Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 1373

Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1373 (20 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5118

Re:Ali   Reza Rezai

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M East

Date:20 May 2020

Place:Perth

The Tribunal grants the Applicant’s application for an extension of time to lodge an application for review of the Reviewable Decision.

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

Member M East

CATCHWORDS

CITIZENSHIP – Extension of time – s 29 Administrative Appeals Tribunal Act 1975 (Cth) – factors that are relevant when considering an extension of time – length of delay – unaware of decision notification – Freedom of Information application made – awareness of appeal rights – prejudice – merits of substantive application – alternative avenues of relief – Tribunal satisfied extension of time reasonable in the circumstances – application for extension of time granted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A(b), 29, 29(1)(d), 29(2), 29(7),

CASES
Brown v Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276
Hunter Valley Development Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan and Others (1982) 45 ALR 411
Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) FCA 75
Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990)
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Rollins and Principal Member of Veteran’s Review Board and Repatriation Commission (Joined Party) [2011] AATA 113

REASONS FOR DECISION

Member M East

20 May 2020

THE APPLICATION

1. Mr Ali Reza Rezai (the Applicant) is seeking review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 7 August 2017 to refuse the Applicant’s application for citizenship under the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)
   (the Reviewable Decision).

2. The Applicant lodged an application for extension of time to seek review of the delegate’s decision.

   THE ISSUE

3. The issue is whether the Tribunal should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to extend the time for the Applicant to make an application for review of the delegate’s decision.

4. The Respondent opposes the extension of time application.

   EVIDENCE

5. The application for extension of time was heard by telephone by the Tribunal on

   
   

   31 March 2020. The Tribunal requested, and the Respondent provided,

   
   

   further submissions on 16 April 2020. The Applicant did not provide anything further in response.

6. The Applicant was represented by Mr Farris Faris of Rebus Legal and the Respondent was represented by Mr Matthew Sunits from the Australian Government Solicitor.

7. The following exhibits were tendered:

   -Submission of Applicant received by the Tribunal on 18 October 2019 (Exhibit A1);

   -Application for Extension of Time for Making an Application for Review of Decision (Exhibit A2);

   -Application for Review of Decision (Exhibit A3);

   -Notification of delegate’s decision dated 7 August 2017 (Exhibit A4);

   -Decision Record of the delegate dated 7 August 2017 (Exhibit A5);

   -Respondent’s Submissions in Opposition to the Applicant’s Request for an Extension of Time (Exhibit R1);

   -Respondent’s Notice of Opposing Application for Extension of Time (Exhibit R2).

8. The Applicant also gave evidence and was cross-examined at the hearing.

9. At the conclusion of the hearing, the Tribunal requested that the Respondent provide a copy of the Applicant’s Application for Australian citizenship as well as any communication from the Applicant regarding his preferred method of notification from the Department. The Respondent filed these submissions on 16 April 2020 as a Bundle of Relevant Documents together with the Respondent’s Supplementary Submissions in Opposition to the Applicant’s Request for an Extension of Time dated 15 April 2020.

   BACKGROUND

10. From a review of the documents provided by the parties, the Tribunal notes the following facts:

11. The Applicant was born in Afghanistan in January 1990.

12. The Applicant arrived in Australia on 24 November 2009 without a visa.

13. The Applicant lodged a Subclass 866 (Class XA) Protection Visa application and was subsequently granted a Protection Visa on 10 March 2010. The Applicant has remained living in Australia on this Protection Visa.

14. The Decision Record of the delegate (Exhibit A5) reflects the following factual history.

15. On 16 July 2014, the Applicant lodged an Application for Conferral of Australian Citizenship (Citizenship Application).

16. On 24 October 2016, the Department, by email, requested that the Applicant provide them with any documents issued outside of Australia which could help confirm his identity prior to his arrival in Australia on 24 November 2009. The Department further requested that the Applicant complete and furnish a Form 80 Personal Particulars for Assessment including Character Assessment, and a Form 1399 Declaration of Service.

17. On or around 15 December 2016, the Applicant contacted the Department making enquiries about the status of his application. The Applicant was advised of the previous request made on 24 October 2016 that he provides them with additional documents and information.

18. The Applicant also asked that the request be sent again to a different email address.

19. On 2 February 2017, the Department emailed the Applicant at the updated email address.

20. On 14 April 2017, the Applicant informed the Department via email that he did not have any additional identity documents to provide. He also did not complete and return to the Department the Form 80 or Form 1399.

21. The Applicant’s Citizenship Application was refused on 7 August 2017 because the delegate was not satisfied of the Applicant’s identity pursuant to s 24(3) of the Citizenship Act.

    RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME

22. Pursuant to ss 29(1)(d) and 29(2) of the AAT Act, the application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision.

23. Section 29(7) of the AAT Act provides that the Tribunal may, upon application in writing, extend the time for the person making the application, if the Tribunal is satisfied in all the circumstances that it is reasonable to do so.

24. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be ‘satisfied that it is reasonable in all the circumstances’ to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.

25. A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions
    (Judicial Review) Act 1977 (Cth). In Hunter Valley, Wilcox J set out principles that were intended to be non-exhaustive guidelines which may be relevant when considering whether to grant an extension of time.

26. These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [17], where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990):

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

27. Some flexibility is permitted in applying the principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be relevant or not relevant at all.

28. Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but ‘…there is no rule that such an explanation is an essential precondition’ to the success of the application for an extension of time (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 at [15]).

    CONSIDERATION

29. In determining whether an extension of time should be granted, the relevant factors the Tribunal should consider include:

    ·The length of the delay;

    ·The explanation of the delay and whether that explanation is satisfactory;

    ·Whether the Applicant was aware of his appeals rights and whether he rested on those rights;

    ·Any prejudice to the Respondent or the general public arising from an extension of time;

    ·The merits of the substantive application; and

    ·Alternative avenues of relief.

    Length of Delay

30. The Applicant’s application for review was received by the Tribunal on 20 August 2019 and the application for extension of time for making an application for review was received by the Tribunal on 2 September 2019.

31. The Applicant stated under the heading ‘Reasons for the Application’ that,

    
    

    ‘THE APPLICANT WAS NOT AWARE HIS APPLICATION WAS REFUSED UNTIL
    7 AUGUST 2019’ (Original emphasis.) (A2, p2).

32. The Tribunal notes the date of the delegate’s decision is 7 August 2017 and the Applicant had 28 calendar days within which to seek review of the decision after receiving notice of the decision.

33. The Applicant was more than two years out of date in lodging his application for review.

34. The Tribunal is mindful that there should be finality and certainty in administrative decision making. The Tribunal finds this weighs in favour of the Tribunal not exercising its discretion to grant an extension of time.

    Explanation for the delay

35. The Applicant claims that he was never notified of the refusal decision despite him stating that he contacted the Department on ‘numerous occasions’ to ascertain the status of his citizenship application (Exhibit A1, paragraph 13(d)).

36. The Tribunal notes that Exhibit A4 is the notification of the refusal decision dated

    
    

    7 August 2017 which was sent to the Applicant via registered post.

37. In his Application for Australian Citizenship (Bundle of Relevant Documents, p1),
    the Applicant noted an address in Wilson as his residential address. The same address was given as his current postal address. In answer to the question ‘Do you agree to the department communicating with you by fax, email or other electronic means?’,
    the Applicant answered ‘No’ (Bundle of Relevant Documents, p2).

38. The Respondent has also provided a copy of their electronic record system (Bundle of Relevant Documents, p11) which records the Applicant contacting the Department on
    2 February 2017 to update his contact address to one in Bentley. He also provided an email address. This email address is the same as that provided in December 2016 (Bundle of Relevant Documents, p12). The Respondent submitted that there is no record on the Department’s electronic system that the preferred mode of delivery is by email (Respondent’s Supplementary Submissions in Opposition to the Applicant’s Request for an Extension of Time, paragraph 4).

39. In cross-examination the Applicant said that he left the Bentley address in 2017 but his friends were still living there and collected his mail. He said when they moved he changed his address with the Department. In response to the Respondent asking him if he did not tell the Department of a new address until 2019, his response was ‘maybe’.

40. The Respondent has submitted (Exhibit R1, paragraph 14.4) that the Applicant did not advise the Department of a new residential address until 26 July 2019. Under cross-examination the Applicant said he couldn’t remember.

41. The Respondent in its submissions stated that the Applicant had contacted the Department by telephone on four occasions in July and August 2019 and did not advise the Department of his change of address. The original decision was ‘returned to sender’ from the previous address (Exhibit R1, paragraph 14.1).

42. The Tribunal is satisfied that the Applicant did not update the Respondent in a timely manner as to his residential address. However, the Tribunal also finds that in December 2016 and again in February 2017 the Applicant provided a valid and updated email address. Even though his Application for Citizenship specified he did not consent to receiving his correspondence by email, at that time he did not provide an email address. When he subsequently provided an email address, the Department communicated with him via email in October 2016 when requesting further information. After the Applicant contacted the Department to enquire about his application he provided them with his current email address. The Department responded to him via email in February 2017. It is therefore not unreasonable to expect that the decision would also be provided by email. This is particularly so in light of the fact that the decision was

    
    

    ‘return to sender’ when sent by registered post to the postal address and that the email address is clearly recorded in the Department’s electronic system.

43. The Tribunal finds that this weighs heavily in favour of the Applicant in deciding whether to exercise its discretion to grant an extension of time to lodge the application for review.

    Awareness of appeal rights

44. The Applicant did not submit that he was unaware of his appeal rights. However, without receiving a copy of the Decision, it would not be possible for him to exercise his appeal rights.

45. The Tribunal finds that this weighs in favour of it exercising its discretion in the Applicant’s favour.

    Prejudice to the Respondent or the General Public

46. The Tribunal observes that the absence of prejudice is not itself sufficient to justify the granting of an extension (see Lucic v Nolan and Others (1982) 45 ALR 411 at 416-7).

47. An objective of the Tribunal is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s 2A(b) of the AAT Act). In this instance, there is a long delay in the applying for review. Despite this however, there is no significant prejudice that the Respondent would suffer. However, the Tribunal does note that there should be uniformity in the Tribunal regarding time limits for applying for review and to extend time in one instance and not in another could cause prejudice to the general public.

    Merits of the substantive application

48. As noted above, when deciding whether to grant an extension of time to an applicant,

    
    

    the Tribunal may consider the merits of the applicant’s substantive application.

    
    

    The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) FCA 75),

    
    

    but, rather, should assess whether the applicant has an ‘arguable case’

    
    

    (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

49. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission (Joined Party) [2011] AATA 113 and

    
    Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

    [2011] AATA 276).

50. The Respondent contends that the Applicant’s application has limited prospects of success and that this weighs heavily against the granting of an extension of time.

51. The Respondent has provided submissions on whether the Applicant has any or limited prospects of success.

52. The issue in dispute in the substantive hearing is whether the Applicant is entitled to have his application for citizenship approved. His application was refused because he was unable to obtain identity papers from Afghanistan.

53. The Tribunal considers that this is not a straightforward issue and is one that deserves to be considered on its merits. The Applicant said in his evidence that it was not uncommon for people granted protection visas, such as himself, to not have documentation from their home country. The Tribunal agrees with this submission and finds that it is not possible for it to form any conclusive view as to the merits of the substantive application.

54. Accordingly, the Tribunal finds this weighs in favour of the Applicant in considering its discretion to grant an extension of time.

    Alternative avenues of relief

55. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application

    
    

    (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission (Joined Party) [2011] AATA 113 at [18] and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]).

56. The applicant is of course entitled to make a fresh application for citizenship and the potential prejudice of this to him is the additional application fee.

    Any other relevant factors

57. The Applicant submitted that he wished to return to Pakistan to see his family and without his passport he would be unable to do so. As is submitted by the Respondent in (Exhibit R1, paragraph 26), there are possibly other alternatives available to the Applicant to facilitate overseas travel as shown by his travel there in 2012.

58. The Tribunal finds this factor weighs in favour of it not exercising its discretion to extend the time for the Applicant to lodge his application.

    CONCLUSION

59. The Tribunal has had careful regard to all the factors outlined above in considering the exercise of its discretion to provide an extension for the Applicant to lodge an application for review of the delegate’s decision.

60. The Tribunal notes the application was lodged significantly out of time – in excess of two years. Whilst prima facie this would carry significant weight towards its decision to not exercise its discretion to extend time, the Tribunal is concerned that the Applicant was not aware of the decision until 7 August 2019. The reason he became aware was because he lodged a Freedom of Information request with the Department (Exhibit A1, paragraphs 13(g),(h) and (i).

61. The Tribunal has had regard to the Respondent’s submission that even though the Applicant updated his postal address contact details and included an email address,

    
    

    he did not indicate he would now prefer his communication to be done by email.

    
    

    In the Respondent’s view it was therefore acceptable for them to notify the Applicant of the decision by registered post.

62. In these circumstances, the Tribunal has some concern with this proposition.

    
    

    The Department’s position is inconsistent with their email communication when requesting further information. The Tribunal is also concerned that after the decision was marked as ‘return to sender’ the Department took no proactive steps to send the decision by email when the Applicant had already updated his email details and they were clearly displayed on the Department’s electronic record system. The Tribunal accepts that the onus is to a large extent on an applicant to maintain accurate records on their Department file. However, it could easily be argued that the Applicant did do this. The Respondent had another address for the decision to be sent to which it did not do.

1. If the Applicant was taken to have received his decision on 7 August 2019, he lodged his application for review on 20 August 2019 which is within the 28-day timeframe.

2. The Tribunal accepts the decision was made on 7 August 2017 but also finds the Applicant did not become aware of the decision until 7 August 2019.

3. The Applicant’s submissions and his oral evidence at the hearing were consistent in demonstrating that he was actively engaged with his citizenship application since he lodged it in 2014. This application is now nearly six years old with no finality for the Applicant.

4. The Applicant can lodge a further citizenship application. However, given the significant period of time which has already elapsed together with the further costs which he would  incur, the Tribunal finds that the correct and preferable decision in these circumstances is to exercise its discretion to extend the time within which the Applicant can lodge his application for review.

   DECISION

5. The Tribunal grants the Applicant’s application for an extension of time to lodge an application for review of the Reviewable Decision.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member M East

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

Associate

Dated: 20 May 2020

Date of hearing:	31 March 2020
Counsel for the Applicant:	Mr Farris Faris
Solicitors for the Applicant:	Rebus Legal
Counsel for the Respondent:	Mr Matthew Sunits
Solicitors for the Respondent:	The Australian Government Solicitor