Majok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Majok and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 207 (10 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5952
Re:Majok Wantok Majok
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 February 2022
Place:Sydney

The application for an extension of time in this matter is refused.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for an extension of time – citizenship by conferral refusal on character grounds – 28-day period has elapsed – where extent of delay not reasonably explained – where there is no reasonable prospect of success – application refused
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 29
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) ss 21 and 23A
Electronic Transactions Act 1999 (Cth) s 14A
CASES
BERKELAAR AND COMCARE [1997] AATA 12015
Bowdler and Minister for Immigration and Border Protection (Citizenship) 2018 AATA 347
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Dolan and Comcare (1993) 29 ALD 887
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
KIM AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] AATA 155
KULJIC V SECRETARY, DEPARTMENT OF SOCIAL SECURITY [1994] FCA 886
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND ROBERTS (2003) 73 ALD 412
SPWX AND SECRETARY, DEPARTMENT OF SOCIAL SERVICES [2020] AATA 3883
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 February 2022

This is an application by Mr Majok Wantok Majok (the Applicant) under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for an extension of time to seek review of a decision by a Delegate of the Minister (the Respondent) to decline his application for citizenship by conferral. The Applicant is a holder of a permanent resident visa (Global Special Humanitarian, Subclass 202) and first arrived in Australia in 2007.[1]
[1] Tribunal documents (T-documents) at 13.
NARRATIVE
On 22 August 2017[2] the Applicant applied for the grant of citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).
[2] The Respondent’s Submissions Opposing Extension of Time Application (EOT Submissions) at [4] is in error, giving the application date as 21 December 2018.
At this point the Tribunal must interpose some details about the purported email addresses of the Applicant. In a document annexed to the Respondent’s Submissions Opposing Extension of Time Application (EOT Submissions) there is a screenshot of the Department’s “client contact list” for the Applicant. It shows that on:
·17 September 2014 the Applicant’s email address was recorded as being [email protected]. There is no prior email address apparent in the document which otherwise contains contact details back to 1 January 2009;
·25 August 2017 advice was recorded as “client advised” an email address of [email protected];
·21 December 2018 advice was recorded as “client advised” an email address of [email protected]; and
·16 November 2020 advice was recorded as “client advise – Internet” an email address of [email protected].[3]
[3] The email addresses listed here and throughout the decision are placeholders.
There are numerous changes of postal address recorded, however the only matter of relevance is a change of address from Guilford to Merrylands on 16 November 2020.
The Respondent notified the Applicant by letter and by email that it had concerns about aspects of his citizenship application and was providing him with an opportunity to respond to those concerns (this is called a “natural justice” letter).[4] The letter was addressed to him at a residential address in Guildford, NSW 2161. The Respondent in their EOT Submissions states that this correspondence was sent on 21 October 2020.[5] The document before the Tribunal is, contrary to best and required practice, undated.[6] The Guilford address was that most recently provided by the Applicant to the Department at the time.
[4] T-documents at 173-181.
[5] Respondent’s EOT Submissions at [5].
[6] T-documents at 173-181.
That undated document was also sent by email to [email protected].
Under paragraph 14A(1)(a) of the Electronic Transactions Act 1999 (Cth) it is taken as a matter of law that the Applicant received the email correspondence on 21 October 2020.
Given the plethora of email addresses provided, in the event there was any error in selecting the correct email address (which has not been shown), the Applicant would have been deemed to have received the written correspondence by post by no later than 26 October 2020 pursuant to section 29 of the Acts Interpretation Act 1901 (Cth).
The Applicant did not respond to the natural justice letter.
On 16 November 2020 the Applicant advised the Respondent of a change of address and changed email address for receipt of correspondence. His new address was recorded as being a residential address in Merrylands, NSW 2160 and his email as [email protected]. It should also be noted however, that from the Respondent’s Attachment to their EOT Submissions, the [email protected] email was also in use concurrently and no end date is recorded for its usage.[7]
[7] Ibid.
On 2 December 2020 the Applicant’s application was refused on the basis that he did not pass the “good character” test which is set out in paragraph 21(2)(h) of the Citizenship Act.
On the same day, 2 December 2020 the Applicant was advised of this decision by letter (sent to his recorded address in Merrylands) and by email (to [email protected]).
As already noted, it is taken that the Applicant received the correspondence on that day, 2 December 2020.
As per the requirements of subsection 29(2) of the AAT Act, the Applicant was advised in that correspondence that he had a period of 28 days in which to request review of the refusal decision.
That period of time expired on 30 December 2020.
The Applicant lodged a request to review the refusal decision on 25 August 2021 and was advised that he would need to seek an extension of time from this Tribunal to pursue that claim.
On 4 January 2022 the Applicant lodged such an application, (some 235 days outside the statutory time limit). In that he describes the decision in question as “Im here asking you to review my case as quick as possible. I which to oversea [sic] soon” and he gives the date on which the decision was made as “30/11/21” with a reference number “2021/5952”[8]. He claims that the decision in question was received on “4/01/2022”. He then goes on to state that the reason for the application is “I need them to have a good look to my case because I have been waiting to have my citizenship but it was rejected for no good reason.”[9]
[8] This is the correct file number for the Applicant’s matter.
[9] Applicant’s Submission dated 4 January 2022.
The extension of time application was heard on 31 January 2022 using the Microsoft Teams Platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted by an interpreter in the Dinka language.
GRANTS OF EXTENSION OF TIME – PRINCIPLES
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[10] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[10] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[11] should be taken as the guide by this Tribunal in determining EOT matters.
[11] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
However, there are other principles which the Tribunal bears in mind in these considerations. They include:
·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[12]
·considering that “[i]f a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal”; and[13]
·considering “alternative avenues of relief for the Applicant should the original extension of time order not be made”.[14]
[12] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].
[13] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[14] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
REASON FOR DELAY
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed time limits serving as a guide as to whether or not an extension of time may be granted.
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
In many cases an extension of one day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.[15]
[15] Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412 at [16]; Dolan and Comcare (1993) 29 ALD 887 at 888.
In Roberts with just one day’s delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[16] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although “[t]he delay in this matter is very substantial”, nevertheless “the issues sough to be considered in a review are also of importance.”[17]
[16] Berkelaar and Comcare [1997] AATA 12015.
[17] SPWX and Secretary, Department of Social Services [2020] AATA 3883 at [49].
In his application of 4 January 2022, the Applicant wrote:
“I need them to have a good look to my case because I have been waiting to have my citizenship, but was rejected for no good reason.”
However, at the hearing the Applicant gave sworn evidence to the effect that he did not receive either the “natural justice” letter nor the advice of the refusal of his application.
He stated that he departed Australia on 8 December 2020 and did not return until 10 June 2021, as confirmed by his travel record submitted by the Respondent.[18]
[18] T-documents at 185.
He also stated that:
(a)he had moved from Guilford to Merrylands in 2019 but had not notified the Department of this arrangement until November 2020;
(b)he had never had an email address of [email protected];
(c)on his return from overseas he had contacted the Department to enquire about the progress of his citizenship application and been advised verbally that it had been refused and that he only became aware of this on or about 21 August 2021. He further states that that was the date on which the decision was made. This is the date he gives in his application to the Tribunal wherein he also states, in relation to the decision in relation to which he seeks review that “I already send it to you”;[19]
(d)“[t]he decision was saying that your request for sermony [sic] letter has been refusted [sic]. So they said that I should ask you to review it. So what happen [sic] to me. I may [unclear] if us [unclear] or discrimination”;[20] and
(e)the Tribunal should take note of his limited command of English, his need for an interpreter in the Tribunal proceedings and his lack of understanding of formal written documents or instructions.
[19] Ibid at 5-6. The quote is given in the Applicant’s application to the Tribunal as his reasons for seeking review of the refusal decision.
[20] Applicant’s Submission filed 25 August 2021.
The Tribunal takes the claims in (d) above to relate to the fact that the Applicant had been booked to attend appointments for interviews related to his citizenship application, combined with the conduct of the Standard Test prescribed by the Act on numerous occasions. The Citizenship Test (Citizenship Act s 23A) is a requirement attached to the grant of citizenship by conferral, and with some specific exceptions (Citizenship Act s 21(3)(d)), not applicable in this instance, all applicants must pass this test to be eligible for the grant of citizenship.
The record shows that the Applicant was booked for an interview/test on 5 December 2018, which was then re-scheduled to 12 December 2018, 21 December 2018, and finally 22 January 2019.[21] It does not appear that he attended or completed any of these appointments.
[21] T-documents at 99-120.
The Respondent rests upon the fact that the Applicant was sent correspondence (both by post and email) on several occasions and that he failed to respond to or act upon any of those communications. The law is clear in that it deems that such correspondence was received on the date posted (electronically) and that such correspondence imposes obligations on the recipient.
The Applicant states that he did not receive the correspondence because either it went to the wrong postal address or the wrong email address ([email protected]).
The Tribunal cannot accept the Applicant’s claims. Correspondence was posted to the most recent address supplied by the Applicant to the Department, and any failure to update that information in a timely fashion is entirely the responsibility of the Applicant. Even if the email address was incorrect (and the Tribunal notes that the [email protected] address is markedly different from the other supplied and varied email addresses all of which use the Applicant’s name in some form), nevertheless, at the same time the correspondence was also sent by post.
It must be concluded that the Applicant received the relevant correspondence on or about 2 December 2020. The Applicant was still in Australia and did not depart until 8 December 2020. This set off the timetable noted above requiring lodgement of an application for review by 30 December 2020. The Applicant was overseas from 8 December 2020 to 10 June 2021. Nevertheless, there was a window of 6 days (4 working days) in which to take action. It is true that action was taken within a short period after his return from overseas with his application lodged on 25 August 2021, after what he says was a conversation with the Department about the status of his application.
The Tribunal is left with no reasonable alternative but to find that the application for review was substantially out of time (235 days) and that no compelling reason has been advanced to justify the delay.
PROSPECTS OF SUCCESS
The Respondent’s natural justice letter drew attention the fact that the Applicant had failed to give full, complete and accurate information on his citizenship application form (Form 1300t lodged electronically), specifically:
(a)his failure to disclose details of his criminal offending record;
(b)incorrect declarations of the details of his parents, including their identity and dates of death;
(c)incorrect declarations of the details of his siblings;
(d)incorrect declaration of his travel history; and
(e)incorrect declaration of his change of name.
The Tribunal does not need to rehearse in detail the extensive record of the Applicant’s offending, committed primarily in Western Australia, other than to say that it includes:
·serious traffic offences (a matter which numerous Tribunal decisions have found weigh heavily against any finding of good character) [22] with some three separate offences involving Prescribed Content of Alcohol (PCA) and fines amounting to $4,000.00;
·an offence of indecent dealings with a child who is a lineal relative or defacto child; and
·and the imposition of a Community Corrections Order for two years for failing to meet the reporting obligations of a previous such order.[23]
[22] Bowdler and Minister for Immigration and Border Protection (Citizenship) 2018 AATA 347 and cases cited therein.
[23] T-documents at 171-172.
There are two matters arising here, namely the failure to disclose information or provide inaccurate information and the relevance of that information in making a decision about “good character” requirements.
Question 39 of form 1300t is as follows:
“Have you been convicted of, or found guilty of ANY offences overseas or in Australia (include traffic offences which went to court, including offences declared in your permanent residence application and any ‘spent’ convictions?”
In response to this question that Applicant ticked the “NO” box. The form 1300t was completed electronically and is signed by the Applicant.[24]
[24] Ibid at 137.
Similarly, the form 1300t asks (at Question 3) “Have you been known by any other names?” and again the Applicant ticked the “NO” box.[25] This was not correct and details of his previous name Buong Dau KECHUOL appear elsewhere in the documentation.[26]
[25] Ibid at 123.
[26] Ibid at 148.
In the Delegate’s statement of reasons for refusing the citizenship request, the Delegate writes:
“The information you provided in your current Citizenship application in relation to your family composition appears to be inconsistent with information you provided at time of your offshore XB202 application.
Our records indicate that you travelled offshore on 14 November 2009 and returned to Australia on 24 February 2010 and declared in your incoming Passenger (PAX) cards that you will be spending most of your time abroad in Uganda. You travelled again on 23 September 2014 and returned on 18 January 2015 and declared in your incoming PAX card that you spent most of your time abroad in Uganda, however you did have not declared this information to the Department.
When viewing the above information cumulatively, it appears that there are significant concerns in relation to your claimed identity, as throughout your interactions with the Department you appear to have not been truthful and have provided false information with regards to your name, date of birth, family composition and travel, all of which are assessed as part of the three pillars of identity approach used by the Department to make a determination in relation to whether a delegate is satisfied with your identity under the information you provided in order to obtain your XB202 visa raises significant doubts about whether you are of good character as per the definition outlined in Citizenship Policy.”[27]
[27] Ibid at 19.

The Tribunal does not need to explore in further detail the precise questions about the Applicant’s parents and siblings. Suffice to say that, in examining the documentation, it finds no basis to disagree with the Delegate’s findings despite the Applicant’s assertion at the hearing that “I am the one that knows the family.”
Paragraph 21(2)(h) of the Citizenship Act requires that an applicant for citizenship by conferral be found, positively, to be a person of good character.
There is an extensive body of judicial guidance as to what constitutes good character[28] involving elements of “enduring moral qualities”[29]; “what a person says, in part by what a person does and in part by what a person is heard to say and seen to do” or simply “keeping out of trouble”.[30]
[28] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51].
[29] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 94 per Lee J.
[30] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Suffice it to say that the failure of the Applicant to disclose details of his offending behaviour and the provision of incorrect information about clearly material matters cannot stand alongside a positive finding that the Applicant is a person of good character.
Apart from the initial failure on the 1300t form, the Applicant also passed up the opportunity to deal with these matters when they were put to him in the natural justice letter.
There is thus no realistic prospect of any court or tribunal setting aside the Respondent’s decision that the Applicant is not a person a good character as required under the Citizenship Act.
CONCLUSION
As the Applicant has provided no acceptable reason for the delay in lodging his application for an extension of time and as there is no reasonable prospect that he would have a meaningful chance of being successful in a review of his application on its merits, it follows that the application cannot be successful.
DECISION
The application for an extension of time in this matter is refused.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

......................................[sgd]..................................
Associate
Dated: 10 February 2022

Date(s) of hearing: 31 January 2022

Applicant: In person

Solicitors for the Respondent: Mr T Tsao, HWL Ebsworth Lawyers

[2022] AATA 207

10 February 2022

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Appeal

Procedural Fairness

Judicial Review

Standing

Date(s) of hearing:	31 January 2022
Applicant:	In person
Solicitors for the Respondent:	Mr T Tsao, HWL Ebsworth Lawyers