Mohammad Nijaat and Minister for Immigration and Border Protection

[2014] AATA 717

[2014] AATA 717

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4304
Re	Mohammad Nijaat
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	24 September 2014
Date of written reasons	2 October 2014
Place	Sydney

The application for an extension of time to lodge an application with the tribunal is refused.

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

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE — Application for extension of time — application for review lodged outside prescribed period — factors relevant to an extension of time –– prospects of success remote — application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth) – ss 21(2)(h)  

CASES

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member A K Britton
2 October 2014

EDITED EXTRACT FROM TRASCRIPT OF PROCEEDINGS

1. A person seeking review by the AAT of a decision made by the Minister for Immigration and Border Protection, to refuse their application for Australian citizenship, must make an application for review to the AAT within 28 days of receiving notice of that decision. Mr Mohammad Nijaat applies to the AAT for review of a decision to refuse his application for Australian citizenship. His application is out of time by about five days and cannot proceed unless the tribunal exercises the power conferred by s 29(7) of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for making an application. The Tribunal may exercise that power if “satisfied that it is reasonable in all the circumstances to do so”.

2. The AAT Act does not prescribe the factors that must be taken into account in deciding whether the discretionary power to extend time should be exercised. In making that decision today I am guided by the principles enunciated by Wilcox J in Hunter Valley Developments v Cohen (1984), 3 FCR 344 (Hunter Valley). Those relevant in the matter appear to be:

   (a)while special circumstances need not be shown, applications for an extension of time are not to be granted, unless the tribunal is positively satisfied that it is proper to do so

   (b)the applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time

   (c)the prejudice, if any, the respondent might suffer if the application to extend time were granted

   (d)the merits of the substantive application.

3. As Wilcox J emphasised in Hunter Valley, this list of factors is non-exhaustive.

4. The Minister opposes Mr Nijaat’s application for an extension of time. He contends that the substantive application has insufficient prospects of success.

   Has an acceptable explanation for the delay been provided?

5. There is no argument that the Minister complied with the statutory obligation to notify Mr Nijaat of his right to seek review, and of the time-limit for making an application to the tribunal. Nor is there any argument that when notified of that decision, Mr Nijaat understood that a statutory time-limit attached to his right of review.

6. In these proceedings, Mr Nijaat said he made his application out of time for a combination of reasons. First, financial difficulties he was experiencing at the time, and the need to transfer money to his mother, who resides in Pakistan. Second, as he stated in his application for an extension of time, the Minister’s decision was “a big shock to him” and it took him some time to absorb its significance. Third, work pressures, mainly working significant overtime, which left him with little time to deal with the decision.  

7. While unsupported these claims are not implausible. While not the most compelling explanation, in my opinion it is acceptable.

   Merits of the substantive application

8. The Minister contends that the prospects of the substantive application succeeding are poor. Before addressing that issue, it is necessary to examine the decision, the subject of Mr Nijaat’s application for review.

9. A person applying for Australian citizenship must satisfy a number of criteria, including being of good character: section 21(2)(h) of the Australian Citizenship Act 2007 (Cth). The delegate who made the decision to refuse Mr Nijaat’s application for citizenship found that he was not of good character, given his criminal history which included offences of violence and resulted in Mr Nijaat being fined and placed under a bond to be of good behaviour for a period of two years. That bond expired on 21 July 2013. The delegate reasoned that the offences were serious in nature and insufficient time had elapsed since the offences were committed and the bond to which Mr Nijaat was subjected had expired. The delegate concluded that the evidence relied on by Mr Nijaat in support of his contention that he was of good character was insufficient to rebut the presumption created by his criminal history.

   Should the power to extend time be exercised? 

10. Time limits are supposed to bring finality to the decision-making process, and are important in a merits review jurisdiction. This is not an absolute value, however; once the threshold issue of an acceptable explanation is resolved, the question must be whether or not justice can be done to both parties, if the matter proceeds to a hearing on the merits. It is to those questions that the factors outlined by Wilcox J in Hunter Valley are ultimately directed.

11. Had Mr Nijaat made his application within time, he would have been entitled to have the decision to refuse his application for Australian citizenship reviewed, irrespective of whether that application had reasonable prospects of success. Nonetheless, being made outside time, his application cannot proceed unless I am satisfied that it is reasonable in all the circumstances to extend time for the making of his application for review.

12. As noted, while the explanation he gave for failing to make his application within time is not compelling, I accept it is adequate. Having crossed that threshold, it is necessary to decide whether, having regard to the factors listed by Wilcox J in Hunter Valley, the power to extend time should be granted.

13. There is strength in the argument put by Ms Warner Knight for the Minister, that if Mr Nijaat is unsuccessful in this application — the application for an extension of time — he could again, at some later date, make another application for citizenship. There is also some strength in the argument that if Mr Nijaat is permitted to proceed with his application for review, and is ultimately unsuccessful, that would arguably be a poor use of Commonwealth resources, both by the Minister and the tribunal.

14. I agree that, in essence, this case turns on the strength of the prospects of success of the substantive application.  It could not be said that the substantive application has no prospects of success. It is a matter of common knowledge that different decision-makers will reach different conclusions about whether a person is of good character. It may be that by the time his application in the Tribunal proceeds to hearing, Mr Nijaat is able to remedy the shortcomings in the character references and supporting material identified by the original decision-maker. It may also be that Mr Nijaat will be better placed at hearing to put forward evidence to support the proposition he advanced today:  that the offences he committed were a one-off aberration, and not a reflection of his intrinsic character and values.

15. I cannot rule out the possibility that if the application were to proceed to determination, Mr Nijaat might be successful. However, given that the bond under which he was placed expired only in the middle of last year, and the offences for which he was convicted, while not at the most serious end of the scale, were serious in nature, I think it can safely be said that the prospects of him succeeding at this point in time, even if some of the shortcomings in his original application were to be addressed, are remote.

16. On balance, I think this is a case where, notwithstanding the relatively short period the application is out of time, leave should not be granted for the application to proceed. Therefore I refuse Mr Nijaat’s application.

17. Mr Nijaat, I emphasise that this does not prevent you from making an application at some point in the future, and has no bearing on the success or otherwise of that application. As I have indicated, you are free to make a further application for citizenship, and the decision that I make today will have no bearing on the ultimate outcome of that application.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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

Associate

Dated 2 October 2014

Date(s) of hearing	24 September 2014
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor