Chen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 483
•11 March 2021
Chen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 483 (11 March 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0364
Re:Xinyin CHEN
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:11 March 2021
Place:Sydney
The application for an extension of time is refused.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – extension of time application – reasons for delay – reasonable prospects of success – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) s 21(2)
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
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 244
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Jamal v Secretary, Department of Social Services [2018] FCA 513
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
Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412
REASONS FOR DECISION
Chris Puplick AM, Senior Member
11 March 2021
BACKGROUND
On 2 May 2019, Mrs Xinyin Chen (the Applicant) lodged an application for citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (‘the Act’). On 10 November 2020, a delegate of the Minister (the Respondent) refused that application (the original decision).
The basis for that decision was that the Delegate was not satisfied that the Applicant met the requirement established under section 21(2)(g) of the Act. All of the requirements set out under s 21(2) of the Act must be met before an application for citizenship by conferral can be approved.
The Applicant was notified of the Respondent’s decision on 10 November 2020, at which time she was advised that she had the right to request that this decision be reviewed by this Tribunal. She was also advised that such a request for review needed to be submitted within 28 days of the notification of the original decision.[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) s. 29(2).
That 28-day period expired on 8 December 2020.
The Applicant lodged her request for a review of the original decision on 22 January 2021, together with a request under the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) for an extension of time in which to submit her application.[2] That was 45 days outside the prescribed time limit imposed by the AAT Act.
[2] Ibid s. 29(7).
The Applicant’s matter was heard by the Tribunal on 2 March 2021 with the Applicant appearing by telephone from China with the assistance (in Australia) of a Mandarin-speaking interpreter.
The reasons given by the Applicant for the lateness of her application were stated to be:
“I was initially slow to understand the details of the decision. Then I was unable to research my option and download the AAT form due to internet restrictions in China on “gov.au” websites. It took a friend with access to a VPN[3] to help with this. This extension is to enable processing of the Applications for review.”[4]
[3] VPN = Virtual Private Network.
[4] Applicant’s submission for extension of time dated 22 January 2021.
PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them to be granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[5] 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.
[5] (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[6] should be taken as the guide by this Tribunal in determining EOT matters.
[6] (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[7];
·“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”[8]; and
·considerations of “any alternative avenues of relief should the original EOT not be granted”.[9]
[7] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].
[8] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[9] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
It is the strength and circumstances of the application which will determine whether or not an application for an extension of time is granted.
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.”[10]
[10] 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 one day delay the extension of time was refused, whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[11]
[11] Berkelaar and Comcare [1997] AATA 12015.
Hunter Valley principles considered
The Tribunal does not believe that there would be any significant prejudice to the Respondent were an EOT to be granted, nor that other members of the public would suffer prejudice or be seen to be treated less fairly than the Applicant who has not rested upon her rights, albeit being later with her application.
However, it has been accepted that the “mere absence of prejudice” does not, in itself, warrant the granting of an extension of time.[12] The Tribunal must have a wider consideration of the range and scope of the principles asserted in Hunter Valley.
[12] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
The Respondent urges the proposition that the granting of an extension would frustrate the Tribunal’s legislative objective of providing a system of review which is “fair, just, economical, informal and quick”.[13] The Tribunal is not persuaded on that point - indeed, to accept it would mean logically that no extension of time would ever be granted and the provisions for granting them in the remainder of the AAT Act would be rendered otiose.
[13] AAT Act s 2A(b).
The Applicant’s case turns on the twin questions of whether the proffered reason for the delay was reasonable, and whether the Applicant’s case has sufficient merit to allow it to go forward for a substantive hearing.
The reason for considering the merits is encapsulated in the statement of Bromwich J in Jamal:
The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.[14]
[14] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].
The reasons for delay
The Applicant has advanced two reasons for the delay – her lack of comprehension and understanding of the original decision, given that her understanding of the English language is limited, and the difficulty of accessing relevant Australian government websites in the People’s Republic of China.
Lack of comprehension
(a)The Tribunal does not find the initial reason persuasive. The Applicant is married to an Australian citizen who is currently engaged in business activities in China. There is no reason to believe that he could not have been of assistance to his wife in this matter. There are emails, dated in September 2020[15] (i.e. before the November 2020 decision) from the Applicant submitted to the Department in relation to her travel plans which are clear and coherent in their presentation and expression.
[15] Respondent’s Tender Bundle – Annexure B at [24-27].
The Tribunal is more sympathetic to the argument that, in the current political circumstances in the Australia-China relationship, accessing official Australian government websites may be problematic. Even that, however, must be called into question, on the basis of the Applicant’s September 2020 correspondence with the Department and the fact that the Applicant had correspondence from this Tribunal to which she could have responded directly.
The considerations in this matter are quite finely balanced and the Tribunal accepts that the Hunter Valley principles are not to be applied “mechanically” and that “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.”[16]
[16] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
Nevertheless, the Tribunal is prepared to give the Applicant the benefit of the doubt about her ability to communicate with the Tribunal within the necessary time limits and does not find that the stated reasons for the delay are unacceptable.
Merits of the application
In assessing an application for citizenship by conferral, the Minister (or his delegate) is required to assess the requirements which are set out in section 21(2) of the Act. One of those is s 21(2)(g) which requires that an applicant demonstrate that they are
(g) … likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved;
When the Tribunal is considering an extension of time application it is not appropriate to conduct some sort of “mini hearing” of the details of the application which would otherwise be rehearsed in a full merits-based hearing of the substantive issues in question. The High Court outlined the approach to be taken when it stated:
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time." [17]
[17] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Per Brennan CJ and McHugh J at [3], [also Kirby J at 66]. Footnotes and citations omitted.
The Respondent has made the point that the Applicant departed from Australia to reside in China where her husband works currently on 26 February 2020,and she has not returned to Australia since that date. Since 2 May 2019 when she lodged her citizenship application, she had only been in Australia for a period of 90 days prior to the original decision being made.[18]
[18] Respondent’s Outline of Submission on the Application for an Extension of Time at [2.1]
The Respondent further notes, based on submissions by the Applicant to the Department, that:
(i) she does not wish to return 'NOW' to Australia due to disruption it would cause to her daughter's schooling and the inconvenience it would cause 'in the current climate';
(ii) it is difficult to make more immediate plans than short-medium term plans 'until it can be confirmed that there is a successful vaccination program implemented in Australia with no risk to [her] daughter’s immediate admission to a new school';
(iii) the Applicant believes if she were to return to Australia 'TODAY there would be yet another significant gap in [her] daughter’s education (potentially many months) while we go through the school application process';
(iv) the Applicant will return to Australia once 'things settle down and a solid plan can be made' (or possibly before if the Applicant and her spouse can 'work out a plan that does not further disrupt [their] daughter's education….[which cannot be made] at present [because] there is too much uncertainty to make this plan and therefore the only thing [the Applicant and her spouse] know for 'certain' is that in 2025' their daughter has a place in an Australian (Sydney) school';
(v) her spouse's (who is an Australian citizen) work commitments are abroad.[19]
[19] Respondent’s Outline of Submission on the Application for an Extension of Time at [4.13(d)].
The Tribunal was told by the Applicant that she had tried to return to Australia in pursuit of her citizenship application but that the restrictions on international air travel (and the associated inflated costs) had made this impractical. The Tribunal accepts those submissions.
The Tribunal also accepts that the Applicant has an Australian citizen husband and a daughter who is an Australian citizen for whom schooling arrangements have been made commencing in 2025. The Applicant and her husband own property in Sydney.
On the balance however, the Tribunal cannot find that the Applicant, at this time, satisfies the requirements of section 21(2)(g) of the Act. The evidence supplied by the Applicant of her future intentions to reside in Australia (some time before 2025) is not so substantive as to outweigh the facts presented by the Respondent of her recent continued absence from Australia. The Respondent put to the Applicant some direct questions about her specific plans to set a return date and she was, perhaps understandably, unable to give any specific response or definitive answer.
Hence, the Tribunal cannot find that the Applicant, at this time, satisfies the requirements of section 21(2)(g) of the Act, and that the Minister’s delegate was correct in so finding.[20]
[20] Respondent’s Tender Bundle – Annexure B at [34-39].
Additional issues for consideration
Section 24(5) of the Act provides
Person not present in Australia
(5) If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa)the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
Without going into all of the details of this section, it is suffice to say that it applies to the Applicant, and it prohibits the Minister from granting an application for citizenship to the Applicant because she is not “present in Australia” at the time of the relevant decision being made – in this case the time of the Tribunal’s decision on review of the original decision.
The Tribunal has already noted the evidence of the Applicant about her inability to return to Australia in the current pandemic circumstances and is, to that extent, sympathetic to her position. Nevertheless, the prohibitions of this section of the Act remain in force.
Considerations
The Tribunal has no doubt about the sincerity of this application nor of the genuine desire of the Applicant to join her husband and daughter in the comity of Australian citizenship.
The defects which were identified in her citizenship application are capable of remedy. The Applicant can return to Australia at any time (the Tribunal understands that she holds a Return Resident Visa) and can, at any time, submit another application for citizenship.[21] She can make arrangements to be present in Australia at the time of the decision being made on her application and indeed, it appears that there are plans for her (and the family) to return to Australia by 2025 when her daughter commences her school education.
[21] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
However, in relation to her present application, the Tribunal cannot find that, although the reasons for her delay in submitting her application may be acceptable, there is any reasonable prospect of her being successful in any forthcoming merits-based hearing of the application itself.
For the reasons given above, it would not be in the interests of justice for the extension of time to be granted.
DECISION
The application for an extension of time is refused.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 11 March 2021
Date(s) of hearing: 2 March 2021 Solicitors for the Respondent: Hannah Anderson, Minter Ellison
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