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

[2020] AATA 2654

Ungormus and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2654 (5 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3970

Re:Songul Ungormus

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Chris Puplick AM, Senior Member

Date:5 August 2020

Place:Sydney

The application for an extension of time is refused.

..........................[sgd]..........................................

Mr Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – short delay – whether there is an acceptable explanation for delay – Applicant found to provide a reasonable explanation of delay – whether substantive application has merits – application for Australian citizenship by conferral – Applicant failed the citizenship test on multiple occasions – whether it is reasonable in all the circumstances to grant the extension – Application found to have little prospects of success – other options for applying for Australian citizenship open to the Applicant – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

Evidence Act 1995 (Cth) s 160

CASES

Becek and Department of Immigration and Citizenship [2012] AATA 237

Berkelaar v Comcare [1997] AATA 12015
BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
Parker v R [2002] FCAFC 133
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

SECONDARY MATERIALS

Australian Citizenship Policy

REASONS FOR DECISION

Mr Chris Puplick AM, Senior Member

5 August 2020

1. On 1 July 2020 Ms Songul Ungormus (the Applicant) applied to this Tribunal for an Extension of Time (EOT) in which to lodge an appeal against a decision of the Minister (the Respondent) to refuse her application for citizenship by conferral.

2. The decision of the Respondent to refuse that citizenship application was made on 14 April 2020 and notified to the Applicant by registered letter posted on the same day. That letter advised that the Applicant had a period of 28 days in which to apply to this Tribunal for a review of that decision.[1] If it is accepted that the Applicant received the letter by no later than 23 April 2020,[2] then the time for her to lodge an appeal expired on 21 May 2020.

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

   [2] Evidence Act 1995 (Cth) section 160(1).

3. Her appeal was received on 1 July 2020 which was some 41 days outside the statutory time limit.

4. The EOT application was heard on 31 July 2020 with the parties appearing by telephone as a result of the limitations imposed on Tribunal proceedings by the Covid19 pandemic. The Applicant had the assistance of an interpreter in the Turkish language and was supported by Ms Beste Tungandame, who is a registered psychologist who has been treating her for many years. Ms Tungandame’s assistance was very much appreciated by the Tribunal.

   Extension of Time principles

5. When considering EOT applications, the Tribunal is bound by court authority as to the factors which it should take into account in deciding whether or not to grant such applications.

6. Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour 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. Secondly, 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. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[3]

   [3] (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.

7. While acknowledging that applications received out of time will generally not be accepted, it is also generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[4] (Hunter Valley) should be taken as the guide by this Tribunal in determining EOT matters.

   [4] (1984) 3 FCR 344, 348-349.

8. That list provides as follows:

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

   (b)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;

   (c)any prejudice to the respondent caused by the delay;

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

   (e)the merits of the substantial application; and

   (f)“[c]onsiderations of fairness as between the applicants and other persons” in a similar position.

9. This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[5] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.

   [5] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].

   RELEVANT ISSUES

10. This application turns primarily upon two of the factors identified in Hunter Valley, namely whether there has been a reasonable explanation for the delay and whether there is any realistic prospects of success were the matter to be allowed to go to a full merits hearing. The Tribunal notes that the Respondent made clear that it accepts that approval of the EOT application would not occasion any degree of prejudice to the Respondent.

    (a) Reasons for delay

11. It should be noted that the actual time of the delay in lodging an appeal is not itself the determinative factor. It has been held that relatively short delays do not necessarily mean that an application will be granted;[6] nor that quite lengthy delays will inevitably be unsuccessful.[7] The determinative factor is the acceptability or otherwise of the reason(s) given for the delay in lodgement.

    [6] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16].

    [7] Berkelaar v Comcare [1997] AATA 12015.

12. The Applicant states in her application that she received the Department’s letter on 14 April 2020 and there are two reasons for her delay in seeking a review of the decision, namely that “my address has changed and I did not know how to apply for a review until I get help from my psychologist.”[8]

    [8] Application for Extension of Time dated 1 July 2020.

13. To this the Respondent replies that the Applicant was under an obligation to notify the Department of any change of address and in any event the letter advising of the original refusal decision set out quite clearly details of when the decision was made, how to apply for a review and the 28 day time limit.

14. At hearing some confusion arose as to the date on which the Applicant received the Department’s correspondence. Her EOT application form suggests it was received on 14 April 2020, although this may confuse the date of receipt with the date of the determination. In any event, when asked at the hearing when she received the correspondence, she indicated that it was sometime in April. This would still have allowed a reasonable time for her to respond.

15. However, her evidence was to the effect that while she can read and write Turkish, she is functionally illiterate in English and hence did not understand that there was a time limit set out in the correspondence until she was able to consult Ms Tungandame who assists her in these matters, including with the lodgement of her original application. This proved not to be possible until after the 28-day period had expired.

16. The Tribunal finds that there was a reasonable explanation for the Applicant’s delay in lodging her application for an EOT.

    (b) Substantial merits

17. The question of what matters are to be considered, and how they are to be assessed in addressing the merits of the substantive application, have been examined by a number of authorities.

18. In Kuljic, von Doussa J stated:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. 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.[9]

    [9] Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886, [6].

19. In Pohahau, Wigney J stated:

    It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[10]

    [10] Pohahau v Minister for Home Affairs [2019] FCA 1243, [35]. Citations omitted.

20. In Jackamarra, the High Court quoted with approval the remarks of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta where His Lordship said:

    We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We 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.[11]

    [11] Jackamarra v Krakouer (1998) 195 CLR 516, 519 per Brennan CJ and McHugh J and 540 per Kirby J.

21. Thus, without going into prescriptive detail of the matters which might be before a full merits review, it is necessary to say something of the outline of any case which might be considered there.

22. The Respondent’s position is simply that the Applicant has failed on seven separate occasions to pass the Citizenship Test and has little prospect of doing so.

23. In order to be granted citizenship by conferral any applicant must satisfy certain requirements which are set out in the Australian Citizenship Act 2007 (Cth) (the Act). In brief there are three key elements. In the first place the Applicant must satisfy certain statutory requirements related to matters such as age and residential status. One of these requirements is that the applicant understands the nature of the application, has a basic knowledge of English and understands the responsibilities and privileges of citizenship (section 21(2)(d)-(f)). The second element is that in order to satisfy those requirements in section 21(2)(d)-(f) an applicant must sit for and pass a Citizenship Test (section 21(2A)). The third element is that once the test is completed and passed, the applicant must make a pledge of commitment (section 26).

24. Citizenship tests may be taken in a variety of ways, either as what is called the standard test or as an “assisted test”, the latter being available for people who require some form of physical or personal support to complete what is otherwise an online process.

25. It appears, in relation to the matter of an assisted test, that the Applicant was unaware that she could be assisted by a Turkish language interpreter while undertaking the test and was also unaware that the Department publishes a booklet dealing with the test and the questions it explores, also in the Turkish language.

26. The Applicant took the test once on 26 November 2019; three times on 16 January 2020 and three times on 19 February 2020. On each occasion she failed to reach the “pass mark” of 75%.

27. The Respondent’s position is thus that the Applicant has no reasonable prospect, at the present time, of passing the citizenship test and thus her application lacks substantial merit were it to be tested on that basis.

28. The Applicant however now advances a proposition that: “I have psycho social disabilities that has impacted my ability to process and retain information, I have psychiatrist report that I am not fit to sit for the test.”[12]

    [12] Application for Extension of Time dated 1 July 2020.

29. If this were to be the case, there are provisions in the Act (section 21(3)(d)) which allow for a waiver of citizenship test requirements where an applicant has an “enduring physical or mental incapacity.”

30. However this proposition has not been advanced or tested in any previous application by the Applicant and although there is a letter from Dr Ishrat Ali (dated 26 August 2015) which indicates that the Applicant suffers from depression and other conditions such as to render her unfit for work, it does not address the question of her fitness to sit the citizenship test.

    Discussion

31. It would thus appear that the Applicant’s prospects of success were this particular application to proceed to a merits-based review would be exceptionally limited, but she would nevertheless have a clear option to make a new application for citizenship by conferral[13] in which she might be able to demonstrate a section 21(3)(d) basis to avoid the necessity of passing the citizenship test.

    [13] There is no statutory limit on the number of times such applications can be made.

32. Ms Tungandame told the Tribunal that an inherent problem in relation to the issue of the citizenship test is that the Applicant has a psycho-social problem which makes it difficult for her to comprehend, retain and recall information, regardless of the language in which it is presented.

33. The Applicant believed that it was beyond her financial capacity to obtain a report from a professionally registered psychiatrist to attest to her incapacities as required under section 21(3)(d) of the Act, but the Tribunal was able to draw to her attention the fact that the Citizenship Policy[14] issued by the Department as a guide to decision-makers provides that acceptable evidence on such a point may be obtained from a:

    “psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes.”[15]

    [14] Effective 1 June 2016.

    [15] Citizenship Policy, Chapter 7.

34. As it appears that Ms Tungandame meets these qualifications and is prepared to make such a report available, it is to be hoped that this potential impediment may be more easily overcome.

35. For the sake of completeness, the Tribunal notes that there are also provisions for an alternative assessment of such citizenship applications for persons over the age of 60 (section 21(4)(a)(i)). The Applicant is currently 54 years of age.

36. Refusal of an EOT at this stage would cause no prejudice to the Applicant’s current visa status. She holds a Return Resident visa (subclass 155)[16] and is thus free to do such things as travel overseas and return if she wishes. It does not prejudice any of her other rights.

    [16] Granted 27 June 2013 and currently valid.

37. The Tribunal noted that the Applicant, who has been in this country since 2005, was clear in saying how much she loved Australia and how she particularly valued its equal treatment of women and that she would look forward to being accorded the right to vote in elections.

    Conclusion

38. Applying the relevant parts of the Hunter Valley principles, the Tribunal finds that, in this instance, the Applicant has provided an acceptable reason for the delay in lodging her application for an extension of time. However, consideration of the substantial merits of this application make it clear that the Applicant would have no realistic prospect of success in her appeal.

39. On the other hand, now it has been explained to her that she has other, and perhaps better, options upon which to base an application for citizenship by conferral. A decision against the granting of an EOT, may in fact clear the way for her to proceed with better prospects of success via a new application based upon the provisions of section 21(3)(d) of the Act and supported by evidence from Ms Tungandame. However, that would be a matter for proper consideration in due course and this Tribunal cannot and should not speculate on any such outcome.

40. A suggestion as to such a possible course of action in this matter reflects the same course of action taken in this Tribunal in Becek where the Tribunal stated:

    Ultimately, I have concluded on balance that, particularly in light of what I consider to be the relative lack of utility in her substantive application, Mrs Becek’s application for an extension of time should be refused. In all the circumstances, I consider the most appropriate course of action is for Mrs Becek to make a further application for citizenship which can be considered having regard to her current circumstances.[17]

    [17] Becek and Department of Immigration and Citizenship [2012] AATA 237 at [26].

    DECISION

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

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Chris Puplick AM, Senior Member

........................[sgd]............................................

Associate

Dated: 5 August 2020

Date of hearing:	31 July 2020
Advocate for the Applicant:	Ms B Tungandame
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison