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

[2021] AATA 1592

Tsering and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1592 (4 June 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2201

Re:Lhakpa Tsering

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:04 June 2021

Place:Sydney

The application for an extension of time is refused.

.............................[SGD]..........................................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – EXTENSION OF TIME - original application for citizenship refused - 28-day period has elapsed - out of time by six months - where extent of delay not acceptably explained - where prospects of success are very limited - application refused

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Dolan and Comcare [1993] 29 ALD 887
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
Secretary, Department of Family and Community Services and Roberts [2003] 73 ALD 412
Sharma and Minister for Immigration and Border Protection [2015] AATA 608

REASONS FOR DECISION

Chris Puplick AM, Senior Member

04 June 2021

Background

1. Tsering (the Applicant) is a stateless person, having been born in Tibet and arriving in Australia in October 2008 as the holder of a Global Special Humanitarian (subclass 202) visa. His wife also holds permanent resident status in Australia.

2. On 7 November 2016 the Applicant lodged an application for citizenship under the Australian Citizenship Act 2007 (Cth). In order to qualify for citizenship under that Act an applicant needs to meet a number of specific criteria set out in section 21(2) thereof. One of those criteria is that an applicant must be a person of “good character” (section 21(1)(h)).

3. On 24 September 2020 a delegate of the Minister (the Respondent) found that the Applicant was not a person of “good character” and so his application was refused.

4. The basis of the Delegate’s decision was that the Applicant had a substantial criminal record and that he had not been truthful in disclosing details of this in his citizenship application.

5. Where such an adverse decision is made, an applicant has a period of 28 days (from the date of the receipt of the notification, 24 September 2020) in which to lodge an appeal to this Tribunal for review.[1] In this instance that 28-day period expired on 21 October 2020.

   [1] Administrative Appeals Tribunal Act 1975 (Cth) section 29(2).

6. On 8 April 2021 the Applicant lodged an appeal with this Tribunal seeking an extension of time (EOT) to lodge such an application. This is, in effect, 168 days outside the time limit.

7. The application for an EOT was held on 13 May 2021 by telephone between the parties and the Applicant was assisted in these proceedings by his wife.

   Principles for Considering Extensions of Time

8. Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.

9. McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[2] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

   First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   [2] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.

10. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

11. It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[3] should be taken as the guide by this Tribunal in determining EOT matters.

    [3] (1984) 3 FCR 344.

12. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    ·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    ·any prejudice to the respondent caused by the delay;

    ·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

    ·“considerations of fairness as between the applicant and other persons” in a similar position.

13. However, there are other principles which the Tribunal bears in mind in these considerations. They include

    ·Considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated.[4]

    ·“If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.”[5]

    ·Considerations of “the availability of alternative avenues of relief should the original EOT not be granted”.[6]

    [4] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].

    [5] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

    [6] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].

14. There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether or not an extension of time may be granted.

15. In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:

    “In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.”[7]

    [7] Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412 at [16]. Also Dolan and Comcare [1993] 29 ALD 887 at 888.

16. In Roberts with one day delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[8]

    [8] Berkelaar and Comcare [1997] AATA 12015.

    Application of EOT Principles

17. The essential elements of an EOT application, if it is to be successful, is that it must show that there was a good reason for the application being made late and that there are reasonable prospects, if it is allowed to proceed to a full merits-hearing that it could  be successful.

    The delay

18. As noted, the application is just under six months out of time. In their oral evidence to the Tribunal, the Applicant and his wife explained that in the period of September/October 2020 the Applicant’s wife was pregnant and her husband was preoccupied in caring for her. Their child was born on 18 October 2020 and the Applicant took approximately a month off work to be with his wife and newborn.

19. After November 2020 it was the couple’s evidence that they were experiencing financial hardship due to the fact that they only had one income and the wife was not eligible for Australian government family-support benefits due to her immigration status.

20. It was further the evidence of the Applicant that when he received the notification of refusal he had some difficulty understanding what it was all about due to his lack of comprehension of written English. He says that he showed the document to a friend who was some sort of local community worker and she “advised” that it would somehow be better for the Applicant to defer pursuit of his application until 2021. He also says that this friend did not explain to him anything about the 28-day requirement and that he remained ignorant of this obligation.

21. Finally, the Applicant says that he eventually showed the documentation to a close friend of his at work, and this friend advised that he proceed with an appeal to this Tribunal forthwith and helped him with the paperwork. The Applicant added that he received advice and assistance from the Registry staff at the Tribunal and they assisted him in arranging that his application be accepted at the reduce fee required.

22. The Tribunal is sympathetic to the Applicant’s position at the time of the birth of his child, but it does not accept that he was entirely unaware of what was going on with his application. He has some degree of fluency in the English language; he has studied English at High School (in India) and has some educational experience at TAFE.[9] He has lived in Australia for over 13 years and managed the details of the Tribunal hearing without the need of an interpreter.

    [9] Tribunal documents (T docs) at [149]-[152].

23. In any event, in the period between December 2020 and April 2021 he had ample time to turn his mind to matters concerned with this application but failed to do so.

    Prospects of success

24. It is not appropriate when considering an EOT application to canvass in detail the matters which might arise at a full-scale merits-based hearing of the substantial issues. The Tribunal must, of course, be aware of the issues in dispute and the relative positions of the parties.

25. In this instance the Respondent puts before the Tribunal details of a number of serious offences for which the Applicant was convicted and notes that he was subject to a Community Corrections Order which expired as recently as 13 November 2019. It notes further that among the offences in question are incidents of domestic violence upon which the most recent iteration of the Citizenship Policy Instructions (CPI-15) places great weight, advising decision-makers to count such matters as particularly adverse in assessing citizenship applications.

26. It further contends that it weighs against the Applicant that he failed to disclose some of the convictions on his citizenship application form. Finally, it advances the proposition that even if the Applicant had genuinely mended his ways and behaved in a responsible fashion since his last offence (November 2018) not enough time has elapsed since the expiry of the Community Corrections Order for the Tribunal to be satisfied that the Applicant is now a person of “good character”.

27. The Applicant does not seek to deny his offences, nor minimise their gravity. Rather, he explains that his circumstances have changed significantly in recent times. Prior to and during his offending period in 2016/2018 he says that he suffered from major depression due to a variety of financial and family circumstances (being unable to maintain contact with his family in Tibet) and that, as a result, he started to abuse alcohol – leading to his offending behaviour. He claims that he has now ceased using alcohol;[10] has attended counselling sessions and is now a responsible parent.

    [10] Ibid at [199].

28. Matters of what constitutes “good character” are often at the heart of decisions about citizenship applications and the Tribunal is called upon frequently to adjudicate such matters.

29. It should not prejudge or pre-empt any such determination(s) in an EOT application in the absence of the full extent of evidence on both sides being placed before it.

30. However, the Tribunal does note that several decisions have been given by the Tribunal which refer to the length of time which should expire following criminal or civil court proceedings or penalties before the Tribunal could be reasonably satisfied that an Applicant has passed from failing the character test to potentially passing it – time enough to assess the rehabilitation of the offender.[11]

    [11] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14]; Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]; Sharma and Minister for Immigration and Border Protection [2015] AATA 608 at [48]; Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [83].

    Conclusions

31. The Tribunal is not satisfied that the reasons given by the Applicant for the extent of the delay in lodging his application are sufficient to explain why he failed to act shortly after the birth of his child and the brief period of time which he took off from work. Taking account of these matters would have may well have been a satisfactory explanation for a delay of a few weeks but cannot be taken to explain a delay of some six months.

32. Decisions about future prospects of success must, necessarily be speculative, but taking into account the numerous precedents established in this Tribunal dealing with citizenship applications in circumstances analogous to this, it is reasonable to conclude at this stage that his application would have very limited prospects of success.

33. Consideration of these two factors leads to a conclusion that it would not be appropriate for an EOT to be granted at this stage.

34. The Tribunal notes that such a decision in no way precludes the Applicant from lodging a further application for citizenship,[12] perhaps at a time when it would be easier for the Tribunal to assess his degree of rehabilitation and be more confident that he was a person of good character.

    [12] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

    DECISION

35. The application for an extension of time is refused.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[SGD]............................................

Associate

Dated: 04 June 2021

Date(s) of hearing:	13 May 2021
Applicant:	In person
Solicitors for the Respondent:	S Wright, Mills Oakley Lawyers