Hanna and Minister for Home Affairs (Citizenship)

[2018] AATA 4622

Hanna and Minister for Home Affairs (Citizenship) [2018] AATA 4622 (20 November 2018)

Division:GENERAL DIVISION

File Number:2018/5105           

Re:Amel Hanna

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 November 2018

Date of written reasons:        18 December 2018

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – whether application for extension of time is reasonable in all the circumstances – whether the applicant rested on her rights – merits of substantive matter – refusal to grant Australian citizenship under Australian Citizenship Act 1975 (Cth) – permanent or enduring physical or mental incapacity – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

18 December 2018

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 20 November 2018. The following paragraphs are the reasons for my decision.

   INTRODUCTION

2. On 21 September 2018, Mrs Amel Hanna lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 18 May 2018 by a delegate of the Minister for Home Affairs (the Minister) to refuse Mrs Hanna’s application for Australian citizenship because she did not meet the requirements of paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (the Act) (the reviewable decision).

3. The Minister opposes the extension of time sought.

4. The application was heard by the Tribunal in Sydney on 20 November 2018. Mrs Hanna attended the hearing and gave oral evidence by teleconference; she was assisted by an interpreter of the Arabic language.

5. I note that Mrs Hanna’s application was heard together with the application made by her daughter, Miss Maryna Bahnam (2018/5102), and I have provided separate decisions for each of these applications.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

6. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

7. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].

8. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased 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 general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)considerations of “fairness as between the applicant and other persons” in a similar position.

9. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) 45 FCR 441, 444.

10. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

    REASONS FOR DELAY

11. The length of delay in Mrs Hanna seeking a review of the reviewable decision is more than three months after the 28 day time limit.

12. In her application to the Tribunal, Mrs Hanna stated:

    Due to my limited English speaking and reading capacity, I was unaware that I had 28 days to lodge the application. Further, I was not advised that I had a limited time frame to lodge the application.

13. Mrs Hanna confirmed in her oral evidence to the Tribunal that she was assisted by a legal secretary to make her application to the Tribunal. She accepted that she received the reviewable decision on 18 May 2018 and gave the decision to her daughter, who is attending high school, to read but said it took her some time to make an appointment to see a lawyer and seek assistance to file her application with the Tribunal. Mrs Hanna also said she was “in pain” and “forgetful”, and this delayed her showing the decision to her daughter and seeing a lawyer.

14. I note the reviewable decision was accompanied by a letter from the Minister’s delegate, also dated 18 May 2018, which set out Mrs Hanna’s review rights to the Tribunal within 28 days of receiving the reviewable decision. I am therefore satisfied that Mrs Hanna was notified about her review rights.

15. I find Mrs Hanna’s explanation for the three month delay indicates she “rested on her rights” and this weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

16. It is in the interests of both the Minister and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.

17. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mrs Hanna’s application. Given the delay of more than three months, I am satisfied that there would be significant prejudice to the Minister and the general public if the extension of time is granted. This factor weighs against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

18. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Mrs Hanna can meet the requirements set out in subsection 21(3) of the Act.

    Relevant legislation and consideration

19. Subsection 21(3) of the Act sets out the requirements for Australian citizenship for a person with a “permanent or enduring physical or mental incapacity”. The provisions of the Act relevant to the substantive application are:

    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

    ...

20. I note there is no information before the Tribunal explaining why Mrs Hanna is seeking review of the reviewable decision and Mrs Hanna has not filed any additional evidence to support the merits of her substantive application.

21. I therefore have regard to the information contained in the reviewable decision, and oral submissions made by the Minister’s representative and Mrs Hanna at the Tribunal hearing.

22. This information sets out that the provisions of the Act require Mrs Hanna show she had a permanent or enduring mental or physical incapacity, as that term is understood under the Act. This would mean that she was not capable of understanding the nature of her application for citizenship at the date she made her application.

23. In the reviewable decision, the Minister’s delegate referred to a report from Dr Mukesh Kumar (consultant psychiatrist) dated 27 July 2016. The delegate noted Dr Kumar opined Mrs Hanna presented with depression in the context of ongoing physical pain. Dr Kumar noted in his report that Mrs Hanna had seen him solely for the purposes of verifying whether she had a physical or mental incapacity for her application for citizenship.

24. The Tribunal does not have a copy of Dr Kumar’s report or any other medical evidence; however, Mrs Hanna confirmed at the Tribunal hearing that she has not seen Dr Kumar or any other psychiatrist for a long period of time and that she gets “annoyed by doctors”. This is not consistent with the Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016, which provides that a person who claims to have a permanent or enduring mental or physical incapacity must be seeing a specialist on a regular basis.

25. In considering the relevant circumstances and the limited evidence before the Tribunal, I find that Mrs Hanna’s substantive application is likely to have limited prospects of success. This weighs against an extension of time being granted.

    CONCLUSION

26. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

    The application for an extension of time is refused.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 18 December 2018

Date(s) of hearing:	20 November 2018
Applicant:	By phone
Solicitors for the Respondent:	Mr Max Gao,  Australian Government Solicitor