Liu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Liu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1550 (27 May 2024)
Division:GENERAL DIVISION
File Number: 2024/2190
Re:Xiaoling Liu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:27 May 2024
Date of written reasons: 11 June 2024
Place:Melbourne

Not being satisfied that it is reasonable in all the circumstances to extend time, the Tribunal refuses to extend time under s 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant to lodge an application for review of the 30 January 2024 decision to refuse Australian citizenship by conferral.
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Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – where the applicant applied for citizenship by conferral – where the application was rejected – where the applicant advised of right of review to tribunal – where the applicant did not act – applicant found to have rested on her rights – where the tribunal considers application not meritless – open to applicant to make fresh citizenship application – where no special circumstances were advanced that prevented the applicant lodging application – where tribunal not satisfied extension of time reasonable in all the circumstances – extension of time refused
CITIZENSHIP – Australian citizenship by conferral – where delegate not satisfied applicant likely to reside, or continue to reside, in Australia or maintain close and continuing association with Australia – contentions of applicant – where tribunal considers applicant has arguable case – whether a person is resident not sufficient to found a conclusion that this criterion in Act is not satisfied – where applicant failed to respond to Department’s request for additional information – where delegate proceeded to reject application – conduct by Department administratively fair
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lin v Minister for Immigration and Citizenship [2009] FCA 494
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
11 June 2024
REASONS FOR DECISION
Senior Member D. J. Morris

Mrs Xiaoling Liu is a citizen of the People’s Republic of China and a permanent resident of Australia. On 26 October 2023, Mrs Liu applied for Australian citizenship by conferral, under s 21 of the Australian Citizenship Act 2007 (Cth)(‘the Act’).
The delegate of the Minister considering the application was satisfied of Mrs Liu’s identity. She also found that the Applicant was 18 years or older at the time of application (s 21(2)(a) of the Act); a permanent resident at the time of the application and the time of the decision (s 21(2)(b)); and that she satisfied the general residence requirement (s 21(2)(c)). The delegate did not assess whether Mrs Liu had successfully completed the citizenship test required under s 21(2A) of the Act.
A requirement for the conferral of Australian citizenship is that the Minister (or his delegate) must be satisfied under s 21(2)(g) of the Act that the person:
is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved;
On 22 November 2023, the delegate wrote to the Applicant requesting further information in relation to s 21(2)(g) of the Act, giving her 28 days to respond to the request. Mrs Liu did not respond. On 30 January 2024, the delegate decided to refuse Mrs Liu’s application for citizenship on the basis that the delegate was not satisfied Mrs Liu satisfied s 21(2)(g) of the Act.
The delegate sent a letter to Mrs Liu on 30 January 2024 advising of the rejection decision, setting out rights of review, and appending a copy of the decision record of the same date.
On 1 April 2024, Mrs Liu applied for review by the Tribunal. In her application, she noted that her application was outside the statutory timeframe, so therefore applied for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) for her matter to be nonetheless considered.
Under s 29(9) of the AAT Act, the Respondent was notified of the application and the request for an extension of time. On 24 April 2024, the Respondent lodged a notice opposing the application for an extension of time, under s 29(10) of the AAT Act.
HEARING
On 27 May 2024, the Tribunal held an interlocutory hearing by telephone to consider whether the discretion available in the AAT Act should be exercised to extend time to the Applicant. The Applicant made submissions and responded to questions from the Tribunal. The Respondent was represented by Mr Adam Slevison, lawyer with The Australian Government Solicitor, who made submissions in support of the notice opposing the extension of time. An interpreter of the Mandarin language assisted the Tribunal.
The Tribunal had before it the following documents:
(a)Mrs Liu’s application for review, dated 1 April 2024;
(b)Letter to the Tribunal from the Applicant, date unclear;
(c)Letter to Mrs Liu from an officer of the Department of Home Affairs (‘the Department’), dated 30 January 2024;
(d)Decision Record, Delegate in the Department, dated 30 January 2024; and
(e)Notice of Opposing Application for the Extension of Time, submitted by the Respondent on 24 April 2024.
At the conclusion of the hearing, the Tribunal made a decision refusing to extend time and gave brief oral reasons. The Tribunal asked the Applicant if she would like written reasons, which she said she would. These are those reasons.
WRITTEN REASONS
In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
The Tribunal is satisfied that these written reasons reflect the oral decision given on 27 May 2024. Consistent with the reasoning in Negri, new reasoning has not been introduced, but there is a more detailed explanation which might assist the parties.
Submissions by the Applicant
Mrs Liu said in her written submissions that she was ‘unaware of the 29 [sic] day time limit’. She said she had travelled to China on 29 October 2023 and advised the Department in her application that she might be abroad for a year. She told the Tribunal that she travelled to China to visit family and had intended to lodge an application for review of the decision with the Tribunal on her return to Australia.
Mrs Liu said that she had not been back to China for five years. Her mother-in-law was in fragile health and she ‘did not allocate sufficient focus on the AAT time limit.’ She wrote in her application to the Tribunal:
I acknowledge that my failure to meet the deadline for uploading supporting documents was entirely my responsibility. The primary reason for missing the deadline was my lack of awareness regarding the time limit for uploading the required documents. Upon my return to China, I did not check my email regularly, as I had not been back for nearly five years and had a multitude of urgent matters to attend to.
Additionally, my mother-in-law’s health condition required my immediate attention and care. It is important to note that the immigration officer acted in accordance with established procedures, and the decision to refuse my application was a result of my own mistake rather than any fault on their part.
In her oral submissions at the hearing, the Applicant expanded upon her reasons. She said her elder sister was grieving over the sudden death of her husband, Mrs Liu’s brother-in-law in October 2023. She had returned to China at short notice in order to comfort her in her grief. In addition, she told the Tribunal that her mother-in-law is aged 94 and, because she had not seen the Applicant for several years, she wanted her to stay and spend Chinese New Year with her.
Mrs Liu also made submissions about her own health. She said she had received a referral from her general practitioner in Melbourne in June 2023 for abdominal difficulties she was experiencing, but could not get a hospital appointment. She said she underwent a series of health checks in China including a heart check, a shadow check of her coronary arteries, and a test for anaemia. In March 2023 she said she had a gastroscopy. Mrs Liu told the Tribunal she had been unable to get these procedures done in Australia. The Applicant offered to provide a copy of the death certificate of her brother-in-law and proof of her health procedures, should the Tribunal require that information.
The Tribunal explained that it was looking at the period between 30 January 2024 when the Applicant was notified of the citizenship rejection decision by the Department, and 1 April 2024, when the application was lodged.
Submissions of the Respondent
Mr Slevison noted the legislative provisions in s 29(7) of the AAT Act. He said the Tribunal should consider the length and explanation for the delay in lodging the application; whether the Minister would be prejudiced by the delay; and the merits of the underlying application.
Mr Slevison submitted that the Respondent does not claim the Minister would suffer prejudice if time were extended. In terms of the length of the delay, he noted that Mrs Liu applied 34 days outside the timeframe and that this is a moderate delay, more than double the 28-day time limit provided for in the legislation. He said this factor alone is unlikely to be determinative, but weighs against extending time.
In terms of an explanation for the delay, Mr Slevison noted that the Applicant had said she was not aware of the time limit and planned to apply for review when she returned to Australia. He submitted that ignorance is not usually a satisfactory explanation for a delay, pointing out that the 30 January 2024 letter from the Department notifying the Applicant of the rejection decision, contains the following passage:
Review rights
No further assessment of this citizenship application can be taken at this office. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a review of this decision….
An application for review of this decision must be given to the AAT within 28 calendar days after the day on which you are taken to have received this letter. As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted.
The Respondent submitted that Mrs Liu had rested on her review rights and did not prioritise her application. In respect of the Applicant’s submissions about her travel to China and the reasons for it, Mr Slevison submitted that it was not disputed that Mrs Liu might have had important responsibilities to deal with in China, but noted that she did not receive the rejection decision in the immediate rush of arriving in that country, with the other family issues she had mentioned.
He submitted that Mrs Liu was not so busy as to be incapable of applying for a review in time. He noted that, on 22 November 2023, the delegate recorded that a letter was sent to the Applicant by email alerting her to the criteria set out in s 21(2)(g) of the Act and requesting her to provide evidence to support her claims that she would meet these requirements, and that she was given 28 days to respond with further documents. The delegate said there was no information before her to indicate the Applicant had provided a response, or that she had contacted the Department to request an extension of time to respond.
Mr Slevison submitted that, by not engaging with the Department, the Applicant failed to show reasonable diligence in pursuing her citizenship application, and that these circumstances weigh against a finding that it is reasonable to extend time.
In respect of the merits of the citizenship application itself, Mr Slevison submitted that the rejection was plainly open to the delegate, given that the Applicant had advised the Department of her intention to depart Australia three days after applying for citizenship. He said that the Minister does not submit that the substantive application is doomed to fail, however does submit that the current evidence is not such as to justify an extension of time.
He noted that the Applicant had provided some evidence of ties to Australia, in that she owns properties in Victoria and has provided a marriage certificate and information about her grandson who is at school in Victoria. He said that the Respondent accepts that the Applicant could succeed in her substantive application if time were extended.
In reply, Mrs Liu noted that, apart from the ties mentioned by the Respondent, her husband is an Australian citizen, and her son, daughter-in-law and grandson are all Australian permanent residents. She said she was going to continue to live in Australia and ‘definitely’ has close ties with this country.
The Tribunal asked if she remembered receiving the letter dated 22 November 2023 from the Department requesting further information. The Applicant said she did not see it until a later stage; she could not remember the exact date because her English is not good.
The Tribunal asked the Applicant if she had access to her emails when overseas. She responded that she did not have access unless she was in a place with access to the Internet.
The Tribunal noted that Mrs Liu stated that she did not know of the 28-day time period for applying for review, but it was set out in the 30 January 2024 letter. She responded: “Because my English is not good, I did not find out about it immediately.” She said that as soon as she returned to Australia on 29 March 2024, she asked her son.
The Tribunal noted that the Applicant had suggested in her citizenship application that she expected to be abroad for a year. Mrs Liu responded, “Yes. I originally estimated I would have to stay overseas for a while, but because my son and daughter-in-law and grandson are all living here, I could not stay away for that long.”
The Tribunal asked Mrs Liu whether her husband accompanied her to China. She responded, “He went back to China before me, in May 2023. He continued to stay in China. Because I received the email, I decided to come back to Australia.” Mrs Liu confirmed that her husband was still in China at the time of the hearing.
The Tribunal then clarified with the Applicant that she knew about the refusal decision before she came back to Australia. Mrs Liu responded, “Yes. I knew it, around the beginning of March.”
The Tribunal asked the Applicant about reference to a unit in Franklin Street, Melbourne, which was the residential address on her citizenship application. She wrote in her letter to the Tribunal that this property was ‘currently on loan.’ The Tribunal asked if she meant that it was tenanted, or was this where she was living now. Mrs Liu clarified that when she wrote ‘currently on loan’ she meant it is subject to a bank loan. She said she lives in two places, the Franklin Street property and a property in Balwyn, Victoria.
CONSIDERATION
Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 set out some of the factors that may be relevant in deciding whether or not to extend time, but His Honour stressed that these factors are not an exhaustive list.
The factors the learned Judge listed were:
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)Whether the Applicant has rested on his or her review rights;
e)The merits of the substantive application for review; and
f)Any alternative avenues of relief for the Applicant should time not be extended.
Sometimes, if the application is lodged one or two days after the 28-day period, the Tribunal may be inclined in all the circumstances to extend time. But in this case the statutory period in s 29(2)(b)(i) of the AAT Act began on 1 February 2024 and ended on 27 February 2024. It was not until 1 April 2024, some 34 days later, that Mrs Liu lodged her application. She admitted that, although she was overseas, she had received the email from the Department advising that her citizenship application had been rejected.
While the Tribunal accepts she had gone to China to offer support to her sister after the sudden death of her sister’s husband, and that she also was undergoing various medical procedures and tests she could not obtain in Australia – or at least not obtain without being on a waiting list – neither of these factors would have prevented her lodging an application for review, or authorising (for instance) her adult son back in Australia to lodge an application with the Tribunal on her behalf. I am satisfied that the Applicant rested on her rights.
I accept the Respondent’s submission that it would not unduly prejudice the Respondent if time were extended. I find there is some prejudice to the general public which would arise if time were extended, because there is a general expectation that statutory time limits are observed and if some observe them and others do not, but are excused, that can create unfairness.
In terms of the merits of the substantive application, the Tribunal does not consider that Mrs Liu’s is a case without merit. The Federal Court of Australia has made clear that s 21(2)(g) of the Act must be read as a whole. The fact that an applicant for citizenship may have travelled overseas soon after lodging his or her application, even for an extended period, is not fatal for the criteria in this subsection to be met.
If a person applying for citizenship is considered by a decision-maker not to have satisfied s 21(2)(g) purely on the basis that the person was not thought to be resident, at that time, in Australia, that would be a wrong interpretation of this provision in the Act. In Lin v Minister for Immigration and Citizenship [2009] FCA 494 (‘Lin’), Foster J stated, at [29]:
(a) When properly interpreted, s 21(2)(g) of the new Act refers to three separate notions, namely:
·…likely to reside in Australia…
·…likely to continue to reside in Australia---
·…likely to maintain a close and continuing association with Australia…
The proposition required to be considered for the purpose of s 21(2)(g) is whether or not one or more of these outcomes are likely to be achieved if the citizenship application were to be approved.
(b) The third concept (the association limb) may encompass the concept of residence embodied in the first two limbs so that, to this extent, there may well be some overlap between the first two limbs, or either of them, and the third;
(c) The association limb does not necessarily require that the applicant be resident or be likely to reside or be likely to continue to reside in Australia and residence in the sense of which it is used in s 21(2)(g) is not an essential requirement of the concept of association for the purposes of the association limb; and
(d) In the present case, the Tribunal asked itself the wrong question by confining its consideration of the provisions of s 21(2)(g) to whether or not the applicant was likely to reside in Australia in the future and failed to consider other matters relevant to the question of association including the presence in Australia of two of the applicant’s five children and the ownership by the applicant of a residential property in Australia.
(Emphasis in original)

The delegate recorded that Mrs Liu arrived to settle in Australia in 2016 and became the holder of a permanent resident visa in 2020. In her written submissions, Mrs Liu stated that her husband was an Australian citizen, and that her son and his family are Australian permanent residents who are living and working in Australia. She further said that her grandson is enrolled at a school in Melbourne. The Applicant added that she owns three properties in Melbourne, and clarified in the hearing that one is subject to a bank loan. She further said that she planned to return to Australia on 30 March 2024, which ‘marked her continuing commitment to residing in Australia and contributing positively to its society and economy.’ (In fact, Mrs Liu returned to Australia on 27 March 2024.)
None of these assertions by the Applicant were challenged by the Respondent in the hearing.
I am satisfied to find, without delving deeply into the question as to whether in a substantive hearing I would be satisfied that the Applicant has met s 21(2)(g) of the Act, that her case is not devoid of merit. In fact, it might even be found to be a good case because, to borrow Foster J’s words in Lin, she has presented objective material in relation to the ‘association limb’ in that provision of the Act.
However, balancing that is the fact that Mrs Liu was asked by the delegate considering her application in the Department to provide further information by letter on 22 November 2023. She was given 28 days to do so, but it was also made clear in the letter that she could seek an extension of time to respond if she requested one. She did not respond by the twenty-eighth day, which was 20 December 2023. It was not in contest that she did not respond at all.
However, the delegate did not move swiftly to make a decision, and waited a further period of 42 days before deciding to reject the citizenship application. I consider that Mrs Liu was afforded administrative fairness in this timeline, and I note she was at pains to say she had been treated with procedural fairness by the Department in her application to the Tribunal.
My conclusion, therefore, is that in spite of finding that Mrs Liu may have a fair case to put that she does satisfy s 21(2)(g) of the Act, her absence of engagement with the Department in providing further information that might support her case was a significant contributor in the rejection decision. In the same vein, her tardiness in applying to the Tribunal to seek review, when she had clearly been notified of the 28-day period in which to do so – coupled with an absence of any special circumstances which may justify some leniency in exercising the discretion in s 29(7) of the AAT Act – means that her application for an extension of time is refused. This is not to say that the Tribunal does not accept her evidence about her medical tests and family obligations, but that none of this evidence was put to me as preventing her lodging her application for review.
At the conclusion of the hearing, the Tribunal made clear, that there is an alternative avenue for relief available to Mrs Liu. As the Respondent said in his written submissions it is open to the Applicant, as a permanent resident of Australia, to lodge a fresh application for citizenship at any time. If she does so, it will be in her interest to put forward the best material she has in support of her claims.
DECISION
Not being satisfied that it is reasonable in all the circumstances to extend time, the Tribunal refuses to extend time under s 29(7) of the AAT Act for the Applicant to lodge an application for review of the 30 January 2024 decision to refuse Australian citizenship by conferral.

I certify that the preceding 48 (forty- eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate
Dated: 11 June 2024

Date of hearing: 27 May 2024

Applicant: Self-Represented

Counsel for the Respondent: Mr Adam Slevison

Advocate for the Respondent: The Australian Government Solicitor

[2024] AATA 1550

27 May 2024

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Date of hearing:	27 May 2024
Applicant:	Self-Represented
Counsel for the Respondent:	Mr Adam Slevison
Advocate for the Respondent:	The Australian Government Solicitor