Malgapo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1707
•11 June 2021
Malgapo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1707 (11 June 2021)
Division:GENERAL DIVISION
File Number: 2021/3117
Re:Ester Hernandez Malgapo
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 June 2021
Date of written reasons: 14 June 2021
Place:Brisbane
The Applicant’s extension of time application is refused.
............................[sgd]............................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time – factors that are relevant when considering an application for extension of time – length of delay – explanation for the delay – merits of the substantive application for review – pending criminal proceedings – alternative avenues for relief available – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Citizenship Act 2007 (Cth)
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Johnson and Minister for Home Affairs [2018] AATA 3469
SECONDARY MATERIALS
CPI 15 - Assessing Good Character under the Citizenship Act
DECISION
CATCHWORDS
LEGISLATION
CASES
SECONDARY MATERIALS
REASONS FOR DECISION
BACKGROUND
DATE OF SERVICE
CONSIDERATION OF PRINCIPLES RELATING TO EXTENSION OF TIME APPLICATIONS
Extent of the delay
Explanation for the delay
Prejudice to the Respondent or the general public
The merits of the substantive application for review
Any alternative avenues for relief if the extension of time is refused
Conclusions
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
14 June 2021
BACKGROUND
Mrs Ester Hernandez Malgapo (“Applicant”) is a permanent resident of Australia. In May 2019, she applied for citizenship by conferral in accordance with the provisions of the Citizenship Act 2007 (Cth) (“Citizenship Application”). On 29 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Respondent”) refused the Applicant’s Citizenship Application (“Refusal Decision”).
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) requires that an application for review be filed within 28 days. The present application is therefore 10 days out of time.
The Applicant duly lodged an application for an extension of time (“EOT Application”) on 6 May 2021.
On 11 June 2021, I convened an oral hearing by telephone to hear the parties as to whether I should grant the EOT Application. At the conclusion of that hearing, I made an oral decision to refuse the EOT Application, and indicated I would publish my reasons after the hearing.
These are my reasons for refusing the EOT Application.
DATE OF SERVICE
As a preliminary issue, I note there is no argument between the parties about whether or not and when the Applicant was correctly served with the Refusal Decision.
CONSIDERATION OF PRINCIPLES RELATING TO EXTENSION OF TIME APPLICATIONS
If an application is filed out of time, a prospective applicant must apply for an extension of time. The Applicant has done this.
The AAT Act allows me to grant an extension of time if satisfied “that it is reasonable in all the circumstances to do so.”[1] The principles which inform the Tribunal as to whether it is reasonable in all the circumstances to grant an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Johnson and Minister for Home Affairs [2018] AATA 3469. These cases make it clear that I must consider:
(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)the merits of the substantive application for review; and
(e)any alternative avenues of relief for the applicant should the extension of time not be granted.
[1] AAT Act, s 29(7).
I will consider each in turn.
Extent of the delay
The extent of the delay is 10 days. This is not a significant delay. Further, I note the Minister accepts this is a “moderate” delay in the context of a 28-day time limit. In these circumstances, the extent of the delay does not militate against granting the EOT Application.
Explanation for the delay
Tragic circumstances are propounded by the Applicant for the delay in lodgement. The Applicant’s sister, nephew and brother-in-law each passed away in April this year. Her time was occupied with making funeral arrangements. In these circumstances, the Respondent accepts the Applicant has provided “an explanation” for the delay. This element does not militate against granting the EOT Application.
Prejudice to the Respondent or the general public
At the interlocutory hearing, the Respondent’s representative said that “beyond the significant public interest in the finality of administrative decision making” the Respondent would not be prejudiced if the EOT Application were granted. Again, this element does not militate against granting the EOT Application.
The merits of the substantive application for review
The Respondent contends that the Applicant does not have a strong case for the substantive application. This is the primary basis on which the Respondent opposes the EOT Application.
This Applicant is aged over 60. Pursuant to s 21(4)(f), she is eligible to become an Australian citizen if the Respondent is satisfied that she is of good character at the time of the Respondent’s decision on the Citizenship Application.
The Applicant has provided certain information to the Respondent indicating that she is an accused party in relation to three pending or current legal proceedings in the Philippines. Those proceedings relate to the unauthorised disbursement of public funds. It is not necessary to recount the factual and procedural circumstances of those proceedings. Sufficient details appear in submissions filed by the Respondent and placed on the Tribunal’s file. The relevant portion of those submissions records the following details about the abovementioned proceedings:
“She was employed at the Philippine Amusement and Gaming Corporation (PAGCOR) from 1987 to 2010 and was the Vice President of the Accounting Department from 2003 to 2010;
Part of her role as Vice President was to sign Accounts Payable Vouchers (APVs) in the course of processing disbursements, pursuant to the resolution or approval of the Board of Directors. She did not have any discretion to approve payments, rather, she simply implemented the resolutions of the Board. As long as the Board approved the disbursements, her Department had no choice but to process them;
In 2013 and 2016, the following proceedings were brought against PAGCOR’s previous head of administration, Mr Efraim C Genuino:
o People v. Genuino, et al. Case Nos. SB-13-CRM-0605 to -0606 (BALER cases)
o People v. Genuino, et al. Case Nos. SB-13-CRM-0608 to -0643 (BIDA cases)
o People v. Genuino, et al. Case Nos. SB-16-CRM-0326 to -0327 (PASA cases)
In the BALER cases, it is alleged that PAGCOR violated s 3(e) of the Republic Act No 3019 and engaged in malversation by “causing the purchase of…movie tickets using alleged public funds in the amount of Php 26,700,000” ($717,471.13 AUD).
In the BIDA cases, it is alleged that PAGCOR disbursed funds in favour of the BIDA Foundation Inc and BIDA Production in the guise of donations or grants for promotional expenses and advertisement expenses, as well as grants for corporate social responsibility projects.
In the PASA cases, it is alleged that PAGCOR disbursed funds in the amount of Php 37,063,488.21 ($1,000,996.37 AUD) for the use of TRACE Aquatic Centre (which was owned by Mr Genuino), when such funds were intended for the Philippine Sports Commission.
In each case, the plaintiff has finished the presentation of its witnesses. In the BALER and BIDA cases, the evidence of those accused is yet to be heard. In the PASA cases, the evidence of those accused has commenced, but has not concluded. None of the cases have a next Court date.”
Citizenship Procedural Instruction 15 stipulates that for a person to be of good character, they would have to be “honest and financially responsible”. The abovementioned allegations of fraudulent conduct on behalf of the Applicant are clearly serious. The Respondent submits that while the Tribunal is not expressly prohibited from granting citizenship, the Tribunal must still be positively satisfied that the Applicant is of good character.[2] It is not sufficient for the decision-maker to believe that there is a mere “chance” that the Applicant will be found to be of good character.[3]
[2] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 [55] (“BOY19”).
[3] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 [55]. Note: BOY19 was decided in the statutory context of a s 21 (2)(h)-governed application. The Federal Court has explained that this principle is equally applicable in a s 21 (4)(f)-governed application.
As noted by the Respondent, this is not a case where the offences the Applicant is charged with in the Philippines are criminalised in that country but not in Australia. This is not only apparent from the nature of the fraudulent conduct alleged, but from the potential penalties that may be imposed on the Applicant if she is convicted. According to the Respondent’s abovementioned written submissions, those penalties include:
“For breach of s 3(e) of the Republic Act No 3019 (attached): not less than six years and one month nor more than fifteen years imprisonment, perpetual disqualification from public office, and confiscation or forfeiture in favour of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income;
For malversation exceeding Php 8,800,000.00: reclusion perpetua (30 years imprisonment if pardoned, otherwise 40 years imprisonment), as well as perpetual special disqualification and a fine of equal to the amount of the funds malversed or equal to the total value of the property embezzled […].”
[Internal citations omitted]
I accept the Respondent’s contention that until such time as all three proceedings are finalised, the Applicant’s prospects of satisfying the Tribunal she is of good character are low. This element militates in favour of refusing the EOT Application.
Any alternative avenues for relief if the extension of time is refused
If I refuse this EOT Application, the Applicant can re-apply for citizenship conferral following finalisation of the abovementioned proceedings in the Philippines. This factor therefore weighs against granting the EOT.
Conclusions
I consider that on the basis of (1) the limited merits of the substantive application; and (2) the available alternative avenues for relief for the Applicant, the EOT Application should be refused.
DECISION
The EOT Application is refused.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of
..............................[sgd]................................
Associate
Dated: 14 June 2021
Date(s) of hearing: 11 June 2021 Advocate for the Applicant: Ms Ester Hernandez Malgapo Solicitors for the Applicant: Self-represented Advocate for the Respondent: Ms Cody Allen, Lawyer Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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