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

Nadiry and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2122 (27 June 2022)
Division:GENERAL DIVISION
File Number: 2022/2620
Re:Freba Nadiry
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:27 June 2022
Date of written reasons: 30 June 2022
Place:Melbourne

The Tribunal refused to extend time under section 29(7) of the Administrative AppealsTribunal Act 1975 for the Applicant to lodge her application for review of a decision. The application has no prospect of success.
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Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – request for extension of time to lodge application – discretionary power – factors to take into account in exercising discretion – length of the delay – reasons for the delay – whether there is an arguable case – prejudice to the other party – other avenues of relief – substantive case has no reasonable prospect of success – not desirable to exercise discretion – oral decision – written reasons provided
CITIZENSHIP – application for Australian citizenship by conferral – applicant satisfies certain requirements – applicant has not successfully completed citizenship test – mandatory requirement for conferral not met – substantive application has no prospect of success
Legislation
Acts Interpretation Act 1901 (Cth), s 36
Administrative Appeals Tribunal Act 1975 (Cth), ss 29, 33A, 37, 42B
Australian Citizenship Act 2007 (Cth), ss 21, 23A, 24, 53
Evidence Act 1995 (Cth), ss 160, 161, 163
Cases
Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576
Kujic v Secretary, Department of Social Security [1994] FCA 886
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
R v Secretary of State for the Home Department: Ex parte Mehta [1975] 2 All ER 1084; [1975] 1 WLR 1087
Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83
Secondary Materials
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020
Australian Citizenship – Our Common Bond; Department of Home Affairs; 2020 –
Department of Home Affairs – Citizenship Procedural Instructions – CPI 26 – Australian Citizenship Test
REASONS FOR DECISION
Senior Member D. J. Morris
30 June 2022
BACKGROUND

On 20 October 2019 Miss Freba Nadiry, who is the Applicant in this matter, applied for Australian citizenship by conferral.
When a person applies for citizenship, his or her eligibility is considered under the provisions of the Australian Citizenship Act 2007 (‘the Act’).
The Minister responsible for the Act, or a person to whom he has given a delegation under section 53 of the Act, must make a decision under section 24 of the Act to approve or not to approve the person’s application. Importantly, the Act does not allow a decision-maker to defer the decision so that, for instance, a person who has not met a requirement may subsequently meet the requirement. The application must be approved or rejected.
On 23 July 2021 a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Miss Nadiry’s application.
On the same day an officer of the Minister’s Department wrote a letter to Miss Nadiry. The letter advised her of the refusal decision and that she had an entitlement to take the decision to this Tribunal for review. The period for her to do that was 28 days.
On 31 March 2022 Miss Nadiry lodged an application for review which included an application asking that the Tribunal exercise the discretion available in section 29(7) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to extend time for her substantive application to be considered.
HEARING
An interlocutory hearing was held on 27 June 2022. The question for the Tribunal to decide was whether time should be extended for a review of the decision to refuse Miss Nadiry citizenship. The hearing was by telephone under section 33A of the AAT Act. Miss Nadiry appeared and made submissions. Mr Alex Booth of Clayton Utz appeared for the Minister. The Tribunal appreciates the assistance provided by an interpreter in the Hazaragi language.
Mr Booth tendered a volume of documents lodged by the Minister under section 37 of the AAT Act (Exhibit R1).
The Tribunal also took into account these documents:
(a)an Application for Review of Decision lodged by Miss Nadiry on 31 March 2022. This included an application requesting an extension of time;
(b)a Notice of Opposing Application for Extension of Time, lodged on behalf of the Minister on 15 June 2022;
(c)the Respondent’s submissions on the application for an extension of time, dated 24 June 2022; and
(d)an email from the Minister’s legal representative dated 24 June 2022.
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).
In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 27 June 2022, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.
QUESTIONS BEFORE THE TRIBUNAL
The AAT Act provides that the prescribed time for a person to lodge an application for review is 28 days from the day on which the decision is made (section 29(2)).
However, section 29(7) of the AAT Act provides:
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.
(Emphasis added)
Therefore, the general rule is that a person who receives a reviewable decision has 28 days (or such other period as an enactment may provide) to lodge an application for review with the Tribunal. The 28-day clock starts on the day after the person receives the decision (see section 36(1) of the Acts Interpretation Act 1901 (Cth) (‘AIA’)).
If the decision is sent to the person by post, there are provisions in the AIA setting out how to calculate when the person is presumed to have received the document (sections 160 and 163 of the Evidence Act 1995 (‘the Evidence Act’). The presumption is rebuttable on the facts.
Section 161 of the Evidence Act includes a specific provision when a person receives a decision by electronic means. Section 161 provides that if a document purports to contain a record of an electronic communication, it is a rebuttable presumption that the communication was received at the destination to which it appears from the document to have been sent at the time appearing on the document.
How the Tribunal should exercise the power in section 29(7) of the AAT Act is completely at the discretion of the Tribunal. However, the Courts have developed some matters to take into account over time and Tribunal Members generally have regard for them.
A summary of the matters to which the Tribunal should have regard was set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for HomeAffairs and Environment (1984) 58 ALR 305 (‘Hunter Valley’). In abridged form, they were:
(a)The length of the delay – is it fair and equitable in the circumstances to extend time?
(b)Is there an arguable case?
(c)Has the applicant ‘rested on his or her rights’ and allowed the decision-maker to believe that the matter has been finally concluded, or has the person continued to make the decision-maker aware that he or she contests the decision?
(d)Is there a prejudice to the other party, or to others affected, or the general public?
(e)Would it be fair to other persons in a similar situation to allow the late application to be reviewed?
The Courts have often stressed that slavish adherence to the list set out above is not a desirable approach. French J (as His Honour then was, of the Federal Court) said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83, in referring to the matters listed by Wilcox J in Hunter Valley, at [97]:
His Honour did not purport to set out an exhaustive list of the criteria to be considered in an application for an extension of time. Nor should the propositions contained in the judgment be elevated into rules of law fettering the discretion. They identify factors relevant to the exercise of power and approaches to their consideration. In each case the discretion must be exercised with regard to all the circumstances.
None of these matters to take into account takes precedence over any other. The matters do not constitute a checklist, but they are a useful guide. Each extension of time must be treated on its own merits and circumstances. Sometimes merely the interests of justice may demand that time be extended.
In deciding whether to extend time, the Tribunal must make a general assessment of the substantive matter proposed to be reviewed. In R v Secretary of State for the Home Department; Ex parte Mehta [1975] 2 All ER 1084; [1975] 1 WLR 1087, Lord Denning MR said:
We often like to know the outline of the case. If it appears to be a case which is strong on its merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend time.
The High Court of Australia in Jackamarra v Krakouer [1988] HCA 27; 195 CLR 576 noted with approval Lord Denning’s reasoning in this regard, in applications of this nature. Therefore, when considering an application to extend time, the Tribunal does not dive deeply into the merits of an applicant’s case but should assess whether case is arguable.
In Kujic v Secretary, Department of Social Security [1994] FCA 886, von Doussa J said, at [6]:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If 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.
APPLICANT’S SUBMISSIONS
About the delay in lodging the application
Miss Nadiry wrote in her application form, to explain the delay, “I forgot to apply in 28 days” (Exhibit R1, p 6).
At the hearing, Miss Nadiry confirmed that she received the Department’s letter rejecting her citizenship application by email on 23 July 2021. She said she was required to pay the application fee and “didn’t have that money at that time”. She said she was aware that the letter said she had 28 days to seek review of the decision.
The Tribunal asked whether she had asked someone with better English to read the letter to her. Miss Nadiry said that she did, but not until after the 28-day period had expired.
About the substantive application
In response to direct questions from the Tribunal, Miss Nadiry agreed that she had attended the Minister’s Department on three occasions on 20 January, 19 March, and 5 July 2021 to sit the citizenship test. She also agreed that on one occasion the test appointment had been rescheduled owing to pandemic restrictions. She agreed that on some other occasions she had rescheduled her test appointments.
The Tribunal asked Miss Nadiry if she disputed that she had not satisfactorily completed the test. She responded: “I accept that I didn’t pass it. I couldn’t remember because of my children and I was too busy. I tried but I couldn’t remember much.”
She then added: “The other reason I couldn’t passed the test is that my English is not that good; I couldn’t fully understand the questions.”
RESPONDENT’S SUBMISSIONS
About the delay
Mr Booth said that the Minister’s position is that the application for an extension of time should be refused. He noted that Miss Nadiry was told of the rejection decision on 23 July 2021 but waited until 31 March 2022 to lodge her application with the Tribunal. Miss Nadiry had therefore applied 223 days out of time and there were no compelling reasons for the delay.
Mr Booth acknowledged that Miss Nadiry’s evidence was that she did not have the funds to lodge the application, but noted that she did not indicate to the Department that she intended to ask for a review of the decision.
About the substantive application
Mr Booth submitted that the substantive application has very limited prospects of success. Miss Nadiry has failed the citizenship test on three separate occasions and the policy guidance given to officers of the Minster’s Department says it is open to refuse an application if a person fails on a third occasion.
Mr Booth further submitted that, if the Tribunal did grant an extension of time, the Minister would make submissions that the substantive application should be dismissed under section 42B(1)(b) of the AAT Act because it has no reasonable prospect of success.
Mr Booth submitted that granting an extension of time would cause “disruption to the usual processes of the Tribunal” and that the Minister is entitled to rely on the 28-day period to consider that a matter had been finalised.
CONSIDERATION
In considering the citizenship application, the delegate found that she was satisfied that Miss Nadiry:
(a)was 18 or over at the time of her application and the decision (section 21(2)(a) of the Act);
(b)was a permanent resident and fulfilled the general residence requirements (sections 21(2)(b) and (c) of the Act); and
(c)was likely to reside in Australia (section 21(2)(g) of the Act).
Why was the substantive application rejected?
The delegate was not satisfied that Miss Nadiry had met the requirements in sections 21(2)(d), (e) and (f) of the Act.
If a person is being considered under the general eligibility part of the Act under section 21(2), one of the requirements is that the Minister must be satisfied that a person understands the nature of his or her 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)).
On their face, these requirements are subjective. Because of that, section 21(2A) was inserted into the Act 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 must have successfully completed the test within the (90 minute) period provided for in the determination (section 21(2A)(a) to (d)).
When did the applicant receive the rejection decision?
The letter to Miss Nadiry notifying her of the refusal and attaching the delegate’s reasons was dated 23 July 2021. The Minister submits that, as it was emailed, Mr Nadiry is deemed to have received it on the same day. The Applicant herself says that she received it by email.
The Tribunal finds that Miss Nadiry received the refusal notification letter on 23 July 2021.
This being the case, the period for Miss Nadiry to lodge an application for review ended on 20 August 2021.
The applicant’s reasons for the delay
Miss Nadiry’s reasons for not lodging an application within the statutory period are accepted by the Tribunal as genuine. However, not having the required funds to lodge an application for review, or being “busy”, are not sufficient reasons for the Tribunal to exercise the discretion.
As Mr Booth submitted, if it was a question of gathering the lodgement fee, Miss Nadiry could have notified the Minister’s Department that she was unhappy with the decision and intended to seek a review, when she could afford to. That, at least, would have let the Department know that she did not regard the matter as finalised.
Is the Minister disadvantaged if time is extended?
There is no significant prejudice to the Minister if the Tribunal did extend time. That was acknowledged by the Minister’s lawyer. However, it is a general principle of good public administration that statutory timeframes are met. In addition, the Minister foreshadowed he would make other submissions if an extension of time was granted.
An acceptable explanation for the delay
Miss Nadiry has not made out an acceptable explanation for the delay. I appreciate that, as she said, part of the challenge was that she and her husband are not fluent in English. But she admitted that when she did get around to asking a friend with better English literacy to read the Department’s letter, it was after the 28-day period had expired.
I do not think it is unreasonable that the Minister thought the matter had been concluded.
Mr Booth submitted that to extend time would cause disruption to the Tribunal. If there be any disruption, it would be very mild. The Tribunal does extend time where the grounds demand it, and the very existence of the power in section 29(7) of the AAT Act means that it is an available – albeit not routine – power to be exercised.
Is the substantive case arguable?
Turning to a general assessment of the merits of the substantive case, the Tribunal finds that it is more than weak.
In February 2020, the then Minister made the Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (‘the Determination’). The Determination has been amended subsequently, most recently on 12 January 2022. The Determination provides that a computer programme randomly selects 20 questions, of which 5 must be what are called ‘values questions’. Successful completion of the citizenship test requires a person to answer at least 75 per cent of the test questions correctly and answer 100 per cent of the ‘values questions’ correctly. Part 4 of the Determination defines the ‘values questions’ as ‘a subset of questions approved by the Minister, based on assessing an applicant’s understanding of Australian values’.
The Department issues a set of Citizenship Procedural Instructions (CPIs), essentially an internal departmental manual. CPI 26 – Australian Citizenship Test (‘CPI 26’), 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.

Miss Nadiry agreed that she attended the Department and attempted the test on three occasions. She did not pass the test. The Tribunal notes that the results were in the papers lodged by the Minister (Exhibit R1, p 194).
Has Miss Nadiry had a reasonable opportunity to sit the Test?
In Minister for Home Affairs v Zadeh(No 2) [2018] FCA 1828 (‘Zadeh’), the Court was considering an old version of the Determination, which was relevantly the same, in terms of the requirement to successfully complete the citizenship test. In that matter, Mr Zadeh had sat the citizenship test seven times on four different occasions. His application for citizenship was refused. He sought review by the Tribunal. The Tribunal remitted the matter to the Respondent on the basis that Mr Zadeh should be allowed to sit the test again in a month’s time, and if he still did not pass, he was entitled to sit it again.
The Minister appealed the Tribunal’s decision and submitted that, although it was true that there was no statutory limit to the number of times a person can sit the test, the requirement in section 21(2A) should be read in conjunction with section 24 of the Act, which requires applications for citizenship to be determined. The Minister submitted before the Court, essentially, that allowing a person to continue to attempt the test without any time limit would frustrate the obligation in section 24 to approve or not approve the application. In setting aside the Tribunal’s decision, Thawley J said that letting a person keep attempting the test had the consequence that Mr Zadeh’s application might never be determined.
The Court found in Zadeh (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 applicant 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.
I note that CPI 26 provides a general advice to decision-makers stating that in a case where a person has failed on a third test appointment, it is open to the decision-maker to refuse the person’s citizenship application. The key word in this part of CPI 26 is ‘appointment’, because a person may undertake the test on more than one occasion when they attend the Department. In this case, Miss Nadiry sat the test once on each occasion (Exhibit R1, p 194).
I do not consider it unreasonable for a delegate to make a decision on an application after a person has attended the Department on three occasions and has nonetheless been unable to successfully complete the test.
I do not find it unreasonable that the delegate decided to act after the third appointment, especially given that Miss Nadiry had asked for her test appointments to be rescheduled on four occasions (Exhibit R1, p 14), which gave her more time to prepare for the test.
I therefore find Miss Nadiry was given a reasonable opportunity to fulfil the requirements in sections 21(2)(d), (e) and (f) of the Act.
No prospect of success
There is no discretion for a decision-maker to waive the requirement for Miss Nadiry to undertake the test. She does not qualify for an age or permanent or enduring physical or mental incapacity exemption, nor does she contend that she qualifies.
Passing the citizenship test in this case is mandatory for the application for Australian citizenship to be processed by the Minister’s delegate. I therefore find that it would be futile to extend time, because Miss Nadiry cannot succeed on substantive review of her application, given she does not contest that she has not successfully completed the citizenship test.
Other avenues of relief
Mr Booth, for the Minister, emphasised at the hearing that there is no restriction on Miss Nadiry making a fresh application for Australian citizenship.
OBSERVATIONS
The document sent to Miss Nadiry by email on 23 July 2021 comprised a letter from an officer of the Department and an accompanying ‘Decision Record’, together with information on review rights. The letter was signed but the Decision Record was not.
Before the hearing, the Tribunal asked the Minister’s legal representative for details of the identity of the delegate who made the decision and an assurance that that person is authorised by the Minister under section 53 of the Act. Mr Booth advised that the person is authorised and is the same officer as the one who signed the covering letter. Mr Booth submitted that it was “all one document”. The Tribunal does not accept that contention, because not infrequently the person despatching a decision from a Department is different from the authorised delegate who made it. A person receiving a decision like this, where an officer is making it on behalf of the Minister, is entitled to know who made it. Notwithstanding that the Tribunal is satisfied that the letter sent to Miss Nadiry serves as notification of the rejection decision, the Decision Record stands as a discrete document and should be signed.
The Tribunal also notes that the Decision Record starts by stating that the delegate is satisfied of Miss Nadiry’s identity and then, later in the reasons, remarks that the prohibitions in section 24 had not been assessed. One of the prohibitions in section 24 relates to identity. It would seem, on its face, that the prohibition in section 24(3) of the Act had in fact been assessed by the delegate and does not apply.
CONCLUSION
However, these two observations do not affect the Tribunal’s conclusion that time should not be extended in this case. Apart from Miss Nadiry not putting forward a satisfactory explanation for her delay in seeking review of the substantive decision, the law is such that her quest for Australian citizenship can only proceed ‘if and only if’ she has successfully completed the citizenship test (section 21(2A)(d) of the Act). That is an insurmountable obstacle to the approval of her substantive citizenship application.
In these circumstances, it would be unfair to Miss Nadiry and impose unjustified costs on the Respondent to allow this late application to proceed further in the Tribunal when it is doomed not to succeed.
Now that the pandemic restrictions are lifting, there are more opportunities for prospective citizenship applicants to improve their English language skills through various community and commercial organisations that offer tuition. There is also a practice test on the website of the Minister’s Department, a booklet titled ‘Australian Citizenship: Our common bond’ (which includes the subject matters in the test) and a podcast of the booklet. The Tribunal urged Miss Nadiry, if she intends to lodge a fresh application for citizenship, to use these freely available resources. They will help her successfully complete the test.
DECISION
The Tribunal refused to extend time under section 29(7) of the AAT Act for the Applicant to lodge her application for review of a decision. The application has no prospect of success.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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Associate
Dated: 30 June 2022
Date of Interlocutory hearing:            27 June 2022
Applicant:  Self-Represented
Advocate for the Respondent:           Mr Alex Booth
Solicitors for the Respondent:           Clayton Utz

[2022] AATA 2122

27 June 2022

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