TONY KAMOUN and MIINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 440

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [ 2010] AATA 440

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0744

GENERAL   APPEALS   DIVISION		)
Re		TONY KAMOUN

Applicant

And MIINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date1 June 2010

PlaceMelbourne

Decision The Tribunal dismisses the application for the extension of time pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975.

........(sgd G L McDonald).........

Deputy President

CATCHWORDS

Practice and procedure – application for extension of time for review of decision not to grant Australian citizenship – principles applicable – adequacy of explanation for delay – consideration of merits of claim – application dismissed.

Acts Interpretation Act 1901 (Cth) s 29
Administrative Appeals Tribunal Act 1975 ss 29(4)-(6), 29(7) and 42A(2)
Australian Citizenship Act 2007 ss 21(2)(h), 24(6) and 52

Re: Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176

REASONS FOR DECISION

11 June 2010 Mr G L McDonald, Deputy President

1.      The applicant is applying in the substantive application lodged with the Tribunal for a review of the decision to refuse granting him Australian citizenship under the Australian Citizenship Act 2007 (the Act).  The refusal was based on a finding that the applicant was ineligible for the grant, because he was not a person of good character at the time the decision was made[1]. Accompanying the application to review is an application to extend time in which to lodge the substantive application. Both were filed with the Tribunal on 23 February 2010. The latter application is made pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)

[1] Section 21(2)(h) of the Australian Citizenship Act 2007

2.      The Tribunal listed the hearing of the application for the extension of time for 9.30 a.m. on 1 June 2010.  The applicant was advised of the hearing by letter to the address, he notified as his address for service, dated 14 May 2010.  On 1 June the Tribunal convened to hear the application.  There was no appearance by the applicant when the hearing began, and Tribunal had him called outside the Tribunal hearing room.  There being no appearance by him, and the Tribunal not having received any communication from the applicant that he was unable to attend, the Tribunal proceeded to hear and determine the application for the extension of time without him.  Mr David Brown of the Australian Government Solicitor’s Office represented the respondent.  The Tribunal was later informed that the applicant came to the Tribunal Registry at or about 10:00 a.m., by which time the Tribunal had given its decision and the hearing had concluded.  When it was explained to the applicant what had happened in his absence, and that he had the option of written reasons being provided for the Tribunal’s decision to dismiss his application for an extension of time, the applicant requested that he be given same.  These are those reasons. 

3.      The substantive decision refusing the applicant a grant of citizenship was notified to the applicant in a letter dated 18 December 2008.  In that letter, the applicant was advised that he could apply to the Administrative Appeals Tribunal for a review of the decision.  The letter attached a brochure about the Tribunal.  In this Act, no time limit is prescribed in the section which authorises the lodging of applications for review[2]. When that occurs, the Tribunal is to determine the application for an extension of time under the provisions of s 29(4)-(6) of the AAT Act. Those provisions are:

[2] Section 52 of the Act.

(4)Where:

(a)no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or

(b)no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision;

and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):

(c)in a case to which paragraph (a) applies—refuse to entertain an application for a review of the decision referred to in that paragraph; or

(d)in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.

(5)In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to:

(a)the time when the applicant became aware of the making of the decision; and

(b)in a case to which paragraph (4)(b) applies—the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision;

and may have regard to any other matters that it considers relevant.

(6)Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.

4.      There is a considerable gap in time between the date of the letter advising the applicant of the grant refusal and the date on which he lodged his applications with the Tribunal, in fact, some 14 months.  No explanation is given as to why the extension of time substantive application was not lodged earlier.  The Tribunal notes that the address to which the letter of 18 December 2008 was sent is the same address notified by the applicant to the Tribunal.  There seems no reason to conclude other than this letter was delivered to the applicant in the ordinary course of the post[3].  On that basis he should have received the letter within several business days of that date. 

[3] Section 29 Acts Interpretation Act 1901 (Cth).

5.      On the material available to the Tribunal, and in the absence of any advice from the applicant to the contrary, the Tribunal concludes that the applicant became aware of the making of the decision by the end of December 2008.  Given the letter of refusal advised him then of his appeal rights and gave contact details for the Administrative Appeals Tribunal, it is reasonable to expect that the applicant may have taken some action by the end of January 2009.  That he did not do so, and again in the absence of any explanation as to why the applicant delayed for such a long time before lodging the application, leads the Tribunal to conclude that the time gap is unreasonable.

6.      It is ordinarily the case that when a determinative body is deciding an application for an extension of the time that it will also have regard to the possible merits of the substantive application[4].

[4] “The merits of the substantial application are properly to be taken into account in considering whether and extension of time should be granted”: Wilcox J in Re: Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176 at para 22.

7.      The respondent informed the Tribunal in its submission in support of notice opposing the extension of time application that the applicant has several convictions.  They are as follows:

3.1in June 1999 he was imprisoned for 9 months (served 3 months) for assault occasioning bodily harm;

3.2in December 2003 he was sentenced to two concurrent periods of 6 months’ imprisonment, suspended for 12 months, for recklessly causing injury, theft, 3 counts of robbery, and carrying an unregistered longarm firearm; and

3.3in December 2006 he was sentenced to 3 months’ imprisonment suspended for 12 months for perjury and obtaining financial advantage by deception, and to 3 months’ imprisonment to be served by way of an intensive correction order for nine counts of obtaining property by deception.

8.      The applicant applied for the grant of citizenship on 15 July 2008.  At the time the decision to refuse was made, the applicant was not apparently under sentence for any offences.  Accordingly, his application for citizenship was not automatically excluded by s 24(6) of the Act.  Nevertheless, given he had been convicted of offences on three occasions within a 10 year period preceding his application and that the offences were serious (on two occasions involving assault and one count of perjury – the latter conviction occurring approximately two years prior to the refusal decision), the decision to refuse his application is reasonable and was open to the decision maker.  The Tribunal assesses the chance of him succeeding in his application to it for review as being weak.

9.      The weakness of his case combined with the lack of any explanation for the delay leaves the Tribunal satisfied that the application for an extension of time ought to be rejected.  It follows that the substantive application is rejected also.

10.     For the above reasons the Tribunal dismisses the application for the extension of time.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ..........(sgd D De Andrade).............................
  Personal Assistant

Date of Hearing  1 June 2010
Date of Decision  1 June 2010
Date of Written Reasons          11 June 2010

For the applicant  applicant – non appearance

Solicitor for the Respondent     Mr D Brown,
  Australian Government Solicitor