Gampaha Damma Sumithra and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 744
•3 April 2018
Gampaha Damma Sumithra and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 744 (3 April 2018)
Division:GENERAL DIVISION
File Number: 2017/6801
Re:Sil Mathawa GAMPAHA DAMMA SUMITHRA
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:3 April 2018
Place:Melbourne
The application for an extension of time in which to lodge an application for review is refused.
............................[sgd]............................................
Miss E A Shanahan, Member
CITIZENSHIP – citizenship by conferral – failure to take the pledge – applicant repeatedly advised of possible dates for citizenship pledge conferral – failure to respond to written and email correspondence – prolonged absence from Australia – citizenship approval cancelled – application for extension of time received more than two years after cancellation of citizenship – extension of time denied.
Legislation
Administrative Appeals Tribunal Act 1975; s 29
Australian Citizenship Act 2007; ss 21, 25 & 26
Cases
BTI15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2326
Essambo and Minister for Immigration and Border Protection (Migration) [2016] AATA 572Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Secondary Materials
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Miss E A Shanahan, Member
3 April 2018
Reverend Gampaha (Rev. Gampaha), then known as Wijesundera (surname) Anuruddhika, having passed the citizenship examinations was approved for Australian citizenship on 5 December 2014. She was notified by mail that the citizenship ceremony at which she was to take the pledge would be in Adelaide on 14 January 2015. Ms Wijesundera left Australia for Sri Lanka on 6 January 2015, as her mother was seriously ill. Further invitations to attend future citizenship ceremonies were provided to her on 6 March, 12 March and 4 August 2015. She did not acknowledge or respond to any of these invitations.
On 25 August 2015 Ms Wijesundera was sent a notice of intention to consider cancellation of the approval of citizenship. The notice sought an urgent reply to this intention to cancel approval. As no response was received, the delegate of the Minister for Immigration and Border Protection (the Minister) cancelled the approval of Australian citizenship on 14 October 2015 in accordance with s 25(2)(b)(ii) of the Australian Citizenship Act 2007 (the Act). On 13 November 2017, Rev. Gampaha Damma Sumithra made application to the Administrative Appeals Tribunal for an extension of time to seek review of the Minister’s decision of 14 October 2015.
The hearing of the extension of time application was conducted by telephone. Rev Gampaha was in Sri Lanka. She was represented by Ms Senanayake, solicitor of Aus-Asian Migration & Legal Consultants. Mr Cunynghame, solicitor of Sparke Helmore, appeared for the Minister. Evidence was given by Rev. Gampaha and Mr Rasika Nambagodage who is the Public Officer of Visuddhi Aramaya, the Buddhist Meditation Centre in Victoria.
BACKGROUND TO THE APPLICATION
Rev. Gampaha has changed her name twice since she migrated to Australia. The application for extension of time was lodged in the name of Gampaha Damma Sumithra, Gampaha, being the surname registered with the Register of Births, Deaths and Marriages in the State of Victoria on 7 February 2018. On 20 January 2014 the applicant changed her name to, Wijesundera (surname) with the first name Anuruddhika, this being registered in Adelaide on 21 January 2014.
Prior to 20 January 2014 the applicant’s surname and birth name were the same; that is Welikande Wijesundera Mohottalalage (surname) Pathma Damayanthi Anurudhika Kumari WIdjesundera (given names). Rev. Gampaha was born in Sri Lanka on 19 October 1967 and holds a Sri Lankan passport. She married Mr Ariyarathne Edirisinghe (surname) in Sri Lanka on 1 October 1998. There are three children of this marriage. The children were born in Sri Lanka and became Australian citizens, as did their father, on 25 August 2014.
Mr Edirisinghe and the children had filed their application for Australian citizenship prior to the applicant. The applicant received notification of approval of her application on 5 December 2014.
On 28 December 2014, the applicant sent an email addressed to Adelaide citizenship requesting an urgent citizenship ceremony as her Australian visa had expired. She also mentioned that her 83 year old mother was seriously ill in Sri Lanka and she was required to assist in her care. An invitation from the Minister to attend the citizenship pledging ceremony at 70 Franklin St Adelaide was sent to the applicant on 6 January 2015. The time of the ceremony was to be 9.15am on 14 January 2015.
Rev. Gampaha left Australia on 6 January 2015. The declared purpose was to assist in caring for her mother. On 8 January 2015 she entered a monastery at the Isipathana Aranya Meditation Centre in Kalutara, Sri Lanka, as a trainee candidate for ordination as a Buddhist nun.
After two months of training, on 10 March 2015 she entered a different monastery at a higher level (the novice level). She says that during the periods she was in the monasteries she did not have access to email or any electronic means of communication.
In her statement dated 10 November 2017, the applicant stated that her three children had become Australian citizens and continued to live in Australia.
Rev. Tapaha and her husband Mr Edirisinghe had migrated to Australia on 29 May 2009, under the Skilled Migrant Program. Both of them have Bachelor of Science degrees in Engineering and had worked in that field in Sri Lanka. Rev. Gampaha retrained while living in Adelaide and obtained a Diploma in Nursing. She has a tax file number but no evidence was provided that she been in remunerated employment. She states she did some volunteer work in her field of study.
On arrival in South Australia the family rented accommodation. Two years later they purchased a home at 15a Ramsey Avenue, Hillcrest, South Australia. This has been recorded as their home from February 2011 to the present. The family had owned their own home in Sri Lanka in the region of Kirindacua, were they lived from October 1998 to August 2002. They then shifted to a city known as Gampaha, where they resided until May 2009.
The Tribunal presumes that the children’s applications for citizenship formed part of their father’s application, as Rev. Gampaha’s application states that no children under the age of 16 years for whom she was a responsible parent, were part of her application.
The Tribunal has been provided with documentation confirming the ordainment of Ms Wijesundera of 15a Ramsey Avenue, Hillcrest, South Australia as a Buddhist Bhikkuni (nun) under the leadership of Reverend Malalgoda at Manikkawa on 10 March 2015 and is now residing in the Buddhist monastery under the name of Reverend Gampaha Damma Sumithra.
Rev. Gampaha returned to Australia on 13 December 2015. Her mother died in Sri Lanka on 27 December 2015. During Rev. Gampaha’s 24-day stay in Australia she conducted several meditation programs and classes (three in Melbourne and three in Adelaide). She then returned to Sri Lanka on 5 January 2016. She returned to Australia in September 2016. Between 17 September and 27 October she conducted visitation programs and classes in Melbourne, Adelaide and Sydney; before returning to Sri Lanka in early November. She next returned to Australia in late January 2017 to teach and conduct meditation programs in Brisbane and Melbourne. She returned to Sri Lanka in February 2017 for a three month, full-time, intensive training program in Buddhism. She was ordained as an Upasampadha Bhikkhuni or Bhikshuni (The Tribunal understands that a bhikkhunī (in Pali) or bhikṣuṇī (in Sanskrit) is a fully ordained female monastic in Buddhism) on 22 June 2017.
Rev. Gampaha returned to Australia in July 2017 with the intent of residing permanently in Australia. She advised that she would need to return to Sri Lanka annually for further training in Buddhism.
Since returning to Australia, Rev. Gampaha has conducted further meditation programs, has rented a home in Roxburgh Park in Victoria, and intends to conduct regular programs in meditation. She has a longer term plan to rent commercial premises, in Melbourne and interstate, to provide sites for such programs. The Tribunal has been informed that the female Sri Lankan population in Victoria prefer to have a Buddhist nun as opposed to a monk leading them in meditation.
As a Buddhist nun, Rev. Gampaha cannot receive payment for her work. She is supported by donations from the Buddhist community. Rev. Gampaha has two bank accounts; one with the Commonwealth Bank of Australia (CBA) and the other with the Australia New Zealand Banking Group Limited (ANZ). Details of these accounts have been provided to the Tribunal and will be addressed later. The Tribunal notes that the CBA account was in the name of Mrs PA Wijesundera until 30 April 2017; and thereafter in the name of the Reverend Gampaha. The ANZ account appears to have come into effect on 4 October 2016 and is in the name of Reverend Gampaha. From 2010 until (at least) 4 October 2017, Rev. Gampaha, in her current name and in her previous married name, has received Family Tax Benefit payments from the Australian Government, until the scheme ceased. The Schoolkids Bonus amounted to thousands of dollars.
At the time of the hearing of the application for an extension of time, it was clear that Rev. Gampaha was residing in or at least visiting Sri Lanka, because she participated in the hearing by telephone from Sri Lanka. At this time she had no definite plans to return to Australia.
EVIDENCE BEFORE THE TRIBUNAL
Much of the evidence has been addressed under BACKGROUND TO THE APPLICATION. Mr Rasika Nambagodage of the Buddhist Meditation Centre confirmed that the local Sri Lankan community was supporting Rev. Gampaha with rent for the house she had leased in Craigieburn; and that there was a great need for her services in the Sri Lankan community. He understood that Rev. Gampaha would return to Australia at the end of March and would stay for at least three months but had a program already organised in Sri Lanka for later this year. After this she would reside in Australia permanently but would need to return to Sri Lanka intermittently for teaching updates.
From Mr Rasika Nambagodage’s evidence it appears that the Buddhist community in Victoria had assisted in Rev. Gampaha’s property rental arrangements, her banking changes, her new driver’s licence and her updated Medicare registration.
Further evidence obtained
The Tribunal could not find any evidence as to where Rev. Gampaha’s children were living and whether they were still in South Australia with their father or with Rev. Gampaha in Victoria. The Tribunal sought further details from her legal representatives.
The Tribunal received a response from Rev. Gampaha’s solicitor, Ms Damindi Senanayake, on 1 March 2018. She advised the Tribunal that the children were at school in Sri Lanka and had followed/accompanied their mother to Sri Lanka in early 2015. All three children are studying Buddhism. Efforts had been made to find an appropriate Buddhist school in Melbourne or Sydney but as this was unsuccessful, it is now planned that the children will stay in Sri Lanka until they finish their studies. The studies are expected to take a few more years, after which they will return to Australia permanently. In the interim they will continue to spend their holidays in Australia.
In response to the question as to who had opened the bank accounts in Australia, the Tribunal was advised that the accounts had been opened by the applicant and were maintained by her. She did not charge for teaching meditation but the devotees donated money. She used this money for the children’s expenses, rent, bills and all her other expenses in Australia.
RELEVANT LEGISLATION
Section 21 of the Act sets out the general eligibility for Australian citizenship, stating:
21 Application and eligibility for citizenship
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(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
(g)is 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; and
(h)is of good character at the time of the Minister’s decision on the application.
...
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Section 26 of the Act relates to the pledge of commitment and states:
26 Pledge of commitment must be made
(1)A person must make a pledge of commitment to become an Australian citizen unless the person:
…
(c)is covered by subsection 21(6), (7) or (8).
Note:See section 27 for how the pledge is to be made.
(2)A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.
Delayed making of pledge
(3)If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:
(a)a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or
(b)the person has been or may be charged with an offence under an Australian law.
(4)The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.
(5)The Minister may, by writing, revoke a determination.
(6)If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.
Rev. Gampaha’s approved citizenship was cancelled in accordance with s 25(1)(a) which provides:
25 Minister may cancel approval
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28;
The Government Policy on Citizenship is also relevant but will not be reproduced here. It does however provide guidance for the Tribunal.
SUBMISSIONS
Ms Senanayake, representing Rev. Gampaha, provided brief written submissions, to which she spoke. She contended that special circumstances existed in this case, in that Rev. Gampaha’s urgent return to Sri Lanka was not foreseen and was in response to her mother’s sudden ill-health. In her haste to leave for Sri Lanka, Rev. Gampaha had not accessed her email communications relating to the planned citizenship ceremony. Having left Australia in early January, she had entered monastic life in Sri Lanka and again had no access to emails. Once she was qualified, Rev. Gampaha made several short-term return visits to Australia.
In support of Rev. Gampaha’s claim that she was likely to reside and continue to reside in Australia, Ms Senanayake submitted that:
·Rev. Gampaha’s spouse was an Australian citizen;
·her three children were Australian citizens;
·she had resided for some periods in Australia despite her need to attend training in the Buddhist religion in Sri Lanka;
·she had entered into a rental agreement;
·she was providing meditation classes and religious support for the Buddhist community in Australia;
·there are only 17 Buddhist nuns living in Australia;
·she held a Victorian driver’s licence and a Medicare card; and
·she maintained bank accounts in Australia, with regular deposits from the Sri Lankan community in Australia.
Mr Cunynghame, for the Minister, submitted that the application for an extension of time should be dismissed on the basis that:
(a)the delay in lodging the substantive review application is significant; being 733 days after the expiry of the 28 days provided for notification of the delegate’s decision;
(b)the applicant has given no satisfactory explanation for the delay; and
(c)any substantive review application would have poor prospects of success.
Mr Cunynghame further submitted that the proper process for Rev. Gampaha would be for her to file a new application for citizenship, once she returned to Australia. Mr Cunynghame outlined the background to the application and in particular the timeframe of all the events, the repeated sending of invitations to a citizenship ceremony, and notification of the possible cancellation of citizenship; none of which had elicited a response.
Mr Cunynghame relied on the established principles for extension of time applications outlined in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments). In that case, Wilcox J had identified a list of criteria to be considered. These included the length of the delay, the explanation for the delay, whether the delay caused prejudice to the respondent, and the merits of the proposed substantive application. He submitted that the Tribunal was not required to embark on a trial of the merits of the substantive application. However, where the substantive application was likely to succeed on its merits, an extension of time was more appropriate. Mr Cunynghame contended that this was not the case in Rev. Gampaha’s application.
Mr Cunynghame referred to the Citizenship Policy document that provides guidance to decision‑makers on the interpretation and exercise of powers under the Act. He submitted that it was the usual procedure for the Tribunal to apply such policy, unless there were cogent reasons not to do so. Mr Cunynghame referred to the list of factors in the policy document that demonstrate a close and continuing association with Australia, these being:
·evidence that the person migrated to and established a home in Australia prior to the period overseas;
·children who were Australian citizens;
·a long term relationship with an Australian citizen spouse or de facto partner;
·regular return visits to Australia;
·regular periods of residence in Australia;
·an intention to reside in Australia;
·ownership of property in Australia; and
·evidence of income tax paid in Australia over the past four years.
Mr Cunynghame identified the factors that Rev. Gampaha met as being limited to having three Australian citizen children and her activities and position in Buddhist community in Australia. However, she had not provided any evidence that:
·she had a home or property in Australia;
·that her partner, referred to by her, as her then husband is based in Australia;
·that she regularly returns to or resides in Australia;
·that she has Australian-based employment; or
·that she has paid income tax in Australia.
Since applying for citizenship on 12 November 2014, Rev. Gampaha has, on the respondent’s calculations, spent a total of less than one year in Australia. Rev. Gampaha has an eligibility date of 20 August 2019 by which to lodge a fresh application for citizenship and was so informed in October 2016.
TRIBUNAL’S DELIBERATIONS AND DECISION
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) empowers the Tribunal to extend the time for making an application. Subsection (7) states:
(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 (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The AAT Act provides that the Tribunal can extend this time, even though the time has expired (s 29(8) AAT Act).
Applications for extension of time are frequently made to the Tribunal. The vast majority of these are filed or made a few days after the expiration of the 28-day appeal period. The Rev. Gampaha’s application for an extension of time was 733 days out of time. In summary, the case law referred to by the respondent supports the argument that the greater the delay in seeking an extension of time, the stronger the reasons for doing so must be and that this extends to consideration of the likelihood of success of any substantive review application (Essambo and Minister for Immigration and Border Protection [2016] AATA 572 and BTI15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2326). While the parties have not directly raised the question of public interest, the Tribunal is of the opinion this may also be a consideration in the particular situation of this extension of time application. In Hunter Valley Developments, Wilcox J considered the public interest question stating (at 352):
... An applicant concerned to challenge a decision which has implications for other people or for day to day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications.
In order to determine whether there is close and continuing association of the applicant with Australia, the Tribunal will address the criteria adopted in the citizenship guidance policy to reflect those enunciated in Hunter Valley Developments. Rev. Gampaha has obviously met the first of these requirements as she migrated to Australia in 2009, established a home in Australia, undertook further tertiary education, and did so with her husband and three children.
The Citizenship Policy criteria
Rev. Gampaha’s three children are Australian citizens, as is her spouse, Ariyarathna Edirisinghe. The children bear the father’s surname. All five members of the family were resident in Australia from 2009 to early 2015 and had clearly established a home, as they purchased a house in a suburb of Adelaide. These factors would normally weigh in favour of the applicant. However, it has become clear as further information has been provided that the entire family returned to Sri Lanka in early 2015 and that the three children have attended school in Sri Lanka for the past three years, and continue to do so in 2018.
According to Ms Senanayake, it is intended that the children remain in Sri Lanka until they have finished their education, which is anticipated to continue for another three years. Ms Senanayake has further advised that the two sons are living with their father in Sri Lanka and the daughter with her mother. The children are not only obtaining a normal education but are studying to become (in the case of the boys) Buddhist monks and (in the case of the girl) a Buddhist nun.
Rev. Gampaha and her children have returned to Australia on a fairly regular basis. The children, who travel on Australian passports, return to Australia during the school holidays as they are required to renew their Sri Lankan visas. Rev. Gampaha was absent from Australia from 6 January 2015 until 13 December 2015, following which she remained in Australia for three weeks. She visited again between 13 September 2016 and 3 November 2016, 23 January 2017 and 23 February 2017 and spent nearly four months in Australia between 13 July 2017 and mid-November 2017.
It is Rev. Gampaha’s intention to return to Australia in March 2018. She will remain for a period of three months and then must return to Sri Lanka where a meditation program has already been organised for the current year. It is Rev. Gampaha’s intention to return to Australia permanently at the end of 2018, although she will be required to return to Sri Lanka intermittently to update her Buddhist knowledge and meditation practice.
It is not clear to the Tribunal whether Rev Gampaha or Mr Edirisinghe retain ownership of their property in Hillcrest, South Australia. No evidence has been provided as to where the family stay during their periods in Australia, although the Visuddhi Aramaya Buddhist Meditation Centre has taken out a lease on a property in Roxburgh Park, Victoria for Rev. Gampaha’s use, from July 2017 until July 2018. The Centre pays the rent on the property.
Rev. Gampaha has had a tax file number since 2009. There is no evidence that she has worked for remuneration while living in Australia. She has said she has done voluntary work. There is no evidence that she has paid income tax. She has been and continues to be in receipt of Family Tax Benefit payments which commenced in the year 2010. She has also received, by direct payment to her various bank accounts, the Schoolkid’s Bonus on an annual or periodical basis, until the Bonus ceased in 2016. Until 30 April 2017 Rev. Gampaha’s bank accounts were held in her previous name of Mrs A Wijesundera of 15A Ramsey Avenue, Hillcrest, South Australia. Thereafter, the CBA account and the more recent ANZ Bank account have been in the name of Reverend Gampaha, with various addresses in Craigieburn, Victoria.
Rev. Gampaha has on several occasions stated her intention to reside in Australia on a permanent basis, with the proviso that she would return to Sri Lanka as required for further training.
Based on these findings, the Tribunal determines that the majority of the Hunter Valley Developments criteria are not met. There is no evidence of ownership of property in Australia, Rev. Gampaha’s husband and children are residing in Sri Lanka, with the children attending school in that country, and she has no Australian-based employment; nor does she pay income tax in Australia. Thus, there is insufficient evidence to suggest a close and continuing relationship with Australia.
The Tribunal acknowledges that Rev. Gampaha provides the Sri Lankan community in Australia, and particularly in the Melbourne area, with an invaluable service. The Tribunal further acknowledges that this service is greatly appreciated by the community. In addition, the community is clearly willing to support her financially in accordance with the Buddhist religion.
Likelihood of the substantive application being successful should the extension of time be granted
The Tribunal anticipates that should the substantive issue come to hearing in the Tribunal, additional detailed documentation would be provided. However, the fact that the entire family has been residing predominantly in Sri Lanka since January 2015 means that that there is little or no supporting evidence of the maintenance of a close and continuing association with Australia during this three year period.
Reasons given for the delay in seeking an extension of time
In the application for an extension of time filed by Ms Senanayake the reasons given for the delay were:
The citizenship was approved on the 05/12/2014. In this time, the applicant was getting prepared to become a Buddhist nun and her 83 years old mother who was living in Sri Lanka became very sick. For both these purposes, she wanted to visit Sri Lanka. Before leaving she informed the Department by email that she would prefer to attend a citizenship ceremony by email on 28/12/2014. The applicant visited Sri Lanka on the 07/01/2015 and the invitation to attend the citizenship ceremony has been sent by Immigration on the 06/01/2015. A Statement will be provided with further details.
In her statement Rev. Gampaha did not refer to her plans prior to January 2015 to undertake training as a Buddhist nun, although she did stress her devotion to Buddhism. The stated reason for her urgent return on 6 January 2015 was to care for her seriously ill mother, who had been diagnosed with a subdural haematoma (a clot between brain and skull). The documentation from the Singhe Hospital in Ratnapura states that Rev. Mathale Dhamma Seela, Rev. Gampaha’s mother, was hospitalised from 7 to 8 December 2014 and then discharged home. Rev. Gampaha had said that her mother was being cared for by her father, and she needed to assist him with that care.
Within 24 hours of arriving back in Sri Lanka on 7 January 2015, Rev. Gampaha had entered the Buddhist monastery as a novice nun. Whether her mother was also resident in that monastery is unknown. Her statement suggests that she returned to Sri Lanka alone, leaving her husband and family in Australia. Clearly this is not the case as they all relocated to Sri Lanka since, according to the information provided by Ms Senanayake after the hearing, the three children had accompanied their mother to Sri Lanka. If this information is correct, it suggests that the relocation to Sri Lanka had been planned for some time.
The Tribunal accepts that while she was in the monastery Rev. Gampaha would not have access to emails or telephone communication. The Tribunal also accepts that notices sent by the Citizenship Services to her postal address in South Australia would not have been received by her if her husband was also in Sri Lanka. The initial seclusion in the monastery was for a period of two months.
Ms Senanayake submitted that Rev. Gampaha gave up all worldly considerations after entering the monastery and hence her failure to contact the government authorities in response to the notices sent. However, even if access to these methods of communication were not available, which the Tribunal has accepted, Rev. Gampaha had returned to Australia by 13 December 2015 and then received the various notices and letters sent to her. She attended the Department of Immigration and Border Protection’s Melbourne office seeking to arrange a set citizenship ceremony date; but as her mother died on 27 December 2015 Rev. Gampaha returned to Sri Lanka on 5 January 2016.
This submission does not sit well with information, provided by Ms Senanayake, that the Rev. Gampaha had personally opened the ANZ bank account in Australia and presumably transferred the change of name data and the address; and had instructed VicRoads in relation to the issuing of a new driver’s licence in her new name; and had arranged a new Medicare card. At the hearing it had been denied that Rev. Gampaha had effected these changes personally and it was said they had been made on her behalf by the Buddhist community in Victoria. The Tribunal suspects that there may have been some confusion resulting from language difficulties at the hearing.
The Tribunal finds that the evidence provided in relation to the reasons for the delay in lodging an extension of time application are not only conflicting but unpersuasive and inadequate.
Merits of the proposed substantive application
In light of the above comments, and in agreement with the respondent’s submissions, the Tribunal finds that the prospects of a substantive application for a review being successful are poor.
The Tribunal now returns to the comment it made regarding public interest considerations. These are identified as the positive service to and for the benefit of the Buddhist community in Australia; as opposed to the interests of the public in a timely resolution of administrative disputes. A decision that a delay of 733 days was reasonable is not tenable. The Tribunal has not been able to find any previous evidence of such a lengthy delay in the area of citizenship extension of time applications.
The Tribunal refuses the application for an extension of time.
(Tribunal Note: The spelling of names of the Applicant and persons providing evidence even in official documents has varied, The Tribunal has relied foremost on the Applicant’s Statement and the Registry of Births, Deaths and Marriages entries, although these are sometimes conflicting.)
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
..............................[sgd]..........................................
Associate
Dated: 3 April 2018
Date of hearing: 9 February 2018 Date final submissions received: 1 March 2018 Advocate for the Applicant: Ms D Senanyake Solicitors for the Applicant: Aus-Asian Migration & Legal Consultants Advocate for the Respondent: Mr A Cunynghame Solicitors for the Respondent: Sparke Helmore
0
3
0