Makarov and Minister for Home Affairs (Citizenship)
[2019] AATA 5161
•2 December 2019
Makarov and Minister for Home Affairs (Citizenship) [2019] AATA 5161 (2 December 2019)
Division:GENERAL DIVISION
File Number: 2019/7362
Re:Victor Makarov
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:2 December 2019
Place:Sydney
The application for an extension of time is refused.
................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
EXTENSION OF TIME – revocation of applicant’s Australian citizenship – where original decision made twelve years prior to application for review – where applicant has been incarcerated – principles to be applied - where substantive application has reasonable prospects of success - where delay causes prejudice to the respondent – public interest – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 29
Australian Citizenship Act 2007 (Cth) - s 34CASES
Comcare v A’Hearn [1993] FCA 498
Commonwealth of Australia and Another; Ex parte Marks [2000] HCA 67
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MZABO v Minister for Immigration and Border Protection [2016] FCA 980
Rahimzadeh and Secretary, Department of Social Services [2019] AATA 3201
Vella v Minister for Immigration and Border Protection and Another [2015] HCA 42
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
2 December 2019
In this matter the Applicant seeks an extension of time for the making of an application for review under section 29(7) of the Administrative Appeals Tribunal Act 1975 (‘the Act’) which provides as follows:
Tribunal may extend time for making application
(7) 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 reviewable decision is the decision of the then Minister for Immigration and Citizenship made on 13 September 2007 to revoke the Applicant’s Australian citizenship under sections 34(2)(b)(ii) and (c) of the Australian Citizenship Act 2007 as the Minister was satisfied that it would be contrary to the public interest for the Applicant to continue to be an Australian citizen.
In the event that the extension of time was granted, the Applicant also requested an order to stay the Minister’s decision pending the outcome of the proceedings in the Tribunal.
THE APPLICANT’S SUBMISSIONS
The Applicant claims that the granting of an extension of time after a period of 12 years is reasonable because of the particular circumstances relating to the Applicant. These may be summarised as follows:
(i)The Applicant served a long prison sentence, from 2005 until December 2018. During his time in prison he suffered a violent assault which necessitated him being held for some four and a half years in the prison segregation unit. Whilst there he had no access to the internet, a phone or regular visitors. His Australian citizenship was revoked during this period and he was automatically given an ex-citizen visa.
(ii)The Applicant was assaulted on two further occasions whilst in prison, each requiring hospital treatment. He had surgery on three separate occasions, one due to assault and the others for different medical conditions.
(iii)During the period he was in prison the Applicant concentrated all of his efforts on overturning his criminal convictions. This resulted in a number of trials and retrials from approximately 2006 to 2016.
(iv)The Applicant had difficulty in finding appropriate legal representation whilst in detention.
(v)The Applicant claimed to have spent all of his available funds fighting his criminal charges and had to rely on pro bono assistance. Because of the need for expert legal advice he claims he was not able to challenge the Minister’s decision as he could not pay for that relevant advice.
(vi)Problems for the Applicant in establishing the law of the Ukraine which was relevant to the question of whether or not he was a Ukrainian citizen at the time of the Minister’s decision to revoke his citizenship.
(vii)It was submitted by the Applicant that the decision to revoke his Australian citizenship raises human rights issues in relation to the Applicant where the Applicant contends that the decision ought not to have been made, which could possibly mean that a person who should still be an Australian citizen is currently being held in immigration detention.
I note that at the time of the hearing, there was no threat that the Applicant would be facing imminent deportation because medical issues made him unfit to travel, at least until the situation was reviewed early next year.
At the time of these proceedings there were also proceedings on foot in the Federal Court of Australia and on 18 November 2019 the Federal Court granted an injunction which prevented the removal of the Applicant from Australia pending the outcome of both those proceedings and his application to this Tribunal. At the time the injunction was granted, the Federal Court was not aware of the serious medical conditions which would prevent the Applicant being deported.
THE RESPONDENT’S SUBMISSIONS
At the hearing, the Respondent’s representative contended that there were no proper reasons for the granting of an extension of time in this matter. The Respondent’s arguments can be summarised as follows:
(i)The period of delay is extremely lengthy – some 12 years – and there is no indication whatsoever that the applicant sought to challenge the original decision at any time until recently despite the fact that the Applicant was aware of the decision and there was opportunity to do so, in that there were periods where the Applicant could have taken action to challenge the decision.
(ii)The Applicant chose to pursue other proceedings, namely proceedings in relation to his criminal convictions and the cancellation of his visa, but was silent for a period of some 12 years in relation to the revocation of his citizenship. In fact he only chose to implement these proceedings after he was taken to Villawood detention centre.
(iii)There is a very strong public interest in public officials being able to rely on the fact that decisions which are some 12 years old will not be revisited.
(iv)The Applicant was unsuccessful in his attempts to challenge his criminal convictions and the cancellation of his visa. The fact that the Applicant was not successful when making those challenges is not a reason for him now being allowed to challenge the decision in relation to citizenship.
DISCUSSION
The principles to be applied in the current situation are usefully summarised in the decision of Member Bygrave in Rahimzadeh and Secretary, Department of Social Services [2019] AATA 3201 at [5] – [8]:
Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time;
(b)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;
(c) any prejudice to the respondent caused by the delay;
(d)whether the general public would suffer any prejudice as a result of the extension;
(e) the merits of the substantial application; and
(f)“considerations of fairness as between the applicant and other persons” in a similar position.
These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition for the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.
All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.
Turning to the principles outlined above, the Applicant has not shown ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to grant an extension of time. Twelve years is a very long period and even accepting all of the factors which affected the Applicant and may have made it difficult for him to challenge the Minister’s decision during this time, there is no reasonable explanation as to why no action at all was taken during the periods when he could have sought a review. It is therefore not just and equitable in these circumstances to grant an extension of time.
It is in the interests of both the Minister and the public that action to challenge decisions is taken within a reasonable time. I am satisfied that both the Minister and the public would expect timelines to be adhered to in a matter like the present. There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances, which do not present in this case even accepting the difficulties the Applicant faced.
There is no evidence and it was not contended that the Respondent or the Department contributed to any delay in challenging the Minister’s decision. In fact the evidence demonstrated that the Respondent had followed proper procedure and had informed the Applicant of his right of review.
It is also necessary to consider the merits of the substantive application, in this case whether the original decision of the Minister to revoke the Applicant’s citizenship was correct.
In my view there were cogent arguments which the Applicant could put forward to challenge the original decision. The Applicant has obtained expert evidence which indicates that he ceased to be a Ukrainian citizen upon him receiving Australian citizenship in 2001. Paragraph 34(3)(b) of the Australian Citizenship Act 2007 provides that the Minister must not revoke a person’s Australian citizenship if it would result in them becoming ‘a person who is not a national or citizen of any country’. I note that the Respondent does not accept this contention.
I am prepared to accept that the Applicant would have a reasonable prospect of success in this case, which might raise human rights issues if the Applicant were unlawfully detained. However, although this issue fell into sharp focus when the Applicant was detained, it was not something which arose suddenly during the 12 years when the Applicant did nothing. In other words, it was a foreseeable outcome at the time the Minister’s decision was made.
I note that there are ongoing Federal Court proceedings in relation to the same or similar issues which the Applicant may decide to pursue in that Court.
On the basis of the evidence put before the Tribunal it is quite clear that, even accepting that there were periods when the Applicant would not have been able to take any action to challenge the Minister’s decision in 2007 to cancel the Applicant’s citizenship, there were lengthy periods where the Applicant could have taken some action to challenge the decision. The Applicant was notified of the Minister’s decision and had the opportunity to challenge it. The fact that he did nothing over such a long period is significant and is not outweighed by the various impediments he faced.
It is difficult to see any circumstances in this case which are so significant as to justify a delay of 12 years before the Minister’s decision was challenged. Clearly there were other issues of significance to the Applicant that he was pursuing. There were also periods when the Applicant was either hospitalised or in solitary confinement and would not have been able to do anything in response to the Minister’s decision. But this does not account for the entire 12 year period during which nothing was done to challenge the decision. There is relevant High Court and Federal Court authority in relation to the issue before me, in particular the remarks of McHugh J in Commonwealth of Australia and Another; Ex parte Marks [2000] HCA 67 where he says at [15] – [16]:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions……..
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay…..
In Vella v Minister for Immigration and Border Protection and Another [2015] HCA 42, Gageler J considered a situation where the applicant in that case had elected not to challenge an original decision to cancel his visa and instead challenged a subsequent decision not to revoke that cancellation. He stated at [19]:
…. It is sufficient that the principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.
I note also the decision of Jessup J in MZABO v Minister for Immigration and Border Protection [2016] FCA 980, specifically what his Honour states at [5]:
…… there is a clear public interest in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of, or have failed to exercise, their jurisdiction under statute.
On the basis of the evidence put before me and the authorities quoted above I am of the opinion that even accepting that the Applicant may have reasonable prospects of success in challenging the original decision of the Minister in 2007 this is significantly outweighed by the length of the delay, the interests of the public in decisions not being reopened after such a long period of time, and prejudice to the Respondent. I note in particular that the Applicant has done nothing at all until now to indicate dissatisfaction with the original decision of the Minister.
The application for an extension of time is refused.
As I have made a decision to refuse the application for an extension of time, it is not necessary for me to deal with the application for a stay order.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
................................[sgd]........................................
Associate
Dated: 2 December 2019
Date of hearing: 20 November 2019 Advocate for the Applicant: Ms A Battisson Solicitors for the Applicant: Human Rights for All Pty Ltd Advocate for the Respondent: Ms D Watson Solicitors for the Respondent: Australian Government Solicitor
2
7
0