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

[2023] AATA 531

Lual and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 531 (29 March 2023)

Division:GENERAL DIVISION

File Number:          2023/1445

Re:Akuol Lual

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:29 March 2023

Date of written reasons:        30 March 2023

Place:Melbourne

The Tribunal refused the application under section 29(7) of the Administrative Appeals Tribunal Act1975 (Cth) for an extension of time to lodge this application for review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated
9 September 2022.

.............................[SGD]...........................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – applicant applies under general citizenship requirement – applicant satisfies certain requirements – applicant sat citizenship test once and did not pass – applicant rescheduled or failed to attend several subsequent test appointments – mandatory requirement for grant of citizenship not met – delegate of minister refused application – decision is reviewable

PRACTICE AND PROCEDURE – where applicant applied for review within time – where application dismissed for non-payment of prescribed fee – where applicant alleges she applied again within time – no record of application – where application applied and sought extension of time – where applicant rested on her rights – whether dismissal because of non-payment of prescribed fee and then fresh application a factor relevant to extending time – application in any event cannot succeed on substantive review – extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29, 33A, 69C
Administrative Appeals Tribunal Regulation 2015 (Cth), rr 20, 24
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth), ss 21, 23A, 24, 52

Electronic Transactions Act 1999 (Cth), s 14A

Cases

Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Jackamarra v Krakouer (1998] 195 CLR 516
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828

R v Secretary of State for the Home Department: Ex Parte Mehta (1975) 2 All ER; [1975] 1 WLR 1087

Secondary Materials

Revised Citizenship Procedural Instructions – CPI 26 – Australian Citizenship Test
The Concise Oxford Dictionary – 1911 First Edition; H. W. & F. G. Fowler; Oxford University Press (reprinted 2011)

REASONS FOR DECISION

Senior Member D. J. Morris

30 March 2023

1. Ms Akuol Lual is a permanent resident of Australia. She applied for Australian citizenship by conferral on 26 April 2018.

2. When the person applies, his or her eligibility for citizenship is considered under the provisions of Australian Citizenship Act 2007 (Cth) (‘the Act’). Taking account of this, the Minister for Immigration, Citizenship and Multicultural Affairs (or his delegate) must then make a decision under section 24 of the Act to approve or not to approve the person’s application.  It is important to note that there is no power under the Act for an application to be put aside for a period to enable a requirement to be met (for instance, time the person has spent in Australia); the application must be approved or rejected.

3. On 9 September 2022 a delegate of the Minister refused Ms Lual’s application.

4. The delegate found that Ms Lual did satisfy certain requirements of the Act;

   (a)she was aged 18 years or over when she applied (s 21(2)(a));

   (b)she was a permanent resident of Australia (s 21(2)(b));

   (c)she satisfied the general residence requirements (s 21(2)(c));

   (d)and the delegate was satisfied that Ms Lual intended to reside or continue to reside in Australia (s 21(2)(g)). 

5. However, the delegate did not proceed to consider whether Ms Lual was of good character under s 21(2)(h) of the Act, because the delegate found that certain other requirements of s 21(2) were not satisfied. In addition, other requirements were not assessed.

6. When a person is being considered under the general eligibility part of the Act under section 21(2), one of the requirements is that Minister must be satisfied that a person understands the nature of their application (section 21(2)(d)), possesses a basic knowledge of the English language (section 21(2)(e)); and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (section 21(2)(f)).

7. On their face, these requirements are subjective. Because of that, section 21(2A) of the Act was inserted to provide that basic knowledge of English and adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship are taken to be satisfied ‘if and only if’ the Minister is satisfied that the following apply: The person must have sat a test approved by a determination made under section 23A of the Act, and have successfully completed the test within the period provided for in the determination.

   THE HEARING

8. An interlocutory hearing was held on 29 March 2023 by telephone, as is allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). Ms Lual represented herself and made submissions. Ms Mary Baras-Miller, of The Australian Government Solicitor, appeared for the Respondent.

9. The Tribunal had regard to Ms Lual’s application for review lodged on 7 March 2023 and the Respondent’s submissions opposing extension of time, dated 14 March 2023. The Tribunal also had regard to a letter sent by an officer of the Department of Home Affairs to Ms Lual on 9 September 2022, attached to which was a decision record relating to the reviewable decision.

10. At the conclusion of the hearing, the Tribunal made a decision refusing to extend time for two reasons: because the Applicant provided no satisfactory explanation of her delay in lodging the application for review and because there is no prospect of Ms Lual succeeding on substantive review.

    Written reasons for oral decision

11. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why time was not extended. 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).

12. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 29 March 2023, consistent with the approach suggested in Negri. New reasoning for the decision not to extend time has not been introduced, but I have included more detail of the provisions in the Act.

    Date of decision

13. The Respondent submits that the reviewable decision was made on 9 September 2022, and emailed to Ms Lual on that day. The decision record before the Tribunal is neither signed nor dated, so to that extent it is defective. It is not evident when the decision was made, but it is clear that it was communicated with a covering letter dated 9 September 2022 to the Applicant. As it was emailed to her, under s 14A of the Electronic TransactionsAct 1999 (Cth), it is deemed that she received it on that same day.

14. Ms Lual wrote in her application for review that she received the decision on ’29 September 2022’.  This is clearly an error.

15. Section 29(7) of the AAT Act provides that 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, if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

16. In her application for review, in response to the question on the application form Why do you say the decision is wrong? Ms Lual wrote:

    I don’t claim the decision is wrong. Because I had so many chances and I kept rescheduling my appointment till the last final appointment they gave me and I missed it, due to personal reasons, I wasn’t doing it intentional [sic], I just had so much going on in my life.

17. Ms Lual had 28 days to apply for review of the decision, a period which began on 10 September 2022 and ended on 7 October 2022. She applied on 7 March 2023, some 152 days, or five months and one day, out of time. 

18. CONSIDERATION

    Should time be extended?

19. There are general principles followed by the Tribunal when considering whether time should be extended (see Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305). They include the length of the delay, reasons for the delay, whether there is an arguable case; and whether there would be prejudice to the other party. Whether a person has rested on his or her rights is also relevant. None of these general principles takes precedence over another; each request for an extension of time must be treated on its merits and circumstances. Sometimes merely the interests of justice may demand that time be extended.

20. The extension of time sought by Ms Lual is not an insignificant period; it amounts to five months. The Applicant’s submission that she ‘had so much going on in her life’ was not essentially expanded upon in her oral submissions. That, by itself, is not a satisfactory explanation for late lodgement of an application for review.

21. Although the hearing related to whether time should be extended, the Tribunal must have some regard to the merits of the substantive application in deciding whether to extend time.  As Lord Denning MR said in R v Secretary of State for the Home Department: Ex Parte Mehta, time may not be extended when there is a weak case, but it may be when it is a strong case on its merits. The High Court, in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576, noted with approval Lord Denning’s reasoning in this regard, in applications of this nature.

22. In this case, Ms Lual agreed that she sat the citizenship test on 30 March 2021. She was not successful. A fresh appointment was made for her to sit the test again on 17 May 2021. This was subsequently rescheduled to 19 May 2021, 21 May 2021, 29 May 2021, 12 July 2021, 13 December 2021, 17 December 2021, 21 January 2022, 11 February 2022, 25 March 2022, 18 May 2022 and then to 24 May 2022. On 24 May 2022 Ms Lual did not attend her appointment to sit the test. She subsequently contacted the Minister’s Department and arranged to sit the test again on 11 July 2022. That was rescheduled to 5 August 2022, and then again to 18 August 2022. On 18 August 2022 Ms Lual again did not attend her scheduled appointment to sit the test.

23. The Minister’s Department issues a set of Citizenship Procedural Instructions (CPIs), essentially an internal departmental manual.  CPI 26 – Australian Citizenship Test, relevantly states, at paragraph 6.3:

    Failing the test

    The vast majority of applicants pass the citizenship test on their first attempt.

    A Federal Court decision (Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828) found the Determination does not allow applicants to re-sit the test as many times as they wish and the Minister (or their delegate) is not prevented from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

    Generally, if an applicant has failed on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that paragraphs 21(2)(d),(e) and (f) of the Act are not satisfied.

24. In this case, Ms Lual’s application was not refused because she had failed several attempts. She had in fact only attempted the test on one occasion, on 30 March 2021.  She agreed in response to a direct question from the Tribunal that she had requested rescheduling of her test appointment on twelve occasions, and had failed to turn up on two occasions.

    Has the Applicant had a reasonable opportunity to sit the test?

25. In Minister for Home Affairs v Zadeh(No 2) [2018] FCA 1828, the Court was considering the requirement to successfully complete the Citizenship Test. Thawley J found at [37]:

    There is nothing about the scheme established by the Ministerial Determination which suggests it was intended that applicants could keep the application process going indefinitely by declining to undertake a Course-Based Test or by insisting on re-sitting the Standard Test as many times as they choose before the application is decided.  An application may re-sit that test any number of times while the application remains on foot.  That does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

    (Emphasis added.)

26. The Concise Oxford Dictionary gives one of the definitions of the word ‘decline’ as ‘to turn away from, refuse’.  The practical effect of Ms Lual continually deferring her citizenship test appointments meant that she was, in essence, declining to undertake further attempts. That conclusion is supported by the fact that on the two occasions where she did not request a rescheduled appointment, she simply did not turn up.

27. The old statute governing Australian citizenship was the Australian Citizenship Act 1948. That Act was different from the current Act in that it allowed the Minister or his delegate to put to one side an application that a person had made so that a requirement that had not been satisfied could be met. There is no such flexibility in the contemporary Act. Section 24(1) provides that if a person applies for citizenship under s 21 (as Ms Lual did) the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. It is inimical to the purpose of s 24(1) for a person to repeatedly defer sitting the test, thereby blocking the efficient consideration of their citizenship application.

28. While in this decision I am not looking deeply into the merits of the substantive decision, I consider that the delegate did not act unreasonably in deciding to refuse Ms Lual’s application. The Department had been quite patient. She had been given many opportunities, over a period spanning from March 2021 to August 2022, to re-sit the citizenship test.

29. As I explained at the interlocutory hearing, there is no discretion for a decision-maker to waive the requirement for Ms Lual to undertake the test.  It is a mandatory requirement under section 21(2A)(d) of the Act. Ms Lual is aged 24 so does not qualify for the age exemption from the test and has not submitted an application that she suffers from an enduring physical or mental incapacity. I noted at the hearing that Ms Lual said she did not require an interpreter, and I observed she was articulate and able to present her submissions clearly. I would speculate that passing the citizenship test will not be an alpine challenge for her.

30. I therefore found that it would be futile to extend time, because Ms Lual cannot succeed on substantive review of her application, given she does not contest that she has not successfully completed the citizenship test. Because she has not successfully completed the test under s 23A of the Act, she cannot therefore demonstrate that she meets the requirements under s 21(2)(d), (e) and (f) of the Act, which are mandatory.

31. Ms Lual asked whether she could re-apply for citizenship. The Tribunal said that she can find the relevant form on the website of the Minister’s Department and repeat the process that she did for her 2018 application. I noted that she has already satisfied a delegate of certain requirements (set out above), and there was no reason apparent to the Tribunal why she could not re-apply. There is no limit to the number of times a person may apply for citizenship by conferral.

    The earlier application

32. On 13 September 2022 Ms Lual lodged an application for review of the refusal decision with the Tribunal (application 2022/7537). A Tribunal officer wrote to her on 19 September 2022 advising that her application had been received but that she needed to pay the prescribed fee. The Tribunal officer also sent a request for fee reduction form on 19 September 2022, in case the circumstances of Ms Lual made her eligible to apply for a reduced fee. There was no response from Ms Lual.

33. On 5 October 2022 the Tribunal officer again wrote to Ms Lual to remind her of the outstanding fee and stated in the letter ‘We can dismiss an application if the fee is not paid within 6 weeks after the application is lodged.’  There was no response from Ms Lual.

34. On 7 November 2022 Senior Member Fenwick made an order dismissing application 2022/7537 under s 69C of the AAT Act on the basis that the fee had not been paid. This was well beyond the six-week period provided for in r 24(2) of the Administrative Appeals TribunalRegulation 2015 which triggers a possibility of dismissal. That order was sent to Ms Lual, together with a cover letter providing information on her avenues to appeal.

35. The Applicant was reminded of this during the hearing, and said she did not receive advice of the dismissal; she then amended her stance to say she did not remember receiving the advice. She said that she lodged a further application for review (but did not say when) and said it was only on 7 March 2023 when she contacted the Tribunal to follow it up that she was told there was no application on record, which is why she lodged a fresh application that day.

36. There is no record in the Tribunal’s registry of an application being received from or on behalf of Ms Lual between application 2022/7567 and application 2023/1445.

37. In any event, I am satisfied that Ms Lual would have received the dismissal order of the learned Senior Member, Dr Fenwick, on or about 7 November 2022 and could have lodged a fresh application then, or soon thereafter. In instances where a matter has been dismissed under s 69C of the AAT Act for non-payment of the prescribed fee, the Tribunal generally looks benevolently on an applicant who has acted swiftly to lodge a new application with the relevant fee.

38. The fact that there was an application originally lodged within the statutory time period for review of the decision, but which was dismissed as set out above, is not a factor which I find in this case supports an extension of time. Had Ms Lual a very strong case, where it would be unjust not to allow it to proceed to substantive review, this may have been an important factor. But there is no strong case. Because a mandatory requirement for Australian citizenship by conferral has not been met, the application has no prospect of success.

    DECISION

39. The Tribunal refuses to extend time for the Applicant to lodge her application for review.

40.      

41.     I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[SGD].............................................

Associate

Dated: 30 March 2023

Date of hearing:	29 March 2023
Applicant:	Ms Akuol Lual
Advocate for the Respondent:	Ms Mary Baras-Miller
Solicitors for the Respondent:	The Australian Government Solicitor