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

GDHF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2896 (24 August 2022)
Division:GENERAL DIVISION
File Number(s):2022/5759
Re:GDHF
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Ms A E Burke AO, Member
Date of decision: 24 August 2022
Date of written reasons: 6 September 2022
Place:Melbourne

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, and upon written application by the Applicant dated 27 July 2022, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 13 July 2022.
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Ms A E Burke AO, Member
Catchwords
PRACTICE AND PROCEDURE – extension of time – delay of almost two year in lodging application – whether reasonable excuse for delay – reasonable excuse for extensive delay – whether prejudice would be incurred by respondent and public by allowing extension of time – where prospects of success were not fanciful – reasonable in all the circumstances to allow extension of time
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Hunter Valley Developments Pty Ltd & Ors. V Minister for Home Affairs and Environment (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
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REASONS FOR DECISION
Ms A E Burke Member AO
6 September 2022

The Applicant sought an extension of time for the review of a decision under s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The decision in question, dated 12 August 2020, is a decision to refuse the Applicant’s application for Australian citizenship on the basis that the delegate was unable to be satisfied of her identity under section 24(3) of the Australian Citizenship Act 2007. The Tribunal received the Applicant’s application for review on 13 July 2022 and she lodged an application for an extension of time on 27 July 2022.
At the hearing of the extension of time application on 24 August 2022, the Tribunal considered the arguments made by both parties on whether an extension of time should be granted and made an oral decision to grant an extension of time. The Respondent requested a written statement of reasons on 26 August 2022. These are those written reasons.
At the hearing of the application, the Applicant was self-represented and was assisted by a translator in the Burmese language. Mr Ingmar Duldig, Lawyer at Clayton Utz, appeared for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent).
THE ISSUE IN CONTENTION
The issue in contention is whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for the Applicant to make an application for review under section 29(7) of the Act.
Background
The Applicant fled from Myanmar with her family when she was five years of age when the military attacked their village. The Applicant and her family spent 13 years in Nupo refugee camp in Thailand, before they were granted a global special humanitarian visa. The Applicant first arrived in Australia on 26 August 2010 as the holder of a Refugee (Offshore) (Subclass 200) Visa. She was subsequently granted a permanent residence visa and on 5 June 2015 lodged her application for citizenship by conferral.
On 12 August 2020, some five years after the Applicant applied for citizenship, the delegate of the Minister determined they were prohibited from approving the Applicant’s citizenship as they were not satisfied of her identity. The delegate outlined the following:
You were requested by the Department on 02 July 2015 to complete and return a Statutory Declaration regarding your lack of a birth certificate. You provided a Statement dated 05 June 2015 stating that "I do not have a birth certificate because no birth certificate issued in Burma since I was born".
On 16 February 2018 you were sent a Request for Further Information letter by the Department. You were provided with 21 days from the date of this letter in which to respond. This letter included copies of a Form 1399 - Declaration of Service and a Form 80 - Personal Particulars for Assessment
Including Character Assessment. This letter also set out an extensive list of identity and other supporting documents which you could provide to support of your identity prior to arriving in Australia.
On 21 June 2018 you were sent a Final Request for Further Information letter by the Department. You were provided with 21 days from the date of this letter in which to respond. This letter included copies of a Form 1399 - Declaration of Service and a Form 80 - Personal Particulars for Assessment Including Character Assessment. This letter also set out an extensive list of identity and other supporting documents which you could provide to support of your identity prior to arriving in Australia.
On 28 June 2018 the Department received a number of documents from you including a Form 80, a titre de voyage, a Medicare card, an Australian issued travel document (DFTAA), an Australian driver’s licence and a pensioner concession card. Also included in this correspondence were your husband's Australian passport, Australian drivers’ licence and Australian citizenship certificate.
You were requested by the Department on 25 June 2019 to respond to a Request for Further Information letter by the Department. You were provided with 21 days from the date of this letter in which to respond. This letter included copies of a Form 1399 - Declaration of Service and a Form 80 - Personal Particulars for Assessment Including Character Assessment. This letter also set out an extensive list of identity and other supporting documents which you could provide to support of your identity prior to arriving in Australia.
On 10 July 2019 the Department received a Form 1399 Communicating by e-mail with the Department, and a Form 80 - Personal Particulars for Assessment Including Character Assessment, a pensioner concession card, a Victorian driver's licence, a medicare card, and a copy of your titre de voyage.
On 19 May 2020 you were sent an Invitation to Comment on Adverse Information Letter by the Department. You were again provided with 35 days in which to respond to this request.
The Department of Foreign Affairs and Trade Country Information Report on Myanmar dated 10 January 2017 states at point 3.1 “The Myanmar Government recognises eight major ethnic groups (the Kachin, Kayah/Karenni, Kayin/Karen, Chin, Bamar, Mon, Rakhine and Shan) as part of 135 ‘national races’. The law grants full citizenship to member of the 125 officially-recognised national races”. This clearly indicates that as a member of the Karen community, you are entitled to full citizenship in Myanmar, and therefore entitled to a full suite of identity documents. This includes the right to seek the issue of replacement documents.
…
…time frames indicate that the house you and your family lived in would have been recorded and issued with a household registration document by the Government of Myanmar. You have failed to provide an explanation as to why you are unable to supply a copy of this document. As a result of this situation, your identity has not been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
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The request for information letters sent to you on 16 February 2018, 21 June 2018 and 25 June 2019 provided you with further options for providing evidence of your identity, such as Government issued documents, family photos, school issued documents, etc. You have failed to supply any documents which predate your Document for Travel to Australia (DFTTA). In addition to this, you have failed to answer questions relating to education or employment details on your Form 80 – Personal Particulars for Assessment Including Character Assessment. You have also failed to provide answers to Questions 11-31 on your Form 1399 – Declaration of Service. This lack of documents and failure to supply responses to questions provides no further information which could be used by the Department to assist in making a determination on your identity, beyond that which you have previously stated to be correct. As a result of this situation, your identity as a Citizen of Myanmar has not been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
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In your Form 80 – Personal Particulars for Assessment Including Character Assessment dated 03 July 2019, you have included TS, born […]. You have listed him as your brother. You have provided no information to link this individual as a brother. This individual was not listed in your family composition for your Global Special Humanitarian (OFFSHORE) (XB 202) visa application lodged in 2009. In his Refugee (OFFSHORE) (XB 202) visa application lodged on 17 November 2006, TS did not record his details as being a part of your family.
This lack of consistency in such fundamental parts of your life story further reinforces the notion that your identity has not been satisfactorily established for the purposes of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
On 27 July 2022, the Applicant sought an extension of time to seek a review of the delegate’s decision by this division of the Tribunal, stating:
We are happy with the decide that you made, with timeline. Please just give us more time to reviewed the Application.
RELEVANT LEGISLATION AND ISSUES
Section 29(7) to (10) of the AAT Act provides that:
(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. (emphasis added)
(8)       The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9)       Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)       give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b)       require the applicant to give notice to those persons.
(10)      If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
CONSIDERATION
Explanation for the delay
The AAT Act provides the Tribunal with a broad discretionary power to grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so. The AAT Act does not provide guidance on what is reasonable, however the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Ltd & Ors. v Minister of Home Affairs and Environment (1984) 3 FCR 344, in which Wilcox J states at 348:
Section 11 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Given the above, whilst the Tribunal accepts that there is no pre-condition for an acceptable delay to be given, it is expected that an explanation will be provided. As such the Tribunal first explored with the Applicant her reason for delay in submitting her application for review.
The Applicant advised that:
(a)she was unaware that she had a time limit of 28 days in which to seek review of delegate’s determination at the AAT;
(b)around the time she received the decision she had given birth and she now has four children under the age of 10;
(c)around this time was also the start of the COVID-19 pandemic and during lockdown she was unable to see any one;
(d)during that time and since then, she has struggled to find anyone who could help her with the application;
(e)she has limited English and little understanding of how to progress matters; when she arrived in Australia, she was young, got married soon after and started her family so has had limited time to learn English;
(f)she had been attempting to contact anyone for advice and help but could find no one;
(g)she went to citizenship classes, through AMES (Adult Education Classes for Migrants) met an elderly person who she refers to as Uncle and that person told her that she could appeal the delegate’s decision to the AAT, and that she should have done it immediately after she received the refusal;
(h)as soon as she was aware that she needed to take action, she had submitted her application for review;
(i)from 2015 to 2018 she and her husband had contacted the department many times to find out what was happening with her application, but they got no answers; they were advised to stop calling so often as it would go against her claim;
(j)her husband has been granted his citizenship but she has not, and they could not find out why it has not progressed;
(k)she wanted to become a citizen as she lives in Australia, and so she can travel to Saudi Arabia for religious reasons, which is difficult to do on her current travel documents.
The Respondent contended that:
(a)pursuant to s 29(2) of the AAT Act the deadline for the Applicant to apply to the Tribunal for review of the Reviewable Decision was 9 September 2020, having received the decision to refuse her application for Australian citizenship on 12 August 2020;
(b)the Applicant lodged her substantive application on 13 July 2022, which is 96 weeks after the deadline (one year and 44 weeks);
(c)in her application for review to the AAT, the Applicant listed the date that she received the decision as 12 August 2020;
(d)in the reasons for seeking a review at the AAT, the Applicant stated that in her view the reviewable decision was wrong, but provided no explanation of why she had not lodged her appeal either within the statutory 28-day time limit, or during the intervening period of almost two years;
(e)the Applicant’s explanation of the delay put forward at the hearing did not amount to an acceptable explanation for the delay, referring to the observation of McHugh J in Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [16]:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay… In all but very exceptional cases, [time limits] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
(f)the Applicant may had been prevented from seeking a review during the harsh original lockdowns, but this could not explain the two years she took to seek review;
(g)case law indicates that there needs to be an exceptional reason for a delay of two years to lodge an appeal but the Applicant’s reasons for delay were not exceptional;
(h)there was no evidence to suggest that any conduct of the Respondent or any other public body has led to the Applicant’s delay in filing the EOT Application;
(i)the Applicant has rested on her rights to seek review of the Reviewable Decision for approximately two years;
(j)there was no evidence that, at any stage between her receipt of the reviewable decision, or the filing of the application on 13 July, the Applicant ever informed the Respondent that the reviewable decision was being contested;
(k)were the EOT Application to be granted, given the Applicant’s extensive delay, it would cause:
• prejudice to the Respondent, in the sense that the Respondent would be required defend a decision made almost 2 years ago; and
• prejudice to the general public in terms of disruption to established practices.
(l)refusing the extension of time application would have the benefit of ensuring finality in administrative decision-making;
(m)no injustice would be caused to the Applicant if the extension of time application were refused, because the Applicant has the opportunity to submit a fresh application for Australian citizenship if she chooses. If the Applicant chooses to do so, she will be able to submit her new evidence for consideration by the Department.
Prospects of success
The Tribunal explored the prospects of success in respect of the Applicant’s appeal of the delegate’s decision and asked the Applicant and her representative about any additional evidence which she may be able to provide which would support her claim. The Tribunal notes the principles in Hunter Valley Developments, that special circumstances must be shown to grant an extension of time. This guidance is further explored in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121where Von Doussa J stated at [6]:
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. Two questions therefore arise on the papers before the Court in this case:
(1) whether an acceptable explanation for the delay has been proffered; and
(2) whether, on the merits, there is any prospect of the appeal succeeding.
The Applicant believed she would be able to provide additional information which could satisfy a decision maker of her identity. In a statutory declaration dated 6 July 2022, the Applicant stated:
I arrived at NUPO Refugee camp THAILAND in 1997 with my family of 4 members. 2 Siblings were born in the refugee camp.
We stayed as refugees in the camp for 13 years.
We Resettled to Australia 26.08.2010 when my family was granted Permanent Residency. Since arriving in Australia, I Visited Nupo camp Thailand 2 times.
First in 06.12.2011 and returned to Australia 19.01.2012. Second in 20.04.2014 and returned to Australia 05.06.2014.
REPONSE TO 'KYAIK DON' VISIT
Although I was born in Kyaik Don, I was only about 6 years old when my whole family had to flee from the
Myanmar military attacking our village.
I have NEVER been back to Kyaik Don in Myanmar.
Kyaik Don is in country Myanmar, a Visa is required to enter Myanmar. I have never had a Visa to go there.
My Australian travel documents can be checked.
As I am not good at reading and writing English, a passenger friend helped to fill the card and he assumed I was coming from there.
RESPONSE TO ‘TS’
TS is NOT my biological sibling. He is my Brother-in-Law.
He assisted me to fill out my application forms and mistakenly put himself down as my brother.
Besides my 2 parents I am one of 4 sibling.

The Respondent accepted that:
(a)this is not a case where the Applicant has no reasonable prospects of success, in the sense that the Applicant may be able to file new evidence which was not before the original decision-maker.
(b)However, the Respondent contends that, as outlined above:
• the Applicant is able to lodge a fresh citizenship application, in support of which she is able to any further material upon which she wishes to rely; and
• for the purposes of these Tribunal proceedings, the Applicant’s extensive delay, and her failure to explain that delay, outweighs any other consideration, including the Tribunal’s assessment (on an impressionistic level) of the merits of the underlying application.
CONCLUSION
The Tribunal may, upon application in writing by a person, extend the time for the making an application to the Tribunal for a review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The Tribunal was satisfied that it would be reasonable in all the circumstances to grant this extension of time, in accordance with section 29(7) of the AAT Act.
Whilst the Tribunal is aware that the Applicant is significantly late in lodging her application for review, being almost two years after the reviewable decision was made, the Tribunal finds that the Applicant had a valid explanation for the delay, had not rested on her rights of which she was not aware, and had provided substantive reasons which indicated there is some prospect of success for her substantive claim.
Whilst the Tribunal notes that the Applicant and her husband gave conflicting advice about whether they had or had not contacted the Department after she received the rejection letter on 12 August 2020, it would appear they had over the years attempted to progress her citizenship application but had not found the Department helpful.
The Tribunal considers the Applicant’s explanation for the delay was reasonable. The Tribunal accepts that the Applicant had not failed to advance her case but had been stymied by the lockdown restrictions, her lack of English, lack of understanding of bureaucracy, limited educational opportunities, caring for her elderly father, family responsibilities including the birth of her child, and an inability to seek assistance or guidance on how to proceed.
The Tribunal considers the Applicant’s prospects of success are reasonable. The application brought before the Tribunal indicates that the Applicant can provide additional evidence which could resolve concerns about her identity. The Tribunal determined this demonstrates that her prospects of success could outweigh the significant, but acceptably explained delay. The Tribunal also took into account the length of time taken by the delegate to review the Applicant’s original application, which was lodged in June 2015. Consequently, the Tribunal does not consider that the Respondent, or the public, would be prejudiced if the extension of time was granted.
The Tribunal, as outlined by the Respondent, notes that the Applicant has other avenues by which she could seek redress, namely making a fresh application for citizenship, however given the significant delay and cost associated with pursuing a new claim for citizenship, the Tribunal does not consider this a reasonable avenue. This is particularly relevant given the Applicant waited some five years for the delegate to reject her application.
It was for these reasons that the Tribunal exercises its discretion under section 29(7) of the AAT Act.
DECISION
Pursuant to section 29(7) of the AAT Act and upon written application by the Applicant dated 27 July 2022, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 13 July 2022.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

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Associate
Dated: 6 September 2022

Dates of interlocutory hearing 24 August 2022

Applicant By Telephone

Advocate for the Respondent

Solicitors for the Respondent

Mr Ingmar Duldig, Lawyer

Clayton Utz

[2022] AATA 2896

24 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal