PRACTICE AND PROCEDURE - extension of time application - whether it is reasonable in all the circumstances to grant the extension - explanation for delay - prejudice - whether substantive matter has merit - citizenship by conferral - failure to successfully complete citizenship test - extension of time application refused

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

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

Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441**

1. On 30 April 2018, Mrs Fatima Haroun lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made on 17 December 2014 by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse Mrs Haroun's application for Australian citizenship because she did not successfully complete a citizenship test as required by subsection 21(2A) of the Australian Citizenship Act 2007 (Cth) (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 15 June 2018. Mrs Haroun attended the hearing and gave oral evidence by teleconference; she was assisted by an interpreter of the Arabic language and supported by her son.

PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

1. 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.
2. 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].
3. 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) "[c]onsiderations of fairness as between the applicant and other persons" in a similar position.
4. 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] FCA 498 [15]; [1993] FCA 498; (1993) 45 FCR 441, 444.
5. 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.

1. The length of delay in Mrs Haroun seeking a review of the reviewable decision is more than three years and three months after the 28 day limit.
2. In her application to the Tribunal, Mrs Haroun stated that she "needed more time to improve [her] English, undertake a citizenship course/learn how to use a computer". She further noted that she has been "attending citizenship classes at Mamre House each Thursday from 2017 until current". Mrs Haroun provided a letter from Ms Karen Colley at CatholicCare dated 28 March 2018 confirming her regular attendance at citizenship classes.
3. Mrs Haroun confirmed in her oral evidence to the Tribunal that she was seeking to improve her capacity to successfully pass the citizenship test. She also noted that she was unaware she could lodge a new application for Australian citizenship. While I accept Mrs Haroun's explanation, I cannot be satisfied that it is "fair and equitable" to extend the time for review in these circumstances.
4. While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.

1. 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.
2. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mrs Haroun's application. Given the extensive delay of more than three years, 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.

1. 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 Mrs Haroun can meet the general eligibility requirements set out in subsection 21(2) of the Act.

1. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. The provisions of the Act relevant to the substantive application are:

General eligibility

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

...

(e) possesses a basic knowledge of the English language; and

(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

...

1. Subsection 21(2A) of the Act provides that these requirements are satisfied if a person has sat and successfully completed a citizenship test. The Department records show that Mrs Haroun attended the Department and sat citizenship tests on 27 June 2014, 17 July 2014, 19 September 2014, 3 October 2014 and 15 December 2014. At the Tribunal hearing, Mrs Haroun confirmed her attendance on these dates. On each of these dates, Mrs Haroun attempted the citizenship tests and she did not pass the citizenship test on any of these occasions.
2. As Mrs Haroun has not successfully completed the citizenship test, she is unable to meet the general eligibility requirements for citizenship in subsection 21(2) of the Act.
3. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mrs Haroun's substantive application has very limited prospects. This weighs heavily against an extension of time being granted.

1. 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.

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

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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