Saleque and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 414

Saleque and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 414 (7 March 2018)

Division:GENERAL DIVISION

File Number:           2017/3490

Re:Imran Ibn Saleque

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:7 March 2018

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to make application for review – whether it is reasonable in all the circumstances to grant the extension – acceptable explanation for delay – whether applicant ‘rested on his rights’ – prejudice to the respondent and general public – merits of substantive matter – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth), ss 21, 22

CASES

Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444

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

REASONS FOR DECISION

Dr L Bygrave, Member

7 March 2018

1. On 20 December 2017, Mr Imran Ibn Saleque 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 15 May 2017 by a delegate of the Minister for Immigration and Border Protection (the Minister). This decision was to refuse Mr Saleque’s application for Australian citizenship because he 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 listed to be heard by the Administrative Appeals Tribunal (the Tribunal) in Sydney on 20 February 2018 by teleconference. Mr Saleque did not attend the hearing and did not respond to telephone, email or postal contact from the Tribunal until 28 February 2018 when he requested the Tribunal relist the matter for hearing. On 23 February 2018, the Tribunal gave parties the opportunity to provide written submissions by 2 March 2018; a submission was received from the Minister’s legal representative on 28 February 2018 but there was no written response from Mr Saleque. The Tribunal then proceeded to determine the matter.

   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; and

   (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 Mr Saleque seeking a review of the decision is four days after the 28 day limit. This is not a significant delay but Mr Saleque has provided no explanation for his delay in seeking a review of the decision.

10. 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

11. 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.

12. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mr Saleque’s application. However, given the delay is four 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

13. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.

14. The issue in the substantive application is whether Mr Saleque can meet the general residence requirements of the Act.

    Relevant legislation and consideration

15. 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]

16. Mr Saleque applied for conferral of Australian citizenship on 14 September 2016. The Minister’s decision dated 15 May 2017 stated:

    Departmental records indicate [Mr Saleque has] been lawfully and physically present in Australia for 36 days only as a permanent resident in the 4 years immediately before making [his] application.

17. This is consistent with Mr Saleque’s records in an (undated) written statement provided to the Minister’s delegate, in which he states that he travelled to Australia in 2014 for 10 days, 2015 for 18 days and 2016 for 8 days.

18. Based on this evidence, Mr Saleque does not satisfy the requirements in paragraph 22(1)(a) or paragraph 22(1)(c) of the Act.

19. The Tribunal also considered whether 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.

20. Mr Saleque is the spouse of an Australian citizen. However, given he has only been physically present for 36 days in Australia in the four years prior to lodging his application for Australian citizenship, the Tribunal is not persuaded he can provide evidence of ‘a close and continuing association with Australia during that period’.

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

    CONCLUSION

22. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

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

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 7 March 2018

Date of hearing:	20 February 2018
Applicant:	In person
Solicitors for the Respondent:	Mr W Sharpe, Minter Ellison