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

[2023] AATA 47

Gautam and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 47 (27 January 2023)

Division:GENERAL DIVISION

File Number(s):      2022/10203

Re:Ran Maya GAUTAM

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:27 January 2023

Place:Sydney

The applicant’s application for an extension of time to 14 December 2022 to lodge an application for review is refused.

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The Hon. John Pascoe AC CVO, Deputy President

Catchwords

PRACTICE AND PROCEDURE – application for an extension of time – application for citizenship by conferral refused – where the application is five years out of time – whether there is any adequate explanation for the delay – whether the grant of the extension of time would prejudice the respondent – application for extension of time is refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

Cases

Hunter Valley Developments Pty Limited & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

27 January 2023

1. The applicant, who is a citizen of Bhutan, first arrived in Australia on 16 March 2010 as the holder of a Refugee (Subclass 200) visa, granted on 4 December 2009. On 2 December 2015, she applied for citizenship by conferral.

2. On 1 December 2017, a delegate of the respondent refused the applicant’s application for Australian citizenship by conferral. The delegate refused the application on the basis that the applicant did not satisfy ss 21(2)(d)-(f) of the Australian Citizenship Act 2007 (Cth) (the Act), as she had not successfully completed a citizenship test (s 21(2A)).

3. On 14 December 2022, the applicant applied to the Tribunal for an extension of time to seek review of a decision made by a delegate of the respondent.

   Submissions at Hearing

4. At the hearing, the applicant’s son, Mr Gautam, appeared for her and explained on behalf of the applicant that they had come from a refugee background, and the applicant applied for citizenship in 2015 at which time the applicant had very basic reading and writing skills.

5. The applicant had failed the citizenship test on some eight occasions, and it was said that she was unable to sit anymore tests.

6. Mr Gautam said there had been many changes and amendments to the citizenship act over the years which had added to the applicant’s confusion.

7. Mr Gautam acknowledged that the applicant had received the Department’s letter on 1 December 2017, but said that she did not read the letter in any detail and took it as another notification of failure to pass the citizenship test.

8. The matter was now of some importance because the applicant wished to travel overseas, and that had caused the applicant to look at the letter more closely, and to realise that it was in fact a refusal of her citizenship application.

   Discussion

9. The law in relation to the granting of an extension of time in these circumstances is well settled, and the principles, although not exhaustive, are clearly enunciated in Hunter Valley Developments Pty Limited & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305.

10. Turning first to the question of delay, I note that section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requires the application for review to be made within 28 days of notification of the decision.

11. The question therefore is whether the delay in this case is reasonable, both in relation to the extent of the delay and the causes of the delay.

12. The delay in this case was approximately five years. This is an extremely lengthy delay, and there would need to be a very cogent argument put forward to the Tribunal to justify such a lengthy delay. I note that the applicant’s review rights were clearly articulated in the letter sent to the applicant on 1 December 2017 and it is the responsibility of the applicant to read and understand the letter.

13. It is, in my view, not a sufficient explanation that the applicant simply took the letter to mean something other than a refusal of her citizenship application, and chose not to look at the letter in more detail until she wanted to travel overseas, at which time she sought to understand the contents of the letter. It is reasonable, in my view, for the applicant to be expected to seek whatever help she needed in understanding the letter, if not within the 28 day period, within a much shorter period than five years depending on her particular circumstances.

14. There is no evidence before the Tribunal that the applicant made any attempt to make inquiries of the Department, either about the letter or the outcome of her citizenship application during the five year period, prior to revisiting the letter of 1 December 2017.

15. Further, the determinative issue in the refusal of the applicant’s citizenship application was her failure to pass the citizenship test as required by s 21(2A) of the Act at the time of her application. The applicant sat the citizenship test on eight occasions, and on each occasion failed to pass. The respondent submits that, on at least two of those occasions, the applicant was able to also sit an assisted test. It was therefore reasonable for the Minister’s delegate to conclude that the applicant did not meet the knowledge requirements necessary to pass the citizenship test.

16. There is no evidence before the Tribunal that the applicant has inquired about resitting the test since the date her application was refused. Indeed, there is no evidence that the applicant would be more likely to pass the test even she if she had sought or been granted an opportunity to do so. Accordingly, even if the extension of time were granted, the applicant has little prospect of success in an appeal before the Tribunal.

17. The respondent did not press the issue of prejudice to the respondent, but I note that it is in the public interest for decisions of this kind to be decided in an orderly and timely manner.

18. It was acknowledged by all parties that the applicant is sincere in her desire to become an Australian citizen, and has faced many difficulties.

19. I note further that it is open to the applicant to make another application for citizenship when she feels it is appropriate to do so.

    Decision

20. The applicant’s application for an extension of time to 14 December 2022 to lodge an application for review is refused.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 27 January 2023

Date(s) of hearing:	16 January 2023
Advocate for the Applicant:	Mr G. Gautam
Solicitors for the Respondent:	Mr C. Burke, Sparke Helmore Lawyers