Chung Son and Department of Immigration and Citizenship

[2009] AATA 715

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2660

GENERAL ADMINISTRATIVE DIVISION		)
Re		Chung Son

Applicant

And Department of Immigration and Citizenship

Respondent

DECISION

Tribunal Mr D M Connolly, AM, Member

Date21 September 2009

PlaceSydney

Decision The extension of time application is refused by the Tribunal  

....................[sgd].....................

Mr D M Connolly, AM
  Member

CATCHWORDS

EXTENSION OF TIME – whether Tribunal should extend period of time to make application – two year delay – citizenship application rejected – permanent residency – 2 years in 5 rule – 1 year in 2 rule – discretion to count permanent residence towards citizenship eligibility – low prospects of success of substantive application – extension of time refused

Relevant Acts

Australian Citizenship Act 1948 - paragraphs 13(1)(d) and (e); subparagraph 13(4)(b)(ii); subparagraph 13(4)(b)(i), (iv) and (v); sub-subparagraph 13(4)(b)(i)(C)

Administrative Appeals Tribunal Act - subsections 29(7) to (11)

Australian Citizenship Act 2007

Citations

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Other relevant materials

Australian Citizenship Instructions as at 1 July 2005

Five Year Resident Return Visa (Subclass 155) Criteria

REASONS FOR DECISION

21 September 2009 Mr D M Connolly, AM, Member    

1.      On 9 July and 24 August 2009, the Tribunal held an interlocutory hearing to determine an extension of time application made by the Applicant, Ms Son.

Issues

2. Ms Son obtained permanent residency with her family on 17 July 1991. She applied for the grant of Australian citizenship on 27 February 2007, which was rejected by the delegate on 27 July 2007 on the grounds that she had failed to meet the requirements of paragraphs 13(1)(d) and (e) of the Australian Citizenship Act 1948 (“the Act”), which relevantly provide:

13  Grant of Australian citizenship

(1)  Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(d)  the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)  the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application …

3. At the time of application, Ms Son had spent only 88 days in Australia in the two years prior to her application for Australian citizenship and did not meet the requirement under parapgrah 13(1)(d) of the Act, nor had she spent 678 days in Australia in the five years prior to application as per the requirement contained in paragraph 13(1)(e).

4. Ms Son sought the exercise of the discretionary powers outlined in paragraph 13(4)(b)(ii) of the Act and the relevant policy set out in the Australian Citizenship Instructions (ACI) so that the applicant could apply for an extension of time until 11 June 2009 to file an application for review of the decision dated 27 July 2007.

Legal Framework

Administrative Appeals Tribunal Act 1975

5.      Subsections 29(7) and (8) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) relevantly set out the circumstances in which the Tribunal may grant an extension of time to a party to make an application for review as follows:

(7)        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. 

(8)         The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired..

Subsections 29(9) to (11) contain additional requirements under the Act:

(9)  Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.

(10)  If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

Decision‑maker to be notified of application for review

(11)  The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be given to the person who made the decision.

The general principles to be considered when considering an application for an extension of time

6.        The principles to be considered when considering an application by a party for an extension of time have been set out in numerous decisions by this Tribunal and judgments of the courts, including Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J held at 348-9 that the following principles guide the exercise of the Tribunal’s discretion to extend the time for applying for review:

1.          Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time …

2. Action taken by the applicant, other than by making an application for review under the Act, 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. (Citations omitted)

Australian Citizenship Act 1948

7.Subsection 13(4) of the Act sets out the criteria to be satisfied for a grant of Australian citizenship:

Grant of Australian Citizenship

“(4)  For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:…

(b) subject to paragraph (a), the Minister may, in the Minister’s discretion:

(i) treat a period during which the applicant:

(A) was a permanent resident;

(B) was not present in Australia; and

(C) was engaged in activities that the Minister considers beneficial to the interests of Australia; as a period during which the applicant was present in Australia as a permanent resident;

(ii) treat a period ending before the period of 5 years referred to in paragraph (1) (e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;

(iv) if the Minister considers that the Minister would suffer signifiicant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant – treat a period during which the applicant was in Australia other than as a prohibited immigrant … as a period during which the applicant was present in Australia as a permanent resident; or

(v) if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the  person was resident in Australia – treat the period as a period during which the applicant was present in Australia as a permanent resident.

8.        Additionally, the Australian Citizenship Instructions (ACI) as at 1 July 2005 relevantly provide the following discretion:

4.3.32    There is a discretion to count permanent residence earlier than 5 years before application towards the “2 years in 5” residence requirement. This discretion does not apply to the “1 year in 2” residency requirement.

4.3.33       As a matter of policy, this discretion would usually be exercised only in one of the  following situations of  hardship or disadvantage:

·      The applicant can demonstrate that he/she have been refused employment solely on the grounds that the employment is  restricted to Australian citizens and that alternative sources of employment are not reasonably available to him/her;

·      The applicant would be excluded from travelling internationally because he/she cannot obtain  a passport, or because he/she is excluded from travelling with immediate family; or

·      The applicant would not otherwise be eligible to represent Australia in an international forum or be selected to represent Australia in a national representative team/group …”

The Applicant’s Case

9.        Ms Son provided a written statement dated 6 June 2009 and provided evidence at the interlocutory hearing on 9 July 2009. Ms Son stated that she migrated to Australia with her family from Korea in 1983 when she was 10 years of age. She received her education from fourth grade to university in Australia and later worked for the Commonwealth Bank and Ansett Australia. Her child and immediate family and siblings are Australian citizens.

10.      In December 2003, she visited Korea and while working there met and married her husband, a Korean citizen, in May 2006, and has been domiciled there ever since.

11.      Following their marriage, Ms Son claimed that she commenced the process of applying for Australian citizenship and for a spouse visa for her husband through a migration agent. In December 2006, Ms Son visited Australia prior to the birth of her son in March 2007. The child was born with an irreversible condition, achondroplasia (dwarfism). After the birth, Ms Son was unwell, in a state of shock and suffering from depression. A few months later the family returned to Korea.

12.      In her written statement, Ms Son stated that in July 2007 she was informed by the Department that her citizenship application had been rejected. This was a great shock as the family had decided to move to Australia after the birth of their son. His medical condition made that more urgent as Ms Son realised that Korean society discriminated against people with disabilities and that there was a lack of consideration and public facilities for them. Ms Son and her husband had no doubt that their son should grow up in Australia where he would have a more welcoming environment. Ms Son’s husband continued with his spouse visa application, which was granted in 2009.

13.      Ms Son, in her verbal evidence, said that the family remained in Korea because of her spouse’s employment and as their son was receiving regular medical treatment at the Seoul National University Hospital, which she wanted to see completed before coming to Australia. Ms Son confirmed to the Tribunal that that process could take at least five years as her son was 27 months old and the Korean doctors would not consider the lengthening operation before he was at least 7 years of age. Ms Son said that she would like her son to be old enough to make the final decision for himself.

14.  Ms Son made a contradictory claim in her initial written submission that she hoped her son could receive specialist treatment, as was previously the case, at the Westmead Children’s hospital, and that she expected strong support from her family in bringing up her child.  

15.   Ms Son told the Tribunal that when she decided to apply to this Tribunal for a review of her failed citizenship application, the migration agent had told her that with her time in Australia she would have a strong case. Despite this, she knew that she should have applied for citizenship along with her parents and siblings years earlier.

16.  The applicant claimed that by mid-2008 she and her spouse had begun to recover from the trauma of their son’s problems and realised that they had to “move on” and make plans for the future. Ms Son said that she was aware of her citizenship problem, and if she had returned to Australia well before the child’s birth, she could have fulfilled the time requirements. Later, after the birth, she returned to Korea because her spouse was working there and they felt it would be best to stay together and come to Australia when the family was ready.

17.   The applicant returned to Sydney in June 2009 and submitted a review application to this Tribunal. She was told about the 28 day time limit for applications and that she was two years over that limit. She accepted that she may have been careless for failing to note the 28 day provision on the application form, but in 2007 when the medical results first emerged about their son’s condition, she could not think of anything and was in a deep depression.

The Respondent’s Case

18.      The Department has sympathy for Ms Son’s position, but the two year lapse on Ms Son’s part is significant and a good reason for an objection by the Department. Furthermore, the prospect of her being successful in a substantive application was extremely low. There was no point in the Tribunal extending the application period.

19.      The Delegate’s decision was made on 29 June 2007 and sent to Ms Son in July 2007. This was important because on 1 July 2007, the citizenship legislation was changed with the enactment of the Australian Citizenship Act 2007. Before that date, the previous 1948 Act applied. An extension of time would have to be under the 1948 Act, which was slightly advantageous in respect to the residency requirements. Section 13 of the 1948 Act required the applicant to have at least spent one year in Australia over the past two years. However, Ms Son had failed to meet that requirement.

20.      Ms Son had made claims under section 13 of the 1948 Act and, in particular, under subparagraph 13(4)(b)(ii). This provision gives the Tribunal discretion to count the permanent residence status of an applicant that was earlier than five years before application towards the “2 years in 5” residence requirement. However, this discretion does not apply to the “1 year in 2” residence requirement. Although Ms Son had previously lived in Australia for 20 years and her son is an Australian citizen by birth, the discretion in subparagraph 13(4)(b)(i) cannot be applied to Ms Son because she spent only 88 days in Australia over the past two years.

21. Ms Son’s claims to hardship or disadvantage were not accepted by the delegate because she was still a permanent resident of Australia (until January 2010), had continued to travel on her Korean passport without difficulty, owned property in Australia, and had worked in Australia. Consequently, Ms Son would not qualify under the significant disadvantage or hardship clause contained in subparagraph 13(4)(b)(iv), or due to administrative error pursuant to subparagraph 13(4)(b)(v) of the Act, as noted in the ACI.

22. Ms Son also failed to meet the requirements in sub-subparagraph 13(4)(b)(i)(C) of the Act, which covered periods during which the applicant was a permanent resident outside Australia engaged in activities beneficial to the interests of Australia which may count towards the residence requirements. As Ms Son had stated that she was initially an English teacher and after her marriage engaged in home duties, she would not qualify under the relevant provisions.

23. Ms Quinn stated that there was no discretion available which could be used to give Ms Son relief because she did not meet the resident requirements under the Act. Consequently, she could not succeed at a substantive hearing even if an extension were granted.

24.      Ms Quinn stated that as Ms Son had lived in Australia for 20 years and was a permanent resident, there was no reason why she couldn’t return now and live here with her son and husband. There was no medical evidence before the Tribunal to indicate that Korea’s medical standards are higher than those of Australia for the treatment of her son’s condition.

25.      Ms Son responded that her family could return to Australia now, and there would probably be no problem. She could then fulfill the time requirements for applying for citizenship, but her current visa expires at the end of December 2009. If she fails to return before then, she will put at risk her permanent residency status. The respondent replied that as Mr Son now has a spouse residency visa, he will be able to work in Australia and have his family with him.

26.      The Tribunal inquired of Ms Son why medical treatment in Korea was so important. She replied that there were good spine doctors in Korea and maybe within a period of six months to a year her son could return to resume medical treatment in Australia. During the pre and post natal stages in Australia, she had difficulty with doctors understanding her son’s condition. She stated that she would prefer a Korean doctor. 

27.     The Tribunal adjourned the hearing so that Ms Son could have time to provide medical evidence on her child’s health and her current visa status. She was advised to contact the Australian Embassy in Korea and seek advice on obtaining an extension to her residency visa. The Tribunal asked the Respondent for more information on which visa options were available to Ms Son if she required an extension to her visa.  

28.      The hearing was adjourned to 7 August 2009 and later to 24 August at the request of the Applicant.

Resumed Hearing on 24 August 2009

29.      Ms Son submitted two medical certificates. The first of these certificates, dated 20 July 2009, from the Seoul National University Hospital stated that her son, Mr Jayden Hyunjun Lee,  nationality Australian:

“was first seen on 13 August 2007 and diagnosed of achondroplasia. At that time he had thoracolumbar kyphosis which needs continued physiotherapy and regular check-up. He still has thoracolumbar kyphosis and now use of a brace is considered.

The parents are considering to let him have limb lengthening operation for height, which may be indicated after age 7 years. Preoperative check-up has been done and will be done (sic) until that time.” 

30.      The second medical certificate submitted by Ms Son was from Northern Sydney Central Coast NSW Health, dated 12 April 2007 and signed by Dr Michael Field, a clinical geneticist, stated that Jayden Lee Son was being managed (at that time) by Dr John Sinn, a Paediatrician at Royal North Shore Hospital, and also by the Rehabilitation Team at the Children’s Hospital at Westmead. He noted that:

“Individuals with achondroplasia will also need extra medical support and visits to doctors and allied health professionals to ensure optimal management of this condition.”

31.      No Australian medical evidence was submitted in regard to the bone lengthening operation. Ms Son claims that such a medical procedure cannot be provided in Australia.  

32.Ms Son confirmed to the Tribunal that her spouse had been issued with a permanent resident visa since the last hearing.  She had made enquiries of the Australian Embassy in Korea about an extension to her resident visa and was told that it would be difficult to obtain a five year extension although she could apply on the grounds of “special circumstances” which would be considered.

33.      Ms Son told the Tribunal that her main priority was to complete her son’s initial stage of treatment which could take a further four to five years before he was old enough to consider whether to have the major operation to extend his bones. Ms Son claimed that this operation was available in Korea and Russia but not in Australia. She referred to a conversation in 2007 and 2008 when she visited Dr Jenny Ault at Westmead and was told that there was no special operation available in Australia for her son’s condition. If her son was to have this operation and the family was to remain in Korea, she would require at least a four to five year extension to her permanent resident visa.

34.      The Respondent told the Tribunal that Ms Son’s current resident return visa would be invalid after 6 January 2010. If she and her family were unable to return to Australia by that date, Ms Son would need to extend her residency visa or apply for a Five Year Resident Return (subclass 155) visa. While Ms Quinn could not speculate on the outcome, as relevant residency criteria in 155.212 must be satisfied at the time of application, subclause (1) must satisfy sub clause (2), (3), (3A) or (4). Subclause (2) requires two in five years residency in Australia, which the applicant could not meet. However, she may meet subclause (3) which states:

“… if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia …”

35.      Ms Quinn said that Ms Son’s substantial previous residency prior to 1996, her son’s citizenship by birth, and her siblings’ citizenship should be of assistance. Subclause (3) was a very flexible requirement, and while there was no guarantee of success, Ms Son’s situation was not “hopeless.” When the Tribunal asked the Respondent if Ms Son could apply for an extension to her existing visa on the grounds of “special circumstances”, Ms Quinn replied that she would probably have a “good chance.”

36. The Respondent stated, and the Tribunal concurs, that Ms Son’s citizenship application was not affected by the above. Regardless as to whether Ms Son had given a sufficient explanation for her delay, as she can’t satisfy the citizenship requirements and is not eligible for citizenship due to failing to meet the requirements of paragraphs 13(1)(d) and (e) of the Australian Citizenship Act 1948, granting an extension of time for her to apply for a review of the original decision would be futile. In the interests of justice, the application should be refused.

37.      The Tribunal has taken into account the general principles to be considered when determining claims for an extension of time, namely the observations of Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 as outlined above at clause 6 of these reasons.

Proceedings outside the prescribed period should not be entertained although an extension of time may be granted if it is considered proper to do so

38.      The Tribunal is satisfied that on the merits of the case, granting an extension of time would be fruitless. It is satisfied that Ms Son would not qualify for citizenship under the provisions in the Australian Citizenship Act 1948, being the applicable legislation in her situation, even if an extension of time were granted.  

Whether there is an acceptable explanation for the delay

39.      While the Tribunal is sympathetic that Ms Son and her spouse have faced great difficulties in regard to their son’s health, the two year delay in seeking a review of the delegate’s decision on the basis of her claims was not convincing. Ms Son initially claimed that she wanted her son to be treated in Australia. Before the Tribunal she claimed that he would require a further four to five years treatment in Korea because a bone extension operation was not available in Australia, and she would require a further extension to her residence visa to cover this period. These confused claims and the lack of medical evidence raised doubts in the Tribunal’s mind that Ms Son really wants to return to Australia in the forseeable future.

Whether the material before the tribunal justifies the exercise of the discretion

40. The Tribunal finds that the material before it does not justify the exercise of the discretion outlined in subsection 13(4) of the Act.

Whether the applicant took action to make the decision maker aware that the decision would be contested

41.      The Applicant was advised by the Department in August 2007 that her citizenship application had been unsuccessful. There is no evidence before the Tribunal that Ms Son made any attempt to advise the Department in advance of her intention to contest the decision before this Tribunal.

Whether there would be prejudice to the Respondent if an extension of time were granted

42.      Although the respondent has not claimed prejudice, the Tribunal is conscious that there would be considerable additional costs incurred which would be hard to justify.

Whether there would be fairness in granting an extension of time as between the applicant and other persons in a like position

43. If an extension of time was granted to the applicant, other applicants may be emboldened to delay submitting applications for decisions to be reviewed by the Tribunal in the expectation of gaining some advantage. This would be unfair to applicants who have met the 28 day rule under the Act.

Decision

44.      The Tribunal is satisfied that no good purpose will be served in granting an extension of time to allow Ms Son to lodge her application with the Tribunal and to then have it subsequently review the decision of the delegate to reject her application for Australian citizenship.

45.      The extension of time application is refused by the Tribunal.

I certify that the forty-five (45) preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly, AM, Member

Signed: ......................................[sgd]...................................................
  Associate

Date of Hearing  9 July and 24 August 2009
Date of Decision  21 September 2009 
Appearance for the Applicant        Self-represented        
Solicitor for the Respondent          Ms T Quinn, DLA Phillips Fox