Toma and Minister for Home Affairs (Citizenship)

[2019] AATA 505

Toma and Minister for Home Affairs (Citizenship) [2019] AATA 505 (22 March 2019)

Division:GENERAL DIVISION

File Number:           2019/0150

Re:Akram Toma

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 March 2019

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

Catchwords

EXTENSION OF TIME – principles to be applied – applicant seeking an extension of time to make an application to review a decision – whether application for extension of time is reasonable in all the circumstances – permanent or enduring physical or mental incapacity – prejudice to the respondent and general public – whether the applicant rested on his rights – applicant did not provide a written explanation for the delay – merits of the substantial application – application of Citizenship Policy – extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 29

Australian Citizenship Act 2007 (Cth) ss 21

Cases

Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239

Comcare v A’Hearn (1993) 45 FCR 441

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

Secondary Materials

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

22 March 2019

INTRODUCTION

1. On 24 January 2019, Mr Akram Toma lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 22 May 2018 by a delegate of the Minister for Home Affairs (the Minister) to refuse his application for Australian citizenship under the Australian Citizenship Act 2007 (the Act) (the reviewable decision).

2. The Minister opposes the extension of time sought.

3. The application was heard by the Tribunal in Sydney on 12 March 2019. Mr Toma attended the hearing and gave oral evidence by teleconference; he was assisted by an interpreter of the Assyrian language.

   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] paraphrased 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 general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)considerations 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) 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 length of delay in Mr Toma seeking a review of the reviewable decision is more than seven months after the 28 days’ time limit.

10. Mr Toma did not provide a written explanation for this delay in his application to the Tribunal. At the hearing, Mr Toma accepted he received the reviewable decision soon after 22 May 2018. However, the delay in him seeking review was because there were “lots of holidays” and he required the assistance of the Chaldean community centre at Fairfield to complete his application for review.

11. I note the reviewable decision was accompanied by a letter from the Minister’s delegate, also dated 22 May 2018, which set out Mr Toma’s review rights to the Tribunal within 28 calendar days of receiving the reviewable decision. I am therefore satisfied that Mr Toma was notified about his review rights.

12. I find Mr Toma’s explanation for the delay of more than seven months is inadequate and indicates he “rested on his rights”. This weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

13. 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.

14. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mr Toma’s application. Given the delay of more than seven months, I am satisfied that there would be significant prejudice to the Minister and the general public if the extension of time is granted. This factor weighs against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

15. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Mr Toma can meet the requirements set out in subsection 21(3) of the Act.

    Relevant legislation and consideration

16. Subsection 21(3) of the Act sets out the requirements for Australian citizenship for a person with a “permanent or enduring physical or mental incapacity”. The provisions of the Act relevant to the substantive application are:

    Permanent or enduring physical or mental incapacity

    (3)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    ….

    (d)  has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

    (i)  is not capable of understanding the nature of the application at that time; or 

    (ii)  is not capable of demonstrating a basic knowledge of the English language at that time; or  

    (iii)  is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

    ...

17. In his initial application to the Tribunal received on 10 January 2019, Mr Toma wrote “mentel [sic] health” as his reason for the application. Mr Toma did not file any additional evidence to support the merits of his substantive application.

18. I therefore have regard to the information contained in the reviewable decision and a report written by Dr Mahmoud Abu-Arab (clinical psychologist) dated 7 February 2017.

19. The provisions of the Act require that Mr Toma show he had a “permanent or enduring mental or physical incapacity” at the time he lodged his application for Australian citizenship on 10 April 2017.

20. The report by Dr Abu-Arab diagnosed Mr Toma with chronic post-traumatic stress disorder and major depression, and opined Mr Toma functions at the level of borderline intellectual disability. Dr Abu-Arab noted Mr Toma is illiterate in his native language and in English, and concluded Mr Toma “is not capable of demonstrating a basic knowledge of the English language… I am satisfied he is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship”.[1]

    [1] T documents: T4, page 37.

21. Previous Tribunal decisions have outlined concerns with reports by Dr Abu-Arab.[2] I concur with many of these concerns. In particular, I find Dr Abu-Arab’s report about Mr Toma dated 7 February 2017 did not outline adequate methodology for diagnosing Mr Toma’s mental health conditions, and contained unsubstantiated opinions and conclusions.

    [2] See Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 at [44]-[47].

22. At the Tribunal hearing, Mr Toma confirmed that he has not seen Dr Abu-Arab or any other clinical psychologist/specialist since the date of Dr Abu-Arab’s report in February 2017. This is not consistent with the Citizenship Policy, which provides that a person who claims to have a permanent or enduring mental or physical incapacity must be seeing a specialist on a regular basis.

23. Mr Toma also told the Tribunal he attended 510 hours of English-language tuition after he arrived in Australia in 2009 but he “did not understand”. He confirmed he holds an Australian driver’s license and is able to read Australian road signs when driving, although he “does not drive a lot”.

24. In considering the relevant circumstances and the evidence before the Tribunal, I find that Mr Toma’s substantive application is likely to have limited prospects of success. This weighs against an extension of time being granted.

    CONCLUSION

25. 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

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

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 22 March 2019

Date(s) of hearing:	12 March 2019
Applicant:	In person
Solicitors for the Respondent:	K Dunlop, Sparke Helmore Lawyers