LWQH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 3855

LWQH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3855 (1 October 2020)

Division:GENERAL DIVISION

File Number(s):      2020/4570

Re:LWQH  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:1 October 2020

Place:Sydney

The extension of time application is refused.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application –  citizenship by conferral – permanent resident – principles to be applied – explanation for delay – merits of substantive matter – whether extension of time reasonable in all the circumstances – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

CASES

Comcare v A’Hearn (1993) FCA 498; 45 FCR 441

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

REASONS FOR DECISION

Senior Member A Poljak

1 October 2020

1. LWQH, the applicant, was born in Belgium and is a New Zealand citizen. He arrived in Australia on 28 December 2002. The applicant applied for Australian citizenship by conferral on 4 March 2019 (citizenship application). At the time of application, he was 16 years of age.

2. The applicant’s citizenship application was refused on 18 February 2020 as it was found that he did not satisfy all of the requirements under subsection 21(5) of the Australian Citizenship Act 2007 (Cth) (the Act). The applicant seeks review of this decision (decision and substantive matter) however he applied for review in this Tribunal outside of the statutory time period.

3. These interlocutory proceedings concern an application for an extension of time with respect to the substantive matter, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The respondent opposes the extension of time sought.

   PRINCIPLES TO BE APPLIED

4. Ordinarily, 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 pursuant to paragraph 29(2)(a) 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” pursuant to subsection 29(7) of the AAT Act.

5. The principles to be applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities, although “not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and 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”, allowing 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 is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account;

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

6. 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) FCA 498; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

7. The only principles of concern in this matter are the reasons for delay on applying for review and the merits of the substantive matter.

   DELAY

8. The applicant received the decision on 24 February 2020 and had 28 days from that date to apply to the Tribunal for review; by 23 March 2020. The applicant filed an application for review on 24 July 2020 and sought an extension of time on 6 August 2020. The application was approximately 136 days out of time which is a significant delay.  The length of delay weighs against the granting of an extension of time.

9. The applicant’s parents advised that the reason for the delay in applying for review of the decision within time was due to several cumulative circumstances. Namely, due to the confusion, misinformation and issues related to the COVID-19 lockdown. The applicant’s parents advised at hearing that they failed to prioritise filing an application for review because they were dealing with home schooling the applicant, who was preparing for his HSC, and work issues resulting from the COVID-19 lockdown. In addition, the applicant’s parents provided a copy of correspondence from the Department of Home Affairs dated 7 January 2020, which advised that the applicant was required to sit the citizenship test on 13 February 2020 at its Parramatta office. At hearing, they advised that upon presenting to the Parramatta office on 13 February 2020, they were told that the applicant wasn’t required to sit the citizenship test as he was already granted Australian citizenship. The respondent advised at hearing that he was not aware of the correspondence and could not explain why the applicant’s parents were given incorrect information.

10. I accept that the applicant’s parents were given incorrect information on 13 February 2020 which caused confusion as to the status of the applicant’s citizenship application. Coupled with the difficulties faced by the COVID-19 restrictions, I accept that the explanation provided for the delay is adequate. This weighs in favour of granting an extension of time.

    MERITS OF SUBSTANTIVE MATTER

11. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of the application under review.

12. The respondent contends the applicant’s substantive application has no prospects of success as he does not satisfy the requirement for citizenship by conferral in paragraph 21(5)(b) of the Act. Paragraph 21(5)(b) provides:

    Person aged under 18

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

    (a)  is aged under 18 at the time the person made the application; and

    (b)  is a permanent resident:

    (i)  at the time the person made the application; and

    (ii)  at the time of the Minister’s decision on the application.

13. For the applicant to be eligible to become an Australian citizen he must satisfy all of the criteria under subsection 21(5) of the Act. Unfortunately, at the time of making his application for Australian citizenship and at the time of the Minister’s decision, the applicant was not a permanent resident as required by paragraph 21(5)(b).

14. It appears from departmental records that the applicant’s subclass 176 permanent visa expired on 4 August 2015 when he departed Australia. On his return, he was granted a subclass 444 (Special Category) visa as a result of his New Zealand citizenship. This is a temporary visa.

15. While I note that the applicant’s parents feel frustrated that they were not made aware of the applicant’s visa status when his permanent visa ceased and again when he was granted a temporary visa on his return to Australia, it is the responsibility of the visa holder to be aware of their visa status at all times.

    DECISION

16. For the above reasons, I find that the applicant has no prospects of success in the substantive hearing. As such, to grant the extension of time application would be futile.

17. The applicant is able to apply for Australian citizenship again at any time.

18. The extension of time application is refused.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 1 October 2020

Date(s) of hearing:	18 September 2020
Advocates for the Applicant:	Applicant’s parents
Solicitors for the Respondent:	Sparke Helmore Lawyers