Mohammed and Minister for Home Affairs (Citizenship) - [2019] AATA 4482

Mohammed and Minister for Home Affairs (Citizenship) [2019] AATA 4482 (9 October 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2019/4510
GENERAL DIVISION  )
Re: Bushra Mohammad

Applicant
And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Member I Fletcher
DATE OF CORRIGENDUM:            25 November 2019
PLACE:           Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

On the first page of the Decision replace “The Tribunal affirms the decision under review” with “The Tribunal refuses to grant the Applicant’s Application for an Extension of Time to lodge an Application for Review”.

Replace the last catchword “decision affirmed” with “refused”.

Paragraph nine to read “The issue is whether the Tribunal should grant the Applicant an extension of time so she can make an application for review of the decision of the Respondent.

……………………………………
Member

Division:GENERAL DIVISION
File Number(s): 2019/4510
Re:Bushra Mohammed
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member I Fletcher
Date:09 October 2019
Place:Perth

The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Member I Fletcher
Catchwords
Application for Australian Citizenship – application for extension of time – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 25(1), 29(3)(a), 29(7)
Australian Citizenship Act 2007 (Cth) – s 52(1)
Cases
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
JLKJ and Minister for Immigration and Border Protection [2019] AATA 716
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
REASONS FOR DECISION
Member I Fletcher
09 October 2019
BACKGROUND

This is an application by Bushra Mohammed (the Applicant) for a review of a decision made by the Delegate of the Respondent (the Delegate), dated 7 January 2019, to refuse the Applicant’s application for citizenship under the Australian Citizenship Act 2007 (Cth) (the Act).
Oral submissions were made by both parties. There was an interpreter for the Applicant at the hearing and she was represented by Ms Amirrah Ahmed. The Respondent was represented by Matthew Sunits, from the Australian Government Solicitor’s Office.
On 15 April 2015 the Applicant lodged an application for Australian citizenship.
On 7 January 2019 the Delegate refused the application on the basis that the Delegate was not satisfied with the Applicant’s identity.
Notice of the Delegate’s decision and the decision record were sent by letter to the Applicant, on 7 January 2019. The relevant time limit for making an application for review in the Administrative Appeals Tribunal (the Tribunal) is 28 calendar days (the Prescribed Period) and this time limit expired on 4 February 2019.
On 25 July 2019, the Applicant lodged an application for an extension of time to seek review of the Delegate’s decision. This was some 171 days (over six months) after the expiration of the Prescribed Period.
The Respondent submitted that the application for an extension of time should be refused.
MATERIAL BEFORE THE TRIBUNAL
The following material was before the Tribunal:
·an Application for Review of Decision, dated 25 July 2019 (Exhibit A1);
·a copy of the notification of refusal of an application for Australian Citizenship by conferral, dated 7 January 2019 (Exhibit A2);
·a copy of Application for extension of time, for making an Application for Review of Decision, dated 25 July 2019 (Exhibit A3);
·a copy of an email in support of Extension of Time request, dated 22 August 2019 (Exhibit A4);
·
a copy of a Statutory Declaration by Bushra Hassan Mohammad, dated

10 October 2016 (Exhibit A5);
·a copy of a notice opposing extension of time dated 16 August 2019 (Exhibit R1);
·
a submission in opposition to extension of time, dated 29 August 2019

(Exhibit R2); and
·a copy of a direction, dated 16 August 2019 (Exhibit T1).
THE ISSUE
The issue is whether the Tribunal should grant the Applicant an extension of time so she can make an application for review of the AAT Tier 1 Decision by the Administrative Appeals Tribunal, General Division (AAT Tier 2 Review).
The Respondent opposes the extension of time.
JURISDICTION
The jurisdiction of the Administrative Appeals Tribunal (the Tribunal) is established by

s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments. Section 52(1) of the Australian Citizenship Act 2007 (Cth) gives the Administrative Appeals Tribunal jurisdiction to conduct this review.
RELEVANT LEGAL PRINCIPLES
Prescribed Time
A person seeking review of a decision must lodge an application with the Tribunal within the prescribed time as required by s 29(3)(a) of the AAT Act.
Extension of Time
Section 29(7) of the AAT Act provides:
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.
The principles for determining an extension of time application are well established, see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.
The factors to be considered include; the prima facie rule that proceedings should be commenced within the Prescribed Period, the extent of the delay, whether there is an acceptable explanation for the delay, whether it would be fair and equitable in all of the circumstances to extend time, and the merits of the substantive application.[1]
[1] The Tribunal has consistently applied these principles, see: Re Rosenzweig and Military Rehabilitation and Compensation Commission (2012) 130 ALD 284 per DP Jarvis and Re Becek and Department of Immigration and Citizenship (2012) 132 ALD 545 per DP Bean; Re Novosel and Comcare (2011) 121 ALD 172 per SM Creyke.
These factors should, however, be read in conjunction with Comcare v A’Hearn (1993)
45 FCR 441, where the Full Court held that while there is no requirement that an acceptable explanation for the delay in lodging the application is provided, such an explanation will ordinarily be given as a relevant matter to be considered.
SUBMISSIONS
The Respondent opposed any extension of time being granted for the following reasons:
(i)the explanation for the delay is inadequate;
(ii)the delay is significant;
(iii)the application lacks merit; and
(iv)it would not be fair and equitable in all the circumstances.
Explanation for delay
The Applicant has included the following explanation in her application for an extension of time for making an application, for review of decision dated 25 July 2019 (Exhibit A3):
Because befor [sic] I recived [sic] this decision It was required by Department of Home affair I have to provid [sic] Iraqi document for my application for my citizenship. I had send them a declaration and writing a latter [sic] and send them my Iraqi Identity document which I advised the department of home affai [sic] I ask my family to send me the document and when I recived [sic] the document and I translated in English and I send it to them on

10th January 2019 and I just recived [sic] the decision later on 7th, 01, 2019. I was waiting to here about the document which I provid [sic] it recently from the department.
The Respondent submitted that the above reasons do not adequately explain why the Applicant could not prepare an application for review within the time period required.
The Applicant through her Representative acknowledged that she was aware of the decision, and was in possession of the letter attached to the decision that explained her rights of review, since 7 January 2019. It may be that this date is incorrect, given the letter was only posted on 7 January 2019, however, there is no indication the Applicant received the letter outside normal postal delivery times.
Given this, the Applicant could and should have commenced her application within the Prescribed Period as required by s 29(3)(a) of the AAT Act.
Length of delay
The application for an extension of time was lodged some 171 days (over 6 months) after the expiration of the Prescribed Period. The Respondent submitted that the delay is inordinate.
The longer the delay, the more persuasive the explanation needs to be,
see Tran v Minister for Immigration and Border Protection [2014] FCA 533.
In WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28] Federal Magistrate Lucev, noted the following, in this case there was a delay of 54 days outside of the time limit for making a valid application:
the delay itself is approximately one and a half times longer than the specified statutory time for filing of the application. Were there no reason for the delay it would likely be a delay of a length fatal to the application to extend time.
(Emphasis Added.)
As explained by the Tribunal above at [22] the Applicant’s application is approximately six times longer than the allowable statutory time for filing an application.
The Respondent submitted the application for an extension of time should be refused since the Applicant has not provided any real reason for the delay, but only simply restated the grounds for her application for review. The Respondent additionally submitted that in the circumstances, coupled with the other factors outlined in the submissions, and in light of policy considerations as to the need for finality in disputes and the efficient use of public resources the application for an extension of time by the Applicant should be refused.
Merits of substantive application
On 24 June 2016 the Applicant provided the Department with a National Identity Card from Iran. On 30 August 2016 the Department wrote to the Applicant to advise that the document had been seized due to the document being identified as counterfeit.
On 13 October 2016 the Applicant provided a statutory declaration which acknowledged that the National Identity Card was a copy of the original. It also stated that the Applicant could not provide an original because the Iranian government had retained a copy of the original when the Applicant left Iran in 2007. The Delegate gave no weight to the statutory declaration.
The Respondent submitted that the Tribunal should also not give weight to the statutory declaration, and, in any event, should find that the Applicant has lied about her identity to the Department on at least one occasion.
The translated document, “Family Record of Residents”, which the Applicant has attached to her AAT application (Exhibit A1), states that her name is ‘Sabiheh’. It also says that her father’s name is ‘Hassan’, her Grandfather’s name is ‘Mohamed’, and her mother’s name and surname is ‘Noorieh Ali’. The document also states that her date of birth is
24 January 1967.
The information on this document does not match any of the various other identities that were found throughout the documents provided to the Delegate, such as:
(i)Bushra Malekshahi, date of birth 1965;
(ii)Bushra Hassan Malekshahi, date of birth 5 May 1965;
(iii)Bushra Hassan Melickshahi, date of birth 5 May 1965; and
(iv)Bushra Hassan Mohammad, date of birth 10 January 1967.
Even if the document is accepted as authentic, which the Respondent does not at this stage accept, the document provides further evidence that the Applicant has previously lied or provided false documents and identities to the Department.
The Respondent submitted that the substantive application for review has little merit as the Tribunal cannot be satisfied, on the current evidence, of the Applicant’s identity.
The Respondent also submitted that the Tribunal should find that the Applicant is not of good character given that she has provided a false document to the Department, and on that basis her application also lacks merit, see JLKJ and Minister for Immigration and Border Protection [2019] AATA 716.
Fair and equitable in all the circumstances
The prejudice to the Applicant if her application for an extension of time is denied is minimal, as there is no bar to her re-applying to the Department for citizenship and attaching the new document that she wishes the Department to consider.
For all of the reasons set out above, the Respondent submitted that the request for an extension of time should be refused.
CONSIDERATION
The Applicant, through her Representative, acknowledged that it had been a considerable time after the expiration of the Prescribed Period and she was not able to expand on the reason for the delay beyond what had been stated at the time of the application requesting an extension of time.
The Applicant further advised that she would be making a new application for Australian citizenship should this application for extension of time be refused.
CONCLUSION
Based on the facts presented by the Respondent and the Applicant, it is the Tribunal’s decision that the application for the extension of time should be refused for the following reasons:
(i)the explanation for the delay is inadequate;
(ii)the delay is significant;
(iii)the application lacks merit; and
(iv)it would not be fair and equitable in all the circumstances.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

.........................[sgd]...............................................
Associate
Dated: 9 October 2019

Date(s) of hearing: 27 September 2019

Counsel for the Applicant: Amirrah Ahmed

Counsel for the Respondent: Matthew Sunits

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	27 September 2019
Counsel for the Applicant:	Amirrah Ahmed
Counsel for the Respondent:	Matthew Sunits
Solicitors for the Respondent:	Australian Government Solicitor