Grayson and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 3817
•4 November 2022
Grayson and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3817 (4 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/8144
Re:Nicola Simone Grayson
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:4 November 2022
Date of written reasons: 14 November 2022
Place:Sydney
For the reasons given orally at the conclusion of the interlocutory hearing, the application for an extension of time is refused.
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Chris Puplick AM, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application for an extension of time – refusal of citizenship by conferral – cogent reasons for delay – applicant did not rest on their rights – no prejudice to a respondent – no merits or reasonable prospects of success – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) ss 21, 22
Cases
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Dolan and Comcare [1993] 29 ALD 887
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Pohahau v Minister for Home Affairs [2019] FCA 1243
Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SPWX v Secretary, Department of Social Services [2020] AATA 3883
Zizza v Federal Commissioner of Taxation [1999] 55 ALD 451
REASONS FOR DECISION
Chris Puplick AM, Senior Member
14 November 2022
The application
Mrs Nicola Grayson (the Applicant) is, by way of an application lodged on 5 October 2022, seeking an extension of time (EOT) to lodge an appeal against a decision by a Delegate of the Minister (the Respondent) rejecting her application for citizenship by conferral. The Applicant has asked to be allowed to lodge such an application up to the date of 1 January 2023.
The reviewable decision
The decision of the Delegate was made on 7 April 2020.
The basis for the Delegate’s decision was that the Applicant did not satisfy the requirements of subsection 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
That subsection provides that in order to be eligible for citizenship an applicant:
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;
The general residence requirement is set out in section 22 of the Act:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
The Applicant does not satisfy these requirements given that:
(a)the Applicant was granted a subclass 100 (Partner) visa on 14 December 2018 and became a permanent resident of Australia upon her arrival on 13 May 2019;
(b)the Applicant lodged her application for citizenship on 16 September 2019; and
(c)four years prior the Applicant was not present in Australia and did not hold an Australian visa in effect that had been used previously to enter the country.
I add for the sake of completeness that there is no suggestion the Applicant was ever an unlawful non-citizen in Australia.
Subsection 21(2) of the Act provides some exceptions in relation to special residence requirements and defence service requirements but none of these is applicable to this Applicant.
There is also a provision in subsection 22(9) which allows for Ministerial waiver of residency requirements for a spouse, de facto partner or surviving spouse of an Australian citizen and the Applicant has sought to advance her claim by seeking to enliven operation of this power. The Tribunal understands that the Applicant became a permanent resident in May 2019 but that her husband (Lance) died in September of that year, leaving her with three small children (born 2013, 2015 and 2018).
This matter was considered by the Delegate in their decision, but they rightly found that that the discretion could not be enlivened because it does not allow for the waiver of the four-year residence requirement based on the information known about the Applicant’s absence from Australia.
Extension of time principles
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.
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] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.
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.
[2] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and thus 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 a respondent caused by the delay;
·whether any other person 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.
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;[3]
·“[i]f 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”;[4]and
·considerations of “the availability of alternative avenues of relief should the original EOT not be granted”.[5]
[3] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]; Zizza v Federal Commissioner of Taxation [1999] 55 ALD 451 at 465.
[4] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[5] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether an extension of time may be granted, although the Full Federal Court in Singh made it clear that “the length of delay is a relevant factor”.[6]
[6] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
“In many cases an extension of 1 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.” [7]
[7] Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412 at [16]; Dolan and Comcare [1993] 29 ALD 887 at [888].
In Roberts with just one day’s delay the extension of time was refused whereas in Berkelaar, where the time delay was five years, an extension of time was granted.[8] In 2020 the Tribunal saw fit to grant an extension of time to an applicant who had lodged her request well in excess of eight years after the reviewable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sought to be considered in a review are also of importance.”[9]
[8] Berkelaar and Comcare [1997] AATA 12015.
[9] SPWX v Secretary, Department of Social Services [2020] AATA 3883 at [49].
Reasons and Merit
In effect, the two most critical elements for the Tribunal to consider in an EOT application are usually whether a reasonable explanation exists for the delay, (although “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given”)[10] and whether the application has a reasonable expectation of being successful upon proceeding to a full merits-based review.
[10] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
The question of how to adjudge the latter point was set out by Wigney J in the following terms:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level… into a fuller consideration of the arguments for and against each ground of review.[11]
[11] Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]. Citations omitted.
Although the Respondent has advanced the argument that the Respondent would be prejudiced by the Tribunal granting an extension of time, the Tribunal does not accept this point is made out.
The only issues here are:
(a)was there a good reason for the application being late; and
(b)if it were allowed to proceed would it have reasonable prospects of success.
If not, it would be an impermissible waste of everyone’s time and resources to allow it to remain on foot.
The decision was given on 7 April 2020 and in the notification letter sent to the Applicant on that date it was made clear, in writing, that should she wish to challenge that decision in this Tribunal she had to do so within a period of 28 days.[12] That date would have been 5 May 2020. The Applicant made her current application on 5 October 2022 and is seeking to extend the time for making her formal review application to 1 January 2023.
[12] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
That would mean that the application would be 971 days out of time.
As to whether there was a cogent reason for the delay, the Applicant argues that it would have been unproductive for her to have lodged an appeal against the Delegate’s decision within the 28-day period as she was resident in South Africa at the time.
Subsection 24(5) of the Act is unambiguously clear in that it provides
[t]he Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia. (emphasis added)
In this respect, the Applicant’s failure to lodge a timely appeal which she knew was bound to fail was a rational and reasonable decision and an adequate explanation for that particular failure.
Once the 28 days have passed it probably matters little if the delay was one day or 971. As a matter of fact, the Applicant returned to Australia on 28 November 2021 and lodged her application on 5 October 2022. Once again this is a significant delay.
The Applicant says that she appreciated that she had not lodged her application in time due to her offshore status and that she planned to lodge an entirely new application but that by chance she saw on the website that she could approach the Tribunal for an extension of time.
The Tribunal is prepared to extend some leniency in this respect given that the Applicant was a widow returning to Australia with three small children and must have faced considerable pressures managing their resettlement. It is therefore prepared to accept that there was a reasonable explanation for the delay.
In this respect the Tribunal finds that the Applicant did not “rest on her rights” but indeed was active in pursuit of her claim once she had returned to Australia and accepted that she had to be onshore for her claim to have any chance of successful consideration.
Similarly, despite the claims of the Respondent, the Tribunal does not find that the Minister would suffer any significant prejudice, nor that other members of the public would suffer prejudice or disadvantage were this application to go forward. No cogent evidence has been provided to support such claims.
As to the merits of the substantial case, the provisions of the Citizenship Act are clear, and they impose residential time requirements in relation to applications for citizenship. Unless an applicant is otherwise excused by other provisions of the Act from compliance with these requirements – which this applicant is not – they must be observed and cannot be set aside or ignored.
The Respondent states that:
The applicant cannot satisfy paragraph 22(1)(a) of the Act. The applicant's movement records indicate that in the four years preceding her application, the applicant was only present in Australia for the period between 13 May 2019 and 20 May 2019. Out of the four year period, the applicant was offshore for 1,454 days, therefore exceeding the total allowable period of absences (12 months) for the purposes of paragraph 22(1)(a) permitted by 22(1A) of the Act.
Clearly, were this matter to go forward to a substantive merits hearing, any decision-maker would be obliged by the clear provisions of the Act to reject it. It is thus apparent that it would not be in the interests of justice to allow the matter to proceed further.
The Applicant raised the issue that she and her late citizen husband had resided in Sydney for some two years at an earlier time (2001/2022) but unfortunately, at that time the Applicant held a temporary visa and was thus not a permanent resident as required by the Act. As a result, this period of time cannot be counted in her favour.
The Tribunal understands the Applicant’s heartfelt submission that she wishes to be an Australian citizen, that her late husband was and that her three sons living here with her are already citizens but cannot let this factor override its duty to give effect to the statutory requirements of legislation.
An extension of time to file this application is refused on the grounds that the substantive case has no merits or prospects of success.
Although this will no doubt be a great disappointment, but perhaps not a great surprise, to the Applicant and her family, the Tribunal notes that the Applicant, as a permanent resident, will suffer no substantial disadvantage as a result, apart from perhaps being denied the right to vote in elections. She will still be able to travel outside Australia provided this is not for periods of time beyond those prescribed in the Act to keep any further application alive, and she will be eligible to apply for citizenship, with the necessary residential qualifications as of 28 November 2024.
There is no apparent reason that this application would not be successful, and Australia would be able to welcome another worthy new citizen to its ranks. However, the Applicant must wait until that date and hopefully will not let it pass.
Decision
The application for an extension of time is refused.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 14 November 2022
Date(s) of hearing: 4 November 2022 Applicant: In person Solicitors for the Respondent: Ms J Strugnell, MinterEllison
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