Rao and Minister for Home Affairs (Citizenship)
[2019] AATA 4475
•5 November 2019
Rao and Minister for Home Affairs (Citizenship) [2019] AATA 4475 (5 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4674
Re:Sripathy Sangeetha Rao
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 November 2019
Place:Sydney
The application for an extension of time is refused.
............................[sgd]..................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – Extension of time application – whether there is an acceptable explanation for the delay – merits of substantial application – applicant is the spouse of an Australian citizen – whether applicant maintains a close and continuing association with Australia – extension of time application refused
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jiang and Minister for Immigration and Citizenship [2011] AATA 688
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Parker v R [2002] FCAFC 133
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Smith and Commissioner of Patents [2012] AATA 60
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 November 2019
APOLOGY
In order to give all parties the maximum opportunity to present their case, the Tribunal attempted, on two occasions (3 September 2019 and 3 October 2019) to conduct an interlocutory hearing by telephone, contacting Mrs Sripathy Sangeetha Rao (the Applicant) in Abu Dhabi and the representative for the Minister for Home Affairs (the Respondent) in Sydney.
On both occasions the Tribunal found that technical difficulties with its telephone and recording systems were such that a viable and ongoing connection between the parties could not be made.
As a result, the Tribunal advised the Applicant that it would receive any written material she sought to submit by Friday 18 October 2019 and the Respondent would be given until Friday 25 October 2019 to respond. The Tribunal advised that it would, after receipt of these submissions, proceed to make its determination based on the papers before it as of 25 October 2019.[1]
[1] Tribunal letter to the parties dated 3 October 2019.
It is now proceeding to do so but once again apologises to all parties for the technological failures which prevented a more satisfactory method of handling the extension of time (EOT) application.
BACKGROUND
The Applicant lodged an application for citizenship by conferral on 10 May 2018. This application was made under subsection 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
Mrs Rao is a citizen of the United Arab Emirates. She first arrived in Australia in June 2004 (a permanent visa subclass 885 was granted on 14 July 2010) and is now the holder of a permanent Resident Return visa subclass 155 granted on 6 August 2018.
The Applicant is married to an Australian citizen, Sukhdeep Singh Wasu, and has two citizen children.
On 28 June 2019, a Delegate of the Respondent issued a formal notification of refusal of the application. That notification explained that the Applicant had the right to appeal the decision by application to this Tribunal within a 28 day period.
That period of time expired on 26 July 2019 but the Applicant did not lodge her appeal until 5 August 2019, some 10 days beyond the statutory limit. At the same time, the Applicant made an application for an EOT to lodge her appeal.
PRINCIPLES COVERING EXTENSION OF TIME APPLICATIONS
It is generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[2] (Hunter Valley Developments) should be taken as the guide by this Tribunal in determining EOT matters.
[2] (1984) 3 FCR 344, affirmed by the Full Court in Parker v R [2002] FCAFC 133 at [6].
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and that 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 applicants and other persons” in a similar position.
There is, however, very powerful authority which stresses the importance of statutory time limits being observed.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[3] gave four reasons why such limitations are an important part of the legal process. His Honour 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.
[3] (1996) 186 CLR 541 at 552–553. Footnotes and citations omitted.
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.[4]
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.[5]
[4] Ibid at 551.
[5] Ibid at 553–554.
Similarly, in Hunter Valley Developments, Wilcox J observed:
Although the section [Administrative Decisions (Judicial Review) Act 1977 s 11] 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 Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition 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 at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).[6]
[6] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348.
Further refinement of this checklist was suggested in both Phillips v Australian Girls’ Choir Pty Ltd[7] and in Hillman and Australian Postal Corporation (Compensation),[8] where the essential principles were held to be:
·Delay;
·Prejudice;
·Merits; and
·Fairness.
[7] [2001] FMCA 109.
[8] [2017] AATA 1411.
CONSIDERATIONS
In effect, the primary matters for consideration in applications such as the present are twofold: was there a reasonable explanation for the delay in lodging the application for review and, if the matter were to proceed to a full merits-based hearing, would it have reasonable prospects of being successful.[9]
[9] Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31].
Equally, this Tribunal has noted that the checklist items in Hunter Valley Developments “are not to be applied mechanically” and that “an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given”.[10]
[10] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
Reasons for the Delay
In her application, the Applicant writes:
I was travelling inter country with limited to no connectivity.[11]
[11] Applicant’s Application for Review of Decision dated 5 August 2019.
The Tribunal understands that the Applicant is a regular traveller around the Middle East from a base in Abu Dhabi and appreciates that the notification from the Department of Home Affairs was sent to her electronically.
The Respondent’s position is that:
This explanation is wholly insufficient, particularly where the applicant has not proffered any evidence of her travels during this period, nor explained why she was unable to access the internet.[12]
[12] Respondent’s Written Submissions dated 25 October 2019 at para 19.
In the wider scheme of things, a delay of 10 days is not necessarily to be regarded as excessive or substantial, and problems with internet connectivity and the difficulty of establishing secure communications were highlighted with some force by the Tribunal’s own inability to establish such connections with the Applicant on two separate occasions.
In all the circumstances, the Tribunal is prepared to accept the Applicant’s explanation for the delay.
Merits of the Application
In order to obtain a grant of citizenship by conferral, an applicant must satisfy all the criteria set out in subsection 21(2) of the Act. That subsection provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
In assessing the Applicant’s application against these criteria, the Delegate focussed on the requirement in subsection 21(2)(c) which establishes certain residency requirements. As can be seen, that section references a definition of the residency requirements which appear in section 22 of the Act as follows:
General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
It is not a matter of dispute that the Applicant’s travel record shows that she was:
·present in Australia for only 40 days in the four years immediately before lodging her application; and
·not present for a single day in the 12 months immediately before lodging her application.
It follows that the Applicant cannot meet the subsection 21(2)(c) criteria, a matter which she herself acknowledges when she writes in her appeal and EOT application:
… we acknowledge that I did not fulfil the citizenship criteria 100 percent. I would highly appreciate if careful consideration be given based on past history and close ties with Australia.
Because the Applicant is married to an Australian citizen it is necessary to examine the provisions of subsection 22(9) of the Act which provide:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Here the key issue is the provision in subsection 22(9)(d) that an applicant have “a close and continuing association with Australia”. This is a vexed section of the Act in that legal authority distinguishes between having a close and continuing association “with Australia” and having a close and continuing association with an Australian – being the Applicant’s husband and children in this instance.[13] In many instances it is very difficult to separate the two[14] and so regard must be had to evidence of matters such as, inter alia, the length of time spent in Australia, levels of participation in the activities of the Australian community, financial ties and investments in Australia (including ownership of property), and established family and friendship ties or networks.
[13] Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700 at [71]; Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52]; Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47]–[48]; Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [25].
[14] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
There is no evidence presented by the Applicant to illuminate any of these matters and although she expresses a desire to eventually buy a house here, the best she can offer is that she makes regular trips back to Australia. In the opinion of the Tribunal, the Respondent rightly characterises these as more akin to “holidays or visits”[15] rather than evidence of a close and continuing association. The fact that the Applicant has not been present for a single day in Australia in the 12 months preceding her application cannot but count against her.
[15] Respondent’s Written Submissions dated 25 October 2019 at para 26.
Subsection 24(1A) of the Act binds the hands of the Minister. It states:
The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
The term used is “must not”. There is no discretion. Unless an applicant satisfies the requirements of subsection 21(2) in full, their application cannot be approved or be successful.
In their decision, the Delegate did not come to any conclusion about the Applicant’s satisfaction of the other eligibility criteria in subsection 21(2) having found that subsection 21(2)(c) was not satisfied. Were the application to go forward, those matters would still require the Delegate’s determination.
However since failure to meet the requirements of subsection 21(2)(c) is, in and of itself, sufficient to mean that the application could not succeed in a full merits-based hearing, it also follows that it fails to meet a key criteria for the grant of an EOT.
The application for review has no reasonable prospects of success.
The Applicant is, of course, free to make a subsequent application[16] whenever she is in a position to satisfy all of the subsection 21(2) criteria, including those which relate to residency.
[16] Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700 at [73]; Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The application for an extension of time is refused.
I certify that the preceding 37 (thirty-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: 5 November 2019
Date(s) of hearing: 3 October 2019 Applicant: By telephone Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers
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