Dawori and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 3436

Dawori and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3436 (25 October 2023)

Division:GENERAL DIVISION

File Number:          2023/6930

Re:Pervaiz Dawori

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:25 October 2023

Place:Melbourne

Not being satisfied that it is reasonable in all the circumstances to extend time, the Tribunal refuses to extend time under s 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant to lodge an application for review of the decision to refuse Australian citizenship by conferral dated 30 May 2022.

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Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – request for extension of time – applicant refused citizenship by conferral – applicant lodged application for review by Tribunal – application lodged significantly late – technically defective decision – question about whether applicant notified of right of review – Tribunal now satisfied applicant notified – consideration of factors relating to extending time – applicant found to have rested on his rights – time not extended

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

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

REASONS FOR DECISION

Senior Member D. J. Morris

25 October 2023

1. The Applicant, Mr Pervaiz Dawori, lodged an application for Australian citizenship by conferral on 5 October 2020.

2. On 30 May 2022, an officer of the Department of Home Affairs (‘the Department’) sent Mr Dawori an email advising him that a decision had been made on his application by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’), and attaching a Decision Record and a letter setting out his right of review by this Tribunal.

3. On 20 September 2023, Mr Dawori lodged an application for review. In that application he said that he wishes to apply for an extension of time. The application form has space for an applicant to outline reasons for applying for an extension of time, including why the person did not apply within the time limit. Mr Dawori stated (as rendered):

   I had to go to court to clear things up and put the fine, which took time and crossed the 30 days time frame. Also after court I wasn’t sure about how to appeal again until now.

4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the Tribunal may, on application in writing by a person, extend the time for that person to make an application for review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

5. Section 29(9) of the AAT Act makes provision for the Tribunal to notify any persons who may be affected by an application for an extension of time. Section 29(10) of the AAT Act provides that if a person is given notice under s 29(9), and gives the Tribunal a notice opposing the application, the Tribunal shall not determine the application except after a hearing at which the Applicant and the person who gave notice has a reasonable opportunity to present their respective cases.

6. In this matter, the Respondent lodged a notice opposing the extension of time and subsequently lodged written submissions dated 20 October 2023, which included some documents provided to the Department by the Applicant.

   HEARING

7. The Tribunal held an interlocutory hearing by telephone on 23 October 2023. The Applicant made submissions, as did Ms Georgia Wilson of Minter Ellison, representing the Respondent. By leave of the Tribunal not objected to by the Respondent, the Applicant’s wife, Ms Melo Shah, also made submissions.

8. Mr Dawori confirmed that he had received the Decision Record refusing his application for citizenship on 30 May 2022. The Tribunal inquired as to whether he also received a letter from the Department advising him of his entitlement to seek a review of the decision, because none was before the Tribunal. Mr Dawori did not think he received such a letter, but Ms Shah in her subsequent submissions said that he had, and that it advised he had 28 days in which to lodge an application for review. Ms Shah said that her husband’s English proficiency is limited as his native language is Pashtun. She said that he did not appreciate that he had a time period in which to lodge an application for review. She said that “sometime later” a friend told Mr Dawori he could seek a review by the Tribunal, which he subsequently did.

9. Ms Wilson said that the material before her indicated that a letter was sent to the Applicant in the same email as he was sent the Decision Record.

10. The Tribunal indicated that, if there was no such letter, it would be inclined to extend time on the basis of procedural fairness. The Tribunal asked that Mr Dawori forward a copy of the original email he was sent by the Department on 30 May 2022 and asked the Respondent to forward whatever proof was in Ms Wilson’s possession that the Applicant was properly notified of his review rights.

11. The Tribunal reserved its decision on whether to extend time, pending receipt of the information requested from the parties.

    CONSIDERATION

12. The Tribunal noted that the reason Mr Dawori’s application for citizenship was refused was apparently under s 24(6) of the Australian Citizenship Act 2007 (the Citizenship Act). Section 24(6) provides:

    The Minister must not approve the person becoming an Australian citizen at a time:

    (a) when proceedings for an offence against an Australian law (including proceedings by way of an appeal or review) are pending in relation to the person; or

    …

13. It is important to note that this is a prohibition on the Minister (or his delegate) approving citizenship – it is not a discretionary power.

14. It was not contested by the Applicant that on 27 April 2021 he had two pending charges which were awaiting hearing before a Court. The Decision Record noted that the pending charges could not be regarded as a finding of guilt.

15. The Respondent lodged information provided by the Applicant to the Department which included evidence that he attended a police station and made an undertaking of bail on 21 March 2022 on the condition that he appear before the Magistrates’ Court of Victoria at Dandenong on 9 August 2022. The Applicant also provided a receipt from the Court that he paid an amount of $100 on 9 August 2022. It is not clear what this payment was for; the Applicant said he paid a fine and that the matter has been “cleared up.”

16. In the event, the Tribunal is not considering the substantive issue of whether the prohibition in s 24(6) of the Citizenship Act no longer applies. It did apply at the time of the Decision Record.

17. The Tribunal noted during the hearing that the Decision Record is not signed by any person and there is no evidence that the officer of the Department who prepared it was a delegate appointed in writing under s 53 of the Citizenship Act. To that extent the Decision Record is defective. Where the Minister himself is not making a decision, the person affected is entitled to know that the person making it on the Minister’s behalf is duly authorised as a delegate to make it, as the Citizenship Act requires.

18. After the hearing, on 24 October 2023 the Respondent sent an email to the Tribunal from the officer of the Department who wrote the refusal letter to Mr Dawori in which she confirmed that, at the time of the decision, she was a delegate of the Minister appointed under s 53 of the Citizenship Act. That is reassuring to the Tribunal but does not remove the fact that the Decision Record was defective because it was unsigned. The Tribunal has noted this practice on several occasions when it has been considering citizenship decisions, and it would seem to be a simple matter to remedy.

19. In any case, I am satisfied that by operation of law, the prohibition on Mr Dawori being approved for the grant of citizenship by conferral stood, because of the pending charge.

20. Ms Shah made submissions that her husband is not proficient in English. I accept that, but I do note that it is recorded in the Decision Record that he successfully completed a citizenship test, which is sufficient evidence to satisfy the Minister under s 21(2) of the Citizenship Act that he possesses a basic knowledge of the English language. The onus is on an applicant, if they do not understand a communication from the Department, to inform themselves, and there are translation services available to assist people if the difficulty they have is with English comprehension.

21. After the hearing, in compliance with the Tribunal’s request, on 24 October 2023 the Respondent provided evidence from the Applicant that he had been sent both a letter advising him of the refusal of his citizenship application, signed by an officer of the Department, and a Decision Record. The letter was written on 30 May 2022 and Mr Dawori confirmed that he received it on that same date. I am satisfied that the letter included advice that the Applicant had 28 calendar days from the day after he has been deemed to have received the refusal letter to apply for review by the Tribunal. The Respondent also provided documents from its own record confirming which documents had been sent to the Applicant.

22. Therefore, on the material now before the Tribunal, I am satisfied that Mr Dawori was properly notified of his review rights, and that he rested on his rights – which means he did not take active steps to avail himself of those review rights before the Tribunal within the 28-day period advised to him. Nor did he advise the Respondent’s Department that he intended to seek review.

23. By itself, a person resting on his or her rights may not be a reason to refuse to extend time. The Tribunal is obliged to look at all the circumstances. Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 set out some of the factors that may be relevant in deciding whether or not to extend time, but His Honour stressed that these factors are not an exhaustive list.

24. The factors the learned Judge listed were:

    a)The extent of the delay;

    b)The explanation for the delay;

    c)Any prejudice to the Respondent or the general public arising from an extension of time;

    d)Whether the Applicant has rested on his or her review rights;

    e)The merits of the substantive application for review; and

    f)Any alternative avenues of relief for the Applicant should time not be extended.

25. Sometimes if the application is lodged one or two days after the 28- day period, the Tribunal may be inclined in all the circumstances to extend time, but in this case that 28-day period ended on 27 June 2022 and Mr Dawori did not lodge his application with the Tribunal until 20 September 2023. That is a period well over a year – of some 450 days. That is a lengthy delay.

26. In terms of the explanation for the delay, I accept Ms Shah’s evidence that it was partly fuelled by the Applicant’s lack of proficiency in English, but I also find that he did not do anything to get assistance from anyone in the 28-day period he had to lodge an application for review. It appears on the oral submissions to be owing to a chance conversation with a friend, sometime later, that he realised he could seek a review of the refusal decision.

27. I accept the Respondent’s submission that there is no prejudice to the Department, but I do think it is relevant the public at large would generally expect applicants to adhere to statutory time limits when they are properly advised of them.

28. In terms of the merits of the substantive application, it is not clear that the charges laid by the police have been, in Mr Dawori’s words, ‘cleared up.’ They may well have been, but there is insufficient evidence before the Tribunal to make a determination about that.

29. After careful consideration of all the evidence in this matter, I do not find it is reasonable in all the circumstances to extend time after such a long delay. The pivotal reason for this refusal is that the Applicant rested on his rights.

30. The good news for Mr Dawori is that, if the Court has indeed disposed of the matters which were pending, he is free to lodge a fresh application for Australian citizenship by conferral, as that prohibition will no longer apply. His status as the holder of a permanent visa to reside in Australia is unaffected by this decision.

    DECISION

31. Not being satisfied that it is reasonable in all the circumstances to extend time, the Tribunal refuses to extend time under s 29(7) of the AAT Act for the Applicant to lodge an application for review of the decision to refuse Australian citizenship by conferral dated 30 May 2022.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 25 October 2023

Date of interlocutory hearing:	23 October 2023
Applicant:	Mr Pervaiz Dawori (Self-represented)
Advocate for the Respondent:	Ms Georgia Wilson
Solicitors for the Respondent:	Minter Ellison