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

[2021] AATA 1344

SJRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1344 (17 May 2021)

Division:GENERAL DIVISION

File Number(s):2021/0911      

Re:SJRP  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:17 May 2021

Place:Sydney

I find it is reasonable in all the circumstances to grant the applicant’s extension of time application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application for an extension of time to make an application for review – whether it is reasonable in all the circumstances to do so – extent and reason for the delay – merits of the substantive matter – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

CASES

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

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

REASONS FOR DECISION

Senior Member A Poljak

17 May 2021

1. SJRP, the applicant was born in Myanmar. He first arrived in Australia in 2010 as an illegal maritime arrival. In his dealings with the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Department), the applicant claimed that he could not return to Myanmar due to fears that he would be arrested and imprisoned for 15 years by the Military due to escaping forced labour and being a Rohingya and a Sunni Muslim. As a result of these claims, the applicant was granted a Protection (subclass 866) visa (Protection visa) in February 2012.

2. On 29 February 2016, the applicant made an application for Australian citizenship. On 17 April 2020, the Department wrote to the applicant requesting a detailed account of the applicant’s life story and requested that the applicant complete a Form 80-Personal particulars for assessment including character assessment. At the time, the applicant was represented by a Migration Agent who informed the Department that the applicant was in lockdown in Bangladesh due to COVID-19 restrictions and could not provide the requested documents and further information to further process his citizenship application. The following response was sent to the applicant’s representative:

   “I note that your client is in lockdown in Bangladesh however it is our experience that most agents work online to obtain the required information from their clients. Please ask your client to complete the Statutory Declaration and Form 80 and forward the same to the Department. Please also advise what documents your client intends to provide or potentially obtain in support of his application.

   The application can also be progressed without additional documents from the applicant.”

3. The applicant subsequently provided a completed Form 80 and a statutory declaration to the Department through his Migration Agent.

4. On 19 August 2020, the Department sent the applicant an invitation to comment on concerns raised regarding an allegation that the applicant provided false and/or misleading information to the Department in his application for his protection visa. Specifically, the Department alleged that the applicant travelled to Burma (Myanmar) after the granting of his protection visa; the very place he sought refuge from in Australia. He had previously claimed he would be imprisoned or/and face serious harm by the Military if he travelled back to Myanmar.

5. The Department received a request from the applicant for an extension of time to provide a response stating, “I am currently overseas and I am currently stuck in Bangladesh and I am unable to return to Australia. All my information and documents to be provided are in Australia and I am unable to access them as my files are at home in Australia. Moreover, I am not too good with english and do not have proper internet access here in Bangladesh…”. The Department granted a two-month extension requiring a response by 20 October 2020. No further information was provided by the applicant.

6. On 30 October 2020, the delegate decided to refuse the application for Australian citizenship made by the applicant on the basis that the delegate was not satisfied the applicant was of good character for the purpose of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The applicant seeks review of this decision in the Tribunal (substantive matter).

7. These interlocutory proceedings concern an application for an extension of time (EOT application) with respect to the substantive matter, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the extension of time sought.

   PRINCIPLES TO BE APPLIED

8. Ordinarily, 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 pursuant to paragraph 29(2)(a) 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” pursuant to subsection 29(7) of the AAT Act.

9. The principles to be applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and 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”, allowing 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 is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account;

   (f)“Considerations of fairness as between the applicants and other persons” in a similar position are relevant.

10. 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; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.

11. The principles relevant in these interlocutory proceedings is the extent and reason for delay and the merits of the substantive matter.

    DELAY

12. The applicant claims that he received the decision on 30 October 2020. The 28-day time limit to lodge an application for review with the Tribunal therefore expired on 27 November 2020. The applicant’s EOT application was not lodged until 16 February 2021, making it approximately two months and 19 days out of time (delay period). This delay weighs in favour of refusing the EOT application.

13. The applicant advised in his application form to the Tribunal that the reason for the delay in applying for review of the decision was as follows:

    “I was in Bangladesh when I received the decision from the department. I went to see my wife and children in Bangladesh in March 2020 and could not return until 19 December 2020 due to the COVID-19 travel restriction and logistic difficulty to return Australia. Upon arrival, I was in quarantine for further 2 weeks and able to return in the community on 3 January 2021. My previous migration agent only forwarded the decision to me on 30 October 2020 but did not provide me any further assistance to appeal in AAT or suggestion how to do it as I did not have any money left to pay him due to the result of being held up in Bangladesh for around 9.5 months without any work and income. I was financially struggling to support myself, my wife and my children at that time. I had to borrow money from friends to pay for the return ticket, which costed me around $4,500. I tried many times to book for the ticket to return on time, but those flights get cancelled again and again. Therefore, I could not appeal in AAT within 28 days of the decision being received. After arrival in Australia, I started working as an UBER driver but due to the debt I am in, I could not approach to any other lawyer till I am able to contact to Mr. Daniel Taylor this week, who understood my financial difficulty and agreed to assist me in my citizenship appeal with minimum cost.

    I am a stateless Rohingya and could not respond the RFI sent by the department in due time as I was in Bangladesh at that time. This has costed me the citizenship refusal though I sent an email on 30 October 2020 to the delegate explaining my situation but the decision was already made by the delegate on that day. The situation arose due to COVID-19 caused the delay in responses to the department and also to the appeal in AAT.”

14. At hearing, the applicant reiterated the circumstances resulting in the delay in applying for review. Namely, factors such as COVID-19 restrictions and lockdown in Bangladesh, the applicant’s financial circumstances, his inability to obtain legal representation in Bangladesh due to restricted work rights, time spent in quarantine upon arriving in Australia and his level or understanding of the English language. These factors plainly played a part in delaying the applicant applying for review in the Tribunal. I do not consider the length of the delay to be significant having regard to the applicant’s circumstances in this case.

    MERITS OF SUBSTANTIVE MATTER

15. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a preliminary view as to the prospects of the application under review.

16. The Department claims that the applicant provided false or misleading information to the Department to facilitate his citizenship application. Specifically, the Department alleges that the applicant failed to disclose several trips overseas since the grant of his permanent residency visa. In support of the applicant’s citizenship application he provided a Form 80, signed on 16 May 2020. At question 18 he was asked if he had travelled to any country other than Australia in the last 10 years. In response he recorded that he has travelled to Bangladesh to visit family from 5 March 2020 to 3 June 2020. He omitted to include all other overseas travel details. The Department also claims that the applicant returned to Myanmar, the country he sought and currently holds protection from. An incoming passenger card dated 18 September 2013 records that the country the applicant spent the most time abroad was ‘Burma’.

17. The applicant contends that he has “never travelled to Burma again since [he] fled Burma long ago” and there was no way he could have travelled to Burma where the genocide was happening again since 2012 on Rohingyas.  He submits that it would be like “walking into [his] own death”. The applicant contends that he has only travelled to Bangladesh to see his family.

18. The applicant also makes much of the submission that the question in the passenger card relied on by the Department is inherently unfair and misleading. Particularly given the applicant’s understanding of the English language. There may be some merit to this submission should further evidence and submissions be made at a hearing of the substantive matter. 

19. Despite ample opportunity already having been given to the applicant in the past to provide further evidence, the applicant’s circumstances at the time (as detailed above at [14]) were plainly factors which limited his ability to provide the relevant information to the Department. Further evidence may be gathered and provided for the hearing of the substantive matter addressing the Department’s concerns about the applicant’s overseas travel.

20. I am not convinced that the applicant’s prospects of success in the substantive matter are hopeless or lacking to such a degree that an extension of time ought not be granted.

    DECISION

21. For the above reasons, I find it is reasonable in all the circumstances to grant the applicant’s EOT application pursuant to subsection 29(7) of the AAT Act.

22. The EOT application is granted.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 17 May 2021

Date of hearing:	28 April 2021
Solicitors for the Applicant:	Mr D Taylor, Sydney West Migration Pty Ltd
Solicitors for the Respondent:	Mr T Hillyard, Sparke Helmore Lawyers