success – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 29(1)(d), s 29(2), s 29(7), s 33(1)(c)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Citizenship Act 2007 (Cth) – s 22, s 24, s 52(1)(b)
CASES
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563
Comcare v A'Hearn (1993) 45 FCR 441
Dix v Crimes Compensation Tribunal[1993] 1 VR 297
Doyle v Chief of General Staff(1982) 42 ALR 283
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan(1982) 45 ALR 411
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission(1982) 43 ALR 535
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42; (1991) 23 ALD 309
Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113
Wu v University of Western Sydney [2011] FCA 1143
Wedesweiller v Cole (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation (1999) 99 ATC 4711; (1999) 42 ATR 371; [1999] FCA 848
SECONDARY MATERIALS
Department of Home Affairs, The Citizenship Policy, 1 June 2016 – Chapter 7
REASONS FOR DECISION
Member S Burford
10 May 2018
THE APPLICATION

This is an application for an extension of time to make an application for review of a decision made by the delegate for the Minister for Immigration and Border Protection (the delegate) dated 11 September 2017 to refuse the Applicant’s application for conferral of Australian citizenship.
THE MATERIAL
The following material was before the Tribunal:
·the Applicant’s application for extension of time dated 9 January 2018 (the Application for Extension of Time) (Exhibit 1);
·the notification of refusal of the Applicant’s application for Australian citizenship by conferral (the notification) and the decision record of the delegate on the application for conferral of Australian citizenship (the decision) both dated 11 September 2017 (Exhibit 2); and
·the Respondent’s written submissions on the application for an extension of time received by the Tribunal on 9 February 2018 (Exhibit 3).
The application for the extension of time was heard in Perth on 6 April 2018. The Applicant was present at the hearing and represented himself. The Applicant was supported at the hearing by his father, Mr Edison Dela Rosa. The Respondent was represented by Ms Daphne Jones–Bolla, from Spark Helmore Lawyers, who was present at the hearing.
Oral submissions were made by both parties. The Applicant also answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent and to confirm his understanding of the Respondent’s submissions.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing.
BACKGROUND
The Applicant was born in March 2000 and is a citizen of the Philippines. He arrived in Australia on 30 December 2013 as a dependent on a Spouse (subclass 100) visa which was granted on 24 July 2013. According to the decision, that visa remains valid. On 18 October 2016 he lodged an application for conferral of Australian citizenship (Exhibit 2, Decision, paragraphs 1 and 3).
The application was refused pursuant to s 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act) on the basis that the Applicant did not meet the general residence requirements at the time of his application for citizenship in accordance with s 22 of the Act and the Citizenship Policy.
On 11 September 2017 a copy of the decision was sent by email to the Applicant. In the Application for Extension of Time the Applicant stated he received the decision on 11 September 2017 (Exhibit 1 and Exhibit 3, paragraph 5).
The application for which an extension of time is sought is for review of the decision by the Administrative Appeals Tribunal (Tribunal). Subsection 52(1)(b) of the Act allows for an application to be made to the Tribunal for review of a decision under s 24 of the Act to refuse to approve a person becoming an Australian citizen.
RELEVANT LEGAL PRINCIPLES
An application for review of a decision must generally be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision: s 29(1)(d) and s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, s 29(7) of the AAT Act provides that:
The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for a review of the decision… if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
While the AAT Act does not set out factors to be considered by the Tribunal in determining what is “reasonable in all the circumstances”, the relevant principles have been judicially considered.
In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments), the Federal Court set out a series of principles that might be relevant under similar provisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) (at 348-50) when considering an application for an extension of time. These principles have been applied and expressed by the courts with some variations and modifications, however the central principles are consistent in the case law and provide useful guidance: see for example Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown); Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Wu v University of Western Sydney [2011] FCA 1143 and the cases cited below.
In Hunter Valley Developments, Wilcox J pointed out that “…the prescribed period of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…”. In considering whether to exercise discretion to depart from this prima facie rule the authorities make it clear that a range of considerations must be taken into account. As Wilcox J noted in Hunter Valley Developments, the principles are “…to guide, not in any exhaustive manner, the exercise of the Court’s discretion” (at 348).
In Phillips v Australian Girls’ Choir [2001] FMCA 109, McInnis FM provided a slightly amended version of the principles outlined by Wilcox J to take into account modifications made by other courts in considering the Hunter ValleyDevelopments principles 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) 45 FCR 441 and Dix v Client [sic] 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).
While the principles outline above provide general guidance each case must be considered according to its own circumstances. In Brown, Hill J stated, in the taxation context (although this is still applicable to the general exercise of the Tribunal’s discretion), that the Tribunal should be “…guided by what the justice of the case requires” (at [59]). In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848.
THE ISSUE
The issue before the Tribunal is whether the Applicant should be given leave for an extension of time pursuant to s 29(7) of the AAT Act to make his application to the Tribunal for a substantive review of the decision made by the delegate on 11 September 2017.
The Applicant lodged his application for review of the decision with the Tribunal on

9 January 2018.
The time for making the application was 28 days from “… the day on which the document setting out the terms of the decision is given to the applicant” (s 29(2)(a) of the AAT Act).
A copy of the decision was emailed to the Applicant on 11 September 2017 and the Applicant’s application for extension of time stated that he received the decision on that date. The Applicant was therefore required to lodge his application for review by

9 October 2017.
CONSIDERATION
In determining whether an extension of time should be granted in this case, the Tribunal finds that, in light of the relevant jurisprudence and using the principles articulated in the case law as a guide, the relevant factors the Tribunal should consider in exercising its discretion to depart from the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, include:
·the length of delay, any explanation for the delay and whether that explanation is satisfactory;
·whether the Applicant was aware of his appeal rights and whether he rested on those rights;
·any prejudice to the Respondent or the general public arising from an extension of time of success:
·the merits of the substantive application for review; and
·any alternative avenues of relief for the Applicant should the extension of time not be granted.
Length of delay
The Tribunal finds that the Applicant received the decision on 11 September 2017. The Applicant was accordingly required to file an application for review by 9 October 2017. The Applicant did not file an application for an extension of time until 9 January 2017, 92 days late.
In relation to the issue of the length of the delay in making the application the Respondent submitted that the filing of the application 92 days out of time was “… a significant delay in light of the allowed 28 day time limit.” (Exhibit 3, the Respondent’s Submissions, paragraph 7).
The length of the delay was not insignificant given the 28 day time limit for filing an application and weighs against an extension of time being granted.
Explanation for the delay
The Applicant’s application for an extension of time indicated that his reason for not applying within the time limit was that:
I read the decision of the Australian Government, its [sic] says i [sic] haven’t reached the residence requirements so i [sic] waited until december [sic] 30 to completel [sic] that requirement. (Exhibit 1)
The Applicant confirmed during the oral hearing that he delayed his application on the assumption that the late filing would assist him to meet the residence requirement which was the basis for his original application for citizenship being refused.
The Respondent submits that (Exhibit 3, Respondent’s Submissions, paragraphs 9 and 10):
…the applicant has not provided an adequate explanation as to why he required additional time to file his application for review in this Tribunal. The applicant made a conscious choice not to seek review of his decision until after 30 December 2017 and there is no evidence which suggests that there was anything preventing the applicant from seeking review.… The evidence falls short of establishing an adequate explanation for the lengthy period of delay.
When questioned about the reason for the delay in making the application at the hearing, it was clear that the Applicant did not understand that delaying the filing of the application for review would not assist him to meet any residence requirement on the original application for citizenship. The Tribunal finds that the Applicant’s misapprehension regarding this element of his application does not amount to an adequate explanation for the delay in filing an application for review. The lack of an adequate explanation for the lengthy delay also weighs against the exercise of the discretion to allow an extension of time.
Awareness of appeal rights
It was clear to the Tribunal from the Applicant’s answers to questions at the hearing that the Applicant was aware of the time limit for filing an application. The time limit was made clear on the notice of decision (Exhibit 2) which the Applicant confirmed he received and understood. The Applicant made a choice to delay his application in order to improve his chances of success. The Tribunal finds a deliberate decision to delay the filing of an application on such grounds does not establish an adequate explanation for the delay and demonstrates that the Applicant was aware of his appeal rights.
Prejudice to the Respondent or the General Public
Other than having to respond to the application for review, there is no evidence before the Tribunal that the extension of time would prejudice the Respondent. The Tribunal finds that the Respondent would not suffer any relevant prejudice if an extension of time were granted.
Consideration must still be given to whether an extension of time in the circumstances would be of prejudice to the wider public by disturbing the established practices of the Tribunal and to the accepted public interest in the finality of decision-making. (Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1 at [19])
The 28 day time frame set out in s 29(2) of the AAT Act is in place to ensure the Tribunal is accessible, fair and quick in its decision-making. The length of delay in this case is not inconsiderable having regard to the 28 day time frame. Allowing delays of this kind creates a burden on the system and those seeking to access it which would result in a wider prejudice to the community. Further to allow applicants extensions of time in circumstances where their delay is an attempt to advantage their application would undermine the operation of the review system and the confidence of the public in the integrity of that system.
Prospects of success of the substantive application
The prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time. The Tribunal should not however undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76). Rather the Tribunal should assess whether the Applicant has an arguable case (Brown v Federal Commissioner of Taxation [1999] FCA 563).
The Tribunal has previously declined to grant an extension of time to applicants in cases where it considers the application would have little prospect of success at a substantive hearing of the matter.
In relation to this issue the Respondent submits (Exhibit 3):
11… the substantive application has no reasonable prospect of success and that this alone is sufficient cause to deny the application for an extension of time.
12At the time that the applicant lodged his Application for Citizenship by Conferral on 18 October 2016, the applicant was 16 years old […]. As the applicant was under 18 at the time of lodgement, his application was subject to subsection 21(5) of the Act. That section provides that a person under the age of 18 is eligible to become an Australian citizen if the Minister is satisfied that the person is a permanent resident at the time that the person made the application and at the time of the decision.
13Subsection 24(2) provides discretion to a decision maker to refuse the application despite the applicant being eligible under subsection 21(5). The Citizenship Policy provides guidance to decision makers on how to exercise their discretion in applying the Act. [The Minister notes that the Policy came into force as of 1 June 2016]. The Tribunal as the decision maker will generally apply policy such as that contained in the Citizenship Policy unless there are cogent reasons not to do so. [Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J].
14Page 77 of the Citizenship Policy provides that:
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also:
·satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). Refer to Residence requirement and Significant hardship or disadvantage / detriment…
15Page 69 of the Citizenship Policy sets out when an applicant must meet the residence requirements, noting that “applicants for citizenship by conferral... under policy for applicants aged 16 or 17 years, applying under section 24(5), must satisfy a residence requirement”.
16The Minister contends that there are no cogent reasons that the Tribunal should depart from the application of the Citizenship Policy, and that therefore should find that applicant would be required to meet the residence requirements under the Act.
17Subsection 22(1) of the Act provides that 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… (emphasis added)
18Section 22(1A) of the Act provides that if a person is absent from Australia for a part of the 4 year period specified in s.22(1)(a) and the total period of the absence or absences is no more than 12 months, then the Applicant is taken to have been present in Australia during the absence(s).
19Prior to lodging his application, the applicant had only been present in Australia for 948 days (approximately 2½ years) and therefore cannot satisfy the general residence criteria at the time of lodging the application.
20The applicant’s submission in support of his request for an extension of time reveals his fundamental misunderstanding of the time at which he was required to have accrued at least three years of residency. The Minister contends that the residence requirements must have been met at the time that the application for citizenship is lodged, not at the time that the decision maker assesses the application (although that is also required). The Minister contends that the fact that almost four years have now elapsed since the applicant arrived in Australia do not assist the applicant for the purpose of this Tribunal application.
21The Minister also contends that the applicant would not suffer any significant hardship or disadvantages were he required to meet the residence requirements. The Citizenship Policy, at page 34 provides that:
People would normally be required to demonstrate some or all of the following circumstances:
·inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
·difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
·academic (for example, research, academic scholarship) or other (sporting, etc.) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
·significant hardship; or
·disadvantage or detriment.
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused
22The applicant has provided no evidence that he would suffer significant hardship or disadvantage if he were required to meet the general residence requirements. In addition, the applicant is able to lodge a fresh application for citizenship which would take into account his additional qualifying residence since 18 October 2016.
23The Minister therefore contends that the applicant’s substantive application has no reasonable prospects of success.
[Original Emphasis]

The Applicant’s substantive application for review claims that the delegate’s decision is wrong because:
I believe that i [sic] reached the residence requirement of 4 years lawful presence in Australia, that’s why im [sic] applying a review for my application, and to know if I can be a [sic] Australian citizen or to know if theres [sic] more defaults in my application.
During the hearing, in answer to questions from the Tribunal the Applicant indicated that he understood that there was a four-year residence requirement which applied at the time the application was made and that he had not met that residence requirement. The Applicant was also asked by the Tribunal whether he felt he would suffer any significant hardship, disadvantage or detriment as a result of the Citizenship Policy and more specifically the residence requirement being applied to his application. The Applicant did not indicate that he would suffer any such hardship disadvantage or detriment.
The only ground of review raised by the Applicant in his application or in oral submissions before the Tribunal was that he now meets the four-year residence requirement. The Tribunal agrees with the Respondent’s submissions that the residence requirement applies at the time the citizenship application was made. On the information available to the Tribunal the Applicant did not meet this requirement at the time the application was made. Further, while there is a discretion contained within the Citizenship Policy with regard to applying the residence requirement the Applicant did not offer any indication or evidence at the hearing that would support the exercise of that discretion.
The Tribunal notes that as the Applicant was under 18 at the time he made his citizenship application there was on obligation under Article 3.1 of the Convention on the Rights of the Child (CROC), to which Australia is a signatory, for the delegate to consider the best interests of the Applicant as a primary consideration in making the decision on his citizenship application. The delegate’s decision addressed whether the decision to apply the residence requirement to the Applicant’s application for citizenship would be against his best interests and found that the Applicant was a permanent resident of Australia and as such was permitted to stay in Australia indefinitely and was afforded “appropriate access” to services and a range of rights and protections under Australian law. The delegate’s decision states that:
A decision to refuse to approve you becoming an Australian citizen by conferral would not change your immigration status in Australia and therefore would not deny you the protection and rights provided by Australian law whilst present in Australia. Therefore, I am satisfied that such a decision wold not be against your best interests and have decided to apply the policy guidelines.
While this issue was not raised by the Applicant as a ground of review, the Tribunal finds that while it may be arguable that citizenship may afford the Applicant some additional rights and protections under Australian law an argument that the Applicant’s best interests were not met in circumstances where he had access to the services and protections afforded to permanent residents in Australia would not have strong prospects for success. This is particularly the case where the Applicant had the opportunity to make a fresh application for citizenship once the residence requirement was met. This issue is dealt with further below.
On the basis of the material before it, the Tribunal finds that the Applicant has poor prospects of success in his substantive application for review.
Alternative avenues of relief
Taking into account all the circumstances of an application for an extension of time, it may be relevant to consider whether there are any alternative avenues of relief available to the Applicant (see for example Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at 18 and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).
The Respondent submitted that “…any prejudice caused to the applicant as a result of a refusal of his extension application is at most minimal given there is no evidence to suggest he is precluded from submitting a fresh citizenship application in the future, at which point he will have likely met the residence requirements.” (Exhibit 3, Respondent’s submissions, paragraph 24)
The Respondent’s contention that an alternative avenue was available to the Applicant was raised with the Applicant during the hearing. The Applicant conceded that he would now likely meet the residence requirement and that he would not be precluded from making a fresh citizenship application.
In such circumstances, the Tribunal finds that it is unlikely that the Applicant will suffer significant prejudice as a result of the refusal of his extension of time application. Further it is likely that the Applicant is in a position to make a fresh application for citizenship in the event the extension of time was not granted.
CONCLUSION
The Tribunal has considered all the material before it including the submissions from the Applicant and the Respondent. Taking into account:
·the substantial length of the delay of 92 days in filing the application;
·the lack of an adequate explanation for the delay in making the application;
·the fact that the Applicant was aware of his appeal rights and of the time period in which he needed to make his application;
·that the Applicant made a conscious decision to delay his application on the misapprehension that this would improve the likelihood of success of his substantive application;
·the need for efficient management of the Tribunal’s time and resources;
·the limited likelihood of success of the Applicant’s substantive application for review; and
·that the Applicant is not precluded from making a fresh application for citizenship. The Tribunal notes that the Applicant is now 18 years of age and is now likely to meet the residence requirement were it to be applied to a fresh citizenship application;
the Tribunal is satisfied that it should not exercise its discretion to extend the time for the Applicant to make his application for review of the decision of 11 September 2017.
DECISION
For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29 (7) of the AAT Act, to lodge an application for review of the delegate’s decision of 11 September 2017.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member S Burford.

.....[sgd]...................................................................
Associate
Dated: 10 May 2018

Date of hearing: 6 April 2018

Applicant: In person: self-represented

Representative for the Respondent: Ms Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1262

10 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Remedies

Date of hearing:	6 April 2018
Applicant:	In person: self-represented
Representative for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers