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

[2021] AATA 759

Wantee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 759 (26 March 2021)

Division:GENERAL DIVISION

File Number:2020/8633          

Re:Philip Wantee  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member S Barton 

Date:26 March 2021

Place:Perth

The Tribunal refuses to grant the Applicant’s application to extend the time for the making of an application to the Tribunal for review of a decision made by a delegate of the Respondent dated 5 June 2020 as the Tribunal is not satisfied that it is reasonable in all the circumstances to do so pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

.............[Sgd]...........................................................

Member S Barton

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – length of delay – explanation for delay – prejudice to Respondent – prospects of success – refusal of application for Australian citizenship by conferral – satisfaction of identity – insufficient evidence regarding identity of the Applicant – limited primary documentation

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 29(2), 29(7)

Australian Citizenship Act 2007 (Cth) – ss 24, 24(3)

CASES

Brown v Federal Commissioner of Taxation (1999) 42 ATR 118

CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984]
3 FCR 344

Swanton v Military Rehabilitation and Compensation Commission (2017) 156 ALD 213

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines (2016) – para 2.1.1

Department of Home Affairs, Citizenship Procedural Instructions (2020) – CPI 16 – Assessing Identity under the Citizenship Act – paras [4.4]

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) – Chapter 13

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Member S Barton

26 March 2021

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent, dated

   
   

   13 February 2019, to refuse the grant of Australian citizenship by conferral to the Applicant (the Delegate’s Decision). The delegate was not satisfied of the Applicant’s identity and was therefore prohibited from granting the Applicant citizenship under s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).  

2. The Applicant has applied for an order extending the time within which his application for a review of the Delegate’s Decision may be lodged. The issue before the Tribunal is whether it is reasonable for such an order to be made.

   FACTS

3. The Applicant claims to have been born in Côte d’Ivoire and arrived in Australia on 20 February 2008 as the holder of a Global Special Humanitarian (subclass 202) visa (the Visa)

4. On 8 February 2017, the Applicant lodged an application for Australian citizenship by conferral. On 2 September 2017, the Department of Home Affairs (the Department) notified the Applicant that he was booked for a citizenship interview and test. On the same day, the Department sent a letter to the Applicant requesting either further documents relating to his identity or a statutory declaration as to why he had been unable to obtain the further documents. This request was reiterated in a further letter from the Department to the Applicant on 30 November 2017.

5. On 24 July 2018, the Applicant provided copies of documents previously submitted to the Department. The Applicant advised he did not possess any other documents that may assist in satisfying the Department of his identity. On 13 February 2019, a delegate of the Respondent refused his citizenship application.

6. On 27 December 2020, the Applicant applied to the Tribunal for an extension of time to make an application for a review of the Delegate’s Decision. The Respondent opposes the extension of time.

   MATERIAL BEFORE THE TRIBUNAL

7. The application for the extension of time hearing was heard on Thursday 4 March 2021. The Applicant appeared via teleconference and gave oral evidence.

8. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers, who appeared via teleconference.

9. The Tribunal admitted the following documents into evidence at the hearing:

   (a)Application for Review of the Decision, including the request for an extension of time, received on 27 December 2020 (Exhibit A1);

   (b)Letter from the office of Dr Anne Aly MP, dated 12 December 2017 (Exhibit A2);

   (c)Applicant’s Titre de Voyage document, received 27 December 2020 (Exhibit A3);

   (d)Australian citizenship refusal notification letter and decision record, received 27 December 2020 (Exhibit A4);

   (e)Applicant’s Letter of Appeal, dated 25 February 2021 (Exhibit A5); and

   (f)Respondent’s written submissions on Applicant’s application for extension of time, dated 15 February 2021 (Exhibit R1).

   ISSUES

10. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) details the manner of applying for a review of a decision. Section 29(2) of the AAT Act provides a general prescribed time for making an application, which is 28 days of the Applicant receiving notice of the decision. However, s 29(7) of the AAT Act provides that, upon application in writing by a person, this time period may be extended if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

11. The issue before the Tribunal is whether it is satisfied, in all the circumstances, that it would be reasonable to agree to an application for the extension of time.

12. Section 29(7) of the AAT Act is ordinarily interpreted in light of the principles set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. This decision and subsequent decisions made by the Tribunal, have set out a non-exhaustive list of considerations that may guide the decision of whether an extension of time may be granted. These considerations include the following:

    (a)the length of delay;

    (b)explanation for the delay;

    (c)prejudice to the Respondent or the wider public arising from a delay;

    (d)merits of the application under review, that is, its prospect for success; and

    (e)alternative avenues of relief.

    CONSIDERATION

    Length of Delay

13. The Applicant received the Delegate’s Decision on 13 February 2019. The Applicant applied for a review on 27 December 2020. This is 655 days after the 28-day deadline.

14. The Respondent submitted that ‘the length of the delay to lodge his application for review, cannot simply be ignored. It is a significant delay and the statutory time limits in which to lodge appeals are for a purpose’ (Exhibit R1, p 6, [16]).

15. The Tribunal finds the length of the delay of 655 days was significant given the 28-day time limit for filing an application and weighs against an extension of time being granted.

    Explanation for the Delay

16. The Applicant explained the delay was a result of the difficulty in sourcing documents in Côte d’Ivoire. As he explained in his email submitted on 25 February 2021 (Exhibit A5):

    I made several attempts to retrieve any possible documents of mine from family friends who still reside in the country, this attempt was also impossible. In 2020, my father, Genesee Wandah. Wantee travelled to Monrovia Liberia. On the Journey to Liberia, Genesee’s flight arrived in Cote D’Ivore as part of a joint flight to Liberia. He also made similar attempts to retrieve documents from the Government in Cote d’Ivoire, this attempt was also unsuccessful.

    In consequence of the failure to retrieve available documents, I had no further options besides having the initial decision appealed.

    (Without alteration.)

17. While this may explain his difficulty in providing documents relating to his identity, it is not a satisfactory answer for the considerable delay in lodging an appeal. Limited weight can be given to this explanation for a delay lodging an appeal.

    Prejudice to the Respondent or General Public

18. The Respondent concedes that there is no prejudice to the Respondent if the extension of time to file the application is granted. However, this is only one factor to be considered.

19. The Tribunal must also consider the interests of the public, the necessity of timeframes for administrative decision making and the interests of those applicants to the Tribunal who comply with the time limits. As noted above, the appeal was lodged nearly two years after the decision: to accept this delay without compelling reasons would significantly undermine the necessity and importance of timeframes for administrative decision making. In determining whether an extension of time should be granted, this factor should be given considerable weight.

20. It is open to the Applicant to submit a new Application for citizenship.

    Prospects of success of the substantive application

21. With respect to the prospects of success of the substantive application, it is not necessary to undertake a substantive review of the matter but assess the merits in a ‘fairly rough and ready way’ as noted in Swanton v Military Rehabilitation and Compensation Commission (2017) 156 ALD 213, 215 [32]. The Tribunal is to assess whether the Applicant has an arguable case as noted in Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.

22. Section 24 of the Citizenship Act prohibits the conferral of Australian citizenship in certain circumstances. Section 24(3) of the Citizenship Act states:

    24Minister’s decision

    …

    (3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

23. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2007 (Cth) states:

    There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.

    (Emphasis added.)

24. The Attorney-General’s Department’s ‘National Identity Proofing Guidelines’ (the Guidelines), published for the purpose of strengthening the process of identity proofing and creating a standardised and transparent approach, states that (at [2.1.1]):

    A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.

25. CPI 16 – Assessing Identity under the Citizenship Act of the Department of Home Affairs’ ‘Revised Citizenship Procedural Instructions’ (the Citizenship Instructions) (at [4.4]) identifies three pillars of identity: biometrics, documents and life story. It also states:

    Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.

26. In determining whether the Tribunal is satisfied of the Applicant’s identity, the Tribunal recognises that some applicants for Australian citizenship may have been born or lived in countries and societies that were not or are not, to use Deputy President Nicholson’s words in Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 (Dhayakpa) at [117], “established or undisturbed”. In such places, the issuing of official documentation may be hampered by conflict, civil strife, under-developed bureaucratic and administrative structures or, for some groups, by the specific design of government policy.

27. As such, the Tribunal recognises that this can present challenges for some applicants in providing the primary official documents normally used to establish identity, such as birth certificates. However, as Deputy President Nicholson observed in Dhayakpa at [117], “[n]either the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.

28. The Tribunal is guided by the approach taken by Member Kennedy in CDNB and Minister for Immigration and Border Protection [2018] AATA 757 (CDNB) at [9], who states:

    [P]roduction of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants.

29. In his application for Australian citizenship, the Applicant did not provide any documents that confirm his identity prior to 2007 (Exhibit R1, p 9 at [32]). Except for his documents for travel to Australia and the Visa, all documents are post his arrival in Australia. Limited weight can be placed on these documents, as the Respondent notes, there is no ‘unbroken chain linking to a primary official document’ (Exhibit R1, p 9 at [33]).

30. During the hearing and in his email dated 25 February 2021 (Exhibit A1), the Applicant described the efforts he and his family and friends have gone to in their attempts to source documents from Côte d’Ivoire. However, the description of these efforts was not accompanied by statements or declarations from relevant witnesses or evidence of those efforts, which might have assisted in providing ‘a cogent and acceptable explanation’ as to why they cannot be produced (CDNB).   

31. A certificate of Australian citizenship itself becomes an extremely important identification document. This significance is reflected in the attention given to positively ascertaining an applicant’s identity before granting citizenship and the legislative requirement that the decision-maker refuse a grant of citizenship where they are not satisfied of the applicant’s identity.

32. On the basis of the material before the Tribunal, the prospect of success in a review of the Delegate’s Decision appears unlikely.

    Alternative Avenue of Relief

33. It is open to the Applicant to lodge a new application for Australian citizenship.

    DECISION

34. The Tribunal refuses to grant the Applicant’s application to extend the time for the making of an application to the Tribunal for review of a decision made by a delegate of the Respondent dated 5 June 2020 as the Tribunal is not satisfied that it is reasonable in all the circumstances to do so pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

...[Sgd]..................................................................

Associate

Dated: 26 March 2021

Date of hearing:	4 March 2021
Applicant:	By phone
Counsel for the Respondent:	Mr A Burgess
Solicitor for the Respondent:	Sparke Helmore Lawyers