The Tribunal may consider the following non-exhaustive list of relevant factors in deciding whether to grant the extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]-[23] per Wilcox J; Rauhina and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 34 (Rauhina) at [15]: > > (a) the extent of the delay; > > (b) the explanation for the delay; > > (c) any prejudice to the respondent or the general public arising from an extension of time; > > (d) the merits of the substantive application for review; and > > (e) any alternative avenues of relief for the applicant should the extension of time not be granted. > > 8. In determining whether to grant an extension of time, the Tribunal's focus should be on the broader interests of the administration of justice having regard to the "myriad of facts and circumstances" in the applicant's case, including the above factors: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The Tribunal should weigh together all relevant factors but is not required to adopt a "ranking" approach as to the weight given to the different considerations: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451; [1999] FCA 37 at [43]-[44] per Katz J. > > Extent of the delay > > 9. The delegate's decision was made on 17 April 2024. On the same date, the applicant was notified of the delegate's decision, and provided with a copy of the reasons for the decision, by email sent to mussaosman066@gmail.com (Annexure B). Accordingly, the Minister submits that the applicant is taken to have received the delegate's decision on 17 April 2024: s 14A(1)(a) of the Electronic Transactions Act 1999 (Cth) (Annexure C). > > 10. The applicant lodged his application for review of the delegate's decision with the Tribunal on 15 November 2024, 212 days after receiving notice of the delegate's decision. The application was therefore lodged 184 days outside the 28-day statutory timeframe prescribed by the ART Act and ART Rules. This is a very significant delay and the Minister submits that it should weigh heavily against the granting of an extension of time. > > Applicant's explanation for the delay > > 11. The applicant did not apply for an extension of time in his application for review of the delegate's decision, and the Minister is not aware of the applicant having since provided any explanation for his delay in lodging his application. > > Hanna and Minister for Home Affairs (Citizenship) [2018] AATA 4622 at [12]-[15] (Hanna). The Minister submits that this should weigh heavily against the granting of an extension of time. > > Prejudice > > 13. The Minister submits that there would be prejudice to the Minister and the general public if the extension of time were granted. Among other things, it is in the interests of both the Minister and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes: Dok v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2631 at [14]. It also assists with the administrative effort behind management and allocation of those resources for the Department to know, with a certain level of finality, whether or not a matter is proceeding within the statutory timeframe governing commencement of such a proceeding: see, e.g. Rauhina at [23] per Senior Member Tavoularis; see also Hanna at [16]-[17]. > > 14. Should the Tribunal be minded to find that the Minister would not suffer prejudice, the Minister contends that the absence of prejudice does not, without more, suffice to justify the grant of an extension of time: Watiwat v Secretary, Department of Social Services [2021] FCA 1327 at [17] per Perry J. Further, there would be limited prejudice to the applicant if the extension of time were not granted as it would be open to him to reapply for Australian citizenship at any time. > > Merits of the proposed substantive application > > 15. The general eligibility criteria for Australian citizenship by conferral are contained at s 21(2) of the Act (see Annexure D). The key issue for the Tribunal to consider in relation to the substantive application for review is whether the applicant satisfies ss 21(2)(d), (e) and (f) of the Act. These provisions relevantly provide that a person is eligible to become an Australian citizen if the Minister is satisfied that the person: > > (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... > > 16. Subsection 21(2A) of the Act (see Annexure D) provides that: > > 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. > > 17. The relevant determination under s 23A of the Act is LIN 20/085 (Approval of a Citizenship Test) (Determination, see Annexure E). The Determination sets out the eligibility criteria and test requirements for the Standard Test and the Assisted Test. > > 18. Citizenship Policy Instruction (CPI) 26 (Annexure F) contains guidance regarding the Australian Citizenship Test. It states relevantly, under the heading '6.3 - Failing the test', that: > > A Federal Court decision (Minister for Home Affairs v Zadeh (No. 2) [2018] FCA1828) found the Determination does not allow applicants to re-sit the test as many times as they wish and the Minister (or their delegate) is not prevented from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test. > > Generally, if an applicant has failed on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that paragraphs 21(2)(d), (e) and (f) of the Act are not satisfied. > > However, decision-makers may find it appropriate to give applicants one or more further test appointments in circumstances where: > > • the applicant's citizenship test scores have improved over the period of attempts made; > > • the applicant was affected by notification issues, such as the applicant not receiving the invitation to attend the citizenship interview and test appointment, despite the applicant making inquiries; > > • system errors, such as: > > either CATS was not accessed, or the number of hours was referenced incorrectly and the Department did not offer the applicant an assisted test; > > Departmental records are insufficient and it is not clear whether the applicant has been given a reasonable opportunity to pass the test. > > 19. In addition, CPI 26 provides the following under the heading '6.4 - Non-attendance': > > Where a person has not attended a scheduled test appointment and not rescheduled for a further test appointment after a reasonable opportunity to do so, it is open to the decision-maker to consider whether it is appropriate to refuse a citizenship application on the basis that paragraphs 21(2)(d), (e) and (f) of the Act are not satisfied. > > However, decision-makers may find it appropriate to give applicants one or more further test appointments in circumstances where an applicant has a reasonable reason to explain their non-attendance, such as: > > • ongoing health or medical concerns that limited their ability to travel/attend a citizenship interview; > > unforeseen health and medical concerns for themselves or dependents, such as emergency medical or mental health treatments; or > > • family responsibilities and/or carer responsibilities for sick/injured family members. > > 20. In Jaber and Minister for Home Affairs [2019] AATA 92, the Tribunal held (at [13], per Member Bygrave): > > 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. > > 21. The Minister submits that, as the applicant did not sit and successfully complete the test for citizenship, he does not satisfy ss 21(2)(d), (e) and (f) of the Act. For the reasons that follow, the Minister submits that this should weigh heavily against the grant of an extension of time. > > 22. The applicant does not have a right to 'keep on foot' his application by his own inactivity as administrative decision-making under the Act needs to be 'finalised in a timely manner': see Nicholls and Minister for Immigration and Border Protection [2018] AATA 964 at [24], Maez and Minister for Home Affairs [2019] AATA 1647 (Maez) at [35]. In Maez, the Tribunal held (at [37]): > > Failure to attend, sit and pass the citizenship test means that any application for grant of citizenship (save where a relevant exemption applies) must necessarily fail and any challenge to that determination has no prospect of being successful. > > 23. Exemptions from sitting the citizenship test are only available if one of the circumstances in s 21(3) of the Act applies. The applicant did not identify any special circumstances in his application for citizenship, and there is no evidence to establish that he otherwise experiences permanent or enduring physical or mental incapacity. > > 24. With respect to the applicant's potential eligibility to sit the Assisted Test, the Minister submits that there is no evidence that the applicant is eligible to sit the Assisted Test due to a physical or cognitive impairment: s 14(b)(ii) of the Determination. Further, with respect to literacy skills, s 14(b)(i) of the Determination states that the applicant is only be eligible to sit the Assisted test if he has low literacy skills demonstrated by completing at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP). As of the date of filing of these submissions, the applicant has not completed any AMEP hours (Annexure G). Therefore, the Minister submits that the applicant has not satisfied the eligibility requirement of s 14(b)(i) of the Determination, and is not eligible to sit the Assisted Test. > > 25. The Minister submits that it was open to the delegate to refuse to approve the application in circumstances where the applicant has had a reasonable opportunity to sit the test, noting that he attempted and failed the citizenship test on 8 separate occasions as follows: > > (a) 2 x standard tests on 16 February 2023 scoring 55% (3/5 on Australian values) and 40% (4/5 on Australian values) respectively (see Annexures H and I); > > (b) 2 x standard tests on 16 March 2023 scoring 50% (4/5 on Australian values) and 45% (2/5 on Australian values) respectively (see Annexures J and K); > > (c) 1 x standard test on 31 October 2023 scoring 70% (5/5 on Australian values) (see Annexure L); and > > (d) 3 x standard tests on 28 March 2024 scoring 60% (4/5 on Australian values), 70% (5/5 on Australian values) and 60% (4/5 on Australian values) respectively (Annexures M, N, and O). > > Alternative avenues of relief > > 26. Finally, the Minister submits that there is a clear alternative avenue for relief for the applicant, which is to reapply for Australian citizenship at any time which would provide him with the opportunity to pass the citizenship test on a further attempt, and in doing so, satisfy the requirements of ss 21(2)(d)-(f) of the Act. The Minister submits that this should weigh heavily against the granting of an extension of time. > > C ORDERS SOUGHT > > 27. For the reasons outlined above, the Minister contends it would not be reasonable in all the circumstances to grant the extension of time. It follows that the application for an extension of time should be refused.