Makarov v Minister for Home Affairs

Background 4 Mr Makarov became an Australian citizen on 8 February 2001. After the grant of citizenship, he was convicted of multiple child sex offences in separate trials conducted in 2004 and 2005. The offending pre-dated his grant of citizenship, but only later came to the Minister's attention. He was sentenced to a lengthy term of imprisonment and released from custody on 9 December 2018. 5 On 10 April 2007 the Minister's Department received advice from the Ukrainian Consul that, according to Article 19.1 of The Law of Ukraine on The Citizenship of Ukraine (2001), "Ukrainian citizens who acquire foreign citizenship do not lose Ukrainian citizenship; one has to apply accordingly". On 28 May 2007 it contacted Mr Makarov, informing him that he was liable to lose his Australian citizenship, and asked him why he should not. Mr Makarov replied on 14 June 2007, proclaiming his innocence, his good reputation and status, both in Australia and overseas, the ongoing support he had received from family, friends and former students, and his intention to lodge an appeal against his convictions following his third trial. 6 Despite Mr Makarov's representations, the Minister's Department recommended that he be deprived of his citizenship because he was a convicted paedophile. The reason the Department made the recommendation is apparent from a Departmental minute in which the following conclusion was recorded (without alteration): Mr Makarov has, in the words of Judge Hock "grossly abused the trust reposed in him by the boys' families, community in general in these boys in particular". He committed acts of abuse of varying degrees on these boys for years and initiated similar acts on Australian citizens once he took up his post at the Australian Institute of Music in 1998. There is no evidence that Mr Makarov intended to seek help for or was remorseful for his actions. There is no evidence that the present that Mr Makarov will not continue to commit such offences once he is released from gaol in view of his denial any such offences occurred. 7 The Departmental minute noted advice from the Parramatta Citizenship Section that the Ukraine was "not one of those countries that require the surrender of the travel document of the citizenship applicant on the grant of Australian citizenship". It reasoned that this meant that the grant of Australian citizenship to a Ukrainian citizen does not deprive that person of their Ukrainian citizenship so that Mr Makarov would not become stateless if he were to lose his Australian citizenship. 8 The Minister revoked Mr Makarov's Australian citizenship on 13 September 2007. He was granted a "former citizen visa", but on 12 October 2015 the visa was cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Makarov made representations under s 501CA(4)(a) of the Act to have that decision revoked but, on 1 May 2018, the Minister declined to exercise his power in Mr Makarov's favour. 9 In May 2019, some five months after he was released from prison, Mr Makarov instructed his present lawyers. 10 On 7 November 2019 officers of the Australian Border Force informed Mr Makarov that he was scheduled to be deported by the end of the month. Four days later, he filed his application in the Tribunal for review of the 2007 citizenship cancellation decision and sought a stay of the citizenship cancellation order. The following day he was served with a deportation notice. 11 On 15 November 2019, after the Australian Government Solicitor rejected his request for an undertaking from the Minister not to deport him, an originating application was filed in this Court under s 39B of the Judiciary Act 1903 (Cth) seeking to have the citizenship cancellation decision quashed and the Minister restrained from taking any further action to deport him until the determination of that proceeding and his application in the Tribunal for review of the cancellation decision. Nicholas J granted him an interlocutory injunction on 18 November 2019 and the s 39B application has been stood over pending the outcome of this appeal. 12 Two days later his application for an extension of time to make a review application was heard in the Tribunal and on 2 December 2019 the Tribunal dismissed it. Since the extension of time was refused, the stay application was not considered.

The application in the Tribunal 13 The reasons for the application set out in the form itself are not instructive. In answer to the question "Why do you claim the decision is wrong?" the following answer was given: The Minister erred in: (i) Not being satisfied pursuant to section 34(3)(b) of the Australian Citizenship Act 2007 (Cth) that the Applicant would, if the Minister were to revoke his Australian citizenship, become a person who is not a national or citizen of any country; and (ii) Being satisfied pursuant to section 34(2)(c) of the Australian Citizenship Act 2007 (Cth) that it would be contrary to the public interest for the Applicant to remain an Australian citizen. 14 The reasons for applying for an extension of time and for not making the application within time were outlined in the application, and developed in submissions from his solicitor that were attached to the application. 15 The reasons given in the outline were as follows: (1) He was in prison since late 2005 until 9 December 2018, having been convicted in multiple criminal trials, and thereafter in immigration detention from 9 December 2018 to date. (2) He appealed his criminal convictions and in total went through three trials, three appeals, four retrials, one inquiry, and a judicial review proceeding over the last 15 years. (3) Over that period of time, he was eventually acquitted of 50% of the matters which were the central basis of the cancellation of his citizenship. (4) He had exhausted "all his financial means during long and protracted legal proceedings over the last 15 years", and has been looking for legal representation on a pro bono basis. (5) One of the main grounds of review hinges on his citizenship status in Ukraine, the expert opinions about which were provided in September and October 2019. 16 The opinions of the experts were not put before the Tribunal but brief extracts from them, containing the authors' conclusions, were included in written submissions to the Tribunal from Mr Makarov's lawyer. 17 Mr Makarov's arguments were summarised at [4] of the Deputy President's reasons for decision: 1. The Applicant served a long prison sentence, from 2005 until December 2018. During his time in prison he suffered a violent assault which necessitated him being held for some four and a half years in the prison segregation unit. Whilst there he had no access to the internet, a phone or regular visitors. His Australian citizenship was revoked during this period and he was automatically given an ex-citizen visa. 2. The Applicant was assaulted on two further occasions whilst in prison, each requiring hospital treatment. He had surgery on three separate occasions, one due to assault and the others for different medical conditions. 3. During the period he was in prison the Applicant concentrated all of his efforts on overturning his criminal convictions. This resulted in a number of trials and retrials from approximately 2006 to 2016. 4. The Applicant had difficulty in finding appropriate legal representation whilst in detention. 5. The Applicant claimed to have spent all of his available funds fighting his criminal charges and had to rely on pro bono assistance. Because of the need for expert legal advice he claims he was not able to challenge the Minister's decision as he could not pay for that relevant advice. 6. Problems for the Applicant in establishing the law of the Ukraine which was relevant to the question of whether or not he was a Ukrainian citizen at the time of the Minister's decision to revoke his citizenship. 7. It was submitted by the Applicant that the decision to revoke his Australian citizenship raises human rights issues in relation to the Applicant where the Applicant contends that the decision ought not to have been made, which could possibly mean that a person who should still be an Australian citizen is currently being held in immigration detention. 18 The Deputy President began his reasons with a summary of the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348]-[349] contained in Rahimzadeh and Secretary, Department of Social Services [2019] AATA 3201 at [5]-[8]. 19 The Deputy President found that Mr Makarov had not given an acceptable explanation for the delay. He noted the length of time that had passed. He observed that Mr Makarov was pursuing "other issues of significance" during that time and, while there were periods in which he was in hospital or in solitary confinement when he would not have been able to do anything in response to the Minister's decision, that did not account for the entire 12-year period during which nothing was done. He concluded that it would not be just and equitable in these circumstances to grant him an extension of time. He said that it was in the interests of both the Minister and the public that action to challenge decisions is taken within a reasonable time and that both the Minister and the public would expect timelines to be adhered to in a case such as this. He said that there was prejudice to the public and the administration of justice if decisions are not regarded as final and can be reopened after a period of 12 years unless there are "truly exceptional circumstances". Even accepting the difficulties Mr Makarov faced, the Deputy President did not consider that such circumstances were present in this case. He noted that there was no evidence to indicate that the Minister or his Department had contributed to the delay. To the contrary, he observed that the Minister had "followed proper procedure" and informed Mr Makarov of his right of review. 20 The Deputy President then turned to consider the merits of the substantive application. He acknowledged that "there were cogent arguments which [Mr Makarov] could put forward to challenge the original decision". He noted the terms of para 34(3)(b) of the Citizenship Act and the expert evidence obtained by Mr Makarov which indicates that he ceased to be a Ukrainian citizen upon acquiring Australian citizenship. At the same time, however, he also noted that the Minister did not accept that advice. The Deputy President said that he was prepared to accept that the substantive application "would have a reasonable prospect of success" and that the case "might raise human rights issues" if Mr Makarov were unlawfully detained. But he observed that this was a foreseeable outcome at the time the Minister's decision was made, rather than something that had suddenly come to light. 21 The Deputy President referred to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 75 ALJR 470; 177 ALR 491 at [15]-[16], of Gageler J in Vella v Minister for Immigration and Border Protection [2015] HCA 42; 90 ALJR 89; 326 ALR 391 at [19], and Jessup J in MZABO v Minister for Immigration and Border Protection [2016] FCA 980 at [5], each of whom emphasised the public interest in the prompt disposition of legal challenges to acts or decisions of public bodies or officials. 22 The Deputy President concluded with the following remarks: On the basis of the evidence put before me and the authorities quoted above I am of the opinion that even accepting that [Mr Makarov] may have reasonable prospects of success in challenging the original decision of the Minister in 2007 this is significantly outweighed by the length of the delay, the interests of the public in decisions not being reopened after such a long period of time, and prejudice to the [Minister]. I note in particular that [Mr Makarov] has done nothing at all until now to indicate dissatisfaction with the original decision of the Minister.

The appeal 23 Appeals from the Tribunal are restricted to questions of law: AAT Act, s 44. Consequently, to succeed, Mr Makarov must show that the Tribunal erred on a question of law. 24 In his submissions, the Minister observed that the amended notice of appeal does not identify with any precision the "question of law" upon which the appeal is brought: see Federal Court Rules 2011 (Cth), r 33.12(2)(b). Nevertheless, the Minister did not contend that the appeal was incompetent. Rather, he submitted that the submissions must be carefully examined to ensure that the limits of an appeal under s 44 are respected. 25 Two questions of law are identified in the notice of appeal: (1) whether the Tribunal erred in law in its interpretation of s 29(7) of the AAT Act in refusing the application for an extension of time; and (2) whether the Tribunal erred in law by ignoring and/or incorrectly applying the principles relevant to the interpretation of s 29(7). 26 In the amended notice of appeal, four grounds of appeal were pleaded: 1. The Tribunal failed to properly consider the injustice to the Applicant, in the refusal of an extension of time: a. that his right to test whether the Minister's decision to cancel his citizenship was prohibited by s 34(3) of the Australian Citizenship Act 2007 (Cwth) (the Citizenship Act) would be defeated in circumstances where the Tribunal had found that "he would have a reasonable prospect of success in this case, which might raise human rights issues if the Applicant were unlawfully detained." (AAT [14]); and / or b. he would become stateless, with profound adverse personal consequences for him and his family. 2. In the circumstances described in ground 1, the Tribunal failed to properly consider the adverse consequences for the Australian public in arriving at an outcome that are (sic): a. Unjust for the Applicant; b. Defeat the legislative intention of the Commonwealth Parliament in enacting s 34(3) of the Citizenship Act to preclude cancellation of citizenship that results in statelessness; and c. Defeat the public policy underlying to (sic) s 34(3) of the Citizenship Act. 3. The Tribunal failed to properly consider whether the Applicant had established that it is "fair and equitable in the circumstances to extend time", as stated to be a principle guiding the exercise of the discretion by Wilcox J in in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] by not having regard to the matters stated in grounds 1 and 2 above when weighing up all the circumstances before the Tribunal. 4. The Tribunal made an error of law by not, for the purpose of s 29(7) of the Act, being "satisfied that it is reasonable in all the circumstances" to grant the extension of time because: a. The Applicant had put to the Tribunal an explanation showing good cause for not pursuing a challenge to the decision of the Minister to cancel his citizenship in 2007: i. The Tribunal accepted "all of the factors which affected the Applicant and may have made it difficult for him to challenge the Minister's decision during this time" (AAT [9]). ii. did not sit on his rights such as to make a forensic decision that it was in his interests not to seek to challenge the decision of the Minister to cancel his citizenship or to fail to pursue his rights despite the practical capacity and opportunity to do so; b. The Tribunal accepted that "he (the Applicant) would have a reasonable prospect of success in this case, which might raise human rights issues if the Applicant were unlawfully detained." (AAT [14]). c. The Tribunal failed to properly take into account the injustice to the Applicant (ground 1 above) or the adverse consequences for the Australian community (ground 2, above); d. The Tribunal erred in not finding this case is an exception in all the circumstances to the general principle that there is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be opened after a period of 12 years (AAT [10]). 27 At the hearing, Mr Makarov sought and obtained leave to add a further ground, the substance of which had been canvassed in his written submissions, and in the course of argument informed the Court that he did not press grounds 3 and 4. The new ground, which became ground 5, was in these terms: The AAT erred in law by applying s 29(7) of the Act on the basis that an extension of time should be refused in the circumstances unless the Applicant establishes truly exceptional circumstances. 28 In his written submissions Mr Makarov argued that, if this (purported) error had not been made, the Tribunal might have found that he had provided an acceptable explanation for the delay. He also argued that the submissions made to the Tribunal on his behalf "demonstrated an acceptable explanation" so that it would have been reasonable in all the circumstances to grant the extension. He referred to a number of tax cases in which extensions of time have been granted after lengthy delays. 29 In oral argument, it became clear that Mr Makarov's point was that the Tribunal erred in law by wrongly regarding s 29(7) as requiring "truly exceptional circumstances" before an extension of time could be granted. In other words, his case was that the Tribunal applied the wrong test. Counsel made it clear that this point underpinned the other two remaining grounds so that, if it was wrong, the remaining grounds were doomed to fail. 30 For the following reasons, the notion that the Tribunal applied the wrong test was misconceived and the appeal must be dismissed.

Consideration 31 The period in which a review may be brought is prescribed by s 29 of the AAT Act. Section 29(7) provides: Tribunal may extend time for making application 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. 32 There is no doubt that, as a matter of law, an applicant for an extension of time does not need to establish "truly exceptional circumstances". No such condition appears in s 29(7) and it would be wrong to interpret it in that way. The Minister did not argue otherwise. Mr Makarov submitted that the correct approach was for the Tribunal to weigh up the relevant factors referred to in Hunter Valley Developments and summarised in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [88]. In ActewAGL, at [88], I said that the general principles which Wilcox J drew from the case law were these: (a) There is no need to show special circumstances but the Court cannot ignore the statutory period. The starting point is that the legislature has prescribed a period. An extension of time will not be granted unless the Court is "positively satisfied that it is proper to do so". Any applicant for an extension must provide an acceptable explanation for the delay and establish that it is "fair and equitable in the circumstances" to extend time. (b) Any action the applicant has taken apart from the proceedings is relevant to the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that she or he contests the finality of the decision (that she or he has not "rested on his [sic] rights") and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the "need for finality in disputes" but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 71 FLR 256; 47 ALR 528. (c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. (d) Still, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application. (e) It is proper to take into account the merits of the substantive application. (f) Considerations of fairness as between the applicants and other persons otherwise in a similar position are relevant to the way in which the discretion should be exercised … (g) Decisions affecting only the immediate parties are to be distinguished from those involving public administration, where the public interest may well dictate refusal of an extension, even after only a short delay. 33 While Hunter Valley Developments (and ActewAGL, for that matter) concerned an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the power to grant an extension of time under that Act (contained in s 11) is differently worded, it was common ground that the principles outlined in that case applied equally to applications for an extension of time brought under s 29(7) of the AAT Act. The first of those principles was that special circumstances need not be shown. But the reference by the Tribunal to "truly exceptional circumstances" was not a reference to any statutory test or principle of law. The Deputy President was not purporting to state a principle of law. He did that earlier in his reasons when he extracted the summary of the above principles from an earlier Tribunal decision. Thereafter, he applied those principles. Contrary to the submissions advanced on Mr Makarov's behalf, the approach the Tribunal took was to "weigh up the relevant factors referred to in Hunter Valley [Developments]". 34 The reference to "truly exceptional circumstances" appears in [10] of the Deputy President's reasons. Although I have summarised those reasons above, given its importance the entire passage in which it appears should be extracted in full. At [10] the Deputy President said: It is in the interests of both the Minister and the public that action to challenge decisions is taken within a reasonable time. I am satisfied that both the Minister and the public would expect timelines to be adhered to in a matter like the present. There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances, which do not present in this case even accepting the difficulties the Applicant faced. 35 The point the Deputy President was making was not that s 29(7) required "truly exceptional circumstances" but that, absent such circumstances, "[t]here is prejudice to the public and the general administration of justice" if decisions of public officials are open to challenge 12 years after they were made. This was not a statement of law but a conclusion of fact. And it is entirely unremarkable. Gageler J made a similar observation in Vella about a delay of 16 months in the filing of an application for judicial review. Although the facts of the cases are different, I do not accept that the references to the passages the Tribunal cited from the judgments in Marks and Vella are misplaced, or, as Mr Makarov also submitted, indicative of legal error on the Tribunal's part. They both emphasise the importance of finality in administrative decision-making, which was the point the Tribunal was making at the time. 36 It is beside the point that extensions of time have been granted in tax cases following lengthy delays. As the Minister put it in his submissions, the Tribunal is given a discretion to extend the time and citing examples of cases in which differently constituted tribunals came to different conclusions on the basis of different facts tells us nothing about whether the Tribunal's decision in the present case strayed beyond the area of "decisional freedom" vested in it by the Parliament: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ). It is a matter of common sense that the longer the delay the more difficult it will be for an applicant to persuade any tribunal that an extension of time should be granted. It is also a matter of common sense that the longer the delay the better the explanation will need to be. In the present case, the only explanation for the delay came from Mr Makarov's lawyer, Alison Battisson. It was in the nature of a submission. 37 The evidence before the Tribunal consisted of an affidavit from Ms Battisson filed in the s 39B application in this Court, to which a number of documents were attached. In her affidavit, Ms Battisson set out a brief chronology, referring to the application for Australian citizenship in 2000, the grant in 2001, and the cancellation in 2007 and then jumped to May 2019 when she said she first received instructions to appeal the cancellation. The immediate purpose of this affidavit was to persuade this Court to grant the injunction to halt Mr Makarov's deportation. It did not provide an explanation for the delay nor did it annexe any documents that might have accounted for the delay. 38 Mr Makarov, himself, did not give any evidence. No affidavit was filed and he was not called as a witness before the Tribunal. Indeed, no statement from him was proffered to the Tribunal. In Ms Battisson's submission to the Tribunal she referred to advice she had obtained in early September and early October 2019 from two experts to the effect that Mr Makarov lost his Ukrainian citizenship upon the voluntary acquisition of his Australian citizenship. As I have already mentioned, however, she did not submit the advice to the Tribunal. 39 In these circumstances, it is unsurprising that the Deputy President concluded that an acceptable explanation for all the delay had not been given. 40 For completeness I note that in his written submissions Mr Makarov argued that the Tribunal made no finding that the delay prejudiced the Minister and submitted that it was "clear that the delay does not cause the Minister or the Department prejudice in the conduct of a review hearing due to the effluxion of time and consequent deterioration to the memory or availability of witnesses". He said that that was because "the key issue on review will turn on the legal position under Ukraine law as to the effect of the conferral of Australian citizenship on [Mr Makarov's] Ukrainian citizenship". 41 It is difficult to know what to make of this argument. It was not directed to either question of law or to any ground of the appeal. During oral argument, Mr Makarov's counsel said it was relevant to ground 5 but I struggle to see how. In any event, the submission proceeds from a false premise. As the extract from his reasons at [22] above clearly reveals, the Deputy President did make a finding that the Minister would be prejudiced if an extension of time were granted. Even if that finding was wrong, absent any allegation, let alone demonstration, that there was no probative basis for it, it is not open to the Court to find that that was an error of law. 42 Ground 5 should therefore be dismissed. It follows that so, too, should grounds 1 and 2. 43 By ground 1, it will be recalled, Mr Makarov alleges that the Tribunal "failed to properly consider the injustice" to him in that "his right to test whether the Minister's decision to cancel his decision was prohibited by s 34(3) of the Citizenship Act would be defeated" in circumstances where the Tribunal had found that he had a reasonable prospect of success and/or that he would become stateless, "with profound adverse personal consequences for him and his family". In substance, his argument was that the Tribunal gave insufficient weight to these matters and too much weight to the extensive delay. That was also the effect of his argument in relation to ground 2. 44 In the absence of any suggestion, let alone reasoned argument, that the Tribunal's decision was legally unreasonable, these allegations amount to nothing more than a complaint about the outcome of the exercise of the discretion. Mr Makarov eschewed the notion that the Tribunal erred by failing to assess the strength of his case or should have gone further than it did in its evaluation of its merits. The Tribunal was plainly alive to the potential consequences of its decision. 45 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 Mason J emphasised that "in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power". Where the Act is silent on the considerations to be taken into account, these remarks have even greater force.

Conclusion 46 The answer to both questions posed in the further amended notice of appeal is "no". The Tribunal did not err in law either in its interpretation of s 29(7) of the AAT Act or by ignoring or incorrectly applying the relevant principles. The grounds of appeal are without substance. 47 Accordingly, the appeal must be dismissed. Costs should follow the event. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.