Mulla Zahi and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1833

Mulla Zahi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1833 (23 May 2018)

Division:GENERAL DIVISION

File Number:          2018/1705

Re:Jalal Mulla Zahi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:23 May 2018

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for extension of time to lodge application for review of decision by Minister to refuse application for Australian citizenship – reasonable reason for delay – Tribunal must consider merits of the substantive application – Applicant failed citizenship test multiple times - limited prospects of success for substantive application – application for extension of time 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 [15]; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr L Bygrave, Member

23 May 2018

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 23 May 2018. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

2. On 18 April 2018, Mr Jalal Mulla Zahi 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 January 2018 by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse Mr Mulla Zahi’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act) (the reviewable decision).

3. The Minister opposes the extension of time sought.

4. The application was heard by the Tribunal in Sydney on 23 May 2018. Mr Mulla Zahi attended the hearing and gave oral evidence by teleconference; he was assisted by an interpreter of the Persian language.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

5. 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.

6. 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].

7. 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] paraphrased 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 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.

8. 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.

9. 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

10. The length of delay in Mr Mulla Zahi seeking a review of the reviewable decision is approximately five weeks after the 28 day limit. Mr Mulla Zahi then filed an extension of time application after a further three weeks. 

11. At the Tribunal hearing, Mr Mulla Zahi said he had been unwell. He submitted that he was admitted to hospital from 12 February 2018 for three days and subsequently admitted to hospital for another two days. He contended he has a number of medical conditions, which also affect his memory. 

12. Although Mr Mulla Zahi has not provided any supporting medical evidence, I accept his evidence and am satisfied that he did not “rest on his rights” and has provided a reasonable reason for the delay. 

13. 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

14. 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.

15. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mr Mulla Zahi’s application. However, given the delay is five weeks, 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

16. 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 Mr Mulla Zahi can meet the general eligibility requirements set out in subsection 21(2) of the Act.

    Relevant legislation and consideration

17. 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:

    …

    (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 

    …

18. Subsection 21(2A) of the Act provides that these requirements are satisfied if a person has sat and successfully completed a citizenship test.  The Department records show that Mr Mulla Zahi attended the Department and sat citizenship tests on 7 September 2017, 29 September 2017 and 15 January 2018. Mr Mulla Zahi also confirmed his attendance on these dates in his evidence to the Tribunal. On each of these dates, Mr Mulla Zahi attempted the citizenship tests more than once and he did not pass the citizenship test on any of these occasions. As Mr Mulla Zahi has not successfully completed the citizenship test, he is unable to meet the general eligibility requirements for citizenship in subsection 21(2) of the Act.

19. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mr Mulla Zahi’s substantive application has very limited prospects. This weighs heavily against an extension of time being granted.

    CONCLUSION

20. 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

21. The application for an extension of time is refused.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 13 June 2018

Date of hearing:	23 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms J Liang, Clayton Utz