Dok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2631

Dok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2631 (26 July 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3723

Re:Achuil Yuar Ngur Dok

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:26 July 2021

Place:Sydney

The application for an extension of time is refused.

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Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – citizenship – principles to be applied – reasons for delay – prejudice to the respondent and general public if extension granted – merits of substantive application – whether applicant meets general eligibility requirements – whether application for extension of time is reasonable in all the circumstances – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

CASES

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

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

REASONS FOR DECISION

Dr L Bygrave, Member

26 July 2021

1. On 7 June 2021, Mrs Achuil Yuar Ngur Dok, lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 14 April 2021 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse Mrs Dok’s application for Australian citizenship by conferral because she did not successfully complete a citizenship test as required by subsection 21(2A) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) (the reviewable decision).

2. The Minister opposes the extension of time sought.

3. The application was heard by the Tribunal in Sydney on 21 July 2021 by teleconference. Mrs Dok participated in the hearing with the assistance of her husband, Mr John Ruei, and an interpreter of the Sudanese Arabic language.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

4. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

5. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].

6. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:

   (a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

   (b)a distinction is to be made between an applicant who has ‘rested’ on their 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;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)considerations of ‘fairness as between the applicant and other persons’ in a similar position.

7. These principles are not to be applied mechanically. For example, 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: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

8. All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.

   REASONS FOR DELAY

9. The documents before the Tribunal show that, on 14 April 2021, the Minister’s delegate emailed Mrs Dok a copy of the reviewable decision.

10. Mrs Dok told the Tribunal that she received a copy of the reviewable decision by post but, due to her limited English, was unable to understand the content of the decision. When her husband, Mr Ruei, later became aware of the decision, he then read the email sent on 14 April 2021. Mr Ruei said that they then ‘collected information’ to lodge the application with the Tribunal on 9 June 2021.

11. I am satisfied that the length of delay in Mrs Dok seeking a review of the reviewable decision was 26 days after the 28-day limit.

12. I accept the explanation of Mrs Dok, noting that her delay in making an application for review was relatively short and there is no evidence that she ‘rested’ on her rights. While I find this principle weighs neither for nor against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

13. It is in the interests of both the Minister and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.

14. I accept that the Minister and the general public would have expectations about the finality of the decision-making process in relation to Mrs Dok’s application. However, given the delay was 26 days, I am satisfied there would be minimal prejudice to the Minister and the general public if the extension of time is granted.

15. I find that this factor weighs neither for nor against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

16. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.

    Relevant legislation and consideration

17. The issue for consideration in the substantive application is whether Mrs Dok can meet the general eligibility requirements set out in subsections 21(2) and 21(2A) of the Citizenship Act.

18. The relevant provisions of the Citizenship Act are:

    General eligibility

    (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (d)  understands the nature of an application under subsection (1); and

    (e)  possesses a basic knowledge of the English language; and

    (f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and  …

19. Subsection 21(2A) of the Citizenship Act further provides that the requirements in paragraphs 21(2)(d), (e) and (f) are satisfied ‘if and only if’ a person has sat and successfully completed a citizenship test. To successfully complete a citizenship test, a person must correctly answer at least 75% of the test questions and correctly answer all the Australian values questions.

20. The decision record written by the Minister’s delegate stated that Mrs Dok attempted to sit the citizenship test on seven occasions on the dates of 2 December 2020, 10 March 2021 and 14 April 2021; however, she failed to successfully complete the test. Mrs Dok confirmed to the Tribunal that she sat the citizenship test on these dates and did not pass the citizenship test on any of these occasions.

21. I consider the wording in subsection 21(2A) of the Citizenship Act – that the requirements in paragraphs 21(2)(d), (e) and (f) are satisfied ‘if and only if’ the applicant has sat and successfully completed the citizenship test – is unambiguous. This means that I have no discretion to consider Mrs Dok’s circumstances or her reasons for not successfully completing the citizenship test.

22. As Mrs Dok has not successfully completed the citizenship test, she does not meet the general eligibility requirements for citizenship set out in subsections 21(2) and 21(2A) of the Citizenship Act.

23. In considering the relevant circumstances and weighing the available evidence, I am of the view that Mrs Dok’s substantive application has very limited prospects of success. I find that this weighs against granting an extension of time.

    CONCLUSION

24. Taking into account all the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

25. The application for an extension of time is refused.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 26 July 2021

Date(s) of hearing:	21 July 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Charlotte Lewis, Australian Government Solicitor