Habo and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2023] AATA 85

Habo and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 85 (3 February 2023)

Division:                  GENERAL DIVISION

File Number:           2022/7184

Re:  Abdulkerim Habo

APPLICANT

And  Minister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:                  Senior Member R Bellamy

Date:  3 February 2023

Place:  Brisbane

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

....................[SGD]....................................................

Senior Member R Bellamy

CATCHWORDS

INTERLOCUTORY APPLICATIONS – EXTENSION OF TIME –whether Tribunal should grant extension of time –application of the Hunter Valley Developments principles – where there is no reasonable explanation for the delay –where there are no reasonable prospects of success – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment

(1984) 3 FCR 344

REASONS FOR DECISION

Senior Member R Bellamy 3 February 2023

1.The Applicant is the holder of a Five Year Resident Return (Class BB) (Subclass 155) visa.

2.On 16 March 2022, he lodged an application for Australian citizenship by conferral.

3.On 24 June 2022, a delegate of the Minister (“the delegate”) refused the application on the basis that they were not satisfied that the Applicant met the residence requirements in s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (“the Act”).

4.The delegate’s decision was sent by email to the Applicant’s nominated email address on 24 June 2022. An application to the Tribunal for review of the decision was required to be made within 28 days after the date on which the delegate’s decision was given to the Applicant. That date was 22 July 2022. The correspondence in which the Applicant was notified of the decision contained the following text:

“An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taken to have received this letter. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”

5.The application for review was lodged on 31 August 2022, 40 days late. The Applicant’s explanation for the delay was that:

“The email been send on my old email and i have not checked my old email for a while and i really apologize for that”.

(Errors in Original)

6.Under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal may extend the time for making a review application if it is satisfied that it is reasonable in all the circumstances to do so. The Minister opposes the application for an extension of time.

7.The Tribunal accepts the Minister’s contention that the key factors to consider are the length of the delay, the explanation for the delay, any prejudice to the Minister were the extension of time granted, the merits of the substantive application and whether the applicant has any

alternative avenues of relief: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344.

8.The Tribunal makes this decision on the basis of the following documentary evidence:

·The Applicant’s application for review lodged 31 August 2022 and relevant attachments;

·The Applicant’s extension of time application dated 7 September 2022 and relevant attachments; and

·The Respondent’s response to the application for the extension of time dated 9 December 2022.

9.On 20 December the Applicant advised the Tribunal he had further documentation to provide. On 22 December 2022 the Tribunal emailed the Applicant (copying in the Respondent) advising that the Tribunal was considering the Extension of Time application including the above material and asking the Applicant to provide any further documentation in regard to the extension of time application on or before 6 January 2023 and that after this date the Tribunal would consider the material and make a determination on the extension of time application.

10.On 22 December 2022 the Applicant telephoned the Tribunal and spoke to a staff member in the Tribunal’s Registry. The Applicant advised that he wanted to add his new baby to his application for citizenship. The Tribunal staff member advised the Applicant that applying for citizenship for the child would require a separate application the Department of Home Affairs. The Tribunal staff member sought clarification on whether the Applicant had any further submissions in this application. The Applicant stated he did not and would wait for the outcome of the Extension of Time application. Later that afternoon the Applicant sent an email to the Tribunal stating he had wanted to “add some documents for my new baby born after I lodged the application. He’s currently back home in Ethiopia”.

11.The Applicant’s explanation for the delay – merely that he did not check the email account that he had nominated for correspondence – is unsatisfactory. In that context, the delay is lengthy. The Minister concedes that there would be no specific prejudice to the Minister if the Applicant were granted but notes the public interest in the finality of administrative decision-making.

12.The determinative considerations here are the merits of the substantive application and the alternative avenues for redress.

13.On the evidence before the Tribunal the substantive application cannot succeed for the reasons that follow. Section 21(2)(c) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied that the person satisfies the general residence requirement in s 22 or the special residence requirement in ss 22A or 22B, or satisfies the defence service requirement in s 23, at the time of application.

14.Section 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; and

(b)The person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c)The person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

15.Section 22(1A) of the Act provides that if:

(a)The person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b)The total period of the absence(s) was not more than 12 months;

then, for the purposes of s 22(1)(a), the person is taken to have been present in Australia during each period of absence.

16.Section 22(1B) of the Act provides that if:

(a)The person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

(b)The total period of the absence(s) was not more than 90 days; and

(c)The person was a permanent resident during each period of absence;

then for the purposes of s 22(1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

17.Departmental records indicate that the Applicant was absent from Australia for a total of 375 days in the four year period immediately before applying for citizenship, and that he was absent from Australia for a total of 323 days in the 12 month period immediately before the time of application. In the Applicant’s application for review of the decision he said “I applied for my citizenship when i was away from Australia for a year which is I didn’t know it effect my application”. (Underlining added, errors in original).

18.While the Applicant contends that he satisfies the special residence requirement in s 22B of the Act (Special residence requirement--persons engaged in particular kinds of work requiring regular travel outside Australia), on the evidence before the Tribunal, he has not provided any evidence to establish that he satisfied any of the special residence requirements in the Act or the defence service requirement in s 23, at the time of application. Nor has he provided evidence that enliven any of the Minister’s discretions in s 22 of the Act to treat the Applicant as though he was present in Australia during a period when he was not.

19.The Tribunal accepts the Minister’s contention that it would be futile for the Tribunal to grant the extension of time for making the application for review, and notes that the Applicant has an alternative avenue of relief in that he can make a fresh application for citizenship at a time when he meets the mandatory criteria.

20.For the reasons given, it would not be reasonable in all of the circumstances to grant an extension of time for making the application for review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

...........................[SGD]............................................

Associate

Dated: 3 February 2023

Dateof hearing:

Determined on the papers

Applicant:

Self-Represented

SolicitorfortheRespondent:

Ms Xylie Tran

Sparke Helmore