Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 396 (5 March 2021)

Last Updated: 8 March 2021

Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 396 (5 March 2021)

Division: GENERAL DIVISION

File Number(s): 2020/7950

Re: Junaid Hasan

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Mrs J C Kelly, Senior Member

Date: 5 March 2021

Place: Sydney

The time for making the application for review is extended to 2 December 2020

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

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – decision to refuse application for citizenship on character grounds – three months delay in filing application – whether reasonable explanation for the delay – prejudice to others – merits of substantial application – extension of time for making application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) s 21

Crimes Act 1900 (NSW) s 61

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

CASES

Al-Zeebaree and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1119

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

Hanna and Minister for Home Affairs (Citizenship) [2018] AATA 4622

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 571:

Re Commonwealth; Ex parte Marks [2000] HCA 67

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

State of New South Wales v McMaster [2015] NSWCA 228; (2015) 91 NSWLR 666

REASONS FOR DECISION

Mrs J C Kelly, Senior Member


5 March 2021

The Application

1. The Applicant, Mr Hasan, seeks an extension of time within which to file an application for review of the decision to refuse his application for Australian citizenship by conferral (the reviewable decision).
2. The reviewable decision was made on 24 July 2020 by a delegate of the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (the Respondent). The delegate was not satisfied that the Applicant was of good character at the time of the decision as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
3. The Respondent opposed the application for an extension of time.

Background

4. The Applicant was born in Iraq in 1963 and arrived in Australia on 27 May 2014.
5. On 11 February 2016 he was found guilty of one offence of Common assault (DV)-T2 and one offence of Common assault-T2, and discharged in each case on condition of entering a good behaviour bond, pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The bond in relation to the first offence was for 18 months and the bond in relation to the second offence was for six months.
6. The Applicant had committed the offences on 2 October 2015.
7. He applied for citizenship on 14 June 2018. The reviewable decision was made on 24 July 2020 and he lodged his application for review, in which he also requested an extension of time to lodge the application, on 2 December 2020.

The applicable law

8. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application to the Tribunal for a review of a decision that is in writing, shall be lodged within “the period commencing on the day on which the decision is made and ending on the twenty-eighth day after” the decision is given to the applicant.
9. Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for making an application “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”. The time may be extended although that time has expired (s 29(8)).
10. The relevant principles applicable to an application for an extension of time were set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. They are not to be applied mechanically; the over-riding consideration is whether it is reasonable in all the circumstances to grant the extension.^[1] Each of the relevant principles will be considered in turn.

Has there been an acceptable explanation for the delay?

11. The delay in the present case is approximately three months (or 103 days). The Respondent argues that is significant and an acceptable explanation for the delay has not been given.
12. The Applicant stated in the application for review lodged in the Tribunal that the reason for the delay was that he ‘was not aware of the time frame that was given to [him] due to the language barrier’. He claimed that the decision was wrong because:

I believe that i am aware of the decision that was made by the department but because i was guilty but not Convinced of the matter that happened on 11 Feb 2016. This was the court decision. I had provided all the support documents and i did not have any issues since then. So i would to request a review from the AAT.

13. The Respondent argued that the Tribunal should be slow to accept the Applicant’s explanation about the language barrier. The Applicant provided three statutory declarations made on 22 June 2020. In one of them, the Applicant declared that he has passed the Australian citizenship test and has “understanding of English”. Secondly, he completed his application for citizenship without assistance and prepared a number of other statutory declarations without assistance.
14. In its written submissions, the Respondent contended that the delay suggests that the Applicant ‘rested on his rights’ as found in Hanna and Minister for Home Affairs [2018] AATA 4622, where the length of delay was similar and the Applicant was found to have rested on her rights despite giving evidence that she made arrangements to seek legal advice.
15. During the hearing, Mr Hasan said that he read the decision when he received it and was saddened because he did not think “the problem” was so significant. He understood that it was “cancelled” but did not understand the decision fully.
16. In response to being asked why it took him so long to file an application for review in the Tribunal, Mr Hasan said that he had initially gone to an immigration lawyer five days or a week after receiving the decision. The lawyer delayed him. He sent the lawyer an email criticising him. When he realised the lawyer was not up his responsibilities, he got advice from a friend to apply to the Tribunal.
17. I asked the Applicant to provide a copy of the email which he did. It was dated 8 October 2020 and addressed to an individual at a law firm. The subject was “Junaid Hasan citizenship matter”. The Applicant asked what had been done with his case and explained why he needed citizenship “more than ever”. The Applicant said that he spoke to the lawyer over the telephone and told him he was delaying him.
18. The Applicant said that he did not know that there was a time limit for review. When it was pointed out that the cover letter for the refusal decision set out the 28 day period for review, The Applicant said that he read that his application had been rejected and stopped reading. If he had read it, he would have applied to the Tribunal. His lawyer did not tell him there was a time frame to apply to the AAT. His lawyer said it was a simple case and he would make a new application and withdraw the first application and would need supporting documents including an Australian Federal Police clearance and a driving history check. The Applicant obtained the documents and sent them to the lawyer who did nothing.
19. I find that there is an acceptable explanation for the delay in this case. Soon after receiving the refusal notification, the Applicant went to a lawyer whom he reasonably expected to know what to do. The lawyer clearly did not. The Applicant eventually got correct advice on which he acted and applied to the Tribunal.

Prejudice to the Minister or the public

20. The Respondent conceded that neither the Minister nor the public would suffer prejudice if the extension of time were granted, except insofar as there is a public interest in the finality of decisions. It referred to the decision of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 where his Honour considered an application for an extension of time in the context of an application for the issue of constitutional or prerogative writs. His Honour said:

Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.^[2]

21. I accept that there is a public interest in the finality of the decisions of public bodies or officials which are the subject of review by the Tribunal.
22. The Respondent submitted further that a lack of prejudice does not, of itself, warrant the grant of an extension of time. It cited SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. I accept that is a correct statement of principle.

The merits of the substantive application

23. The issue that the Tribunal will have to decide if an extension of time is granted, is whether the Applicant is a person of good character at the time of decision. In response to a direct question, the Applicant failed to disclose in his citizenship application that he had been found guilty of two criminal offences in Australia. The Respondent submitted that meant that he had been untruthful to the Department. A person’s failure to be truthful in their dealings with the Department can constitute evidence that a person is not of good character.^[3]
24. The Respondent submitted that the Applicant’s comment in one of his statutory declarations dated 22 June 2020 that the matter was a “family matter” and that he had not committed any crime of violence, showed that he did not appreciate the gravity of his criminal conduct, and although he has committed no offences since October 2015, his declaration indicated that a longer period of time is required before the Tribunal could be satisfied that he is a person of good character. Further, the Respondent submitted that the Applicant had not provided persuasive corroborative evidence of his rehabilitation or character references.
25. In one of his statutory declarations dated 22 June 2020, the Applicant stated that he was very new to Australia when this “family problem” happened and did not know the law and was not aware this “family matter” has been listed on his nationally coordinated criminal history check. He had taken a couple of steps to avoid repetition of this behaviour by moving to a different suburb and looking after his family.
26. The question in the citizenship application was:

Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?

27. When asked about that question during the hearing, the Applicant said that he had thought this question was referring to crimes like terrorism, stealing, murder and drugs. He thought those were the crimes being asked about and not the crime he committed which was a small altercation with his niece of which he was not convicted. When it was pointed out to him that the question listing specific crimes was a different question, he repeated the same answer.
28. The Applicant said that he thought he had given the correct answer and if he had known that his small problem with his niece was a crime, he would have attached court documents. He has travelled to other countries and thought a crime meant a crime related to the security of a state.
29. The Applicant then explained what had happened with his niece. She was married to his son who was overseas. The Applicant found her at night with a male. He talked to her and she started an altercation. His niece and her male friend went to police and made up other things to make it really bad so his son would divorce her, and she could marry her male friend. That is not allowed in their culture. He did not think it wrong to approach her and talk to her.
30. The police questioned him. There were two witnesses whose statements did not match. The charge of beating was dropped, and the charge of “altercation” was kept. The judge told him to erase “beaten” and only keep “altercation” and issued a restraining order so it would not happen again.
31. When it was put to the Applicant that it was difficult to believe he was not aware he was guilty of two offences when he had been to court and was subject to two bonds, the Applicant said that if the judge did not believe him, he would not have released him with a bond.
32. The Applicant said that his son and niece have divorced, and she married her friend. He and his niece are on good terms now. He goes once a week to get his grand-daughter who stays with his family for five days during school holidays.
33. During the hearing, I became concerned that that the elements of the offence of common assault were not clearly understood and directed the Respondent to file submissions and the Applicant to reply, which they did.
34. In summary, the offence of common assault under s 61 of the Crimes Act 1900 (NSW) requires that a person do an act that involves (i) causing unlawful force to be applied to another person or (ii) intentionally causing another person to apprehend immediate and unlawful violence.
35. A person must have either intended to cause such an act, or been reckless as to the act. An act is reckless where the person foresees the likelihood of causing injury or fear but nonetheless, in acting, ignores that risk.
36. State of New South Wales v McMaster [2015] NSWCA 228; (2015) 91 NSWLR 666 at [191] (Beazley P) is authority for both propositions.
37. It is unnecessary to strike someone or have physical contact with a person to commit common assault. I accept the Applicant’s evidence that he did not strike his niece, or her friend.
38. The Respondent contended that a common assault in a domestic context is not a minor offence, and quoted the following from Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 571:

While the threat of violence in a domestic relationship may not manifest in physical harm, it is likely to cause fear that can pervade a person’s life. Every incidence of domestic violence – whether physical, sexual, financial and/or emotional – diminishes the Australian community and is not consistent with the privilege of Australian citizenship.^[4]

39. It is necessary to understand the provision that was applied in the Applicant’s case. Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.
(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

40. The magistrate did not consider it appropriate to dismiss the charges. The magistrate did consider that it was expedient to release him on a good behaviour bond. The magistrate did not consider an intervention program appropriate.
41. The Applicant understood that the good behaviour bond was imposed so that the behaviour would not be repeated as set out at [30] above.
42. The Respondent contended that the nature of the Applicant’s offending and his failure to be candid about it are contrary to any conclusion that he is of good character.
43. I do not accept that that is so. The Applicant is not an advocate of his best interests. He gave evidence that supported his case for citizenship for the first time during cross-examination. Different decision-makers may come to different views on the facts as currently disclosed. The Applicant has committed two offences of common assault, including one of domestic violence, on one occasion over five years ago when he was a newcomer to Australia from a different culture in circumstances of great concern to him and his family. The Applicant referred to the matter as a family matter. I accept that the offence was verbal rather than physical. The offences were dealt with under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The punishment was a good behaviour bond. He is now on good terms with his niece. The evidence does not suggest that he has had any interaction with legal systems of any country before his court appearance in 2016. He has given different answers to questions. That does not necessarily mean that he has been untruthful. I found him to be an honest witness.

The Applicant can reapply for citizenship

44. The Respondent pointed out that refusal of the application for an extension time does not mean the end for the Applicant’s quest for citizenship. He may reapply. The decision in the present case was made more than two years after he had applied for citizenship. I infer that a similar delay would occur if he reapplied. The question for decision at a final hearing will be whether he is a person of good character at that time.

Conclusion

45. Taking into account all the above considerations, I am satisfied that it is reasonable in all the circumstances to extend time for making the application to 2 December 2020

DECISION

46. The time for making the application for review is extended to 2 December 2020

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Dated: 5 March 2021

Date(s) of hearing:	4 February 2021
Date final submissions received:	14 February 2021
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitors

---

^[1] Al-Zeebaree and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1119 at [4]- [8]; Hanna and Minister for Home Affairs (Citizenship) [2018] AATA 4622 at [6]- [10].

^[2] At [15]

^[3] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [63].

^[4] At [42].