Zazzaro and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 540
•28 July 2016
Zazzaro and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 540 (28 July 2016)
Division
GENERAL DIVISION
File Number
2016/2788
Re
Carlo Zazzaro
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Member K Millar
Date 28 July 2016 Place Adelaide The time in which Mr Zazzaro is to lodge his application is extended by the Tribunal under subsection 27(9) of the Act to include the date on which his application was lodged.
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Member K Millar
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time to lodge application for review – whether acceptable explanation for delay – whether applicant rested on rights – merits of substantive application – extension of time granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)s 29(7)
Australian Citizenship Act 2007 (Cth)
CASES
Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) FCR 344
Re Tuji v Minister for Immigration and Border Protection [2016] AATA 467
Re Zou v Minister for Immigration and Border Protection [2016] AATA 160
Re Soukarie and Minister for Immigration and Border Protection [2015] AATA 442Re Becek and Department of Immigration and Citizenship [2012] AATA 237
REASONS FOR DECISION
28 July 2016
BACKGROUND
Mr Zazzaro applied for Australian citizenship on 29 July 2015. His application was refused by a delegate of the Minister for Immigration and Border Protection on 17 February 2016. On 26 May 2016, Mr Zazzaro applied to this Tribunal for a review of the decision, and on the same day applied for an extension of time for making the application for review. The Minister opposes the application for an extension of time.
This is a consideration of the application for an extension of time under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act).
CONSIDERATION
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 considers that it is reasonable in all the circumstances to do so.
The Act does not indicate the factors the Tribunal should take into account in determining whether it is reasonable to extend the time for making an application. In Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J set out principles to guide, in a non-exhaustive manner, the exercise of this discretion. These principles are:
(a)Whether the applicant has shown an acceptable explanation for the delay;
(b)The action the applicant has taken other than making the application for review, and whether the applicant has rested on his or her rights;
(c)Any prejudice to the respondent;
(d)Whether, despite the absence of prejudice, there are considerations of public policy such as whether the delay will result in unsettling of other people or of established practices;
(e)The merits of the application; and
(f)The fairness as between the applicant and other people in a like position.
In his application, Mr Zazzaro says he has epilepsy and can’t read well. He states he has been in Australia for 52 years and does not speak Italian. He states he has been a good person for 38 years and has done no wrong. He says he has six children he has raised as a single person.
In opposing the application, the Minister submits the delay is significant at two months and five days. The Minister submits the reason for the delay is inadequate and there is no suggestion that the decision was not served.
The Minister also submits the merits of the application do not warrant an extension of time. The application for citizenship was refused in the basis that Mr Zazzaro did not meet paragraph 21(4)(f) of the Australian Citizenship Act 2007 which requires Mr Zazzaro to be of good character.
Explanation for the delay
There is no suggestion Mr Zazzaro did not receive the decision or did not understand the timeframe he had to lodge an application. In his application to extend time, Mr Zazzaro says he suffers from epilepsy and he did not remember to lodge his application on time as he suffers memory lapses.
Shortly before the hearing Mr Zazzaro provided a medical report stating he has a long history of epilepsy, and that because of his illness and medication he suffers memory lapses. Mr Zazzaro last had a seizure eight years ago. He has had a stroke and as a result has difficulty with his mobility.
Mr Zazzaro said he is the main carer for his father, who lives at home, and his mother, who is in a nursing home. At the time he received the decision, he was travelling between his father’s home and his mother’s nursing home as well as helping to care for his grandchildren. He said he had a lot of things on his mind and overlooked lodging the application.
Mr Zazzaro said he thought he would need $860 to apply and this was what he was told when he contacted the tribunal about lodging his application. He later found out the fee was $100 which was manageable for him as he is on a disability support pension. Mr Zazzaro was quite vague about when he contacted the tribunal, or who he spoke to at the tribunal.
While neither Mr Zazzaro’s reported memory lapses nor the care of his parents provides a reasonable explanation for the delay, he is on a disability support pension and I accept that he believed he could not lodge an application without paying $860 and this prevented him lodging the application within the required time.
Action taken other than lodging the review
Mr Zazzaro said he had contacted the Tribunal and been advised that it would cost $860 to lodge the application. He was unable to say when he had contacted the Tribunal, the time of day he contacted the Tribunal or who he may have spoken to when he contacted the Tribunal. However, the copy of the decision he provided includes a hand written notation of the 1800 number he needed to contact and “$100” at the top of the page. It has handwritten contact details for Legal Aid.
Prejudice to the respondent
The Minister relies on Mr Zazzaro’s known and readily determined criminal record in the decision. This will not change over time. The Minister did not argue there would be any prejudice should the application to extend time be granted.
Public Policy
There were no considerations of public policy identified.
The merits of the application
The Minister states Mr Zazzaro has an extensive criminal history spanning 42 years and has continued to offend until 2008. He offending includes robbery with violence and building breaking with intent to commit a felony. The Minister submits that Mr Zazzaro’s continued offending in driving while unlicensed and driving while disqualified shows a disregard for Australian laws. The Minister also states Mr Zazzaro failed to disclose his full criminal history in his application for citizenship, and said he had last done something ‘wrong’ in 1980, whereas his criminal record shows he has been convicted of 18 offences since 1980.
Mr Zazzaro said that since 1980 when he was released from jail he had been of good character, and his traffic offences involved on the spot fines, and so he did not think of them as offences he needed to declare. As pointed out by the Minister, Mr Zazzaro’s criminal history shows offences committed since 1980 have required him to appear at the Holden Hill Magistrates Court, The Elizabeth Magistrates Court and the Adelaide Magistrates Court and as such did not involve on the spot fines.
Mr Zazzaro did not help his case by saying the traffic offences were on the spot fines. However, the nature of his offending has changed over time, and he has no offences recorded since 2008. He sought to provide an explanation for the more serious offences that occurred when he was under 18 years of age.
While the merits of the case may not be compelling, it cannot be said his case is without merit.
Fairness as between the applicant and others
While in many cases applications to extend time in relation to the review of a decision to refuse confer citizenship have been refused, for example in Tuji v Minister for Immigration and Border Protection [2016] AATA 467 and Zou v Minister for Immigration and Border Protection [2016] AATA 160, the delay in these cases was considerably longer than the two months five days in the case.
A similar timeframe occurred in Soukarie and Minister for Immigration and Border Protection [2015] AATA 442, however in that case a serious offence involving violence had been committed in the relatively recent three years before the citizenship application, and the merits of the case weighed against the exercise of the discretion.
In other cases where the consideration of the factors is finely balance, it has been viewed as relevant that the person can make another application for citizenship, and may be better served by waiting a longer period before the application is considered, as in Becek and Department of Immigration and Citizenship [2012] AATA 237.
CONCLUSION
While this matter is finely balanced as Mr Zazzaro did not give a compelling reason for the delay and the merits of his case are not striking, given the relatively short period of delay and the lack of prejudice to the Minister, it is reasonable in the circumstances to extend the time for Mr Zazzaro to lodge his application.
As a result, the time in which Mr Zazzaro is to lodge his application is extended under subsection 27(9) of the Act to include the date on which his application was lodged.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member K Millar ....................[Sgd].........................
Administrative Assistant
Dated 28 July 2016
Date(s) of hearing 11 July 2016 Applicant In person Advocate for the Respondent Ms C Stokes Solicitors for the Respondent Australian Government Solicitor
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