Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1629
•7 June 2021
Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1629 (7 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2710
Re:Ahmed Hassan
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:7 June 2021
Date of written reasons: 7 June 2021
Place:Brisbane
The application for an extension of time is refused.
…........................[sgd]..........................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time – factors that are relevant when considering an application for extension of time – length of delay – explanation for the delay – merits of the substantive application for review – alternative avenues for relief available – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Citizenship Act 2007 (Cth)
Electronic Transactions Act 1999 (Cth)
CASES
Hamdan and Minister for Immigration and Border Protection [2019] AATA 228
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Johnson and Minister for Home Affairs [2018] AATA 3469
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828Zizza v Federal Commissioner of Taxation [1999] FCA 37
SECONDARY MATERIALS
DECISION
REASONS FOR DECISION
INTRODUCTION
RELEVANT BACKGROUND AND THE CURRENT STATE OF THE APPLICATION (MATTER NUMBER 2021/2710)
IS THE APPLICANT ENTITLED TO AN EXTENSION OF TIME?
What is the extent of the delay?
What is the Applicant’s explanation for the delay?
Does any prejudice arise to the Respondent or the general public from granting the request to extend time?
What are the merits of the substantive application for review and do they warrant an extension of time?
Are there any alternative avenues for relief for the Applicant if the extension of time is refused?
Conclusions
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
7 June 2021
INTRODUCTION
At issue before the Tribunal is an application for the extension of time to file an application with this Tribunal. For reasons which follow, I will find that it is not reasonable, in all the circumstances, for the requested extension of time to be granted.
The applicable legal principles will be ventilated later in these reasons. For instant purposes, it suffices to say that the relevant componentry of those legal principles relevantly engaged for refusal of extending the time can be summarised thus:
(a)there a very significant delay in the Applicant making the relevant application (matter 2021/2710);
(b)his explanation for that very significant delay cannot, on any reasonable view, be found to be reasonable or satisfactory;
(c)while the Applicant has failed to successfully sit the necessary citizenship test, the merits of the application, were the extension of time to be granted, are low and otherwise unconvincing; and
(d)an adequate and satisfactory alternate avenue is open to the Applicant. He can make a fresh and further application for citizenship at any time. This alternate avenue would cure the existing defects inherent in the current application.
RELEVANT BACKGROUND AND THE CURRENT STATE OF THE APPLICATION (MATTER NUMBER 2021/2710)
The Respondent’s department received the subject application for citizenship by conferral on 19 June 2018. The application proceeded through the usual investigatory and assessment channels and was eventually refused by a delegate of the Respondent on 2 May 2019. In accordance with the usual procedure, the subject decision and accompanying notification letter was forwarded to the Applicant at his nominated email address, “hassanel******@gmail.com”.[1] This was the email address that appeared in the Applicant’s application for Australian citizenship. It was the same email address to which he had been invited on various occasions to attend necessary and mandatory citizenship test appointments.
[1] This email address is partially redacted to protect the Applicant’s privacy.
The Applicant was not successful in his application for Australian citizenship. At the core of this absence of success was the Applicant’s failure to meet the requirements of ss 21(2)(e)–(f) of the Citizenship Act 2007 (Cth) (“Citizenship Act”):
“(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
…:”
The essentiality of satisfying the abovementioned components of the Citizenship Act is enshrined in s 21(2A) of the Act which relevantly provides as follows:
“(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.”
The delegate’s decision records the various occasions on which the Applicant unsuccessfully undertook the necessary testing regime. Those occasions comprise:
(a)on 8 November 2018 at 3:30pm, the Applicant attended the duly made appointment. Due to an insufficiency of identification documents for admission to the test, the testing procedure was not able to proceed on that day and was re-scheduled for 15 November 2018 at 12:00pm;
(b)on 15 November 2018 the Applicant undertook the test and failed to pass it on three attempts. A fresh appointment was re-scheduled for 11 December 2018 at 12:00pm;
(c)on 11 December 2018, the Applicant undertook the test but again failed to pass it on three attempts. A further appointment was scheduled for 11 January 2019 at 3:30pm which was subsequently re-scheduled to 14 January 2019. On that latter day he again failed to pass the citizenship test on three attempts. A final appointment was scheduled for 6 February 2019 at 9:00am.
(d)on 6 February 2019, the Applicant again undertook the test but failed to pass it on three attempts.
The Application bearing matter number 2021/2710 is the result of an application for review made by the Applicant on 21 April 2021. This application is patently out of time and the determination for instant purposes involves whether or not an extension of time for the Applicant to ventilate matter 2021/2710 should be granted to him.
IS THE APPLICANT ENTITLED TO AN EXTENSION OF TIME?
Two sections of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) are of immediate relevance. They comprise, first, s 29(2A), which compels an applicant to lodge an application for review within 28 days after the day on which a document setting out the terms of the decision is given to them. Second, s 29(7) empowers the Tribunal extend the time for making an application if satisfied “that it is reasonable in all the circumstances to do so.”
There are relevant factors conditioning the Tribunal’s discretion as to whether or not an extension of time ought be granted. The principles which inform the discretion are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Johnson and Minister for Home Affairs [2018] AATA 3469. These cases make it clear that I must consider:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)any prejudice to the respondent or the general public arising from an extension of time;
(d)the merits of the substantive application for review; and
(e)any alternative avenues of relief for the applicant should the extension of time not be granted.
Zizza v Federal Commissioner of Taxation [1999] FCA 37 requires me to weigh together all relevant factors in determining whether or not to exercise the discretion. A “ranking” approach as to the weight afforded to each of the abovementioned five elements is to be avoided.
I will turn now to an assessment of each of the relevant principles.
What is the extent of the delay?
The delegate’s decision is dated 2 May 2019 and was forwarded to the Applicant’s nominated email address on that day. It is legislatively established that the time of receipt of an electronic communication such as an email for the purposes of a law of the Commonwealth (like, for example, the Citizenship Act) is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. This general rule applies unless otherwise agreed between the originator and addressee.[2] For the purposes of the instant application, I find that the day on which the Applicant’s decision was validly given to the Applicant was, in fact, 2 May 2019.
[2] Electronic Transactions Act 1999 (Cth) s 14A(1)(a).
It therefore follows that the Applicant was required to file an application for review (ie this proceeding numbered 2021/2710) on 30 May 2019 in order to safely comply with s 29(2) of the AAT Act. What in fact occurred was that the application now bearing number 2021/2710 was not filed or lodged with the Tribunal until 21 April 2021. This is some 23 months outside the statutory time limit for the applicant to do so.
I am of the view, and I find, that the delay in making an application to this Tribunal for review of the delegate’s decision made on 2 May 2019 is, to adopt of the words of the Respondent, “extreme” and, as a consequence, weighs heavily against granting an extension of time.
What is the Applicant’s explanation for the delay?
The Applicant contends that he was simply not aware of the delegate’s decision made on and communicated to him on 2 May 2019. He further contends that the first he knew of this decision was after he received the results of a freedom of information request made in early 2021. The explanation revolves around an apparent issue with him not being able to recall the password necessary to gain electronic access to his email account to which the relevant decision of the delegate was dispatched. The explanation runs thus:
“The reason for this was I set up my original email simply for administrative use. Citizenship correspondence was directed to that. I forgot the password and could not regain access, and hence had to set up a new email address in October/ November 2020. I was advised to make a Freedom Of Information Request to obtain a re-send of an email inviting me to a 4th exam date, as I could not retrieve it from the old email address.”
There is a further, and to my mind unsustainable, contention put on behalf of the Applicant about whether or not he attended at least two of the scheduled testing appointments on 14 January and 6 February 2019. While not impacting on the outcome of the instant application (for extension of time) it suffices to say that short of anything more compelling from the Applicant than that he simply did not attend those appointments, this contention should be rejected.
To the extent any “explanation” is now sought to be propounded by the Applicant on the basis of him securing a new email address in October or November 2020, such purported explanation must be rejected. October/November 2020 is still 18 months after 2 May 2019 when the delegate’s decision was made. The setting up of a new email address 18 months after 2 May 2019 goes nowhere near satisfactorily explaining the extreme 23 month delay in lodging the application now bearing matter number 2021/2710.
Does any prejudice arise to the Respondent or the general public from granting the request to extend time?
The Respondent rightly contends that it would suffer no prejudice upon the granting of an extension of time. To the best of my recollection, the Respondent’s representative extended the ambit of this contention to include the general public in terms of any party or parties that could be prejudiced by the relevant time being extended.
That said, it is well-established that the absence of prejudice is not, of itself, a reason to grant the requested extension. Ultimately, this component of the relevant test is not material to determination of whether the time should be extended.
What are the merits of the substantive application for review and do they warrant an extension of time?
The Applicant has repeatedly failed to pass the citizenship test. As a consequence, he has repeatedly failed to meet the mandatory abovementioned criteria contained in s 21(2)(e)–(f) of the Citizenship Act. Those criteria are mandatory because it is well-established that an applicant can only be found to have satisfied those provisions “if and only if” the citizenship test has been successfully completed. There is no residual discretion to grant citizenship without meeting those criteria.[3]
[3] See Hamdan and Minister for Immigration and Border Protection [2019] AATA 228, [13].
As best as I recall the parties’[4] mutual positions at this morning’s interlocutory hearing of the application for an extension of time, it was not in contest that the Applicant had not successfully passed the citizenship test. In these circumstances, the Applicant is confronted with, in my view, a fatal difficulty in achieving a successful outcome for the grant of Australian citizenship via the application bearing matter number 2021/2710.
[4] Ms Melinda Henry (lay-representative) appeared for the Applicant. The Respondent was represented by Mr David McLaren, Senior Associate, MinterEllison lawyers.
In accordance with its model litigant obligations, the Minister rightly said in written submissions that “it may be possible for the Tribunal to remit the matter […] with a direction that the applicant be allowed to sit a further test”. To my mind, such a course is not warranted in the circumstances of the instant case. Here, the Applicant has, on multiple occasions, failed the citizenship test. He has sat 12 tests, all unsuccessfully, across four days. There is no open-ended ability within an applicant in these circumstances to undertake further and repeated tests.[5]
[5] See Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 [37].
In all the circumstances, I will treat this factor as weighing very heavily in favour of refusing the grant of the extension of time.
Are there any alternative avenues for relief for the Applicant if the extension of time is refused?
If I refuse this application for an extension of time, it is open to the Applicant to re-apply for citizenship at any time. This will be an entirely fresh application and will not be conditioned or otherwise influenced by the results of the outcome of matter 2021/2710. As part of a fresh application, he will re-sit the citizenship test and subject to him successfully passing it, the fresh application could proceed further.
The Tribunal appreciates there is a material cost factor – in terms of an application fee – arising from the lodgement of a fresh application with the Respondent department.[6] However, this is a relatively small price to pay for the certainty of a valid and live fresh application, uninfluenced by the outcome of matter number 2021/2710.
[6] Currently $285. See 1298i - Citizenship fees (homeaffairs.gov.au).
This factor therefore weighs against granting the extension of time.
Conclusions
I consider that (1) the sheer extent of the delay; (2) the unconvincing explanation for the delay; (3) the unmeritorious nature of application 2021/2710; and (4) the fact the Applicant can re-apply for citizenship, all cumulatively and determinatively, weigh in favour of a finding that it is not reasonable, in all the circumstances, to grant the extension of time sought by the Applicant.
DECISION
This application for an extension of time is refused.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 7 June 2021
Date(s) of hearing: 7 June 2021 Advocate for the Applicant: Ms Melinda Henry Solicitors for the Applicant: Lay-representative Advocate for the Respondent: Mr David McLaren Solicitors for the Respondent: MinterEllison
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