Consideration
31 The period in which a review may be brought is prescribed by s 29 of the AAT Act. Section 29(7) provides:
Tribunal may extend time for making application
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.
32 There is no doubt that, as a matter of law, an applicant for an extension of time does not need to establish "truly exceptional circumstances". No such condition appears in s 29(7) and it would be wrong to interpret it in that way. The Minister did not argue otherwise. Mr Makarov submitted that the correct approach was for the Tribunal to weigh up the relevant factors referred to in Hunter Valley Developments and summarised in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [88]. In ActewAGL, at [88], I said that the general principles which Wilcox J drew from the case law were these:
(a) There is no need to show special circumstances but the Court cannot ignore the statutory period. The starting point is that the legislature has prescribed a period. An extension of time will not be granted unless the Court is "positively satisfied that it is proper to do so". Any applicant for an extension must provide an acceptable explanation for the delay and establish that it is "fair and equitable in the circumstances" to extend time.
(b) Any action the applicant has taken apart from the proceedings is relevant to the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that she or he contests the finality of the decision (that she or he has not "rested on his [sic] rights") and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the "need for finality in disputes" but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 71 FLR 256; 47 ALR 528.
(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension.
(d) Still, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(e) It is proper to take into account the merits of the substantive application.
(f) Considerations of fairness as between the applicants and other persons otherwise in a similar position are relevant to the way in which the discretion should be exercised …
(g) Decisions affecting only the immediate parties are to be distinguished from those involving public administration, where the public interest may well dictate refusal of an extension, even after only a short delay.
33 While Hunter Valley Developments (and ActewAGL, for that matter) concerned an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the power to grant an extension of time under that Act (contained in s 11) is differently worded, it was common ground that the principles outlined in that case applied equally to applications for an extension of time brought under s 29(7) of the AAT Act. The first of those principles was that special circumstances need not be shown. But the reference by the Tribunal to "truly exceptional circumstances" was not a reference to any statutory test or principle of law. The Deputy President was not purporting to state a principle of law. He did that earlier in his reasons when he extracted the summary of the above principles from an earlier Tribunal decision. Thereafter, he applied those principles. Contrary to the submissions advanced on Mr Makarov's behalf, the approach the Tribunal took was to "weigh up the relevant factors referred to in Hunter Valley [Developments]".
34 The reference to "truly exceptional circumstances" appears in [10] of the Deputy President's reasons. Although I have summarised those reasons above, given its importance the entire passage in which it appears should be extracted in full. At [10] the Deputy President said:
It is in the interests of both the Minister and the public that action to challenge decisions is taken within a reasonable time. I am satisfied that both the Minister and the public would expect timelines to be adhered to in a matter like the present. There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances, which do not present in this case even accepting the difficulties the Applicant faced.
35 The point the Deputy President was making was not that s 29(7) required "truly exceptional circumstances" but that, absent such circumstances, "[t]here is prejudice to the public and the general administration of justice" if decisions of public officials are open to challenge 12 years after they were made. This was not a statement of law but a conclusion of fact. And it is entirely unremarkable. Gageler J made a similar observation in Vella about a delay of 16 months in the filing of an application for judicial review. Although the facts of the cases are different, I do not accept that the references to the passages the Tribunal cited from the judgments in Marks and Vella are misplaced, or, as Mr Makarov also submitted, indicative of legal error on the Tribunal's part. They both emphasise the importance of finality in administrative decision-making, which was the point the Tribunal was making at the time.
36 It is beside the point that extensions of time have been granted in tax cases following lengthy delays. As the Minister put it in his submissions, the Tribunal is given a discretion to extend the time and citing examples of cases in which differently constituted tribunals came to different conclusions on the basis of different facts tells us nothing about whether the Tribunal's decision in the present case strayed beyond the area of "decisional freedom" vested in it by the Parliament: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ). It is a matter of common sense that the longer the delay the more difficult it will be for an applicant to persuade any tribunal that an extension of time should be granted. It is also a matter of common sense that the longer the delay the better the explanation will need to be. In the present case, the only explanation for the delay came from Mr Makarov's lawyer, Alison Battisson. It was in the nature of a submission.
37 The evidence before the Tribunal consisted of an affidavit from Ms Battisson filed in the s 39B application in this Court, to which a number of documents were attached. In her affidavit, Ms Battisson set out a brief chronology, referring to the application for Australian citizenship in 2000, the grant in 2001, and the cancellation in 2007 and then jumped to May 2019 when she said she first received instructions to appeal the cancellation. The immediate purpose of this affidavit was to persuade this Court to grant the injunction to halt Mr Makarov's deportation. It did not provide an explanation for the delay nor did it annexe any documents that might have accounted for the delay.
38 Mr Makarov, himself, did not give any evidence. No affidavit was filed and he was not called as a witness before the Tribunal. Indeed, no statement from him was proffered to the Tribunal. In Ms Battisson's submission to the Tribunal she referred to advice she had obtained in early September and early October 2019 from two experts to the effect that Mr Makarov lost his Ukrainian citizenship upon the voluntary acquisition of his Australian citizenship. As I have already mentioned, however, she did not submit the advice to the Tribunal.
39 In these circumstances, it is unsurprising that the Deputy President concluded that an acceptable explanation for all the delay had not been given.
40 For completeness I note that in his written submissions Mr Makarov argued that the Tribunal made no finding that the delay prejudiced the Minister and submitted that it was "clear that the delay does not cause the Minister or the Department prejudice in the conduct of a review hearing due to the effluxion of time and consequent deterioration to the memory or availability of witnesses". He said that that was because "the key issue on review will turn on the legal position under Ukraine law as to the effect of the conferral of Australian citizenship on [Mr Makarov's] Ukrainian citizenship".
41 It is difficult to know what to make of this argument. It was not directed to either question of law or to any ground of the appeal. During oral argument, Mr Makarov's counsel said it was relevant to ground 5 but I struggle to see how. In any event, the submission proceeds from a false premise. As the extract from his reasons at [22] above clearly reveals, the Deputy President did make a finding that the Minister would be prejudiced if an extension of time were granted. Even if that finding was wrong, absent any allegation, let alone demonstration, that there was no probative basis for it, it is not open to the Court to find that that was an error of law.
42 Ground 5 should therefore be dismissed. It follows that so, too, should grounds 1 and 2.
43 By ground 1, it will be recalled, Mr Makarov alleges that the Tribunal "failed to properly consider the injustice" to him in that "his right to test whether the Minister's decision to cancel his decision was prohibited by s 34(3) of the Citizenship Act would be defeated" in circumstances where the Tribunal had found that he had a reasonable prospect of success and/or that he would become stateless, "with profound adverse personal consequences for him and his family". In substance, his argument was that the Tribunal gave insufficient weight to these matters and too much weight to the extensive delay. That was also the effect of his argument in relation to ground 2.
44 In the absence of any suggestion, let alone reasoned argument, that the Tribunal's decision was legally unreasonable, these allegations amount to nothing more than a complaint about the outcome of the exercise of the discretion. Mr Makarov eschewed the notion that the Tribunal erred by failing to assess the strength of his case or should have gone further than it did in its evaluation of its merits. The Tribunal was plainly alive to the potential consequences of its decision.
45 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 Mason J emphasised that "in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power". Where the Act is silent on the considerations to be taken into account, these remarks have even greater force.