Johnson and Minister for Home Affairs (Citizenship) [2018] AATA 3469 (17 September 2018)

1. The Applicant is a New Zealand citizen who first arrived in Australia on 25 July 1990.
2. On 12 May 2015 the Applicant applied for a Return (Residence) (class BB) (subclass 155) visa (Resident Return Visa).
3. The Applicant was granted the Resident Return Visa on 14 May 2015. The Visa Grant Notice which accompanied the Notification of Grant of Resident Return Visa included the following advice (Exhibit R1):

You have been granted a permanent visa which allows you to remain in Australia indefinitely. This visa allows you to travel to and enter Australia as many times as you want until 14 May 2016. If you wish to travel to Australia after this expiry date, you will need to apply for, and be granted a resident return visa.

1. The Applicant departed Australia on 8 January 2017. Upon his return on 15 January 2017, he was granted a subclass 444 Special Category visa (at the border).
2. On 23 March 2017 the Applicant applied for conferral of Australian citizenship. The Tribunal notes that the Applicant submitted that the application for citizenship had been made on 28 November 2016. The Respondent provided a copy of the application and it is stamped as having been received on 23 March 2017. In any event, for the reasons outlined below, the discrepancy in the date is not determinative of the outcome of this application.
3. On 1 March 2018 the application for citizenship was refused because the Applicant did not meet the permanent residency requirement under s 22(1)(c) of the Citizenship Act 2007 (Cth) (the Citizenship Act).

1. Sections 29(1)(d) and 29(2) of the AAT Act requires that a person seeking review of a decision must lodge an application with the Tribunal within the prescribed time of 28 days after the decision is given to the Applicant if the decision sets out findings on material questions of fact and reasons for the decision.

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.

1. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be "satisfied that it is reasonable in all the circumstances" to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.
2. A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In Hunter Valley, Wilcox J (at 310-311) set out principles that were intended to be "non-exhaustive guidelines" (see Brown v Commissioner of Taxation [1999] FCA 563 per Hill J at [32]-[34]) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J (at 310), the principles were intended "... to guide, not in any exhaustive manner, the exercise of the court's discretion".
3. These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 where President O'Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17]:
   • (a) Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
   • (b) It is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested.
   • (c) Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
   • (d) Any wider prejudice to the general public in terms of disruption to established practices is relevant.
   • (e) The merits of the substantial application are relevant.
   • (f) Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

The balancing of these factors will depend on the individual case.

1. Some flexibility is permitted in applying the principles, as indicated by the above statement that "[t]he balancing of these factors will depend on the individual case". Thus the facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation [1999] FCA 848 the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed (at [13]) that "[i]t would be an error to regard the summary as complete, or to treat each of the six principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation".

1. The issue for determination by the Tribunal is whether the Applicant should be given leave for an extension of time, pursuant to s 29(7) of the AAT Act, to make his application to the Tribunal for a substantive review of the Delegate's Decision of 1 March 2018.
2. A copy of the Delegate's Decision was emailed to the Applicant on 1 March 2018. The Applicant's application for extension of time stated that he received the Delegate's Decision on 5 March 2018.
3. The time for making the application was 28 days from "... the day on which a document setting out the terms of the decision is given to the applicant", pursuant to s 29(2)(a) of the AAT Act.
4. The Applicant lodged his application for review with the Tribunal on 18 June 2018.

1. In determining whether an extension of time should be granted in this case, the Tribunal notes that the relevant factors it should consider in exercising its discretion to depart from the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, include:
   • the length of delay;
   • whether the Applicant was aware of his appeal rights and whether he rested on those rights;
   • whether there is any explanation for the delay and whether that explanation is satisfactory;
   • any prejudice to the Respondent or the general public arising from an extension of time;
   • the merits of the substantive application for review; and
   • any alternative avenues of relief for the Applicant should the extension of time not be granted.

1. Giving the Applicant the benefit of the doubt, the Tribunal finds that the Applicant received the Delegate's Decision on 5 March 2018. The Applicant was, accordingly, required to file an application for review by 2 April 2018. The Applicant did not file the application for review until 18 June 2018, 77 days late.
2. The Respondent had no submissions to make regarding the length of the delay.
3. While the Tribunal does not regard a delay of 77 days as extensive, given a 28 day time limit, the length of the delay was not insignificant. The Tribunal considers the length of delay as a consideration which weighs against an extension of time being granted.

1. Whether an Applicant has an acceptable explanation for the delay will be relevant, but "... there is no rule that such an explanation is an essential pre-condition" to the success of the application for an extension of time (see Comcare v A'Hearn [1993] FCA 498; (1993) 119 ALR 85 at 88).
2. The Applicant's application for extension of time indicated that his reason for not applying within the time limit was that (Exhibit A1):

[t]his was due to the fact that I had tried ringing on a number of occasions, having to wait up to 2 hours, plus added to the fact that I drive Community Tour Coaches around Western Australia and am away frequently on extended tours, unable to use my phone within adequate time constraints between States.

1. At the hearing, when asked if he had read the letter from the Delegate notifying him of the decision and the time limit for review, the Applicant said he was not aware of the timeframe for review because he did not focus on that in the notification he was sent.
2. The Tribunal finds that the Applicant disregarded advice contained in the letter from the Delegate, which notified the Applicant of the avenue for review of that decision, including the time limit for seeking a review. The Tribunal does not regard the fact that the Applicant failed to read the information provided to him in relation to the time frame for lodging an application for review to be an adequate explanation for the delay.
3. While the Tribunal notes the Applicant's work obligations may cause him some additional administrative difficulty in making the application for review, these obligations are not outside of those which would normally be experienced by an Applicant. In the Tribunal's view, this is not an adequate explanation for the delay.
4. The lack of an adequate explanation for the lengthy delay weighs against the exercise of the discretion to grant the Applicant an extension of time.

1. The Applicant was notified of the Delegate's Decision by letter on the accepted date of 5 March 2018. The letter is four pages long. Following the section of the letter outlining the Delegate's Decision, page 3 includes a section titled 'Review rights'. It states:

An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you have taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

1. The Applicant indicated that he received the letter but did not read the material regarding his review rights.
2. The Tribunal finds that the Applicant received adequate notice of his appeal rights, and thus he was aware of his appeal rights. This finding weighs against the Tribunal exercising its discretion to grant the extension of time.

Prejudice to the Respondent or the general public

1. Other than having to respond to the application for review, there is no evidence before the Tribunal that the extension of time would prejudice the Respondent. The Tribunal finds that the Respondent would not suffer any relevant prejudice if the application for the extension of time was granted.
2. However, the absence of prejudice is not itself enough to justify the Tribunal exercising its discretion to grant an extension of time (Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523 cited in Hunter Valley at 311).
3. Consideration must still be given to whether an extension of time in the circumstances would prejudice the wider public by disturbing the established practices of the Tribunal and to the accepted public interest in the finality of decision-making (Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1 at [19]).
4. The purpose of the 28 day time frame set out in s 29(2) of the AAT Act is to ensure that the Tribunal is accessible, fair and timely in its decision-making. The length of delay in this case is not inconsiderable having regard to the 28 day time frame. Allowing delays of this kind creates a burden on the system and those seeking to access it which would result in prejudice to the wider community. This weighs against the granting of an extension of time.

Prospects of success of the substantive application

1. As noted above, when deciding whether to grant an extension of time to an Applicant, the Tribunal may consider the merits of the Applicant's substantive application. The Tribunal should not, however, undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd [2001] FCA 75; (2001) 65 ALD 76), but rather should assess whether the applicant has an arguable case (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).
2. The Tribunal has previously declined to grant an extension of time to an Applicant in cases where it considers that the Applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans' Review Board and Repatriation Commission [2011] AATA 113 and Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276).
3. The Respondent submits that the Tribunal lacks jurisdiction to hear the application. In such circumstances, the Respondent submits that the Applicant has no prospect of success in a substantive application. The Respondent's principal contention is that the application has "no prospect of success" (Exhibit R1, paragraph 10) and that this is the principal reason why the Respondent opposes the application for extension of time.
4. The Respondent submits that the application has no prospects of success for two reasons:

(i) Firstly, because the applicant did not meet the requirement in section 21(2)(b) of the Act that he is a permanent resident at the time he made the application and at the time of the Minister's decision on the application; and

(ii) Secondly, because the applicant is specifically precluded from applying for review of this decision in this Tribunal pursuant to section 52(2) of the [Citizenship] Act as he is not a permanent resident.

1. For reasons outlined below, the Tribunal proposes to deal first with the question of the application of s 52(2) of the Citizenship Act and whether the Tribunal has jurisdiction before turning to issues regarding the citizenship requirements.
2. The Tribunal is satisfied that the application is for review of the Delegate's Decision made under s 24 of the Citizenship Act, which in this matter, was the decision to refuse a person becoming an Australian citizen pursuant to s 52(2)(a) of the Citizenship Act. In considering s 52(2)(b) of the Citizenship Act, the Tribunal is satisfied that the Delegate's Decision does not refer to the eligibility grounds under s 21(8) of the Citizenship Act (statelessness). Further, the Tribunal finds that the Applicant was over the age of 18 at the time the Citizenship Application was made: s 52(2)(c) of the Citizenship Act. Therefore, s 52(2) of the Citizenship Act applies.
3. Section 52(2) of the Citizenship Act precludes a person who is not a permanent resident from making an application to this Tribunal for a review of a decision made under s 24 of the Citizenship Act. The question then arises as to whether the Applicant was a permanent resident or whether s 52(2) of the Citizenship Act precludes him from making an application for review to this Tribunal.
4. The Tribunal finds that the relevant date in determining whether or not an Applicant is a permanent resident for the purpose of determining jurisdiction is the date that the application is made to the Tribunal. In the present case, the application to this Tribunal was made on 18 June 2018.
5. In order to bring an application for review before the Tribunal, the Applicant is required to be a permanent resident for the purpose of s 52 of the Citizenship Act. To be a permanent resident, as defined in the Citizenship Act, the Applicant would have to have held a permanent visa at the time that the application for review was made.
6. The Respondent submitted that the Applicant was a permanent resident at the relevant date as he held a Resident Return Visa. The Resident Return Visa allowed the Applicant to remain indefinitely in Australia. However, it only permitted him to travel from, and return to, Australia until a date specified on the visa grant notice, in this case 14 May 2016.
7. The Applicant departed Australia on 8 January 2017 to attend a family funeral in New Zealand. His Resident Return Visa ceased on that date. When he returned to Australia on 15 January 2017, he was granted a subclass 444 Special Category visa (the Special Category Visa). He is currently on a Special Category Visa.
8. Certain holders of Special Category visas are determined to be permanent residents for the purposes of the Citizenship Act (see Legislative Instrument IMMI 07/037 (the Legislative Instrument)). The Legislative Instrument identifies the relevant holders of Special Category visas as a:
   • (1) New Zealand citizen who:
     • (a) was in Australia on 26 February 2001 is the holder of the special category visa; or
     • (b) was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period of, or periods that total, not less than one year in the two years immediately before that date; or
     • (c) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act residing in Australia on a particular date, regardless of the date certified or when the certificate was issued.
9. The Respondent submitted that the Applicant was not present in Australia between 21 September 1995 and 20 September 2011. Further there was no evidence that the Applicant held a relevant certificate under the Social Security Act 1991 (Cth). The Respondent submitted, and the Tribunal accepts on the evidence, that the Applicant does not fall within any of the categories that are identified in the Legislative Instrument. Therefore, the Special Category Visa that the Applicant was granted on 15 January 2017 is not one determined by the Legislative Instrument to be a permanent visa and, accordingly, he does not hold a permanent visa. Further, the Applicant was not a permanent resident at the time that he filed the application for review on 18 June 2018.
10. At the hearing, the Applicant confirmed that he remains on a subclass 444 Special Category visa. The Department records provided to the Tribunal by the Respondent confirmed this.
11. Accordingly, the Applicant is not a permanent resident for the purposes of s 52(2) of the Citizenship Act.
12. The Tribunal has determined that there is no evidence that the Applicant is a permanent resident. Therefore the Tribunal finds it would not have jurisdiction in relation to the substantive application.
13. Consequently, the Tribunal finds that the Applicant would not have an arguable case if the matter were to proceed to a substantive hearing. This weighs against the Tribunal exercising its discretion to grant an extension of time.

1. Taking into account all the circumstances of an application for an extension of time, it may be relevant to consider whether there are any alternative avenues of relief available to the Applicant (see for example Rollins and Principal Member of the Veterans' Review Board and Repatriation Commission [2011] AATA 113, at 18, and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).
2. The Respondent, in its oral submissions, noted that the Applicant would not be precluded from making another citizenship application once he was in a position to meet the relevant criteria, including the permanent residency requirement. The Applicant confirms that he understood that he would not be precluded from making a further application.
3. The Tribunal accepts that the Applicant can make a new application and finds that there is an alternative avenue of relief available to the Applicant. This also weighs against the granting of an extension of time.

1. The Tribunal has considered all the material before it including the submissions from the Applicant and the Respondent. Taking into account:
   • the length of the delay in filing the application;
   • the lack of an adequate explanation for the delay in making the application;
   • the need for efficient management of the Tribunal's time and resources; and
   • the fact that the Applicant's substantive application for review has no prospect of success as the Tribunal lacks jurisdiction to review the decision;

the Tribunal is satisfied that it should not exercise its discretion to extend the time for the Applicant to make an application for review of the decision of the Delegate on 1 March 2018.

1. The Tribunal refuses to grant the Applicant's application for an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), to lodge an application for review of the decision made by the Delegate of the Minister for Home Affairs on

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

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