Kuk v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 235

1. The applicant seeks an extension of time in which to appeal from a decision of the second respondent (the Tribunal) dated 9 September 2022 (the Tribunal's Decision). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) refusing the applicant's application for resumption of Australian citizenship under s 30 of the Australian Citizenship Act 2007 (Cth) (the 2007 Act).
2. The applicant had been a citizen of Australia. He ceased to be an Australian citizen when his mother acquired citizenship of the United States of America (the USA). At that time, the applicant was a minor and lost his Australian citizenship by operation of s 23 of the now repealed Australian Citizenship Act 1948 (Cth) (the 1948 Act). The applicant applied for a resumption of citizenship under s 30 of the 2007 Act, but this application was refused by the delegate and the applicant's subsequent application for review before the Tribunal was unsuccessful.
3. By an application filed on 8 November 2023, the applicant seeks an extension of time in which to appeal against the Tribunal's Decision. An appeal to this Court was required to be filed within 28 days of the date of the Decision: see s 44(2A) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). This 28-day period ended on 7 October 2022. The application filed in this Court is 397 days out of time, and requires an extension of time pursuant to r 33.13 of the Federal Court Rules 2011 (Cth) (FC Rules).
4. For the reasons that follow, the application for an extension of time should be refused.

1. The applicant was born in Australia on 27 July 1983 at which time he became an Australian citizen by operation of s 10(1) of the 1948 Act.
2. The applicant held Australian citizenship until June 1999 or thereabouts, when his mother acquired citizenship of the USA. The applicant's mother lost her Australian citizenship when she acquired citizenship of the USA pursuant to s 17 of the 1948 Act. As the applicant was a minor at that time, he ceased to be an Australian citizen pursuant to s 23 of the 1948 Act.
3. Whilst residing in the USA, the applicant was found to have engaged in serious criminal conduct. In or about August 2012, the applicant and his then partner were said to have broken into a shooting range with the intention of stealing guns. They were interrupted by an employee of the shooting range. The applicant and his then partner were subsequently pursued in their car by 10 to 15 law enforcement vehicles, during which pursuit the applicant is said to have fired shots at a police helicopter. The applicant was found guilty by a jury in respect of a series of serious offences. The applicant was sentenced to a term of imprisonment of 45 years and 8 months. The applicant disputed aspects of the conduct that was alleged and found against him. He instituted an appeal to the Court of Appeal of the State of California, but the appeal was unsuccessful. The applicant remains in custody in the State of California serving the very substantial custodial sentence that was imposed.
4. On 11 October 2018, the applicant lodged an application for resumption of his Australian citizenship. In that application, the applicant disclosed his convictions.
5. On 24 June 2020, the Minister's delegate refused the application on the ground that the applicant did not satisfy the good character requirements under s 29(3)(b) of the 2007 Act due to his criminal offences and term of imprisonment.
6. On 31 August 2020, the applicant applied to the Tribunal for review of the delegate's decision. On 9 September 2022, the Tribunal affirmed the decision of the Minister's delegate. The Tribunal referred to the evidence before it, including the oral evidence given by the applicant and his mother at the hearing: Tribunal's Decision at [12]-[14]. The Tribunal commended the applicant for his efforts at rehabilitation but found that the offences he committed were very serious. In those circumstances, the Tribunal found the applicant was not a person of good character and affirmed the decision under review: Tribunal's Decision at [15]-[19].
7. On 8 November 2023, the present application was filed seeking an extension of time to appeal against the Tribunal's Decision.

1. The Court has power to grant an extension of time pursuant to r 33.13 of the FC Rules. In broad terms, an extension of time should only be granted if the Court is satisfied that to do so would be in the interests of justice: AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [35] (Collier, Farrell and Abraham JJ). The Full Court (Collier, Rangiah and Derrington JJ) in GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 stated at [23] that:

A party may apply for an extension of time in which to appeal under r 36.05 of the Rules. In determining whether to exercise its discretion to grant an extension of time, the Court will take into account the explanation for the delay: Australian Prudential Regulation Authority v Holloway [2001] FCA 1240; (2001) 48 ATR 59; and the merits of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 [7]; Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 188; Spires v Secretary, Dept of Family and Community Services [2002] FCA 578; (2002) 68 ALD 577. In relation to the latter point, it can be observed that the principles relating to the granting of an extension of time in which to appeal and those concerning leave to raise a new ground on appeal overlap to some extent: Tohi v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 125 [13]. When, on an application such as the present, the Court is called on to determine whether a proposed ground has any merit, the issue is to be determined at a relatively impressionistic level: NWQR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 30 [31]. The relative prejudice which the parties might suffer if the application is allowed or disallowed is also a relevant factor.

1. The extent of the delay and its explanation are relevant factors: see eg Lovell v K & S Freighters Pty Ltd [2023] FCA 968 at [15] (O'Sullivan J). Wigney J observed in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38], "In general the longer the delay, the more persuasive the explanation needs to be" (citing Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195). Wigney J further stated at [38] that the absence of any satisfactory, let alone persuasive, explanation for the delay may itself be a sufficient basis to refuse an application for an extension of time. These considerations bear heavily upon the outcome of the present application given the extent of the delay involved.
2. The applicant filed an affidavit accompanying his application to this Court which annexed a copy of the Tribunal's Decision with handwritten annotations and also a draft notice of appeal. These documents make the following points:

(a) there was a significant delay in him being notified by the Australian authorities that he had lost his Australian citizenship;

(b) he is a person of good character and he should not be defined by his criminal convictions;

(c) he has engaged in rehabilitation programs and has received letters of support;

(d) the Tribunal mischaracterised or misunderstood the evidence of his mother about transferring the applicant to a prison in Australia; and

(e) Australian passports were issued in his name and "consulate services" were received in prison even after his Australian citizenship was lost.

1. During the oral hearing before me, at which the applicant appeared by a Microsoft Teams Link from the prison facility at which he is serving his sentence, the applicant emphasised the considerable delay in him being notified of the cancellation of his citizenship. The applicant also submitted that he has made significant strides in his rehabilitation, and this is apparent from the many changes he has made to his life and the interests he is now pursuing through creative and other means whilst in custody.
2. It may be that the applicant was not immediately informed that his Australian citizenship had been lost upon his mother acquiring citizenship in the USA. I am also prepared to accept for the purposes of this application that on certain occasions after the applicant ceased to be an Australian citizen, the applicant was erroneously issued with an Australian passport or was provided consular support. But these matters are not relevant to the question before me. The question before me is whether there is an explanation for the delay between when the applicant was informed of the Tribunal's Decision and the application made to this Court to appeal from that Decision. The length of that delay was 397 days. Whilst I am prepared to accept that the applicant's present state of incarceration in a prison in the State of California presented considerable difficulties for the applicant in attending to prompt compliance with time limits, I am not satisfied that there has been any explanation, let alone any adequate explanation, as to the reason for the substantial delay in the present case.
3. As to the merits of the substantive application, the Minister submitted that the material before the Court did not raise any matter which would suggest that the Tribunal had erred in any material or relevant respect in affirming the delegate's decision. The Minister submitted that to the extent the applicant had submitted that the Tribunal erred in finding that he was not a person of good character at the time of its decision, the submission invited impermissible merits review. The Minister submitted that it was open for the Tribunal to conclude on the evidence before it that the applicant was not a person of good character: citing Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]- [131] (Crennan and Bell JJ).
4. The Minister further submitted that the applicant would suffer no or little prejudice in circumstances where it is open to the applicant to re-apply for the resumption of his Australian citizenship as the 2007 Act does not set a limit on the number of times a person can re-apply.
5. In a case such as this, where the delay was lengthy and unexplained, the applicant may need to show that his case was "strong or even 'exceptional'": see Tu'uta Katoa v Minister [2022] HCA 22; (2022) 276 CLR 579 at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). I am not satisfied that the applicant's proposed grounds of appeal have sufficient merits: see Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [32] (Tracey J), citing MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (Tracey, Perry and Charlesworth JJ) and Jamal v Secretary, Department of Social Services [2017] FCA 916 at [12] (Perry J). That is because, if an extension of time is granted, the relevant question would be whether the Tribunal had erred in any relevant respect. In such an appeal, it is not the role of this Court to determine whether the applicant is, or is not, a person of good character. The applicant's arguments in support of the errors alleged to have been made by the Tribunal focussed upon the assessment of his character and did not disclose any error on the Tribunal's part. The Tribunal's Decision discloses that it methodically considered the evidence before it as to the applicant's character, including his extensive efforts towards rehabilitation but weighed these against the seriousness of the applicant's crimes in respect of which he was convicted by a jury. I am not satisfied that the applicant's arguments have sufficient merit to warrant the grant of leave.
6. Further, I do not consider that the applicant would be prejudiced in any material respect by the refusal to grant leave in the present case. As the Minister submitted, it is open to the applicant to make further applications for the resumption of his Australian citizenship.
7. Taking into account all of the above matters, I am not satisfied that an extension of time should be granted and I am not satisfied that it would be in the interests of justice to do so.

1. The application should be dismissed and the applicant should be ordered to pay the respondents' costs as agreed or taxed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.