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.

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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

1. 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.

2. This decision is about whether Mr Saini should be allowed an extension of time to lodge his application to the tribunal.

3. 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 tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).

4. The Minister having opposed Mr Saini’s extension of time application, the tribunal held a hearing on 6 June 2018. Mr Saini attended in person, and was represented by his employer and support person, Mr Michael Pavlic. The Minister was represented by Ms Eleanor Cannon of Clayton Utz.

5. The discretion to grant an extension of time established by subsection 29(7) of the AAT Act is given in the broadest terms. Similar discretion is available to the courts in most cases. A body of case law has developed that sets out, non-exhaustively, the considerations that typically influence how the discretion is exercised. Among the best known of the cases dealing with these matters is Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 in which Wilcox J set out a number of principles (that case related to an extension of time to seek judicial review of a decision under section 11 of the Administrative Decisions (Judicial Review) Act 1977 but the principles apply equally in present circumstances).These principles include:

   ·the starting position is that an application made outside time will not in general be entertained, so there must be an acceptable explanation for the delay;

   ·the applicant must not have “rested on his rights”; an attempt by the applicant to continue agitation of the matter will be to advantage and a shorter rather than longer delay before the application is lodged is therefore to the advantage of the applicant;

   ·any prejudice to the respondent will militate against the grant of an extension, but mere absence of prejudice is not enough of itself to warrant a grant of extension;

   ·the merits of the substantial application are to be taken into account;

   ·fairness between the applicant and others in a similar position is also relevant.

   THE ARGUMENTS OF THE PARTIES

6. Mr Saini’s explanation for the delay was that his comprehension of English is limited; that he did not understand the timeline that applied in this instance, nor the weight and seriousness of the correspondence. He pointed to a number of personal circumstances, involving his difficulties with work, with his health and with his car. He said he understood the need to take action only with the advice of his work manager (who I gather is Mr Pavlic). Once he understood the matter properly, he immediately proceeded to lodge his application for review. Ms Cannon, for the Minister, said that Mr Saini’s explanation was insufficient and that there was no compelling reason to grant the extension.

7. 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

8. 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).

9. 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.

10. 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.

11. 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

12. The Minister for Home Affairs has adopted a formal policy to guide the application of the Citizenship Act, and in particular to guide the application of the discretion to approve or refuse an application where the criteria in section 21 of the Citizenship Act are met. The Citizenship Policy (the Policy) deals with a range of matters arising under the Citizenship Act, including questions of good character. The tribunal is not bound to apply policy adopted by administrators, but would normally do so unless the policy was inconsistent with the statute under which it was adopted, or unless the merits of the particular case demand that the policy be departed from: Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (Brennan J).

13. The Policy contains guidance on matters that can be taken into account in assessing good character. These matters relate to the “enduring moral qualities” of a person (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432), and although many different aspects of a person’s behaviour can be taken into account, a centrally important aspect is that a person of good character should obey and observe Australian law.

    Court proceedings

14. The basis for the decision that Mr Saini was not of good character was court proceedings in 2015 in respect of events in Newcastle in that year (this information comes from the record in the decision by the Minister’s delegate, reproduced in the Minister’s submission). Mr Saini came before the Newcastle Local Court and on 22 July 2015 was found guilty of two charges of assault of a police officer in execution of duty without actual bodily harm, the use of offensive language in or near a public place or school, and resisting an officer in execution of duty. Mr Saini was fined $300 for the language offence, $500 for one of the assault charges, and $500 for resisting arrest. He was also placed on an 18-month good behaviour bond for one assault and a 2-year bond for the other assault. The record is not explicit, but it appears that the two bonds were to run concurrently.

15. Mr Saini lodged an appeal; the Newcastle District Court on 17 March 2016 remitted the appeal to the Newcastle Local Court. On 28 August 2016 the Newcastle Local Court amended the sentence to $100 for the language offence, left the fine at $500 for resisting arrest, and imposed 12 month good behaviour bonds for each of the assaults on a police officer.

16. Ms Cannon pointed out that assault on police is a serious matter; Mr Saini committed multiple offences and has only recently freed himself from the supervision of the courts. A certain period needs to elapse after a penalty is imposed by a court before a person can establish themselves as of good character. Ms Cannon suggested that a period less than that imposed as a penalty by the court was insufficient. Mr Saini’s case for citizenship is therefore weak.

17. It is plain that Mr Saini feels that his treatment by the Newcastle courts was unfair, but I am unable to go behind the verdict of the court: Mr Saini has been found guilty of four offences and sentenced accordingly, and I do not propose to call into question how the court arrived at that outcome. The seriousness of the offences is best judged not by whatever partial information I can now glean from Mr Saini or elsewhere about the events that brought him before the court but by the sentence imposed.

18. It is at this point that some uncertainty arises. It appears that Mr Saini’s sentence was reduced on appeal, but the application of the good behaviour bond is somewhat unclear. On 26 August 2016 the Local Court imposed a 12-month bond for each assault offence, but it is not obvious whether that bond was to operate from the date of that judgment or from the date of the first appearance before the Local Court on 22 July 2015. Ms Cannon undertook at the hearing to investigate that matter and made a submission dated 8 June 2018 noting that it was possible under section 68 of the Crimes (Appeal and Review) Act 2001 (NSW) that the bond could run either from the date it was made or from an earlier date (Mr Saini was allowed time to provide comment or a response to the submission but did not do so). At this point, the information is not available to determine which of the timing options for imposition of the bond was followed in this case.

19. The answer to that question is important because if the bond was reduced to 12 months from 22 July 2015 it has well and truly been met and the amount of time that has elapsed since is now almost double the period of the bond, suggesting that a decision-maker might decide that, if he has subsequently behaved appropriately, Mr Saini might now be held to be of good character. If the bond dated for 12 months from 26 August 2016, on the other hand (which would imply an increase in the total length of the good behaviour period, by just over a month), it might readily be held by a decision-maker considering the matter now or in the reasonably near future that insufficient time has elapsed for Mr Saini to establish that he is of good character. Ms Cannon said that even if the bond was 12 months from 22 July 2015, insufficient time has elapsed since that time; but I note that in Chum and Minister for Immigration and Citizenship [2011] AATA 536 this tribunal noted that an elapsed time of less than the period of the bond was insufficient, and an argument to that effect was also put by the Minister’s representative in that matter, as was initially put by Ms Cannon in the present matter. The obverse of that argument, on the face of it, would be that an elapsed period following completion of the bond greater than that imposed in the bond might suffice if the applicant meets the character test in all other respects – although that argument was not canvassed in the hearing on the present matter.

20. I note that under either possibility the period imposed in the bond has now passed. There is therefore no application of subsection 24(6) of the Citizenship Act.

21. 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

22. 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.

23. 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.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.

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Associate

Dated: 27 June 2018

Date(s) of hearing:	6 June 2018
Date final submissions received:	6 June 2018
Applicant:	In person
Solicitors for the Respondent:	Ms Eleanor Cannon, Clayton Utz