Kuron and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1330

Kuron and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1330 (23 May 2018)

Division:GENERAL DIVISION

File Number:           2018/1092

Re:Noel Kuron  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member R. Cameron

Date:23 May 2018

Place:Melbourne

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal extends the time in which the Applicant may make an application for review of the Respondent’s decision, dated 22 May 2017, until 2 March 2018.

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

Senior Member R. Cameron

CATCHWORDS

PRACTICE AND PROCEDURE – application for an extension of time in which to lodge an application for review – significant delay – departmental email attaching decision arrived in Applicant’s junk email folder – significant period of time between Applicant making application for citizenship and department acting on that application – acceptable explanation for delay – Applicant did not rest on his rights – no prejudice to the Respondent – application not without some prospects for success – application for extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 29

CASES

Duong v Australian Postal Corporation (2005) 41 AAR 288
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member R. Cameron

23 May 2018

BACKGROUND

1. This is an application by Mr Noel Kuron under section 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for an extension of time to lodge an application seeking the review of a decision made by the Respondent on 22 May 2017 refusing his application for Australian citizenship by conferral.[1]

   [1] The Applicant appeared for himself during the course of this application. He did not file any written submissions, nor did the Respondent file any written submissions.

2. The Applicant lodged his application for conferral of Australian citizenship with the Department of Immigration and Border Protection (“the Department”) on or about 20 November 2014.

3. Apparently, at the time of lodging such application he requested that communications with him be by email. The issue of the sending and receipt of emails between the Applicant and the Respondent is at the hub of the issues in this matter.

4. For reasons that have not been explained to the Tribunal and are not really relevant, the application on the part of the Applicant for conferral of Australian citizenship took some time to be processed. This fact is mentioned because it does assume some relevance in terms of the reasonable expectations on the part of the Applicant which will be touched on later in these reasons.

5. Some years after his application was lodged the Respondent sent a letter by email on 7 April 2017 to the Applicant advising him that information had come into the possession of the Department which indicated that he may not be of good character for the purposes of the consideration of his citizenship application. Particulars were provided to the Applicant of the information concerned which related to a series of driving offences committed by him in the years 2015 and 2016. He was invited to provide further information to the Department and make any further comment or submissions as he saw fit relevant to the issue of whether he was of good character.

6. It is not disputed that the Applicant received the email from the Department of 7 April 2017 referred to above. This was further confirmed by reason of the fact that, on 13 April 2017, the Department received an email from the Applicant in response to its earlier email of 7 April 2017. The email from the Applicant provided an explanation for the conduct that had been referred to earlier by the Department in its 7 April 2017 email.

7. It should be noted that the email of 7 April 2017 sent to the Applicant by the Department was to the same email address that has been referred to throughout this application. The email sent on 13 April 2017 by the Applicant to the Department was sent from the same email address as the one the Department sent to on 7 April 2017.

8. As observed previously, the Respondent made a decision with respect to the Applicant’s application for Australian citizenship by conferral on 22 May 2017. The decision was to refuse the application. Ms Helsdon, who appeared on behalf of the Respondent, informed the Tribunal that the decision was emailed to the Respondent at the same email address which had been used by both the Respondent and the Applicant in the exchange in April of that year.[2]

   [2] Whilst the covering email to which the notification of refusal of the application for Australian citizenship by conferral was not before the Tribunal, Ms Helsdon candidly informed the Tribunal that she had a copy of the covering email sent by the Department to the Applicant.

9. The Respondent, in response to a request by the Tribunal, undertook to make enquiries which revealed that the notice of decision dated 22 May 2017 was only sent to the Applicant by email. It was not sent to the Applicant by conventional post.

10. The Applicant informed the Tribunal that he did not find out about the notification of refusal of his application for Australian citizenship by conferral until he examined the contents of his junk box for his email account earlier this year. When probed as to why he undertook an examination of his junk box with respect to that email account he informed the Tribunal that the people at his work and sent him emails which he couldn’t find (Presumably, they informed him that they had sent him emails of some concern). This alert by his employers or people concerned with his place of work prompted him to conduct a thorough examination of his junk box and it was then and only then he says that he became aware of the decision having been made on 22 May 2017.

11. Armed with the knowledge that a decision had been made on 22 May 2017, the Applicant on 2 March 2018 lodged with the Tribunal an Application for Review of Decision. Lest it needs to be said this application was well and truly out of time. That is so by virtue of section 29(2)(a) of the AAT Act, which provides that an application for review of a decision must be lodged within 28 days after the day on which a person receives a document setting out the material questions of fact and reasons for decision.

12. Once the Applicant was apprised of the fact that he was out of time, he lodged an application for an extension of time within which to seek review of the decision on 21 March 2018.

13. The Respondent opposed the Applicant’s application for an extension of time under section 29(7) on several grounds. Those grounds were as follows:

    (a)There was no satisfactory explanation for the delay;

    (b)The delay is significant; and

    (c)Any substantive review application would have limited prospects of success.

    CONSIDERATION.

14. Section 29(7) of the AAT Act prescribes:

    “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.”

15. The Applicant provided an explanation to the Tribunal as to why the notification of the refusal of his application for Australian citizenship by conferral did not come to his attention. If the explanation is accepted by the Tribunal it is considered that the delay is obviously understandable and it cannot really be said that the Applicant should bear any blame for such delay. This also has to be looked at in the circumstances with some degree of realism. As noted earlier, his application for the conferral of Australian citizenship was lodged on 20 November 2014. There appears to have been little progress with the application until he received the emails referred to earlier in April 2017. This observation is not in any way intended to be a criticism of the Department, but it does provide some contextual consideration of why someone in the position of the Applicant would not see fit to search his junk email box in the circumstances where there had been a significant lapse of time between first lodging the application and hearing anything from the Department at all.

16. In this setting, it is considered that the delay is not necessarily as significant as the Respondent might have had the Tribunal believe. In the circumstances, having had the opportunity to hear the explanation of the Applicant and considering that, in the light of the known facts concerning the progress of the application as referred to above, the preponderance of the evidence favours accepting the Applicant’s explanation. That explanation being that he only became aware of the notification of refusal after he had been alerted to the fact that he had not received another email from his employer or people at work. This then prompted him to check the contents of his junk box.

17. In these circumstances, lest it needs to be repeated, there has now been a satisfactory explanation for the delay and the delay so being explained away is not considered by the Tribunal to be overly significant.

18. It is now appropriate to consider what the applicable principles are to be applied by the Tribunal when entertaining an extension of time application.

19. There is a fairly well-worn pathway in terms of the applicable principles which have been distilled in several leading cases.[3]

    [3] See for instance Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Duong v Australian Postal Corporation (2005) 41 AAR 288.

20. These general principles are as follows:

    (a)Prima Facie, proceedings should be commenced within the prescribed period. If an application for review is not made within the prescribed period an applicant seeking an extension of time must show “an acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    (b)Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded;

    (c)Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension;

    (d)However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application;

    (e)The merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and

    (f)Considerations of fairness between the applicants and other persons in a like position are relevant to the manner of the exercise of the discretion.

21. The explanation for the delay has been noted above and it is considered that it is an acceptable explanation. Therefore, the first of the principles outlined above weighs in the Applicant’s favour.

22. With respect to the second principle noted above, the time that the application took to be processed weighs against the Respondent and it does not seem to be capable of seriously being asserted that the Applicant in these circumstances has rested on his rights. Given the history of the matter, he ultimately could not have been surprised that it took some time for a decision to arrive. It would not have prompted him to conduct a search for it or make other enquires of the Department.

23. No prejudice was identified by the Respondent. There is nothing that emerges from the material one way or the other on this question and therefore the third and fourth principles do not weigh heavily in the Tribunal’s consideration. However, it has to be repeated that, given that the Respondent did not identify any prejudice this ultimately would weigh in favour of the Applicant being granted leave.

24. No real submissions were directed towards the merits of the application. However a consideration of the material contained in the decision shows that the Applicant was convicted and fined with respect to four driving offences in the State of New South Wales in the years 2015 and 2016. It is not the role of the Tribunal on interlocutory applications such as this to assess the merits or the demerits of the case on the part of the Applicant. However, on a brief consideration of the material confined to the decision itself it cannot be said that the Application is not without some prospects of success. Therefore, the Tribunal would be reluctant to shut the Applicant out from pursuing the application in the circumstances.

25. Finally, with respect to the sixth principle, it does not strictly seem to apply to the facts of this case one way or the other.

26. Therefore, in the circumstances and given the matters outlined above, it is the conclusion of the Tribunal that the Application made by the Applicant for an extension of time under section 29(7) of the AAT Act should be granted. The time for lodging the application for review is extended until 2 March 2018, being the date on which the applicant lodged a completed Application for Review of Decision form.

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

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

Associate

Dated: 23 May 2018

Date of interlocutory hearing:	9 May 2018
Applicant:	In person
Advocate for the Respondent:	Ms Leith Helsdon
Solicitors for the Respondent:	Sparke Helmore