CITIZENSHIP - Extension of time application - whether there is an acceptable explanation for the delay -- whether applicant rested rights - merits of substantial application - extension of time application refused

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Fancourt and Another v Mercantile Credits Ltd [1941] ArgusLawRp 85; (1983) 48 ALR 1

Hillman v Australian Postal Corporation [2017] AATA 1411

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344

Jaber v Minister for Home Affairs [2019] AATA 92

Minister for Home Affairs v Zadeh (no 2) [2018] FCA 1828

Phillips v Australian Girls' Choir [2011] FMCA 109

Determination for the Approval of Citizenship Test IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012

1. Mr Mark Maez (the Applicant) seeks an extension of time to lodge his appeal against a decision by a delegate of the Minister (the Respondent) to reject his application for citizenship by conferral.
2. The original application for citizenship by conferral was made by the Applicant on 19 July 2017 but needed to be amended and so was finally lodged on 12 September 2017.[1]
3. The decision to reject the application was made on 25 March 2019 and on the same day a letter was sent to the Applicant's stated address to advise him accordingly.[2]
4. The basis for the delegate's decision was that the Applicant had failed to sit for and pass the Citizenship Test which is a necessary prerequisite for the approval of a citizenship application.[3]
5. Applicants are advised, when their applications are unsuccessful, that they have the right under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to have that decision reviewed by this Tribunal but that they must lodge any such application within a 28 day period. In this case that period expired on or about 22 April 2019. The application for review was lodged on 23 May 2019.
6. With that application, the Applicant sought an extension of time to lodge his appeal some 27 days outside the time limit. The matter was heard by the Tribunal on 1 July 2019.

1. Citizenship by conferral can be acquired by applicants under section 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act). It provides:

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged 18 or over at the time the person made the application; and

(i) at the time the person made the application; and

(ii) at the time of the Minister's decision on the application; and

(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(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; and

(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h) is of good character at the time of the Minister's decision on the application.

1. In assessing the Applicant's application, the Delegate found that the Applicant satisfied subsections (a), (b), and (c) of this section and did not proceed to assess subsections (g) and (h).
2. However the Delegate found that the Applicant did not satisfy the requirements of subsections (d), (e) and (f). These relate to demonstrating an understanding of the meaning of the citizenship application, some knowledge of the English language and appreciation of the rights and responsibilities of citizenship.
3. Section 21(2A) of the Act provides the mechanism whereby those three subsections may be satisfied, essentially by the Applicant undertaking and passing the citizenship test.

(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.

1. Unless the Applicant is somehow exempted from these requirements as they may be in specified circumstances,[4] citizenship may be granted to an applicant "if and only if" the citizenship test has been successfully completed.
2. It is not necessary to go into further detail about the test, other than to say that there are multiple ways in which it may be completed and applicants may sit for it on more than one occasion if required, in order to pass it.[5]

1. The Respondent states quite simply that it has fulfilled its responsibilities by appropriate notification of its decision to the Applicant and that he then failed to avail himself of his appeal rights within the 28 day period. The Respondent presses the point that this delay (of 27 days) should be regarded as "not insubstantial"[6] and that, to all intents and purposes the Applicant had "rested on his rights" in not seeking a timely review of the decision.
2. The Respondent provided the Tribunal with copies of correspondence - in total seven letters - each of which invited the Applicant to attend the Parramatta office of the Department to sit for the Citizenship Test. This correspondence was sent by email to an address confirmed by the Applicant as his correct address.[7]
3. From this the Respondent adduces that, as the Applicant has failed to take or pass the Citizenship Test, there is no course of action open to it, or indeed to the Tribunal, other than to reject the citizenship application.

1. The Applicant (assisted by an Arabic interpreter) claimed during the hearing, that he did not receive the refusal letter from the Department until 23 May 2019 on which date he responded by lodging his appeal and request for an extension of time. He advised the Tribunal that there had been a number of problems with mail delivery to his home and that he only became aware of the Department's letter when advised by the Post Office that mail was awaiting him there and it was collected by his wife.
2. Furthermore he stated that while he received three notifications related to sitting for the Citizenship Test he was unable to attend them due to his commitment as a carer for an aged pensioner. He stated that on each occasion he had telephoned the Department to ask for the test date to be changed but had been advised that such requests could only be dealt with if they were lodged online. He states that when he attempted to connect to and use the computerised system he was unable to log-in and that numerous such attempts were unsuccessful. There is confirmation that on at least one occasion the Applicant contacted the Respondent by email and also advised of his problems with online access.[8]
3. The Applicant strongly asserted that he wanted to sit for the Citizenship Tests and that he was anxious, both for himself and his children to become an Australian citizen.

1. The Tribunal had before it a photocopy of the letter of 25 March 2019 and the envelope in which it was sent by registered post. Handwritten annotations on the envelope suggest that it was received at the Post Office. The annotations are "Maez 2/4" and "reminder 12/5". The Respondent advised that the Post Office tracking system for registered mail was unable to locate any record of the delivery of this letter, for which a signature was required on receipt.
2. There is thus no probative evidence to establish details about the delivery or receipt of the letter in question. There is the evidence that such a letter was generated, and presumably posted on 25 March 2019 and the Applicant's statement to the Tribunal that it was received on 23 May 2019.
3. The Applicant confirmed that he was not always at home (although he said that his wife was) and thus it is possible that when the postal service attempted to deliver a registered letter requiring a signature on receipt that they were unable to complete the delivery and as a result returned the letter to the nearest Post Office. This would be consonant with an annotation on the letter that it was addressed to "Maez" and apparently received on "2/4". It would then be reasonable to assume that a reminder was sent to the Applicant on "12/5" although there was then a delay until it was collected by the Applicant's wife some 11 days later.
4. This is purely speculative on the part of the Tribunal but may well have been a possible scenario if the Applicant is to be believed.
5. The High Court in Fancourt addressed this issue in the following terms:

".... Delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post."[9]

1. This makes clear that a presumption exists that if a letter was properly despatched (and here there is evidence to demonstrate that fact) and it was addressed to the correct address (that matter is not in dispute) then it is to be assumed that the letter has been received by the addressee within the time framework of the "ordinary course of the post" which in this case would have been approximately five working days.

1. Decisions on applications for extensions of time under the AAT Act have generally been made with reference to the criteria laid down by the Federal Court in Hunter Valley.[10] These criteria are:
   • an applicant must show an "acceptable explanation of the delay" and that 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 persons other than the respondent or the general public would suffer any prejudice as a result of the extension;
   • the merits of the substantial application; and
   • "considerations of fairness as between the applicant and other persons" in a similar position. (Reference the wider public interest.)
2. In this instance the Tribunal identifies two of the criteria - the explanation for the delay and the merits of the substantial application as being critical to its determination.
3. The evidence before it, such as it is, tends to support the proposition that the notification was not received by the Applicant directly but that it was available from the Post Office on or after 2 April 2019. There appears to have been no attempt to collect the letter immediately after that date, and indeed there was then a gap of 11 days after the "reminder" before it was collected.
4. If in fact the Tribunal is to accept that it was only collected on 23 May 2019 it suggests an exceptional degree of celerity on the part of the Applicant to then lodge an application for both review and extension of time on the very same day.
5. The Tribunal is drawn to conclude that the notification letter was available to the Applicant on or after 2 April 2019 and that the delay in collecting it and hence the delay in submitting the appeal for review was the responsibility of the Applicant.
6. The Tribunal accepts that the Applicant may have had some difficulty in logging-in to the Department's computerised system in order to try and navigate to a date which was suitable for him to undertake the Citizenship Test and it may be unfortunate that an inability of the Department to accommodate this, other than by online methods precluded it being sorted out by two human beings talking to each other. Nevertheless, that is the reality.
7. It is also the case that the Applicant, having been put on notice that such a test was required and that a variety of dates, were advised well in advance,[11] simply failed to attend. There were at least seven dates made available to him, six, if one discounts the initial offer which he sought to vary.
8. The Tribunal finds it hard to accept that, if the Applicant were as anxious to sit the test as he asserts, he was unable to arrange his affairs in such a way as to make himself available on at least one of those occasions, his carer's responsibilities notwithstanding.
9. The failure to undertake the citizenship test was discussed by the Federal Court in Zadeh (No 2)[12] where Thawley J said:

[34] Paragraph 17 (of the Ministerial Determination) provides simply that "[t]here is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless the person has commenced a Course-Based Test". Paragraph 17 does not go further than what it expressly states. It does not contain an express or implicit requirement that the Minister be prevented from deciding an application because an applicant has asked to re-sit the Standard Test. It does not, expressly or implicitly, provide a "right" to an applicant to re - sit the Standard Test as many times as the applicant wishes before the application is decided.

[36] The statutory scheme requires the Minister either to approve or refuse an application (s 24 of the Citizenship Act) and contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a "right" under a Ministerial Determination to keep re-sitting the Standard Test.

[37......... . An applicant may ask to re-sit the Standard Test as many times as he or she wishes and the applicant may re-sit that test any number of times whilst the application remains on foot. That does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

1. This Federal Court decision was relied upon by Member Bygrave of this Tribunal in the recent decision in Jaber where she said:

"The wording of subsection 21(2A), that paragraphs 21(2)(d),(e)and (f) are taken to be satisfied "if and only if" the applicant has sat and successfully completed the citizenship test, is unambiguous; the Tribunal has no discretion to consider the applicant's circumstances or her reasons for not successfully completing the citizenship test."[13]

1. The Tribunal gave consideration to the possibility of granting an extension of time so that the Applicant could undertake the citizenship test at a time suitable to both himself and the Department, however, on reflection, this would not be consonant with the reasoning outlined by Thawley J in that it would be allowing the Applicant to "keep on foot" this whole process, by his own inactivity - a process which the Department has a right to control and, in any event, this would be unfair to other applicants in a similar situation, such as that discussed by Member Bygraves in Jaber.
2. The evidence leads to a conclusion that the Applicant has, as the Respondent claimed, "rested on his rights" with some sort of assumption that he could continue to decline the proffered dates of the citizenship test almost indefinitely.
3. Failure to attend, sit and pass the citizenship test means that any application for grant of citizenship (save where a relevant exemption applies[14]) must necessarily fail and any challenge to that determination has no prospect of being successful.
4. The Hunter Valley conditions of providing an acceptable explanation for the delay and establishing a reasonable prospect of success are not met.

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

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Mr T Hillyard, Sparke Helmore Lawyers, by phone

[1] Section 37 Tribunal Documents at [16].

[4] For example because of enduring physical or mental incapacity (s. 21(3)); being over the age of 60 of having certain impairments (s. 21(4)); being under 18 years of age (s. 21(5)); being the child of former citizen(s) (s. 21(6)); being born in Papua (s. 21(7)) or being a stateless person (s. 21(8)). None of these exemptions apply to this Applicant.

[5] Determination for the Approval of Citizenship Test IMMI 11/088 made by the Minister on 1 March 2012 effective 24 March 2012. Determination made under s. 23A of the Act.

[6] Respondent's Notice for Opposing Application for Extension of Time (dated 11 June 2019).

[7] Section 37 Tribunal Documents at [53]-[90].

[9] Fancourt and Another v Mercantile Credits Ltd [1941] ArgusLawRp 85; (1983) 48 ALR 1 at [8].

[10] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348]. See also Hillman v Australian Postal Corporation [2017] AATA 1411; Phillips v Australian Girls' Choir [2011] FMCA 109 for similar check-lists.

[11] 11 October 2018 advised 5 November 2018; 5 November 2018 advised 20 November 2018; 14 November 2018 advised 5 December 2018; 2 December 2018 advised 19 December 2018; 5 December 2018 advised 15 January 2019; 16 January 2019 advised 15 February 2019; 16 February 2019 advised 15 March 2019. Section 37 Tribunal Documents at [53]-[90].

[12] Minister for Home Affairs v Zadeh (no 2) [2018] FCA 1828.

[13] Jaber v Minister for Home Affairs [2019] AATA 92 at [13].