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Hawse and Minister for Immigration and Citizenship [2011] AATA 72 (8 February 2011)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR INTERLOCUTORY DECISION [2011] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3905

GENERAL ADMIN ISTRATIVE DIVISION
)

Re
CLARE HAWSE

Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal
Professor RM Creyke, Senior Member

Date 8 February 2011

Place Canberra, ACT

Decision
The application for an extension of time is granted.


.......................[sgd]......................
Professor RM Creyke, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – extension of time – whether acceptable explanation for delay- whether serious consequences to applicant if application refused – extension of time granted


Administrative Appeals Tribunal Act 1975 (Cth) s 29(2), (7)

Australian Citizenship Act 2007 (Cth) s 24

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) Schedule 3, Item 5B


Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

Ro Nolan and Minister for Immigration and Ethnic Affairs (AAT 3557, 29 April 1987)

Sola Optical Australia Pty Ltd v Mills (1987) 162 CLR 628


REASONS FOR INTERLOCUTORY DECISION

8 February 2011


Professor RM Creyke, Senior Member
  1. Ms Clare Hawse is seeking to become an Australian citizen. Ms Hawse was granted a permanent residence visa on 26 April 2005. She lodged an application for conferral of Australian citizenship via an electronic lodgement on 24 November 2009.
  2. On 17 May 2010 a delegate of the Minister for Immigration and Citizenship (Minister) refused her application as Ms Hawse had not attended scheduled citizenship appointments.
  3. On 13 September 2010, Ms Hawse lodged an application for review with the Tribunal. As the application was out of time, an interlocutory extension of time hearing was held on 20 January 2011. Ms Hawse was represented by Mr Hawse, who appeared at the hearing by video-link from Sydney.

History

  1. Ms Hawse was born in the United Kingdom and was granted an Australian permanent residence visa on 26 April 2005. On 6 January 1995 she married an Australian citizen, Mr Hawse, and the couple have one child. Mr Hawse was living overseas until January 2008 and had been non-resident for some twenty years.
  2. On 24 November 2009 Ms Hawse lodged an application for conferral of Australian citizenship. One aspect of the application is that the person must prove their identity.
  3. On 5 January 2010, Ms Hawse was scheduled to attend an appointment for the purpose of establishing her identity. As the family were not in Australia for most of December 2009 and some of January 2010, Ms Hawse notified the Department of Migration and Citizenship and rescheduled the appointment for 19 February 2010.
  4. In evidence to the Tribunal Mr Hawse said that Ms Hawse had been advised that she needed to provide her original birth certificate at that appointment. As the birth certificate was in a safe in the couple’s apartment in Hong Kong which could not be accessed by others, she cancelled the appointment and rebooked a time on 31 March 2010. Mr Hawse said Ms Hawse was not advised that she could have provided a copy of the certificate at the appointment and supplied the original later.
  5. Ms Hawse cancelled the appointment for 31 March 2010. She did so on 29 March 2010. At that time she had not been back to Hong Kong to collect her original birth certificate.
  6. On 20 April 2010, Ms Hawse again cancelled the appointment rescheduled for 23 April 2010, because she was ill with a muscle degenerative disease. Mr Hawse told the Tribunal that on this occasion, the operator had suggested that Ms Hawse not rebook until she had obtained her birth certificate. According to Mr Hawse he understands that the operator was subsequently ‘counselled’ in relation to that advice. That information about the operator was provided to him by telephone by the Department.
  7. On 17 May 2010 Ms Hawse was advised that her application had been refused on the ground that the delegate was not satisfied of her identity as required by section 24(3) of the Australian Citizenship Act 2007 (Act). The letter of advice noted that Ms Hawse could apply to the Tribunal for review and provided the addresses and telephone numbers of the Registries of the Tribunal. The letter did not indicate that a time limit applied to applications to the Tribunal.
  8. Ms Hawse wrote to the Department on 22 May 2010 explaining why she had cancelled her appointments and that she had accepted the advice not to rebook until she obtained the original birth certificate. She said she wished to rebook as soon as she had the birth certificate on her return to Australia and requested confirmation that this was acceptable.
  9. On 8 June 2010, the Department responded saying that since her application for citizenship had been denied Ms Hawse could not make another booking and would need to lodge a further application. She was again advised that she could seek review by the Tribunal. On this occasion the website address for the Tribunal was provided along with the advice that ‘Information about the review processes and where applications for review can be lodged is available from the AAT on their website’. The letter did not refer to a time limit for the application.
  10. On 5 June 2010 Ms Hawse travelled to Hong Kong, returning to Australia on 6 August 2010. On her return she attended the Department’s Sydney office and was advised orally that she could seek review of the decision by the Tribunal. The departmental note of the conversation notes: ‘I apologised to Mrs Hawse that she was given misinformation and again confirmed that she had been given 4 opportunities to attend for her test’.[1]
  11. On 13 August 2010, the Department wrote to Mrs Hawse confirming that she could seek review by the Tribunal, and advising her that the Department was exploring whether she was entitled to a partial refund of her application fee. The letter also advised that under the Australian Citizenship Act 2007 (Cth) she would need to be present in Australia for a further 12 months to 9 August 2011 before satisfying the residence requirements for citizenship.[2]
  12. On 22 September 2010, Ms Hawse contacted the Department to say she had not been advised that if she cancelled her April 2010 appointment a decision would be made on her application. Had she known her application might be rejected she would not have cancelled the appointment, despite her illness.[3] She confirmed that she had been ill on the date of the appointment and that ‘she had proof of her illness’.[4]
  13. At this stage, Ms Hawse was told she could receive $130 as a partial refund of her application fee. She refused that offer. She also said she was ‘not prepared to pay $700 for a review [by the Tribunal] not knowing the outcome’[5].
  14. On 29 September 2010 a senior officer in the Sydney office of the Department told Ms Hawse that the Department would refund part of her application fee. Again during the conversation Ms Hawse indicated she had explored the option of review by the Tribunal ‘but was not willing to risk paying the $779 [sic] application fee and not receive a fair or positive outcome’.[6] The senior officer also said:

Mrs Hawse would reapply but at this stage she did not satisfy the following aspects of the citizenship residence requirement,

12 months continuous permanent residence ... no overseas absences of more than 12 months in the 4 years before applying (having been outside of Australia for 483 days in the past 4 years).[7]

  1. She was also advised by the officer that a discretion could be exercised in relation to the residence requirements in some circumstances. Finally she was told that if she satisfied the eligibility requirements should she reapply in 2011, it was likely that her application would be approved.[8]
  2. Mr Hawse contacted the District Registrar of the Tribunal on the 13 and 25 October 2010 concerning the application and was advised of the functions of the Tribunal, of the need for an application for an extension of time, and the need for payment of the application fee.

Legislation

  1. A new Australian Citizenship Act 2007 (Cth) commenced on 1 July 2007. Transitional arrangements were contained in the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (Transitionals Act) which also came into force on 1 July 2007. The Transitionals Act applies to this matter because Ms Hawse was a permanent resident prior to 1 July 2007 and had applied for citizenship prior to 1 July 2010.

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth)

Citizenship by conferral--persons who are permanent residents at commencement

5B If:

                     (a)  a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and

                     (b)  the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day;

Then, for the purposes of that application subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

             (1)  For the purposes of section 21, a person satisfies the general residence requirement if the person has been present in Australia as a permanent resident for:

                     (a)  a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b) a total period of at least 2 years in the period of 5 years before that day.
  1. Other legislation relevant to the extension of time application includes:

Australian Citizenship Act 2007 (Cth)
Minister's decision

           24  (1)  If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen...

Identity

             (3)  The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Administrative Appeals Tribunal Act 1975 (Cth)

Manner of applying for review

         29 (7)  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.

Consideration

  1. It is accepted by the Tribunal that the Transitionals Act applies to Ms Hawse’s application. The advice provided by the senior officer in the Sydney office of the Department on 29 September 2010, based as it was on the residence requirements in the Australian Citizenship Act 2007 (Cth) was, therefore, incorrect.
  2. As Ms Hawse’s application is made under the Transitionals Act, she must satisfy the general residence requirements in that Act. These require that she has been in Australia for a period in total of at least one year in the previous two years before she made her application and a total of at least two years in the previous five years.[9]
  3. According to the Department of Migration and Citizenship ‘Movement Requisition’ records, Ms Hawse has spent 617 days in Australia in the two years prior to her application and a further 867 days in Australia in last five years prior to her application. That means she meets both elements of the residence requirements under the Transitionals Act. This finding is relevant to the following discussion on the merits of the application.
  4. The issue in this matter is whether Ms Hawse should be granted an extension of time to apply to the Tribunal for review of the decision to refuse her application for citizenship. Ms Hawse was notified of that decision by the Department by letter dated 17 May 2010. Ms Hawse lodged her application to the Tribunal on 13 September 2010. Applications to the Tribunal are to be made, in most circumstances, within 28 days of the day on which the relevant decision was provided to the person.[10] For Ms Hawse this meant the application to the Tribunal should have been made by mid June 2010.
  5. The Tribunal’s discretion to extend time as set out in section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is unconfined. In such circumstances, the overall purpose of that discretion is to prevent an injustice which an applicant might suffer if a rigid time limit is adhered to.[11] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment sets out helpful principles for deciding whether to grant an extension of time when there is an unconfined discretion.[12] Those principles, paraphrased, are:
  6. In the submission on the extension of time application the Minister acknowledged, in relation to these principles, that Ms Hawse did not accept the finality of the decision. The Minister also indicated that he is unlikely to be prejudiced by the delay. Nor is an extension of time in her case likely to result in the unsettling of people or established practices. That leaves the following contested factors.

Unacceptable delay

  1. The Minister contended that there had been a lengthy delay of over five months with no acceptable explanation. A second contention was that statements by Ms Hawse on 22 September 2010 and 29 September 2010 that she was unwilling to risk paying the application fee to the Tribunal if she was unlikely to succeed at the Tribunal were not an acceptable explanation for the delay. In the Minister’s view, Ms Hawse should have sought advice or gone to the Tribunal’s website and discovered the time limit for herself.
  2. Mr Hawse said it was not unreasonable for his wife to have delayed since none of the letters, or oral advice from the Department had mentioned the 28 day time limit for appealing to the Tribunal. The references to the Tribunal website was not an adequate warning of a time limit and accessing websites is not always possible for people, particularly if they are technologically challenged, or have language difficulties. In his view, the Department’s standard letters should be amended to state, as do letters from the Tribunal, that there is a time limit of 28 days from the date of receipt of the decision for applications to the Tribunal. The failure to do so, he claimed, was a breach of fair process.
  3. The Tribunal also notes that the delay about payment of the application fee to the Tribunal was apparently due to legitimate concerns about the effectiveness of exercising such a right and the cost involved. Not only did Ms Hawse speak about that risk, but her husband also rang the Tribunal on several occasions in October to discuss its role and functions. Presumably, this too was a measure of the couple’s understandable need to reassure themselves that the expenditure would be worthwhile.
  4. Mr Hawse also contended that the delay was not five months. He said Ms Hawse had appealed to the Tribunal on 13 September 2010. It was not until she applied to the Tribunal in September that Mrs Hawse said she became aware of the time limit for the application. Since the application was due on or before mid June, that means the delay was at most about 3 months.
  5. Ms Hawse’s letter seeking review was acknowledged by the Tribunal and she was advised that she needed to apply on the proper form and, to pay an application fee of $777.00 or seek a fee waiver. From 22 September Mrs Hawse was travelling. She received a letter from the Tribunal on 30 September 2010 stating that as no fee had been paid, more than 14 days had passed and she had not sought a fee waiver, the Tribunal assumed she did not wish to proceed with the application.
  6. However, on 13 October 2010 Mr Hawse contacted the Tribunal to ask about the Tribunal’s functions. He was advised of its role and that Ms Hawse could also contact the Ombudsman if she wished to make a complaint. Mr Hawse indicated that they had already been in contact with the Ombudsman’s Office. The District Registrar also advised that if Ms Hawse wished to seek an extension of time she should apply formally, paying the application fee. Mr Hawse then agreed to do so within 7 days. On 19 October 2010, Ms Hawse emailed the Tribunal stating she wished to continue with the appeal and asking what steps she should take.
  7. On 21 October 2010, the District Registrar emailed Ms Hawse noting the application fee of $777.00 and advising that in ‘very limited circumstances’ the fee could be waived and attached the fee waiver form. On 25 October 2010, the Tribunal sent an application form to Ms Hawse to seek an extension of time. The completed form was returned the next day. Ms Hawse then paid the application fee. Accordingly the application was formally lodged within 4 months of the date of the decision and the initial informal application was only 3 months out of time.
  8. Mr Hawse also denied that Ms Hawse had not actively pursued her rights in that intervening period. Following receipt of the decision to deny her application for citizenship, Ms Hawse wrote to the Department explaining why she had cancelled her April appointment and said that, in reliance on that advice, she wished to re-book an appointment as soon as she had the original of her birth certificate. The Department responded on 8 June 2010 affirming the decision. However, by then Ms Hawse had departed for Hong Kong, which she did on 5 June 2010, returning on 9 August 2010.
  9. On 9 August 2010 Ms Hawse attended the Sydney office of the Department and was again advised that as the application was rejected, she could only pursue an appeal to the Tribunal, advice confirmed in a letter from the Department to her dated 13 August 2010. So it was not until August 2010 that Mrs Hawse had confirmation that there was no possibility of the Secretary reconsidering the decision and that her only option was to seek review by the Tribunal. On 13 September 2010 she appealed to the Tribunal. So although in her discussions with the Department on 22 September and 29 September 2010, Ms Hawse had indicated her reluctance to seek review by the Tribunal and risk losing the application fee, she had indeed taken steps by then to do so and her formal application together with the application fee was lodged on 26 October 2010.
  10. In the circumstances of her not being advised of the 28 day time limit until she finally applied to the Tribunal in September 2010, the relatively modest period of delay, the understandable need to establish that the significant cost of seeking review by the Tribunal would be justified, and the fact that in the period from when Ms Hawse was advised of the Department’s decision until her application to the Tribunal, Ms Hawse was continuing to explore the possibility that her initial application could be reconsidered by the Department, the Tribunal considers that the delay was explained and was not unacceptable.

Merits of the application

  1. The Minister suggests that the merits of the application are unclear. That contention may have been because of the misunderstanding about whether it was the criteria in the Act or the Transitionals Act which applied. Given the clarification of that issue which has been accepted by the Minister, and the apparent satisfaction by Ms Hawse of the residential eligibility criteria under the Transitionals Act, the Tribunal finds that the merits of the application are favourable and support the grant of an extension of time.

Seriousness of the consequences for Ms Hawes of a refusal of the application

  1. The Minister has indicated that delay until 9 August 2011 to reapply will not seriously disadvantage Ms Hawse.[13] The Tribunal has not assessed whether Ms Hawse would meet the revised eligibility criteria in the Australian Citizenship Act 2007 (Cth) should she apply for citizenship on or after 9 August 2011. At the same time it would be unfair to Ms Hawse not to permit her to take advantage of the more generous residency requirements in the Transitionals Act. So the consequences of the refusal might be disadvantageous to Ms Hawse. In those circumstances the Tribunal rejects this contention.
  2. Other considerations raised by the Minister were the unfairness to others who met the time limits; and that an extension of time runs counter to the certainty of decision-making promoted by time limits. The Tribunal notes that the counter-argument to both considerations is that the discretion granted by section 29(7) is designed to permit exceptions to prevent unfairness to the individual concerned.
  3. In the circumstances outlined, the Tribunal accepts that Ms Hawse has satisfied the Tribunal that it is reasonable and the justice of the case requires that the extension be granted.[14]

I certify that the 41 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of Professor R Creyke, Senior Member.


Signed: .................[sgd].............................

C. Baillie, Associate


Date of Hearing 20 January 2011

Date of Decision 8 February 2011


Solicitor for the Applicant Represented by her husband, Simon Hawse


Solicitor for the Respondent Jan Cummins

Clayton Utz


[1] Department’s Statement of Facts, Issues and Contentions, Attachment E.
[2] Id, Attachment F.
[3] Id, Attachment H.
[4] Ibid.
[5] Ibid.
[6] Id, Attachment I.
[7] Ibid.
[8] Ibid.
[9] Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) Item 5B(2).
[10] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
[11] Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 at 635.
[12] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310-312.
[13] See e.g Re Nolan and Minister of Immigration and Ethnic Affairs (AAT 3557, 29 April 1987).
[14] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541..

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