Re Gibson and Minister for Immigration and Citizenship
[2007] AATA 1679
•18 June 2007
CATCHWORDS – PRACTICE AND PROCEDURE – extension of time – application to review refusal of grant of citizenship – principles to be applied in considering application for extension – include a consideration of merits of case on assumption he can establish evidentiary basis for each of his contentions – application refused.
CITIZENSHIP – good character – what meant by good character in context of legislation.
Administrative Appeals Tribunal Act 1975 ss 2A, 11, 27, 29, 35, 36D and 43
Administrative Decisions (Judicial Review) Act 1977 ss 3, 11, and 13
Australian Citizenship Act 1948 ss 10C, 13, 52 and 52A
Commonwealth Electoral Act 1918 s 93
Income Tax Assessment Act 1936 s 46
Migration Act 1958 s 501
Taxation Administration Act 1953
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563
Chalk v Commissioner for Superannuation (1994) 50 FCR 150; 33 ALD 420
Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 476
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Jackamarra v Krakouer and Another (1998) 195 CLR 516; 153 ALR 276
Pancontinental Mining Ltd and Others v Burns and Others (1994) 124 ALR 471
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186
Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578
Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97
Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Naidu and Department of Immigration and Ethnic Affair (1996) 42 ALD 137
Re Pepper-Clayton and Australian Telecommunications Commission (1985) 7 ALD 508
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Wasu Deo Naidu and Minister of Immigration and Ethnic Affairs (AAT 9753, 27 September 1994)
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513
Windshuttle v Commissioner of Taxation (1993) 46 FCR 235
DECISION AND REASONS FOR DECISION [2007] AATA 1679
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/1854
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT GIBSON
Applicant
AndMINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 18 June 2007
Place: Melbourne
Decision:The Tribunal:
refused the application of the applicant for an extension of the time within which to lodge an application for review of a decision of a delegate of the respondent dated 26 August 2006.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 26 August 2006, a delegate of the Minister for Immigration and Citizenship (Minister) refused an application by Mr Robert Gibson for a grant of Australian citizenship. The Minister did so on the basis that Mr Gibson did not meet the requirement in s 13(1)(f) of the Australian Citizenship Act 1948 (Act) that he be of good character.
Reading the Act as in force at the time the decision was made and the Administrative Appeals Tribunal Act 1975 (AAT Act) Mr Gibson had 28 days within which he might apply to the Tribunal for review of the Minister’s decision but he did not do so. On 11 May 2007, he applied for an extension of that time. At the hearing of his application, I heard Mr Gibson’s evidence and submissions and submissions made by Ms Miller, who represented the Minister. I took into account that Mr Gibson’s application for review was out of time, his reasons for that delay and the merits of his substantive application were it to be lodged. In considering the merits, I had regard to the number and nature of his convictions, the period over which they extended and the time that has passed since his last conviction. I did so in light of the requirement in s 13(1)(f) of the Act that the applicant for the grant of citizenship must be a “… person … of good character” and also in light of the general principle that I am not required to undertake an exhaustive consideration of the merits but that I am required to consider whether the application would have any chance of success if it were able to be lodged.[1] Putting it another way, I must consider whether Mr Gibson has or can have an arguable case.[2] I decided that Mr Gibson’s chances of success were slight at this time and that he is unlikely to be able to produce any further evidence to support his case were I to permit him to lodge a substantive application. Taking this into account together with his reasons for his delay, I decided not to extend the time for him to lodge an application for review. I encouraged Mr Gibson, however, to apply again to the Minister when a little more time had passed since his last conviction for stalking. I told Mr Gibson of my reasons and explained why the passage of a little more time without his committing any further offences could improve his prospects of success if he were to make a fresh application to the Minister.
[1] See, for example, Jackamarra v Krakouer and Another (1998) 195 CLR 516 at 519; 153 ALR 276 at 295; 295 in which Brennan CJ and McHugh J adopted a statement by Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091to the effect that, on an application to extend time, the court would “…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.”
[2] Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725 at 732
The Minister has now asked for a statement of reasons as the hearing was not recorded. He has done so under s 43(2A) of the AAT Act and in a letter received in the Tribunal on 26 July 2007. I have reservations as to whether this is the appropriate section under which to make the request. Section 43(2) provides that, subject to certain confidentiality provisions in ss 35 and 36D, “… the Tribunal shall give reasons either orally or in writing for its decision.” Section 43(2A) provides that “Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may …” request the Tribunal to give a statement in writing of its reasons “for its decision”. Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.” In both provisions I have emphasised the words “its decision” because, in my view, they refer to the decision described in s 43(1). The decision referred to in s 43(1) is the decision made by the Tribunal “for the purpose of reviewing a decision”. It is not a decision made for the purposes of resolving an application other than the substantive application.
I do not intend to explore this issue further for, even I am correct in my concerns, I would be required to give written reasons had the Minister made his request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That is because my decision is a decision to which the ADJR Act applies. It is such a decision because I have made it as the Tribunal, which is a body established by or under an Act and so is a Commonwealth authority, and my decision is a decision of an administrative character made under an enactment.[3]
[3] ADJR Act, ss 13 and 3(1) and see also Pancontinental Mining Ltd and Others v Burns and Others (1994) 124 ALR 471 at 480-481
BACKGROUND
Mr Gibson said at the hearing that he came to Australia from Ireland 47 years ago. He regards himself as an Irish Australian. For 30 years of his time in Australia, Mr Gibson said, he has been very involved with religion and with the Church. He was dux of his religious studies class and had a competent knowledge of scripture. Mr Gibson preached and taught religious studies with the Christian Brethren. He has also attended the Baptist Church as well as, for a short time, the Uniting Church. After his convictions, to which I will return, Mr Gibson felt that his friends within the Church shunned him. As all his friends had been made through the Church, he is now without friends. He has a brother in Ireland but he has not returned to Ireland since he left. His sister lives in Newcastle but Mr Gibson understands that she has disowned him as she is religious. He is not religious and now no longer believes in God and is disenchanted with religion.
Mr Gibson said that he met a “girl” at a campsite and would send her flowers and chocolates. He spoke with the girl’s aunt, who gave him “all the facts about her”. Her aunt encouraged him to pursue her niece, Mr Gibson said. There was a 24 year difference in their ages. The girl took out a restraining order against him but he broke the order, he said, because he was “consumed by love” and a “woman can change her mind”. He thought that she would change her mind. Mr Gibson said at the hearing that he had never breached the restraining order again. It is now three years since his release from prison and he has been “on the straight and narrow” and of good behaviour ever since. He had been smitten by the girl for four years; it was not a passing fancy. Had her aunt not encouraged him, he would not have continued with his advances. He had moved his place of residence to be closer to the church at which she worshipped.
Mr Gibson said that he has never been in trouble otherwise apart from two speeding offences. He spends his time with the homeless and has breakfast with them. For the past year or so, he has lived in a rooming house that is a “den of iniquity” and home to “undesirables”.
Later in the hearing, Mr Gibson said that he had breached the restraining order on two occasions. On the first, he had visited the girl’s parents’ house where he had stood passively and quietly at the front door. He just made his presence felt, he said, and did not hassle anyone. Mr Gibson said that he would attend the Baptist Church attended by the girl but would neither speak to her nor approach her. He went to her place of work but her aunt took him there.
In so far as the convictions for stalking and breaches of an intervention order are concerned, Mr Gibson said that all arose in connection with a particular girl, who was then 43 years of age. He was besotted with her and thought that she would change her mind and accept his advances. It was his understanding, Mr Gibson said, that he had been encouraged by her aunt to pursue her. He is now over her.
Mr Gibson said that he had two speeding tickets but had never procured the hire of a motor vehicle by fraud. He knew that the reasons for the decision in this case showed that he did have such a conviction but said that the conviction for an offence of procuring the hire of a motor vehicle by fraud had been committed by another person of the same name; it is a common name.
As for the offence of intentionally damaging property in 2001, Mr Gibson said that he had committed it when he picked up a rock and threw it as the side door of the girl’s parents’ house. He had done that in order to gain attention and to prove his sincerity. As for the earlier conviction in 1994 for criminal damage and wilful trespass, Mr Gibson said that he had demonstrated at the church where the wrong doctrine was being preached. He banged on the door of the church but would not do that again as he no longer believes in God. These days he reads and spends his days in the library.
Mr Gibson has a number of convictions. Apart from the conviction for procuring the hire of motor vehicle by fraud, he did not dispute the following record of them. They are:
| Date of conviction | Offence | Sentence |
| 7 April 1994 | Criminal damage (intent damage/destroy) Wilfully trespass in any place (x 2) | All charges without conviction. Pay $159 restitution. Adjourned to 6 April 1995. |
| 22 May 2000 | Stalk another person (Crimes Act) Breach intervention order | With conviction. Adjourned to 21 May 2001. |
| 5 October 2001 | Breach intervention order (x 3) Stalk another person | Aggregate 17 days’ imprisonment. Concurrent. Time held in custody (17 days) reckoned as period of imprisonment already served under this sentence. |
| 29 October 2001 | Stalk another person (x 2) Breach intervention order (x 2) Intentionally damage property Procure hire of motor vehicle by fraud | Aggregate 2 months’ imprisonment. Concurrent. Effective total term of 2 months. Time held in custody (13 days) reckoned as period of imprisonment already served under this sentence. Custody management issues. |
| 13 December 2002 | Breach intervention order (x 32) Stalk another person (x 3) | Aggregate 190 days’ imprisonment. Concurrent. Effective total term imposed is 160 days, Time held in custody (57 days) reckoned as period of imprisonment already served under this sentence. Custody management issues. |
| 2 August 2004 | Stalk another person | 12 months’ imprisonment (183 days had already been served by way of pre-sentence detention). |
Mr Gibson said that he was born on 4 July and so feels some affiliation or connection with the United States of America (USA). He has the “travel bug” and wants to spend the rest of his life in the USA. Mr Gibson said that he needs Australian citizenship in order to obtain an Australian passport and so obtain a visa to travel to the USA. He was disenchanted and dismayed when his application for Australian citizenship was refused and took it to heart. Australia invited him to come for £10. Certainly, he had come of his own volition, he said, but Australia had invited him to come.
There was some question as to when Mr Gibson received notice of the decision. The delegate of the Minister made the decision on 26 August 2006. In his application for review, Mr Gibson said that he did not know when he received the decision. In his application for an extension, he said that the date he received it was “Maybe 3 months.” At the hearing, he said that he did not receive the decision and was told of it when he went to the Department. He was not given any reason for the Minister’s refusal. Mr Gibson agreed at the hearing that he had received letters where he resides. Letters he has received have included letters from the Tribunal and an acknowledgment from the Australian Electoral Commission.
At the hearing, Mr Gibson said that the rejection of his application “tore at his heart” and he was dismayed by it. He has achieved everything in Australia and is a qualified company secretary. The decision hit him hard. His application for an extension gives similar reasons for applying for an extension:
“It took me a long time to get over my rejection of Australian Citizenship. It has become expedient for me to appeal the decision as I want to travel to the USA by the end off [sic] 2007 and I need a passport.”
His reasons for seeking review of the decision were that he wanted “... an Australian passport to travel to Washington DC USA by the end off [sic] 2007.”
LEGISLATIVE BACKGROUND
The Tribunal’s power to extend time
In general terms, a person whose interests are affected by the Minister’s decision may apply to the Tribunal for review of that decision. That is the effect of s 27(1) of the AAT Act and it has not been modified by s 52A of the Act. Section 52A provides that an application may be made to the Tribunal for review of the Minister’s decision to refuse an application under s 13.
Under s 29(2) of the AAT Act (unless varied by another enactment), a person whose interests are affected by a decision effectively has 28 days within which to apply for review of a decision. If the decision-maker has prepared a document setting out the findings of fact and the reasons for the decision, the 28 day time period ends on the 28th day after that document is given to the person.[4] The delegate gave Mr Gibson a document of that sort in this case and the Act has not varied the effect of s 29(2).
[4] AAT Act, s 29(2)(a)
Section 29(7) of the AAT Act permits the person whose interests are affected by a decision to apply for an extension of the time allowed to lodge an application in accordance with s 29(7) of the AAT Act. That person may do so even though the time for an application has expired.[5] The Tribunal’s power is given by s 29(7) in these terms:
“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.”
[5] AAT Act, s 29(8)
An outline of the relevant provisions of the Act relating to citizenship
Subject to certain qualifications set out in s 13 of the Act, the Minister may, in his discretion, grant a certificate of Australian citizenship to a person.[6] The circumstances in which he may do so fall into two broad categories. The first category is found in s 13(1). It provides that the person must have made an application for a grant in accordance with the approved form[7] and there is no question that Mr Gibson had done that. In addition, the person must meet the nine criteria specified in s 13(1) of the Act. The Minister has not raised any question in relation to eight of those criteria but he has done so in relation to that in s 13(1)(f). That criterion requires that the person applying for a grant of citizenship must be a “… person … of good character”.
[6] Act, s 13(1)
[7] Act, s 13(1)
A number of the criteria in s 13(1) are qualified by other provisions of the Act. The requirements that the person applying for a grant of citizenship must understand the nature of the application,[8] possess a basic knowledge of the English language and have an adequate knowledge of the responsibilities and privileges of Australian citizenship do not apply to a person who is not capable of understanding the nature of the application because of physical or mental incapacity that is not a temporary incapacity.[9] A person who has attained the age of 50 years does not need to possess a basic knowledge of the English language[10] and a person who has attained the age of 60 years does not need to have an adequate knowledge of the responsibilities and privileges of Australian citizenship.[11]
[8] Act, s 13(1)(c)
[9] Act, s 13(2)
[10] Act, s 13(7)
[11] Act, s 13(8)
The criteria that a person must have spent certain periods of time in Australia as a permanent resident[12] do not need to be met when a person has completed certain periods of defence service.[13] Certain periods may be counted as meeting those criteria even though the person was not in Australia. So, for example, a period during which the person was a permanent resident but was engaged in activities that the Minister considers beneficial to the interests of Australia would be included in the calculation.[14] Certain periods are not counted towards a person’s meeting the requirement to be present in Australia as a permanent resident. Those include periods:
“… during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person”…[15]
[12] Act, ss 13(1)(d) and (e)
[13] Act, ss 13(3) and (3A)
[14] Act, s 13(4)(b)(C)
[15] Act, s 13(4)(a)
The second category of circumstances in which the Minister may, in his discretion, grant a certificate of Australian citizenship to a person are found in ss 13(9), (9B) and (9E). They represent a miscellany of circumstances. Some, for example, are directed to a person who has no yet attained 18 years of age[16] and others to a person who is under 16 years of age when that person’s responsible parent applies for a grant of Australian citizenship.[17] Another is directed to a person who is a permanent resident and is the spouse, widow or widower of an Australian citizen.[18] As with the first category, s 13 qualifies the criteria that a person must meet.
[16] Act, s 13(9)(a)
[17] Act, s 13(9B)
[18] Act, s 13(9)(c)
Even if a person meets all the criteria relevant to that person’s circumstances, is the Minister obliged to grant a certificate of Australian citizenship? The answer to that question has to be in the negative for, like ss 13(9), (9B) and (9E), s 13(1) provides that the Minister “may, in the Minister’s discretion” do so. In some contexts the word “may” indicates the conferring of a power that must be exercised rather than a discretionary power but the express reference to the Minister’s discretion makes it quite clear that the power is a discretionary power. For all that, the Minister’s power is not without constraints. Windeyer J commented on the more broadly based constraints when he considered s 46(3) of the Income Tax Assessment Act 1936 in Finance Facilities Pty Ltd v Federal Commissioner of Taxation:[19]
“… If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given: it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. …”[20]
[19] (1971) 127 CLR 106
[20] (1971) 127 CLR 106 at 134
There are other more narrowly based constraints to be found in the legislative context in which each discretionary power is given. Constraints of this type were described by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others:[21]
“‘Discretion’ is a notion that ‘signifies a number of different legal concepts’ …. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’ …. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made …. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion …. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”[22]
[21] (2000) 203 CLR 194; 174 ALR 585
[22] (2000) 203 CLR 194; 174 ALR 585 at 204-205; 591-592 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80 per Smithers J
It is with these more narrowly confined discretions that I am concerned. The discretion given by s 13(1) is not confined by the terms in which it is given. If there are any constraints upon its latitude, they are to be found in the Act itself, its subject matter and its object as well as its underlying policy.[23]
[23] Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272
Having regard first to the Act itself, I note that the Minister may not exercise his discretion to grant a certificate of Australian citizenship if any of the circumstances set out in s 13(11) are applicable. I will refer only to some of them:
“The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):
(a)…
(b)during any period during which the person is confined to a prison in Australia; or
(c)during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on the person of:
(i)…; or
(ii)a sentence of imprisonment for life or for a period of not less than 12 months; or
(ca)if the person is a serious repeat offender in relation to a sentence of imprisonment (within the meaning of subsection (11A)) – during the period of 10 years after the end of any period during which the person has been confined in a prison in Australia because of the imposition on the person of that sentence; or
(d)if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or upon licence to be at large – during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole of that sentence, or the whole or a part of the remainder of that sentence, as the case requires; or
(e)…
(f)…
(g)…”
A “person is a serious repeat offender in relation to a sentence of imprisonment …” for the purposes of s 13(11)(ca) if a person was confined in an Australian prison after receiving a serious prison sentence and if, after being released from prison, received a further serious prison sentence in relation to an offence committed after that person’s release from prison. A “serious prison sentence” is either a sentence of imprisonment for life or a sentence of imprisonment for a period of not less than 12 months.[24]
[24] Act, s 13(11A)
The authorities regarding “good character”
The concept of “good character” is adopted in both s 13 of the Act and s 501(6)(c) of the Migration Act 1958 (“Migration Act”) as well as in other sections such as s 10C[25] of the Act. In past cases in the Tribunal, the two have been treated as raising similar issues (e.g. ReMlinar and Minister for Immigration and Multicultural Affairs[26]) and cases cited in that decision. The concept has been considered in a number of cases considering s 501(6)(c) and I will set out a sample of them in the following paragraphs. Before doing so, I note that the test in s 501(6)(c) and that in s 13 are slightly different. Whereas s 501(6)(c) requires that the Minister consider whether a person is “is not of good character”, s 10C(d) requires that the Minister be “satisfied that the applicant is of good character”. Although expressed in slightly different terms, the practical result is the same.
[25] Subject to certain circumstances, s 10C of the Act empowers the Minister to register a person who was aged at least 18 years of age on 15 January 1992 and whose natural parent was an Australian citizen at the time of his or her birth and, if still alive, is an Australian citizen at the time the person applies under s 10C. Registration under s 10C is registration as an Australian citizen.
[26] (1997) 48 ALD 771 (Deputy President Chappell)
In Re Lachmaiya and Department of Immigration and Ethnic Affairs[27], Deputy President McMahon said that:
“`Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” [28]
[27] (1994) 19 AAR 148
[28] (1994) 19 AAR 148 at 154-155
After considering the structure and purpose of the Migration Act and particularly that of s 20, Deputy President McMahon noted that emphasis is given in s 20(1) to the giving of false information and concluded that:
“… These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”[29]
[29] (1994) 19 AAR 148 at 155-156
A similar approach was adopted by Deputy President Forrest in Re Wasu Deo Naidu and Minister of Immigration and Ethnic Affairs[30] and Deputy President McDonald in Re Prasad and Minister for Immigration and Ethnic Affairs[31] and Re Naidu and Department of Immigration and Ethnic Affairs[32]. In Prasad, Deputy President McDonald added:
“… A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”[33]
[30] (AAT 9753, 27 September 1994)
[31] (1994) 35 ALD 780
[32] (1996) 42 ALD 137
[33] (1994) 35 ALD 780 at 781
The meaning of the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs[34]. While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.”[35]
[34] (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ)
[35] (1996) 139 ALR 84 at 94
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs.[36] Speaking generally of s 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”[37]
“… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.”[38]
[36] (1999) 56 ALD 321
[37] (1999) 56 ALD 321 at 324
[38] (1999) 56 ALD 321 at 327
With regard to the last aspect raised by the Full Court, Deputy President Chappell in Re Mlinar and Minister for Immigration and Multicultural Affairs [39] the Tribunal said that:
“… The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it …”[40]
[39] (1997) 48 ALD 771
[40] (1997) 48 ALD 771 at 776
While there can be no doubt that the acquisition of Australian citizenship is important and, it is to be hoped, treasured, the responsibilities and privileges attached to a person’s being an Australian citizen and being permitted to remain in Australia on a visa do not necessarily greatly differ. The extent to which they do depends in part upon whether the visa enables the person to live permanently in Australia or whether it is for a more limited period or for a particular purpose. Taking Australian citizenship and permanent residency as an example, there is often little difference between the two in day to day life. A major difference is that, in general terms, only those who are Australian citizens are entitled to vote. That is the effect of s 93 of the Commonwealth Electoral Act 1918. Another difference lies in the freedom with which an Australian citizen may enter and leave Australia and another in there being some limits upon a permanent resident’s entitlements to social security benefits. The differences are greater between the privileges of an Australian citizen and a person who is permitted to remain in Australia on a temporary visa.
With these matters in mind, I do not consider that the standard of “good character” to be applied in s 13(1) is higher than the standard to be applied in a section such as s 501. To my mind, the notion of “good character” remains the same across each section but there are differences between the sections and those differences may well lead to different outcomes. One difference is that the tests or criteria set by the two sections are different. Under s 501 the issue to be decided is whether a person is not of good character whereas the issue under s 13(1) is whether the person is of good character. Another difference is the context in which each issue must be considered and decided. In the context of s 501 of the Migration Act there is a greater emphasis on the protection of the Australian community in circumstances in which a person is either seeking or wishing to retain a visa permitting him or her to reside in Australia or to enter Australia for a more limited period or purpose. The context of s 13 is that of the acquisition or recognition of Australian citizenship. Its emphasis is not upon whether a person should be in Australia for that is within the purview of the Migration Act. Instead, its emphasis is upon whether a person, who is already permitted to reside in Australia permanently, should be permitted to enjoy an additional status as a person entitled to enjoy all of the rights, privileges and protections of an Australian citizen.
Good character – the Australian Citizenship Instructions
In her reasons, the delegate referred to the Australian Citizenship Instructions (“ACI”). Paragraph 5.4.2 of the ACI states that decision-makers should be guided by the ordinary use of the words “good character” and the ACI continues:
“… It is the responsibility of the applicant to show that they (sic) are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3 If there is evidence to suggest that the applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant’s behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour.”
All the relevant circumstances of a person must be considered but the ACI deals separately with a person’s convictions. In so far as convictions are concerned, the following paragraphs of the ACI are relevant in this case:
“ 5.4.5 Under the current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6-5.4.15, if there is evidence that the applicant:
(a)has, at any time, been sentenced to:
…
a term of imprisonment of 12 months or more;
(b)…
(c)…
(d)…
(e)…
(f)…
(g)…”
The ACI then gives guidance as to the manner in which a decision-maker is to assess the seriousness of offences:
“5.4.7 Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.”
“5.4.11 Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person’s criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated …
5.4.12Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.
5.4.13Crimes committed by the applicant at a young age may be given less weight depending on the nature of the crime and the applicant’s subsequent record. It may be considered that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.
5.4.14A person’s previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person’s behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
5.4.15…
5.4.16The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.17The applicant’s present reputation in the community should also be considered: The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight.”
CONSIDERATION
The principles that guide my decision in considering an application to extend time
In considering the manner in which the discretion to grant an extension should be exercised, regard is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[41] In that case Wilcox J considered an application for extension of time pursuant to s 11 of the ADJR Act rather than s 29 of the AAT Act. After noting that s 11 does not set out any criteria to be followed in exercising the Court’s discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said, in part:
[41] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
“... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court’s discretion:
Although the section 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 method’ of twenty-eight days 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 [Duff v. Freijah (1982) 43 ALR 479] at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).
Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414–415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484–485; Hickey at 525–527 and Wedesweiller at 533–534.
However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas; Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra [Becerra v Fowell (Morling J, 18 February 1983, unreported] at 12– 13)) or of established practices (Douglas) is likely to prove fatal to the application.
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6.
Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at 534–535.”[42]
[42] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348-349; 310-311; 320
The Hunter Valley case has since been cited with approval and applied by the Federal Court in relation to applications for judicial review under the ADJR Act e.g. Burchett J in Chumbairux v Minister for Immigration and Ethnic Affairs[43] and Northrop J in Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia.[44] It has also been followed in reported decisions of this tribunal such as Re Bonavia and Secretary, Department of Social Security,[45] Re Bogaards and Commonwealth of Australia[46] and Re Mulheron and Australian Telecommunications Corporation.[47] Similar principles were applied by Mr R K Todd, Deputy President, in the case of Re Bell and Australian Telecommunications Commission,[48] which pre-dated the decision in Hunter Valley, and in Re Pepper-Clayton and Australian Telecommunications Commission,[49] which post-dated it but made no reference to it.
[43] (1986) 74 ALR 480 at 490
[44] (1987) 14 ALD 476
[45] (1985) 9 ALD 97 at 101
[46] (1987) 13 ALD 578 at 587
[47] (1991) 23 ALD 309 at 314
[48] (1983) 5 ALN N186
[49] (1985) 7 ALD 508
The Federal Court has commented upon the principles in subsequent cases and it becomes clear from those comments that the principles guiding the Tribunal in deciding an application for an extension of time must be shaped by reference to the legislative context in which the power is given. It may be that in a particular context the principles remain those suggested by Wilcox J in the context of an application under the ADJR Act for an extension of time but it may be that they do not. That this is so is clear from the observations made by Hill J in Brown v Federal Commissioner of Taxation:[50]
“[33] First, it must be pointed out that Wilcox J in Hunter Valley Developments never suggested that he was laying down a series of principles to be applied in every case, even every case involving an application to the Court to commence proceedings for judicial review outside the time prescribed by the Administrative Decisions (Judicial Review) Act. His Honour was seeking to distil from previous case law factors which would serve as a ‘guide’. Nor did his Honour suggest that the matters which he outlined were exhaustive. Indeed he said the contrary. As I pointed out in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 251:
‘The danger that the distillation of matters relevant to discretion might harden into a statement of binding principle was not lost on his Honour. Sometimes, however, his Honour's warning appears to have escaped the attention of those seeking to rely upon what his Honour said.’
[34] Secondly, the context in which Wilcox J stated his non-exhaustive guidelines differs substantially from that where a taxpayer is seeking an extension of time for filing an objection against an income tax assessment.
[35] The Administrative Decisions (Judicial Review) Act prescribes a time in which applications for review under s 5 of that Act may be brought in the Court. I leave out of consideration for present purposes provisions which operate where no time is prescribed. It is provided in s 11(1) that the Court may allow a further time in which the application may be filed. There are no criteria specified as matters to which the Court should give attention. This contrasts with s 11(4) which does specify criteria to be taken into account in a case where no period is prescribed within which an application to the Court must be made.
[36] The [Taxation] Administration Act [1953], while likewise stipulating the time in which objections are to be lodged, permits the Commissioner (or the Tribunal standing in the shoes of the Commissioner on a review of the Commissioner's decision) to determine whether to agree to or refuse a taxpayer's application for an extension of time. Although it does not expressly stipulate matters that are to be taken into account the requirement in s 14ZW(3) that the taxpayer's application state fully and in detail the circumstances concerning and the reasons for the failure to lodge the objection in time make it clear that these matters are clearly relevant. This is not to say that these are the only matters which the Commissioner or the Tribunal may take into account and counsel for the Commissioner, properly, did not submit this to be the case.
[37] More significantly, however, an application for judicial review of an administrative decision under the Administrative Decisions (Judicial Review) Act is an application which is restricted to a review on quite limited grounds (cf s 5 of that Act). In essence it is an application seeking to assert a legal error in the decision or a failure in the decision making process, for example, the denial of natural justice. It is not a review on the merits. Absent what may be succinctly described as legal or process error the Court can not intervene to set aside a discretionary decision. An objection against an assessment of income tax is quite different. It is the first step in a process whereby the assessment may be reconsidered by the Commissioner in the light of the objection and if disallowed may be the subject of merits review by an independent tribunal, the Administrative Appeals Tribunal, or by the Court, (although before the Court matters involving the exercise of discretion are the subject of judicial, rather than merits, review). If the disallowance of the objection is reviewed by the Tribunal and a decision adverse to the taxpayer is arrived at there is the possibility of an application to this Court by way of an appeal on a question of law.”[51]
[50] (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563
[51] (1999) 99 ATC 4516 at 4523-4524; (1999) 42 ATR 118 at 127; [1999] FCA 563 at [33]-[37]
Hill J went on to comment upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act 1953. While his Honour’s comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal’s power to have regard to the apparent strengths and weaknesses of the taxpayer’s case.[52] It said:
“28 We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer’s evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer’s claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. The AAT might well have concluded that, having regard to the taxpayer’s delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time. But this is not the basis on which the AAT chose to proceed.”[53]
[52] Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672 at 680-681; [1999] FCA 1198
[53] Federal Commissioner of Taxation v Brown(1999) 99 ATC 4852; 42 ATR 672 at 680-681; [1999] FCA 1198
This does not mean that I am to undertake a full consideration of the merits of a substantive application were it to be lodged. In Windshuttle v Commissioner of Taxation,[54] von Doussa J also expanded upon what Wilcox J meant by taking proper account of the substantial merits of the case:
“The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant's case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to attack the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”[55]
[54] (1993) 46 FCR 235
[55] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 at 243-244; 4999 and 95 and approved by Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [12] per Drummond, Sackville and Hely JJ
The power to extend time given by s 29(7) of the AAT Act also differs from that found in s 11(1) of the ADJR Act. Whereas s 11(1) gives the court power to extend the time for lodgement “within such further time as the court concerned … allows”, s 29(7) provides that the Tribunal may extend the time if it “is satisfied that it is reasonable in all the circumstances to do so.” In determining what is “reasonable in all the circumstances”, it seems to me that I should have regard to the principles set out by Wilcox J in the Hunter Valley case but that I should look further to more general considerations of the sort referred to in Chalk v Commissioner for Superannuation[56] and Brisbane South Regional Health Authority v Taylor[57] as well as to the Tribunal’s objective in s 2A of the AAT Act.
[56] (1994) 50 FCR 150; 33 ALD 420
[57] (1996) 186 CLR 541; 139 ALR 1
Chalk v Commissioner for Superannuation is a case in which Davies J, with whom Black CJ agreed, described the spirit in which an application for extension should be approached. He said:
“ Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:
‘We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated 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.’
Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended...”[58]
[58] (1994) 50 FCR 150; 33 ALD 420 at 155; 425
Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:[59]
“Even where the cause of action relates to personal injuries …, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible …
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ [[60]] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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.”[61]
[59] (1996) 186 CLR 541; 139 ALR 1
[60] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513 at 635; 518
[61] (1996) 186 CLR 541; 139 ALR 1 at 553-554; 9-10
The notions expressed in these two cases are inherent in s 2A of the AAT Act which provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Why I decided not to extend the time within which Mr Gibson could lodge an application
Although the proceedings were not recorded, I have set out Mr Gibson’s statements and views as comprehensively as I can from the notes that I kept at the time. For the purpose of deciding his application for an extension of the time within which to lodge an application for review, I accept everything that he has said without question. I accept, for example, that he received the decision some three months before he lodged his application for extension in May 2007 and not some time shortly after 26 August 2006 when the decision was made. I also accept that he was so hurt and desolated by the decision that he was unable to bring himself to challenge it by seeking review within 28 days of receiving it. Having listened to Mr Gibson, I can understand that this was a reaction that he was likely to have when faced with news not to his liking even though it is unlikely to be the reaction of many in the Australian community. For all that, there is little to suggest that the Minister would be prejudiced by an extension of approximately two months. The material is before him and this is not a case in which papers have been destroyed or witnesses moved away or died. The issues and the relevant evidence remain the same and equally accessible now as they were at the end of September 2006 or in February 2007 or so had Mr Gibson made his application within time (whatever that time may be).
Of greater concern to me than his delay in lodging an application are his prospects of success were he to lodge it. I do not question his sincerity or his belief in the truth of any of the statements that he has made. Even accepting that, I consider that his prospects of success are so poor that, in view of the delay, it is not reasonable in all of the circumstances to extend the time. It is not reasonable because it is not fair to the Minister or economical to him or to the Tribunal to use resources in a proceeding that has so few prospects of success.
Why I consider that the prospects of success of any substantive application by Mr Gibson to be so poor is this. On his view of events, he has a four year history of stalking. Stalking is a serious offence as is evidenced by the ultimate imposition of a 12 month term of imprisonment. That was imposed after he had been convicted of 37 counts of stalking. His convictions for stalking are accompanied by three breaches of a restraining order. In all, he has been sentenced to one year and 220 days imprisonment beginning with his second stalking offence in 2001 and ending with his imprisonment in 2004. He explains these offences by reference to his being smitten with a girl and by his hope that she would change her mind. At no time does he show any understanding of the effect that his actions might have had on the woman and her family. He appears to have no insight into his behaviour although I accept that he believes that he is “over her”. That may well be but less than two years had passed from the time that the 12 month term of imprisonment was imposed on 2 August 2004 and when Mr Gibson lodged his application for Australian citizenship on 9 June 2006. Given the four years of his offending, two years (or now a little more) is a short time to show that he is over her.
Mr Gibson referred to his work in the Church in the past but he has moved away from that work and from his beliefs. He is not working at the moment and is not studying. As his friends have shunned him, he is unable to ask any friends to speak as to his character. I understand that Mr Gibson may feel that his life in Australia is not what he would want it to be. He wants to remain a member of the Australian community and to gain, as it were, full membership of it by being granted citizenship. At the same time, he gives no indication of seeing or understanding that his place in the Australian community requires him to understand others in the community and to see how his actions can affect others. He gives no indication of being able to see issues in any way other than by reference to their effect on him. He has referred to the qualities that he has had in the past as a religious man and as a man of the Church, who has taught others about his beliefs. At the same time, he states that he has now walked away from his life as a committed Christian. Whether he is a committed Christian or a committed member of any other faith or not is irrelevant. What is relevant is that he points to very little in his life that shows that he now lives a life that exhibits the qualities of a person of good character or that his recent behaviour is a mere observation in his behaviour. What he does point to does not indicate that he is now a person of bad character. Of relevance are his record of convictions, the time over which they were committed and the relatively short time since the conclusion of the term of his last sentence of imprisonment and his activities since his release. They are matters to be taken into account determining the question whether Mr Gibson “… is of good character”. So too would the opinions of those who know him but he has produced nobody to speak of his past life.
In view of these matters, I considered that, even on Mr Gibson’s own view of the facts and even accepting all of his evidence without question, his chances of success were so small that it was not reasonable in all of the circumstances to extend the time within which he might lodge an application. That was so even though, on one view, he was only out of time by two months or so. I suggested to him that he should let a little more time pass so that he could continue to demonstrate his good behaviour. We also talked about avenues where he might find himself more involved with the community but he said that he had already explored those. I suggested that he might like to gather further material about his life and work and that he should present it as part of a fresh application to the Minister.
For these reasons, I refused Mr Gibson’s application for an extension of the time within which he might lodge an application for review of a decision of a delegate of the Minister dated 26 August 2006.
I certify that the fifty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Diane De Andrade Personal Assistant
Date of Extension of Time Hearing 18 June 2007
Date of Decision 18 June 2007
Date of Written Reasons 20 August 2007
For the Applicant self representedSolicitor for the Respondent Ms K. Miller
Australian Government Solicitor
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