The questions of law
18 It will be apparent that the first question relies on the notion that, in determining whether a person has a close and continuing connection with Australia for the purpose of s 22(9)(d) of the Citizenship Act, the Minister (and the Tribunal) is precluded from considering contact with extended family and joint assets in Australia. As the Minister put it, these two matters are "natural concomitants" of being married to an Australian citizen so that something more than a mere relationship with extended family and joint assets in Australia is required. This was said by the Minister to be a necessary result of any construction of s 22(9) under which the discretion was approached as one to be exercised, if available, unless "strong reasons" existed to do otherwise. This is a reference to a decision of the Tribunal in Sapronov and Minister for Immigration and Citizenship [2011] AATA 126 (Sapronov) at [64] in which it was said that if the prerequisites to the discretion had been satisfied "then, unless there is some other reason why the discretion ought not be exercised, it should be". The Minister also relied on the Explanatory Memorandum that accompanied the Australian Citizenship Bill 2005 which became the Citizenship Act, in particular a reference to the expectation that adult citizens should qualify in their own right for citizenship rather than rely on a spousal relationship.
19 I do not find any of the Minister's arguments on this issue persuasive. As Edmonds J found, limits on the discretion in s 22(9) are to be found in the subject matter, the scope and purpose of the Citizenship Act. Nothing in the statutory scheme provides any support for the spurious distinction the Minister sought to draw between the so-called "natural concomitants" of marriage to an Australian citizen and matters over and above those concomitants. Moreover, it is not apparent why a relationship with extended family and joint assets in Australia would be characterised as "natural concomitants" of marriage to an Australian citizen. The Explanatory Memorandum does not assist because s 22(9) is the exception to the ordinary principle - a person is within the scope of s 22(9) because he or she is the spouse of an Australian citizen.
20 Sapronov is neither here nor there. The present Tribunal did not approach the matter on the basis that the approach in Sapronov should be applied. It did not refer to Sapronov.
21 In any event, the Tribunal's findings about Ms Tran's connection with Australia at [74] can hardly be said to be nothing more than the mere "natural concomitant" of her marriage. Even if the Minister's submissions on this issue held any substance, the Tribunal would not have erred by taking into account the nature and extent of Ms Tran's connections to Australia through her relationship to her extended family and her joint ownership of eight properties in Australia.
22 Accordingly, question 1 should be answered "does not arise", but might also be answered "no".
23 One answer to question 2 is "yes". So much is clear from the terms of s 22(9), the decision in Kumar, and the submissions for Ms Tran which accept this to be so. The real issue is whether the question arises on the Tribunal's reasons. The Minister contends that it should be inferred from the Tribunal's reasons that when it came to the exercise of the discretion, the Tribunal failed to have regard to the Minister's principal, indeed only, contention as to why the discretion should not be exercised - the length of time which Ms Tran had been outside Australia (as stated at [19] - "Ms Tran was physically present in Australia for only 38 days and absent for 1,423 days in the four years immediately prior to applying for citizenship on 14 June 2014"). In particular, given that this was the Minister's sole contention, the Minister submitted that it would be expected that if the Tribunal had turned its mind to the exercise of the discretion the Tribunal would refer to this contention. Instead, the Tribunal moved immediately from a finding of close and continuing connection in [76] to a state of satisfaction that the discretion should be exercised in [77], the only linking word being "Accordingly" at the beginning of [77]. This, said the Minister, showed a failure to consider exercising the discretion at all.
24 I disagree. I do not accept that it can or should be inferred that the Tribunal failed to consider exercising the discretion, in fact failed to exercise the discretion, or that the Tribunal, in so doing, overlooked the Minister's sole contention against the exercise of the discretion. First, reasons are to be read as a whole. Second, reasons are to be read fairly. Third, reasons are not to be read as if each paragraph is self-contained and necessarily sequential. With these matters in mind, the following further observations can be made:
That the Tribunal understood that it had a discretion to exercise (if satisfied as to each of the matters in s 22(9)(a) to (d)) is obvious from the many references to the existence of that discretion (see [3], [6], [11], [12], [33], [39], [77]). Moreover, when it came to make its decision at [77] the Tribunal said it was satisfied the discretion in s 22(9) should be exercised in Ms Tran's favour.
That the Tribunal understood the Minister's position to be that Ms Tran had spent too long outside Australia compared to the time she had spent in Australia over the four year period before she made her application is also obvious. The Tribunal referred to that contention at [19] and [20]. More importantly, it referred to it again at [75] when the Tribunal said "[i]n coming to a decision I have noted the Respondent's view that Ms Tran has not worked or lived in Australia, and that the property and investments she owns are jointly owned with Mr Dooley".
25 The Minister's case seems to be that [74] to [77] of the Tribunal's reasons must be read as strictly self-contained sequential pods of reasoning. The consequence of this (erroneous) approach to the Tribunal's reasons is that [74] to [76] are to be read as dealing solely with the s 22(9)(d) issue of close and continuing connection and [77] is to be read as dealing solely with the exercise of the discretion. Further, so the argument goes, because [77] begins with "Accordingly" it must be inferred that the Tribunal decided it had to exercise the discretion in Ms Tran's favour merely because s 22(9)(a) to (d) were satisfied, with the necessary consequence being that the Tribunal failed to consider the point the Minister had been making about the length of time also being relevant to the discretion. For the reasons given above, this is not a legitimate approach to the reasons of the Tribunal. Further, given the nature of the discretion in this case, which leaves it to the Tribunal to identify for itself relevant matters (provided it does not stray into matters prohibited from consideration by necessary implication from the statutory provisions), it cannot be said that the Tribunal failed to give "active intellectual consideration" to the discretion. This is not a case where, as in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [44]-[45], the statute prescribes matters that must be considered in the exercise of the discretion. Even if the relative length of time outside Australia was a mandatory consideration, the Tribunal actively engaged with that issue at [75] of its reasons.
26 In summary, I disagree with every step in the Minister's analysis. The Tribunal's reasons should not be read as contended for by the Minister. The factors relevant to s 22(9)(a) to (d), particularly s 22(9)(d), are potentially relevant also to the discretion which remains to be exercised. The Tribunal recognised this when it expressly referred to the Minister's submission about the length of time Ms Tran had been outside Australia at [75]. It is not to be inferred that, having expressly dealt with that issue at [75] in the context of the issue of close and continuing connection with Australia, the Tribunal immediately forgot about the same issue at [77] when it came to the exercise of the discretion. By "Accordingly", the Tribunal must be understood as saying nothing more than having regard to everything considered up to that point, which expressly included the Minister's contention about the relative length of time Ms Tran had spent within and outside Australia, the discretion was to be exercised in favour of Ms Tran. I also note that any ambiguity in [33] of the Tribunal's reasons is a result of the Minister's submissions. The Tribunal cannot be read as saying in [33] that the Minister's submission was irrelevant to or should not be considered in respect of the discretion in s 22(9).
27 Question 2 should therefore be answered "Yes, but the question does not arise in this case".
28 Question 3 also does not arise. It assumes that the Tribunal failed to consider the Minister's submission. As set out above, the Tribunal did not so fail as its reasons disclose at [19], [20], [33] and [75].
29 For these reasons it is unnecessary to resolve the debate between the parties about whether the relative length of time a person has been within and outside Australia over the relevant four year period before the application was made is a mandatory or merely permissible consideration. It is necessary to say that, insofar as it was submitted for Ms Tran in the alternative that this was an irrelevant or prohibited consideration, I disagree. Again, nothing in the statutory scheme would support that conclusion. What is decisive in the present case is that the Tribunal acted on the proper basis that it had a discretion to exercise if satisfied that the requirements of s 22(9)(a) to (d) had been met, considered the only contention the Minister had put against a favourable exercise of the discretion in Ms Tran's favour, and then exercised the discretion as a result. In so doing, no question of law arises as alleged by the Minister.
30 It follows that the appeal must be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.