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[2012] FCA 1102
Federal Court of Australia
2012-10-11
Bennett J
Original judgment source is linked above.
The applicant's written submissions 13 The applicant filed written submissions. He raises factual matters as to his health and well-being and fears for his and his father's safety from his mother and her family in Pakistan. 14 The written submissions then turn to deal with the application of s 22(6) of the Act. In essence, the applicant contends that his application for citizenship should have been allowed and that: The Tribunal did not understand the application of s 22(6) and purported to exercise the Minister's discretion. The Minister has the power to waive the requirements of permanent residency so as to deem lawful presence in Australia as permanent residency; the Minister has a discretion under s 22(6) to disregard the requirements of s 21(1)(c). The applicant does not need to satisfy the general residence requirement. There is no impediment to the applicant becoming an Australian citizen if the Minister exercises his discretion under s 22(6) in the applicant's favour. The Tribunal does not have power to dictate how that discretion or power would be applied. The fact that the applicant was not a permanent resident at the time of his application is irrelevant if the Minister decides to waive the requirement of permanent residency. The Tribunal erred in failing to differentiate between permanent residence and general residence. The primary judge erred in finding that s 21 of the Act makes it clear that the general residence requirement does not apply to persons under 18 years of age. However, the applicant in his written submissions seems to accept that a person under 18 years must be a permanent resident and repeats that that such a "need" can be waived by the Minister under s 22(6).
The Minister's written submissions 15 The Minister maintains the position that the applicant, as a minor, is unable to start proceedings without a litigation representative and that this requirement should not be waived in the case of the applicant, an 8 year old child. In the absence of a litigation representative, the Minister submits that the application is incompetent. 16 The Minister submits that this application has been initiated by the applicant's father who should be liable for costs in any event. 17 As to the 5 day delay in seeking leave to appeal the decision of the primary judge, the Minister does not contend that there has been any prejudice but submits that the extension of time should not be granted because the applicant's appeal is without merit and that no error in the primary judge's finding that the application was incompetent has been alleged or is otherwise demonstrated. 18 The Minister notes that the draft notice of appeal takes issue with the findings of the Tribunal and seeks an order remitting the matter to the Tribunal for reconsideration. He submits that an appeal against the Tribunal's decision is out of time, being more than 28 days from the date of the Tribunal decision of 3 April 2012 and would require a 4 month extension. While the Minister can point to no prejudice that would be caused by the delay, he refers to the need to have regard to an explanation for the delay and the lack of merits of the application. 19 The Minister accepts that the delay in appealing from the Tribunal's decision was occasioned by the proceeding brought before the primary judge. However, it submits that the grounds in the draft notice of appeal are without merit, such that the extension of time should be refused because no question of law is raised and, if it is, the Tribunal correctly applied s 21 of the Act.
The hearing 20 The applicant's father, Ishaq Khan, appeared with an interpreter. He stated that he was the applicant's litigation representative. By consent, I ordered that the Mr Khan be appointed the applicant's litigation representative and dispensed with the requirements of r 9.63(2) and (3) of the Federal Court Rules for the application before me. 21 Mr Khan made a number of submissions addressing his delay, his lack of understanding of Court processes and asserted strongly that the Minister has the legal power and the political power to make a decision in favour of his son's application. 22 While Mr Khan generally asserted that he did not understand the issue and said that he wanted to consult a lawyer, it is apparent that his written submissions address the question of construction of the relevant sections of the Act. He should also have been aware that the construction of the sections of the Act is the central issue in this proceeding, as it was in the reasons of the primary judge and of the Tribunal, some months ago. 23 The Minister submits that leave to extend time should be refused because there was no error in the primary judge's reasons or in his decision to dismiss the application as incompetent. 24 Mr Khan also says that his application is similar to the recent High Court decision in Plaintiff M47/2012 v Director General of Security [2012] HCA 46. The Minister submits, and I agree, that the High Court in Plaintiff M-47/2012 did not mention or refer to the Act and that decision is not relevant to this proceeding.
Consideration 25 The grounds in the draft notice of appeal effectively assert error on the part of the Tribunal by failing to apply the discretion provided in s 22(6) to overcome the requirement in s 21(5) that the applicant be a permanent resident at the time of his application and the Minister's decision. 26 The relevant provisions of the Act as to eligibility, as recognised by the Tribunal at [7] - [10], can be summarised as follows: A person is eligible to become an Australian citizen if he or she satisfies each of the criteria in s 21(2) of the Act (the general eligibility criteria). In particular, amongst other requirements, he or she must: (a) be 18 or over at the time of making the application; and (b) be a permanent resident at the time of making the application and at the time of the Minister's decision; and (c) satisfy the general residence requirement, the special residence requirement, or have completed relevant defence service. To satisfy the general residence requirement, a person must meet each of the criteria in s 22(1). He or she must have been: (a) present in Australia for the period of 4 years immediately before the day of making the application; and (b) not present in Australia as an unlawful non-citizen at any time during that 4 year period; and (c) present in Australia as a permanent resident for the period of 12 months immediately before the day of making the application. There are a number of additional categories of eligibility, apart from the general eligibility criteria in s 21(2) of the Act. One concerns persons aged under 18 years. Under s 21(5), a person is eligible to become an Australian citizen if that person is under 18 years of age at the time of making the application and is a permanent resident at the time of making the application and at the time of the Minister's decision on the application. 27 In other words, as the Tribunal recognised, a person under 18 is only required to be a permanent resident to be eligible for citizenship; he or she is not required to satisfy the general residence requirement. However, as the applicant was not a permanent resident, he could not satisfy this eligibility criterion. 28 Section 22(6) of the Act provides: For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if: (a) the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and (b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident. 29 As the Minister submits, and consistently with the conclusions of the primary judge and of Jagot J in Islam: Section 21 of the Act sets out "sets" of eligibility criteria, one of which a person must meet to be eligible to be granted Australian citizenship. The relevant set of eligibility criteria in the present case are those set out in s 21(5) of the Act. One of the criteria under s 21(5) is that an applicant is a permanent resident at the time of application and at the time of decision. A criterion under some of the other "sets" of eligibility criteria is that an applicant satisfies the "residence requirements" (see s 21(2)(c), s 21(3)(c) and s 21(4)(d)). Section 22 then defines the "general residence requirement", and within s 22 there are discretions available in relation to meeting the "general residence requirement". On a plain reading of the Act, the discretion in s 22 clearly relates to the assessment of whether an applicant meets the general residence requirement under s 22. It does not apply to the eligibility criteria under s 21, apart from the general residence criterion, and is not available to overcome the requirement that an applicant be a permanent resident at the time of application and decision. The requirement under s 21(5) that an applicant be a permanent resident at the time of application and time of decision is an absolute requirement and is not discretionary. 30 Justice Jagot considered this precise question in Islam. Her Honour concluded at [18]: … For the reasons given, s 22(6) does not provide an alternative means of satisfying the requirement of permanent residency in s 21(5). Section 22(6) thus cannot assist the applicant in satisfying the requirement of permanent residency in s 21(5). Sections 2A (which sets out a simplified outline of the Act) and 19G (which sets out a simplified outline of when citizenship may be granted by conferral) do not support the applicant's case. The [Tribunal] did not err in its construction of the provisions of the Act. For these reasons, the applicant's contentions of error of law, and various submissions in support, cannot be accepted. 31 As did the primary judge, I agree with Jagot J.
Conclusion 32 The applicant has not identified any error in the primary judge's conclusion or reasoning that the applicant's appeal from the Tribunal's decision was incompetent. In any event, the application for leave to appeal from the substantive question of law considered by the Tribunal and by the primary judge is without merit. 33 It follows that the application for an extension of time to apply for leave to appeal from the whole of the judgment of Justice Jacobson made on 16 August 2012 should be dismissed. To the extent that the applicant seeks an extension of time to lodge a competent appeal against the decision of the Tribunal made on 3 April 2012, the extension of time should be refused.
Costs 34 Mr Khan sought to be appointed as the applicant's litigation representative. He was aware, from the reasons of the primary judge, that this was likely to expose him to an order for costs. The Minister also made it clear in his written submissions that he sought an order for costs from Mr Khan. The applicant has been wholly unsuccessful. Mr Khan should pay the Minister's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Amir
Minister for Immigration and Citizenship
The decision of the primary judge 4 The primary judge dismissed the applicant's appeal from the decision of the Tribunal as incompetent. His Honour noted that, as a minor, the applicant cannot bring the application without the appointment of a litigation representative, citing r 9.63 of the Federal Court Rules 2011 (Cth), Stephens-Sidebottom v State of Victoria (Department of Education and Early Childhood Development) [2011] FCA 893 and Harwood v State of New South Wales (Department of Education and Training) [2012] FCA 264. Under r 9.61 of the Federal Court Rules, a person under a legal incapacity, such as a minor, may only start a proceeding by the person's litigation representative. His Honour said that it was unclear whether the applicant's father accepted the appointment as his son's legal representative, a factor apparently being exposure to costs. It does seem from his Honour's reasons that no such application was made. His Honour declined to exercise his power to waive compliance with the requirement that a legal representative be appointed and dismissed the proceedings as incompetent. In those circumstances, his Honour declined the Minister's application for an order that the applicant's father pay the Minister's costs. 5 That decision by the primary judge to dismiss the appeal as incompetent was made after his Honour considered the merits of the appeal. 6 The applicant applied for citizenship under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The primary judge identified the question that arose on the appeal from the Tribunal as going to the proper construction of the provisions of ss 21 and 22 of the Act, in particular, the provisions of s 22(6). A summary of his Honour's reasoning is to the following effect. 7 Turning to an application that might be made by a person aged 18 years or over, his Honour noted that the requirements include that the person be a permanent resident and satisfy the general residence requirement stated in s 22 of the Act, by reason of s 21(2)(b) and (c) of the Act. As one of the criteria necessary to satisfy the general residence requirement a person must be present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application (s 22(1)(c)). The Minister has a discretion under s 22(6) 'for the purposes of paragraph (1)(c)' to disregard in certain circumstances the requirements of s 22(1)(c). 8 The primary judge said that by contrast, the only relevant condition that is applicable to an applicant under 18 years of age is that the person be a permanent resident at the time of the application and at the time of the Minister's decision (s 21(5) of the Act). Section 21 makes it clear that the general residence requirement does not apply to persons under 18 years of age. 9 The primary judge then considered the contention of the applicant's father that the discretion conferred by s 22(6) of the Act enabled the Minister to treat his son as a permanent resident. This contention had been rejected by the Tribunal, which noted that the same conclusion had been reached by Jagot J in Islam v Minister for Immigration and Citizenship (2012) 125 ALD 476, that is, that the discretion in s 22(6) applies only for the purposes of s 22(1)(c). The primary judge said that he did not consider her Honour's decision plainly wrong and that in his view, it was correct and he would follow it. 10 His Honour explained that the only relevant condition of eligibility for minors is that they must be a permanent resident and s 22(6) does not provide an alternative means for persons such as the applicant to satisfy the requirement of permanent residence stated in s 21(5). 11 That was, the primary judge said, the only question of law properly raised by the applicant's appeal. From the notice of appeal before his Honour and in light of the explanation given by the Minister, that is the case.
[2012] HCA 46