Saini and Minister for Home Affairs (Citizenship) - [2018] AATA 1867

Saini and Minister for Home Affairs (Citizenship) [2018] AATA 1867 (27 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2631
Re:Satinderjeet Singh Saini
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:27 June 2018
Place:Canberra

The time for the lodgement of an application for review of the decision of the delegate of the Minister for Home Affairs not to grant citizenship to Mr Saini is extended to 14 May 2018.
........................................................................
Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE – extension of time – where applicant’s citizenship application rejected on character grounds – principles for determining whether extension should be granted – explanation for delay – underlying merits of applicant’s case – criminal procedures – sentence – period of time elapsed since sentence complete – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975, s 29
Administrative Decisions (Judicial Review) Act 1977, s 11
Australian Citizenship Act 2007, ss 21, 24
Crimes (Appeal and Review) Act 2001 (NSW), s 68
Cases
Chum and Minister for Immigration and Citizenship [2011] AATA 536
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Secondary Materials
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Mark Hyman, Member
27 June 2018

Mr Satinderjeet Singh Saini, the applicant, applied for Australian citizenship on 23 March 2017. On 27 March 2018 that application was refused by a delegate of the Minister for Home Affairs (the Minister) on the basis that Mr Saini was not of good character. On 14 May 2018 Mr Saini lodged an application with this tribunal for review of that decision. That application was 15 days past the date set in the Administrative Appeals Tribunal Act 1975 (the AAT Act) by which such an application must be lodged. Mr Saini sought an extension of time for the lodgement of his application. The Minister opposed that extension of time.
This decision is about whether Mr Saini should be allowed an extension of time to lodge his application to the tribunal.
Section 29 of the AAT Act governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saini and Minister for Home Affairs (Citizenship)

Details

AGLC: Saini and Minister for Home Affairs (Citizenship) [2018] AATA 1867
Case: [2018] AATA 1867
Decision Date: 27 June 2018

CaseChat Overview and Summary

This matter concerned an application for an extension of time by Mr Saini, the applicant, to seek review of a decision by the Minister for Home Affairs to refuse his application for Australian citizenship. The refusal was based on the ground that Mr Saini was not of good character. The application was heard by Member Mark Hyman.

The primary legal issue before the court was whether to grant Mr Saini an extension of time to lodge his application for review. In determining this, the court was required to consider the principles for granting such extensions, including the explanation for the delay, the underlying merits of the applicant's case, and any prejudice to the Minister. The court also considered the relevant provisions of the *Australian Citizenship Act 2007*, particularly those relating to the assessment of good character and the Minister's discretion.

The court reasoned that an extension of time hearing is not a full hearing on the merits, but an applicant must demonstrate an arguable case. The Minister argued that Mr Saini's case was "plainly weak" due to a previous conviction. However, the court found that the original decision-maker had given undue weight to a minor traffic offence and that Mr Saini's involvement in a single incident, despite involving multiple serious offences, did not establish a pattern of behaviour indicative of poor character. The court also noted Mr Saini's imperfect command of English as a factor contributing to his delay in lodging the review application.

The court concluded that Mr Saini had not significantly delayed in pursuing his rights, having applied for review only 15 days out of time. It found no prejudice to the Minister in granting the extension, and considered the argument of unfairness to other applicants to be of little weight. Accordingly, the court granted the extension of time, finding it reasonable in all the circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Some weight was given by the original decision-maker to an earlier offence by Mr Saini; this was a parking offence – stopping in a bus zone (I gather that Mr Saini was a taxi driver at the time). I do not think a traffic offence of this kind goes substantively to Mr Saini’s character. I also note that the decision-maker considered that the succession of offences and appeals by Mr Saini constituted a pattern of offending that went to character. But it is plain that Mr Saini was involved in a single incident, although it involved four offences, and three of them serious offences at that. That single event, despite its seriousness, does not establish a pattern of behaviour. CONCLUSION Taking all of the above matters into account, it is clear that Mr Saini has not rested on his rights to any significant extent, in that he applied for review 15 days out of time. He has offered an explanation for the delay, and in view of his decidedly imperfect mastery of English, I am inclined to accept that he had some difficulty in understanding his options for review and deciding to act on them. There is no prejudice to the respondent if an extension of time is granted. It is true that at any time Mr Saini can lodge a new application; that limits the prejudice to him in a refusal of his application for an extension of time, but equally, it is not prejudicial to either party if his matter is decided by this tribunal. As for the unfairness with regard to other applicants, that does not appear to me to be an issue of great weight. Nor do I see significant implications for public policy more broadly. The length of the good behaviour bond and whether Mr Saini has now established himself as of good character sufficiently to meet the test in the Citizenship Act are matters best determined at a hearing, where it should be possible to draw on more complete information from the Newcastle Local Court. In all the circumstances, I think that it is reasonable to grant an extension of time.

Ratio Decidendi

Legal Principle Established

Ms Cannon did not argue that there was any prejudice to the Minister, but pointed out that Mr Saini could lodge a new application, which would then be decided on its merits; and she argued that to grant an extension of time would be unfair to others who in the same circumstances might find a similar application refused.CONSIDERATION The major thrust of the Minister’s case against the extension of time is that the merits of Mr Saini’s case are “plainly weak”. Mr Saini’s application for citizenship was rejected on a single ground, namely that he did not meet the requirement that a citizenship applicant be of good character (not all criteria were assessed in Mr Saini’s application, but no argument has been put that he would fail to meet any other relevant criterion). An extension of time hearing is not intended to take the place of a full hearing on the merits. Ms Cannon helpfully took me to the considerations raised by Besanko J in Hamden v Secretary, Department of Human Services [2013] FCA 3, where his Honour noted that an extension of time hearing was not an opportunity for determination of the substantive merits of the case, but that no extension of time should be granted unless the person seeking the extension had an arguable case. Plainly weak and plainly strong cases would lend weight to the rejection or grant, respectively, of the application. Factors bearing on the grant of Australian citizenship are set out in the Australian Citizenship Act 2007 (the Citizenship Act). In that Act, citizenship by conferral (the means of acquiring citizenship relevant in Mr Saini’s case) is governed by Subdivision B of Division 2 of Part 2. Subsection 21(1) provides that a person may apply to become a citizen; subsection 21(2) sets out the general eligibility requirements for an adult, including age, residence, familiarity with Australia and good character. The good character provision in paragraph 21(2)(h) is simply worded: it states that the Minister must be satisfied that the person seeking citizenship “is of good character” at the time of the Minister’s decision. Subsections 24(1), (1A) and (2) of the Citizenship Act provide, respectively, that the Minister must approve or refuse an application made under section 21, that approval may only be granted where the person satisfies the relevant subsection or subsections of that section, and that the Minister may refuse an application even where those subsections are satisfied. The scheme so established is that a person applying for citizenship must meet the relevant criteria in section 21, but meeting the criteria is not sufficient in itself: it enlivens a broad discretion either to approve or refuse citizenship. Subsection 24(6) imposes restrictions on the Minister’s power to grant citizenship in certain circumstances where a person has been found guilty of an offence or is before the courts. The provision presently relevant is paragraph 24(6)(g), which provides that if a court does not sentence a person but imposes a penalty such as a good behaviour bond, the Minister must not grant citizenship to the person while action could be taken under Australian law for breach of the conditions of that bond or like penalty.Citizenship Policy