Johnson and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 93
•27 January 2023
Johnson and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 93 (27 January 2023)
Division:GENERAL DIVISION
File Number: 2022/8200
Re:Ashley Ross Johnson
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Boyle
Date:27 January 2023
Place:Perth
The applicant’s application pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to extend the time for the making of an application to the Tribunal for review of the decision of the delegate of the Minister dated 10 September 2020 is refused.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
PRACTICE AND PROCEDURE – AAT Act s 29(7) – application to extend time for making of application to Tribunal – decision of delegate of Minister to cancel approval of applicant’s application for Australian citizenship under Citizenship Act s 25(2) – two-year delay in making application – delay in making application until beneficial change in applicant’s circumstances – prejudice to applicants that comply with time limits for making of applications – application to extend time for making of application to Tribunal for review of decision refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)
Australian Citizenship Act 2007 (Cth) ss 25, 25(2), 25(2)(b)(ii)
Cases
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 42 ATR 118
Comcare v A’Hearn (1993) 45 FCR 441; (1993) 119 ALR 85
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377; (2010) 115 ALD 566
Dix v Crimes Compensation Tribunal [1993] 1 VR 297; (1992) 28 ALD 565
Doyle v Chief of General Staff (1982) 4 ALD 636; (1982) 71 FLR 56
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
Mason and John Holland Pty Ltd [2018] AATA 415; (2018) 74 AAR 313
Wedesweiller v Cole (1983) 71 FLR 256; (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451
Secondary Materials
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020) [6.19]
REASONS FOR DECISION
Deputy President Boyle
27 January 2023
APPLICATION
The applicant has applied for an extension of time to make an application to the Tribunal for the review of a decision of a delegate of the respondent (Minister) dated 10 September 2020. That decision was to cancel the approval of the applicant’s application for Australian citizenship pursuant to s 25(2) of the Australian Citizenship Act 2007 (Cth) (Act). Specifically, the delegate was satisfied that the applicant was not likely to reside, or to continue to reside in Australia, or to maintain a close and continuing association with Australia.[1]
[1] Pursuant to s 25(2)(b)(ii) of the Act.
BACKGROUND
The following is taken from the Minister’s submissions filed on 22 December 2022. They are not disputed by the applicant.
The applicant first arrived in Australia on 6 October 2010 as the holder of a Working Holiday (subclass TX-417) visa.
The applicant lodged an application for Australian citizenship by conferral on 5 December 2017 and on 28 May 2019, the applicant’s application for Australian citizenship was approved.
The applicant was invited by City of Stirling local council to attend a citizenship ceremony on 26 June 2019. On 10 June 2019, the applicant emailed the Department of Home Affairs stating that he would not be able to attend the ceremony as he was not currently in Australia. The applicant inquired whether it would be possible to attend the ceremony at an offshore embassy. On 11 June 2019, the Department responded to the applicant’s email stating that offshore ceremonies would only be considered for urgent and emergency circumstances, and that generally, the applicant has 12 months from the date of approval to return to Australia to attend the ceremony.
The applicant did not attend the ceremony at the City of Stirling on 26 June 2019.
On 27 August 2019, the applicant emailed the Department to inquire what would constitute an emergency circumstance for an offshore ceremony and stated that his wife was pregnant. On 29 August 2019, the Department responded to that email stating that the applicant’s request for an offshore ceremony was not approved based on the circumstance provided, and that an offshore ceremony would only be provided in exceptional circumstances such as a serious illness that prevents travel. The applicant was again advised that he had 12 months from the date of approval in order to return to Australia to attend a ceremony.
The applicant was invited by the Department to attend a citizenship ceremony at the Department’s West Perth office on 19 October 2019. The applicant did not attend that ceremony.
On 4 March 2020, the Department emailed the applicant reminding him to attend an Australian citizenship ceremony in order to make the pledge of commitment within 12 months of the date of approval. This email asked the applicant to notify the Department whether he intended on attending a ceremony within 12 months of the date of approval.
On 17 March 2020, the applicant emailed the Department and stated that he had been invited by his local council to attend a ceremony on 6 May 2020. The applicant advised, however, that due to the implementation of the 14-day isolation restrictions as a result of the COVID-19 pandemic, he was not able to attend the ceremony.
The Department responded to the applicant’s email on 18 March 2020, stating that in most cases, the invitation to attend a ceremony is sent three to five weeks prior to the date of the ceremony in order to allow an applicant for citizenship time to arrange to be at the ceremony. This correspondence also stated that if the applicant did not attend a ceremony within 12 months of the date of approval of his application for Australia citizenship, the approval may be cancelled. The applicant responded to the Department’s email on 18 March 2020, inquiring about how the restrictions placed on travel to Australia would impact citizenship ceremonies. The applicant referenced his caring responsibilities for his newborn child and that he may have been able to attend a ceremony on 6 May 2020 by breaching the 14-day isolation requirement. On 6 April 2020 the Department responded to the applicant’s email, stating that the Departmental records indicated that the applicant had spent a considerable period of time outside of Australia. The Department further advised that it would send further correspondence regarding the likelihood of the applicant residing in Australia or maintaining a close and continuing association with Australia. On 6 April 2020, the applicant responded to the Department’s email outlining his reasons for being outside Australia.
On 6 April 2020, the Department sent correspondence to the applicant advising him of its intention to consider cancelling the applicant’s approval of Australian citizenship. The applicant responded to that correspondence on 16 April 2020 and provided further information to the Department on 16 July 2020.
On 10 September 2020, a delegate decided to cancel the approval of the applicant’s application for Australian citizenship pursuant to s 25(2) of the Act. Specifically, the delegate was, for the purposes of s 25(2)(b)(ii) of the Act, satisfied that the applicant was not likely to reside, or to continue to reside in Australia, or to maintain a close and continuing association with Australia.
On 6 October 2022, the applicant applied to the Administrative Appeals Tribunal for an extension of time to make an application for review of the delegate’s decision. On 29 November 2022, the applicant filed evidence and submissions in support of his application for an extension of time.
THE HEARING
The application for an extension of time was heard on 19 January 2023. The applicant represented himself and the Minister was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers. Both parties filed written submissions.
THE LAW
Section 25 of the Act relevantly provides:
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; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2)The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i)not a permanent resident; or
(ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii)not of good character.
…
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review must be lodged within 28 days of the person receiving notice of the decision.
Section 29(7) of the AAT Act provides:
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 case most often cited as setting out the relevant considerations for an extension of time to make an application for review is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[2] As noted by Dennis Pearce in Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020) at [6.19]:
The factors enunciated by Wilcox J in [Hunter Valley] form the basis for consideration of most applications and ... will almost certainly continue to be the starting point of most decisions.
[2] (1984) 3 FCR 344.
I accept the principles set out in Hunter Valley and the cases that have followed that approach to be applicable to this matter.[3]
[3] See also Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 42 ATR 118.
In Hunter Valley, Wilcox J at [348] pointed out that “[t]he prescribed period of twenty-eight days is not to be ignored ... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...”. In Brown, Hill J stated, at [59], that in the taxation context, the Tribunal should be “... guided by what the justice of the case requires”. In determining the question of whether an extension of time should be granted, the Tribunal should weigh together all relevant factors.[4]
[4] Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451 (per Katz J).
In DHLD and Executive Director, Social Security Appeals Tribunal[5] at [11] and [37]–[49], Deputy President Forgie provided a thorough and helpful review of the relevant authorities.
[5] [2010] AATA 377; (2010) 115 ALD 566.
The authorities establish that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. No one consideration has precedence or is, in itself, determinative. The factors include:
(a)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.[6]
(b)It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition.[7]
(c)Action taken by the applicant other than by making an application to a court (or in this case, the Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised.[8]
(d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.[9]
(e)The mere absence of prejudice is not sufficient to justify the grant of an extension of time.[10]
(f)The merits of the substantial application are properly to be considered in assessing whether an extension of time should be granted.[11]
(g)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s (or tribunal’s) discretion.[12]
[6] Lucic v Nolan (1982) 45 ALR 411.
[7] Comcare v A’Hearn (1993) 45 FCR 441; (1993) 119 ALR 85; Dix v Crimes Compensation Tribunal [1993] 1 VR 297; (1992) 28 ALD 565.
[8] Doyle v Chief of General Staff (1982) 4 ALD 636; (1982) 71 FLR 56 at 287.
[9] Doyle at 287 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.
[10] Lucic at 416.
[11] Lucic at 417.
[12] Wedesweiller v Cole (1983) 71 FLR 256; (1983) 47 ALR 528.
In paras [40]–[44] of her decision in DHLD, Deputy President Forgie sets out a more detailed review of the cases dealing with the relevance of the apparent strength of the substantive claim. The Deputy President cites the comment made by the Full Court of the Federal Court in Federal Commissioner of Taxation v Brown[13] at [28]:
We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.
CONSIDERATION
[13] Federal Commissioner of Taxation v Brown [1999] FCA 1198; (1999) 99 ATC 4852.
The delay
The applicant was notified of the delegate’s decision on 10 September 2020. The applicant was therefore required, pursuant to s 29(2) of the AAT Act, to file an application for review by 8 October 2020.
The applicant did not file an application for an extension of time until 6 October 2022 which is 728 days (or two years) out of time.
In his submissions filed on 29 November 2022, the applicant explained his delay in making the application for review as follows:
·He planned to return to Australia to attend the citizenship ceremony, however, on 6 May 2020 his flight from the United Kingdom was cancelled due to the COVID-19 pandemic.
·The applicant says that he received notification of the decision to cancel approval of his citizenship application on 10 September 2021. He stated that at that time he was prioritising his family’s needs while dealing with the stresses and hardships caused by the pandemic. He particularises the stresses and hardships as follows:
oI was one of the primary care providers of our first child (18 months old at the time) (see attachment 4 – Birth Certificate: Matilda Johnson).
oMy wife was heavily pregnant at the time the ‘Notification of the decision to cancel the approval of your application for Australian citizenship’ correspondence was sent.
oOne month later our second child was born 11/10/2021 (see attachment 5 – Birth Certificate: Sabrina Johnson).
oOngoing support of my mother – liquidating assets and aiding the purchase of her new home.
There is a fundamental problem with the above explanation. The applicant received notification of the decision to cancel the approval on 10 September 2020, not 10 September 2021. The notification letter (attached to the application lodged with the Tribunal) is dated 10 September 2020. The application for review lodged by the applicant nominated the date that he received notification of the decision as being 10 September 2020. The applicant’s second child was born on 11 October 2021.[14] That was 13 months, not one month, after the applicant says that he received the decision.
[14] The birth certificate was attachment 5 to the applicant’s submissions.
The applicant’s submissions then outlined how, on 29 December 2022,[15] he and his family returned to Australia and how he now has full-time employment and is living with his family in the South West of Western Australia. The applicant filed copies of various documents including a tenancy agreement for a property in the South West (tenancy commencing on 1 March 2022) and two employment contracts. At the hearing the applicant advised that, while he had initially been employed by a mining technology company as a mechanical design engineer from February 2022, since May 2022 he has been employed by a different company as a mechanical engineer. The applicant further advised at the hearing that, in effect, he and his family had come back to Australia as soon as they were able to, following the opening of the borders (both Australian and Western Australian) after the COVID-19 travel restrictions ceased.
[15] I assume that the applicant intended to refer to 29 December 2021.
The difficulty with the above explanation (even assuming that the applicant got the year wrong) is that, while it may explain why he did not make the application within the 28 days from his receiving the letter advising of the decision in October 2020 and why it took until December 2021 for the applicant and his family to get into Australia and until February 2022 to start full-time employment and residing in Western Australia, it does not provide an explanation for the two-year delay between 8 October 2020 and 6 October 2022 for the making of the application to the Tribunal. It is that delay that is relevant to the present application for an extension of time.
In the reasons for applying for an extension of time section of the application for review lodged by the applicant on 6 October 2022, the applicant advised:
Unfortunately I did not apply for extension of time within the time limit due to multiple reasons:
1. Situation outlined within the statutory deceleration had not yet occurred, I explained how I was returning to Australia to live and work full time. I wanted to prove this was the case. I now live with my wife and two daughters in Dunsborough WA and work for a mining company near Yalgoo 29 Metals.
2. Due to the pandemic the priority was to ensure appropriate precautions were taken to protect my family, the extension of time request was not at the forefront of priorities.
3. Expecting the birth of my 2nd daughter. Once again more stress, preparations being made and care of my wife and eldest daughter.
The above reasons for not making the application within the required time have the same factual issue as the explanation in the applicant’s submissions in that they proceed on the incorrect premise that the notice of the decision was received in September 2021, not September 2020. Further, it suggests that the applicant made a deliberate choice not to make the application for review until circumstances had changed, specifically, to delay making the application until he was in a position to demonstrate that what he said would happen, had actually happened. In other words, it was a deliberate choice not to make the application for some two years after the date when it should have been made.
The applicant confirmed at the hearing that he understood from the time of the receipt of the letter in October 2020 that an application to the Tribunal for review had to be made within 28 days. It may be that at the time of receipt of the letter in October 2020, and for some period thereafter, the applicant had what he considered to be more pressing priorities. However, the explanations provided by the applicant in his submissions and in the application lodged with the Tribunal are factually wrong and do not raise any reason that would have prevented the applicant from making the application. The applicant simply chose not to make the application for some two years after he knew the application had to be made.
In summary, the explanation for the delay provide by the applicant is factually wrong and, in any event, even if I were to overlook the factual errors, does not explain a delay of two years. It appears, based on the reasons given by the applicant as set out in [31] above, that it was a deliberate choice of the applicant to delay two years in making the application.
Prejudice
The Minister conceded[16] that there is no particular prejudice to the Minister “outside of the public interest in the finality of decisions”. In making that observation the Minister referred to [31] of Mason and John Holland Pty Ltd[17] in which I observed:
Further, the Applicant fails to address at all the public interest prejudice that is caused in the administration of justice by parties such as the Applicant simply ignoring legislative timeframes. In this regard the Tribunal notes the obvious and accepted public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of the Commonwealth Employees [1990] AATA 1).
[16] Minister’s submissions filed 20 December 2022 para 33.
[17] [2018] AATA 415; (2018) 74 AAR 313.
As noted by the Court at 416 of Lucic, the very existence of time limits for the filing of applications is a reflection of the public interest in finality in government decision-making.
I am also mindful of the need for there to be fairness between applicants. While I understand the applicant’s strategic logic in delaying making an application until the factual matrix is more supportive, it would be inequitable to other applicants who make applications within the time required if the applicant were to gain an advantage by deliberately delaying in making an application, particularly where the delay is two years.
As the Minister also points out, there would be no prejudice, or at least no lasting prejudice, to the applicant if the extension of time is not granted because he can simply make a fresh application for citizenship. Further, in the present case, it is appropriate that the applicant makes a new application for citizenship as the circumstances that were current at the time of his previous application and at the time of the cancellation of the approval have now changed. The department has not had the opportunity to make a determination based on the circumstances as they presently exist.
The merits of the substantial application
The Tribunal is not required to undertake a substantive review of the merits of the application but rather should assess whether the applicant has an arguable case. In Brown Hill J at [56] stated:
... For present purposes I am prepared to accept the view of von Doussa J in Windshuttle that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.
It could not be said that the applicant’s substantive claim is one that is, on its face, frivolous, bound to fail or would be futile. As Hill J noted, the threshold is a low one and in the present case I accept that the applicant’s case, as a minimum, is arguable and meets that threshold.
CONCLUSION
In the present case, while the applicant’s substantive claim is one that is certainly arguable, the length of the delay (two years) and the lack of a reasonable excuse for the delay are such that I am not satisfied that it is reasonable, in all the circumstances, to extend the time for the making of the application. It is significant that in the present case, the applicant failed to provide a reasonable excuse for what is a very considerable delay. Further, the evidence (and the applicant’s own submissions) tend to indicate that the applicant made a choice to delay making the application until the circumstances better suited his case. To reward that deliberate choice not to comply with a time limit would be unfair to other applicants who comply with such time limits and would be contrary to the public interest.
Decision
The applicant’s application pursuant to s 29(7) of the AAT Act to extend the time for the making of an application to the Tribunal for review of the decision of the delegate of the Minister dated 10 September 2020 is refused.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 27 January 2023
Date of hearing: 19 January 2023 Applicant: In person Counsel for the Respondent: Ms D Jones-Bolla Solicitors for the Respondent: Sparke Helmore Lawyers
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