Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 927
•20 April 2021
Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 927 (20 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7034
Re:Hiam Fissal
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:20 April 2021
Place:Sydney
The Tribunal extends, until 6 November 2020, the time for application for review of the delegate’s decision dated 26 June 2020, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
..........................[sgd]..............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP - extension of time application – principles to be applied – where Tribunal not persuaded that the application has no prospect of success - whether the delay was significant – where delay found not to be inordinate in the circumstances – whether there is an acceptable explanation for delay – where explanation of delay was satisfactory – where fairness to the parties considered – where it was reasonable in all the circumstances to grant the extension – extension of time application granted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Chen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 483
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
20 April 2021
BACKGROUND
This is an application for an extension of time within which to lodge an application for review of a decision in relation to an application for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
The Applicant is a 54-year old female citizen of Syria. She arrived in Australia in 2005 and was granted a refugee visa in 2014. She does not speak English although she has attended 384 hours of free tuition under the Adult Migrant English Program.
On 27 March 2019 she lodged an application for citizenship for conferral. She completed Form 1290 Application for Australian citizenship: Other Situations and indicated at question 16 that she had a permanent or enduring physical or mental incapacity. Her application was therefore assessed in accordance with section 21(3) of the Citizenship Act.
On 26 June 2020, her application was rejected by a delegate of the Minister (the reviewable decision).
Section 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application for review must be made within 28 days. The final day for seeking review of the delegate’s decision was therefore 30 July 2020 (2 July 2020 plus 28 days).[1]
[1] Under the AAT Act, she is taken to have received notice of the decision on 2 July 2020.
On 6 November 2020 she lodged an application with the Tribunal to have the decision reviewed, 99 days out of time.
On 24 November 2020, the Respondent filed a notice opposing the application.
An interlocutory hearing was held by telephone on Friday 11 December 2020, in accordance with COVID protocols.
The Applicant was assisted by her husband and an Arabic interpreter.
The basis for the Applicant’s application was that: ‘I think this decision is unfair because I suffer from major depression disorder and I am unable to learn English.’
The Minister opposed the application for an extension of time on the grounds that a delay of over three months was significant, and the Applicant had not adequately explained the delay. The Minister contended that the proposed substantive application had insufficient prospects of success, and that it was reasonable in all the circumstances to refuse the application for an extension of time.[2]
[2] Notice Opposing Application dated 24 November 2020.
THE DISCRETION TO GRANT AN EXTENSION OF TIME
Section 29(7) of the AAT Act provides:
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.
The principles applicable to an extension of time are well understood.[3]
[3] See Chen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 483 (11 March 2021) per Senior Member Puplick.
Certain factors have been identified as especially important. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J identified certain key factors in the context of section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 348-9). This case has been widely applied and refined in administrative proceedings.
In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10] the Federal Magistrates Court stated:
[I]it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
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] FCA 153; (1982) 43 ALR 535 at 550).
It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan [1982] FCA 217; (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] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1993) 1 VR 297 at 302).
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] FCA 124: (1982) 42 ALR 283 at 287).
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).
The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
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).
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) [1983] FCA 94; 47 ALR 528).
In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] Middleton J said, in the context of an application for an extension of time under human rights legislation, that the main three considerations were:
·the explanation of the delay;
·any prejudice to the respondent; and
·whether the applicant has an arguable case.
The Tribunal cannot lawfully be satisfied that it is reasonable to grant an extension of time unless positively satisfied that it is proper to do so. The essential question is whether it is reasonable in all the circumstances to grant an extension, and whether the interests of justice will be served by doing so.
It is not in the interests of justice to grant an extension when the case has little or no prospect of success, or where the party opposing the extension will suffer serious hardship as a result, including the inconvenience and cost of ongoing disputation. A party should be able to order their affairs, especially in relation to monetary claims, on the basis that claims will not resurface after the deadline for settling them has passed. The timely settlement of claims is an important consideration.
Prejudice to either party should be considered. Refusing an extension of time may have irreversible consequences, such as deportation or the loss of a potential monetary gain.
In practical terms, it is useful to consider the prospects of success first, for there is no justice and indeed a great injustice in drawing out proceedings that have no prospect of success. This exercise falls well short of a hearing on the merits but cannot be regarded as superficial. Its purpose is to determine whether there are obvious flaws in the application. Where the application is not doomed to fail, the Tribunal must be satisfied that the interests of justice require the grant of an extension, despite the applicant’s non-compliance with the statutory time limit. It is incumbent on a person seeking an extension of time to provide a reasonable explanation for the delay, addressing the length of delay. Prospects of success and reasons for delay are the essential elements of an application for an extension of time.
PROSPECTS OF SUCCESS
Paragraph 21(3)(d) provides that a person must have has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time …
The relevant incapacity must exist at the time of the application, in this case, 27 March 2019. Moreover, the incapacity must be more than a contributing factor. The words ‘that means’ imply that any alleged incapacity (being permanent or enduring) must be of itself enough to invoke at least one of the incapacities stated in the subsection. Finally, any one of the stated incapacities is enough. Many if not most cases fall into the second category, where a person claims that they are not capable of demonstrating a basic knowledge of the English language. In such cases the Tribunal must be satisfied that the linguistic incapacity is caused by (and not merely associated with) the enduring physical or mental incapacity. Illiteracy is not by itself enough to satisfy the requirement.
In support of her application, the Applicant tendered reports from the following health professionals:
·Dr Aiman Alsayed, General Practitioner, dated 11 February 2019; 6 February 2020; 24 February 2020
·Dr Fayza Al Shamali, Psychologist, 24 February 2020
·Dr Nazneen Akhter, Rehabilitation Specialist, dated 4 March 2019
·Dr Hewa Kisanthi Atapattu, Consultant psychiatrist, dated 13 March 2019
The delegate noted that neither Dr Alsayed, nor Dr Shamali satisfied the specialist requirements under the Citizenship Policy and rejected the evidence of Dr Akhter and Dr Atapattu on other grounds.
The Tribunal received two further reports in support of her application, a medical report dated 12 October 2020 from Dr Ashraf Philips, Consultant Psychiatrist, and a medical report from a General Practitioner, Dr Ala’a Al-Zabin, dated 4 November 2020.
The letter from Dr Ashraf Philips, MBBCH, MSc Psych, FRANZCP, Consultant Psychiatrist, is dated 12 October 2020. Dr Philips stated: ‘Mrs Fissal presented with long history of depressive symptoms for many years precipitated by psychosocial issues.’
He also noted that she would continue to require psychotherapy.
I also note reports from Dr Ishrat Ali, MBBS, DPM, FRCPsych (UK), FRANZCP, Consultant Psychiatrist dated 19 May 2017 and 1 September 2017 which suggest that the Applicant suffers from major depression but does not have psychosis or brain damage.
These Reports by Dr Ali do not appear to have been considered either by the delegate in the reviewable decision or by the Respondent’s solicitor. Given that these reports were not the subject of commentary by the Respondent I do not place reliance on them, other than to note that the Applicant has been under psychiatric care since 2017.
ANALYSIS
The Respondent has emphasised the lack of formal standing in terms of the Citizenship Policy of some of the medical experts, and the lack of evidence directed to the causation issue.
The success of the Applicant’s quest for citizenship, should the matter proceed to a full hearing, depends upon a positive finding that she suffers from a diagnosed physical or mental incapacity with the quality of being ‘permanent or enduring’; and that her linguistic incapacity is caused by (and not merely associated with) the enduring physical or mental incapacity.
There is, before the Tribunal, an abundance of medical evidence bearing upon the first issue. There is evidence of depression; however, there does appear to be a lack of expert opinion linking depression (as the primary health condition) and the claimed incapacity to demonstrate a basic knowledge of the English language at that time of her application. Medical evidence is not required to demonstrate that learning a new language in adulthood is a challenge for all but a few, and even for those who do not suffer any health ailments. It is at least arguable that a severe state of clinical depression may, as a matter of common knowledge, inhibit a person from engaging in even simple tasks.
Based on the material presented to the Tribunal, the relationship between the Applicant’s depression and her capacity to acquire a basic knowledge of English is very much a live issue and I am not persuaded that the application has no prospect of success.
I come therefore to the second critical question, the reasons for delay.
REASONS FOR DELAY
The Applicant’s husband told the Tribunal that it was some time after the letter was received that they became aware that an application for review had to be made within 28 days.[4] It appears that someone with more proficient English read the letter and explained that the decision had been refused, and that the deadline for applying for a review had passed.
[4] Transcript, p 15-16.
The Applicant’s response was to make an appointment with a psychiatrist to obtain further evidence regarding her health condition. Due to the health pandemic it was some time before they were able to get an appointment.
It can be put against the Applicant that she should have focused on making an application for review before the deadline expired, rather than seeking more evidence in support of her application. Obviously, her response does not provide a justification for the delay but taking account of her lack of English, her depression and very narrow social circle, I consider that some leniency is called for. In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10] the court noted:
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] FCA 124: (1982) 42 ALR 283 at 287).
The Applicant cannot be said to have rested on her rights. The delay is not of an inordinate length and taking account of the difficulties associated with making medical appointments during a pandemic, I am satisfied that she has provided a satisfactory explanation for the delay.
FAIRNESS TO THE APPLICANT AND OTHER PEOPLE
Fairness as between the Applicant and other persons in a like position is relevant to the Tribunal’s discretion to grant an extension of time. Given the serious mental health concerns raised by the Applicant, I do not think that this factor should be heavily weighed against her.
It is true that the Applicant can make a fresh application for citizenship, addressing with appropriate medical support, the defects identified by the delegate in the present application. However, the cost and time associated with making a fresh application with fresh medical reports is a factor to be considered.
Having considered these factors, I am satisfied that it is reasonable in all the circumstances to grant an extension until 6 November 2020.
CONCLUSION
The Tribunal extends (until 6 November 2020) the time for application for review of the delegate’s decision dated 26 June 2020, pursuant to section 29(7) of the AAT Act.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Paul Fairall
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Associate
Dated: 20 April 2021
Date(s) of hearing: 11 December 2020 Applicant: Self-represented Solicitors for the Respondent: Cameron O'Sullivan, Australian Government Solicitor
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