Karimi and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 276
•10 February 2025
Karimi and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 276 (10 February 2025)
Applicant/s: Is'haq Ali Karimi
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7134
Tribunal:General Member J Papalia
Place:Perth
Date:10 February 2025
Date of written reasons: 13 February 2025
Decision:The Tribunal dismisses the application for an extension of time.
Statement made on 13 February 2025 at 11:57am
........................................................................
General Member J Papalia
Catchwords
CITIZENSHIP – Conferral approval – extension of time request – where 11 months out of time – explanation for delay – substantive merit – concurrent applications – extension of time refused.
Legislation
Acts Interpretation Act 1901 (Cth), s 29(1)
Administrative Appeals Tribunal Act 1975 (Cth) (repealed), ss 29(2), 29(7)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 19(2)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16 Item 24
Australian Citizenship Act 2007 (Cth), ss 21(1), 21(2)(h), 21(4)(f), 24(1), 47, 52(1)(b)
Australian Citizenship Regulation 2016 (Cth), reg 18
Cases
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Comcare v A’Hearn (1993) 119 ALR 85
Comcare v Grimes (1994) 50 FCR 60; (1994) 33 ALD 548
Healy v Deputy Commissioner of Taxation [2015] WASCA 44; (2015) 320 ALR 371
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Kabamba v Administrative Appeals Tribunal [2024] FCA 514
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67;(2000) 177 ALR 491
Re Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310; (2015) 148 ALD 162
RePetrou and Australian Postal Corporation [1992] AATA 26; (1992) 25 ALD 407
Re Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 206
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Secondary Material
Australia Post, ‘Calculate Postage’, Australia Post (Web Page) Melbourne Vic 3000 to Shepparton Vic 3630 < align="center">Statement of Reasons
By application dated 9 September 2024,[1] the Applicant seeks review of the Minister’s refusal to approve him becoming an Australian citizen under s 24(1) of the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’). For the application to be valid, he requires an extension of time to seek that review, because the application was filed some 11 months after the prescribed period. For the following reasons, the Tribunal has determined that the extension of time is not reasonable in all of the circumstances.
[1] Exhibit R1, filed by the Respondent on 7 February 2025 (Tender Bundle), p 4.
BACKGROUND AND LEGAL PRINCIPLES
The Applicant is a 69-year-old permanent resident.[2]
[2] Exhibit R1, p 12.
On 12 May 2016, he made application to the Minister to become an Australian citizen under s 21(1) of the Citizenship Act.[3]
[3] Exhibit R1, pp 28-37.
The delegate refused to approve the Applicant becoming an Australian citizen on 6 September 2023 because she was not satisfied that he met the character requirements found in s 21(2)(h) of the Citizenship Act because he had failed to provide an overseas penal clearance as requested by the delegate.[4]
[4] Exhibit R1, pp 14-5, 17.
The Tribunal notes that the Applicant is over 60 years of age and that the character requirement is relevantly found in s 21(4)(f) of the Citizenship Act rather than s 21(2)(h) of the Act. However, they are materially the same criterion.
The Applicant provided the Minister’s Department with a letter from the Consulate General of Pakistan, Melbourne, dated 20 July 2022, where a consular official confirms that the Applicant had applied for a “Police Character Certificate” on that date and would be informed when it was received by the consulate from the relevant authorities in Pakistan.[5]
[5] Exhibit R1, p 77.
The Applicant also provided a statutory declaration regarding his criminal history and a notarised declaration regarding the same, sworn in Pakistan on 29 November 2021.[6]
[6] Exhibit R1, p 62.
The Applicant was notified of the adverse decision made by the delegate (including by being provided with reasons for decision) by prepaid post sent on 6 September 2023 to the last address given to the Department.[7] This was a method authorised by the Citizenship Act and the Australian Citizenship Regulation 2016 (Cth) (‘Regulations’).
[7] Exhibit R1, pp 9-20.
Section 47 of the Citizenship Act provides that the Minister must ‘give’ an applicant notice of the decision, including written reasons for an adverse decision, in a manner prescribed by the Regulations. The Regulations relevantly prescribe ‘prepaid post to the last address given to the Department’ as one of the methods that the Minister may give that notice.[8]
[8] Regulations reg 18.
The general deeming provisions regarding service of documents by post under federal legislation was summarised by the Court of Appeal in Healy v Deputy Commissioner of Taxation [2015] WASCA 44; (2015) 320 ALR 371. Relevantly:
(a)Buss JA observed at [65] that:
Section 29(1) of the Acts Interpretation Act comprises two limbs. The first deems a document (which an Act authorises or requires to be served, including given or sent, by post) to have been served (including given or sent) if the conditions prescribed by the provision in relation to the posting of the document as a letter are satisfied. The second deems the document to have been served (including given) at the time at which the letter would have been delivered in the ordinary course of post, unless the contrary is proved. The onus of proving to the contrary, within the second limb, is upon the party against whom the deeming provision in that limb is invoked. (Original emphasis.)
(b)Murphy JA observed at [152] and [154] that:
First, a sound guide to the meaning of the words ‘ordinary course of post’ may be found in the judgment of Lord Esher (Davey LJ concurring) in Kemp v Wanklyn [1894] 1 QB 583:
The Post Office is the authority which, under its statutory powers, determines the ordinary course of the post – that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district (585).
…
Secondly, the ordinary course of post is a question of fact: Gusdote Pty Ltd v Ashley [2011] FCA 250; (2011) 193 FCR 227 [54]; Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 [38]; Kudeweh [v T & J Kelleher Builders Pty Ltd [1990] VR 701, 709].
Accordingly, notice was taken to have been given to the Applicant under s 47 of the Citizenship Act at the time at which the Department’s letter with annexed reasons for decision would have been delivered in the ordinary course of post.[9]
[9] Acts Interpretation Act 1901 (Cth), s 29(1).
Australia Post provide an estimate for regular domestic letter services between Melbourne and Shepparton of between 4-5 business days.[10]
[10] Australia Post, ‘Calculate Postage’, Australia Post (Web Page) Melbourne Vic 3000 to Shepparton Vic 3630 <>
The Applicant was therefore taken to have been notified by 13 September 2023.
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) (repealed) required that any application for review of the delegate’s decision under s 52(1)(b) of the Citizenship Act be made to the Administrative Appeals Tribunal (AAT) within 28 days from notification. This means that any application for review needed to be lodged by 11 October 2023.
The Applicant sought an extension of time some 11 months later, on 9 September 2024.
On 11 October 2024, the Applicant made fresh application for conferral approval and included his 16-year-old daughter on that application.[11]
[11] See Exhibit R1, pp 97-123.
The AAT was abolished and replaced with this Tribunal on 14 October 2024.
Schedule 16 Item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) provides that:
1This item applies if a proceeding in the AAT is not finalised (however described) before [14 October 2024].
2The proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.
3For the purposes of subitem (2), the ART must have regard to the impact of the following on the parties to the proceeding:
(a)The repeal of the [AAT] Act;
(b)The enactment of the [ART] Act;
(c)The effect (including the operation) of this Act.
4The ART must, as far as possible, continue the proceeding under the [ART Act].
The power to extend time in s 29(7) of the AAT Act and s 19(2) of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) are relevantly identical. This discretion is unfettered except for the Tribunal’s satisfaction that an order extending time ‘is reasonable in all of the circumstances’.[12]
[12] See Comcare v Grimes (1994) 50 FCR 60; (1994) 33 ALD 548, 555.
Other than the requirement for ‘reason’,[13] there are no mandatory relevant considerations, save that the Tribunal must pursue its objectives found in s 9 of the ART Act.
[13] See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.
In the absence of mandatory considerations, the Tribunal is guided by the well-established principles guiding equivalent decisions made by the courts under other legislation stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.[14] These common factors include:
(a)the length of the delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application has merit.
[14] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, [13], [40].
An applicant for an extension of time has the positive burden of demonstrating that the circumstances of their matter requires the extension.[15]
[15] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (‘Brisbane South’), 553-4.
EVIDENCE
The Tribunal held an interlocutory hearing on 10 February 2025. The Applicant was self-represented and was assisted by a Dari interpreter. The Minister was represented by Mr Brown from the Australian Government Solicitor’s Office, Melbourne. All parties appeared by telephone. No witnesses were called.
During the hearing, the Applicant was asked where the outstanding penal clearance was. He gave vague and confusing evidence about this, to the effect that:
(a)he had provided one to the Minister’s Department which was found to be fake or not the original document;
(b)he did not know where the Pakistani Consulate-General in Melbourne was because he was illiterate; and
(c)he had followed up the outstanding clearance with the Consulate by email but lost this correspondence.
His explanation for the delay in bringing this application was that he was uneducated, and his children could not assist him.
The Respondent filed a tender bundle of relevant material, which was tendered at the interlocutory hearing (Exhibit 1), and opposed the extension on four bases:
(a)the delay;
(b)a separate application for conferral approval is on foot;
(c)the separate application was completed competently which suggests that the explanation for the delay is without foundation; and
(d)The substantive application has limited merit.
The Tribunal was satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an adequate opportunity to address it.
CONSIDERATION
Delay, the explanation for it, and prejudice
In Re Commonwealth of Australia; Ex parte Marks, McHugh J noted that a case ‘would need to be exceptional’ before the time for commencing proceedings was to be enlarged by 11 months.[16] His Honour also emphasised in Brisbane South that an applicant for an extension of time has the positive burden of demonstrating that the justice of the case requires the extension. This is because, where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’.[17]
[16] [2000] HCA 67;(2000) 177 ALR 491, [5], [13].
[17] Brisbane South, 553
The longer the delay in question, the more satisfactory the explanation for the delay needs to be.[18] However, there is no rule that an acceptable explanation for the delay must be given as an essential precondition to the exercise of the discretion to extend time.[19]
[18] Jess v Scott (1986) 12 FCR 187, 195.
[19] Comcare v A’Hearn (1993) 119 ALR 85, 88.
The Tribunal considers that a 11-month delay in this case is a reasonably lengthy period where there would need to be ‘exceptional’ circumstances justifying the extension.
During the hearing, the Applicant testified that he did not remember receiving the delegate’s decision because he was uneducated. He was asked about why it took so long for him to seek review or to bring the further application for conferral approval. He indicated that he wanted to obtain citizenship to sponsor his remaining family out from Pakistan, and that his children could not assist him to do so.
The Minister submitted that:
(a)there was not an adequate explanation;
(b)the Applicant had been given a considerable period of time in which to provide the requested penal clearance (over many years); and
(c)concurrent Tribunal proceedings with an application before the Department may cause unnecessary expenditure of public resources.
The Applicant was not able to articulate a convincing reason for the delay or the failure to follow-up with the Consulate at the hearing. The Tribunal accepts that the Applicant is a refugee, and that English is not his first language. However, the Applicant has travelled frequently to Pakistan to visit his family since 2012. He has been able to provide the Department with statutory declarations from both Australia and Pakistan regarding his criminal history. He has also attended the Consulate-General in Melbourne to apply for the penal clearance in July 2022. He clearly understands that this clearance was required for his application to progress. The failure to provide it is somewhat concerning.
The Applicant has separately made a fresh application for citizenship by conferral, including with his 16-year-old daughter. As Member Warner observed in Re Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘[T]he spirit of the Act provides an enduring right for the Applicant to apply again for Citizenship’.[20]
[20] [2021] AATA 206, [39].
The Applicant has availed himself of that right, and, as the Minister submits, this proceeding may therefore create unnecessary expenditure of public resources in circumstances where the Applicant has familial assistance in respect of the second application which is presently on foot.
Regarding prejudice, in RePetrou and Australian Postal Corporation,[21] Senior Member McGirr observed that:
… As Deputy President McMahon stated in El Salameh and Australian Postal Corporation (N91/209, 26 June 1991, unreported) at p 6 “Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of hearing, the more difficult it is to present meaningful evidence… Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension.”
….
As stated in Hunter Valley Developments case, it is not only prejudice between the parties which is relevant but the wider public interest. In Lucic's case at 416 Fitzgerald J said: “Other matters of proper public concern… include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds.”
This Tribunal is of the view that those matters are very pertinent as is the process of orderly administration. Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised. In circumstances where the respondent had had no communication from the applicant for over 2 years, the respondent ought to be entitled to consider the matter closed, except in the most unusual circumstances. No such circumstances have been disclosed in these proceedings.
[21] [1992] AATA 26; (1992) 25 ALD 407, [14]-[15].
The Tribunal agrees with those general statements of principle.
The delay in this case does not give rise to significant prejudice. So much was conceded by the Minister during the hearing.
However, the Applicant’s explanation for the outstanding penal clearance does suggest that any substantive proceedings in this Tribunal are likely to be protracted whilst the Applicant is encouraged to obtain and produce the outstanding penal clearance. In those circumstances, the Tribunal’s objectives in s 9 of the ART Act would be best served by not granting the extension of time because this would be separately done by the Department in the fresh application for citizenship by conferral.
Prospects of success
Ultimately, the question is whether the Tribunal would be satisfied that the Applicant is of good character at the date of the Tribunal’s decision. The principles governing that assessment were summarised by O’Sullivan J in Kabamba v Administrative Appeals Tribunal [2024] FCA 514, [18]-[22].
The delegate’s decision rests exclusively on the Applicant’s failure to provide evidence regarding his criminal record (if any) in Pakistan, where he resided for some months in each of the years 2012, 2013, 2014, 2015, 2017 and 2019.
The Tribunal accepts the general principle set out by Deputy President Nicholson in Re Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310; (2015) 148 ALD 162, [117], in the context of satisfaction of identity, that the failure to avail oneself of opportunities to secure evidence which might reasonably be expected to exist and which one has been advised to secure may be fatal to establishing a criterion to the satisfaction of the Tribunal.
In the particular circumstances of this case and having regarding to the Applicant’s explanation for why the clearance was outstanding (which was not convincing or coherent), the Tribunal agrees with the Minister’s submission that, at least on a reasonably impressionistic basis, there is limited merit in the Applicant’s case notwithstanding the absence of any known criminal record before the Tribunal which might detract from a positive finding of good character.
CONCLUSION
The limited merit and the extent of the delay are telling reasons not to grant the extension of time. The Tribunal is consequently not satisfied that the extension sought is reasonable. The application is therefore dismissed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of General Member Papalia
..........[SGD]..............................................................
Associate
Dated: 13 February 2025
Date of hearing: 10 February 2025 Applicant: Self-represented Solicitors for the Respondent: Mr D Brown, Australian Government Solicitor’s Office
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