O'Riordan and Minister for Home Affairs (Citizenship) - [2018] AATA 1497

O'Riordan and Minister for Home Affairs (Citizenship) [2018] AATA 1497 (25 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2027
Re:David O'Riordan
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 May 2018
Date of written reasons: 1 June 2018
Place:Sydney

The application for an extension of time is granted.

....................................[SGD]....................................
Chris Puplick AM, Senior Member
Catchwords
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – whether delay was significant - whether the explanation for delay was sufficient – whether the application has merit – whether applicant is 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)
Australian Citizenship Act 2007 (Cth)
Cases
Berkelaar v Comcare [1997] AATA 12015
Comcare v A’Hearn (1993) 45 FCR 441
Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hillman v Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kim and Minister for Immigration and Border Protection 920180 AATA 155
Moretta and Minister for Immigration and Border Protection [2018] AATA 1086
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Phillips v Australian Girls’ Choir & anor. [2001] FMCA 109
Taylor v Comcare [2018] AATA 972
Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943
Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 June 2018
Background

Mr David Patrick O’Riordan is a citizen of the Irish Republic, currently residing in the United States of America. He is married to an Australian citizen. He made a brief visit to Australia in 2002 and then arrived for a more lengthy period in December 2010. On 23 February 2016, he was granted a Subclass 189 – Skilled – Independent visa and became a permanent resident of Australia.
He is employed by a company called EnerMech Ltd which sometime early in 2017 bought out Electrical and Pumping Services Australia Pty Ltd, an Australian company which had originally sent Mr O’Riordan to work for them in the USA. His contract with EnerMech commenced on 1 July 2017 and he is working currently on an assignment for them due for completion in September 2018. He indicated to the Tribunal both in his Affidavit and in his oral evidence that it is his intention to return to Australia after that date.[1]
[1] Affidavit of David O’Riordan at [11], [20].
[It appears that EnerMech is an international company providing engineering and infrastructure advice and support. Its international headquarters are in Aberdeen (UK) with regional headquarters in Houston (USA) and Perth (Australia). It has Australian offices in Sydney, Melbourne, Gladstone, Darwin, Brisbane and Chinchilla.[2]]
[2] EnerMech Ltd, viewed 25 May 2018.
Mr O’Riordan made his application for citizenship by conferral on 14 March 2017.
On 5 January 2018, he was advised by the Department that his application for citizenship by conferral had been rejected. The rejection decision was made on 4 January 2018.
The grounds for the refusal as set out by the Department were that:
(a)The Minister’s delegate was not satisfied as to the Applicant’s identity (section 24(3) of the Australian Citizenship Act 2007 (Cth) (the Act)) , and
(b)The Minister’s delegate held that as the Applicant was not resident in Australia at the time of the making of the application (as required by section 24(5) of the Act), and that none of the special residence requirements set out in sections 22A or 22B of that Act applied.
On 6 April 2018, Mr O’Riordan signed an application to this Tribunal for an extension of time for making an application for review of the delegate’s decision. It was lodged by his representative on 9 April 2018 seeking the extension of time to that date.
The time for making an application for review of the delegate’s decision had, by then, expired. Under section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), applications such as Mr O’Riordan’s must be made within 28 days of the date of receipt of the reviewable decision. In this case, that would have been 2 February 2018.[3]
[3] It should be noted that the Applicant was resident in the United States at the time, however the relevant dates are to be taken as at the time in Australia. The decision was made on 4 January 2018 and received in the United States on 5 January 2018.
Pursuant to ss 29(9) and 29(10) of the AAT Act, the Respondent was notified of this application and asked to advise whether or not it objected to an extension of time being granted.
On 11 May 2018, the Respondent notified the Tribunal of its objection to an extension of time. It cited as its reasons:
(a)That the delay in lodging the application was significant,
(b)That there was no sufficient explanation for the delay, and
(c)The application itself had no reasonable prospects of success.
It is now up to the Tribunal to determine whether or not the application for an extension of time should be granted.
Out of time applications
There is considerable judicial guidance on the way in which applications for extension of time should be granted.
The importance of a statutory framework laying down requirements for applications to be lodged within specified periods was outlined by McHugh J in the High Court in the case of Brisbane South Regional Health Authority v Taylor.[4] His Honour gave four reasons why such limitations are an important part of the legal process. He noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[4] (1996) 186 CLR 541 at [552]-[553].
His Honour also noted that:
An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[5]
[5] Ibid at [551].
Of course s 29(7) of the AAT Act contemplates that extensions of time may be granted provided that “it is reasonable in all the circumstance to do so.”
The Tribunal is guided by considerable authority as to what circumstances will need to be established to meet such a requirement.
Relevant Authorities
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[6] should be taken as the guide by this Tribunal in determining extension of time applications.
[6] (1984) 3 FCR 344 (“Hunter Valley”).
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
·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;
·any prejudice to the respondent caused by the delay;
·whether the respondent or the general public would suffer any prejudice as a result of the extension;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
Wilcox J did, however, warn that:
Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable; explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[7]
[7] Ibid at [348].
There are several decisions of other courts and this Tribunal which supplement or refine His Honour’s check-list.
The most extensive of these will be found in the judgement of Federal Magistrate McInnis in Phillips v Australian Girls’ Choir & anor. [2001] FMCA 109.
In Hillman v Australian Postal Corporation,[8] this Tribunal set out four tests which should be met when deciding whether to grant a review of a decision where the application was made out of time.
[8] [2017] AATA 1411.
Those four grounds, which are in many ways merely a refinement of some of the principles laid down in Hunter Valley, are:
·Delay;
·Prejudice;
·Merits;
·Fairness.
There are further Tribunal decisions in:
·Kim and Minister for Immigration and Border Protection 920180 AATA 155;
·O’Gorman and Comcare (Compensation) [2017] AATA 2192;
· Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262;
·Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1;
·Moretta and Minister for Immigration and Border Protection [2018] AATA 1086;
to cite but a few which cover the same grounds.
Equally, this Tribunal has noted that the check-list items in Hunter Valley “are not to be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion, although it is to be expected that such an explanation will normally be given.”[9]
[9] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
Consideration of Respondent’s opposition
With this in mind, the Tribunal turns to consider the specific grounds for opposing the extension application lodged by the Respondent.
Delay is significant
The first of these is the question of whether the delay is “significant”.
The actual delay is a period of some 3 months (that is from 5 January to 6 April). An ordinary understanding of the word “significant” implies sufficiently great or important, or worthy of special attention. In the larger scheme of things, it seems to me that three months hardly qualifies to reach that level.
I note, for example, in Berkelaar v Comcare,[10] a delay of five years was found to be not excessive in the particular circumstances of that case. Similarly in Moretta,[11] this Tribunal, in admittedly somewhat different circumstances and on different points under the Act, granted an extension of time where the application was delayed by more than two years.
[10] [1997] AATA 12015.
[11] Moretta and Minister for Immigration and Border Protection [2018] AATA 1086 at [12]-[14] (“Moretta”).
I thus find that the delay is not significant.
Insufficient explanation for delay
The second objection is that no sufficient explanation was given for the delay.
In his affidavit, Mr O’Riordan sets out the reasons for the delay which relate to the fact that correspondence from the Department was sent to him (in the USA) via an email, and that this email ended up in his spam folder. Mr O’Riordan’s explanation of how this came to be so – namely, that he had inadvertently set up a rule in his system to archive all emails from the Department, raises a few questions – not least being why such a system of archiving would have been put in place when significant correspondence was expected – but nevertheless does not entirely exceed the limits of credulity. The delay he attests to between checking the spam folder (24 February 2018) and the date of the arrival of the correspondence in that folder (5 January 2018), again raises some concerns, but none that I think is destructive of or fatal to his explanation.
Of greater concern is his explanation about why no immediate action was taken to try to lodge an extension of time application for a further period of some six weeks. In evidence, Mr O’Riordan told the Tribunal that, in effect, he had other things on his mind, in particular being (relatively) newly married and working long and exhausting hours. While these reasons may be valid, it is not to Mr O’Riordan’s credit that he failed to take any action, a matter which he conceded as an error in his testimony.
If his further explanation of delay was genuinely based upon acting on advice he received from Legal Aid (Victoria) or Arrive Australia Migration Services, then it says very little for their professional knowledge and understanding of either migration or administrative law.[12] However, I have no reason to doubt Mr O’Riordan’s sworn affidavit on this matter.[13]
[12] In passing, I note that I have discussed the question of applications for extensions of time relating to errors on the part of legal advisors in my recent determination in Taylor v Comcare [2018] AATA 972 at [14]-[23].
[13] Affidavit of David O’Riordan at [28], [30].
I nevertheless find Mr O’Riordan’s explanation for the delay to be a reasonable one, or at least not so unreasonable as to be unacceptable.
Application without merit
The third element of the Respondent’s objection is that the application would have no prospect of success.
Where an application relates to a matter with no genuine prospect of success, it should not be granted, in line with the principles laid down by the Federal Court in Jamal v Secretary, Department of Social Services.[14]
[14] [2018] FCA 513 at [6].
If the reasons for the original rejection are a lack of proof of identity and lack of residential status, both need to be tested.
From the material before the Tribunal, I have no doubt of Mr O’Riordan’s identity or his ability to prove it.
I can well understand the Respondent’s frustration at Mr O’Riordan’s failure to attend the three appointments/interviews set for him to complete the citizenship test as required by the Act. I can understand the formation of a view that a genuinely serious applicant for citizenship would have made more of an effort in this regard. However, Mr O’Riordan does proffer explanations for these repeated failures and since his return to Australia, has attempted to make the necessary arrangements.
Given his antecedents and current employment history, together with his residence in Australia, it is safe to say that he is not avoiding sitting for a test which he no doubt believes he will be able to pass.
The question of his residential status raises different and more problematic issues.
The Respondent’s representative spent some time putting before the Tribunal, a case to the effect that - Mr O’Riordan’s employment history; his apparent willingness to leave Australia “at the drop of a hat” at the request of his employer, even if it meant missing an important wedding; together with the fact that he has authority to remain in the United States until at least August 2022; and finally that his wife was currently residing with him in Houston, Texas - could be taken as indicative of there being no genuine desire to return to Australia on a permanent basis.
In his evidence, Mr O’Riordan refuted such suggestions and indicated that it was his intention to return after the completion of his assignment in September 2018. He said that he did not enjoy working for what appeared to be a new management team at EnerMech and that his wife was anxious to return to live in Australia.
The Respondent put to the Tribunal that the provisions of s 21(2)(g) of the Act would allow a decision-maker to make a determination against a citizenship application on the basis that Mr O’Riordan was not “likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia.”
The Respondent asserted that the only “close and continuing association with Australia” was not with the country per se, but only with his Australian wife – the frequent distinction drawn by the Respondent between an association with “Australia” and an association with an “Australian”.[15]
[15] This is also a matter addressed in one of my recent decisions where I explain why I find this distinction often hard to define or determine. See, Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943 at [27]-[50].
In response, Mr O’Riordan’s counsel pointed out that in the Respondent’s original determination, this matter had not been assessed and had not formed any part of the Respondent’s eventual decision to refuse the citizenship application.[16] He further made the point that this particular objection had not been raised in submissions to the Tribunal prior to being presented in the Respondent’s closing submission and that Mr O’Riordan had not had sufficient notice to respond in detail. I agree with that proposition.
[16] Tribunal Documents p 19.
Mr O’Riordan has spent considerable time living in Australia since his arrival in 2010[17] and has stated his desire to return to reside here.
[17] Affidavit of David O’Riordan at [5], [8] and [9].
It is clear that this is a matter which is contested and the proper place for the resolution of such a contest is not this hearing on the extension of time application, but rather in a full hearing before the Tribunal on the substantive merits of the application.
This point is made in Moretta where s 21(2)(g) of the Act was before the Tribunal in an extension of time application and the Tribunal held that the applicant “may be able to show a close and continuing association with Australia if she is provided the opportunity at a Tribunal hearing.”[18]
[18]Moretta at [26].
I am thus not prepared to accept the proposition that this application would necessarily fail when tested fully or that the application is wholly without merit.
Consideration of the Hunter Valley check-list
I now give very brief consideration to the matters in the Hunter Valley check-list to which I have referred:
(a)Is there an acceptable reason for the delay? Yes.
(b)Has Mr O’Riordan merely rested on his rights and not done anything further to prosecute his case? No. Although his degree of activity could have been greater, it was at least activated after he found the Department’s email advice on 24 February 2018.
(c)Is there any prejudice caused to the Respondent by the delay? No. It is clear that should this application be rejected, Mr O’Riordan would be free, at any stage, to lodge a new application which would then have to be dealt with. This matter was in effect conceded by the Respondent. The only prejudice would be to Mr O’Riordan in terms of the time for dealing with his matter.
(d)Would the Respondent or the general public suffer any prejudice or disadvantage were the extension granted? No.
(e)Merits of the substantial application: I have already opined on this and find that the application is not without merit and should be tested properly before a full hearing of the Tribunal.
(f)Fairness as between this applicant and other persons in a similar position: as each case must be determined on its merits this is not a matter which I see as providing any basis upon which to reject Mr O’Riordan’s application.
The Tribunal’s approach

The Tribunal’s general approach in determining matters of extensions of time adopts the guidance of the NSW Court of Appeal’s statement that: “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”[19]
[19] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at [30].
The Tribunal’s decision
For the reasons which I have set out above, the Tribunal grants the Applicant an extension of time to lodge his application for review to 9 April 2018.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 1 June 2018

Date of hearing: 25 May 2018

Counsel for the Applicant: J. King

Solicitors for the Applicant: F. Varess, Fragomen

Solicitors for the Respondent: A. Keevers, Sparke Helmore

Date of hearing:	25 May 2018
Counsel for the Applicant:	J. King
Solicitors for the Applicant:	F. Varess, Fragomen
Solicitors for the Respondent:	A. Keevers, Sparke Helmore