Ramling and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 1630

Ramling and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1630 (8 June 2021)

Division:                  GENERAL DIVISION

File Number(s):      2020/5354, 2020/5357, 2020/5359

Re:Mang Thlia Sung Ramling

Siang Ceu Thang Ramling

Abical Nilen Sung Ramling

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:8 June 2021

Place:Adelaide

The applications for extension of time are refused.

.....................[SGND]......................

Senior Member B J Illingworth

Catchwords

PRACTICE AND PROCEDURE – application for extension of time to lodge an application for review – explanation for delay – no prospects of success – no prejudice to respondent – extension of time refused

Legislation

Australian Citizenship Act 2007 (Cth).

Cases

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

Secondary Materials

Australian Citizenship Policy Statement, Department of Immigration and Border Protection, 27 November 2020.

REASONS FOR DECISION

Senior Member B J Illingworth

8 June 2021

1. The Applicants are sisters born in Myanmar who travelled to Australia with their parents and other siblings and arrived on 26 April 2012 as secondary holders of Refugee and Humanitarian (subclass 200) visas.

2. The First Applicant was born on 12 September 2006 and is currently 14 years of age. The Second Applicant was born on 19 May 2005 and is currently 16 years of age. The third applicant was born on 10 May 2003 and is currently 18 years of age.

3. The Applicants’ father applied for Australian citizenship by conferral which was received by the Minister’s Department (the Department) on 28 April 2017. The Applicants were included in the father’s application for Australian citizenship. At that time, they were each under 16 years of age.

4. Following a request for information letter sent by the Department to the Applicants’ father, and a subsequent invitation to comment and the father’s replies, the Minister’s delegate on 12 June 2020 refused the father’s application for Australian citizenship because, pursuant to subsection 24(3) of the Australian Citizenship Act 2007 (the Act), the delegate was not satisfied of the father’s identity.

5. The Minister’s delegate also decided that the Applicants satisfied the requirements of subsection 21(5) of the Act, namely that they were each eligible to become Australian citizens.  Nonetheless, the delegate in the exercise the discretion in subsection 24 (2) of the Act refused to approve the applications because the Citizenship Policy (the Policy) did not apply to the Applicants’ circumstances. The Policy contains guidelines for the exercise of the discretion in subsection 24(2) in relation to children under the age of 16 years who make an application for citizenship in their own right.

6. On 3 September 2020, that Applicants applied to the Tribunal for an extension of time within which to make an application for review of the delegate’s decision to refuse their applications for Australian citizenship by conferral. The father did not apply for review of the delegate’s decision and did not apply for an extension of time within which to do so. Hence, the application for extension of time related solely to the three applicant daughters.

7. The applications were 44 days out of time. The Respondent opposed the application for extension of time on the basis that the delay was not insignificant, each application lacked merit, and there were alternate avenues of relief available to each Applicant.

8. The father in an email dated 3 September 2020, with respect to the application for extension of time, said:

   Dear Respected Sir/ Madam

   I am [name]. Appealing to have special consideration upon my application for reviewing. Apologies for late to write an application for reviewing because I know nothing about notice of the limited time and period in 28 days. I humbly request you to have mercy upon our application. (sic)

9. The father provided further explanation for the delay in filing the application in a document entitled ‘Statement of Claim’ in which he said:

   I apologize for adverse information and not provided a detailed account of my life story in addition to request to complete and other related information on time in this regard because of Lockdown and I have no one to assist for this work as I am  uneducated and can’t do nothing by I, myself. I ask my children to have a look and read carefully, but my children didn’t tell me we have only 28 calendar days to write appealing letter for reviewing by AAT. In this morning I bring all my letters to my Church Pastor and he took me about date over due. (sic)

10. The father gave evidence to the Tribunal with the assistance of an interpreter on the application for extension of time. His evidence was consistent with those explanations for the delay.

11. In summary, he said that when he received the letter from the Minister’s delegate, he showed it to his children and to others including his brother within a few days of receipt. No one informed him about the obligation to file an application for review within 28 days of being notified of the decision.

12. The father said that he later showed the letter to his pastor in the days immediately before filing the application for extension of time. It was his pastor who informed him of the 28-day time limit. The father acknowledged that he had seen his pastor on a regular basis in the intervening period and every week at church. However, COVID-19 restrictions did have an impact on his interchange with the pastor. Their meetings were generally in the church and they remained one metre apart. On occasions when they did meet, he did not provide him with a copy of the decision letter. His contact with others outside his immediate family and the pastor was also limited in this period.

13. The father asked the Tribunal to forgive the delay in filing the application and grant the extension of time. He said it was his fault that he did not make the application and begged forgiveness. He said it was difficult to get help during the COVID-19 restrictions. The letter was written in English with no translation and he therefore relied on others to explain the contents of the letter.

14. The father was a truthful witness and the Tribunal accepts his explanation for the failure to file the application for review within 28 days of receiving the decision.

15. The Respondent submitted there were a number of factors that the Tribunal should take into account in refusing the application for extension of time, namely:

    ·     the length of the delay, namely 44 days, is not insignificant;

    ·     the explanation for the delay was unsatisfactory;

    ·     the father gave evidence that he received the decision and gave it to his daughter and brother within 2 to 3 days of its receipt but was not told about the timeframe for review;

    ·     the father saw his pastor regularly and did not seek his assistance for quite some time after the receipt of the decision; and

    ·     even having regard to the language barrier and COVID-19 other applicants suffer similar difficulties but still file applications within time.

16. The Respondent submitted that the explanation was not sufficient.

17. The Tribunal has some sympathy for the father’s position and the difficulty faced by members of the community who have little or no English language skills, who fail to receive a translation of the decision therefore requiring them to have the document accurately translated through private means, and whose ability to seek support and guidance from others was further inhibited because of the COVID-19 pandemic.

18. The Respondent was not prejudiced by the delay.

19. However, an important consideration in granting an extension of time is the prospects of success of the substantive application.

20. The Respondent referred to the merits of the substantive application. There was no dispute that at the time of filing the original application for citizenship the Applicants met the legislative requirements and that the relevant question was whether the Policy Guidelines were capable of being satisfied.

21. The Respondent submitted that the Policy Guidelines provide guidance and should be applied unless there is cogent reason not to do so[1], and that in the circumstances of this matter there are no cogent reasons not to apply the Policy and that the Tribunal should do so. The Tribunal agrees with that submission.

    [1] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645 per Brennan J.

22. In considering the merits of the applications for Australian citizenship by conferral, it is submitted that it is relevant that the father has not sought review of the delegate’s decision as it related to him.

23. The delegate considered the Applicants’ applications for Australian citizenship on the basis that they were each, at the time of application, a child under the age of 16 years whose application was included in the application of a responsible parent, that each child was living in Australia with the relevant responsible parent and the responsible parent consented to the inclusion of each child in that parent’s application.

24. The delegate correctly observed that in circumstances where the responsible parent’s application is refused, the child must be assessed against the Policy Guidelines, in this case the guidelines for children under 16 years of age. Under heading ‘Relevant considerations for children under the age of 16 years applying in their own right’, the delegate said:

    Children under the age of 16 applying individually in their own right would usually be approved under subsection 24 if they are permanent residents at the time of application and decision and also meets one of the following policy guidelines:

    ·The child is living with a responsible parent, who is an Australian citizen and who consents to the application; or

    ·The child is usually a resident in Australia with a responsible parent who is a permanent resident and consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or

    ·The child is living with a responsible parent who is not an Australian citizen and consents to the application and the child would otherwise suffer significant hardship or disadvantage; or

    ·The child is an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application; or

    ·The child is an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.

    I am of the view that your child is not covered by any of the policy guidelines set out above and that it may be appropriate for me to use the discretion provided in subsection 24(2) of the Act to refuse to approve your child’s applications for citizenship.

25. In deciding that, despite the Applicants satisfying subsection 21(5) of the Act, when applying the Policy Guidelines, the applications should not be granted in the operation of the discretion because neither Applicant was:

    ·Living with a responsible parent, who is an Australian citizen and who consents to the application or

    ·Usually a resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or

    ·Living with a responsible parent, who is not an Australian citizen and consent to the application, and the child would otherwise suffer significant hardship or disadvantage or

    ·An unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application; or

    ·An unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.

26. The delegate then considered the best interests of the children as a primary consideration in accordance with article 3.1 of the Convention on the Rights of the Child (CROC) to which Australia is a signatory. Having done so, the delegate said:

    A decision to refuse to approve your child becoming an Australian citizen by conferral would not change their immigration status in Australia and therefore would not deny them the protection and rights provided by Australian law whilst present in Australia. I am also satisfied a decision to refuse your child Australian citizenship will not separate you from your child. Therefore, I am satisfied that such a decision would not be against your child’s best interests.

27. It is not suggested that the delegate has erred in the decision or the discretionary considerations.

28. As the father is not applying to review the decision of the delegate and the application is relevant only to his three applicant children, it is relevant to note that, given the passage of time since the original application, only the First Applicant remains a child under 16 years. The Second Applicant is now a child aged 16 years, in relation to whom different policy considerations apply, and the Third Applicant is 18 years of age and an adult.

29. Should the Tribunal now reconsider the three applications for Australian citizenship, different considerations would apply in relation to each. Given the father is not an applicant, each application must be considered as an application in his or her own right.

30. Accordingly, the First Applicant is applying for citizenship in his own right and the same policy considerations would again apply. In the absence of any arguable error, the Respondent’s submission that the application lacks merit has much force.

31. As for the Second Applicant, the Policy provides guidance for applicants aged 16 or 17 years as follows:

    Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.

    Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also:

    •   satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). Refer to Residence requirement and Significant hardship or disadvantage / detriment

    •   understands the nature of an application

    •   possesses a basic knowledge of the English language

    •   has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision and

    •   is likely to reside or continue to reside, or maintain a close and continuing association with Australia.

    Applicants aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship, and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.

    Applicants aged 16 or 17 do not need the consent of a responsible parent for the purposes of making their application. However, a responsible parent must sign the application form to provide consent for the department to provide the applicant’s personal information to the National Police Checking Service (NPCS) for the purposes of the NPCS conducting a National Police check in relation to the applicant as part of their application for the purposes of assessing whether an offence provision (s24(6) of the Act) applies to the applicant.

    Consideration also must be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).

    Following consideration of the circumstances of the case, including the best interests of the child (refer to Chapter 22 - Best interests of the child), some applicants may warrant approval despite their case not aligning with information contained in this chapter.

32. The Second Applicant will need to demonstrate compliance with the Policy which would usually occur by undergoing an interview. There is no evidence that any interview has occurred, and that the Second Applicant satisfies the Policy requirements. Further, the CROC considerations would still apply as the Second Applicant is still a child. There is no suggestion that the decision of the delegate was against the best interests of the Second Applicant. Therefore, given there is no evidence that the Second Applicant satisfies the Policy, the substantive application is without merit.

33. The Tribunal’s role is to give consideration to the original decision by the delegate. As the delegate has not made inquiry to determine whether the Second Applicant, as a 16 year old child, satisfies the Policy considerations, no reviewable decision has been made. It is not the function of the Tribunal to now assume the role of the delegate and make its own inquiry with respect to compliance with the Policy.    

34. The Third Applicant was 17 years of age at the time of filing the application for extension of time but has subsequently turned 18 years of age and is now an adult. Hence, the conditions precedent to granting citizenship to an adult must be satisfied. Again, that process has not occurred, and the Tribunal is again not empowered to undertake that process. The conditions precedent must be completed whereupon an application for Australian citizenship may be considered by a delegate and any resultant decision may then be reviewable to the Tribunal.

35. Hence, in relation to the First Applicant, in the absence of any demonstrable error by the delegate, the application for review has no merit. In respect of the Second and Third Applicants they too cannot now succeed because different considerations now apply to their respective applications for citizenship which have not been addressed. 

36. The appropriate course is that the First Applicant makes a separate application for citizenship when he turns 16 years of age, which he can do individually and in his own right. He will then need to satisfy the Policy requirements. The Second Applicant can now individually apply in her own right and engage with satisfying the Policy requirements. Similarly, the Third Applicant can now apply for Australian citizenship as an adult and demonstrate compliance with the statutory conditions in the Act for the grant of Australian citizenship.

37. In the circumstances of this matter, the Tribunal is satisfied that the applications have no merit on review, and in those circumstances the applications for extension of time are refused. However, there are other avenues which the Applicants can now pursue to obtain a grant of Australian citizenship by each making fresh applications.

    Decision

38. The applications for extension of time are refused.

39.     I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...............[SGND].....................
Associate

Dated: 8 June 2021

Date of hearing:	16 December 2020 (by telephone)
Applicants:	Unrepresented
Advocate for the Respondent:	Jennifer Strugnell, MinterEllison