procedural. The Tribunal dismissed the application for extension of time to lodge a review and therefore did not entertain the substantive application.
Key principles
Where no statutory time limit is prescribed for lodging an application for review, the Tribunal must form an opinion whether the application was lodged within a reasonable time...
In deciding whether to grant an extension of time, the Tribunal is entitled and ordinarily should have regard to the merits of the substantive application; weak prospects of...
An unexplained delay of significant length (here 14 months from notification) in lodging an application for review, where the applicant was notified of the decision and of appeal...
Issues before the court
Whether the Tribunal should grant an extension of time to lodge a review of the Minister's decision to refuse citizenship.
Whether the applicant's criminal record meant his application for citizenship was automatically excluded.
Cited legislation
3 cited instruments linked from this judgment.
Plain English Summary
The applicant received a letter on 18 December 2008 refusing his citizenship application and telling him he could apply to the AAT. He did not lodge his review application (and an application to extend time) until 23 February 2010, about 14 months later, and gave no explanation for the delay. The Tribunal found he must have known about the decision by the end of December 2008, that the delay was unreasonable, and that his substantive prospects were weak because of multiple recent convictions. Balancing these factors, the Tribunal refused to grant an extension of time and therefore did not consider the substantive review.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,812 words · generated 26/07/2026
What happened
Tony Kamoun applied for Australian citizenship on 15 July 2008 (see paragraph 8). The Minister refused to grant citizenship and notified Kamoun by letter dated 18 December 2008, advising him of his rights to seek review by the Administrative Appeals Tribunal and enclosing Tribunal information (para 3). Kamoun did not lodge a review application until 23 February 2010, when he filed both the substantive review and an application for extension of time to lodge that review (para 1). The delay between notification and lodging was about 14 months (para 4).
The AAT listed the hearing of the extension application for 1 June 2010 and notified Kamoun at his nominated address (para 2). He did not appear when the hearing commenced; the Tribunal proceeded in his absence, was informed later that the applicant arrived at Registry about 10:00 a.m. after the hearing had concluded, and gave him the option of receiving written reasons (para 2). The Tribunal dismissed the extension application and therefore did not entertain the substantive review (disposition and para 9–10).
In reaching its decision the Tribunal identified two principal strands: the unexplained and substantial delay (about 14 months) from notification to lodging the review (paras 4–5), and the weakness of the substantive case given the applicant's criminal convictions in 1999, 2003 and 2006 for significant offences (paras 7–8). Applying s 29(4)-(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal concluded the delay was unreasonable, no special circumstances had been shown, and the weak merits weighed against granting an extension (paras 4–6, 9).
Why the court decided this way
Statutory framework
Where a statute provides no specific time for lodging a review, the AAT must determine whether the application was lodged within a reasonable time (s 29(4) AAT Act) and must "have regard to" when the applicant became aware of the decision (s 29(5)), while retaining power to entertain a late application only if special circumstances justify doing so (s 29(6)). The Tribunal quoted and relied on those statutory provisions in full (para 3).
Findings of fact and legal assessment
Notification and awareness: The Tribunal found the refusal letter dated 18 December 2008 had been sent to the applicant's nominated address and, absent any contrary material, concluded the applicant became aware of the decision by the end of December 2008 (paras 3–5). That establishes the starting point for what the Tribunal considered a 'reasonable time' inquiry.
Extent and explanation of delay: The Tribunal noted a 14 month gap between notification and lodgment of the review and extension applications (para 4). Crucially, no explanation for the delay was offered; the absence of explanation was treated as a factor making the delay unreasonable (para 4).
Merits of the substantive case: The Tribunal observed it is ordinary to have regard to the merits when deciding extension applications (para 6), citing authority (Re Hunter Valley). The Tribunal examined the substantive strengths and weaknesses and concluded the applicant's prospects of success were weak because of multiple recent convictions for serious offences, even though he was not under sentence at the time such that s 24(6) would automatically exclude him (para 8).
Discretion exercised against extension: Balancing these elements, the Tribunal concluded that the unexplained length of the delay together with the weak substantive prospects were sufficient to refuse to exercise its discretion to entertain the late application (para 9). Thus the extension was refused and the substantive review not entertained (para 10).
Why these factors mattered
The statutory test focuses on whether the application was made within a reasonable time and whether special circumstances justify overriding lateness. The Tribunal applied those statutory criteria and took into account the policy and fairness considerations underlying them: a right to finality and to prevent prejudice to the administration of justice where applicants delay unduly without explanation. Considering merits is appropriate because it would be unjust to allow an out-of-time application when the underlying claim is plainly weak.
Before and after state of the law
Before
The AAT's power to refuse late applications where no statutory time limit exists derives from s 29(4)-(6) of the AAT Act. The general approach, that the Tribunal should have regard to when the applicant became aware of the decision, and may consider merits and special circumstances, is established by statute and prior authority such as Re Hunter Valley (which the Tribunal cited) (para 6 and fn 4).
Contribution of this decision
Kamoun is a direct application of s 29(4)-(6) to a set of facts involving a 14 month unexplained delay and demonstrably weak substantive prospects. It reinforces that:
Notification to the applicant's nominated address, together with an absence of evidence to the contrary, is sufficient to found a finding of awareness (para 4–5).
A substantial unexplained delay is likely to be unreasonable (para 4).
The merits of the substantive case are a material and potentially determinative factor in the exercise of discretion (paras 6, 8–9).
The decision does not change the legal test; it exemplifies its application and signals that multi‑year delays without explanation will be treated strictly, particularly where the substantive claim is weak.
After
Practitioners should treat Kamoun as an applied example: when no statutory time limit exists, applicants should act promptly upon notification of an adverse decision, and where delay is unavoidable they should proactively provide detailed and credible evidence of the reasons for delay and, where possible, bolster the substantive prospects, because weak merits will weigh strongly against an extension.
Key passages with plain-English translation
Passage (para 3): "The substantive decision refusing the applicant a grant of citizenship was notified ... in a letter dated 18 December 2008. In that letter, the applicant was advised that he could apply to the Administrative Appeals Tribunal for a review of the decision. The letter attached a brochure about the Tribunal."
Translation: The Tribunal treated the refusal letter dated 18 December 2008 (which told the applicant he could appeal) as the operative notification that began the period within which a reasonable person should act.
Passage (para 4): "There is a considerable gap in time ... some 14 months. No explanation is given as to why the extension of time substantive application was not lodged earlier."
Translation: The Tribunal identified a long, unexplained delay, about 14 months, between being told of the refusal and asking for review. That unexplained delay is fatal unless special circumstances exist.
Passage (para 6): "It is ordinarily the case that when a determinative body is deciding an application for an extension of the time that it will also have regard to the possible merits of the substantive application."
Translation: The Tribunal can and should look at how strong the underlying appeal is; if the appeal is probably hopeless, that counts against giving more time.
Passage (para 8): "The decision to refuse his application is reasonable and was open to the decision maker. The Tribunal assesses the chance of him succeeding ... as being weak."
Translation: Even if the Tribunal had reached the substantive merits, it would likely have agreed with the Minister because of the applicant's criminal record, so the substantive case is weak.
Passage (para 9): "The weakness of his case combined with the lack of any explanation for the delay leaves the Tribunal satisfied that the application for an extension of time ought to be rejected."
Translation: Because the applicant delayed without explanation and, even on the merits, would probably lose, the Tribunal refused to allow the late appeal.
What fact patterns trigger this precedent
A late application for AAT review where there is no statutory time limit and the applicant was notified of the decision (particularly by post to the nominated address).
Significant unexplained delay (measured in months, here 14 months) between notification and filing; absence of credible explanation for the delay.
Underlying substantive application has weak prospects on the published record (e.g. demonstrable adverse factual or legal features like serious criminal convictions).
Applicant either fails to engage procedurally (for example, not attending the hearing) or does not provide adequate evidence to justify lateness.
Kamoun demonstrates that the conjunction of unexplained long delay and weak merits is likely to produce refusal of an extension. Either factor alone will not always be decisive, but together they are potent.
How later courts have treated it
The Kamoun decision itself is a Tribunal decision applying statutory text and cited authority (Re Hunter Valley). It is an applied, fact-specific example of the s 29(4)-(6) exercise. Any later treatment would need to be checked against subsequent case law; Kamoun primarily reiterates established principles rather than creating a novel rule. The Tribunal in Kamoun relied upon established authority for the proposition that merits are a relevant consideration (para 6, citing Re Hunter Valley at fn 4).
Note: This deep dive does not attempt to catalogue subsequent citations or appellate treatment; readers should search subsequent AAT and judicial decisions for any developments or distinguishing facts.
Still-open questions
Special circumstances threshold: Kamoun refuses the extension for lack of explanation and weak merits, but it does not catalogue the kinds of explanations or evidentiary threshold that would constitute 'special circumstances' in other contexts. Practitioners should therefore not assume a rigid rule; each case remains fact-driven.
Weight to give merits vs delay: Kamoun illustrates that weak merits can be decisive, but it does not set a precise calibration of how weak merits must be relative to delay length to overcome lateness. Future decisions may further define the trade‑off between length/quality of explanation and substantive strength.
Procedural fairness when applicant is absent: The Tribunal proceeded in the applicant's absence after notifying him of the hearing. Kamoun records the procedural facts (para 2) but does not engage in a detailed analysis of the extent of procedural obligations where an applicant arrives late to Registry. That remains an area where applicants should be cautious; practical steps (advancing earlier contact with Registry) mitigate risk.
Interaction with administrative discretion in immigration context: Kamoun applies the ordinary AAT Act test in an immigration/citizenship context. It remains for later authorities to consider whether particular equities connected to citizenship applications (for example, family or humanitarian considerations) will alter the exercise of discretion in close cases.
Practical takeaways
When notified of an adverse decision, act promptly; lodge applications for review as soon as practicable.
If delay is unavoidable, provide contemporaneous, detailed evidence explaining the cause(s) of delay to enable the Tribunal to consider special circumstances.
Where possible, strengthen the substantive case on the record if a late application is anticipated, because weak prospects will count against an extension.
Ensure procedural attendance at listed hearings and maintain contact with Registry to avoid the Tribunal proceeding in absence.
Judgment (11 paragraphs)
[1]
The applicant is applying in the substantive application lodged with the Tribunal for a review of the decision to refuse granting him Australian citizenship under the Australian Citizenship Act 2007 (the Act). The refusal was based on a finding that the applicant was ineligible for the grant, because he was not a person of good character at the time the decision was made[1]. Accompanying the application to review is an application to extend time in which to lodge the substantive application. Both were filed with the Tribunal on 23 February 2010. The latter application is made pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)
The Tribunal listed the hearing of the application for the extension of time for 9.30 a.m. on 1 June 2010. The applicant was advised of the hearing by letter to the address, he notified as his address for service, dated 14 May 2010. On 1 June the Tribunal convened to hear the application. There was no appearance by the applicant when the hearing began, and Tribunal had him called outside the Tribunal hearing room. There being no appearance by him, and the Tribunal not having received any communication from the applicant that he was unable to attend, the Tribunal proceeded to hear and determine the application for the extension of time without him. Mr David Brown of the Australian Government Solicitor's Office represented the respondent. The Tribunal was later informed that the applicant came to the Tribunal Registry at or about 10:00 a.m., by which time the Tribunal had given its decision and the hearing had concluded. When it was explained to the applicant what had happened in his absence, and that he had the option of written reasons being provided for the Tribunal's decision to dismiss his application for an extension of time, the applicant requested that he be given same. These are those reasons.
The substantive decision refusing the applicant a grant of citizenship was notified to the applicant in a letter dated 18 December 2008. In that letter, the applicant was advised that he could apply to the Administrative Appeals Tribunal for a review of the decision. The letter attached a brochure about the Tribunal. In this Act, no time limit is prescribed in the section which authorises the lodging of applications for review[2]. When that occurs, the Tribunal is to determine the application for an extension of time under the provisions of s 29(4)-(6) of the AAT Act. Those provisions are:
[2]
(4) Where:
(a) no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or
(b) no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision;
and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):
(c) in a case to which paragraph (a) applies - refuse to entertain an application for a review of the decision referred to in that paragraph; or
(d) in a case to which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.
(5) In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to:
(a) the time when the applicant became aware of the making of the decision; and
(b) in a case to which paragraph (4)(b) applies - the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision;
and may have regard to any other matters that it considers relevant.
(6) Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.
[3]
There is a considerable gap in time between the date of the letter advising the applicant of the grant refusal and the date on which he lodged his applications with the Tribunal, in fact, some 14 months. No explanation is given as to why the extension of time substantive application was not lodged earlier. The Tribunal notes that the address to which the letter of 18 December 2008 was sent is the same address notified by the applicant to the Tribunal. There seems no reason to conclude other than this letter was delivered to the applicant in the ordinary course of the post[3]. On that basis he should have received the letter within several business days of that date.
On the material available to the Tribunal, and in the absence of any advice from the applicant to the contrary, the Tribunal concludes that the applicant became aware of the making of the decision by the end of December 2008. Given the letter of refusal advised him then of his appeal rights and gave contact details for the Administrative Appeals Tribunal, it is reasonable to expect that the applicant may have taken some action by the end of January 2009. That he did not do so, and again in the absence of any explanation as to why the applicant delayed for such a long time before lodging the application, leads the Tribunal to conclude that the time gap is unreasonable.
It is ordinarily the case that when a determinative body is deciding an application for an extension of the time that it will also have regard to the possible merits of the substantive application[4].
The respondent informed the Tribunal in its submission in support of notice opposing the extension of time application that the applicant has several convictions. They are as follows:
[4]
3.1 in June 1999 he was imprisoned for 9 months (served 3 months) for assault occasioning bodily harm;
3.2 in December 2003 he was sentenced to two concurrent periods of 6 months' imprisonment, suspended for 12 months, for recklessly causing injury, theft, 3 counts of robbery, and carrying an unregistered longarm firearm; and
3.3 in December 2006 he was sentenced to 3 months' imprisonment suspended for 12 months for perjury and obtaining financial advantage by deception, and to 3 months' imprisonment to be served by way of an intensive correction order for nine counts of obtaining property by deception.
[5]
The applicant applied for the grant of citizenship on 15 July 2008. At the time the decision to refuse was made, the applicant was not apparently under sentence for any offences. Accordingly, his application for citizenship was not automatically excluded by s 24(6) of the Act. Nevertheless, given he had been convicted of offences on three occasions within a 10 year period preceding his application and that the offences were serious (on two occasions involving assault and one count of perjury - the latter conviction occurring approximately two years prior to the refusal decision), the decision to refuse his application is reasonable and was open to the decision maker. The Tribunal assesses the chance of him succeeding in his application to it for review as being weak.
The weakness of his case combined with the lack of any explanation for the delay leaves the Tribunal satisfied that the application for an extension of time ought to be rejected. It follows that the substantive application is rejected also.
For the above reasons the Tribunal dismisses the application for the extension of time.
[6]
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of
[7]
Signed: ..........(sgd D De Andrade).............................
[4] "The merits of the substantial application are properly to be taken into account in considering whether and extension of time should be granted": Wilcox J in Re: Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment[1984] FCA 176 at para 22.
Legislation Cited (3)
Interpretation Act 1901
Citizenship Act 2007
Appeals Tribunal Act 1975
Cases Cited (2)
Kamoun and Minister for Immigration and Citizenship [2010] AATA 440 (1 June 2010)
Re: Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176
AI Analysis
Outcomeprocedural
Disposition:
The Tribunal dismissed the application for extension of time to lodge a review and therefore did not entertain the substantive application.