Kim and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 155 (2 February 2018)

1. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) of the AAT Act permits the Tribunal to "extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so".
2. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context. See also: Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown). These factors, in the Tribunal's view, are applicable to applications of the type made by the Applicant.
3. In Hunter Valley, Wilcox J pointed out that the "prescribed period of 28 days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...". In Brown, Hill J stated, at paragraph 59, that in the taxation context, the Tribunal should be "guided by what the justice of the case requires". In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848 (per Katz J).
4. There is a thorough and helpful review of the relevant authorities by Deputy President Forgie in DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (DHLD) at paragraphs [11] and [37] to [49]. See also: Re Johnson and Commonwealth of Australia [1990] AATA 1 at [19].
5. The authorities dictate that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. No one consideration has precedence or is in itself determinative. The factors include:
   • (a) It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416) (Lucic).
   • (b) It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302).
   • (c) Action taken by the Applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the Applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287)(Doyle).
   • (d) Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at 287).
   • (e) The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at 416).
   • (f) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).
   • (g) Considerations of fairness as between an applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole ;
6. Deputy President Forgie sets out in paragraphs [40] to [44] of the decision in DHLD a more detailed review of the cases dealing with the relevance of the apparent strength of the substantive claim. The Deputy President cites the comment made by the Full Court in Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [28] that:

We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.

1. The issue before the Tribunal is whether the Applicant should be given leave for an extension of time to make her application to the Tribunal for a substantive review of the decision made by the delegate on the 8 August 2016.
2. The Applicant lodged her Application for Review of the Decision with the Tribunal on 31 August 2017.
3. The time for making the application is 28 days from "the day on which a document setting out the terms of the decision is given to the Applicant": s 29(2)(a) AAT Act.
4. A copy of the decision was sent to the Applicant by registered post on 8 August 2016 to the postal address nominated by her in her citizenship application. Accordingly, the Application for Review was made approximately 12 months after the time prescribed by the AAT Act.

1. In determining whether it is reasonable in the circumstances for an extension of time to be granted in this case, the Tribunal finds that, in light of the relevant jurisprudence, the factors that the Tribunal should consider include:
   • the length of delay;
   • any explanation for the delay and whether that explanation is satisfactory;
   • whether the Applicant was aware of her appeal rights;
   • any prejudice to the Respondent or the general public arising from an extension of time order;
   • the Applicant's prospects of success; and
   • any alternative avenues of relief for the Applicant should the extension of time order not be made.

1. In relation to this issue, the Respondent submits:

The applicant is significantly out of time. The applicant was notified of the delegate's decision on 8 August 2016. Accordingly, the applicant was required to file an application for review by the 5 September 2016 (28 days from the date of notification s 29(2) of the AAT Act). The applicant did not file an application for an extension of time until 31 August 2017, 360 days late. The respondent contends the length of the delay to lodge her application for review, cannot simply be ignored. It is a significant delay and the statutory time limits in which to lodge appeals are for a purpose. (Respondent's written submissions, para 13).

1. Section 28A of the Acts Interpretation Act 1901 (Cth) provides:
   1. For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
      1. on a natural person:
         1. by delivering it to the person personally; or
         2. by leaving it at, or by sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document.
2. Section 29 of the Acts Interpretation Act 1901 (Cth) provides that "service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".
3. Under s 160(1) Evidence Act 1995 (Cth) there is a presumption that any article sent by prepaid post and addressed to the person at a specified address was received at that address on the fourth working day after it was posted.
4. The Tribunal finds that the Applicant received the decision on 12 August 2016. The Applicant was accordingly required to file an application for review by 9 September 2016. The Applicant did not file an application for an extension of time until 31 August 2017, 356 days late.
5. The length of delay is significant and weighs heavily against an extension of time.

1. The Applicant in the Application for Review identifies the date of receipt of the decision as 6 August 2017.[1]
2. In the Application for Review the Applicant set out in her reasons for the delay as follows:

On 8 Aug 2016 the refusal of citizenship letter was sent to my address in Australia. However, because my husband and my work in Jakarta, we were not at home in Perth at the time.

On 8 Aug 2017, I finally received photos of the refusal letter, from my friend in Australia who kindly scanned the refusal letter for me. I could not respond earlier because I did not have the information.

Furthermore, I could not respond earlier (or launch an appeal within time) because I only found out the decision one year after it was sent. I am very happy to return to Australia at any time to process my citizenship application successfully. For financial reasons, for the time being we must remain in Jakarta as we are both working here, but we continue to own a house in Australia and hope that we can return to live there soon, especially for the education of our two children (currently being educated in an English-medium school, the British School of Jakarta) [sic].

1. The Applicant, in her oral testimony and submissions provided to the Tribunal, further submits:
   • (a) in her application for citizenship, she agreed to the use of electronic means to receive communication and provided her email address;
   • (b) the majority of communication with the Department prior to the decision had previously been electronic communication;
   • (c) as she was no longer residing at the address provided to the Department she was not aware that the decision had been mailed to the address until 6 August 2017;
   • (d) she did not receive any other communication from the Department notifying her that the decision had been sent by post;
   • (e) the Department was aware that she was currently residing overseas in Jakarta;
   • (f) it was not until a friend went to the address to collect the mail from the tenant that she was made aware of the decision; and
   • (g) if the refusal letter had been sent to her via email as usual, or both post and email, the Applicant would have been able to appeal within the proper time.
2. In relation to this issue the Respondent submits (Respondent's written submissions, paragraphs 15-16):
   • (a) the letter notifying the applicant of the decision was properly sent to the applicant's postal address;
   • (b) there was no evidence that the Applicant updated her postal address with the department;
   • (c) the citizenship application indicated that "this department may use a range of means to communicate with the applicant" and provided no indication that communication would proceed by way of email; and
   • (d) the applicant's explanation that she did not receive the decision in August 2016 and yet her friend was able to find it a year later and send her a photograph of the decision is not plausible.
3. The Tribunal is sympathetic to the Applicant and her circumstances and notes that it is somewhat odd that the Department did not notify the Applicant by email that a decision in relation to her application had been made given that most, if not all, of the Department's correspondence with the Applicant had been by email and the Department knew that the Applicant was overseas. However, the Tribunal finds that the Applicant has not provided an adequate explanation for delay of a year. The Applicant left Australia a short time after making the application and before the delegate had made the decision but appears to have taken no action for a year to find out whether a decision had been made. The Tribunal notes that the Department was in contact with the Applicant in February 2016, however, there seems to have been no follow up by the Applicant after that time.

Any prejudice to the Respondent or the general public arising from the extension of time

1. Other than having to respond to the Applicant's application for review, there is no evidence before the Tribunal that the extension of time would prejudice the Minister. The Tribunal finds that the Minister would not suffer any relevant prejudice if an extension of time were granted.
2. Consideration must still be given to whether an extension of time in these circumstances would be of prejudice to the wider public by disturbing established practices of the Tribunal. See Re Johnson and Commonwealth of Australia [1990] AATA 1 at paragraph 19 which summarises the principles set out in paragraphs 11 to 14 above.
3. The 28 day time frame set out in s 29(2) of the AAT Act is in place to ensure the Tribunal is accessible, fair and quick in its decision making. The length of delay in this case is considerable. To allow an extension after this length of time creates a burden on the system and those seeking to access it which would result in wider prejudice to the community.
4. This weighs against the granting of an extension of time.

1. As noted above, the prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time (see paragraphs 14 - 16 above).
2. In relation to this issue the Respondent submits:

17. When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits, but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29] and [38] per Hill J).

18. The respondent contends that any substantive application for review would have poor prospects of success.

19. The delegate refused the application on the basis that the delegate was prohibited from approving the application under s 24(5) of the Act because the Applicant was not present in Australia at the time of decision. The department's movement records show the Applicant departed Australia on 6 August 2015 and has not returned (annexure 5). There is no suggestion the Applicant meets any of the exceptions to s 24(5). Accordingly, the delegate was correct to find the prohibition in s 24(5) applied. It is understood the Applicant remains offshore in which case the Tribunal will be prevented from approving the application by the prohibition in s 24(5) of the Act.

20. The delegate also refused the application on the basis that the Applicant did not satisfy the requirements of s 21(2)(g) of the Act, namely that the Applicant would be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application were approved.

21. The Citizenship Policy (Policy) provides policy guidance to decision-makers in undertaking decision-making functions under the Act. The Policy states that:

'Factors that may demonstrate this close and continuing association with

Australia include:

• Australian citizen de facto partner
• Australian citizen children
• length of relationship with Australian citizen spouse or de facto partner
• extended family in Australia
• return visits to Australia
• periods of residence in Australia
• intention to reside in Australia
• employment in Australia (for example, public or private sector)
• ownership of property in Australia
• evidence of income tax payment in Australia.

22. The respondent contends that the Tribunal could not be satisfied that the Applicant has good prospects of satisfying the requirements of s 21(2)(g) of the Act in circumstances where:

22.1 She has provided no evidence that she has an Australian citizen spouse or de facto partner, Australian citizen children or extended family in Australia. In any event, such evidence simply indicates a close and continuing association with family.

22.2 She has provided no evidence in relation to the length of any relationship with an Australian citizen spouse or de facto partner.

22.3 She has not returned to Australia since August 2015.

22.4 Contrary to her submissions, the Applicant has not lived in Australia for 6-7 years previously. The Applicant's movement records indicate that she first arrived in Australia in 2008, remaining in the country for only 7 days on that occasion. The Applicant did not return to Australia until 2011 and spent only 74 days in the country that year. Whilst the Applicant predominantly remained in Australia in 2012 and 2013 she had significant periods of absence in 2014 and 2015 and has not returned to Australia for over two years.

22.5 She has no firm intention of residing in Australia. The Applicant's evidence is that she resides and works overseas and simply hopes to return to Australia "soon".

22.6 She has provided no evidence of any current or previous employment in Australia.

22.7 She has provided no evidence of income tax payments in Australia.

23 The Applicant asserts that she sent an email to the delegate prior to the delegate's decision that attached further evidence and that such evidence was ignored by the delegate. The respondent contends that such evidence (as attached to her application or submissions) would not have assisted the Applicant in satisfying the relevant criteria. The joint ownership of property in Australia, of itself, is insufficient to satisfy the requirements of s 21(2)(g) of the Act.

1. The Applicant's substantive application for review does raise a contention that the delegate failed to take into account further evidence provided to the delegate in February 2016. The Applicant submits as follows:

18. The respondent requested the applicant to send evidence of close and continuing ties to Australia on 11 February 2017 [sic] because the applicant was not physically present in Australia at that time of decision. The applicant replied to the email with evidence on 17 February 2017 [sic].

...

20. The Perth Department of Immigration and Border Protection (Respondent) did not take into consideration the documents the applicant was requested to send. This was an important point in the final rejection of the applicant's application. 'An email was sent to the applicant on 11 February 2016. The applicant was advised that there were seven (7) days to provide further information to support the applicant's claims to have close and continuing ties to Australia. And on 5 August 2016 the applicant had not responded to the Department's correspondence'.

This proves that the applicant's documentation was not taken into consideration during the citizenship application process. Based on the decision record, the applicant had not responded to the respondent's correspondence, which ultimately affected the final decision to refuse citizenship. (Applicant's written submissions)

1. The documents that the Applicant submits the delegate failed to consider include a certificate of title for her property in Australia, a property contract sheet and a bank statement (February Documents) (Annexure 4, Applicant's written submissions).[2]
2. If leave were given to the Applicant for an extension of time the Tribunal would conduct a hearing de novo and the February Documents are relevant in determining the strength of the substantive application.
3. When considering whether a person is eligible to make an application to the Minister to become an Australian citizen, the Minister must be satisfied under s 21(2)(g) of the Act that the person "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". (ss 21(1) and 21(2)(g) of the Act).
4. In relation to this issue, the Tribunal agrees with the Respondent's submissions outlined in paragraph 37, that the February Documents provided by the Applicant would not be sufficient evidence under the Citizenship Policy of a "close and continuing association with Australia" pursuant to s21(2)(g) of the Act.
5. The delegate for the Minister further refused the Applicant's application pursuant to s 24(5) of the Act which states:

1. the person is covered by subsection 21(2), (3) or (4); and
2. the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
3. the Minister did not apply subsection 22(9) in relation to the person; and

1. the Minister did not apply subsection 22(11) in relation to the person;

the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

[Emphasis added]

1. Section 24(5) provides limited circumstances in which an application may succeed if the Applicant is overseas. The circumstances of the Applicant do not fall within the limited circumstances provided for in that section.
2. In Barari and Minister for Immigration and Citizenship [2010] AATA 897, Deputy President McDonald said at paragraph [6] "There is no relevant general discretion that permits the provisions of s 24(5) of the Act to be disregarded."
3. Under s 24(1) of the Act the Minister "must, by writing, approve or refuse to approve the person becoming an Australian citizen". Section 24(5) of the Act provides only that the Minister must not approve a person becoming an Australian citizen when the person is not in Australia, which is a temporal prohibition rather than a circumstance requiring a refusal to approve under s 24(1) of the Act. There does not appear to have been any jurisprudence specifically discussing this distinction and the previous cases have proceeded on the practical basis that a prohibition on approving, either under s 24(5) of the Act or s 24(1A) of the Act, equates to an obligation to refuse to approve under s 24(1) of the Act.
4. The Tribunal accordingly finds that the Applicant has poor prospects of success in her substantive application for review.

1. Taking into account:
   • (a) the length of the delay bearing in mind the comments in Hunter Valley of Wilcox J outlined at paragraph [12] above;
   • (b) the lack of an adequate explanation for the delay in making the application;
   • (c) the weakness of the Applicant's substantive application;
   • (d) the need for efficient management of the Tribunal's time and resources; and
   • (e) that the Applicant is not precluded from making an application for another permanent visa following the expiry of her current visa.

the Tribunal is not satisfied that it should exercise its discretion to allow the application to be made out of time.

1. For the reasons outlined above, the Tribunal refuses to grant the Applicant's application for an extension of time, pursuant to section 29(7) of the AAT Act, to lodge an application for review of the delegate's decision of 8 August 2016.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

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

[1] The Tribunal notes in her Application for Review, the Applicant, under the heading "Time Limit", identified the date that she received the decision as 6 August 2017. However, in her "Reasons for the Application" the Applicant instead says the refusal letter was sent to her address on 8 August 2016 and that she became aware of the decision on 8 August 2017 when she received photos of the refusal letter from her friend in Australia. The Applicant has not provided any explanation for the difference between the dates of 6 August 2017 and 8 August 2017.

[2] The Tribunal notes that the Applicant's Written Submissions, dated 3 November 2017, at paragraphs 18 to 21 refer to the emails being sent in February 2017. However, at Annexure 1 to the Respondent's Written Submissions, dated 20 October 2017, the emails are attached and the date stamp is the 11 February 2016. The Tribunal finds that the emails were sent in February 2016.