Appeal to the AAT
TABLE OF CONTENTS
An Update on New Zealanders
Fighting for or being in the service ISIS can lead to a loss of Australian Citizenship
A revamped Australian Citizenship Act in 2007
Australian Citizenship by Descent
The Residency Requirement
Activities that are of benefit to Australia
Spouses and Interdependent Relationships
Security & Character
Re-acquiring Australian Citizenship
Is Every Child Born in Australia a Non-Alien?
Other Requirements for Australian Citizenship
Pledge May Be Delayed
Citizenship May Be Revoked In Special Circumstances
Appeal to the AAT
Passport Not Re-issued
Some Temporary Residence May Count For Permanent Residence For Citizenship
Rejection of Australian Citizenship on Character Grounds
Wrong Answers To Hide Criminal Conduct
No Deportation & No Citizenship
Fraud Convictions Not A Barrier To Citizenship
Absorbed person visa cancellation win in the AAT
Resident Return Visas
Student caught by Immigration ‘error’ on citizenship
There is a general right of review to the AAT:
- 52 Review of decisions
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a) a decision under section 17 to refuse to approve a person becoming an Australian citizen;
(aa) a decision under section 19D to refuse to approve a person becoming an Australian citizen;
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
(c) a decision under section 25 to cancel an approval given to a person under section 24;
(d) a decision under section 30 to refuse to approve a person becoming an Australian citizen again;
(e) a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);
(f) a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.
Citizenship by conferral decision
(2) However, if:
(a) the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and
(b) the Minister’s reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and
(c) the person was aged 18 or over at the time the person made the application to become an Australian citizen;
a person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident.
Extending time to appeal to the AAT
A citizenship applicant has 28 days from the date of refusal to appeal to the AAT. But in Chiu v MIMIA  AATA 888 (19.10.06), the AAT extended the time even though the applicant was about 2 months late in applying to the AAT. The AAT adopted this principle:
Generally the prescribed 28 day period is to apply unless there is an acceptable explanation of the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. All factors relevant to a case have to be weighed up against one another in reaching a decision: per Zizza v FCT (1999) 55 ALD 451.
Initially DIMA argued prejudice to oppose the delay but this rejected by the AAT:
- It was contended… that the Department will suffer prejudice as the delay in commencing proceedings will bring into question the finality of decisions made by the Minister’s delegates. Further, it was contended that finality of decisions is very important in the administration of the Act and that allowing people to challenge decisions after delays will cause administrative uncertainty in the administration of the Act as it may indicate to other applicants that decisions made under the Act do not have the character of finality.
- There is no doubt that it is desirable for the administration of government that there is certainty in decision-making. However, in the context of only a short delay I do not consider the Department to be prejudiced. There was no evidence of, for example, the destruction of records or the inability to locate relevant parties because of the delay. In view of the short passage of time since the decision was made, it is unlikely, in any event, that this had occurred.
The AAT did however examine the merits of the applicant’s case in some detail and it is clear that the strength of an applicant’s case will have some bearing on an extension of time. Here the AAT considered there was sufficient merit to extend the time.