Palemala Nadzan and Minister for Home Affairs (Citizenship)

[2019] AATA 4365

Palemala Nadzan and Minister for Home Affairs (Citizenship) [2019] AATA 4365 (28 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/6024

Re:Logeswaran Palemala Nadzan

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:28 October 2019

Place:Sydney

The application for an extension of time is granted.

.................................[sgd].......................................

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – Extension of time application – whether there is an acceptable explanation for the delay –– whether applicant rested rights – merits of substantial application – prejudice – fairness - extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601

Assafiri v Minister for Immigration and Border Protection [2014] AATA 35

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Charalambous and Secretary, Department of Social Services [2017] AATA 1049

Comcare v A’Hearn (1993) 45 FCR 441

Crick and Prosegur Australian Pty Ltd [2016] AATA 313

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Eidson v Minister for Immigration and Border Protection [2017] AATA 1354

Hillman v Australian Postal Corporation [2017] AATA 1411

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 [1995] 59 FCR 423

Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Jackamarra v Krakouer [1998] HCA 27

Jamal v Secretary, Department of Social Services [2018] FCA 513

Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27

Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

McKenzie and Secretary, Department of Social Services[2016] AATA 1051

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649

Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Mohammed v Minister for Immigration and Border Protection [2018] AATA 687

Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082

O’Gorman and Comcare (Compensation) [2017] AATA 2192

Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27

Parker v R [2002] FCAFC 133

Phillips v Australian Girls’ Choir [2001] FMCA 109

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608

Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Australian Citizenship Policy, effective 1 June 2016

REASONS FOR DECISION

Chris Puplick AM, Senior Member

28 October 2019

The reviewable decision

1. Mr Logeswaran Palemala Nadzan (the Applicant) made an application for citizenship by conferral pursuant to the provisions of the Australian Citizenship Act 2007 (the Act) on 24 August 2017.[1]

   [1] Section 37 Tribunal Documents at [12].

2. On 11 July 2019 a Delegate of the Minister (the Respondent) refused that application on the grounds that the Applicant was not a person of good character as required by section 21(2)(h) of the Act.

3. The basis for the Delegate’s decision was two-fold, namely that the Applicant had been convicted in November 2015 of committing a breach of an Apprehended Violence Order (AVO) (Domestic) for which he had received an 8 month bond and that when he completed his citizenship application form he had failed to declare that this conviction had been recorded against him.[2]

   [2] Section 37 Tribunal Documents at [12]-[18].

   THE APPLICATION FOR REVIEW

4. The Applicant was notified by the Delegate that there was information before him/her which suggested that the Applicant was not a person of good character and invited to make representations in response this information. That notification was sent on 29 November 2018 and the Applicant responded by sending some material in the form of letters of reference and support and a statement from a mental health nurse/therapist. There does not appear to have been any information supplied to the Delegate explaining the circumstances leading to the granting of the AVO or the circumstances of its breaching. This, together with a failure of the Applicant to express remorse or contrition, led the Delegate to make a final decision rejecting the citizenship application on 11 July 2019.

5. That notification was sent on 11 July 2019 advising the Applicant that he had 28 calendar days challenge that decision.[3] That period of time expired on 8 August 2019.

   [3] Ibid at [9]-[10].

6. The Applicant did not lodge an appeal for a review of the decision until 23 September 2019 which was some 46 days out of time.[4] The application for review was accompanied by an application under section 29(7) of the Administrative Appeals Tribunal Act 1975 which provides that:

   (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.

   [4] Ibid at [3]. The document is dated 13 September 2019 but was not lodged until 23 September 2019.

7. The question of whether or not to grant such an extension of time (EOT) came before the Tribunal on 24 October 2019. In these proceedings the Applicant was ably assisted by Mr James Southan (a mental health nurse practitioner) and a Tamil-speaking interpreter further assisted the Applicant’s presentation.

   BACKGROUND INFORMATION

8. The Applicant was born in Malaysia in September 1971 and first arrived in Australia in April 2000. He has resided in Australia since that date and has been the holder of a number of different classes of visas. He is currently the holder of a class BB-155 (Return Resident) visa which was granted in May 2010 and renewed in August 2016.[5]

   [5] Ibid at [12].

9. It appears from the record that the Applicant was convicted of the offence of contravening an AVO (Domestic) on 25 November 2015 and that he was made subject to a good behaviour bond for a period of 8 months,[6] expiring on July 2016.[7]

   [6] Ibid at [14].

   [7] Ibid at [16].

10. It is not possible to determine from the material before the Tribunal as to what the circumstances were which led to the issue of the original AVO, exactly when it was issued, nor the length of time for which it was imposed.

11. The Applicant appealed the severity of the bond but this appeal was dismissed, and the sentence confirmed, in the District Court in February 2018. It appears that an AVO was confirmed to be in place for a period of 3 years before 25 November 2015.

12. In some respect the lack of detail about the issuing and breaching of the AVO have made it more difficult for the Tribunal to come to any view about the nature of the offence which the Respondent has characterised as “serious”.[8] It is, of course, not permissible for the Tribunal to seek to “go behind” any Court decision or to call any aspect of it into question.[9] The Tribunal must just accept the fact of the conviction and take note of the sentence.

    [8] Respondent’s Notice of Opposing Application for Extension of Time.

    [9] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.

13. In any event, the conviction itself took place in the period of time prior to the Applicant’s lodgment of his citizenship application.

14. In that application an applicant is asked to answer the question [29(a)]:

    “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”

15. In his application the Applicant clearly ticked the box marked “No”.[10]

    [10] Section 37 Tribunal Documents at [95].

16. This is clearly not an accurate response.

    PRINCIPLES COVERING EXTENSION OF TIME (EOT) APPLICATIONS

17. 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] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344. , affirmed by the Full Court in Parker v R [2002] FCAFC 133 at [6].

18. 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.

19. There is however, very powerful authority which stresses the importance of statutory time limits being observed.

20. McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor.[12] His Honour gave four reasons why such limitations are an important part of the legal process. He 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.

    [12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553].

21. His Honour also noted that:

    An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[13]

    The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[14]

    [13] Ibid at [551].

    [14] Ibid at [554].

22. Similarly, in Hunter Valley, Wilcox J observed:

    Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable; explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[15]

    [15] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348].

23. Further refinement of this check-list was suggested in both Phillips v Australian Girls’ Choir[16]  and in Hillman v Australian Postal Corporation[17], where the essential principles were held to be

    ·Delay

    ·Prejudice

    ·Merits

    ·Fairness.

    [16] Phillips v Australian Girls’ Choir [2001] FMCA 109.

    [17] Hillman v Australian Postal Corporation [2017] AATA 1411.

    CONSIDERATIONS

24. In effect, the primary matters for consideration in applications such as this are two-fold: was there a reasonable explanation for the delay in lodging the application and is there a reasonable prospect that, if the matter were to proceed to a full merits-based hearing, it would have reasonable prospects of being successful.

25. Equally, this Tribunal has noted that the check-list items in Hunter Valley “are not be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given.”[18]

    [18] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

    Reasons for the delay

26. The Applicant’s representative  writes:

    “Mr Nadzan has received notice of refusal during a period of significant stress and a decline in his mental health. Unfortunately during this period (all of July) I have been away on extended leave. Mr Nadzan has become quite unwell during this period and we are attending to his appeal as a priority.”

27. In response, in the Respondent’s formal statement opposing the application for an EOT:

    1.The date of the original application is wrongly stated as 24 August 2014 instead of 24 August 2017;

    2.The Tribunal is presented with the Applicant’s statement as to why the original decision should be challenged, as stated in the Applicant’s Application for Review of Decision (Individual) and not with the Applicant’s reasons for lodging the application out of time as stated in his Application for Extension of Time for Making an Application for Review of Decision.

28. Nothing relevant was put in writing to the Tribunal in response to the Applicant’s explanation for lateness although in oral submissions to the Tribunal the Respondent attacked the lack of probative medical evidence to sustain the Applicant’s claims.

29. What is addressed is the substantive matter of the Delegate’s decision which is not a matter for this hearing to canvass in detail and most of which would be considered at the stage of the merits-review hearing should an extension of time be granted.

30. Each of the two elements of the Applicant’s statement need to be considered.

31. In the original EOT application, the Applicant had not provided any corroborative or supporting evidence to establish that the Applicant was not competent to deal with the notice from the Department seeking his response to the unfavourable decision. However Mr James Southan who has been assisting the Applicant in the management of his mental health condition provided further details both of the Applicant’s treatment regime and his own role in working with him over a period of at least three years.[19] He also gave details of the decline in the Applicant’s mental health status throughout this period, including the emergence of elements of suicidal ideation. He currently provides weekly consultation and therapy sessions with the Applicant and is well qualified to present evidence on the Applicant’s behalf in his area of qualified practice.

    [19] Section 37 Tribunal Documents at [128].

32. The Respondent accepted that this new information added to the material before the Tribunal noting that it had not been adduced in association with the original EOT application.

33. It is a well-established principle that the Tribunal must make its decision(s) on the material before it at the time of that decision-making and may take into account any additional material presented prior to or at that date.[20]

    [20] Shi v Migration Agents Registration Authority [2008] HCA 31; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Re Greenham and Minister for Capital Territory (1979) 2 ALD 137.

34. The mere existence of medical circumstances alone are not sufficient for an EOT to be granted,[21] but where they are a relevant factor in the equation they need to be given due consideration.

    [21]McKenzie and Secretary, Department of Social Services[2016] AATA 1051 at [22-23]; Charalambous and

    Secretary, Department of Social Services [2017] AATA 1049 at [16].

35. Equally the absence of the Applicant’s support person(s) is not in itself a sufficient reason. However, the evidence from Mr Southan was to the effect that the Applicant relied upon him to assist in his dealings with the Department and that he (the Applicant) had difficulty understanding formal correspondence. It appears that the Applicant did not consult Mr Southan until 13 September 2018 when he showed him the rejection letter from the Department. Mr Southan assisted him to download and complete an appeal notice and an EOT application on that day. There was then a delay of ten days before the Applicant hand-delivered the paperwork to the Tribunal’s offices, although there is no explanation for this further delay.

36. Mr Southan described his absence during the month of July as “unfortunate” and indicated that had he been present he would have been in a position to assist the Applicant as soon as he became aware of his circumstances.

37. Taken together the Tribunal is persuaded, on balance, that the Applicant has established that, in all the circumstances, the reasons for the delay are acceptable as an explanation. The Applicant’s dependence upon Mr Southan and others, while unfortunate and not helpful to him in terms of meeting statutory requirements, is understandable.

    Merits of the application:

38. As noted above in EOT applications it is not appropriate for the Tribunal to seek to canvass in any detail the substantive merits of the original application itself. However, it needs to be aware of the essentials of the case in question and have some appreciation of the issues likely to be canvassed at any full merits-based hearing.

39. In Jackamarra v Krakouer[22] the High Court stated:

    [3] The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdiction dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta for example, 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 the 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 the 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 the time."

    [22] Jackamarra v Krakouer [1998] HCA 27; Per Brennan CJ and McHugh J [also Kirby J at 66].Footnotes omitted.

40. In Jamal v Secretary, Department of Social Services [23] the Federal Court stated:

    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.

    1.       [23] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6] per Bromwich J.

1. In assessing the prospects of success the Tribunal is conscious of several factors:

   1.There is extensive Tribunal and Court authority which indicates that both take very seriously any convictions for acts of domestic violence. Such convictions weight very heavily against any finding that an applicant satisfies the requirement to be a person of “good character” as required by section 21(2)(h) of the Act.[24]

   2.There is also extensive Tribunal and Court authority which holds that where an applicant conceals or fails to reveal that they have been convicted of an offence on their citizenship application form, this will count very heavily against a finding that an applicant is a person of good character.[25] Misleading the Department by acts of omission are regarded as serious offences.[26]

   3.The Australian Citizenship Policy, a document which has been issued to guide decision-makers in assessing citizenship applications, and to which such decision-makers are required to have regard,[27] makes it clear that “A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.”[28] In this instance, while the Applicant has not committed any further offences since the expiry of his bond in August 2016, there is a question of whether or not just over three years qualifies as being sufficient time elapsed to establish a claim to being of good character. The weight of Tribunal opinion on this matter tends to regard three years as less than optimal in this regard.[29]

   [24] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601; Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686; Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608.

   [25] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27; Mohammed v Minister for Immigration and Border Protection [2018] AATA 687; Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.

   [26] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255; Eidson v Minister for Immigration and Border Protection [2017] AATA 1354.

   [27] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.

   [28] Australian Citizenship Policy (1 June 2016) page [150]. Also Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132; Assafiri v Minister for Immigration and Border Protection [2014] AATA 35.

   [29] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601; Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608.

2. Against this a number of matters need to be considered.

3. In the first instance, a merits-hearing may have before it more information about the original AVO, its breaching and the reasons which led the court to impose the sentence which it did. The fact that none of that was in evidence before this hearing makes it hard to determine whether any extenuating circumstances (for example the Applicant’s mental health status) might exist related to making an assessment of “good character” or whether any guidance might be available from any sentencing remarks which may have been made.

4. In his sworn evidence and in a Statutory Declaration[30], the Applicant indicated that his original Citizenship Application form had been completed by people at Foster House which is a Salvation Army facility assisting homeless men. The Applicant has been a regular client of that service[31] and continues to do part-time voluntary work for them. He told the Tribunal that the questions in section 29 of the form were never read to him and that he just signed the application form as completed by others. He also said that the people at Foster House were aware of his previous conviction for breaching an AVO because he had told them about it.

   [30] Section 37 Tribunal Documents at [130].

   [31] Ibid at [131].

5. Such information does not, of course, diminish the personal responsibility which any applicant must accept when completing formal documentation such as this.

6. However, it would be open to a Tribunal reviewing matters on their merits to conclude that even if the facts themselves weighed against the Applicant, they were not of sufficient weight or gravity to mean that he could not still be regarded as a person of good character, referring to the enduring moral qualities[32] which attach to that designation.

   [32] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 422.

7. It would also be open to the Tribunal, in the light of evidence before it to come to its own conclusions about the lasting or enduring period of time question.

8. This Tribunal does not believe that the findings of a merit-based hearing would automatically disqualify the Applicant but rather that he should have the opportunity to present his case and have it tested appropriately.

9. Once again, on balance, the Tribunal is inclined to take the position that “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”[33]

   [33] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at [30].

10. The Tribunal does not believe that the Respondent would suffer any undue prejudice were this EOT application to be granted.

11. It is also important to note that in making a decision about what is reasonable in all the circumstances, the Tribunal must consider all of the circumstances of each individual case and accept that no single factor will be determinative.[34] Cumulatively, the circumstances before the Tribunal weigh in favour of the Applicant.

    [34] Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14]

    DECISION

12. The application for an extension of time is granted.

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: 28 October 2019

Date(s) of hearing:	24 October 2019
Advocate for the Applicant:	Mr J Southan
Solicitors for the Respondent:	Ms L Hargrave, Clayton Utz  (by phone)