Mpofu and Minister for Home Affairs (Citizenship)
[2018] AATA 1344
•25 May 2018
Mpofu and Minister for Home Affairs (Citizenship) [2018] AATA 1344 (25 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1643
Re:Ngonidzashe Mpofu
APPLICANT
Minister for Home Affairs And
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:25 May 2018
Place:Sydney
The application for an extension of time is refused.
....................[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 – prejudice – whether substantive matter has merit – citizenship by conferral – general and special residence requirements – defence service requirement – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C, 23, 24
CASES
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SECONDARY MATERIALS
Legislative Instrument IMMI 13/056
REASONS FOR DECISION
Dr L Bygrave, Member
25 May 2018
On 27 March 2018, Ms Ngonidzashe Mpofu 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 19 February 2018 by a delegate of the Minister for Home Affairs (the Minister). This decision was to refuse Ms Mpofu’s application for Australian citizenship because she did not satisfy the general residence requirements set out in sections 21 and 22 of the Australian Citizenship Act 2007 (Cth) (the Act).
The Minister opposes the extension of time sought.
The application was heard by the Administrative Appeals Tribunal (the Tribunal) in Sydney on 10 May 2018. Ms Mpofu appeared by telephone and provided oral submissions to the Tribunal; the Minister’s representative also appeared by telephone and relied on written submissions dated 9 May 2018.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
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.
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].
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.
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.
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
The delay in Ms Mpofu seeking a review of the decision is one week after the 28 day limit. In her application for an extension of time, Ms Mpofu wrote:
I was tied down with doctoral study Rehabilitation Psychology / Rehabilitation Counsellor Education preliminary exams to submit at my University of Wisconsin-Madison program. The initial deadline was during that time and I missed it by one week…
Ms Mpofu told the Tribunal that she received the decision made by the Minister’s delegate by email on 19 February 2018 and put the decision aside because she was upset her application for Australian citizenship was refused. She was aware of her appeal rights to the Tribunal but missed the 28 day limit due to a hectic period of full-time PhD study, exams and teaching commitments. Ms Mpofu explained that when she realised she had missed the 28 day limit, she immediately lodged her application for an extension of time with the Tribunal. I note the period of one week is not a significant delay and Ms Mpofu has provided a genuine explanation for her delay in seeking a review of the decision by the Minister’s delegate. I am satisfied that Ms Mpofu has not ‘rested on her rights’.
While this principle weighs for 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
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.
I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Ms Mpofu’s application. However, given the delay is one week, 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 the applicant.
MERITS OF SUBSTANTIVE APPLICATION
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
The issue in the substantive application is whether Ms Mpofu can meet the general residence requirements of the Act.
Relevant legislation and consideration
Section 22 of the Act sets out the general residence requirement of the Act. The provisions of the Act relevant to the substantive application are:
(1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and …
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and (b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence. [emphasis in original]
Ms Mpofu applied for conferral of Australian citizenship on 8 June 2017. The Minister’s decision dated 19 February 2017 stated:
Departmental records indicate that you were absent from Australia for a total of 338 days in the 12 month period immediately before applying for citizenship. As you were absent for more than 90 days you have exceeded the allowable absences provided in subsection 22(1B) and cannot be considered to have been present in Australia for the period of 12 months immediately before making your application.
Ms Mpofu confirmed to the Tribunal that her travel records provided by the Department of Immigration and Border Protection (the Department) are accurate. These records show Ms Mpofu departed from Australia on 7 August 2015, returned to Australia on 12 May 2017 and departed from Australia again on 25 August 2017.
Based on this evidence, I am satisfied that Ms Mpofu does not satisfy the requirements in paragraph 22(1)(c) of the Act.
At the Tribunal hearing, Ms Mpofu said she accepted she did not meet the general residence requirement that she be present in Australia as a permanent resident in the 12 months immediately before she made her application for the conferral of Australian citizenship. However, she explained that her circumstances for residing overseas should be taken into account. In particular, she stated that she was awarded a scholarship to undertake full-time study for a PhD in Rehabilitation Psychology at the University of Wisconsin-Maddison. She said that this PhD program was not available in Australia and so she was required to study overseas. She hoped to complete her PhD study in the United States of America and return to Australia, which she views as her home.
In view of Ms Mpofu’s submissions, I considered whether the Act provides any discretion to consider her circumstances.
Section 22 of the Act enables the Minister (and therefore this Tribunal) to exercise discretions in relation to the general residence requirement where certain requirements are met. Those requirements include:
·confinement in prison or a psychiatric institution (subsection 22(5A) of the Act);
·administrative error (subsections 22(4A) and 22(5) of the Act);
·significant hardship or disadvantage (subsection 22(6) of the Act);
·the person is a spouse or de factor partner of an Australian citizen (subsections 22(9) and 22(10) of the Act); or
·the person is in an interdependent relationship (subsection 22(11) of the Act).
There is no evidence before me to indicate that any of these circumstances are relevant to Ms Mpofu.
Pursuant to section 22A of the Act, a person meets the special residence requirement (persons engaging in activities that are of benefit to Australia) if they are seeking to engage in activities specified in the Ministers Instrument under subsection 22C(1) and have the support of an organisation specified in the Minister’s Instrument under subsection 22C(2).
The relevant Minister’s Instrument (IMMI 13/056) states these activities are currently limited to:
·employment which requires a high-level security clearance in a department, an executive agency or a statutory agency of the Commonwealth; or
·participation in the Olympic games (including the winter, summer and Paralympic competitions and qualifying events); or
·participation in the Davis Cup or Fed Cup competitions, including qualifying events.
The Minister’s Instrument 13/056 further sets out the organisations currently specified for the purposes of paragraph 22A(1)(b) of the Act. They include:
·any department, executive agency or statutory agency of the Commonwealth;
·the Australian Olympic Committee;
·Australian Paralympic Committee; and
·Tennis Australia.
There is no evidence before me that Ms Mpofu either engages in the activities set out in paragraph 25 above or has the support of the organisations set out in paragraph 26 above.
I also considered whether Ms Mpofu could satisfy section 22B of the Act, which provides a special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia.
Section 22B of the Act provides that a person meets the special residence requirement (persons engaging in particular kinds of work requiring regular travel outside of Australia) if they are engaged in work of a kind that is specified in the Minister’s Instrument under subsection 22C(3).
The Minister’s Instrument (IMMI 13/056) states:
1The kinds of work are those undertaken as part of their duties in which a person is:
(a)a member of the crew of a ship; or
(b)a member of the crew of an aircraft; or
(c)engaged in work on a resources installation or a sea installation; or
(d)a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or
(e)an Executive Manager of an S&P/ASX All Australian 200 listed company; or
(f)a Scientist employed by:
(i) an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or
(ii) Commonwealth Scientific and Industrial Research Organisation; or
(iii) a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).
(g)a medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Schedule 4 – Part 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation;
(h)a person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.
There is no evidence before the Tribunal that shows Ms Mpofu is engaged in any of the kinds of work set out in paragraph 30 above.
Ministerial discretions to the special residence requirement at section 22B are:
·alternative residence requirements (subsection 22B(1A) of the Act);
·confinement in prison or a psychiatric institution (subsections 22B(2) and 22B(3) of the Act); and/or
·administrative error (subsections 22B(4) and 22B(5) of the Act).
There is no evidence before me that any of these circumstances could be applied to Ms Mpofu and I am therefore satisfied that she does not meet the special residence requirement at section 22B of the Act.
A person who satisfies the defence service requirement at section 23 of the Act is taken to have met the residence requirement if they show they have:
·completed relevant defence service (section 23(1) of the Act); or
·are a member of the family unit of a person:
(i)who has completed relevant defence service (section 23(2) of the Act) or
(ii)died while undertaking service in the permanent forces or reserves (section 23(3) of the Act).
There is no evidence before the Tribunal that Ms Mpofu has either completed relevant defence service or is a family member of a person who has completed relevant defence service. I am therefore satisfied Ms Mpofu does not meet the defence service requirement at section 23 of the Act.
On the basis of the information set out above, I am not satisfied that Ms Mpofu meets:
·the general residence requirements at subsections 22(1), 22(1A) and 22(1B);
·the special residence requirements at sections 22A and 22B; or
·the defence service requirement at section 23 of the Act.
This means that Ms Mpofu’s application for Australian citizenship by conferral must be refused in accordance with subsection 24(1A) of the Act.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Mpofu’s substantive application has no merit. This weighs against the extension of time being granted.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
............................[sgd]........................................
Associate
Dated: 25 May 2018
Date(s) of hearing: 10 May 2018 Applicant: In person Solicitors for the Respondent: Minter Ellison
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Remedies
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