Park and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 2299
•18 July 2018
Park and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2299 (18 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1506
Re:Sun Young Park
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 July 2018
Place:Sydney
The application for an extension of time is granted.
......................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – whether delay was significant – whether explanation for delay was sufficient – whether the application has merit – cancellation of approval of application for Australian citizenship – whether applicant is a permanent resident – failure to attend citizenship ceremony and make pledge of commitment –notification correspondence sent to wrong address – whether administrative error – extension of time application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Australian Citizenship Act 2007 (Cth) ss 20, 22, 22A, 25, 26
CASES
Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
O’Riordan and Minister for Home Affairs (Citizenship) [2018] AATA 1497
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 July 2018
INTRODUCTION
On 17 July 2012 Ms Sun Young Park, a citizen of the Republic of Korea (South Korea) made an application for Australian citizenship under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act).[1]
[1] Respondent’s Tender Bundle at page 1
This application was granted on 6 August 2012.[2]
[2] Respondent’s Tender Bundle at page 22
The mere approval of an application does not, in itself, confer citizenship upon the applicant. In order for this to occur and the citizenship process to be completed, the successful applicant must make a pledge of commitment (under sections 20(b) and 26 of the Act).
It is that action which enlivens the grant of citizenship and until it is completed, the grant itself has no effect. Furthermore the pledge must be made in the prescribed form and it must be made within twelve months of the grant of citizenship (section 26(4) of the Act).
Ms Park was invited to attend a citizenship ceremony on three separate occasions (21 February 2013, 23 May 2013 and 25 July 2013). The citizenship pledge is usually made at such ceremonies, however it can also be made in other circumstances or places, including being made at one of Australia’s overseas diplomatic missions, such as in Seoul.
Ms Park failed to attend any of the ceremonies to which she was invited.
It appears that Ms Park moved from Australia back to Korea on or about 8 April 2013 making occasional return visits.
On 14 March 2015 Ms Park departed Australia and has not returned since that date.
When she departed Australia, Ms Park held a Resident Combined Spouse (subclass 801) visa which affords permanent residency. That visa expired on 4 July 2016.[3]
[3] Respondent’s Tender Bundle at page 25
On 27 June 2017 the Department sent Ms Park a notice of its intention to consider cancellation of her citizenship approval. The grounds for that were that she had failed to make the pledge of commitment within the prescribed 12 month period. Ms Park was invited to comment on this notice of intention.
The records of the Department demonstrate that up until 7 December 2017 Ms Park had not responded in any way to the notice of 27 June 2017 and, as a result, on that date (7 December 2017) the Department notified Ms Park that her citizenship approval had been cancelled.[4]
[4] Respondent’s Tender Bundle at pages 13 and 18
Section 25 of the Act provides that such a cancellation may be made where the Minister is satisfied that the applicant:
·is not a permanent resident (section 25(2)(b)(i)); or
·has failed to make the pledge of commitment within the twelve month period (section 25(3)(a)).
Ms Park subsequently sought to have this decision by the Department reviewed by this Tribunal.
APPLICATION FOR EXTENSION OF TIME
Such applications must be made within 28 days of receipt of the notice of the decision (Administrative Appeals Tribunal Act 1975 (Cth) section 29(2)) which is sought to be reviewed. The decision in question was received by Ms Park on 7 December 2017 and so the relevant date was 4 January 2018.
Ms Park did not make an application for review within that period but made an application for an extension of time to lodge such an appeal on 29 March 2018 with a request for an extension of time to 30 April 2018. That notification was received by the Tribunal on 14 April 2018 at which time it sought the views of the Department as to whether or not they opposed such an extension being granted.
The Department notified the Tribunal on 18 June 2018 that the application for an extension of time was opposed on the grounds that the delay in question was significant, that no sufficient explanation for the delay had been provided and that, in any event, the application itself had no prospect of success.[5]
[5] Respondent’s Notice Of Opposing filed with the Tribunal 18 June 2018
The matter came before the Tribunal for determination on 17 July 2018.
Normally at this stage, I would refer to the tests laid down by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment[6] which encompass matters such as the length and reason for any delay, the prejudice to the Respondent and others if the extension is granted, the issue of whether an applicant was merely resting on their rights and the merits or prospect of success of the application itself.
[6] (1984) 3 FCR 344
However there are two threshold matters of concern to me immediately.
THRESHOLD MATTERS
The Minister bases his decision on the claims that Ms Park is not a permanent resident and that she failed to attend such ceremonies as were open to her in order to make the pledge of commitment.
Permanent residency
In relation to the first – permanent residency – the Department advises that Ms Park’s permanent resident visa expired on 4 July 2016. Ms Park’s attention was drawn to this by way of the cancellation letter of 7 December 2017, although it could be argued that she must have been aware of this in any case. Her response was to lodge a new application for a Return (Residence) (class BB) (subclass 155) visa almost immediately thereafter, on 11 December 2017. This visa was granted on 12 January 2018.
This means that:
·at the time when Ms Park should have made arrangements to make the pledge of commitment (6 August 2012 – 6 August 2013) she was both occasionally resident in Australia and the holder of a permanent resident visa,
·on the date that she was advised that the Department was considering cancellation of her citizenship grant (27 June 2017) and on the date of the actual cancellation (7 December 2017) she was neither resident in Australia nor the holder of a permanent resident visa,
·on the date she lodged her application for a review of the cancellation decision she was not resident in Australia but she did hold a permanent resident visa.
Pledge of Commitment
In relation to the second leg of the cancellation justification, namely the failure to attend a citizenship ceremony or to make the pledge of commitment, the evidence before the Tribunal clearly demonstrates that the Department had sent relevant notifications or invitations to citizenship ceremonies to an incorrect address.
Critically it appears that Ms Park was never formally notified of the decision to grant her citizenship application in the first place. The Respondent advised the Tribunal that they were not able to locate the correspondence conveying the positive decision made on 6 August 2012.
Given that, as explained below, all initial correspondence appears to have been sent to an incorrect address (which the Respondent admitted was an “administrative error” on their part), I feel safe in assuming that the same thing occurred with the original notification of approval.
In her original citizenship application (which is before the Tribunal) dated 17 July 2012 Ms Park declared her residential address to be 18,, 13 Bay Drive[7], Meadowbank, NSW 2114, Australia. She stated that this was also her postal address.
[7] This is the exact format given on the application form
Ms Park’s driver’s licence, issued in NSW which was valid at the relevant time (it expired on 4 September 2014) clearly shows her address as:
Unit 18, 13 Bay Drive, Meadowbank, NSW, 2114.
However, the critical letters from the Department to Ms Park clearly show that they were addressed to:
18, 3 Bay Drive, Meadowbank, NSW, 2114.
These letters include the citizenship ceremony invitations, dated 23 April, 24 June and 2 July 2013 together with a reminder letter of 3 September 2013. There is no evidence before the Tribunal to suggest that these invitations/notifications were sent to Ms Park other than by post, although at the time the Department did have her email address (which she confirmed had been unchanged and in continuous use for some twenty years) and her permission to use it as a method of contact.
I pause to observe that the “reminder” letter of 3 September[8] includes the statement that: “If you do not make a Pledge of Commitment at a citizenship ceremony within 12 months of the date when your citizenship was approved, the approval of your application may be cancelled.” It also includes the statement: “I am writing regarding your application for Australian citizenship, which was approved on 6 August 2012.” It seem to me that a reminder letter dated 3 September 2013 drawing attention to something which had to be done by 6 August 2013 is best described as either a further “administrative error” or else simply useless.
[8] As it is described in the cover sheet to the Respondent’s Tender Bundle. The letter appears at page 17
Mr Park states, in writing and under oath, that she never received these relevant notifications and that, as a result she failed to attend the nominated ceremonies.[9] She notes that on at least the occasion of 21 February 2013 she was in Australia and would have been able to attend.[10]
[9] Ms Park email to Tribunal 15 January 2018; 22 March 2018 and 13 July 2018
[10] Ms Park email to Tribunal 16 July 2018
The Department of Home Affairs website which deals with citizenship matters contains a section headed: “Attending your citizenship ceremony”. The relevant part of that section reads as follows:
”Once your application has been approved, arrangements will be made for you to attend a citizenship ceremony where you will make the Pledge. Making the Pledge is the final legal requirement to becoming an Australian citizen.”
This establishes that the onus lies squarely upon the Department to make the arrangements – it does not require anything more proactive from the person concerned other than that they turn up and make the Pledge.
I accept that had Ms Park been properly notified – that is, had the notifications been sent to the correct address – she would have been otherwise eligible to attend, make the Pledge and complete the process of naturalisation. Evidence demonstrates that she was physically present in Australia and could have attended on at least one of these occasions.
I accept that her failure to do so was as a result of no notification having been received.
Two other significant pieces of correspondence, the letter of 27 June 2017 (notification of intention to cancel) and 7 December 2017 (cancellation decision) were transmitted as attachments to the emails sent to the address supplied by Ms Park, although the letters themselves both remained incorrectly addressed. Ms Park agrees that she received the 7 December 2017 email/letter but vigorously denies that she received the email/letter of 27 June 2017.[11]
[11] Ms Park email to Tribunal dated 17 July 2018
The Tribunal is not in a position to determine that matter but is inclined to accept Ms Park’s sworn testimony to that effect.
This is an important point because the Respondent draws attention to the fact that the letter of 27 June 2017 specifically advises Ms Park that her citizenship grant will be cancelled unless she took steps to “contact the department as soon as possible to discuss your attendance at a future citizenship ceremony and/or to provide information about the reason you did not attend a ceremony.”[12]
[12] Respondent’s Tender Bundle at page 14
Clearly there was no fault on Ms Park’s part in failing to provide the Department with the correct information for notifications and correspondence to be sent.
However, there exists the possibility that the invitations were sent and received electronically (as was the letter of 7 June, receipt denied, and 7 December 2017, receipt acknowledged) and then the matter becomes one of there being any proof of this and any proof of their receipt to balance against Ms Park’s denials of receipt. Ms Park’s original application form, as already noted, contains an email address using the Hotmail service.
Once again, I am content, prima facie, to accept her denial of receipt of the notification of 27 June 2017 and accept her word that, had she received the correspondence, she would have responded appropriately. There would have been every incentive to do so and none not to respond. Ms Park strikes me as a person who is well organized, efficient and anxious to have this matter concluded properly, although she did indicate in testimony that she had constraints placed upon her both as a result of health problems (a diagnosis and surgery for thyroid cancer in May 2013) and child care responsibilities.
In any event, it is not the notifications of 2017 that concern the Tribunal, but rather the manifest failure of the Department to provide proper notification of either the original grant of citizenship or the invitations to citizenship ceremonies in 2013 which is critical. There is, as I have said, no immediate claim by the Department that these were sent electronically.
The veracity of all such claims of course can best be established by the relevant files and documents being put before the Tribunal.
If they establish that there was administrative error on the part of the Department and that error was the cause of Ms Park’s non-attendance which, in turn led to the citizenship grant cancellation, then Ms Park may have a significant case for that cancellation to be set aside and for her to take the Pledge at this stage, something which she would be able to do in South Korea.
I note that the concept of “administrative error” (in terms of the use of wrong addresses, admitted by the Respondent) is itself recognised, in different contexts, elsewhere within the Citizenship Act (see sections 22(4A), 22(5), 22A(4), 22A(5)).
If on the contrary, there is no error on the part of the Department, then Ms Park may well find that the decision to cancel her grant is upheld. In that case, it should be noted that that decision will be taken as “never to have been given” (section 25(5)) and Ms Park will be free to make another application de novo.
It is important to recognise some strength in the Respondent’s reasons for resisting this application. The first of these is that a person in Ms Park’s position who had numerous dealings with the Department over a variety of visa applications would have been aware that it was unusual for the Department to have apparently taken many years to respond to her citizenship application. The Respondent pressed Ms Park on this point. She replied that her visa matters had been handled by an Agent on her behalf and she had little or no direct contact with the Department. However she was less forthcoming on the question of whether or not she took active steps to find out what was happening with her application during the subsequent five year period. To this extent there is some validity in the suggestion that she was resting on her rights without adequate active participation in the process.
Indeed, the Respondent goes further and asserts that, in effect if not formally, Ms Park has “abandoned” her claim for citizenship by relocating herself to South Korea and making her life there, apparently in both a familial and employment sense. The Tribunal is not in a position to make any assessment of this, although it notes that Ms Park claims that her location in South Korea is due to her husband’s business and that all her immediate family (who are also in South Korea) are Australian citizens.
The Respondent also sought to make a point about Ms Park’s failure to notify the Department of her change of location when she left Australia and while it is true that she was required to, the Tribunal does not see this as a major factor in its own decision making. Curiously, the Respondent also pressed Ms Park on arrangements made for her unit to be rented after her departure and for arrangements being in place for mail to be forwarded. Apart from the fact that Ms Park says that such arrangements were made by her husband and that for some months after their arrival in South Korea the couple did not have a permanent address; the Tribunal wonders what difference this would have made, given that Departmental correspondence was not going to that address in any case – it was going somewhere else.
When pressed on the question of why she failed to take immediate action after the notification of 7 December 2017, Ms Park stated that it was her belief (however erroneous) that she needed to have permanent resident status in order to make such an application. In this belief she made such an application on 11 December 2017 which was granted on 12 January 2018. That indicates a reasonable and speedy response. However the delay between the grant on 12 January and the lodging of the application on 29 March 2018 clearly falls outside the 28 day requirement.
I have set out my approach to determining whether such delays are reasonable or not in my decision in O’Riordan and Minister for Home Affairs (Citizenship)[13] and I will not repeat them here. Suffice to say that where there are reasonable grounds for the Tribunal to hear the matter on its merits, a flexible and benign approach is, in my view, the correct and preferable one to take.
[13] [2018] AATA 1497
CONCLUSIONS
I have come to the conclusion that (in Hunter Valley terms),
·although it may be argued that Ms Park’s delay in seeking an extension of time was excessive, and her reasons unpersuasive – I do not think this to be the case,
·there is no real prejudice to the Respondent, or any other party in similar circumstances, should the extension be granted,
·while there is some element of resting on her rights, Ms Park was nevertheless reasonably proactive once she had received the notification of intention to cancel, and
·given the failures of the Department to provide proper notifications to Ms Park, she would have a real prospect of success on the merits.
If that is the case, then the best way for this to be resolved is for the matter to come before the Tribunal in order to sort out exactly what has occurred based upon an examination of all the relevant submissions and documents.
In particular the Tribunal can examine any evidence about the use of electronic communications, especially in relation to the original notification of the decision of 6 August 2012 and Ms Park’s denial of receipt of the notification of 27 June 2017.
Given that there is a possibility that such determinations may result in findings in favour of Ms Park, it would be unjust for the Tribunal to deny her the opportunity to press that case.
This can only be facilitated by the Tribunal granting Ms Park an extension of time in which to lodge her application for review.
DECISION
Ms Park is hereby granted an extension of time to lodge her application for review to 30 April 2018.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 18 July 2018
Date(s) of hearing: 17 July 2018 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers
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