Athukorala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 4372
•11 November 2022
Athukorala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4372 (11 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6576
Re:Kariyawasam Don Amandha Athukorala
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:11 November 2022
Date of written reasons: 16 December 2022
Place:Sydney
For the reasons given orally at the conclusion of the interlocutory hearing in this matter, the application for an extension of time is refused.
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Chris Puplick AM, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application for an extension of time – refusal of citizenship by conferral – no cogent reasons for delay – no merits or reasonable prospects of success – applicant subject to community corrections order – statutory prohibition against granting citizenship applies – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) s 24
Cases
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Dolan and Comcare [1993] 29 ALD 887
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Pohahau v Minister for Home Affairs [2019] FCA 1243
Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SPWX v Secretary, Department of Social Services [2020] AATA 3883
Zizza v Federal Commissioner of Taxation [1999] 55 ALD 451
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 November 2022
On 3 November 2020 the Minister for Immigration, Citizenship, and Multicultural Affairs made a decision to refuse to approve Ms Kariyawasam Don Amandha Athukorala’s (the Applicant) application for citizenship.
The Applicant’s application was made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). Paragraph 24(6)(a) of that Act provides that the Minister must not approve a citizenship application at a time:
when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person.
At the time of the decision the Applicant was scheduled to appear in court on 18 December 2020 in relation to charges involving common assault (domestic violence). There was therefore a statutory prohibition on the Minister approving the application at the time.
Where a decision has been made and a person seeks to have that decision reviewed in this Tribunal, they are required to lodge such an application within 28 days of the notification of that decision (Administrative Appeals Tribunal Act 1975 (Cth) s 29(2)).
That time period expired on 1 December 2020. However, the Applicant did not lodge her application for review of the decision until 15 August 2022, more than 620 days late. In that application the Applicant answered, “Not at this time” to the question on the application form “Do you wish to apply for an extension of time?” Again, on the same form the Applicant gave as her reason for seeking a review:
“I have done, cleared, court decisions. I am not fake, NIL person. I am in innocent party [as written].”
However, there is a subsequent undated application for an extension of time lodged over the signature of the Applicant. The reasons stated for seeking such an EOT are somewhat confused but, to the extent they can be understood, the Applicant seeks a review as they wish to obtain dual citizenship of both Australia and Sri Lanka; to “clarify my identity” given some confusion in names of birth certificates, to enrol in some higher education courses and because of certain financial constraints arising from personal arrangements in Sri Lanka.
The EOT application was heard initially by the Tribunal on 6 October 2022 when the Presiding Member adjourned the proceedings to obtain details of the outcome of the court proceedings referred to. The matter was then reheard by this Tribunal on 11 November 2022 and was conducted by telephone with the assistance, as required of a Sri Lankan interpreter.
The Tribunal was informed that on 26 May 2022 the Applicant had been convicted in the Waverly Local Court of the offence of Common Assault (DV-2) and placed on a community corrections order for 18 months concluding on 25 November 2023.
This leads to further consideration of paragraph 24(6)(g) of the Act which provides that the Minister must not approve of a person becoming a citizen:
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i) a court does not impose a sentence of imprisonment on the person; and
(ii) the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security;
Clearly this prohibition applies to the Applicant as she is subject to possible action being taken against her should she breach any of the conditions of the community corrections order prior to its expiry in November next year.
Extension of time principles
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[1] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[1] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [2] should be taken as the guide by this Tribunal in determining EOT matters.
[2] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
However, there are other principles which the Tribunal bears in mind in these considerations. They include:
·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[3]
·“[i]f 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”;[4] and
·considerations of “the availability of alternative avenues of relief should the original EOT not be granted”.[5]
[3] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 at 465.
[4] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[5] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether an extension of time may be granted, although the Full Federal Court in Singh made it clear that “the length of delay is a relevant factor”.[6]
[6] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.[7]
[7] Secretary, Department of Family and Community Services v Roberts (2003) 73 ALD 412 at [16]. Also, Dolan and Comcare (1993) 29 ALD 887 at 888.
In Roberts with just one day delay the extension of time was refused whereas in Berkelaar, where the time delay was five years, an extension of time was granted.[8] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sough to be considered in a review are also of importance.”[9]
[8] Berkelaar and Comcare [1997] AATA 12015.
[9] SPWX v Secretary, Department of Social Services [2020] AATA 3883 at [49].
Reasons and Merit
In effect, the two most critical elements for the Tribunal to consider in an EOT application are usually whether a reasonable explanation exists for the delay, (although “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given”)[10] and whether the application has a reasonable expectation of being successful if proceeding to a full merits-based review.
[10] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
The question of how to adjudge the latter point was set out by Wigney J in the following terms:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[11]
[11] Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]. Citations omitted.
Although the Respondent has advanced the argument that the Respondent would be prejudiced by the Tribunal granting an extension of time, the Tribunal does not accept that point is made out.
The only issues here are:
(a)was there a good reason for the application being late; and
(b)if it were allowed to proceed would it have reasonable prospects of success.
If not, it would be an impermissible waste of everyone’s time and resources to allow it to remain on foot.
The Tribunal does not accept that the Applicant has given any substantial reason as to why the application was lodged some 620 days late. While she may have found her financial difficulties impacted her they were not of such a nature as to preclude her from submitting an application and no other substantive reason has been advanced for the delay.
Furthermore, fatally for this application, were it to go forward to a merits hearing it would be bound to fail for the reasons given above. Namely, that there is a statutory prohibition on the Applicant being granted citizenship while she remains under the conditions of a community corrections order.
No other matters need to be considered. The Tribunal notes the existence of an alternate remedy, namely lodgement of a new citizenship application after 23 November 2023.
DECISION
The application for an extension of time is refused.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 16 December 2022
Date(s) of hearing: 11 November 2022 Applicant: In person Solicitors for the Respondent: Ms C Campbell, HWL Ebsworth Lawyers
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