Nelless and Minister for Immigration, Multicultural and Indigenous Affairs

[2002] AATA 414

DECISION AND REASONS FOR DECISION [2002] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 2002/260

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BRIAN NELLESS  
  Applicant
           And    MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS            
  Respondent

DECISION

Tribunal       Mr B J McCabe, Member  

Date31 May 2002 

PlaceBrisbane

Decision      The application for an extension of time is refused.              
  ..............................................
  B J McCabe
  Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – factors to be considered - whether failure to provide an acceptable reason for the delay is fatal to an application for extension of time – whether the substantial application has merit

IMMIGRATION AND CITIZENSHIP – citizenship – citizenship by descent - whether there is a discretion to waive age requirements

Administrative Appeals Tribunal Act 1975 s 29(7)
Australian Citizenship Act 1948 s 10C

Zizza v Commissioner of Taxation [1999] FCA 848
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment

(1984) 3 FCR 344

Comcare v A'Hearn (1993) 45 FCR 441

REASONS FOR DECISION

31 May 2002 Mr B J McCabe, Member              

Introduction and background facts

1. The applicant, Brian Nelless, applied for registration of Australian citizenship by descent. The delegate of the respondent Mnister considered Mr Nelless's application under s 10C of the Australian Citizenship Act 1948. The citizenship application was rejected on 18 June 2001. Mr Nelless was informed of the decision on 21 June 2001. He did not seek a review of the decision until 21 March 2002 when he filed an application for review with the Tribunal. It is necessary for me to consider whether Mr Nelless should be given an extension of time so that his application may be heard.
   The relevant law

2. Section 29 of the Administrative Appeals Tribunal Act 1975 says applications for review should be filed within 28 days of the applicant being provided with findings and reasons for the decision. It follows that the applicant should have filed his application by 19 July 2001. He did not file the application for review until 21 March 2002.

3. The Tribunal has discretion to grant an extension of time under s 29(7). The Full Federal Court discussed the principles governing extensions of time in Zizza v Commissioner of Taxation[1999] FCA 848. The Court acknowledged the approach followed by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment (1984) 3 FCR 344. His Honour considered (at 348-349) a range of factors in that case. Of particular relevance here are the expectations that:

• the applicant should offer an acceptable explanation for the delay; and

• the substantial application has merit.

1. The Full Federal Court subsequently held in Comcare v A'Hearn (1993) 45 FCR 441 at 444 that a satisfactory explanation for the delay was not essential. That is a lucky thing for Mr Nelless, since he was unable to offer a satisfactory explanation for the delay in this case. He said he had not received the papers he had asked for so that he might commence his review, but acknowledged that he had not been diligent in following them up when they failed to arrive.

2. While the absence of an acceptable explanation is not fatal to Mr Nelless's request for an extension, it appears that the substantive application has no merit. As Mr Gallo for the respondent explained, there is no point in granting the extension of time because Mr Nelless is unable to meet the requirements of s 10C of the Australian Citizenship Act 1948. The section requires that an applicant for citizenship under that section be over the age of 18 years at the time s 10C commenced. Mr Nelless was 15. There is no discretion in the section to waive the age requirements. That means the Tribunal is unable to substitute its own decision on review if it thought that was the appropriate course. The Tribunal is bound by the same legislative constraints as the primary decision-maker.

3. In those circumstances, I have no alternative but to decline the request for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:       .................................................................................
  Associate

Date/s of Hearing  29 April 2002
Date of Decision  31 May 2002
Applicant  Applicant appeared in person
Solicitor for the Respondent    Mr D Gallo, Blake Dawson Waldron