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

Zhou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 3798 (21 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5179
Re:Xiaofang Zhou (aka Maggie Zhou)
APPLICANT

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

DECISION
Tribunal:Senior Member K. Parker
Date:21 November 2023
Place:Melbourne

The Tribunal grants the Applicant’s extension of time application. Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal extends the date for lodgement of the substantive application for review of decision to 14 July 2023.
..................................[sgd]......................................
Senior Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – request for extension of time for lodgement of proposed application for review (EOT Application) – EOT Application opposed by the Respondent – Applicant seeks review of substantive decision to cancel the Applicant’s approval for Australian citizenship by conferral – Applicant failed to attend citizenship ceremony because she was fearful that if she became an Australian citizen at that time, it would have prevented her from being able to undertake imminent pre-arranged work-related travel – considerable lodgement delay of 213 days after expiry of 28-day statutory time limit – consideration of Applicant’s explanation for the delay – Applicant states she did not read, closely, the Decision Under Review which contained a statement in it about her review rights – Applicant claims she was experiencing mental health issues at the relevant time due to personal circumstances – whether any prejudice to the Respondent resulting from belated lodgement of application for review – consideration of public interest and other factors – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of the substantive application – EOT Application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Australian Citizenship Act 2007 (Cth), s 25
Cases
Hunter Valley Developments v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member K. Parker
21 November 2023
INTRODUCTION

The Applicant, Ms Xiaofang Zhou (also known as Ms Maggie Zhou), is a 36-year-old citizen of China and holds an Australian permanent residency visa. She has applied for citizenship by conferral. This was approved and subsequently cancelled due to Ms Zhou’s failure to attend a citizenship ceremony when invited to do so. Ms Zhou seeks a review of the cancellation decision.
Ms Zhou lodged an application with this Tribunal for review of the cancellation decision, however, her lodgement took place 213 days after the expiry of the 28-day statutory time limit under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Ms Zhou applied to the Tribunal for an extension of time to lodge an application for review of the cancellation decision (EOT Application).
The Tribunal grants Ms Zhou’s EOT Application for the reasons set out below.
FACTUAL BACKGROUND
Ms Zhou first arrived in Australia on 2 January 2007 on a Student visa (subclass 573) to undertake a post-graduate course of study in Melbourne, Victoria.[1]
[1] Ms Zhou completed a Master of Business and Information Technology at the University of Melbourne, which she completed in June 2009 – see Ms Zhou’s Statutory Declaration signed on 25 September 2023 and lodged with the Tribunal on 28 September 2023 (Ms Zhou’s Statutory Declaration), paragraph [1].
Since February 2010, Ms Zhou states that she has worked exclusively for Australian businesses.[2] She is currently employed as a Strategic Portfolio Partner at T Ventures Management (Aus) Pty Ltd (Telstra Ventures) based in Melbourne, Victoria.[3] Ms Zhou states that her employment with Telstra Ventures requires her to undertake “very extensive international travel” due to the need for in person meetings with Telstra Ventures’ “invested start-ups”.[4]
[2] Ms Zhou’s Statutory Declaration, paragraph [2].
[3] Ibid, paragraph [5].
[4] Ibid, paragraphs [7] and [8].
On 6 May 2010, Ms Zhou was granted a Temporary Graduate visa (subclass 485).[5] Subsequently, on 6 June 2011, Ms Zhou was granted a permanent Skilled Sponsored visa (subclass 886).[6] Ms Zhou remains a permanent resident of Australia. She currently holds a Subclass 155 Resident Return visa and the travel facility will end on 27 April 2026. Ms Zhou states it is her intention to apply for a further Subclass 155 Resident Return visa before the current travel facility ends.[7] Ms Zhou informed the Tribunal that she owns an apartment in Docklands, Victoria.
[5] Ibid, paragraph [3].
[6] Ibid, paragraph [4].
[7] Ibid, paragraph [4].
On 13 April 2019, Ms Zhou applied for Australian citizenship by conferral (Australian Citizenship Application).[8] On 4 December 2019, the Department of Home Affairs (Department) approved Ms Zhou’s Australian Citizenship Application.[9] On the notice to Ms Zhou advising her that her Australian Citizenship Application was approved, it set out as follows:[10]
The final step of becoming an Australian citizen is to make a pledge of commitment at an Australian citizenship ceremony. You will not be an Australian citizen until you have made the pledge.
Generally, your citizenship ceremony will be scheduled within six months from the time your application is approved, although waiting times can vary. You will receive a letter of invitation from the Department.
…
If you do not attend a citizenship ceremony and make the pledge of commitment within 12 months after the day you receive notice of approval to become an Australian citizen, the approval of your application may be cancelled.
…
[8] Ibid, paragraph [9].
[9] Ibid, paragraph [9].
[10] Annexures to Ms Zhou’s Statutory Declaration, p.16.
The COVID-19 pandemic ensued in early 2020, resulting in a substantial restrictions being imposed by governments around the world including in Australia in relation to public gatherings and international and domestic travel.
Following receipt of the correspondence referred to in paragraph [7] above on 4 December 2019, Ms Zhou was not contacted again by the Department until 19 March 2022.
Specifically, on 19 March 2022, the Department issued a Notice of Intention to Consider Cancellation of Ms Zhou’s citizenship approval (First NOICC) on the basis that she may no longer satisfy the eligibility criteria of being likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia.[11] The First NOICC was issued on the basis of Ms Zhou’s declaration on 4 December 2019, during her citizenship test appointment, that she intended to travel overseas from 19 December 2019 for five to six weeks, and due to the fact that, on 22 December 2019, Ms Zhou had departed Australia and had not (at the time of issuing the First NOICC) returned to Australia. Ms Zhou was invited to respond within 28 days. Ms Zhou stated that she had departed for China on 22 December 2019 and had planned to return on 29 January 2020. She stated that while she was in China she was “caught up” in the COVID-19 travel restrictions and unable to return to Australia until 18 April 2022.[12]
[11] Ibid, pp.3-9.
[12] Ms Zhou’s Statutory Declaration, paragraph [11].
Ms Zhou responded to the First NOICC on 24 March 2022, and again on 1 April 2022, providing an explanation and supporting documents to demonstrate that she intended to reside in Australia and maintain a close and continuing tie with Australia, including that she intended to return to Australia in April 2022.
The Applicant returned to Australia on 18 April 2022.[13]
[13] Ibid, paragraph [11].
On 4 May 2022, an officer of the Department wrote an email to Ms Zhou to advise:[14]
Based on the information and evidence that we currently have on-hand, including that you have returned to Australia, I have determined that you meet eligibility criteria for your application.
You have been returned to the waitlist for a ceremony with your local council …
[14] Annexures to Ms Zhou’s Statutory Declaration, p. 10.
On 13 May 2022, the Department wrote to Ms Zhou to invite her to attend a citizenship ceremony on 15 June 2022 at 5.30pm at Melbourne Town Hall (Ceremony).[15] In this invitation, the Department stated as follows:[16]
Unable to attend your ceremony
If you have exceptional circumstances which mean you cannot attend your ceremony, contact us as soon as possible. Be aware that places are limited and it may be several months before you receive another invitation.
If you do not attend a citizenship ceremony and make the pledge of commitment within 12 months after the day you received notice of the approval to become an Australian citizen, we could cancel your citizenship approval.
[15] Ibid, pp. 11-14.
[16] Ibid, p. 13.
On 16 May 2022, Ms Zhou advised the Department by email that she was unable to “make the current ceremony date” and was “looking for options”, with a proposal that she be placed on the waitlist for Australia Day 2023 (that is, on 26 January 2023 – approximately seven months after the date Ms Zhou had received the ceremony invitation). Ms Zhou stated in this letter as follows:[17]
I was not expecting this invitation letter would be so quickly coming, thought after the recent review, the clock is reset for about 12 months. Apologies. I have to be overseas for planned business trips and which cannot be changed at current situation.
Look forward to your response.
[17] Ibid, p. 15.
Ms Zhou stated that she had also telephoned the Department on the same day, to explain her inability to attend the scheduled citizenship ceremony due to work plans. Ms Zhou stated that she was informed by the Departmental officer she spoke to that she would be invited to the next available ceremony and that the officer foreshadowed “a slot in late November or December of 2022”. Ms Zhou stated that the officer said that they would make a note of her preferences and reassured her that she would receive another ceremony invitation.[18]
[18] Ms Zhou’s Statutory Declaration, paragraph [15].
On 17 May 2022, a Citizenship Officer at the Department emailed Ms Zhou stating as follows:[19]
(a)it was a requirement of Ms Zhou’s Australian Citizenship Application to attend a ceremony within 12 months of approval;
(b)this period ended on 4 December 2020;
(c)the Department is unable to leave applications on hold indefinitely or for extended periods of time;
(d)COVID-19 had impacted on the ability of some clients to return to Australia to attend ceremony, however, that Australian borders were open and Ms Zhou was currently in Australia;
(e)Ms Zhou’s ceremony scheduled for 15 June 2022 would be her “final opportunity to become a citizen on this application” and unless she had evidence of a “prescribed reason for non-attendance”, that it was essential that she was in attendance;
(f)failure by Ms Zhou to attend without evidence of a prescribed or significant compelling reason would result in her application being further considered for cancellation;
(g)the reason which had been provided by Ms Zhou for not attending, that is that she intended to travel for business, would not be considered a prescribed or compelling reason for non-attendance or to further delay her Australian Citizenship Application;
(h)if Ms Zhou’s application is cancelled for failing to attend a ceremony to make the pledge of commitment, this would not prevent her from reapplying in the future, subject to meeting the eligibility criteria for any new application including residence requirements.
[19] Annexures to Ms Zhou’s Statutory Declaration, p.16.
Three hours later, Ms Zhou sent a reply email to the Department stating that she had called the previous day and had been told that all was good and that she would be put onto the “next waiting list with consideration of travel period”. Ms Zhou stated in this email that she did not know what the definition of, and scope for, a “compelling reason” was. She confirmed that that she was present in Australia and advised that her business trip had been “booked and locked” and she attached the ticket showing it had been booked on 30 April [2022]. She stated in this email that her proposed departure date was 19 June 2022, being four days after the ceremony, and stated: “I don’t believe I can be issued an Australian Passport in 3 days (2 business days), as day 4 is the flying. I also would not be able to get a China visa in almost no days either, as my first stop is China and then later to US. Our firm is Australia firm, we have business in China and US besides Aus locally”.[20]
[20] Ibid, p. 17.
Ms Zhou pointed out in this email that she had planned an “expensive and important business trip, locked not for leisure, but to keep growing our Australian firm financially healthy”.[21] Ms Zhou requested that the Department reconsider and provide her with an opportunity for a later ceremony date.
[21] Ibid, pp. 17 and 18.
By email dated 20 May 2022, the Department informed Ms Zhou that it had refused her request.[22] Specifically, Ms Zhou was advised in this email as follows: [23]
…[Y]our application cannot be further delayed and you will not be returned to the waitlist for a further opportunity to attend a ceremony if you do not attend the ceremony scheduled on 15 June 2022. If you fail to attend this ceremony you will be sent a Notice of intention to consider cancellation of your citizenship approval and will be given an opportunity to provide evidence that you have a prescribed or significant compelling or compassionate reason for failing to attend a ceremony.
[22] Ibid, p. 19.
[23] Respondent’s Statement of Facts, Issues and Contentions, dated 13 September 2023.
The Applicant did not attend the ceremony (on 15 June 2022) and departed Australia for China on 19 June 2022. Sadly, Ms Zhou’s grandmother, who lives in China, was admitted to hospital on 21 June 2022, and subsequently passed away on 28 June 2022.[24]
[24] Ms Zhou’s Statutory Declaration, paragraphs [22]-[23].
On 23 June 2022, the Department sent an email to Ms Zhou entitled “Citizenship ceremony non-attendance”,[25] which Ms Zhou did not respond to, on the understanding that she could disregard it if she had advised the Department of any conflict with the ceremony date.
[25] Annexures to Ms Zhou’s Statutory Declaration, p. 20. The fourth paragraph of this email reads “If you have already let us know that you could not come to the ceremony, or you recently attended another ceremony, please disregard this letter”.
On 18 July 2022, the Department sent Ms Zhou a second NOICC (Second NOICC) with a reference to her failure to make a pledge of commitment within 12 months after the date of citizenship approval and invited her to provide a “prescribed reason” for the failure. Ms Zhou did not respond to the Second NOICC. In Ms Zhou’s statutory declaration, Ms Zhou cited as the reasons for her failure to respond to the Second NOICC as being: the “grief of losing a loved one”, “excessive workload and personal health issues”, and “[not being] in the right mental and emotional state”.[26]
[26] Ms Zhou’s Statutory Declaration, paragraph [24].
On 15 November 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) decided to cancel Ms Zhou’s approval for Australian citizenship pursuant to sub-s 25(2) of the Australian Citizenship Act 2007 (Cth) (AC Act) on the ground that she had not completed the pledge of commitment within 12 months of being notified that her Australian citizenship application was approved (Decision Under Review).
On 14 July 2023, Ms Zhou lodged an application for review of the Decision Under Review with the Administrative Appeals Tribunal (Substantive Application), along with the EOT Application. As mentioned above, the EOT Application was made because Ms Zhou had lodged the Substantive Application 213 days after the 28-day statutory time limit imposed by s 29 of the AAT Act.
The EOT application is opposed by the Respondent.
ISSUE
The issue arising in this matter is whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Ms Zhou to make an application for review of the Respondent’s decision to cancel her citizenship approval under sub-s 25(2) of the AC Act.
SUBMISSIONS AND EOT HEARING
The EOT application was listed for a hearing by the Tribunal on 20 September 2023 (EOT Hearing – First Day). Ms Zhou was represented by Mr Nicholas Poynder of counsel in this matter. The Respondent was represented by Mr Mathew Kenneally of counsel in this matter.
Voluminous and extensive evidence and submissions were lodged by Ms Zhou and to a lesser extent, by the Respondent, with the Tribunal, in relation to the EOT Application. Specifically, on 29 August 2023, Ms Zhou’s legal representatives, on Ms Zhou’s behalf, lodged with the Tribunal:
(a)a 10-page statutory declaration by Ms Zhou, with 143 pages of annexures (Ms Zhou’s First Statutory Declaration); and
(b)a supplementary set of annexures (with an index) numbering 105 pages (Ms Zhou’s Supplementary Annexures to the First Statutory Declaration), which include a 16-page expert report by Mr Tim Watson-Munro, Consultant Psychologist (Mr Watson-Munro’s Report).
On 13 September 2023, the Respondent lodged with the Tribunal a 6-page written submission, and annexures numbering 18 pages (Respondent’s Submission).
On 19 September 2023, Ms Zhou lodged the following further evidence with the Tribunal:
(a)calendar entries numbering 6 pages;
(b)travel information and event information numbering 7 pages.
At the Interlocutory Hearing on 20 September 2023, Mr Poynder informed the Tribunal that Ms Zhou accepted that the length of the delay in lodgement weighed against granting the EOT Application. However, he said she does not accept the Respondent’s contention that this factor should weigh “heavily” against the granting of the EOT Application. Mr Poynder said the issue to be focussed upon in this matter, was the explanation for the delay.
Mr Poynder also proposed that the period to be focussed on in the EOT Application ran from January 2023 to June 2023, when he said Ms Zhou was “offshore for five months”, when, he said, the Respondent contends that Ms Zhou was “focussed on her work rather than personal matters”.[27] Mr Poynder stated that the critical area of Ms Zhou’s First Statutory Declaration for the Tribunal to consider was paragraph [43].
[27] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 20 September 2023), 4.
Mr Poynder stated that the annexures to Ms Zhou’s First Statutory Declaration went to the merit of the Substantive Application, which he said the Respondent had conceded there was some merit to the Substantive Application and, accordingly, he said this was not an issue for the Tribunal.
At the hearing, Mr Poynder stated that Ms Zhou had not made an application for review after she had received the Decision Under Review, due to her lack of understanding at the time about her right to seek review by this Tribunal, compounded by her mental state at that time, as described in Mr Watson-Munro’s Report.[28]
[28] Ms Zhou’s Supplementary Annexures to the First Statutory Declaration, pp 1-16.
The Tribunal asked Mr Poynder to provide a reference to the part of Ms Zhou’s First Statutory Declaration where she has stated that she did not understand she had a right of review. Mr Poynder referred the Tribunal to paragraphs [38] and [39]. However, Mr Poynder conceded there was “nothing there specifically on that issue about not knowing about her right of review. But that’s – we’ve explored that with the applicant having received the respondent’s submissions, and it’s something which can be developed in examination-in-chief”.[29] The Tribunal remarked at the hearing that this explanation sounded “a bit like an afterthought”. Mr Poynder then provided another explanation, which he said was consistent with paragraph [32] of Ms Zhou’s First Statutory Declaration, being that Ms Zhou was “immersed within grief, her excessive workload, personal health issues, she was not in the right mental or emotional state to respond to the [Second NOICC] and did not do so. She was told she could disregard the letter. She’d felt that she’d been unfairly treated by the case officer, paragraph 27: ‘It seems like I’d hit a brick wall, no matter how compassionate or compelling my reasons were, I felt they wouldn’t properly be considered by the department.’”[30]
[29] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 20 September 2023), 7.
[30] Ibid, 8.

The Tribunal noted the new evidentiary matters raised by Mr Poynder at the EOT Hearing - First Day and noted they may have come as a surprise to the Respondent. The Tribunal considered it appropriate at that juncture to stand over the EOT hearing for one week, for the following reasons:
(a)to allow Ms Zhou to adjust her materials to respond to the submissions made by the Respondent, including to remove any extraneous documents and materials contained within them, given the Respondent’s concessions, as set out in the Respondent’s Submission;
(b)to allow Ms Zhou to include any further evidence forming the basis of Mr Poynder’s oral submissions made at the EOT Hearing - First Day about her not being aware of her rights of review; and
(c)to provide the Respondent with an opportunity to respond to any such new evidence lodged by Ms Zhou.[31]
[31] Ibid, 9.
Consensus was reached between the Tribunal and Mr Poynder that Ms Zhou would prepare and lodge an updated statutory declaration and annexures to replace Ms Zhou’s voluminous evidentiary materials previously lodged in relation to the EOT Application.[32] The Tribunal adjourned the hearing, part-heard, until 27 September 2023.
[32] Ibid, 11.
On 26 September 2023, Ms Zhou lodged with the Tribunal an updated 12-page written submission dated 26 September 2023 (Ms Zhou’s Updated Submission).
On 28 September 2023, Ms Zhou lodged with the Tribunal
(a)an updated 14-page statutory declaration dated 25 September 2023 and annexures numbering 45 pages (Ms Zhou’s Statutory Declaration);[33] and
(b)a 215-page bundle of further evidence (Ms Zhou’s Evidence Bundle).
[33] Ms Zhou’s Statutory Declaration was first lodged on 25 September 2023 without an index and was re-lodged on 28 September 2023 incorporating an index to the annexures.
The Respondent informed the Tribunal that it continued to rely on the Respondent’s Submission. The Respondent did not lodge any further updated written submission or evidence.
The hearing of the EOT Application resumed on 27 September 2023 (EOT Hearing - Second Day), following which the Tribunal reserved its decision.
CONSIDERATION
Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging an application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:
Prescribed time for making applications—general
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
(b) …
Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement if it is satisfied that “it is reasonable in the circumstances to do so”.
Tribunal may extend time for making application
(7) 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.
The factors the Tribunal will consider in making this assessment are:[34]
(a)the length of the delay in lodging the proposed Substantive Application for review;
(b)the explanation given for the delay;
(c)the Tribunal’s preliminary impression as to the merits of the Substantive Application;
(d)whether the Respondent has suffered any prejudice on account of the delay;
(e)whether Ms Zhou had rested on her rights of review;
(f)public interest; and
(g)any other matter the Tribunal considers appropriate.
[34] Hunter Valley Developments v Cohen (1984) 3 FCR 344.
Firstly, the Tribunal has considered the length of the delay in Ms Zhou making the application for review of decision. Pursuant to subsection 29(2) of the AAT Act, an application for review of a decision made on 15 November 2022 was required to be made to the Tribunal by 13 December 2022. The Substantive Application was lodged on 14 July 2023, along with an EOT Application. This is a delay of 213 days after the expiry of the 28-day statutory time limit, which the Tribunal considers to be a substantial delay in lodgement. Accordingly, the Tribunal accepts the contention of the Respondent that this factor weighs “heavily” against granting an extension of time for the late lodgement of the Substantive Application.
Secondly, the Tribunal has considered the explanation given by Ms Zhou for the delay in lodgement of the Substantive Application. As mentioned above, Mr Poynder contended at the EOT Hearing – First Day, that the Tribunal should focus on this particular factor. The Tribunal agrees with this proposition, while noting that it will also consider the other factors referred to in paragraph [45] above.
In Ms Zhou’s Updated Submission, Mr Poynder explained that upon receipt of the Decision Under Review on 15 November 2022 while she was in China, she “did not fully read the document and did not therefore read nor appreciate that she had a right to seek review of the decision before this Tribunal” and only became aware of her “review rights” on 23 June 2023, when she spoke to a solicitor at a migration firm.[35]
[35] Ms Zhou’s Updated Submission, paragraph [6].
In Ms Zhou’s Statutory Declaration, she described her circumstances as follows (emphasis added):[36]
[36] Ms Zhou’s Statutory Declaration, paragraphs [31]-[43].
[31]At that time, I was grappling with the stress of an overwhelming workload, seeking solace in the process of healing and facing an emotional breakdown due to a deteriorating toxic relationship. On top of all this, my citizenship approval had been unexpectedly cancelled after waiting for the ceremony for 3 years and 7 months and I felt that I had not been given any chance to reschedule it while having, in my view, a valid and compelling reason.
[32]I did not read the email or the Cancellation closely. I just took this to be a formalization of the case officer’s decision, which I assumed had taken place back in June 2022 when I had not attended the ceremony. The emails from the Department on 17 and 20 May 2022 had been so definite in stating that this was my last chance; the tone of those letters was so adamant and it seemed to me that the case officer would accept no reason from me not to attend the ceremony. Particularly in the 20 May 2022, the case officer reiterated that she had the final say regardless of any other internal team from the Department or council…
[33]So, by the time I received the Cancellation I had already assumed that I had lost my chance to attend the ceremony and my only option now was to reapply for citizenship. There was no incentive for me to read the email and letter closely because I thought this was just formal confirmation of what I already knew. Hence, I did not read that I had a right to seek review of the decision in the AAT.
[34] Also at that time, I was not physically healthy, nor was I mentally capable of examining every word of the Cancellation and to think about picking a fight with the Department. The case officer had made me feel I was powerless and I didn’t want to further damage my already fragile mental status further from her negativity and power.
[35]Amid all these physical and mental struggles, I had to pack my belongings and prepare for my next business trip from China back to the US again on 28 November 2022.
[36]On 2 December 2022, soon after arriving in San Francisco after my conference in Las Vegas, I became gravely ill due to COVID. On 4 December 2022, I reached out to an Australian GP via phone and was strongly advised against taking any flights. I was eventually able to return to Australia on 13 December 2022, feeling overwhelmed and exhausted. I was still consumed on a daily basis with my personal matter regarding my boyfriend, and I was still recovering from the COVID I contracted for the first time. I did not have capacity to do anything logical; I just felt like hiding in my cave from anything and everything.
[37]During the Christmas break in 2023, I found myself continued to be consumed by my personal matters. I was required to travel to China on 21 January 2022 to spend Chinese New Year with my extended family due to sadly it’s the first one without my beloved grandma there anymore. I was therefore also having to face the cold relationship with my now ex-boyfriend which I stupidly feared to change at that time. I gave no thought to the Cancellation, which I thought was just confirmation of the final decision to refuse my citizenship. I will pick it up after I can sort out all my personal drama and especially finding a way to heal myself out of the depression I was suffering.
[38]On 19 January 2023, I left Australia to return to China to spend Chinese New Year with my parents while continuing to work across three time zones (CN, AU, US).
[39]I threw myself into work, to distract me from the emotional draining from my personal and family commitments and matters, I set my mind to pursue a therapy by searching a sense of fulfillment through work that in return I was hoping this sense of achievement could help me to instill hope to my life and courage to find a way out of the toxic and painful relationship too. Without consulting any professional and also without knowing how and what may make this theory work on me, I went extreme. I deliberately adding more and more workload on myself regardless of anyone’s concerns of my behavior was to break myself. I fainted twice during my US work trip. I was desperately experimenting a way to save myself and dying for a simple wish to live as a human being.
[40]So, I was sick, feeling a total lost in every aspect of my life. But I was trying every possible effort and resilience I could pull out myself to heal myself and handle all the personal matters impacting my health every day since late Jan 2023. During this time, there was full of confusion and stressing about the relationship to continue or bravely stop it and how to do it. I couldn’t talk with my parents about what’s going on life who would give me more lectures and their disappointment on me for not married yet. I did not feel content with my work during COVID which filled with full of self doubt. Working crazily during this period, was also to attempt search If I can gain any happiness at the work. I could not spark any interest on anything at all. I need the work to pay my daily bills that I cannot quit it easily. Therefore, it was a crucial though almost a sabotaged period between Jan 2023 – Jun 2023 for an opposite outcome - saving myself and finding courage of my life.
[41]I felt that the case officer was harsh and appeared to have no empathy at all, no interest in my reasons for not being able to go to the ceremony. She held the ultimate power that appeared to require me to obey her. Therefore, I was not in a state to take on these extra mental and physical burdens. Due to my perceived hostility, I felt the case officer could do damage to my resident status using her power. I was not in a healthy state to handle these extra stresses and deal with this difficult matter yet.
[42]Every day my work brought more tasks for me to complete, and my diary was always full (pp. 35-40). During this period, from January until June 2023, I participated and mostly led and managed eleven in-person business events worldwide, including cities like San Francisco, Los Angeles, New York, and London (pp. 41-42). I traveled extensively, from China to the US and all over the US (pp. 43 - 45). I built connections with over forty other venture capital firms and had to take a leading role in organizing an Australian CISO event at a prestigious RSA conference…
Additionally, I served as a judge in the Australian House program hosted by the Australian Trade and Investment Commission (Austrade) in San Francisco (p. 43). Despite the challenges, my relentless dedication resulted in significant milestones and my team’s impressive achievement of 116.5% of their financial year 2023 Key Performance Indicators (KPIs). Because of all this, I was extremely occupied with healing myself.
[43]From November 2022 to June 2023, my personal matters leaving me deeply depressed. During that challenging time, throwing myself into my work was my only sanctuary. Because I excelled at my job, it provided me with a semblance of certainty and comfort. Even if this meant overburdening myself, it temporarily shielded me from a harsher reality. It was the sole method I found to bring a sliver of hope and stability to my life, something I was in dire need of during this period.
Mr Poynder in Ms Zhou’s Updated Submission sought to summarise Ms Zhou’s reasons for why she had failed to carefully read the Decision Under Review as follows:
(a)“the finality of the cancellation on 15 November 2022 was, to [Ms Zhou], consistent with the inflexible and unsympathetic way in which she felt that she had previously been treated by the Department”. Mr Poynder referred to the email dated 17 May 2022 as being “sternly-worded” and advising her the ceremony on 15 June 2022 as being her “final opportunity” and which made it clear that her business travel “would not be considered a prescribed or compelling reason for nonattendance or to further delay” her application.[37] Mr Poynder sought to characterise the further email from the Department on 20 May 2022 as a “brick wall response” to Ms Zhou’s request for the ceremony date to be changed. He said the statement at the end of this correspondence, indicating that Ms Zhou may wish to consider reapplying for citizenship in the future, made it clear to her that the Departmental officer had essentially made up her mind that Ms Zhou would not on the grounds proffered by her, be offered another opportunity to attend a ceremony beyond 15 June 2022 and that she would need to reapply;[38] and
(b)the “state of physical and mental health” of Ms Zhou during the period between 15 November 2022 to 23 June 2023 in that it provided “an essential context” to Ms Zhou’s response to the Decision Under Review. Mr Poynder contends, on behalf of Ms Zhou, that she was “already crushed by the inflexible approach” of the Departmental case officer, to what Ms Zhou considered were “good reasons” for her request to reschedule the ceremony.[39] Mr Poynder contends that Ms Zhou was also facing her own serious personal problems which included:
(i) grieving the loss of her beloved grandmother on 21 June 2022;
(ii) dealing with “the fall-out of her toxic personal relationship”;
(iii) dealing with her family in China during their own grief over the loss of her grandmother and “their expectations on [Ms Zhou] to marry and have children”; and
(iv) Ms Zhou trying to overcome other physical health issues, and the onset of contracting COVID-19 while in San Francisco in December 2022.
[37] Ms Zhou’s Updated Submission, paragraph [8].
[38] Ibid, paragraph [9].
[39] Ibid, paragraph [11].
The Tribunal has grave reservations about whether one of the reasons Ms Zhou had belatedly lodged her application for review was because she did not read the Decision Under Review “closely” and, as a result, only first became aware of her rights of review when she sought legal advice about it shortly before the Substantive Application was lodged. Her evidence in this regard only appeared in evidence, after Mr Poynder had raised it as an oral submission following an exchange with the Tribunal at the EOT Hearing – First Day. This is significant in the context that Ms Zhou had previously prepared a comprehensive 10-page statutory declaration (that is, Ms Zhou’s First Statutory Declaration) with the assistance of legal representatives and had not mentioned anywhere in this earlier statutory declaration that one of the reasons for the late lodgement was that she had not read, noticed and/or understood the statements in the Decision Under Review about her rights of review to the Tribunal. Evidence was introduced about this by Ms Zhou belatedly and, in the Tribunal’s opinion, appeared to be an afterthought intended to bolster Ms Zhou’s prospects of succeeding in this EOT Application.
However, the Respondent did not directly challenge this subsequent evidence by Ms Zhou about her reasons for lodging the Substantive Application as late as she did. Nor did it call Ms Zhou for cross-examination. She was present at both EOT Hearing – First Day and EOT Hearing – Second Day. On this basis, and despite the abovementioned reservations held by the Tribunal, for the purpose of this EOT Application, the Tribunal considers it appropriate to give Ms Zhou the benefit of the doubt and to find that one of the reasons for the belated lodgement of the Substantive Application was that she was unaware of her right of review to the Tribunal until such time as she sought legal advice about it, shortly before lodging the Substantive Application.
Another reason proffered by Ms Zhou for why she did not take any further action upon receiving the Decision Under Review, was her reported physical and mental state at the time, as referred to above in paragraph [49]. The Tribunal has grave reservations about the veracity of this evidence also, as there is an inherent inconsistency between the evidence of Ms Zhou that her physical and mental state at that time had impaired or prevented her from functioning, thinking logically or having the strength to “pick a fight” with the Department (to use Ms Zhou’s words), and her other evidence that she threw herself into her work, was extremely busy, continued to undertake international travel and to participate and lead high-level business meetings, which led to significant business success for Ms Zhou’s employer, as evidenced by Ms Zhou exceeding the relevant key performance indicators. The latter activities and outcomes are evidence of a high level of functionality on Ms Zhou’s part at that time. The Tribunal does not accept that Ms Zhou was incapable at the time due to her reported physical and mental state from functioning in the usual way when it came to reading and understanding the Decision Under Review. The Tribunal also considers that Ms Zhou’s evidence about her mental state was inconsistent with the fact that she did not, at this time, seek out professional help for her mental health issues. By not doing so, the Tribunal infers that her issues were not serious, or that they were not seriously impacting upon her. The Tribunal does not accept the evidence of Mr Watson-Munro as set out in Mr Watson-Munro’s Report, as it was ill-informed given that he did not examine Ms Zhou at any time before or during the relevant period. Ms Zhou did not engage Mr Watson-Munro as an expert witness until 8 August 2023. The Tribunal considers that Ms Zhou made a choice to not deal with her citizenship problem at that time, and, instead, to focus her attention and efforts on her work.
However, it is important for the Tribunal to consider why she made that choice. Ms Zhou says that she chose at this time to throw herself into her work, and, as a result, seemingly prioritised her work commitments over her personal commitments, due to the depression she was reportedly experiencing arising from her and her family’s grief over the death of Ms Zhou’s grandmother, the demise of the relationship with her boyfriend, what this meant in respect of her family’s expectations for her to marry and to have children, her recovery from COVID-19 and her experience of other physical health issues.
As mentioned above, Ms Zhou was not called for cross-examination about this evidence. The Tribunal finds that Ms Zhou had a number of compounding personal circumstances which had influenced her choice or decision to shelve the issue about the cancellation of approval of her citizenship application until she was in a fit state to deal with it. With some reluctance, the Tribunal accepts Ms Zhou’s explanation for the belated lodgement of the Substantive Application. Her explanation is best characterised as self-preservation. Ms Zhou decided to take an approach which she believed would enable her to best deal with multiple life-stressors that she was reportedly navigating at that time. Her evidence was that she felt depressed and, also, concerned about the impacts of challenging the Department about the Decision Under Review, both in terms of the personal cost this might have on her mental health and also because it might risk her status as a permanent resident. Whilst objectively, this is not a strong reason for Ms Zhou to have deprioritised the citizenship issue, it is certainly conceivable that Ms Zhou genuinely considered she was making the best decision for her own health at the time, by putting off dealing with the citizenship issue until a later point in time.

For this reason, the Tribunal finds that Ms Zhou had an acceptable explanation for the late lodgement of the Substantive Application. This factor weighs in favour of granting the EOT Application.
Thirdly, in relation to the merits of the Substantive Application, the Respondent appropriately conceded ahead of the EOT Hearing – First Day that the Substantive Application could not be said to be without merit. The Tribunal notes that it would not be appropriate to make definitive findings as to the merits of the Substantive Application at this stage of considering an EOT Application. Instead, the Tribunal is required to form a preliminary impression about the merits of the Substantive Application and to satisfy itself that the Substantive Application is at least arguable. The Tribunal is satisfied that the Substantive Application is at least arguable and cannot be said to be without merit.
This factor weighs in favour of granting the EOT Application.
Fourthly, the Respondent accepts that there had been no prejudice to the Respondent arising from the delay in lodgement. Accordingly, this factor should not weigh against the granting of the EOT Application.[40]
[40] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 20 September 2023), 10.
Fifthly, the Tribunal has considered whether Ms Zhou “rested on her rights”. This consideration is broad enough to encompass a consideration of the circumstances surrounding Ms Zhou’s response to the Second NOICC sent to her from the Department stating its intention to cancel her citizenship approval, as well as her response to the Decision Under Review (which has already been dealt with by the Tribunal above).
The relevant part of Ms Zhou’s evidence about this commences at paragraph [24] of her Updated Statutory Declaration where she states that the Second NOICC was issued on 18 July 2022. Ms Zhou does not dispute having received the Second NOICC. Ms Zhou stated that she was in China at this time and she and her family, particularly her mother, were “immersed in the grief of losing a loved one”. Ms Zhou’s evidence is that her grandmother was hospitalised on 21 June 2022 “due to many health issues, including Acute Cerebral Infarction” and that on 28 June 2022, Ms Zhou “was devastated to receive the news” that her grandmother had passed away.[41]
[41] Ms Zhou’s Updated Statutory Declaration, paragraph [23].
Ms Zhou did not respond to the Second NOICC. The Tribunal noted at the EOT Hearing – Second Day that Ms Zhou had responded to the First NOICC, and that the Department was satisfied with her response, and invited her to attend a citizenship ceremony. The Tribunal enquired why, then; Ms Zhou had not responded to the Second NOICC. In Ms Zhou’s Updated Statutory Declaration, lodged during the hearing adjournment, she stated that:
(a)she was “not in the right mental and emotional state to respond to the Second NOICC and did not do so”, due to the situation concerning her grandmother, coupled with her “excessive workload” and “personal health issues”;[42] and
(b)she had been advised in the email dated 23 June 2022 that she could disregard the letter if she had notified the Department of any conflict with the ceremony date. Ms Zhou stated that she had already informed the Department of the schedule conflict in May [2022].[43]
[42] Ibid, paragraph [24].
[43] Ibid, paragraphs [16] & [22].
The Tribunal does not accept the explanation by Ms Zhou, as set out in paragraph [62(b)] above, as it is not plausible, because the email from the Department dated 23 June 2022 pre-dated the Second NOICC sent to her on 18 July 2022. The Tribunal finds that the Second NOICC made it clear to Ms Zhou on 18 July 2022 that it was intended that her citizenship approval might be cancelled, and there was a clear invitation to Ms Zhou to lodge a response for the Department’s consideration.
However, in regard to paragraph [62(a)] above, the Tribunal accepts the evidence of Ms Zhou as set out in her Updated Statutory Declaration in relation to her mental state and concern about her permanent residency status (as reproduced in paragraph [49] above). Ms Zhou was not called for cross-examination by the Respondent at the EOT Hearing – First Day or EOT Hearing – Second Day to test her evidence in relation to her mental state in the period to follow immediately after the date of the Second NOICC.[44] Ms Zhou’s evidence that her grandmother “played an irreplaceable role” in her upbringing and that they had “developed a strong bond and a close relationship”,[45] was not challenged by the Respondent. The Tribunal accepts this evidence. The Tribunal is satisfied that Ms Zhou was likely to have been significantly preoccupied, grieving, and comforting her family at the time her grandmother was hospitalised on 21 June 2022 (notably a few days after the date of issue of the Second NOICC) and then, passed away one week later on 28 June 2022. The Tribunal also finds that Ms Zhou was dealing with the dissolution of the relationship with her boyfriend, which had reportedly caused her significant distress.
[44] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 27 September 2023), 35.
[45] Ms Zhou’s Updated Statutory Declaration, paragraph [20].
In Ms Zhou’s Updated Statutory Declaration she stated that she departed China to travel to the United States “to continue my business trip in the [United States]”.[46] As addressed above, the Tribunal finds that Ms Zhou made a choice to prioritise her work activities over addressing the situation concerning the cancellation of approval of her Australian Citizenship Application.
[46] Ibid, paragraph [25].
In paragraph [26] of Ms Zhou’s Updated Statutory Declaration, she provided an account of what took place on and after 27 September 2022, upon returning to China, being that she was refused entry to Beijing until 9 November 2022, and was confined in quarantine, where she stayed in a hotel alone, and following the period of confinement, she went to Shanghai and “stayed at a friend’s couch” for the remainder of that 43-day period.[47] During this time, she said she had made frequent applications for permission to enter Beijing and was working remotely. She stated she was “worried” due to an upcoming business trip to the United States due to commence soon thereafter. Ms Zhou stated that “[a]t this juncture, my mental health had significantly deteriorated to the point of experiencing an emotional breakdown, even contemplating resigning from my job”.[48] Ms Zhou stated “[d]uring this time, my mother noticed my erratic mood swings and expressed her concerns on multiple occasions. However, my pride and fear of judgement deterred me from seeking professional help”.
[47] Refer to correction made by Mr Poynder; Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 27 September 2023), 16.
[48] Ms Zhou’s Updated Statutory Declaration, paragraph [26].
At the EOT Hearing – Second Day, the Tribunal enquired as to whether Ms Zhou had taken any steps to communicate with the Department between the date of the Second NOICC and the date of the Decision Under Review (that is, four months). Mr Poynder answered “[n]o, because she’d received the final answer in her view”.[49] He said that the Second NOICC had “merely confirmed what she had already been told by the department that they won’t accept her excuse of work and that the best thing she can do is reapply”.[50] Mr Poynder submitted as a reason she did not respond was that “she couldn’t give any further reasons other than she couldn’t make that – that 12 months had gone – had passed”.[51] He submitted that Ms Zhou had been responsive to communications from the Department until she “received a brick wall response” and at that stage, “she gave up”.[52]
[49] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 27 September 2023), 25.
[50] The Tribunal notes that this letter does not state that the best thing Ms Zhou can do is to reapply. Instead, it merely informs her that this is an avenue which she may wish to consider.
[51] Transcript of Proceedings, Zhou and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, 2023/5179, SM Parker, 27 September 2023), 27.
[52] Ibid, 28.
Mr Poynder also pointed to Ms Zhou’s difficulties and her wellbeing at that time and in that regard, he said Ms Zhou relied upon Mr Watson-Munro’s Report and Ms Zhou’s “own statement”.
As mentioned above, the Tribunal does not accept the evidence contained in Mr Watson-Munro’s Report as he had not examined Ms Zhou before or during the period after Ms Zhou received the First NOICC and the date of the Decision Under Review. He was not engaged by Ms Zhou to form an opinion about her mental state until August 2023. However, for the reasons (attendant with the reservations) stated above, the Tribunal accepts that Ms Zhou made the choice not to deal with, by responding to, the Second NOICC for reasons of self-preservation. Ms Zhou’s evidence about this was not tested at the EOT Hearing – First Day or EOT Hearing – Second Day, as she was not called for cross-examination by the Respondent.[53] In these circumstances, the Tribunal is satisfied that a finding that Ms Zhou “rested on her rights” in these circumstances, cannot be made and accordingly, this factor does not weigh against granting of the EOT Application.
[53] Ibid, 35.
Sixthly, the public interest gives rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal. The delay in lodgement in this application was substantial and while the Tribunal has accepted Ms Zhou’s explanation for the delay, it does not consider it to be a “good reason” for the delay as, ultimately, it was based on a choice that Ms Zhou made. This factor weighs against granting the EOT Application.
Finally, at the EOT Hearing – Second Day, Mr Poynder submitted that it had struck him, going back over what had happened, that Ms Zhou was “only given one opportunity to ask for an amended date”. Ms Poynder contended that it was “blatantly unfair” that Ms Zhou had waited 836 days from the date of approval of her Australian Citizenship Application on 4 December 2019 until the First NOICC. Mr Poynder clarified that he was not criticising the delay in offering Ms Zhou a ceremony but the delay in the Department communicating with Ms Zhou to let her know what was going on. He submitted that the Department failed to give her anything by way of communication or update for 836 days, and then it gave her one month’s notice, “[cutting] across a firm commitment she already [had] for her business”.[54]
[54] Ibid, 19-20.
The Tribunal does not consider the criticisms of the conduct of the Department articulated by Mr Poynder to be relevant to this EOT Application. The Tribunal does not regard the Department’s inaction to constitute a factor which the Tribunal should consider when deciding whether to grant the extension of time. It is appropriate that the focus remain in the conduct of Ms Zhou in relation to why the Substantive Application was lodged out of time, as this was a step, she was required to take within 28 days under the AAT Act.
Regarding alternative avenues, the Respondent contended, at first, that Mr Zhou may wish to reapply for Australian citizenship if she meets the eligibility requirements. Ms Poynder submitted that Ms Zhou is going to have trouble meeting the residency requirements if her EOT Application/Substantive Application is refused. He states that Ms Zhou does not have open to her an alternative avenue of reapplying for Australian citizenship by conferral. At the EOT Hearing – Second Day, Mr Kenneally on behalf of the Respondent conceded this point.[55] The Tribunal has not placed any weight on this factor.
[55] Ibid, 32.
CONCLUSION
The Tribunal has concluded that there are two factors weighing against the granting the EOT Application, specifically:
(a)the substantial delay in lodgement of the Substantive Application; and
(b)the public interest giving rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal.
The Tribunal has concluded that there are three factors weighing in favour of granting the EOT Application, specifically:
(a)based on a preliminary assessment of the evidence, the Tribunal is satisfied that the Substantive Application cannot be said to be lacking in merit and is, at least, arguable;
(b)despite the Tribunal’s reservations about some aspects of the evidence lodged by Ms Zhou, the Tribunal considers the explanation given by Ms Zhou for the delay as being acceptable; and
(c)the Respondent has not suffered any prejudice as a result of the delay.
The Tribunal considers that the factors weighing in favour of granting the EOT application outweigh the factors weighing against it. Accordingly, the Tribunal grants the EOT application and orders pursuant to s 29(7) of the AAT Act, that the date for lodgement of the Substantive Application be extended to 14 July 2023. This means the Substantive Application will proceed before the Tribunal in the usual manner.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

.............................[sgd]..........................................
Associate
Dated: 21 November 2023

Dates of hearing: 20 and 27 September 2023

Counsel for the Applicant:
Nicholas C Poynder

Solicitors for the Applicant: FCG Legal

Counsel for the Respondent: Mathew Kenneally

Solicitors for the Respondent: Australian Government Solicitor

[2023] AATA 3798

21 November 2023

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Jurisdiction

Remedies

Dates of hearing:	20 and 27 September 2023
Counsel for the Applicant:	Nicholas C Poynder
Solicitors for the Applicant:	FCG Legal
Counsel for the Respondent:	Mathew Kenneally
Solicitors for the Respondent:	Australian Government Solicitor