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

Zazy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1013 (23 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0974
Re:Mahbuba Zazy
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 April 2021
Place:Sydney

The application for an extension of time is granted.
..............................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
EXTENSION OF TIME APPLICATION – citizenship by conferral – is there a reasonable explanation for delay – does the application have reasonable prospects of success – having regard to policy requirements – the application is granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) S21, S 23A, S 26CASES
Berkelaar v Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Makarov v Minister for Home Affairs [2020] FCA 734
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087; [1975] 2 All ER 1084
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry[1985] AATA 306
Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD
SECONDARY MATERIALS
Citizenship Policy Instructions (CPI 2, dated 2 March 2019)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 April 2021

Mrs Mahbuba Zazy (the Applicant) has requested the Tribunal to grant her an extension of time (EOT)[1] in which to lodge an application for a review of a decision by a delegate of the Minister (the Respondent) to reject her application for citizenship by conferral.
[1] Administrative Appeals Tribunal Act 1975 (Cth) section 29(7).
The Applicant is currently a citizen of the Islamic Republic of Afghanistan. She is 55 years of age and the holder of a Return resident visa (subclass 155). She has been in Australia since July 2005. Her husband and son are both Australian citizens.
The Applicant’s initial application was made on 3 March 2020 and the decision of the Respondent (the reviewable decision) was made on 14 May 2020.
Under the Administrative Appeals Tribunal Act 1975 (the Act), an applicant has a period of 28 days from the date upon which they received notification of a reviewable decision to lodge a request for its review by the Tribunal.[2] The Applicant has confirmed that she received notification on 18 May 2020 and hence the 28-day period ran until 15 June 2020. The Applicant did not lodge her request for a review until 3 March 2021 which is in excess of eight months after the statutory deadline.
[2] Ibid, section 29(2).
The application for an EOT was heard by the Tribunal on 15 April 2020 using the Microsoft Teams platform in accordance with the Tribunal’s COVID19 protocols. The Applicant was represented by her treating psychiatrist Dr Satya Singh.
Before proceeding to determine matters related to the application itself, it is necessary to record the basis for the decision by the Respondent to refuse the initial application for citizenship by conferral.
CITIZENSHIP BY CONFERRAL
Applications for citizenship by conferral are made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). Once an application is made, the Minister must either approve or refuse the application.[3]
[3] Australian Citizenship Act 2007 (Cth) s 24(1).
An applicant must meet certain qualifications as specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing).[6] Once that is complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing) before their citizenship is finally granted.
[4] Ibid, s 21(2).
[5] Ibid, s 23A.
[6] Ibid, ss 21(3)(d), (4)-(8).
[7] Ibid, s 26.
As stated, in order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Subsections (d), (e) and (f) of section 21(2) require the Minister to be satisfied that the applicant:
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship
…
In order for the Minister to be “satisfied”, section 21 (2A) provides for a “Citizenship Test” to be undertaken by the applicant:
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
However, under section 21(3)(d) of the Migration Act, the Minister may, in effect, waive the requirements of this provision in circumstances where the applicant
(d)has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i)     is not capable of understanding the nature of the application at that time; or
(ii)    is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii)   is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time;
…
In her initial application, Ms Zazy put material before the Respondent claiming that she had an enduring physical or mental incapacity and thus was exempt from satisfying the requirements of subsections 21(2) (d), (e) and (f). The Minister’s delegate considered these representations, and, for a number of reasons determined that they did not demonstrate this degree of incapacity in the Applicant. In particular, the Delegate found that:
·Some of the medical evidence submitted was from practitioners who did not meet the requirements of the citizenship policy regarding their specialist qualifications;
·The evidence of Dr Satya Singh (who is a qualified specialist) had not established that any of the Applicant’s medical conditions led directly to her being unable to sit for the citizenship test; and
·Evidence that the Applicant held a driver’s licence and was on Newstart Allowance indicated a level of capacity such that it should be possible for the Applicant to sit for the citizenship test.
Hence, the Delegate found that the Applicant did not meet the requirements of section 21(3)(d) of the Act.
The Tribunal notes that in making decisions about the grant of citizenship, a decision-maker is to have due regard to the provisions of the Citizenship Policy Instructions (CPIs) published by the Department. CPI 2 (Permanent or enduring physical or mental incapacity) specifies that supporting evidence is required from medical practitioners who possess recognised levels of specialist qualification, and that assessments of the mental health of applicants must address certain specified diagnostic criteria.
THE APPLICANT’S REASONS FOR REQUESTING AN EOT
The Applicant advances two reasons for the lateness of her application. In the first place she claims that she “did not understand as to what (she) had to do” to secure a review in the AAT and secondly she claims that she failed to submit some of the medical evidence which supports her claim of incapacity.
THE RESPONDENT’S BASIS OF OPPOSING THE EOT
The Respondent rejects the first of the Applicant’s claims on the basis that the notification correspondence was clear and direct about the 28-day period in which review applications must be lodged. It further contends that even the revised medical evidence now presented
“does not demonstrate that the applicant has a permanent or enduring physical or mental incapacity or how the incapacity links to the person not being able to understand the nature of the application, or demonstrate a basic knowledge of English, or demonstrate that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.”[8]
[8] Respondent’s Submissions at [15].
PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them to be granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[9] 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.
[9] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.
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[10] should be taken as the guide by this Tribunal in determining EOT matters.
[10] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and this 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”.
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;[11]
·“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.”; and[12]
·considerations of “any alternative avenues of relief should the original EOT not be granted”.[13]
[11] Brown v Commissioner of Taxation [1999] FCA 563 at [59].
[12] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[13] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
DISCUSSION
In this application, there are two of the “Hunter Valley” principles which need to be addressed in detail. The Tribunal notes that in their concluding oral submissions the Respondent did not press any matters associated with prejudice to any of the parties, comparative unfairness or claim that the Applicant had rested on her rights.
Has there been a reasonable explanation for the delay in lodging the application?
The Applicant submitted information to the Tribunal just prior to its hearing, outlining the personal circumstances affecting the Applicant during period from 2018 to 2020. Dr Singh informed the Tribunal that the Applicant’s son (now aged 14 years) had suffered serious ill-health from 2017 onwards. It appears that during this period the Applicant’s son suffered massive weight loss and considerable distress due to undiagnosed insulin dependent diabetes mellitus. A full diagnosis and remedial treatment for the son did not commence until late in 2019. During this period, and into the early part of 2020 the Applicant was fearful for her son’s health and too preoccupied with that to give proper attention to any other matters in her life.
Such correspondence as was received from the Department was dealt with not by the Applicant, due to her low level of functional literacy, but by members of her family who failed to understand the requirements for applications to be made within specified time limits. The Tribunal, of course, notes that this does not absolve the Applicant from her personal responsibility to adhere to such requirements.
The Respondent, at the hearing, and after consideration of these late representations, very properly conceded that they have some ameliorating effect on the position previously taken and that they constituted a reasonable explanation for some degree of delay.
However, the Respondent presses the point that eight months is a considerable delay.
The Tribunal notes that EOT applications have been rejected when they were only one day out of time[14], and on the other hand accepted up to five years late.[15]
[14] Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412 at [16]
[15] Berkelaar v Comcare [1997] AATA 12015.
Does the application have reasonable prospects of success?
In deciding EOT matters it is expressly not the role of the Tribunal to canvass in detail any matters which might be examined in a full merits-based hearing. However, the Tribunal needs to have some appreciation of the issues advanced by an applicant and the counter-position of the respondent.
In R v Secretary of State for the Home Department; Ex parte Mehta[16], for example, 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 the time."
[16] [1975] 1 WLR 1087; [1975] 2 All ER 1084 at [1088].
This formula was quoted with approval by the High Court in Jackamarra.[17]
[17] Jackamarra v Krakouer [1998] HCA 27 at [3].
In making their original decision, the Minister’s Delegate had before them detailed representations from a number of clinicians who had treated the Applicant for many years. These included a letter from her regular General Practitioner (Dr Vipin Goyal) which referred to long term management of the Applicant’s depression and anxiety; a letter from a General Psychologist (Mrs. Maria Haque) reporting on the Applicant’s mental health issues and a submission from a trauma counsellor (Ms Dayana Yakho) dealing with similar issues. All three sets of representations were dismissed by the Delegate on the basis that the practitioners did not meet the specified level of professional qualification laid down in the CPIs.
The Delegate did take note of a letter from Dr Singh dated 6 October 2019 but considered that it failed to address adequately the issues of enduring mental incapacity and relate this to an inability to sit for the citizenship test. It was Dr Singh’s evidence that this letter was provided originally in support of the Applicant’s application for the disability support pension (DSP) and so focused on the matters which need to be considered in that jurisdiction. In the event, DSP was granted. The letter was never intended to be the basis of representations in support of a citizenship application.
In response to this level of criticism, Dr Singh then provided a further letter dated 15 February 2021 specifically addressing the issues raised by the Delegate and relating his comments directly to the various subsections of the citizenship legislation in question.
CPI 2 (at 3.4) lays down some relatively prescriptive guidance for decision-makers when assessing claims related to section 21(3)(d) of the Act. Apart from prescribing the level of acceptable qualifications from medical and other health professionals, it provides (inter alia) that:
Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case.
…..
The incapacity must be the direct cause of the applicant not being capable of:
ounderstanding the nature of the application; or
odemonstrating a basic knowledge of English; or
odemonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
….
A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).
….
An applicant may be found to lack capacity in some areas of their life and not in others. It is necessary to establish whether the applicant’s reported incapacity is of a nature that the applicant cannot meet the requirements set out in para 21(3)(d) of the Act.
In relation to the nature of information which a decision-maker “may require” to be placed before them in a medical report to assist in making their assessment, the following is listed:
othe full name and date of birth of the applicant
oinformation on how long the specialist has been treating the applicant
owhether the applicant received treatment from any other specialist
owhen did the claimed incapacity commence
ohow many sessions has the applicant attended with the specialist
odoes the applicant attend consultations regularly
oare they currently being treated under a treatment plan – if not why not
oresults of any cognitive or clinical testing that has been undertaken.
The provisions of CPI-2 (which commenced in its current iteration on 2 March 2019) set an exceptionally high barrier for any applicant to meet. The Tribunal suspects that few consulting medical professionals who only occasionally provide assessments in this area are aware of the prescriptive nature of this Policy and, as a result, such medical reports are likely not to address all of the specified criteria.

The Tribunal, of course, must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions such as those arising here.[18]
[18] Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634, at 644-645.
Policy, however, is not the same as law. As this Tribunal said in Aston, “[p]olicy is not law. A statement of policy is not a prescription of binding criteria.”[19]
[19] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry[1985] AATA 306 (6 November 1985) at [21].
Indeed, I note the comment of Senior Member McCabe (as he then was) in Kumar to the effect:
I do not accept the Australian Citizenship Instructions[20] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation.[21] (emphasis in original)
[20] Predecessor documents to the Australian Citizenship Instructions.
[21] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 (18 December 2014) at [7].
In Gbojueh, Tracy J explained:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[22]
[22] Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883 at [39].
That said, Tribunal must apply the Policy flexibly and attuned to the particular circumstances of this application. It must also seek, as far as possible, to give effect to the outcomes which are clearly identified as being the rationale for the policy in the first place.
The Tribunal believes that the letter of Dr Singh of February 2021 addresses adequately the majority of the points set out in CPI-2. It provides information about the extent of treatment, the regularity of sessions, the role of other clinicians and the result of at least two psychometric tests conducted by Dr Singh with the Applicant.
Admittedly there is no given date for the onset of the incapacity nor specific details of a treatment plan. However, those plans have been mentioned in other representations and it was Dr Singh’s firm opinion that the Applicant’s mental health state had deteriorated significantly in the last year and the Tribunal can well understand that perhaps no “treatment plan” would be appropriate in this case.
What is of greater concern is the Respondent’s significant point that information about an applicant’s physical and mental state needs to be related clearly to that condition/those conditions at the time of the citizenship application being made, rather than at the present.
It was Dr Singh’s evidence that the conditions of the Applicant only just over one year ago (the time of the application) would have been very little different from those described today, perhaps just marginally better.
CONSIDERATIONS
The Respondent’s final position was to the effect that the Applicant would be better served by this application not proceeding but rather a new application being lodged which would allow a more “favourable” or supportive set of reports about the Applicant’s mental and physical conditions to be tendered.
The Applicant’s final position (via Dr Singh) was that this would be a waste of time and effort in that there could be nothing said in any report made in the future which would differ materially from those made already. He stated that there was “no new point to prove”.
Dr Singh is correct in that conclusion. Even a cursory examination of the material before the Tribunal would tend to confirm this. The underlying conditions which, although they might have deteriorated in the last year, are necessary to be assessed against the s 21(3)(d) requirements, appear to have been apparent at the time of the initial application, although their exact manifestations would need to be examined within the context of a merits-based hearing. This is not the appropriate forum for resolution of this matter.
The Tribunal also takes note of the fact that the Applicant’s husband and son are already Australian citizens and that the Applicant allegedly worries considerably about her status as a non-citizen.
Of course the Applicant is a holder of a Return resident visa and a decision not to allow her application to go forward at this stage would have no impact upon that, nor would it in any way prejudice any of the rights and privileges which she enjoys currently.
It is also true that a person may make multiple applications for citizenship,[23] although there may be limits on the number of times an applicant can sit and yet still fail the citizenship test.[24]
[23] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]
[24] Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964 at [24]; Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 at [31]-[37].
Were the Applicant to be exempt from meeting the requirements of subsection 21(3)(d), this would not be the end of the matter. The Delegate found that the Applicant satisfied the requirements of subsections 21(3)(a), (b) and (c), but having come to a negative conclusion on section 21(3)(d) did not proceed further to consider the residency and character requirements contained in subsections 21(3)(e) and (f). These would remain to be assessed.
CONCLUSIONS
In consideration of all the evidence, the Tribunal finds that the Applicant has provided a satisfactory explanation for the delay.
Although there will doubtless be some contest as to the extent to which any diagnosis of mental or physical incapacity relates directly to, or is causative of the inability of the Applicant to undertake the citizenship test, the proposition is open to debate and an opportunity should be given for it to be ventilated and weighed in a full merits-hearing before the Tribunal.
The general approach of the Tribunal in determining matters of extensions of time encompasses the fact that “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”[25]
[25] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at [30].
The Tribunal does not consider that any of the other factors in the “Hunter Valley check list” weigh against the Applicant in this matter, or that the Respondent would suffer any significant prejudice if the EOT were granted.
The Tribunal finds that, notwithstanding the considerable “public interest in the prompt disposition of legal challenges to acts or decisions of public bodies or officials”[26] there are good grounds for the Applicant to be granted an extension of time as requested.
[26] Makarov v Minister for Home Affairs [2020] FCA 734 at [21].
DECISION
The application for an extension of time is granted.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd].........................................
Associate
Dated: 23 April 2021

Date(s) of hearing: 15 April 2021

Date final submissions received: 15 April 2021

Advocate for the Applicant: Dr. Satya Singh

Solicitors for the Respondent: Jennifer Strugnell (Minter Ellison)

[2021] AATA 1013

23 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Remedies

Jurisdiction

Statutory Construction

Date(s) of hearing:	15 April 2021
Date final submissions received:	15 April 2021
Advocate for the Applicant:	Dr. Satya Singh
Solicitors for the Respondent:	Jennifer Strugnell (Minter Ellison)