De Miranda Leite and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 482

De Miranda Leite and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 482 (11 March 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0056

Re:Magno De Miranda Leite

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.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – short delay – whether there is an acceptable explanation for delay – Applicant found to provide a reasonable explanation of delay – whether substantive application has merits – application for Australian citizenship by conferral – Applicant failed the citizenship test on multiple occasions – whether it is reasonable in all the circumstances to grant the extension – Application found to have little prospects of success – other options for applying for Australian citizenship open to the Applicant – extension of time application refused

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Dolan and Comcare [1993] AATA 445
Fenn and 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 344
Jackamarra (an Infant) v Krakouer 195 CLR 516
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kim and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
O’Gorman and Comcare (Compensation) [2017] AATA 2192
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Chris Puplick AM, Senior Member

BACKGROUND – TIMETABLE

1. On 14 August 2019 Magno De Miranda Leite (the Applicant) lodged an application for a grant of citizenship by conferral. That application was rejected by a delegate of the Minister (the Respondent) on 9 November 2020.

2. At the time of the rejection the Applicant was advised of his right to have that decision reviewed by this Tribunal and that, in seeking such a review, he had to make a relevant application within 28 days of the receipt of the notification, in other words by 7 December 2020. This is the statutory time limit imposed by section 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

3. The Applicant did not lodge an appeal in this Tribunal for a review of the Minister’s decision until 5 January 2021. In that respect the application for review was 29 days outside the statutory limit. That application included a further application for an extension of time (EOT) in which to lodge his appeal.

4. The matter now before the Tribunal is that application for an EOT.

5. The matter was heard by the Tribunal on 12 February 2021 with the Applicant assisted by a support person. The hearing was conducted by telephone in accordance with the Tribunal’s COVID-19 protocols.

   PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME

6. 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.

7. 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] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552-553 (footnotes and citations omitted).

8. 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.

   That list provides as follows:[3]

   ·an applicant must show an ‘acceptable explanation of the delay’ and that 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.

   [2] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.

   [3] Ibid at 348-349.

9. 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;[4]

   ·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;[5] and

   ·Considerations of the availability of ‘alternative avenues of relief’ should the original EOT not be granted.[6]

   [4] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].

   [5] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

   [6] Kim and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 155 at [20].

   DISCUSSION

10. The Tribunal accepts that in this instance the length of time by which this application is out of time is not significant – a matter of some 29 days.  Short delays are nevertheless delays within the meaning of the AAT Act, and the Tribunal has previously stated, ‘However, applicants should not assume the respondent will consent to short extensions of time. Nor that the Tribunal will grant them.’[7] 

    [7] Dolan and Comcare [1993] AATA 445 at [7].

11. This applies even if the delay is as limited as just one day:

    There was no dispute between the parties that the Secretary was only one day out of time in lodging his application. As Mr Underwood submitted, s. 29(7) of the AAT Act gives the Tribunal discretion to extend the time. In many cases an extension of one 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. As the authorities make clear, whether an extension will be granted is determined by balancing all relevant factors and not simply by one.[8]

    [8] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16].

12. In considering the Hunter Valley[9] principles, the Tribunal does not consider, contrary to the Respondent’s submissions,[10] that the Applicant has rested on his rights, that the prejudice to the Respondent or to other parties in allowing the extension would be of any significant consequence, or that it would be unfair to other parties in a similar position.

    [9] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.

    [10] Respondent’s Outline of Submissions (undated) at [4.9]-[4.12].

13. The matter thus resolves itself into consideration of two questions – whether the Applicant is able to show an acceptable explanation for the delay; and, if an EOT were granted, whether the application would have any chance of success at a full merits-based hearing.

    Reasons for the delay

14. The Applicant explains the delay as follows:

    Enduring mental incapacity and suffers from exertional tension headaches usually occurs when stressed, upset and under pressure . Financial stress due to insufficient work  because of the corona virus situation has let me down . I was not able to concentrate on my daily life . I have missed my email and found out at a latter day which always happens to me. Since i am unable to do all my paper work myself, i always seek assistance from my close friend to do my applications. Please grant me an extension of time.[11]

    [11] EOT Application (5 January 2021).

15. In support of this position the Applicant submitted a letter from Dr Adeniyi Borire (Consultant Neurologist, Liverpool Hospital) dated 18 June 2019 which attests to the Applicant’s history of intermittent global headaches and his negative reactions to stress.[12] In that letter Dr Borire also stated: ‘I agree that Magno may not be able to sit for his citizenship examination due to his exertional headache.’

    [12] Respondent’s Submissions Annexure B at 28.

16. Dr Borire goes on to provide some suggestions for the treatment of this condition.

17. The Respondent draws attention to the fact that between February and October 2020, the Applicant and the Respondent were in regular contact by email to arrange for the Applicant to undertake the Citizenship Test which is part of the prerequisites to be met before a grant of citizenship by conferral can be made. The Respondent asserts that this is indicative of the capacity of the Applicant to both understand and respond to deadlines, and to conform with requirements imposed by the Department in relation to citizenship matters.

18. In oral evidence before the Tribunal both the Applicant and his support person (Mr Noble) indicated that this management of previous correspondence was primarily facilitated by Mr Noble, and that the Applicant himself was stressed and anxious attempting to manage such matters. The Applicant told the Tribunal that he does not use emails at work (all matters were managed via telephone), and that his living arrangements did not require him to manage utility bills or other correspondence.

19. The considerations in this matter are quite finely balanced and the Tribunal accepts that the Hunter Valley[13] principles are not to be applied ‘mechanically’ and that ‘an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given.’[14]

    [13] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.

    [14] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

20. The Tribunal is persuaded on this point that a reasonable explanation for the delay has been provided.

    Merits of the application

21. It is not the role of the Tribunal to conduct what would amount to a determination of the matters which would be resolved at a full merits-based hearing, but if an EOT is to be granted, the Tribunal must be satisfied that the application would have some prospect of  eventual success.

22. In approaching this task, authority in Australia[15] has often referred to the remarks of Lord Denning MR to the effect that:

    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.[16]

    [15] Jackamarra (an Infant) v Krakouer 195 CLR 516 at [3].

    [16] R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at [1091].

23. The basis upon which the Minister refused the original citizenship application relates to section 21(3)(d) of the Australian Citizenship Act 2007 (Cth). Section 21 of that Act sets out eight specific criteria which must be met by any applicant before their application can be approved. Sections 21(1)(d), (e) and (f) require that an applicant understands the nature of their citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

24. These matters are determined by requiring an applicant to sit for, and pass (at a “pass mark” of 75%), what is described as the Citizenship Test.[17] The Applicant sat for this test on three occasions, but at each occasion failed to reach the 75% “pass mark”, his best score being 60%.[18]

    [17] Ibid s 23A.

    [18] Respondent’s Outline of Submissions (undated) at [2.1(d)]; Respondent’s Submissions Annexure B at 52-54.

25. Pursuant to section 21(3)(d)[19] however, these requirements may be waived, that is, a person is eligible to become an Australian citizen, if the Minister is satisfied that the person, inter alia:

    Has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

    (i)is not capable of understanding the nature of the application at that time; or

    (ii)is not capable of demonstrating a basic knowledge of the English language at that time; or

    (iii)is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time …

    [19] Australian Citizenship Act 2007 (Cth).

26. In assessing the Applicant’s claim, the Respondent determined that section 21(3)(d) did not apply to the Applicant; and as he did not meet the requirements of sections 21(1)(d),(e) and (f), his claim could not be approved.

27. In other words, the Applicant was required to sit for the Citizenship Test but failed. His failure could be set aside if it were determined that he had an enduring physical or mental incapacity which prevented him from passing the test. However, the Respondent determined that this was not the case, and so the Citizenship Test failure was fatal to his application.

28. In coming to this decision the Respondent considered both the medical report of Dr Borire to which the Tribunal has already referred, and a one line letter from Dr Gurinder Sidhu who wrote: ‘He (the Applicant) suffers from exertional tension headaches and has seen a neurologist Dr Borire who agrees that Magno cannot sit the citizenship exam.’[20]

    [20] Respondent’s Submissions Annexure B at 25.

29. In oral submissions the Respondent pressed the argument that the limited medical evidence before the Tribunal did not support a finding that the Applicant suffered from a permanent or enduring medical condition leading to an incapacity to either understand the nature of his application, his basic knowledge of English or the responsibilities and privileges of citizenship.

30. The report from the Neurologist, Dr Borire, does not establish that the Applicant’s condition is permanent or enduring, indeed he suggests that there may be some non-pharmacological methods of managing it. He affirms that there are no signs of ‘head injury’ or ‘significant abnormality’.[21]

    [21] Ibid at 28.

31. The Applicant has already attempted the Citizenship Test on three occasions apparently showing a degree of improvement (from 45% to 60%) and in some parts of the test he scored 5/6.[22]

    [22] Respondent’s Outline of Submissions (undated) at [2.1(d)] and [4.15(c)].

32. In his oral evidence to the Tribunal the Applicant was clear and cogent in stating why he wanted to become a citizen, he managed to express himself in plain English and, as noted he previously scored 5/6 in that section of the test which relates to “Government and the Law in Australia” and “Our democratic beliefs, rights and liberties”.[23]

    [23] Ibid [4.15(c)].

33. For the Tribunal to be satisfied that the Applicant has reasonable prospects of success at a merits-based substantive hearing, it would need to be persuaded that either the Respondent’s assessment of the material before him/her was manifestly wrong, or that there was additional material before this Tribunal which was not available to the original decision-maker[24] and which, once considered, may lead to a different outcome.

    [24] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

34. Neither is the case here.

35. There is clear authority to the effect that EOTs should not be granted if the weight of evidence suggests that the ultimate application will not be successful.

    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.[25]

    [25] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

36. In Jamal v Secretary, Department of Social Services Bromwich J said:

    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.[26]

    [26] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].

37. The Tribunal was impressed with the Applicant as a witness. It is clear that he wants to become a citizen and he advanced coherent reasons for wanting to be such. He has been in Australia for most of his life, has three Australian-born children and until recently appears to have had steady employment. It is also clear that his level of stress and anxiety rises when he has to confront tests involving matters of concentration, memory (which he says is compromised by his “medical condition”), and which challenge his degree of limited literacy.

38. Nevertheless, the Tribunal does not believe that it is beyond the Applicant’s capacity to manage these challenges with a little more time taken to study the material provided to applicants before taking the Citizenship Test, and with the assistance of his very supportive friend Mr Noble. There appear to be no impediments to the Applicant making a further application at some time in the future with this level of external support.

39. Given the nature of the evidence before it, both from Dr Borire and as given at the hearing, the Tribunal concludes that the ultimate prospects of success for this appeal weigh, albeit it marginally, against granting any extension of time.

1. The Tribunal notes that alternate remedies remain open to the Applicant.  He may reapply for citizenship at any time[27] and he may re-sit the Citizenship Test. Dr Borire’s report is not definitive in stating that the Applicant could not manage the test. He goes on to suggest possible treatment for the exertional headaches which may lead to an improvement in this condition for the Applicant, potentially putting him in a place to make the marginal improvements needed to meet the “pass mark” as determined.

   [27] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

   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

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

Associate

Dated: 11 March 2021

Date(s) of hearing:	12/02/2021
Applicant:	In person
Solicitors for the Respondent:	Mr N Jende, Clayton Utz Ms J Liang, Clayton Utz