Pervez and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2171

Pervez and Minister for Immigration and Border Protection (Migration) [2017] AATA 2171 (14 November 2017)

Division:GENERAL DIVISION

File Number:2017/5895           

Re:Sarah Pervez                 

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:14 November 2017

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE & PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension of time – not reasonable in all the circumstances – extension of time application refused

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

REASONS FOR DECISION

14 November 2017 

INTERLOCUTORY APPLICATION

1. On 5 October 2017, Ms Sarah Pervez 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 5 September 2017 by a delegate of the Minister for Immigration and Border Protection (the Minister). This decision was to refuse Ms Pervez’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).

2. The Minister opposes the extension of time sought.

3. The application was heard by the Administrative Appeals Tribunal (the Tribunal) in Sydney on 2 November 2017. Ms Pervez attended the hearing by telephone and was self-represented.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

4. 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.

5. 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].

6. 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;

   (f)‘[c]onsiderations of fairness as between the applicant and other persons’ in a similar position.

7. 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.

8. 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

9. The delay in Ms Pervez seeking a review of the decision is two days after the 28 days limit.

10. Ms Pervez provided the following explanation for the delay:

    I didn’t have access to my emails and read them late… 

11. At the Tribunal hearing, Ms Pervez reiterated that the process of applying for Australian citizenship had taken some time and, as she had not accessed her email regularly, she was delayed in seeking a review of the decision to refuse her application for Australian citizenship.

12. I find that the reasons for the delay in lodging a review of the decision did not prevent Ms Pervez from seeking a review of the decision.

13. While this principle weighs against 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 Ms Pervez’s application. However, given the delay is two days, 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.

17. The issue in the substantive application is whether Ms Pervez can meet the general residence requirements of the Act.

    Relevant legislation and consideration

18. 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]

19. The Minister’s decision dated 5 September 2017 stated:

    Departmental electronic records show [Ms Pervez] first arrived in Australia on 8 August 2009 on a Visitor visa subclass 676. [Ms Pervez was] granted a Temporary Partner subclass 309 visa while [she was] offshore on 2 October 2010, this visa ceased on 27 January 2015. [Ms Pervez] travelled to Australia on this visa once from 1 January 2011 until 21 January 2011. On 27 January 2015 [Ms Pervez was] granted a Permanent Partner subclass 100 visa which is in effect until 27 January 2020.

    [Ms Pervez] entered Australia on this visa on 11 November 2015 and departed on 17 November 2015. [Ms Pervez has] not returned to Australia since 17 November 2015.

20. Ms Pervez lodged an application for Australian citizenship on 11 April 2016.

21. In the four years prior to Ms Pervez’s application for Australian citizenship, she was absent from Australia for 1454 days and physically present in Australia for seven days. This exceeds the 12 months of allowable absences and means she does not satisfy the requirement in paragraph 22(1)(a) of the Act.

22. In the 12 months prior to Ms Pervez’s application for Australian citizenship, she was absent from Australia for 358 days and physically present in Australia for seven days. This exceeds the 90 days of allowable absences and so she does not satisfy the requirement in paragraph 22(1)(c) of the Act.

23. At the Tribunal hearing, Ms Pervez accepted the dates she was present in Australia and her periods of absence from Australia as set out in paragraphs 21 and 22 above. However, she submitted that the Minister could exercise his discretion in subsection 22(9) of the Act, which permits the Minister to ‘treat a period as one in which the person was present in Australia as a permanent resident if’:

    (a)  the person was a spouse or de facto partner of that Australian citizen during that period; and

    (b)  the person was not present in Australia during that period; and

    (c)  the person was a permanent resident during that period; and

    (d)  the Minister is satisfied that the person had a close and continuing association with Australia during that period.

24. Ms Pervez is the spouse of an Australian citizen and so is seeking to rely of this subsection of the Act. However, given Ms Pervez has only been physically present for seven days in Australia in the four years prior to lodging her application for Australian citizenship, the Tribunal is not persuaded she could provide evidence of ‘a close and continuing association with Australia during that period’.

25. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Pervez’s substantive application has no merit. This weighs against the extension of time being granted.

    CONCLUSION

26. Taking into account all of the information before me, including the explanation of the delay and the merits of the substantive application, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

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

I certify that the preceding 27 paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 14 November

Date(s) of hearing:	2 November 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor