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

[2023] AATA 132

Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 132 (13 February 2023)

Division:GENERAL DIVISION

File Number:          2023/0038

Re:Xiaoquin Wang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:13 February 2023

Place:Melbourne

Being satisfied that it is reasonable in all the circumstances, the Tribunal extends the time under s 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant to lodge his application for review to 4 January 2023.

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

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant approved for grant of citizenship by conferral – applicant did not make pledge of commitment within 12 months of approval – delegate of Minister cancels approval – basis of cancellation is that delegate not satisfied applicant likely to reside or continue to reside in Australia or maintain close and continuing relationship with Australia – applicant prevented from returning to Australia because of border closures – applicant did not receive notification cancellation being considered – applicant did not receive advice of cancellation until return to Australia – arguable case – time extended to lodge application for review

PRACTICE AND PROCEDURE – application lodged late – presumption of 28-day period – is Tribunal satisfied it is reasonable in all the circumstances to extend time – discretion is unfettered but general principles followed – time extended

Legislation

Acts Interpretation Act 1901 (Cth), s 36
Administrative Appeals Tribunal Act 1985 (Cth), s 29
Australian Citizenship Act 2007 (Cth), ss 21, 24, 25, 50, 53

Australian Citizenship Regulations 2016 (Cth), r 9

Cases

Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83

Secondary Materials

Prime Minister of Australia – Border closure – media release, 19 March 2020

REASONS FOR DECISION

Senior Member D. J. Morris

23 February 2023

1. The Applicant was born in 1988 in the People’s Republic of China (‘PRC’) and is a citizen of that country. He first arrived in Australia in 2012. In 2016 he was granted a Skilled Nominated (Subclass 190) visa. 

2. In October 2018 Mr Wang lodged an application for Australian citizenship by conferral. His application was approved on 2 October 2019 under ss 21(2) and 24 of the Australian Citizenship Act 2007 (‘the Citizenship Act’).

3. The conferral of Australian citizenship is a process which commences when a person lodges an application with the Department of Home Affairs (‘the Department’). It concludes when a person who has been approved for the grant of citizenship makes a pledge of commitment under s 28 of the Citizenship Act. That is clear from the wording in the heading of s 28: ‘Day citizenship begins etc.’

4. Section 25 of the Citizenship Act outlines the circumstances where the Minister may cancel approval given to a person who has been approved for the grant under s 24. The discretion arises if the person has not become an Australian citizen under s 28, the person is covered by ss 21(2), (3) or (4), and the Minister is satisfied that at the time the Minister proposes to cancel the approval, the person is not a permanent resident, is not likely to reside, or continue to reside in Australia, or to maintain a close and continuing relationship with Australia, or is not of good character.

5. In this case, it is not in contest that Mr Wang is not a permanent resident, nor that he is not of good character. The reason the Minister’s delegate cancelled the approval is that the delegate was satisfied under s 25(2)(b)(ii) of the Citizenship Act that Mr Wang was not likely to reside or to continue to reside in Australia or to maintain a close and continuing association with Australia.

6. In effect, while the original delegate who recommended the grant of citizenship to Mr Wang was satisfied of this same factor under s 21(2)(g) of the Citizenship Act, a new delegate considering whether the approval should be cancelled is able to revisit that question to make an assessment as at the time cancellation is being considered.

7. On 6 February 2023 the Tribunal held an interlocutory hearing by telephone. Mr Wang represented himself and the Minister was represented by Ms Isla Tobin of Clayton Utz.

8. The Tribunal took into consideration the following documents that had been submitted by the parties:

   By the Applicant:

   (a)Application for review dated 4 January 2023;

   (b)Bank statement for period 1 June 2022 to 30 June 2022;

   (c)Real estate statement for a residence in Hawthorn for period 1 July 2021 to 30 June 2022; and

   (d)Letter from Department of Home Affairs and decision record, both dated 17 August 2022.

9. By the Respondent:

   (a)Notice opposing application for extension of time, dated 19 January 2023;

   (b)Movement record for the Applicant, dated 6 February 2023; and

   (c)Incoming passenger card for the Applicant, dated 27 December 2022.

10. The last two documents were provided by the Respondent after the hearing, at the request of the Tribunal. Mr Wang was not asked to provide any further document, but he did provide a lease agreement for a residence in Balwyn, signed on 16 January 2023, with a lease tenure from 28 January 2023 to 27 January 2024.

11. The purpose of the hearing was to consider Mr Wang’s request for an extension of time, which the Minister had flagged that he opposed.

12. The Tribunal made clear at the hearing that it was not considering the merits of the substantive decision – i.e., whether the approval of Mr Wang’s grant of Australian citizenship should be cancelled.  It is considering whether Mr Wang should be able to lodge his late application.

13. The Administrative Appeals Tribunal Act 1975 (‘AAT Act’) provides that the prescribed time for a person to lodge an application for review is 28 days from the day on which the decision is made (section 29(2) of the AAT Act).

14. However, section 29(7) of the AAT Act provides:

    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.

    (Emphasis added)

15. Therefore, the general rule is that a person who receives a reviewable decision has 28 days (or such other period as an enactment may provide) to lodge an application for review with the Tribunal. The 28-day clock starts on the day after the person receives the decision (see section 36(1) of the Acts Interpretation Act 1901 (Cth) (‘AIA’)).

16. In this case, Mr Wang stated in his application for review that he received the decision cancelling his grant of citizenship on 17 August 2022. He had until 14 September 2022 to apply to the Tribunal for a review. He lodged his application with the Tribunal on 4 January 2023.

17. The Tribunal has absolute discretion in determining what it thinks is reasonable in all the circumstances in terms of whether to extend time. It depends on the particular case and the arguments put by the parties. However, the Tribunal often considers a non-exhaustive list of principles set out by Wilcox J in Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305. These matters include such factors as: the length of delay and whether it is fair and equitable in the circumstances to extend time; is there an arguable case; has the applicant rested on his rights and allowed the decision-maker to believe that the matter has been finally concluded, or has the person continued to make the decision-makers aware that he or she contests the decision; is there a prejudice to the other party or to others affected, or to the general public; and, finally, would it be fair to other persons in a similar situation to allow the late application to be reviewed.

18. The Courts have often stressed that slavish adherence to the list set out above is not a desirable approach. French J (as His Honour then was, of the Federal Court) said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83, in referring to the matters listed by Wilcox J in Hunter Valley, at [97]:

    His Honour did not purport to set out an exhaustive list of the criteria to be considered in an application for an extension of time. Nor should the propositions contained in the judgment be elevated into rules of law fettering the discretion. They identify factors relevant to the exercise of the power and approaches to their consideration.  In each case the discretion must be exercised with regard to all the circumstances.

19. None of these factors to take into account takes precedence over any other. The matters do not constitute a checklist, but they are a useful guide. Each extension of time must be treated on its own merits and circumstances. Sometimes, the interests of justice alone may demand that time be extended.

20. In deciding whether to extend time, the Tribunal must make a general assessment of the substantive matter proposed to be reviewed. In R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, Lord Denning MR 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 time.

21. The High Court of Australia in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576 noted with approval Lord Denning’s reasoning in this regard, in applications of this nature. The Tribunal does not delve deeply into the merits of an applicant’s case but should assess whether the case is arguable.

    The Applicant’s explanation for the delay

22. Mr Wang says that he departed Australia on 19 March 2020 to visit his mother in the PRC, who he says suffers from a liver condition. The Australian Government subsequently closed the borders in response to the international pandemic.

23. Mr Wang says that he and his wife and two children were unable to leave the PRC because of the border closure, and also because of particularly strict impositions on movement that were imposed by the PRC Government.

24. The Applicant said that his visit to the PRC was never intended to be so long. He told the Tribunal that the PRC Government has an internet policy which he described as the ‘Great Chinese Fire Wall’ which does not allow the internet site ‘Google’ to operate in that country. As a consequence, he could not view his ‘Gmail’ email account, which is operated by Google while he was in the PRC.

25. Mr Wang submitted that he therefore did not receive a letter from the Department dated 10 March 2022 (referred to in the decision record) advising him that consideration was being given to cancellation of his citizenship approval; nor did he receive the letter from the Department with the decision record, emailed to his Gmail account on 17 August 2022.

26. Mr Wang submitted that he was able to view his Gmail account on his return to Australia on 27 December 2022. He then wrote an application to the Tribunal seeking an extension of time, which he sent on 4 January 2023.

27. In response, the Respondent submitted that the letter advising Mr Wang of the decision referred to the 28-day period in which he could apply for a review. The Respondent therefore contended that Mr Wang was on notice from 17 August 2022, and the time period for him to lodge a review ended on 14 September 2022.

28. The Respondent submitted that Mr Wang has not provided any evidence to explain the length of his delay in applying for an extension of time such as evidence demonstrating his inability to use his email account in the PRC, nor of the restrictions in place that he asserts prevented him from returning to Australia.

29. The Respondent also submitted that Mr Wang waited eight days after his return from Australia before he lodged his application for review.

30. The Respondent submitted that the onus lay on Mr Wang to ensure he was contactable overseas, as he had been advised prior to his departure in March 2020 that he had been invited to a citizenship ceremony the following month.

31. The Respondent also submitted that Mr Wang’s movement history indicates he is a Chinese national who has travelled to the PRC on many occasions and would have prior knowledge about his ability or otherwise to use his Gmail account when in that country.

    Whether the substantive application has merit

32. The Respondent submitted that s 25(2) of the Citizenship Act requires the Minister or his delegate to consider the relevant circumstances at the time the cancellation decision was made; and that Mr Wang’s subsequent return to Australia in December 2022 does not bear on the prospects of the substantive application. The Respondent also asserted that Mr Wang ‘has subsequently departed Australia on 18 January 2023’.

33. The length of the delay in this matter is from 14 September 2022 to 4 January 2023. That is a period of 113 days.  This is not an insignificant period. The Tribunal does not place any significant weight on the Respondent’s submissions about the eight-day period between 27 December 2022, when Mr Wang returned to Australia, and 4 January 2023 when he lodged his application for review. The Tribunal was closed for the Christmas-New Year break, essentially, from the end of 23 December 2022 until 3 January 2023, although the website made clear on-line applications could still be lodged. I do not consider that Mr Wang not lodging his application until one day after the re-opening of the Tribunal for business is significant. It could not be fairly said, once he could use his email account, that he did not act relatively promptly, given the holiday close-down.

34. In this case, the Respondent argues that Mr Wang should have made arrangements for other points of contact if he knew his Gmail account would be blocked while he was in the PRC. Maybe he should have. But his position is that he never intended to still be absent from Australia for such a long period, in which case he would have been back in this country and would have received the correspondence from the Department. I do not think it is reasonable to suggest, by extrapolation, that Mr Wang should have made contact arrangements for a long absence that he did not anticipate.

35. In the hearing, the Respondent maintained its assertion in written submissions, that Mr Wang was out of Australia. Mr Wang said that he was in Melbourne and had departed Australia briefly for a short visit to Bali to celebrate the Lunar New Year. The Respondent then withdrew that assertion.

36. Ms Tobin submitted that on his incoming passenger card, when he arrived in Australia on 27 December 2022, Mr Wang had ticked ‘no’ to the question on the card, Do you intend to live in Australia for the next 12 months?

37. Mr Wang submitted that was an error and that he had answered ‘yes’ to the same question on the incoming passenger card when he returned from Bali on 26 January 2023.

38. The Tribunal asked the Respondent to provide copies of both incoming passenger cards. In the end, only the 27 December 2022 incoming passenger card was produced. The Respondent told the Tribunal that the 26 January 2023 card could not be produced.

39. I note that Mr Wang marked in the card he filled in on 27 December 2022 that he intended to be in Australia for ‘22’ days and that his country of residence was China. The period of 22 days is the period between Mr Wang’s return to Australia and his departure for his brief visit to Bali, Indonesia. However, his nomination of ‘China’ has his country of residence would tend to support the Minister’s general submissions.  Because the Department is unable to furnish the 26 January 2023 card, I cannot say whether Mr Wang’s assertion – that he filled the more recent card in differently – is corroborated.

40. A movement record dated 6 February 2023 for Mr Wang was provided to the Tribunal. It records, relevantly, that from the date Mr Wang was approved for the grant of citizenship on 22 October 2019 until the cancellation, he has departed Australia on two occasions.

41. On 15 October 2019 he had departed Australia, returning on 17 November 2019. That is a period of 33 days. On 20 November 2019 Mr Wang departed Australia, returning on 24 January 2020. That is a period of 65 days. On 19 March 2020 the Applicant departed Australia. He did not return until 27 December 2022. That is the period of 1,013 days – during which his grant of citizenship was cancelled. He also said he departed Australia on 18 January 2023 and returned on 26 January 2023, a period of 8 days; but that was after he had lodged his (late) application for review.

42. Mr Wang did not make any submissions about how long he had intended to be away when he departed Australia on 19 March 2020; only that the purpose of the trip was to see his unwell mother. He told the Tribunal that he has no siblings who could support her or advise him on her situation. He said that his wife and two children accompanied him to the PRC, but they all returned together to Australia.

43. The Tribunal did not have before it the letter the Department sent to Mr Wang on 10 March 2022 advising him that consideration was being given to the cancellation of his citizenship approval. Presumably that letter included prescribed reasons that an approved person might cite in terms of why he or she had not made the pledge (as set out in the Australian Citizenship Regulations 2016, r 9).

44. Mr Wang provided to the Tribunal a bank statement showing he has a house with a mortgage in a Melbourne suburb. He also provided a real estate agency document showing he has another house in another Melbourne suburb which is rented out. Although he did not provide proof, Mr Wang told the hearing he has a third residence in another suburb, but it had not been rented out during his absence. The Tribunal notes that this address is the one cited on his incoming passenger card dated 27 December 2022.

45. The Tribunal notes that Mr Wang provided a rental agreement for an apartment in Balwyn after the hearing. He said in an email that he did so, given that the Respondent could not produce the 26 January 2023 incoming passenger card, to support his case that he intends to reside in Australia. While the Tribunal appreciates the Applicant is trying to make his best case, the terms of s 25(2)(b)(ii) of the Citizenship Act require a ‘point in time’ assessment of whether the person is likely to reside or continue to reside in Australia. That point in time is when the decision to cancel approval is made and is not underminable by later evidence supporting residential intentions.

46. Mr Wang told the Tribunal that he and his wife are permanent residents. They have two children, a boy aged 7 who is a permanent resident and a girl aged 4 who is an Australian citizen. The Applicant told the Tribunal that his son is enrolled at a primary school in a Melbourne suburb.

    CONCLUSION

47. The Tribunal considers that the Applicant has an arguable case in terms of the substantive review. I also find that he has a fair case in terms of why he was late in applying. The Respondent is right to say that he should have made other arrangements in terms of being able to be contacted when abroad, if he knew his email account would be blocked in the PRC. But that of course hinges on how long he had intended to be out of Australia.

1. I emphasise that there is no criticism of the Respondent in how it notified Mr Wang, first that consideration was being given to cancellation of his citizenship approval and, second, that the approval had been cancelled. The Department is only able to communicate with a person by the means that they have nominated, which the officers did. But in this case there are unusual circumstances which cause me to accept that the Applicant was practically unable to receive the correspondence.

2. I am satisfied that the supervening event of the pandemic affected Mr Wang’s ability to return to Australia. On the day the Applicant departed Australia to visit his mother in the PRC – 19 March 2020 – the Prime Minister announced that, owing to the SARS-CoV-2 virus pandemic, Australian borders would be closed from 9:00 pm AEDT on 20 March 2020 to all non-citizens and non-residents. A media release issued by the Prime Minister, the Foreign Affairs Minister and the Home Affairs Minister relevantly stated:

   Australia is closing its borders to all non-citizens and non-residents.

   The entry ban takes effect from 9pm AEDT Friday, 20 March 2020, with exemptions only for Australian citizens, permanent residents and their immediate family, including spouses, legal guardians and dependants.

   New Zealand citizens who live in Australia as Australian residents are also exempt, as are New Zealanders transiting to New Zealand. Exemptions for Pacific Islanders transiting to their home countries will continue to apply.

   Mr Wang told the Tribunal that in March 2020 he received email advice from the Department that the citizenship ceremony that he had been scheduled to attend to make the pledge of commitment had been postponed until April 2020. The Tribunal is aware that the Department cancelled in-person citizenship ceremonies because of room capacity limits imposed by state public health authorities, as part of the protective measures relating to SARS-CoV-2. The Tribunal is also aware that on-line citizenship ceremonies were instituted in the special circumstance, but the prospective citizen had to be in Australia to make the pledge; persons outside Australia were not permitted to make the pledge in this way. There was no information before the Tribunal as to whether the April 2020 citizenship ceremony went ahead, or whether it was further postponed.

3. As a permanent resident, Mr Wang was technically able to return to Australia But it is common knowledge that international travel all but petered out in late March 2020 for a lengthy period, and, apart from being able to re-enter Australia, there may have been restrictions imposed by the PRC Government on persons leaving that country. It would be for the Applicant to lodge any evidence of such restrictions in terms of a substantive review.

4. The Respondent submitted that there is ‘little prejudice’ to the Applicant if the Tribunal refuses to extend time, because Mr Wang is entitled to apply for citizenship in the future. I reject that submission. This is not a case where a person applying for citizenship has been refused because he or she has not met a requirement. This is a case where the person has met all the requirements and the Minister’s delegate had approved the recommendation to the Minister. Therefore, accepting that the final act of making the pledge of commitment is essential and completes the Australian citizenship process. Something that Mr Wang had (the approval) has been taken away by the cancellation. The cancellation decision and a potential inability to seek merits review of it clearly prejudices him.

5. Logically, an assessment under s 25(2)(b)(ii) of the Citizenship Act must relate to the period between a person being approved for citizenship and the date when approval is cancelled. In this case the Respondent argues that Mr Wang was absent for a significant period of that time. The Applicant’s response is that the particularly long absence was caused by the border closures and his inability to return to Australia. Each of these is a valid proposition to put to the Tribunal on substantive review.

6. I can identify no unfairness to the other party or the general public in allowing this application to be heard. In the substantive hearing, it will be for the Applicant to make his case that the cancellation should not have occurred on 17 August 2022 on the ground of s 25(2)(b)(ii) of the Citizenship Act. Equally, it will be for the Respondent to make his case that the discretion was properly exercised. Having accepted there were special reasons in this case for the late application for review, in considering whether to extend time, I am not required to draw a conclusion that an applicant has a strong case. The person only needs to have an arguable case. I find that Mr Wang has. In saying that, neither he nor the Respondent should interpret that prima facie finding as drawing any conclusions as to whether he would succeed on substantive review.

7. I find that, on balance, it is in the interests of justice that the late application should be accepted.

   DECISION

8. Being satisfied that it is reasonable in all the circumstances, the Tribunal extends the time under s 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant to lodge his application for review to 4 January 2023.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 13 February 2023

Date of hearing:	6 February 2023
Date final submissions received:	8 February 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Isla Tobin
Solicitors for the Respondent:	Clayton Utz