Tuji and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 467 (4 July 2016)
Division
GENERAL DIVISION
File Number(s)
2016/2532
Re
Mr Sileshi Tuji
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 4 July 2016 Place Melbourne The Tribunal refuses the application for an extension of time to lodge an application for review of the decision to refuse Australian citizenship.
…………[sgd]………………..
Mr Conrad Ermert, Member
EXTENSION OF TIME refusal of application for Australian citizenship - notification of refusal - delay in application for review - application for extension of time - no explanation of delay - no other action taken - prejudice to respondent - merits of substantive case - fairness to other persons - extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
Mr Conrad Ermert, Member
INTRODUCTION
On 4 June 2014 Mr Sileshi Tuji, the Applicant, applied for Australian citizenship by conferral. On 30 April 2015 a delegate for the Minister for Immigration and Border Protection, the Respondent, refused the application. On 13 May 2016 Mr Tuji contacted this Tribunal to seek a review of the decision. On the same day Mr Tuji applied for an extension of time for making the application for review.
This matter is a consideration of the application for an extension of time.
HEARING
The hearing was conducted by telephone. Although Mr Tuji had been advised by notice from the Tribunal, dated 1 June 2016, of the time and date for the hearing Mr Tuji could not be contacted. Mr Tuji provided no material for consideration.
Ms Phoebe Richards of Clayton Utz represented the Respondent. I had before me for consideration the Respondent’s Outline of Submissions on Extension of Time Application dated 14 June 2016 with Attachments 1 and 2.
LEGISLATION
The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Subsection 29(7) of the Act provides that the Tribunal may extend the time for a person to make an application for a review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
TRIBUNAL CONSIDERATIONS
The Act does not indicate the factors the Tribunal should consider in determining whether it is reasonable to extend the time for making an application. Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 listed some commonly used factors that may be taken into account. They include:
·whether the Applicant has provided an acceptable explanation of the delay;
·whether the Applicant has taken any action other than making an application for review;
·any prejudice to the Respondent which may result from the delay;
·the merits of the substantive application; and
·fairness between the Applicant and other persons is like positions.
Explanation for the Delay
Mr Tuji’s application is over one year outside the 28 day time period. Mr Tuji has provided no explanation for the delay. In the absence of any explanation I can not be satisfied that a reasonable explanation exists for the delay. Although this is not an essential condition I consider the lack of an explanation weighs heavily against the reasonableness of granting an extension.
Any Action by the Applicant
The Respondent submits that Mr Tuji took no action to make the Respondent aware that he was contesting the finality of the decision to refuse his citizenship. The Respondent submits “While Mr Tuji called the Department twice following the relevant decision, on 3 June 2015 and 10 June 2015, we understand that during these conversations he did not indicate an intention to appeal and instead was advised by the Department to read the decision … Mr Tuji did not contact the Department again following his call on 10 June 2015”.
The notification of the decision includes a section on the rights of review including the requirement to lodge an application with this Tribunal within 28 calendar days. The notification was sent to Mr Tuji by mail to his last advised address.
I accept that Mr Tuji was aware of his rights to appeal the decision. I have no evidence of any actions taken by Mr Tuji that suggest that he intended to proceed with an appeal against the decision. I accept that the Respondent was entitled to regard the application as being finalised.
Any Prejudice to the Respondent
The Respondent submits that it is desirable for effective public administration that there is certainty and finality of decision.
I accept the general principle enunciated by the Respondent but find that there is no evidence of any specific prejudice in this case.
Merits of the Substantive Application
The reasons for the decision to refuse his application include a description of the evidence that Mr Tuji would need to provide to support a decision in his favour. Despite the time elapsed since the refusal decision, Mr Tuji has provided no evidence for consideration.
Mr Tuji has provided no evidence to show that he has an arguable case. Accordingly I place little weight on the merits of the substantive case in support to the extension of time considerations.
Fairness between the Applicant and Other Persons
The Respondent contends that granting an extension of time for Mr Tuji’s application would be unfair to those persons who have been denied an extension for want of merit in their substantive cases, or those persons who have applied for review within the 28 day time limit.
I have no submissions from Mr Tuji in support of his extension of time application. I have no explanation for the delay and no indication of an arguable case for the substantive hearing. I consider it would be unfair to other persons if I were to grant an extension of time to Mr Tuji.
CONCLUSION
None of the relevant factors provide support for an extension of time for Mr Tuji’s application for review. Accordingly I refuse Mr Tuji’s application for an extension of time to lodge an application for a review of the decision to refuse Mr Tuji’s application for Australian citizenship.
DECISION
The application for an extension of time is refused.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member .......................[sgd]...........................
Associate
Dated 4 July 2016
Date of hearing 29 June 2016 Applicant Not present at hearing Advocate for the Respondent Ms Phoebe Richards, Lawyer Solicitors for the Respondent Clayton Utz
- AGLC
- Tuji and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 467
- Case
- [2016] AATA 467
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Tuji an extension of time to lodge his application for review, pursuant to subsection 29(7) of the *Administrative Appeals Tribunal Act 1975* (Cth). In determining this, the Tribunal considered factors including whether an acceptable explanation for the delay had been provided, whether any action had been taken by the applicant other than the application for review, any prejudice to the respondent, the merits of the substantive case, and fairness to other persons in like positions.
The Tribunal found that Mr Tuji's application was lodged over a year outside the prescribed 28-day time limit and that he had provided no explanation for this significant delay. Furthermore, despite being notified of his review rights, Mr Tuji had taken no action to indicate an intention to appeal the decision, apart from two brief phone calls to the Department where he was advised to read the decision. The Tribunal accepted that the respondent was entitled to regard the decision as final and that there was no evidence of specific prejudice to the respondent, although it noted the general desirability of certainty and finality in public administration. No evidence had been provided by Mr Tuji to support the merits of his substantive application.
The Tribunal concluded that none of the relevant factors supported an extension of time. Accordingly, the application for an extension of time to lodge an application for review of the decision to refuse Australian citizenship was refused.
Orders
Orders of the court
The Tribunal refuses the application for an extension of time to lodge an application for review of the decision to refuse Australian citizenship.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Subsection 29(7) of the Act provides that the Tribunal may extend the time for a person to make an application for a review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. TRIBUNAL CONSIDERATIONS The Act does not indicate the factors the Tribunal should consider in determining whether it is reasonable to extend the time for making an application. Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 listed some commonly used factors that may be taken into account. They include:·whether the Applicant has provided an acceptable explanation of the delay;·whether the Applicant has taken any action other than making an application for review;·any prejudice to the Respondent which may result from the delay;·the merits of the substantive application; and·fairness between the Applicant and other persons is like positions.Explanation for the Delay Mr Tuji’s application is over one year outside the 28 day time period. Mr Tuji has provided no explanation for the delay. In the absence of any explanation I can not be satisfied that a reasonable explanation exists for the delay. Although this is not an essential condition I consider the lack of an explanation weighs heavily against the reasonableness of granting an extension.Any Action by the Applicant The Respondent submits that Mr Tuji took no action to make the Respondent aware that he was contesting the finality of the decision to refuse his citizenship. The Respondent submits “While Mr Tuji called the Department twice following the relevant decision, on 3 June 2015 and 10 June 2015, we understand that during these conversations he did not indicate an intention to appeal and instead was advised by the Department to read the decision … Mr Tuji did not contact the Department again following his call on 10 June 2015”. The notification of the decision includes a section on the rights of review including the requirement to lodge an application with this Tribunal within 28 calendar days. The notification was sent to Mr Tuji by mail to his last advised address. I accept that Mr Tuji was aware of his rights to appeal the decision. I have no evidence of any actions taken by Mr Tuji that suggest that he intended to proceed with an appeal against the decision. I accept that the Respondent was entitled to regard the application as being finalised. Any Prejudice to the Respondent The Respondent submits that it is desirable for effective public administration that there is certainty and finality of decision. I accept the general principle enunciated by the Respondent but find that there is no evidence of any specific prejudice in this case. Merits of the Substantive Application The reasons for the decision to refuse his application include a description of the evidence that Mr Tuji would need to provide to support a decision in his favour. Despite the time elapsed since the refusal decision, Mr Tuji has provided no evidence for consideration.