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Administrative Appeals Tribunal of Australia |
Last Updated: 10 December 2021
El Ali and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (Citizenship) [2021] AATA 4594 (8 December
2021)
File Number(s): 2021/4531
Re: Sleiman EL ALI
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Emeritus
Professor P A Fairall, Senior Member
Date: 8 December 2021
Place: Sydney
The application to extend the time under section 29(7) of the AAT Act is refused.
............................[SGD]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
EXTENSION OF TIME APPLICATION –
citizenship by conferral – where the application is 84 days out of time
– where
applicant has used wrong form to apply – whether use of
wrong form is fatal to the merits of the application – whether
there was a
reasonable explanation for the delay – little if any prospect of success -
application refused.
LEGISLATION
Acts
Interpretation Act 1901 (Cth) s 25C
Administrative Appeals
Tribunal Act 1975 (Cth), s 29
Administrative Decisions (Judicial
Review) Act 1977 (Cth) s 11
Australian Citizenship Act 2007
(Cth) s 21
CASES
Bahonko v Nurses
Board of Victoria (No 4) [2007] FCA 1449
Fissal and Minister for
Immigration, Citizenship, Migrant Services and Multicultural Affairs
(Citizenship) [2021] AATA 927
Hashim and Minister for Immigration,
Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021]
AATA 58
Hunter Valley Developments Pty Ltd v Minister for Home Affairs
and Environment (1984) 3 FCR 344
Lucic v Nolan [1982] FCA 217;
(1982) 45 ALR 411
Miller and Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs (Migration) [2021] AATA
1623
Petrovski and Minister for Immigration, Citizenship, Migrant
Services and Multicultural
Affairs [2021] AATA
2800
Phillips v Australian Girls’ Choir Pty Ltd & Anor
[2001] FMCA 109
Qaddo and Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA
2804
REASONS FOR DECISION
Emeritus
Professor P A Fairall, Senior Member
8 December
2021
1. The Applicant seeks an extension of time (‘EoT’) under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) for the making of an application for review. I have decided to refuse the application, for the reasons set out below.
2. The application for review relates to a decision of a delegate of the Respondent made under the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’) not to grant his application for citizenship by conferral.
3. The Applicant is a 37 year-old male citizen of Lebanon. He arrived in Australia on 22 January 2014 and was granted a Migrant Partner visa BC-100 on 1 September 2015. He currently holds a Resident Return visa BB-155, granted on 7 August 2020.
4. He applied for Australian citizenship by conferral on 31 January 2020.
5. He completed Form 1300t - Application for Conferral of Australian Citizenship – General Eligibility – and was assessed by the delegate in accordance with subsection 21(2) of the Act.
6. On 10 March 2021, the Respondent refused the Applicant’s application for citizenship by conferral.
7. The record of decision states as follows:
On 16/12/2020 you attempted the Australian citizenship test on one occasion and achieved a score of 35%. Unfortunately, you did not achieve the pass mark of 75% on this occasion, nor did you answer correctly all of the Australian Values questions.
On 02/02/2021 you attempted the Australian citizenship test on one occasion and achieved a score of 40%. Unfortunately, you did not achieve the pass mark of 75% on this occasion, nor did you answer correctly all of the Australian Values questions.
On 01/03/2021 you attempted the Australian citizenship test on one occasion and achieved a score of 40%. Unfortunately, you did not achieve the pass mark of 75% on this occasion, nor did you answer correctly all of the Australian Values questions.
In a Letter dated 26/01/2021 you have provided documentation in relation to your medical conditions and your claimed incapacity. I have given careful consideration to this evidence and I have made the following findings:
There is no evidence before me that Dr Abdul Kader El Mohsen.is a specialist in the field of your claimed incapacity. Information provided on Dr Abdul Kader El Mohsen’s letter dated 26/01/2021 indicated that he is a Generalist Practitioner. This is not a specialist organisation listed in Schedule 4 of the Health Insurance Regulations 1975. As such, I find that the letter he has provided does not meet the evidentiary requirements set out in policy.
In a Letter dated 07/12/2020 you have provided documentation in relation to your medical conditions. I have given careful consideration to this evidence and I have made the following findings: There is no evidence before me that Dr Elsadig Mohammed is a specialist in the field of your claimed incapacity.
Information provided on Dr Elsadig Mohammed’s letter dated 07/12/2020 indicated that he is a Generalist Practitioner. This is not a specialist organisation listed in Schedule 4 of the Health Insurance Regulations 1975. As such, I find that the letter he has provided does not meet the evidentiary requirements set out in policy.
In a letter dated 13/11/2017 you have provided documentation in relation to your medical conditions I am satisfied that Dr Ishrat Ali is a specialist in the field of your claimed medical condition as there is evidence before me that he is registered with the Psychiatrist Board of Australia, and is registered with Medicare for these purposes. However, I find that Dr Ishrat Ali has not provided information to indicate whether the nature of your medical condition is a permanent or enduring incapacity which means that you are not capable of understanding the nature of your citizenship application, not capable of demonstrating a basic knowledge of the English language or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at time of application. Please note that Citizenship Policy also states that for an applicant to qualify, the incapacity must be either permanent or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian Citizenship.
To date, there is no information before the department to indicate that you have successfully completed a Standard Test, an Assisted Test or a Course-Based Test, therefore I am not satisfied that you meet the requirements set out in Paragraphs 21(2)(d)(e) and (f) of the Australian Citizenship Act 2007.
8. On 15 April 2021, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of this decision.
9. On 28 April 2021, the Tribunal notified the applicant that the application for review had been received outside the timeframe of 28 days, and that he needed to file an extension of time application within 14 days. The Tribunal received no response.
10. On 18 June 2021, the Tribunal emailed the applicant stating that no EoT application had been received and as a result, the matter was closed.
11. On 30 June 2021, the Tribunal received a new application for review with an attached extension of time application, some 84 days out of time. The stated reason for the EoT was expressed as follows: “I am currently under pressure and feel a lot of stress and really depressed.”
12. On 22 July 2021, the Respondent notified the Tribunal of its objection to the EOT application, stating:
The Minister opposes the extension of time due to the unreasonable length of delay, inadequate explanation for the delay and the absence of reasonable prospects of the substantive application, if an extension of time were granted.
THE DISCRETION TO GRANT AN EXTENSION OF TIME
13. Section 29(7) of the AAT Act provides:
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.
14. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J identified certain key factors in the context of section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 348-9). This case has been widely applied and refined in administrative proceedings.
15. In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10] the Federal Magistrates Court stated:
...it is useful set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416; ). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition ( Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287)
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).
16. In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] Middleton J said, in the context of an application for an extension of time under human rights legislation, that the main three considerations were:
17. The Tribunal cannot lawfully be satisfied that it is reasonable to grant an extension of time unless positively satisfied that it is proper to do so. The essential question is whether it is reasonable in all the circumstances to grant an extension, and whether the interests of justice will be served by doing so.
18. As previously noted by the Tribunal in Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 927:
18. It is not in the interests of justice to grant an extension when the case has little or no prospect of success, or where the party opposing the extension will suffer serious hardship as a result, including the inconvenience and cost of ongoing disputation. A party should be able to order their affairs, especially in relation to monetary claims, on the basis that claims will not resurface after the deadline for settling them has passed. The timely settlement of claims is an important consideration.
...
20. In practical terms, it is useful to consider the prospects of success first, for there is no justice and indeed a great injustice in drawing out proceedings that have no prospect of success. This exercise falls well short of a hearing on the merits but cannot be regarded as superficial. Its purpose is to determine whether there are obvious flaws in the application. Where the application is not doomed to fail, the Tribunal must be satisfied that the interests of justice require the grant of an extension, despite the applicant’s non-compliance with the statutory time limit. It is incumbent on a person seeking an extension of time to provide a reasonable explanation for the delay, addressing the length of delay. Prospects of success and reasons for delay are the essential elements of an application for an extension of time.
PROSPECTS OF SUCCESS
19. There are seven situations in which a person is eligible for citizenship by conferral under the Citizenship Act.
20. The ‘standard’ pathway involves satisfying the general eligibility criteria and completing a citizenship test. Section 21(2) sets out the general eligibility requirements including that the applicant understands the nature of a citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. The knowledge requirements are taken to be satisfied if and only if the Minister is satisfied that the applicant has successfully completed a prescribed test (‘the Citizenship Test’) within the approved time: section 21(2A).
21. Section 21 refers to six other situations, where the requirement to sit and pass the citizenship test is dispensed with. These include:
22. I note that the delegate was satisfied that the applicant was not eligible by reason of subsection 21(2), applying subsection 21(2A).
23. As noted by the Respondent:
In order to successfully complete the citizenship test, the applicant needed to achieve a score of 75% on the test, and answer all of the Australian values questions correctly. The applicant attempted the citizenship test three times, on 16 December 2002, 2 February 2021 and 1 March 2021, achieving scores of 35%, 40% and 40% respectively. On none of those occasions did the applicant answer all of the Australian values questions correctly. Accordingly, the applicant is incapable of satisfying s 21(2)(d)-(f) of the Act.
24. The delegate also considered medical evidence tendered by the applicant, which may have been relevant to paragraph 21(3)(d).
25. The effect of this paragraph is that a person may be eligible for citizenship even though they have not sat for and passed the citizenship test. This pathway applies if a person has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time ...
26. The delegate was satisfied that the medical evidence provided by the applicant was insufficient to establish the requisite degree of incapacity.
THE WRONG FORM ARGUMENT
27. Mr Eskerie, for the Respondent, contends that the substantive application based on the applicant’s medical condition has no prospects of success because it was made on the wrong form, namely Form 1300t rather than Form 1290. He contends that this alone is fatal to any application for citizenship by conferral based on a permanent or enduring physical or mental incapacity. He puts forward that s 46(1)(a) of the Act requires that an application made under a provision of the Act must be on the relevant form approved by the Minister for the purpose of that provision.
28. I note that support for this submission may be found in some decisions of the Tribunal, for example, Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 58 (Hashim).[1]
29. However, I do not propose to dispose of the present application for an extension of time on this ground, for the reasons set out at some length in my decision of Qaddo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2804.
30. I note that, as in the case of Qaddo, and unlike the case of Hashim, the delegate in the present application considered the medical evidence tendered by the applicant and made certain findings. For example, the delegate found that Dr Ishrat Ali is a recognised specialist in the relevant field. The delegate also found that he had:
...not provided information to indicate whether the nature of your medical condition is a permanent or enduring incapacity which means that you are not capable of understanding the nature of your citizenship application, not capable of demonstrating a basic knowledge of the English language or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at time of application.
31. In Qaddo, I distinguished Hashim as a case where the Tribunal proceeded on the footing that the medical evidence relevant to a claim under subsection 21(3) had not been considered by the delegate, and that for the Tribunal to do so on review would be considering ‘aspects of the citizenship application and the medical evidence for the first time’.[2] In the present case, it appears that the delegate did in fact consider medical evidence bearing on subsection 21(3) (without explicitly referring to the subsection).
32. Mr Eskerie informed me that the decision of the Tribunal in Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623, upon which considerable weight was placed in Qaddo, was subject to an appeal to the Federal Court. That may be so, but in the meantime, with respect, I proceed on the footing that an application for citizenship by conferral on the ‘wrong form’ is not necessarily fatal to the application, and that in a particular case such an error may be cured by the doctrine of substantial compliance, as set out in section 25C of the Acts Interpretation Act 1901 (Cth).
MEDICAL INCAPACITY INVOLVES A STRINGENT TEST
33. In Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 927 I noted:
The relevant incapacity must exist at the time of the application... Moreover, the incapacity must be more than a contributing factor. The words ‘that means’ imply that any alleged incapacity (being permanent or enduring) must be of itself enough to invoke at least one of the incapacities stated in the subsection. Finally, any one of the stated incapacities is enough. Many if not most cases fall into the second category, where a person claims that they are not capable of demonstrating a basic knowledge of the English language. In such cases the Tribunal must be satisfied that the linguistic incapacity is caused by (and not merely associated with) the enduring physical or mental incapacity. Illiteracy is not by itself enough to satisfy the requirement.
34. As noted above, in the delegate’s decision certain medical reports are referred to. The delegate considered that two of the medical witnesses lacked the appropriate credentials, and the accredited psychiatrist Dr Ishrat Ali had provided an inadequate evidential basis for asserting that the condition of paragraph 21(3)(d) were satisfied.
35. Dr Ali’s letter of 13 November 2017 referred to the applicant suffering from major depression and continuing to suffer from depressive symptoms and other problems, such as arthritis. In the absence of more comprehensive evidence, it is unclear how or why the fact that a person suffers from major depression at a point in time means that they are not capable of demonstrating a basic understanding of the English language. The diagnostic label may be a necessary step to satisfying this requirement, but it is not of itself sufficient.
36. On balance, I am inclined to agree with the Respondent that the medical evidence presented to the Tribunal is lacking in substance and unlikely, on a full review, to lead to a positive outcome for the applicant. In my view, it is unlikely that, if the matter were to progress to a substantive merits review, the Tribunal would find on the basis of these medical reports that the applicant lacks the capacity to demonstrate a basic knowledge of the English language as such to satisfy the requirement of s 21(3)(d).
37. For this reason, I am satisfied that the case is not one in which the discretion to grant an extension of time should be exercised. The applicant has failed to provide a sound explanation for his delay and the Tribunal cannot be satisfied, on the material provided, as to the merits of the applicant’s argument. As a general statement, the requirement to comply with legally imposed deadlines is not to be lightly discarded.
38. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained: Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at (416).
39. The applicant is at liberty to make a fresh application for citizenship.
DECISION
40. The application to extend the time under section 29(7) of the AAT Act is refused.
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I certify that the preceding 40 (forty) paragraphs are a true copy of
the reasons for the decision herein of Emeritus Professor P
A Fairall, Senior
Member
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...............................[sgd].........................................
Associate
Dated: 8 December 2021
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Date(s) of hearing:
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22 October 2021
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5 November 2021
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Self-represented
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Mr K Eskerie, Sparke Helmore
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[1] See also Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural
Affairs [2021] AATA 2800.
[2] Qaddo, at [37].
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