Hanna and Minister for Home Affairs (Citizenship)

[2019] AATA 1

Hanna and Minister for Home Affairs (Citizenship) [2019] AATA 1 (3 January 2019)

Division:GENERAL DIVISION

File Number:           2018/4467

Re:Joumana Hanna

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:3 January 2019

Place:Sydney

The Tribunal grants the Applicant an extension of time to lodge an application for review of the Reviewable Decision

........................................................................

Senior Member Linda Kirk

CATCHWORDS

EXTENSION OF TIME – citizenship - application for conferral of Australian citizenship – refusal of citizenship application on the grounds the Applicant did not satisfy s 21(3)(d) of the Australian Citizenship Act – permanent or enduring physical or mental incapacity – principles to be applied – whether the applicant rested on her rights - extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brown v Federal Commissioner of Taxation [1999] FCA 563

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Wu v University of Western Sydney [2011] FCA 1143

Phillips v Australian Girls’ Choir [2001] FMCA 109

O’Gorman and Comcare (Compensation) [2017] AATA 2192

Comcare v A’Hearn (1993) 45 FCR 441

Zizza v Federal Commissioner of Taxation [1999] FCA 848

Berkelaar v Comcare [1997] AATA 12015

Moretta and Minister for Immigration and Border Protection [2018] AATA 1086

Re Grafton and Commonwealth (1988) 16 ALD 533

Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 244

Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

Jamal v Secretary, Department of Social Services [2018] FCA 513

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76

Brown v Federal Commissioner of Taxation [1999] FCA 563

Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1

Kim and Minister for Immigration and Border Protection [2018] AATA 155

REASONS FOR DECISION

Senior Member Linda Kirk

3 January 2019

BACKGROUND AND APPLICATION

1. On 28 September 2016 Mrs Joumana Hanna (‘the Applicant’) lodged an application for Australian citizenship by conferral under sub-section 21(3) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). 

2. On 9 March 2018 the application was refused by a delegate of the Minister for Home Affairs (‘the Respondent’) and the Applicant was notified of the refusal decision by letter of the same date. The grounds for the refusal were that the Applicant had not produced evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means that she is not capable of successfully undertaking the citizenship test to satisfy s 21(3)(d) of the Act (‘the Reviewable Decision’). The refusal decision notified the Applicant of her review rights. 

3. On 8 August 2018, the Applicant lodged an application with this Tribunal for review of the delegate’s decision. At this time, the time for making an application for review of the delegate’s decision had expired. Under section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), applications for review must be made within 28 days of the date of receipt of the reviewable decision.

4. On 17 August 2018 the Applicant lodged an application under sub-section 29(7) of the AAT Act seeking an extension of time to make an application for review of the Reviewable Decision. A number of supporting documents were lodged with the application including a letter dated 28 June 2018 from the Applicant’s Federal Member, Dr Mike Freelander.

5. Pursuant to ss 29(9) and 29(10) of the AAT Act, the Respondent was notified of this application for an extension of time and asked to advise whether or not it objected to an extension of time being granted.

6. On 20 September 2018, the Respondent lodged with the Tribunal a Notice of Opposing Application for Extension of Time.  It detailed the following objections to the application:

   (a)the delay in lodging the application of five months was significant,

   (b)there was no sufficient explanation for the delay;

   (c)the application itself had limited prospects of success; and

   (d)it is not fair to grant the extension of time when the Applicant chose not to pursue review for an extended period.

7. The application for extension of time was heard by the Tribunal at an interlocutory hearing in Sydney on 24 October 2018. The Applicant attended the hearing and gave oral evidence by way of teleconference. She was assisted by her husband, Daniel Hanna and an interpreter in the Arabic and English languages.

8. The following material was before the Tribunal:

   ·the Applicant’s Application for Extension of Time dated 17 August 2018;

   ·the notification of refusal of the Applicant’s application for Australian citizenship by conferral and the decision record of the delegate on the application for conferral of Australian citizenship both dated 9 March 2018; and

   ·a Notice of Opposing Application for Extension of Time lodged by the Respondent with the Tribunal on 20 September 2018.

9. The issue for the Tribunal is whether or not the application for an extension of time should be granted.

   LAW RELEVANT TO EXTENSION OF TIME APPLICATIONS

   Statutory framework for extensions of time

10. In Brisbane South Regional Health Authority v Taylor,[1] McHugh J provided four reasons why time limitation periods are an important part of the legal process:

    First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

    The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

    [1] (1996) 186 CLR 541 at [552]-[553].

11. His Honour also noted that:

    An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[2]

    [2] Ibid at [551].

12. Sub-section 29(7) of the AAT Act permits the Tribunal to extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so.’

13. In making this determination, the Tribunal is guided by the considerable authority as to the circumstances that must exist for it to be satisfied that it is reasonable in all the circumstances to grant an extension of time.

    Relevant Authorities

14. It is generally accepted that the “check-list” of principles outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[3] should guide the Tribunal in determining extension of time applications. The list is as follows:

    (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay;

    (d)whether the respondent or the general public would suffer any prejudice as a result of the extension;

    (e)the merits of the substantial application; and

    (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.

    [3] (1984) 3 FCR 344 (“Hunter Valley”) at 348 and 349.

15. Wilcox J emphasised that there is a ‘prima facie rule’ that applications made outside the prescribed time limits will not be entertained, and that the court or tribunal must be satisfied that it is appropriate in the circumstances to exercise its discretion to grant an extension of time at [18]:

    Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” ... is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[4]

    [4] Ibid at 348.

16. 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, the principles are “… to guide, not in any exhaustive manner, the exercise of the Court’s discretion” (at [17]).

17. The principles in Hunter Valley have been expressed and applied with some variations and modifications in a number of cases: see for example Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown); Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; and Wu v University of Western Sydney [2011] FCA 1143.

18. In Phillips v Australian Girls’ Choir [2001] FMCA 109 at [10], McInnis FM provided a version of the principles outlined by Wilcox J which take into account modifications made by other courts in considering the Hunter Valley principles:

    1There 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).

    2It 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).

    3Action 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).

    4Any 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).

    5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6The 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).

    7Considerations 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).

19. While the Hunter Valley principles provide general guidance to the Tribunal, each case must be considered according to its own circumstances in determining whether to grant an extension of time. In Comcare v A’Hearn, the Federal Court emphasised that the principles “are not to be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion, although it is to be expected that such an explanation will normally be given.”[5] In Brown, Hill J emphasised that the Tribunal should be “… guided by what the justice of the case requires” (at [59]). The Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848.

    [5] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441, 444.

    CONSIDERATION AND REASONS

20. Having regard to the relevant law and authorities, the Tribunal turns to consider the Respondent’s grounds for opposing the extension of time application.

    Extent of delay in lodging application for review

21. The Respondent’s first objection is the extent of the delay in lodging the application for review.

22. The delay in lodging the application for review is a period of some five months. The delegate’s decision was made on 9 March 2018 and notified to the Applicant on the same date. She lodged her application for review on 8 August 2018 and filed an application for an extension of time after a further nine days.

23. In Berkelaar v Comcare,[6] a delay of five years in lodging an application was found not to be excessive in the particular circumstances of that case. Similarly, in Moretta and Minister for Immigration and Border Protection,[7] the Tribunal found that the circumstances warranted the grant of an extension of time where the application was delayed by more than two years.

    [6] [1997] AATA 12015.

    [7] Moretta and Minister for Immigration and Border Protection [2018] AATA 1086 at [12]-[14].

24. The Tribunal considers that the delay of five months is considerable but not excessive. This factor weighs neither in favour or against the grant of the extension of time.

    Explanation for the delay

25. The Respondent’s second objection to the extension of time is that no explanation was given by the Applicant for the delay in lodging the application for review.

26. In its written submissions in the Notice of Opposing Application for Extension of Time, the Respondent pointed out that the Applicant provided no explanation for the delay on the Application for Extension of Time. The supporting documentation she provided indicated that she sought assistance from Dr Freelander MP who contacted the Minister for Citizenship and Multicultural Affairs (‘the Minister’) on her behalf. The Respondent argued that the Applicant appears to have chosen to ‘rest on her rights’ and to pursue alternative avenues: Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 244 and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381.

27. The Applicant’s evidence at the hearing was that she made the ‘mistake’ of not going to the Tribunal. She sought advice from her Federal Member who in turn sought the assistance of the Minister. When this was unsuccessful she decided to lodge an application for review with the Tribunal.

    Awareness of appeal rights

28. The Applicant told the Tribunal that when she received the refusal letter she did not read it to the end and therefore she did not know she could seek review of the decision at the Tribunal.

29. On the basis of the evidence before it, the Tribunal finds that the Applicant made a decision not to lodge an application for review as she believed that she would have greater success approaching her local Federal Member and asking him to provide her with assistance. This does not provide an adequate explanation for the delay in lodging her application for review and suggests that the Applicant was aware of her right to lodge an application for review, but chose to ‘rest on her rights’ and pursue another course of action to have her application for citizenship approved.

30. This consideration weighs against the grant of an extension of time, however the Tribunal must consider the other factors relevant to the Applicant’s circumstances.

    Prospects of success of the substantive application

31. The third element of the Respondent’s objection is that the substantive application has limited prospect of success on the current evidence. 

32. The prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time. 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. Where an application relates to a matter with no genuine prospect of success, it should not be granted, in line with the principles laid down by the Federal Court in Jamal v Secretary, Department of Social Services.[8]

    [8] [2018] FCA 513 at [6].

33. In determining the prospects of success, the Tribunal should not 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. Instead the Tribunal should assess whether the Applicant has an arguable case: Brown v Federal Commissioner of Taxation [1999] FCA 563.

34. The Tribunal must consider the provisions relevant to the conferral of Australian citizenship under the Act and the evidence required for the Applicant to establish her eligibility. It can then form a view as to the merits of the substantive application for review.

    Eligibility for Australian Citizenship

35. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. The provisions of the Act relevant to the substantive review application are:

    General eligibility

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (e) possesses a basic knowledge of the English language; and

    (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    …

    Permanent or enduring physical or mental incapacity

36. Subsection 21(3) of the Act provides an exemption from sitting the citizenship test for a person who has a ‘permanent or enduring physical or mental incapacity.’

    Permanent or enduring physical or mental incapacity

    (3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (d) 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; and

    …

37. In a letter to the Applicant dated 9 October 2017, the Respondent invited her to obtain specific medical evidence which addressed the statutory test in s 21(3)(d) of the Act. The Applicant obtained further evidence but this did not address the criteria specified in the sub-section. 

38. The Respondent argued that the evidence required needs to be quite specific and it needs to address how the Applicant’s condition impacts on her ability to study for the test and her capacity to undertake the test. In the absence of such specific evidence, she will not be able to meet the criteria to be exempt from the test.

1. The Applicant told the Tribunal that she has been undergoing one operation every nine months for the past five years. She has six screws in her back and she cannot sit for longer than five minutes. A sixth operation is planned and she also needs a cortisone injection because she suffers from inflammation. When she goes in the car to the specialist her husband drives and she has to recline the seat. She cannot sit for longer than five minutes and she is always lying on the bed. She is taking a lot of painkillers and these affect her ability to concentrate and complete the test.  The GP visits her at home and she is receiving assistance from the NDIS for cleaning services. She cannot sit the citizenship test because she is unable to sit at all. She told the Tribunal that she has ‘lots of evidence for the AAT from the specialist’. She needs to know specifically which doctor or specialist she needs to provide evidence from in relation to her condition.

2. On the basis of the evidence before it, and having regard to the specific provision under which the Applicant is applying for the conferral of citizenship, the Tribunal is satisfied that the substantive review application has some prospect of success if the Applicant is able to provide the medical evidence necessary to satisfy the requirements of the statutory test in s 21(3)(d) of the Act.

   Prejudice to the Respondent and general public

3. It is in the interests of both the Respondent and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to review processes. The 28 day time frame prescribed in s 29(2) of the AAT Act is to facilitate the statutory objectives of the Tribunal and to ensure its decision-making is accessible, fair and efficient.

4. The length of delay in this case is considerable having regard to the 28 day time frame for the lodging of a review application. Granting extensions of time and thereby permitting delays in the finalisation of reviews creates a burden on the merits review system and thereby potentially disadvantages others seeking to access it. This in turn prejudices the wider community and undermines public confidence in the integrity of the system: Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1 at [19]); Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [33]-[34].

5. The Tribunal has considered the prejudice to the Respondent and the wider community of the grant of the extension of time. Other than having to respond to the Applicant’s 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 to be granted and the wider community would not be unduly affected by the grant of an extension of time in these circumstances.

   CONCLUSION

6. After considering all of the relevant circumstances and weighing the available evidence before it, the Tribunal finds that the Applicant’s delay in making the application for review is considerable but not excessive, there is no prejudice to the Respondent from the granting of an extension of time, and the Applicant’s substantive application for review is not without merit and should be considered by the Tribunal at a substantive hearing.  Weighed against this is the Tribunal’s finding that the Applicant’s delay in lodging her application for review suggested that she had rested on her rights, and to grant an extension of time in such circumstances has the potential to undermine the accepted public interest in the finality of decision-making.

7. Having regard to the relevant authorities and the established principles in relation to the grant of an extension of time, and being ‘guided by what the justice of the case requires’, the Tribunal is satisfied that on balance it is reasonable in the circumstances to grant an extension of time for the Applicant to lodge an application for review of the Reviewable Decision.

   DECISION

8. The Tribunal grants the Applicant an extension of time to lodge an application for review of the Reviewable Decision.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.............................[sgd]...........................................

Associate

Dated: 3 January 2019

Date(s) of hearing:	24 October 2018
Date final submissions received:	31 October 2018
Applicant:	In person
Advocate for the Applicant:	Daniel Hanna
Solicitors for the Respondent:	Laura Crick