Essambo and Minister for Immigration and Border Protection (Migration)
[2016] AATA 572
•4 August 2016
Essambo and Minister for Immigration and Border Protection (Migration) [2016] AATA 572 (4 August 2016)
Division
GENERAL DIVISION
File Number
2016/2247
Re
Prudence Essambo
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 4 August 2016 Place Perth The applicant’s application for an extension of time to lodge an application for review of a decision of a delegate of the Minister for Immigration and Border Protection dated 3 February 2016 is refused.
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Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of Department of Immigration and Border Protection dated 3 February 2016 – explanation for delay not satisfactory – lack of merit of applicant’s application for review – applicant can re-apply – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 29 – s 29(2) – s 29(2)(a) – s 29(7) – s 29(8)
Australian Citizenship Act 2007 – s 24(6) – s 52(1)(b) – s 52(2)
CASES
Comcare v Ahearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Johnson and Commonwealth of Australia (1990) AATA 1
REASONS FOR DECISION
Brigadier AG Warner, Member
4 August 2016
INTRODUCTION
Ms Essambo seeks an extension of time to lodge an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 3 February 2016 to refuse her application for Australian citizenship.
The jurisdiction of the Tribunal to review decisions of this nature is conferred by ss 52(1)(b) and 52(2) of the Australian Citizenship Act 2007 (the Citizenship Act).
An interlocutory hearing to determine Ms Essambo’s application for an extension of time was conducted on 29 July 2016. The hearing was delayed 40 minutes due to the late arrival of Ms Essambo.
BACKGROUND
Ms Essambo was born in the Democratic Republic of Congo and is 23 years old. She arrived in Australia as the holder of a permanent XB 200 visa on 12 August 2009.
Ms Essambo lodged an application for Australian citizenship on 23 March 2015 (T16/160).
An Australian Police Check Results Report for Ms Essambo revealed an outstanding court matter (Commonwealth – Certain Offences Committed on Aircraft) related to an incident in 2014 (T6/146)
On 17 August 2015, the Department of Immigration and Border Protection (the Department) wrote to Ms Essambo requesting information and character references for the Department to consider in support of her citizenship application (T12/153). On 4 September 2015, Ms Essambo provided a response regarding the outstanding charge, together with three character references (T7/147, T8/149, T9/150, T11/152).
On 3 February 2016, a delegate of the Minister refused Ms Essambo’s application for Australian citizenship and sent her a letter advising that decision (the Refusal Decision) (T2/16-25).
On 2 May 2016, Ms Essambo lodged an application for an extension of time to lodge an application for review of the 3 February 2016 refusal decision (T1/1)
ISSUE
Ms Essambo has applied for an extension of time within which her application for review may be lodged. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.
THE RELEVANT LEGISLATION
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the Act) relevantly states:
… the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eight day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;
The Tribunal’s power to extend the time for the making of an application for review is conferred by subs (7) and (8) of s 29 of the Act as follows:
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
EVIDENCE
The Tribunal had before it the following documents:
·The “T Documents” (T1-16, pp 1-173);
·Submissions of the Respondent Opposing the Applicant’s Extension of Time Application dated 1 June 2016 (Exhibit 1);
·Prudence Essambo’s email dated 1 June 2016 (Exhibit 2); and
·Waverly Local Court Order 2014/00102852 dated 7 July 2016.
CONSIDERATION
Section 29(7) of the Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia (1990) AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:
(i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…
(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.
Explanation
In her application for an extension of time, Ms Essambo gave her reason as: “For my Application for Australian Citizenship” (T1/2). In her email dated 1 June 2016, Ms Essambo stated:
I was supposed to receive a letter from the immigration about my citizenship test in November last year. But it took a while so I contacted them a few times to know the exact date of my ceremony I kept being told to wait because it was still being processed, When I moved house to get closer to Curtin University in February obvious to all this until now. So my parents told me I had a package that’s when I found out and the 28 days had passed already, but I still proceed to ask for an extension of time in May so I could get enough time to get things sorted out and hopefully obtain my citizenship. I suppose an excuse of I didn’t receive a letter is out of the question, but this was the inconvenience that occurred and I sincerely hope it’s understandable even Tho I should have taken precautions of letting them know my new address (Exhibit 2).
Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of that application, the Full Court said [at 444] that “it is to be expected that such an explanation will normally be given, as a relevant to matter to be considered…”
It seems to the Tribunal that Ms Essambo may have not had a complete understanding of the citizenship application process, but that the present proceeding may, to some extent, have improved that situation. That said, it is the Tribunal’s opinion that Ms Essambo has not provided a compelling or satisfactory explanation for not lodging an application for review with this Tribunal before the expiration of the prescribed 28 day period on or about 8 March 2016 (Exhibit 1 paragraph 20).
Length of delay
Section 29(2) of the Act requires that an application for review must be made within 28 days of receipt of the relevant decision.
In this matter, Ms Essambo was notified by letter dated 3 February 2016 that her application for Australian citizenship had been refused. In the absence of evidence to the contrary, the Tribunal can assume that the letter was delivered by 9 February 2016, that being four business days after the date of the Refusal Decision letter. Ms Essambo was then required to lodge her application for review by, 8 March 2016.
Ms Essambo lodged her application for an extension of time on 2 May 2016, three months after the date of the Refusal Decision letter, and almost two months after 8 March 2016 deadline. There was no evidence before the Tribunal that Ms Essambo had taken any earlier action to indicate that she would seek a review of the Refusal Decision.
This consideration does not weigh in favour of granting an extension of time.
Merits of the substantive application
It is not necessary for the Tribunal to conduct a merits review of the refusal decision at this interlocutory stage. However, it is appropriate for the Tribunal to consider the merits of Ms Essambo’s substantive application for a review of that decision as part of the process of determining this application for an extension of time for lodging the substantive application: Hunter Valley Developments Pty Ltd; Re Johnson (refer to paragraph 15 above).
Ms Essambo’s application for Australian citizenship was refused on the basis of a prohibition pursuant to s 24(6) of the Citizenship Act. The delegate’s Decision Record states:
Your Police Check Results Report indicates that there are currently proceedings in relation to you pending for an offence against Australian law. These proceedings are related to the following offence:
·24/06/2014 CTH – Certain Offence Committed on Aircraft
Your Police Check Results Report indicates recognizance was forfeited and a warrant was issued. As such this offence has not been finalised and is still pending.
Due to the above pending charges I am prohibited from approving your application for Australian citizenship at this time (T1/11).
Ms Essambo told the Tribunal that she had travelled to Sydney recently and the outstanding matter had been finalised. She provided a copy of a Local Court of NSW at Waverly Order 2014/00102852 dated 7 July 2016, which orders:
The defendant, PRUDENCE ESSAMBO is convicted, but under section 20(1) (a) of the Crimes Act 1914, is to be released without passing sentence on condition that the defendant upon giving security in the amount of $500.00 is to comply with the following conditions: that the defendant is to be of good behaviour for a period of 12 months
This Waverly Court Order decision does not, however, change the circumstances which applied at the time of the Refusal Decision and relevant to any substantive review of the Refusal Decision. The Tribunal is not satisfied that any substantive application by Ms Essambo would have good prospects of success.
Prejudice and fairness
Turning to the consideration of prejudice and fairness, the respondent submitted that:
The applicant is able to re-apply for Australian citizenship at any time once she has met all the eligibility criteria. On this basis, the respondent contends that there is nothing to indicate that the applicant would suffer any prejudice if the extension of time application were refused, other than the cost of re-applying for Australian citizenship.
The respondent contends that there would be some prejudice to the respondent if the extension of time application were granted, in that the Commonwealth would be put to the cost of defending the application for review. As noted above, there is no merit in the substantive application (Exhibit 1 paragraphs 34-35).
Before the Tribunal, no further submissions were made by the parties. The Tribunal accepts the respondent’s submission, but in the present matter does not attach significant weight to this particular consideration.
CONCLUSION
The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.
DECISION
For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the Act, the applicant’s application for an extension of time to lodge an application for review of the 3 February 2016 decision by a delegate of the Minister to refuse the applicant’s Australian citizenship application.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member .......[Sgd].................................................................
Administrative Assistant
Dated 4 August 2016
Date of hearing 29 July 2016 Applicant In person Representative for the
RespondentMs S Yik-Long Solicitors for the Respondent
Australian Government Solicitor
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