Moretta and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1086

Moretta and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1086 (1 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4879

Re:Simona Moretta

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:1 May 2018

Place:Sydney

The application for an extension of time is granted.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether substantive matter has merit – citizenship by conferral – likely to, or will continue to, reside in Australia or maintain a close and continuing association – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

CASES

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

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

REASONS FOR DECISION

Dr L Bygrave, Member

1 May 2018

1. On 14 March 2018, Ms Simona Moretta lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made on 15 July 2015 by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse Ms Moretta’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act) (the reviewable decision).

2. The Minister opposes the extension of time sought.

3. The application was heard by the Tribunal in Sydney on 17 April 2018. Ms Moretta had legal representation; she attended the hearing and gave oral evidence by teleconference.

   BACKGROUND

4. On 9 May 2015, Ms Moretta applied for Australian citizenship by conferral under section 21 of the Act. The application was refused by a delegate of the Minister on 15 July 2015 because Ms Moretta did not satisfy paragraph 21(2)(g) of the Act, which provides that a person must be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing relationship with Australia if their application is approved.

5. Ms Moretta departed Australia on 6 July 2015 and returned on 18 September 2016. Records from the Department of Immigration and Border Protection (the Department) show Ms Moretta contacted the Department by telephone on 9 June 2017 and 12 July 2017. The note details for 12 July 2017 state that Ms Moretta called ‘re decision letter that she states she has not received’.

6. Ms Moretta told the Tribunal she did not receive the reviewable decision made on 15 July 2015 until 20 July 2017; this decision was stamped ‘Certified True Copy Date 12/07/17’. She subsequently applied for a review of the Minister’s decision on 16 August 2017, contending that she is ‘likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia. I returned on 8/9/2016 and have resided in Australia since.’

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

7. 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.

8. 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].

9. 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] 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 respondent or the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)‘[c]onsiderations of fairness as between the applicant and other persons’ in a similar position.

10. 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 [15]; (1993) 45 FCR 441, 444.

11. 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

12. The delay in Ms Moretta seeking a review of the decision is more than two years after the reviewable decision was made on 15 July 2015. I note, however, that Ms Moretta applied to the Tribunal for a review of the reviewable decision less than 28 days after she received a copy of the decision on 20 July 2017 and made this application for an extension of time on 14 March 2018.

13. There was extensive discussion at the Tribunal hearing regarding the process of Ms Moretta receiving the reviewable decision and applying to the Tribunal for an extension of time. In brief, the reviewable decision was posted to Ms Moretta’s residential property address set out in her application for Australian citizenship on or around 15 July 2015. Ms Moretta had departed Australia on 6 July 2015, some nine days earlier, and she told the Tribunal she sold this property prior to leaving Australia. She did not organise for any mail to be forwarded because she received most notices by email. She explained she made her application for Australian citizenship on-line and undertook all communication with the Department by email. She consequently did not anticipate that she would be notified about the Minister’s decision by post. Ms Moretta gave evidence to the Tribunal that, after she returned to Australia on 18 September 2016, she attempted to phone the Department to find out the status of her application but had difficulties. She then contacted her current legal representative to assist her with the process.

14. I note that there is a significant delay from the date of the reviewable decision to the date of Ms Moretta applying to the Tribunal for an extension of time. While I accept Ms Moretta’s explanation for her delay in seeking a review of the decision, I also find that it took Ms Moretta from when she returned to Australia on 18 September 2016 until speaking to the Department on 12 July 2017 before she accessed a copy of the reviewable decision. I am satisfied that she did ‘rest on her rights’ for some of this period of time.

15. While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the 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. Given the extensive period of time since the reviewable decision was made on 15 July 2015, I accept the Minister and the general public would have expectations about the finality of the decision-making process in relation to Ms Moretta’s application.

17. However, I accept the circumstances of Ms Moretta’s application are not usual. She did not receive a copy of the reviewable decision until more than two years after the decision was made. Given these circumstances, I am satisfied that there would be limited prejudice to the Minister and the general public if the extension of time is granted. This factor neither weighs against or for Ms Moretta’s application for 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.

19. The issue in the substantive application is whether Ms Moretta can meet the general eligibility requirements set out in subsection 21(2) of the Act.

    Relevant legislation and consideration

20. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. The provisions of the Act relevant to the substantive application are:

    General eligibility

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

    (a)  is aged 18 or over 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; and

    (c)  satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)  understands the nature of an application under subsection (1); and

    (e)  possesses a basic knowledge of the English language; and

    (f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and 

    (g)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (h)  is of good character at the time of the Minister's decision on the application. [emphasis added]

21. As set out in paragraph 4 above, the Minister’s delegate decided Ms Moretta did not satisfy paragraph 21(2)(g) of the Act, which provides that a person must be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing relationship with Australia if their application is approved.

22. In Ms Moretta’s application for conferral of Australian citizenship lodged electronically on 9 May 2015, she noted that she was intending to depart Australia within the next 12 months:

    Purpose of travel: Returning to Italy

    Proposed date of departure from Australia: 20 Jun 2015

    Length of proposed absence: 8 to 12 months

23. On 26 May 2015, the Department wrote to Ms Moretta seeking evidence that she is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if her application were to be approved.

24. Ms Moretta told the Tribunal she could not recall receiving the Department’s letter dated 26 May 2015. The Minister’s delegate noted in the reviewable decision that because Ms Moretta failed to respond to the Department’s letter dated 26 May 2015 and did not provide evidence about having a close and continuing association with Australia, she did not meet the requirements of paragraph 21(2)(g) of the Act.

25. I note there is currently limited evidence before the Tribunal regarding whether Ms Moretta has a close and continuing association with Australia. Ms Moretta explained to the Tribunal that she returned to Italy in July 2015 because her father was unwell and required her care. She owned a house but sold it prior to leaving Australia. She was not working at this time because her second child had been recently born. Ms Moretta said that both of her children are Australian citizens. Consistent with her travel records, she said she has resided in Australia since 2005 and generally only left the country for short periods of time. She was granted a permanent residence visa on 27 September 2011.

26. As Ms Moretta has resided in Australia since 2005 and her children are Australian citizens, I find that she may be able to show a close and continuing association with Australia if she is provided the opportunity at a Tribunal hearing.

27. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Moretta’s substantive application may have merit. This weighs in favour of the extension of time being granted.

    CONCLUSION

28. Taking into account all of the information before me, I am satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

29. The application for an extension of time is granted.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 1 May 2018

Date(s) of hearing:	17 April 2018
Solicitors for the Applicant:	VL Macri Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers