Zou and Minister for Immigration and Border Protection (Migration)
[2016] AATA 160
•18 March 2016
Zou and Minister for Immigration and Border Protection (Migration) [2016] AATA 160 (18 March 2016)
Division
GENERAL DIVISION
File Number
2015/6038
Re
Jason Zou
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 18 March 2016 Place Perth The applicant’s application for an extension of time until 18 November 2015 to lodge an application for review of the decision of the respondent dated 11 February 2008 is refused.
..................[sgd].................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of respondent dated 11 February 2008 – notice of respondent’s decision despatched to applicant on the same day – applicant lodged application for review of respondent’s decision on 18 November 2015 – applicant did not give satisfactory explanation for delay – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – section 29
CASES
Comcare v A'Hearn (1993) 45 FCR 441
Re Johnson and Commonwealth of Australia [1990] AATA 1
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
BVZ15 v Minister for Immigration & Anor [2016] FCCA 343
Edwards and Principal Member, Social Security Appeals Tribunal [2011] AATA 791
Alexander Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
18 March 2016
FACTUAL BACKROUND
Jason Zou has made an application to the Tribunal seeking an extension of time for the making of an application for a review of a decision made by a delegate of the then Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (the “Minister”) on 11 February 2008 to refuse to grant him Australian citizenship.
Mr Zou first arrived in Australia on 6 February 2002 on a temporary TU-573 visa. He became a permanent resident on 19 January 2005. He is currently employed by Curtin University in Perth, Western Australia as that university’s representative (Regional Manager) in China. He is, on the evidence, highly regarded by his university colleagues in that capacity.
On 7 May 2007, Mr Zou applied for Australian citizenship under the Australian Citizenship Act 1948.
On 11 February 2008, a delegate of the Minister refused to grant Mr Zou Australian citizenship (the “Refusal Decision”). Relevantly, the Refusal Decision stated:
Mr Zou applied for Australian citizenship in the Perth DIAC office on 7 May 2007 and was interviewed on the same day. Mr ZOU has spent a total of 204 days in Australia as a permanent resident in the last 2 years before applying and 231 days in the last 5 years before applying. He therefore does not meet either of the general residence eligibility requirements of 365 days in the last 2 years or 730 days in the past 5 years.
Mr Zou is seeking to have his application considered under the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the relevant policy set out in the Australian Citizenship Instructions 2007 due to his claims that he is involved in activities offshore which are beneficial to Australia.
In relation to this latter point, the Refusal Decision provided:
I have considered the above policy and the evidence that Mr ZOU has provided leads me to conclude that it is the activities of Curtin University as a whole which are of benefit to Australia rather than the particular position which Mr ZOU holds in the university. The connection between Mr ZOU’s employment with Curtin University and the benefit being provided to Australia by his activities as Regional Manager does not go beyond his contractual obligations and is therefore too remote to satisfy the requirement in Item 8(4)(a) of the transitional provisions and the discretion should not be applied.
Finally, in relation to Mr Zou’s request that the Minister’s discretion be exercised in relation to significant hardship, the Refusal Decision provided:
Mr ZOU applied for citizenship on 7 May 2007, and travelled outside Australia on the following dates in the 12 months prior to applying:
Departed: 06/03/2007 Arrived: 09/01/2007
Departed: 09/07/2006 Arrived: 02/07/2006
Therefore he does not meet the requirement for 12 months continuous permanent residence. The discretion to consider whether Mr ZOU would suffer significant hardship and disadvantage should therefore not be exercised in this case as Mr ZOU does not meet the threshold requirements.
The Minister contended before this Tribunal that Mr Zou was advised of the Refusal Decision on 11 February 2008. Specifically, it was contended that Mr Zou was sent a letter via registered mail that read as follows:
I am writing to advise you that your application for Australian citizenship has been refused.
As you became a permanent resident before the commencement of the Australian Citizenship Act 2007, you are only required to have spent two (2) years as a permanent resident in Australia in the five (5) years immediately before applying for citizenship, including 12 months in the two (2) years before application.
You did not meet these requirements, and your application for a consideration on concessional grounds has been unsuccessful on this occasion.
Please note that any overseas travel that you undertake will the date when you may be eligible to reapply and because you are currently offshore, an accurate calculation of when you may be eligible is not available. However please note that at the time of this letter, you have spent 183 days in Australia in the last 2 years, and 235 days in Australia in the last 5 years. Applicants for Australian citizenship must meet the requirements of 365 days (1 year) in the past 2 years and 730 days (2 years) in the past 5 years in order to meet the general eligibility requirements.
The decision to refuse your application is reviewable by the Administrative Appeals Tribunal (AAT). Information on how to do this can be obtained from the AAT’S website at or the AAT Registries in all the capital cities (except Darwin) or by writing to GPO Box 9955 in any capital city (except Darwin). Northern Territory residents may contact the AAT in Brisbane.
Mr Zou contended before this Tribunal that he never received this letter. This is discussed in more detail below.
On 6 December 2013, Mr Zou applied to the Tribunal to extend the time for the making of an Application for Review of the Refusal Decision pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”).
In his Application for Extension of Time for Making an Application for Review, Mr Zou provided the following explanation for the delay in seeking an extension of time:
In charge of Australia University office, travel overseas, cannot come back.
On 23 January 2014, AAT Senior Member McCabe refused Mr Zou’s application to extend time. That decision was made orally and no written decisions were provided. Mr Zou did not appeal that decision to the Federal Court, as was his prerogative
On 18 November 2015, Mr Zou made a second application to the Tribunal to extend the time for the making of an application for review of the Refusal Decision. In his Application for Extension of time for Making an Application for Review, Mr Zou provided the following reasons for not filing on time:
I cannot access to my funds in Australia and email address while I was overseas. I had problems to pay AAT due to this matter. Also, I was sick on medication. The Interpter is not very professional manner. [sic]
In his Reasons for the Application for Review dated 18 November 2015, Mr Zou provided the following explanation for seeking a review of the Minister’s decision:
DIBP use the New Imml Act to assess my case which I summit it was old Imml Act. My collegue same situation as I am get granted. [sic]
On 18 January 2016, Mr Zou also provided a written statement to the Tribunal in relation to his extension of time application of 18 November 2015:
… I do apologies English is my second language.
I would like to apply for extention of time based on the following reasons.
I am in charge of a leading Australia Univesity international activties. I am not sure how long I will spend offshore since took this job since I gradaduated from Australia University and paid Australia dollars which is in Australia payment system but not allow to be back to its campus, no car rental and office be paid, Detail reports have been given to CCC.
As the University against ESOS Act overseas, I took me long time and energies to get the reply from senior staffs within the university! had traveled 7 dayss a week for the university business and most of the events happened on weekend, I brought 200 international students to Perth which benifit Australia economy! suffered the sickness during the investigation period and no medicare services provided to me during that period as I benifit Australia. Also it takes time to find the correct medications. I suffered the health condition until now and I do believed I had been treated different with local staff as I hold foreign passport.
I had been told that my citizenship was granted on 7th of May, 2007. I do not recieved the refused letter on time as I traveled overseas again for Australia University Business.
My Internet banking and emails are blocked until now and I cannot access funds to pay ATT and legal advice I have to spend a lot of time to talk with banks while I was overseas. It limited my international movement and relocate back to Australia. Also I cannot pay ATT for the case on time.
When I took this role as Regional Manager, I donot know how long I will spend offshore. I do suffered problem with payment of RMB as RMB is not international currency and the University donot pay through four bigger Bank in Australia which breached the contract already. My reapply for Australia citizenship will be effect as a staff member envolve in Australia International education system. I have to be offshore few month each year to promot Australia is a better destination for study. I will never meet the new citizenship act requirement if I continue this job.
I have never lived in the Brisbane, just traveled though it. It has no Chinese Interupter can presend me properly, what is why I reapplied for it when I am back to Perth. I also took the case to the community legal centre for the case but no response on the this case. DEBP had use the Trasitional Act to assess my case which I login the case was old Act period, one of my collugue are the same situition as I did granted the citizenship. As a Regional Manager, the university need a person to promot its programs rather than the whole University.
When I applied for RRV, the department donot assess the case within the time line, I have to fly to Mel and returned to Shanghai within a month. I am still on medication during that period.
Last but not least, I do believe Australia is a go fair country, our legal system are open and clear. The tribunal will justify the case fairly. [sic]
ISSUE
The Tribunal is asked to determine whether Mr Zou should be granted an extension of time of approximately 7 years and 8 months to make an application for a review of a decision made by a delegate of the Minister on 11 February 2008 to refuse to grant him Australian citizenship.
Before this Tribunal, the legal representative for the Minister was asked by the Tribunal whether the Tribunal could, in fact, hear this matter given that the issues involved appear to have been previously determined by Senior Member McCabe in early 2014. The Tribunal queried whether there might be an element of “issue estoppel” in relation to this matter. Mr Zou suggested that the matter could be heard because the 2014 hearing before Senior Member McCabe was conducted via telephone and there were translation difficulties, despite the presence of an interpreter. The Tribunal notes that despite his clear health issues, Mr Zou flew from Sydney to Perth so that he could attend in person for the purposes of this hearing – thereby, it is assumed, avoiding the translation issues he claims occurred in 2014.
The Tribunal was advised that the Minister did not object to the Tribunal determining this matter, despite the Tribunal’s previous determination of February 2014. The Tribunal has thus proceeded on the basis that it can hear and determine Mr Zou’s second request for an extension of time and will not, accordingly, make any determination in relation to issue estoppel.
THE RELEVANT LEGISLATION
Section 29 of the Administrative Appeals Act 1975 (the “AAT Act”) details how to apply to the Tribunal for a review of a decision.
Section 29(1)(d) of the AAT Act provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision “shall be lodged with the Tribunal within the prescribed time”
In relation to that time period, section 29(2) of the AAT Act provides:
" … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant…" (emphasis added)
The Tribunal's power to extend the time for the making of an application for review is conferred by subss (7) and (8) of s 29 of the AAT Act as follows:
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. (emphasis added)
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired."
EVIDENCE
Mr Zou appeared before this Tribunal in person and with the able assistance of an interpreter on 3 March 2016. At the hearing, Mr Zou highlighted the concerns noted above at paragraphs 10 and 12 to 14, focussing in particular on the fact that he had been told in 2007 that his citizenship had been granted (and subsequently relied on that conversation as being accurate) and noting that he never received the letter of 11 February 2008 advising him that his citizenship had not in fact been granted.
There was initially little documentary evidence before the Tribunal in relation to this matter. As noted above, Senior Member McCabe’s 2014 decision was made orally and no written decisions were requested by Mr Zou at that time, as was his prerogative under the AAT Act. The Tribunal was provided with a copy of the 11 February 2008 decision denying Mr Zou Australian citizenship together with written submissions from the Minister comprising 7 pages.
On the day of the hearing, the representative for the Minister provided Mr Zou with a copy of his 2008 citizenship file – the file that was compiled for the purposes of the Refusal Decision dated 11 February 2008. That file, comprising 65 pages, contained, relevantly, Mr Zou’s signed and completed application for citizenship dated May 2007 (with employment references), email correspondence dated 4 February 2008 between Mr Zou and the Department in relation to his application and a Department letter dated 11 February 2008 advising Mr Zou that he had been denied citizenship.. Mr Zou advised the Tribunal that he had never seen the rejection letter or indeed the complete Department file and information contained therein.
It is unclear to the Tribunal why legal representatives for the Minister did not provide Mr Zou and the Tribunal a copy of his citizenship file until the day of the hearing. Given Mr Zou’s clear language difficulties and the need for translation it seems quite remarkable that he should only be provided a copy of this material on the day of his extension of time hearing.
In this regard, the Tribunal is conscious of the recent decision of the Federal Circuit Court in BVZ15 v Minister for Immigration & Anor [2016] FCCA 343 (per Judge Jones) and the comments made therein in relation to the clear need to ensure that applicants akin to Mr Zou are given a fair and reasonable opportunity to understand and respond to materials put before them and the Tribunal. There is a clear obligation on the part of counsel sitting across from an unrepresented applicant to assist both that applicant and the Tribunal. That assistance is lacking when relevant documents are not disclosed until very late in the piece.
Bearing this in mind, Mr Zou was asked by the Tribunal whether he wished to adjourn the proceedings and return on another day so that he might review (with the assistance of a translator) the citizenship file that had just been put before him.
Mr Zou explained that, given the translation difficulties he had encountered in 2013 he had made an effort to fly to Perth so that he could appear in person. He also explained that given his health problems and work commitments he could not guarantee that he would be in Australia and available to attend again in person in the near future. He indicated that, given this, he would prefer to have the matter heard in Perth, with him present, on the same day.
Given this explanation, which makes perfect sense in the circumstances, the Tribunal adjourned for approximately one hour so that Mr Zou could review his citizenship file and its contents with his interpreter.
After this adjournment, Mr Zou was asked if he had had sufficient time to review the file provided to him and whether he understood its contents. He stated that he did. The Tribunal finds this to be the case based on the comments he then provided.
In relation to this issue, the Tribunal notes and very much appreciates Mr Zou’s assistance and cooperation. The Tribunal also stresses that it would be preferable if, in the future, representatives for the Minister made every effort to ensure that all documentation relevant to an application of this sort are provided to the applicant and the Tribunal well in advance of any scheduled hearing.
CONSIDERATION
A very clear overview of the jurisprudence relevant to extension of time applications before administrative tribunals and the procedures applied by tribunals when asked to determine an extension of time request is provided in the decisions of Tribunal Deputy President Hotop in Edwards and Principal Member, Social Security Appeals Tribunal [2011] AATA 791 (“Edwards”) and Alexander Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280 (“Rothsay”).
As explained in both Edwards and Rothsay, section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
As further explained in Edwards and Rothsay, as noted by Deputy President R K Todd in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (per Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:
i.It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
ii.Consideration is to be given to the action taken by the applicant. Did he or she 'rest on his or her rights' so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
iii.Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
iv.There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices …
v.Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
vi.Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.
The decision Mr Zou seeks to have reviewed is dated 11 February 2008. Accordingly, pursuant to s 29(2)(a) of the AAT Act, the prescribed period, within which Mr Zou was required by s 29(1)(d) of the AAT Act to lodge his application for review of the respondent's decision, expired in or about mid-March 2008. Thus, Mr Zou’s application for review, which he lodged with the Tribunal on 18 November 2015, was lodged approximately 7½ years after the expiration of the relevant 28 day period.
As explained by Deputy President Hotop in Edwards and Rothsay, although, as held by the Full Federal Court in Comcare v A'Hearn (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court has made clear (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered” - especially, as noted in Edwards and Rothsay, where the delay is very lengthy. Here that delay is indeed lengthy, being approximately 7½ years.
Mr Zou’s Explanation for the Delay
Mr Zou’s explanation for his delay in lodging his application for review of the Minister’s decision of 11 February 2008 was set out in his application for an extension of time dated 18 November 2015 and in his written statement dated 18 January 2013 (see paragraphs 12-14 above).
In effect, Mr Zou, contends that:
·he should be granted an extension because he was told in 2007 that he had been granted citizenship (“I had been told that my citizenship was granted on 7th of May 2007”);
·he did not receive any letter from the Department advising him that he had not been granted citizenship;
·he did not know he had been denied citizenship until 2013 when he made inquiries in relation to his visa;
·he was overseas for much of the period between 2008 and 2015;
·he had trouble accessing banking funds in Australia during this period;
·he had significant health troubles and was medicated during this period.
In its Statement of Facts, Issues and Contentions dated 14 December 2015, the Minister contended as follows:
13.… the applicant was required to file his application for review by 14 March 2008. The period of delay between 14 March 2008 and the date of the current application to extend (18 November 2015) is over 7 years and 8 months. The respondent contends that the extraordinary length of this delay in and of itself is a strong indication that an extension of time is not reasonable, particularly taking into account the public interest in finality in decision-making, and the administrative burden on the Minister’s department in having to locate material relevant to the refusal decision over 7 years and 8 months after the event.
14. The applicant’s reasons for the delay are:
I canot access to my funds in Australia and email address while I was overseas. I had problems to pay AAT due to this matter. Also, I was sick on medication. The Interpreter is not very professional manner
15.The respondent contends that the applicant has not provided an acceptable explanation for his extraordinary delay. The matters referred to by the applicant may, in some circumstances, justify a short delay. However, the applicant has provided no explanation as to how the factors he identifies prevented him from making an application for review within the required 28 day period, or prevented him from making an application for an extension of time at an earlier point in the period between 14 March 2008 and 18 November 2015.
16.The applicant’s 6 December 2013 application for an extension of time establishes that, as a matter of fact, the applicant was able to apply to extend time prior to 18 November 2015. This first application to extend was dismissed by the Tribunal on 23 January 2014. The applicant does not appear to have sought judicial review of the Tribunal’s decision.
17.The reasons for delay set out in the applicant’s current application for an extension of time are different from the reasons set out in the applicant’s 6 December 2013 application for an extension of time, which stated ‘In charge of Australia University office, travel overseas, Hav not come back’. To the extent that the reasons set out in the applicant’s current application for an extension of time seek to explain the delay between 23 January 2014 and 18 November 2015 only, those reasons are clearly not a sufficient basis to justify the required extension from 14 March 2008.
18.In the absence of any explanation from the applicant as to how circumstances have changed since 23 January 2014, such that it is now appropriate for him to seek a second application for an extension of time in respect of the refusal decision, the respondent contends that the current application to extend not only fails to provide an acceptable explanation for the applicant’s extraordinary delay, but also amounts to an abuse of process and should be refused on that additional basis.
Before this Tribunal, Mr Zou responded to the Department’s concerns as outlined above by explaining as follows:
·he was advised orally on 7 May 2007 that his citizenship had been granted;
·he never received any letter from the Department dated 11 February 2008 advising him that he had not been granted citizenship and did not know that he had been so denied until 2013 when he made inquiries about his visa status;
·some of the handwriting on the citizenship application now before him was not his own;
·although he had resided at the address on his application (the same address the letter in question was sent to), by the time the letter was allegedly delivered to that address, he was working again in China, as required by his Australian employer; and
·in any event, in relation to the address, he had advised the Department that any correspondence for him was to be sent a different address in China.
In relation to Mr Zou’s verbal explanation that he was told on 7 May 2007 that his citizenship had been granted, the Tribunal notes that in Mr Zou’s citizenship file at page 57 there is email correspondence between the Department and Mr Zou dated 4 February 2008. It is clear from the email and attached correspondence that the email relates to supporting documents for Mr Zou’s citizenship application. In response to what is clearly a request from the Department for supporting documentation, Mr Zou attached relevant employment information. He did this on 4 February 2008 – a year after Mr Zou claims he was advised that his citizenship had been granted.
The Tribunal finds that if Mr Zou’s citizenship had been granted when he says he was told it had been (ie, 2007), he would not have been asked to send more supporting documentation at a later date in 2008. Further, if Mr Zou had been told that his citizenship has been granted when he says it was, given the request for more information after that date, it seems at best odd that he did not immediately contact the Department to query what was happening in relation to his citizenship. He did not do so until 2013.
The Tribunal does not accept that Mr Zou was advised on 7 May 2007 that he had been granted citizenship. There is simply no evidence to suggest that this occurred.
Further, in relation to Mr Zou’s assertion that he did not receive the letter from the Department of 11 February 2008 advising that he had been denied citizenship, the Tribunal notes that on his citizenship application, Mr Zou’s home address is the same as the address that appears on the letter of 11 February 2008 from the Department advising that his citizenship application had not been successful – ie, a street address located in Brentwood WA.
In relation to this issue, the Tribunal notes that Mr Zou’s relevant application form states:
Note: You must tell the Department if your address changes after you lodge the form.
During the hearing of this matter, Mr Zou told the Tribunal that the handwriting on the form was not his own (implying, arguably, that he had not provided the noted Brentwood address even though he admits having lived there) and, in any event, he did advise the Minister that future correspondence should be sent to an address in China. Mr Zou stated that he never received the letter of 11 February 2008.
Mr Zou then contended before this Tribunal that because he thought he was an Australian citizen post 2007, he didn’t consider the issue again until 2013 when he chose to raise the issue of his work visa with Department officials in Brisbane.
On the evidence before it, the Tribunal finds Mr Zou’s version of events to be implausible and lacking credibility. As noted above, there is simply no evidence that Mr Zou was told in 2007 that he was an Australian citizen. Further, in relation to the letter of 11 February 2008, there was no evidence before the Tribunal that the Department did not send the letter of 11 February 2008 to an address specified by Mr Zou. There is also no evidence that Mr Zou was not at the relevant address on that date or close to that date. Further, given the significance to him personally of his citizenship application, it seems odd that Mr Zou would not have ensured that any mail sent to his Brentwood address would not then be forwarded to his new address in China. Further, there is no evidence that Mr Zou asked that any correspondence be sent to an address in China. If he had, it seems implausible that that request would not have been noted, that the letter would not have been sent and then not received. Further, it again seems implausible that Mr Zou would wait almost 5 years before querying why, according to his own testimony, he had not received any correspondence in relation to his rights and obligations as an Australian citizen.
In the circumstances, Mr Zou’s version of events is at best contradictory and inconsistent in relation to why he did not lodge an application for review on time. In addition to the issues canvassed above in relation to the alleged conversation of 2007 and the alleged non-receipt of the Department letter in 2008, the Tribunal also finds that there is nothing on the evidence before it that would lead it to accept that either Mr Zou’s health conditions or banking difficulties could justify his failure to file an application for almost 7½ years. The explanations provided by Mr Zou in relation to his banking and health issues fail to explain the length of the delay in question. Nor is it sufficient to say, as does Mr Zou, that he could not access Department information because he was overseas. A simple phone call during the relevant period would have alerted Mr Zou to the fact that there was a problem and that he needed to act soon to rectify that problem.
Accordingly, the Tribunal is not satisfied that Mr Zou has provided an acceptable explanation for lodging an application for review until November 2015 - almost 7½ years after the expiration of the 28 day period prescribed by section 29(2) of the AAT Act. In this regard, the Tribunal agrees with representatives for the Minister that this length of time can only be described as “extraordinary”.
Further, there is no suggestion that, in the period from February 2008 to January 2014, when Senior Member McCabe first heard an extension of time application from Mr Zou, that Mr Zou took any action that might have made the Minister aware that he was contesting, or was proposing to contest, the Minister’s decision of February 2008. Nor was there any indication that he would do so again after Senior Member McCabe’s decision in January 2014 until November 2015. In those circumstances, in the Tribunal’s opinion, the Minister was, by reason of such inaction on the part of Mr Zou, given reasonable cause to believe, and reasonably inferred, that Mr Zou had “rested on his rights” and that the matter was finally concluded.
Before this Tribunal, the legal representative for the Minister admitted that, despite the considerable time delay, the Minister had been able to locate all documentation relevant to this matter. The Minister had thus not suffered any prejudice in relation to Mr Zou’s matter.
Nonetheless, consideration must also be given to whether there will be a wider prejudice to the public in terms of disruption to established practice should this extension of time be granted.
In that regard, the Tribunal finds that wider prejudice and disruption are very real concerns given the considerable delay of 7½ years. If the Tribunal were to allow Mr Zou to file an application for an extension of time to lodge an Application for Review after this length of time without a clear and acceptable reason for doing so, it would arguably make a mockery of the administrative and legal systems in place to ensure accessible, fair and quick decision making. The Tribunal simply cannot allow extensions of this sort in these circumstances without imposing an unacceptable burden on the system and those seeking to access it.
Accordingly, the Tribunal finds that to allow an extension of this sort on the facts and evidence before it would result in wider prejudice to the community because established practices would be relaxed by not adhering to reasonable and much needed time limitations.
In relation to the merits of the application, the Tribunal agrees with the Minister, as articulated in its Statement of Facts, Issues and Contentions that given the discretionary nature of the power in transitional s 22(4) of the Migration Act relating to ‘activities ... beneficial to Australia’, it cannot be said that an application for review of the refusal decision would inevitably fail. Nor, on the evidence before it, given the discretionary nature of the decision to be made in this context, can the Tribunal be satisfied that Mr Zou’s application for review of the Minister’s decision, if it were to proceed, has no real prospects of success.
In the Tribunal’s opinion, it is unnecessary here to canvass the other considerations referred to in Re Johnson (see paragraph 33 above). In the Tribunal’s opinion, none of those other considerations militates in favour of the grant of Mr Zou’s application for an extension of time. On the other hand, several of the circumstances and considerations canvassed above do militate against the grant of that application, namely:
a)the extraordinary length of the delay (approximately 7½ years) on the part of Mr Zou in lodging with the Tribunal his application for review of the Minister’s decision of 11 February 2008;
b)Mr Zou’s unsatisfactory explanation for that delay; and
c)Mr Zou’s failure to take any action which might have made the Minister aware that he proposed to contest the decision of 2 October 2008 until long after the decision;
d)the likelihood of wider prejudice to the community because public and established practices would be relaxed by not adhering to reasonable and much needed time limitations.
On balance, therefore, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the making by Mr Zou of an application for a review of the Minister’s decision of 11 February 2008 until 18 November 2015.
The Tribunal notes that there is nothing in Mr Zou’s current application that prevents him from applying anew for Australian citizenship. The Tribunal encourages him to do so.
DECISION
For the reasons outlined above, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, Mr Zou’s application for an extension of time until 18 November 2015 to lodge an application for review of the Minister’s decision of 11 February 2008.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall ..........................[sgd D Brodie]..............................................
Administrative Assistant
Dated 18 March 2016
Date of hearing 3 March 20216 Representative of the Applicant In person (Unrepresented) Representative of the Respondent Mr D Carroll Solicitors for the Respondent Australian Government Solicitor
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