Parikhan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1195

Parikhan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1195 (15 May 2023)

Division:GENERAL DIVISION

File Number:          2022/9622

Re:Khaled Parikhan

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:15 May 2023

Place:Brisbane

The Tribunal Orders:

(a)the request for reinstatement, pursuant to s42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth), is granted; and

(b)the application for an extension of time to file the review application, pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

.........................[SGD]...........................

Senior Member Theodore Tavoularis

Catchwords

PRACTICE AND PROCEDURE – Citizenship – Reinstatement Request – review application dismissed for the Applicant’s non-appearance – Reason for non-appearance accepted by the Tribunal – request for reinstatement granted

PRACTICE AND PROCEDURE – Citizenship – Application for extension of time – whether the length of delay was justified – whether there was a reasonable explanation for the delay – whether the substantive application for review has merits – whether granting of extension of time would prejudice the Respondent or the general public – whether there are alternative avenues of relief for the Applicant should the extension of time not be granted – Refusal of Citizenship by conferral – pending proceedings in relation to criminal charges – extension of time request refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Migration Regulations 1994 (Cth)

Cases

AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341
BVG17 v BVH17 (2019) 268 FCR 448
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

South Regional Health Authority v Taylor (1996) 139 ALR 1

REASONS FOR DECISION

Senior Member Theodore Tavoularis

15 May 2023

1. Mr Khaled Parikhan (‘Applicant’) applied for Australian citizenship by conferral on
   17 February 2021 (‘Citizenship Application’). On 4 November 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘Respondent’) refused the Applicant’s Citizenship Application (‘Citizenship Refusal Decision’) pursuant to s 24(6)(a) of the Australian Citizenship Act 2007 (‘the Act’) because at the time of the delegate’s decision the Applicant had pending proceedings in relation to offences against an Australian law (‘pending proceedings’).

2. On 4 November 2021, the Applicant was notified of the Citizenship Refusal Decision by email which attached a cover letter with the reasons for the Citizenship Refusal Decision. This cover letter contained the following information under the heading ‘Review rights’:

   “An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taken to have received this letter.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”

3. On 16 November 2022, the Applicant applied to this Tribunal for a review of the Citizenship Refusal Decision.

4. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides that the prescribed time for making applications to this Tribunal is the period commencing on the day on which the reviewable decision is made and ending on the twenty-eighth (28) day thereafter. This means that the Applicant had until 2 December 2021 to apply for a review of the Citizenship Refusal Decision by this Tribunal.

5. On 9 December 2022, the Tribunal advised the Applicant in writing that the Review Application was out of time. However, the Tribunal further advised the Applicant that he could lodge an ‘Extension of Time’ application (‘EOT Application’) requesting the Tribunal to accept the Review Application even though it was filed outside the abovementioned
   28-day period. The Tribunal also advised the Applicant to file the EOT Application within
   14 days. The Applicant did so and the EOT Application was received by the Tribunal on
   14 December 2022.

6. In the EOT Application under ‘section 4 – Reasons for the Applicant’, the Applicant provided the following reason for applying for an extension of time:

   “I Am [sic] Applying [sic] for an extension of time as It[sic] has taken this long for the court case to be dropped.”

7. In the EOT Application, the Applicant also stated that the pending proceedings against him were no longer active and he provided correspondence from his solicitors who were acting in these proceedings for him to that effect.

8. On 14 March 2023, the Tribunal received submissions from the Respondent in which the EOT Application was opposed.

9. On 17 March 2023, an interlocutory hearing by telephone was scheduled to hear the parties in relation to the EOT Application. The Applicant did not appear at this hearing. Pursuant to s 42A(2) of the AAT Act, the Tribunal dismissed the matter for non-appearance (‘Dismissal Decision’).

10. On 21 March 2023, the Applicant applied for a reinstatement of the Dismissal Decision dated 17 March 2023 (‘Reinstatement Request’). This request was opposed by the Respondent.

11. On 21 April 2023, the Reinstatement Request was listed for an interlocutory hearing by telephone before me. The purpose of this listing was to facilitate the Respondent’s filing of further written submissions responsive to questions raised by the Tribunal in relation to the Reinstatement Request.

12. On 26 April 2023, a further interlocutory hearing was held to determine the Applicant’s Reinstatement Request. This listing was also adjourned following the Respondent’s request to make certain further submissions, which was unopposed by the Applicant.

13. On 2 May 2023, I held an interlocutory hearing to hear submissions and determine the Reinstatement Request. At the start of this listing, I suggested to the parties the possibility of deciding the EOT Application in the event this Tribunal were minded to grant the Reinstatement Request. Both parties agreed this would be the best use of the Tribunal’s time. I then proceeded to first hear and determine the Reinstatement Request. I then dealt with the EOT Application.

    REINSTATEMENT REQUEST

14. In the Reinstatement Request filed with the Tribunal, the Applicant provided the following explanation for his failure to appear at the Tribunal hearing dated 17 March 2023:

    “I am writing to confirm that the number that you have been calling was not my number.

    The number you called was my wifes [sic] number and she is currently in the UK and does not have the sim card in use.

    I can be contacted on [number redacted].

    I would be very grateful if you could ask for the appeal to be reinstated.”

15. The above explanation was re-emphasised at the Hearing on 2 May 2023 by the Applicant when the Tribunal asked him why he failed to appear at the hearing dated 17 March 2023.

16. In their written submissions dated 19 April 2023, the Respondent contended that the above explanation from the Applicant was not a convincing one and, on that basis, the Reinstatement Request should be refused.

17. The Tribunal made certain further investigations in relation to the phone number provided by the Applicant to the Tribunal. It was found that the Tribunal had multiple phone numbers recorded for the Applicant and, on the day of the hearing being 17 March 2023, the Tribunal only attempted to contact the Applicant on the phone number which belonged to his wife.

18. In light of the above finding, I am satisfied the Applicant passes the threshold of providing a reasonable justification of why he did not appear at the hearing on 17 March 2023 which ultimately led to the Tribunal dismissing the matter for non-appearance.

    Decision about Reinstatement Request

19. The Tribunal thereby forms the view that the correct course was to grant the Reinstatement Request. The Respondent did not cavil with this course and accordingly, the Tribunal granted the Reinstatement Request.

20. Pursuant to s42A(8A) of the AAT Act, I reinstate the subject application and will now proceed to consider the Extension of Time application.

    EXTENSION OF TIME APPLICATION

    Date of service

21. As a preliminary issue, I find the Applicant was correctly served with the Refusal Decision on 4 November 2021 because the Migration Regulations 1994 (Cth) states at Regulation 2.55(8):

    “If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”

22. At the Hearing on 2 May 2023, the Applicant was asked whether he had received the Refusal Decision by email on 4 November 2021 to which the Applicant replied in the affirmative.

23. I am therefore satisfied that the Citizenship Refusal Decision was served on the Applicant on 4 November 2021. It follows that a valid application for review ought to have been filed with the Tribunal by 2 December 2021 (within the prescribed timeframe of 28 days as discussed in paragraph [4] of these Reasons).

    Consideration of principles relating to extension of time applications

24. If an application is filed out of time, a prospective applicant must apply for an extension of time. The Applicant’s application for an extension of time lodged 14 December 2022 is valid.

25. The AAT Act allows the Tribunal to grant an extension of time if satisfied “that it is reasonable in all the circumstances to do so.”[1] The principles which inform my assessment in relation to an extension of time request were discussed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (‘Hunter Valley Developments’) and the Full Court of the Federal Court of Australia in AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 and BVG17 v BVH17 (2019) 268 FCR 448. Those principles comprise:

    (a)the length of the delay;

    (b)the explanation for the delay;

    (c)the merits of the substantive application for review

    (d)any prejudice to the Respondent or the general public arising from an extension of time; and

    (e)any alternative avenues of relief for the Applicant should the extension of time not be granted.

    [1] AAT Act, s29(7).

26. I will now consider each of these principles in turn.

    Extent of the delay

27. As mentioned, s 29(2) of the AAT Act prescribes a 28-day deadline for the filing of an application to this Tribunal from the type of decision in respect of which the Applicant seeks relief. I have demonstrated that the Applicant understands and accepts that the Citizenship Refusal Decision was duly made on 4 November 2021 and that his application to this Tribunal had to filed by 2 December 2021. In fact, the substantive application was not filed until 16 November 2022 and is thus the better part of one year out of time.

28. I am satisfied that this delay is both significant and substantial and that is otherwise redolent of an Applicant resting on his rights while awaiting the outcome of the pending proceedings proffered against him. This principle does not militate in favour of extending time.

    The explanation for the delay

29. There is little to cavil with the proposition (and finding) that the Applicant’s principal reason for delaying the lodgement of his Review Application was to await the outcome of the abovementioned pending proceedings. This much is made clear when one has regard to his correspondence to this Tribunal dated 16 November 2022 wherein he (1) expresses an intention to ventilate a challenge to the Citizenship Refusal Decision in this Tribunal; (2) makes clear reference to the abovementioned pending proceedings; and (3) attaches certain correspondence from his solicitors contemporaneous with the date of his purported application to this Tribunal.

30. Even though the withdrawal or discontinuance of those pending proceedings obviates a technical difficulty with any grant of citizenship presented by s 24 (6)(a) of the Act, it is not (and should never be) the business of this Tribunal to facilitate or participate in an applicant’s resting on their rights pending the outcome of an extraneous issue. This, to my mind, should be the Tribunal’s approach regardless of whether the extraneous issue is or is not adverse to an applicant’s prospects at the time the application to this Tribunal should have been filed - that is, within the mandatory 28 day period stipulated by s 29 of the AAT Act.

31. It is therefore not difficult to reach a state of satisfaction that the reason behind the Applicant’s delay is that he recognised that his prospects of success before this Tribunal were severely compromised until the finalised outcome of the pending proceedings was known. He therefore rested on those review rights for a period of almost 12 months. His explanation for the delay is thereby vacuous and unconvincing. The explanation is devoid of substance because the Applicant clearly knew of the adverse - and most likely fatal - impact of the prohibition contained in s 24 (6)(a) of the Act.

32. I agree with the Respondent’s following contention: for this Tribunal to permit an extension of time in these circumstances “..would effectively undermine the finality of the administrative decision making process and the statutory timeframe for seeking review.”[2]  This principle does not militate in favour of extending time.

    [2] Respondent’s submissions on extension of time application, 14 March 2023, p 3 [15].

    The merits of the substantive application

33. The Respondent rightly concedes that on the assumption that – proffered criminal charges in the pending proceedings against the Applicant have been withdrawn, then subject to there being no other statutory prohibitions and or impediments operating against a grant of citizenship, the Applicant could be said to have a reasonable prospect of succeeding in the Review Application. Two comments can be made in this regard: first, this Tribunal should proceed cautiously in the making of assessments about the prospects of success of an application yet to be ventilated before it and in respect of which no final findings have been made. It suffices to say that this application – devoid of any prohibitionary or other statutory impediments - would and should be accepted for filing and regularly processed by this Tribunal towards a final determination.

34. Second, any finding that the Review Application was now fit for filing and regular progression through the Tribunal should be tempered against the undeniable reality that such a scenario only now applies because the Applicant knowingly delayed lodgement of his Review Application. I therefore temper whatever weight may be applicable to the Applicant pursuant to this particular factor. At best, this third principle moderately supports an extension of time.

    Prejudice to the Respondent or the general public

35. At the Hearing on 2 May 2023, the Respondent’s representative did not seek to argue that this Tribunal’s grant of the requested extension of time would occasion prejudice to either the Respondent or the general public. This position echoes the Applicant’s abovementioned written submissions dated 14 March 2023 which are silent about this particular factor. I understand and accept the Respondent’s position but do not consider the Applicant should derive any benefit from it.

36. This is because the Respondent’s Department is a significantly sized taxpayer-funded entity with a significantly - sized cohort of current and/or pending matters. Its resources are no doubt stretched in terms of managing and finalising those matters. It surely assists with the administrative effort behind management and allocation of those resources for such a Department to know, with a certain level of finality, whether or not a matter is proceeding. As noted by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9:

    “…. people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period…. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

37. At best, this principle only moderately militates in favour of an extension of time.

    Any alternative avenues for relief if the extension of time is refused

38. There is little or nothing to cavil with the proposition (and finding) that in the event the requested extension of time is refused, it remains open to the Applicant to make a further application for Australian Citizenship at any time. The only negative elements behind doing so involve: (1) the payment of a fresh application fee to facilitate a new application for Australian Citizenship; and (2) the usual administrative delay in the processing and determination of such new application.

39. Although unpalatable, these negative elements are not fatal to the Applicant’s capacity to reventilate an application for citizenship to the Respondent’s Department. It should not be the business of this Tribunal to grant of extensions of time on the basis of assisting out of time applicants to overcome these negative elements. This principle does not significantly militate in favour of extending time.

    Summary of findings about the Hunter Valley Developments principles

40. The delay in filing the Review Application is both significant and otherwise derives from this Applicant resting on his rights. His explanation for the delay is both vacuous and unconvincing due to the fatal impact of s 24 (6)(a) of the Act which was a fact well within the Applicant’s purview of knowledge at all material times. He can lodge a fresh application for citizenship and none of the relatively benign (and predominantly administrative) impediments warrant an extension of time.

41. While the remaining two principles relating to the merits of the Review Application and any prejudice to be suffered in the event of a granted extension both moderately weigh in favour of extending time, two points (and findings) can be made. The former only assists the Applicant to the extent that his application would - if time were extended – in a state of being accepted for filing by this Tribunal. To whatever extent the latter may assist him, such assistance should be tempered against the reasonable expectation that the Respondent’s Department is entitled to know, with a certain level of finality, whether or not a matter is proceeding. The Applicant’s filing of the Review Application in November 2022 - almost a year after the Citizenship Refusal Decision - denied the Respondent such finality.

    Decision about EOT Application

42. After weighing the abovementioned factors in Hunter Valley Developments, I am not satisfied that it is reasonable to extend the time for lodgement of the review application and therefore the EOT Application should be refused. I so order.

    ORDERS

43. The Tribunal Orders:

    (a)The request for reinstatement, pursuant to s42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth), is granted; and

    (b)The application for an extension of time to file the review application, pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

................[SGD]...............

Associate

Dated: 15 May 2023

Date of hearing:	2 May 2023
Advocate for the Applicant:	Self-Represented
Solicitor for the Respondent:	Ms Claire Laizans Minter Ellison Lawyers