Akile and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Citizenship) - [2020] AATA 4631

Akile and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Citizenship) [2020] AATA 4631 (18 November 2020)
Division:GENERAL DIVISION
File Numbers: 2020/4658; 2020/4659; 2020/4660
Re:Umjuma Akile
SDVS
YVMH
APPLICANTS

AndMinister for Immigration, Citizenship, Migration Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:18 November 2020
Place:Perth

The Applicants’ applications for extensions of time to lodge applications for review of the decisions made by the delegate on 14 May 2020, to refuse Australian citizenship by conferral, are refused.
.............................[sgd]...........................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
PRACTICE AND PROCEDURE – applications for extensions of time – significant delay – awareness of appeal rights – unsatisfactory explanation for delay – limited prospects of success for substantive applications – alternative avenue of relief – prejudice – Tribunal not satisfied that reasonable in all the circumstances to grant extensions of time – applications for extensions of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(1)(d), 29(2), 29(7)
Australian Citizenship Act 2007 (Cth) – ss 24(3), 52(1)(b)
CASES
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Comcare v A’Hearn (1993) 119 ALR 85
Duong v Australian Postal Court (2005) 41 AAR 288
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Civic Tavern Pty Ltd & ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Re Secretary, Department of Family and Community Services and Roberts
(2003) 73 ALD 412; [2003] AATA 269
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASY v Minister for Immigration and Border Protection [2017] FCCA 1623
WZATA v Minister for Immigration and Border Protection [2016] FCCA 305
WZAUQ v Minister for Immigration and Border Protection [2016] FCCA 152
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
18 November 2020
INTRODUCTION

This matter is an application for an extension of time to seek review of decisions of a delegate of the Minister dated 14 May 2020 to refuse Ms Akile and two of her children citizenship by conferral approval under s 24(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) on the basis that the delegate was not satisfied of their identity
(Exhibit A2, Exhibit A6, Exhibit A10).
An interlocutory hearing was conducted on 29 October 2020 by telephone conference.
Ms Akile was self-represented and gave evidence on affirmation.
Mr A Gerrard of the Australian Government Solicitor represented the Respondent.
The Tribunal was assisted by an interpreter in the Dinka language who participated from Melbourne.
BACKGROUND
Ms Akile is a national of Sudan and arrived in Australia on 3 December 2013 as the holder of a Subclass 202 Global Special Humanitarian visa. Ms Akile has not applied for any other visas and therefore remains the holder of that visa.
On 29 May 2018, Ms Akile lodged an application for conferral of Australian citizenship with the Department of Home Affairs. The application included her two children, SDVS and YVMH, who are nationals of Uganda.
On 14 May 2020 a delegate of the Minister refused to grant the Applicants’ Australian citizenship pursuant to s 24(3) of the Citizenship Act on the basis that the delegate was not satisfied as to the Applicants’ identities (Exhibit A2, Exhibit A6, Exhibit A10).
With respect to SDVS and YVMH, the delegate also assessed their applications against the policy guidelines for children aged under 16 applying in their own right and used his discretion to refuse to approve them becoming Australian citizens.
On 31 July 2020, Ms Akile applied in writing for an order under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) extending the time for the making of an application to the Tribunal for a review of the delegate’s decision to 31 July 2020
(Exhibit A3). Ms Akile provided no reason for the application at that time, but on 14 August 2020 submitted:
The reason why I disagree with the Department of Home Affairs is because the [sic] said that the date of birth for the children is different with the date on the travel documents. So I want to show the Department of Home Affairs the birth certificate of my children. About the extension of time I got help from someone that helped me to filled [sic] the form. So I am ready anytime. (Exhibit A5)
ISSUE
Ms Akile has applied for extensions of time within which applications for review may be lodged. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.
LEGISLATIVE FRAMEWORK
The statutory provisions relevant to the conferral of citizenship are contained in the Citizenship Act. Section 52(1)(b) confers jurisdiction on the Tribunal to review a decision made under s 24 to refuse to approve a person becoming an Australian citizen.
Sections 29(1)(d) and 29(2) of the AAT Act require a person seeking review to lodge an application with the Tribunal within the prescribed time of 28 days after the decision is given to the applicant (provided the decision sets out material findings and reasons for decision). Subsection 29(7) of the AAT Act provides that 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 if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
It has been customary for the Tribunal, in determining applications for an extension of time, to be guided by the principles enunciated by the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J) (Hunter Valley Developments). The Respondent relevantly cites those principles as summarised in Duong v Australian Postal Court (2005) 41 AAR 288 at 293 – 394 as follows:
1.Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show “an acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
2.Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question 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 he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
3.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.
4.However, 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.
5.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
6.Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion. (Exhibit R1, para 11)
The strength, weakness or absence of any explanation offered for the delay in applying for review will be a relevant matter to be considered in determining whether or not to allow an extension of time. However, the Tribunal notes that the view that an acceptable explanation for the delay is to be regarded as a pre-condition to the exercise of discretion in an applicant’s favour must now be read with the decision in Comcare v A’Hearn (1993)
119 ALR 85, where the Full Court of the Federal Court (Black CJ, Gray and Burchett JJ) said at 444 that:
Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition…
Further authorities also guide the Tribunal’s considerations. In the matter of Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451, Katz J said that in determining the question of an extension of time the Tribunal should weigh together all relevant factors.
And in Brown v Federal Commissioner of Taxation (1999]) 99 ATC 4516 at [59], Hill J stated that the Tribunal, on a review, should be guided by what the justice of the case requires.
EVIDENCE
The Tribunal had before it the following evidence:
·Applicant’s Reasons for Application and Extension of Time
(Matter 2020/4658) dated 14 August 2020 (2 (Exhibit A1);
·Decision (of Ms Akile) dated 14 May 2020 (Exhibit A2);
·Application for Extension of Time (Matter 2020/4658) dated 31 July 2020 (Exhibit A3);
·Application for Review of Decision (Matter 2020/4658) (Exhibit A4);
·Applicant’s Reasons for Application and Extension of Time
(Matter 2020/4660) dated 14 August 2020 (Exhibit A5);
·Decision (of YVMH) dated 14 May 2020 (Exhibit A6);
·Application for Extension of Time (Matter 2020/4660) dated 24 July 2020 (Exhibit A7);
·Application for Review of Decision (Matter 2020/4660) (Exhibit A8);
·Applicant’s Reasons for Application and Extension of Time
(Matter 2020/4659) (Exhibit A9);
·Decision (of SDVS) dated 14 May 2020 (Exhibit A10);
·Application for Extension of Time (of SDVS) dated 31 July 2020
(Exhibit A11);
·Application for Review of Decision (Matter 2020/4659) dated 31 July 2020 (Exhibit A12);
·Respondent’s Submissions Opposing an Extension of Time (Ms Akile)
dated 24 September 2020 (Exhibit R1);
·Respondent’s Notice of Opposing Application for Extension of Time
(of Ms Akile) dated 4 September 2020 (Exhibit R2);
·Respondent’s Submissions Opposing an Extension of Time (of YVMH)
dated 24 September 2020 (Exhibit R3);
·Respondent’s Notice of Opposing Application for Extension of Time
(of YVMH) dated 4 September 2020 (Exhibit R4);
·Respondent’s Submissions Opposing an Extension of Time (of SDVS)
dated 24 September 2020 (Exhibit R5);
·Respondent’s Notice of Opposing an Application for Extension of Time
(of SDVS) dated 4 September 2020 (Exhibit R6); and
·the oral evidence of Ms Akile.
There is some duplication in the above evidence. For example, the Applicants’ Reasons for Application for Extension of Time (Exhibit A1, Exhibit A5 and Exhibit A9) are identical, and the delegate’s decisions regarding the two children and sent to Ms Akile (Exhibit A6, Exhibit A10) differ only by reference to the children’s names. Nevertheless, the Tribunal identifies the evidence as above for completeness and to avoid potential future confusion.
CONSIDERATION
With respect to the three applications, the Respondent submits that the applications should not be entertained because there is no adequate explanation provided for the delay by the Applicant; the delay is not insignificant; and there is no prohibition on the Applicant and her children re-applying for citizenship by conferral (Exhibits R2, R4 and R6).
The Tribunal turns to its consideration of relevant factors. The consideration necessarily focuses on Ms Akile’s application, with attention to issues relevant to YVMH and SDVS discussed under the factor Merits of the application below.
Length of delay
The evidence is that the application for an extension of time is 50 days outside the prescribed period of 28 days for seeking review in the Tribunal (i.e., from the date of notification).
Although not excessive, the Respondent relevantly submits:
The length of the delay here is of the kind that the Courts have found to warrant refusal of an extension of time. In WZAUQ v Minister for Immigration and Border Protection [2016] FCCA 152 the Federal Circuit Court found that a delay of 43 days was “substantial”. See also WZATA v Minister for Immigration and Border Protection [2016] FCCA 305 at [10] where a delay of 72 days was found to be “quite significant”. In WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 the Court found at [28] that a delay of 54 days would likely be a delay of a length fatal to an application to extend time. See also WZASY v Minister for Immigration and Border Protection [2017] FCCA 1623 at [16] where a delay of 34 days weighed against an extension of time being granted. (Exhibit R1, para 17)
(Original emphasis.)
Further, the Tribunal notes that in the matter Re Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412; [2003] AATA 269 at 416, the Tribunal stated that the brevity of the extension sought does not lead automatically to an order extending the time.
Without a cogent and reasonable explanation for the delay, this factor weighs against an extension of time being granted.
Explanation for delay and awareness of appeal rights
The letter notifying Ms Akile of the refusal of her application for Australian citizenship details an applicant’s review rights and includes the statement: ‘An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taken to have received this letter’ (Exhibit A2/1).
The Respondent concedes that ‘Some latitude should be given to self-represented applicants, particularly where English is not their first language…’ (Transcript p7),
and the Tribunal does so. The Tribunal also has regard to Ms Akile’s evidence during the hearing that she is illiterate and cannot read or write (Transcript p11).
As stated earlier in these reasons (see paragraph [9] above), Ms Akile explained the delay in lodging her application thus: ‘[a]bout the extension of time I got help from someone that helped me to filled [sic] the form. So I am ready to go anytime.’ Ms Akile provided no further explanation during the hearing (A5).
Ms Akile’s evidence is that she sought assistance from her children and members of her community when she received correspondence from the department. There is no evidence that she or those assisting her were unaware of the appeal rights. The Tribunal notes that in a number of matters such as Re Grafton and Commonwealth (1998) 16 ALD 533,
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248, and
Re Civic Tavern Pty Ltd & ACT Liquor Licensing Board (1993) 32 ALD 381,
the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.
Even making concessions for Ms Akile’s challenging circumstances, the Tribunal concludes that Ms Akile has not offered a persuasive, satisfactory or reasonable explanation for the delay. The consideration of this factor weighs against granting an extension of time.
Merits of the application
It is not necessary for the Tribunal to conduct a merits review of Ms Akile’s substantive application in these interlocutory proceedings. However, it is appropriate for the Tribunal to consider the merits of that application as part of the process of determining whether an extension of time should be granted. Relevantly, the Tribunal has regard to the statement of von Doussa J in the matter of Kuljic v Secretary, Department of Social Security
(1994) 33 ALD 121 at 122 to the effect:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success,
it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.
It may be that the stronger the apparent merits of the substantive application, the more likely that an extension of time would be appropriate.
The Respondent accepts that ‘…the application is not so devoid of merits as to be considered hopeless’ (Exhibit R1, para 26), but that ‘[i]n the absence of any documentation which predates the applicant’s arrival in Australia it cannot be said that the applicant has a strong case’ (Exhibit R1, para 27).
Ms Akile told the Tribunal that she wanted to become ‘a full Australian citizen’
(Transcript p12). In further evidence, Ms Akile made clear that she had not provided requested documents to assist in satisfying her identity, and at the time of this hearing remained unsure of what was required, stating: ‘What are the documents that are needed… I’m not aware about other official documents that are needed from me…
…is it like a card from the refugee camp that is needed or any other type of official document from my country?’ (Transcript p11).
Ms Akile’s application for citizenship was rejected because the delegate could not be satisfied of her identity. The evidence is that there remains an absence of documentation relating to her identity and life story prior to her arrival in Australia. Further, there was no evidence presented to indicate that Ms Akile had taken reasonable steps to obtain such documentation. Having regard to the evidence, the Tribunal concludes that Ms Akile’s substantive application has very limited prospects of success.
As foreshadowed at paragraph [19] above, the Tribunal turns to issues relevant to YMVH and SDVS. The children are nationals of Uganda whilst Ms Akile is a national of Sudan.
Ms Akile’s confusion or lack of understanding regarding documentation extends to the children. In her oral evidence, Ms Akile described her major problem as ‘…which type of document I needed and also for my children, which document also I needed for my children whether the certificate of birth or any official document that was issued in overseas or here?’ (Transcript p11).
The Tribunal considers that it would be difficult to be satisfied of a child’s identity in circumstances where the identity of the mother had not been satisfactorily ascertained. YVMH and SDVS would have a residual right to have their applications considered in their own rights, and in these circumstances the Citizenship Policy provides that citizenship would not normally be approved unless certain criteria apply. In both cases the Tribunal is satisfied that the delegate’s consideration of the relevant legislation, policy and circumstances and the resulting decisions was appropriate and sound (Exhibit A6/4-7, Exhibit A10/5-7). There is no evidence to suggest a change in the children’s circumstances, so it is reasonable to conclude that the applications by YVMH and SDVS stand or fall with Ms Akile’s application. The Tribunal concludes that the substantive applications of the children have limited prospects of success.
Having carefully considered the relevant material, the Tribunal finds that consideration of this factor weighs against granting an extension of time.
Alternative avenue of relief
The spirit of the Citizenship Act provides an enduring right for the Applicants to apply again for citizenship. Refusal of the applications for extensions of time provides the opportunity to better understand the requirement for the requested documentation and to obtain the appropriate documentation. The Tribunal draws no negative conclusions or inferences from Ms Akile’s challenging circumstances and the difficulties she may encounter in sourcing documentation.

The existence of the right to lodge a fresh application for citizenship weighs against granting an extension of time.
Prejudice
In relation to the consideration of prejudice, the Respondent accepts that there is no significant prejudice to the Respondent, but cites Hunter Valley Developments at 348-349 in noting that the mere absence of prejudice is not enough to justify the grant of an extension of time (Exhibit R1, para 22).
However, the Respondent submits that there is prejudice in the very broad sense by reason of the delay (Exhibit R1, para 23) and prejudice to the Tribunal in the following sense:
There is also prejudice to the Tribunal’s ability to carry out its statutory task of reviewing applications in an efficient and economical manner. The Tribunal will be aware of the lengthy delays in bringing identity matters to hearing whilst applicants gather additional evidence which may lead to further delays if those documents require verification. The respondent submits that the preferable course,
given the applicant’s enduring right to apply again, would be for the applicant to gather further information and apply again (Exhibit R1, para 25).
The Tribunal agrees with the Respondent’s submission regarding prejudice to the Tribunal. Further, there is nothing before the Tribunal to dissuade it from the view that it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process, and that the public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.
The broad consideration of this factor of prejudice weighs against granting an extension of time.
CONCLUSION
The Tribunal has carefully considered and weighed the relevant factors of length of delay, explanation for the delay and awareness of appeal rights, the prospects of success of the substantive applications, and alternative avenue of relief and prejudice, none of which weigh in favour of granting an extension of time.
The Tribunal finds that in all the circumstances, the justice of this case does not support the Tribunal exercising its discretion to grant the requested extensions of time for making applications for review.
DECISION
It follows from the above reasons that the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the Applicants’ applications for extensions of time to lodge an application for review of the decisions to refuse the Applicants’ citizenship by conferral.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner,
AM LVO (Retd), Member

...........................[sgd].............................................
Associate
Dated: 18 November 2020

Date of hearing: 29 October 2020

Applicant: In person

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: The Australian Government Solicitor

Date of hearing:	29 October 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor