FEDERAL COURT OF AUSTRALIA
Lin v Minister for Immigration and Citizenship [2009] FCA 494
STATUTES – correct interpretation of s 21 and s 22 of the Australian Citizenship Act 2007 (Cth) – correct interpretation of transitional provisions contained in Item 7 of Pt 1 Sch 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 – meaning of phrase “present in Australia as a permanent resident” for purposes of Item 7 – meaning of clause “engaged in activities during that period that the Minister considers to be beneficial to Australia” in subitem (4)(a) of Item 7 – consideration of whether may means must in subitem (4) of Item 7
WORDS AND PHRASES – “period”, “present in Australia as a permanent resident”, “engaged in activities during that period that the Minister considers to be beneficial to Australia”
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Citizenship Act 1948 (Cth) ss 5, 5A and 13
Australian Citizenship Act 2007 (Cth) ss 3, 5, 20, 21, 22, 23, 24, 25, 26, 27 and 28
Australian Citizenship (Transitionals and Consequentials) Act 2007 s 2 and s 3 and Sch 3 Pt 1, Item 7, subitems (2), (7) and (8)
Migration Act 1958 (Cth) s 5 and s 30
Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited (1994) 182 CLR 51 applied
Commissioner of Taxation v Eskandari (2004) 134 FCR 569 applied
Corlette v Mackenzie (1995) 62 FCR 584 cited
Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 followed
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 applied
Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349 cited
LIN MINGCHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 142 of 2009
FOSTER J
14 MAY 2009
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 142 of 2009 |
| ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
| LIN MINGCHI Applicant
| |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
|
| JUDGE: | |
| DATE OF ORDER: | 14 MAY 2009 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The decision made by the Administrative Appeals Tribunal on 22 January 2009 in Re Mingchi Lin v Minister for Immigration and Citizenship (2009) 106 ALD 211, [2009] AATA 44 be affirmed.
3. The applicant pay the first respondent’s costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 142 of 2009 |
| ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
| BETWEEN: | LIN MINGCHI Applicant
|
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
|
| JUDGE: | FOSTER J |
| DATE: | 14 MAY 2009 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 The applicant is a citizen of the People’s Republic of China (the PRC). Before migrating to Australia as a business skills migrant in 2004, the applicant had had substantial experience as a real estate developer in the southern Chinese Province of Fujian. On 19 April 2004, the Minister granted to the applicant a Class AD Resident, subclass 127 Permanent Residence visa. This visa is a permanent visa within the meaning of that expression when used in the Migration Act 1958 (Cth) (the Migration Act). The applicant first arrived in Australia on 2 May 2004.
2 In a letter dated 29 June 2007 from Johninfo & Associates, Migration Consultants, who were then acting on behalf of the applicant, to the Department of Immigration and Citizenship, the applicant applied for Australian citizenship. In his application, the applicant invoked s 13(4)(b) of the Australian Citizenship Act 1948 (Cth) (the old Act).
3 On 1 March 2008, the applicant’s application for Australian citizenship was refused by a delegate of the first respondent (the Minister).
4 On 31 March 2008, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate’s decision. The Tribunal held a hearing on 31 October 2008. On 22 January 2009, the Tribunal affirmed the delegate’s decision. At the same time, the Tribunal delivered reasons in support of its decision (Re Mingchi Lin v Minister for Immigration and Citizenship (2009) 106 ALD 211, [2009] AATA 44 (the Tribunal’s reasons)).
5 The proceedings in this Court are brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The applicant has raised four questions of law for this Court’s consideration. These questions are set out below under the heading The Questions of Law and the Grounds of Appeal.
6 This Court has wide powers when hearing and determining an appeal under s 44 of the AAT Act. The Court may make such order as it thinks appropriate by reason of its decision (s 44(4)). The Court may make findings of fact (s 44(7)) and may affirm or set aside the Tribunal’s decision and remit the case to be heard and decided again in accordance with the directions of the Court (s 44(5)).
7 In the present case, the applicant seeks orders setting aside the Tribunal’s decision and remitting the applicant’s application to the Tribunal for decision according to law. The Tribunal has filed a submitting appearance and has not taken any active part in the proceedings before me. I have not been asked to make any findings of fact. The points raised are few in number and confined in scope. The applicant is content to proceed upon the basis of the facts as found by the Tribunal. Those findings which are relevant to the present issues will be either referred to or set out in the next section of these Reasons.
The Tribunal’s Decision
8 After referring to the issues raised by the applicant’s application for review, certain background facts and the substance of the delegate’s decision, the Tribunal set out in broad terms the relevant statutory framework (see the Tribunal’s reasons at [9]–[16]). The statutory provisions referred to by the Tribunal were:
(a) The old Act (esp s 13(4));
(b) The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act) (esp Pt 1 of Sch 3, Item 7, subitems (2), (7) and (8)); and
(c) The Australian Citizenship Act 2007 (Cth) (the new Act) (esp s 21 and s 22).
9 The Tribunal then referred to certain policy guidelines which are set out in Ch 5 of the Australian Citizenship Instructions (the ACI) current as at 1 July 2007 and as at 1 March 2008, the date upon which the delegate’s decision was made (see [17] and [18] of the Tribunal’s reasons).
10 At [19]–[21], the Tribunal said:
19 Mr Lin meets the first criterion of being a permanent resident during the periods in issue. A copy of Mr Lin’s passport and departmental movement records confirm that Mr Lin has engaged in frequent overseas travel. Movement records show that, in the five years before making his application, Mr Lin was present in Australia for 83 days, with 63 of those days being in the two years before his application. He therefore needs to show that he has spent the remainder of his time during those periods in activities which were beneficial to Australia.
20 Mr Lin says he meets the requirement of subitem (7)(8)(4) of the Transitional Act, which allows periods in which he was not present in Australia to be counted as if in Australia, as he was engaged in “activities that are beneficial to the interests of Australia.” He also says that he was self-employed and frequent travel abroad was essential to the successful operation of his business. Although he operated through a company vehicle, he was responsible for and maintained or carried out its operations.
21 At the tribunal hearing, Mr Lin gave evidence about his various business interests and his activities overseas in the time leading up to his application for citizenship. He conceded that he had spent little time in Australia since he was granted permanent residency but spoke of his close links to Australia and his activities while overseas which were beneficial to Australia. Mr Lin is married and two of his children became Australian citizens in late 2006. His wife is a permanent resident of Australia but travels with him when he is on business.
11 The Tribunal then proceeded to describe the activities which the applicant contended justified the Minister’s exercising his discretion in favour of the applicant pursuant to sub-item 7(8)(4) of the Transitionals Act. The Tribunal considered these activities by reference to three separate periods: the calendar year 2004 ([24]–[27] of the Tribunal’s reasons), the calendar year 2005 ([28]–[32] of the Tribunal’s reasons) and the calendar years 2006 and 2007 (considered together) ([33] of the Tribunal’s reasons).
12 The Tribunal did not explain why it decided to deal with the applicant’s overseas activities by reference to those three periods. It seems that it chose to do so as a convenient way of marshalling the relevant facts. It appears that the precise dates of the applicant’s movements in and out of Australia were proven before the Tribunal. Whilst no particular pattern can be discerned from the applicant’s Department of Immigration and Citizenship records, many of his absences were of two to four months’ duration each. These absences were punctuated by short visits to Australia, generally of four days’ duration in each case.
13 At [6] of its reasons, the Tribunal found that:
(a) The applicant had entered Australia at least once every year in each of the years 2004, 2005, 2006 and 2007;
(b) His visits to Australia were all short, the longest stay being of 14 days’ duration; and
(c) The applicant was physically present in Australia on 29 June 2007, the date when his citizenship application was made.
14 At [26] the Tribunal found that from early 2004, in substance, the applicant was self-employed in the business conducted by the Australian company Australian Mingsheng International Group Pty Limited (Australian Mingsheng). This company exported wine, brandy and grape spirit, mostly to the PRC. The Tribunal also found that the applicant was involved in four or five other businesses at the same time as being involved with Australian Mingsheng. These businesses were based in the PRC.
15 Ultimately, in respect of the calendar year 2004 and the business of Australian Mingsheng, the Tribunal held as follows (at [27] of its reasons):
27. In view of his evidence, I am satisfied that Mr Lin is self-employed in the business of Australian Mingsheng International Group Pty Ltd and find he has been personally engaged in the conduct of this business since inception. I also accept that it has been necessary for Mr Lin to travel overseas in order to find a market for Australian products such as wine he exports and also Australian services. I also accept that Mr Lin developed a business relationship in 2007 which resulted in export of Australian sandstone. However, without evidence of further activity overseas involving this business which has been beneficial to Australia, Mr Lin’s activities for the periods he was absent from Australia do not satisfy the test that his activities overseas during 2004 have been beneficial to Australia.
16 In respect of the calendar year 2005, the Tribunal considered and dealt with the business activities of the applicant carried out in connection with or through the business known as Tara Holidays Australia and four or five other businesses. As I have already mentioned, these businesses were based in the PRC.
17 The Tribunal referred to some evidence that suggested that the business of Tara Holidays Australia brought small numbers of Chinese businessmen to Australia on several occasions. Insofar as the activities of the businesses in China itself were concerned, it was suggested that an Australian design organisation would earn fees from one of the development projects in China with which the applicant was involved and that other Australian businesses would benefit by supplying goods and services to the developments once constructed. In the course of dealing with these matters, the Tribunal said (at [31] and [32] of its reasons):
31 After describing some of his business contacts and activities in Australia and China, Mr Lin asked me to find he had been personally engaged in the conduct of his businesses. I consider that the tourism and export activities Mr Lin described were generated through his personal efforts. In the case of the various real estate and development projects, I have decided that it is more apt to credit these activities to the Chinese entities or companies such as Changsha Huiminshen Property Co Ltd which has entered into a contract with an Australian design company. As Mr Lin is not a party to this arrangement, even if I accept his having a role in the entity and in generating the arrangement, I find the potential benefit to Australia is attributable to the Chinese entity rather than attributable to Mr Lin personally. I find further reason to reach this conclusion as Mr Lin has not called anyone from the Australian design company or any of the Australian architects and persons involved to confirm his personal endeavours in recruiting them to the project.
32 Overall, in my opinion, Mr Lin’s activities for the periods he was absent from Australia in 2005 do not satisfy the test that his activities overseas were beneficial to Australia.
18 In respect of the calendar years 2006 and 2007, the Tribunal said (at [33] of its reasons):
33 Mr Lin’s activities during 2006 were similar to those during 2005 until his businesses expanded towards the end of 2006. The delegate considered that Mr Lin’s activities from late November 2006 were beneficial to Australia but was not satisfied as to previous activities because of lack of supporting evidence. I agree with this aspect of the reviewable decision. In the period since November 2006, Mr Lin has been responsible for significant exports detailed in the Minister’s statement of facts and contentions. I also accept that he has been involved in tourism activities and has been working towards developing more business links. He already has close links to Australia through his family and property ownership.
19 Whilst the Tribunal was prepared to accept that the applicant had been personally engaged in activities overseas which were beneficial to the interests of Australia since late 2006, the Tribunal held that the same could not be said for his activities during the five years, or during two of the five years, immediately preceding the date of his application (see [34] of the Tribunal’s reasons).
20 At [34]–[39] of its reasons, the Tribunal considered the question of whether the activities undertaken by the applicant in the period from 5 May 2004 to 29 June 2007 were activities beneficial to the interests of Australia. At [35] of its reasons, the Tribunal referred to the decision of Einfeld J in Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 and then said:
Mr Lin has tried to demonstrate a mainly commercial stream of benefit although he has personal links to Australia as well through his children. I acknowledge that Mr Lin has taken steps towards benefiting Australia but he has not demonstrated that he spent much of his time on activities that benefit Australia while he was overseas during the 5 years before his application.
21 The Tribunal then went on to consider the remaining activities in which the applicant was involved in the period 2005–2007 and, at [36]–[39] of its reasons, said the following:
36 The activities for Changsha Huiminshen Property Co Ltd, which resulted in a substantial involvement of Australians in a major project, are more in the nature of activities Mr Lin performed for this private entity in my view. He has not produced convincing evidence that he was personally responsible for or largely engaged in activity which brought about this result. Activities for an employer do not satisfy the requirements although an exception may be made in instances such as those for an entity wholly or substantially owned and controlled by an applicant: see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349. Exports are not intrinsically beneficial to Australia although I have accepted that Mr Lin’s significant exports in late 2006 onwards were beneficial: see Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447.
37 Even if the contract with the Australian design company were taken as an export of services, the contract is with an entity in which Mr Lin plays only a part. Mr Lin’s evidence about the time he spent on activities that involved his Australian business interests and development of business ties also did not create an impression that he spent the bulk of his time on these matters. He divides his time among his several business enterprises in China and Australia, and merely pressing his Australian contacts when talking to Chinese business interests is not sufficient to establish activities beneficial to Australia and which comprised a large proportion of his time. As I am not satisfied that Mr Lin engaged sufficiently in activities that were beneficial to Australia from mid 2002 for 2 years out of five or from mid 2005 for one year out of two, leading up to his application on 29 June 2007, Mr Lin has not met the residency requirements of subitem 7(8)(1) and (4) and cannot be granted citizenship on this basis.
38 I have also considered whether Mr Lin is likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved. This is a requirement of subsection 21(2)(g). I am not convinced by the evidence before me, on balance, that Mr Lin is likely to increase his stays in Australia than previously, despite two of his children being Australian citizens. Mr Lin, in my view, is still heavily engaged in his various businesses in China and the tenor of his evidence was that his presence would be required there in connection with property developments in which he is involved.
39 As Mr Lin has not spent the requisite time in Australia, being two years out of five and one year out of two preceding his application, and has not demonstrated that his activities during time spent overseas were beneficial to Australia, he cannot succeed in his present application. His absences overseas mean he does not satisfy the residence requirements of sections 21 and 22 of the new Act pursuant to subitems 7(2) and 7(8) of the Transitional Act. It may be that he will meet criteria eventually if he continues with and expands his activities which benefit Australia, however, as at the date of his application Mr Lin was not entitled to conferral of Australian citizenship.
22 The Tribunal then affirmed the delegate’s decision.
The Questions of Law and the Grounds of Appeal
23 At the commencement of the hearing before me, the applicant sought leave to amend his Notice of Appeal. There was no opposition by the respondent to the amendments sought. Accordingly, I granted leave to the applicant to amend his Notice of Appeal in the manner sought by him.
24 The Amended Notice of Appeal (omitting formal parts) is in the following terms:
2. THE QUESTIONS OF LAW raised on appeal are:
(1). Whether, on its true construction, the term, “activities ... beneficial to Australia” in Item 7(8)(4)(a) of Sch 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 may include activities undertaken through, and on behalf of a corporation.
(2). Whether, on its true construction, Item 7(8)(4)(a) of Sch 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 is concerned with the level or degree of engagement by the applicant for Australian Citizenship in activities that the Minister considers to be beneficial to Australia, or merely with the fact that the applicant has engaged in such activities.
(3). Whether, on its true construction, the alternative requirement in s 21(2)(g) of the Australian Citizenship Act 2007 that an applicant for Australian citizenship must, “... maintain a close and continuing association with Australia …”, may be met by having children who are Australian citizens and who are resident in Australia.
(4). Whether, on its true construction, s 21(2)(g) of the Australian Citizenship Act2007 requires the applicant for Australian Citizenship to maintain a personal presence in Australia.
3. ORDERS SOUGHT:
(1). That the decision of the Tribunal be set aside.
(2). That the appellant’s application to the Tribunal be remitted to it for decision according to law.
(3). Costs.
4. GROUNDS:
1. The Tribunal erred in its construction of the term, “activities ... beneficial to Australia” in Item 7(8)(4)(a) of Sch 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.
Particulars
(a) The Tribunal drew a false dichotomy between activities undertaken in 2005 and 2006 on behalf of a Chinese company on the one hand, and activities of benefit to Australia on the other.
(b) The Tribunal erred in its construction of that provision by incorporating consideration of the level or degree of engagement by the applicant for Australian Citizenship in activities that the Minister considers to be beneficial to Australia, whereas it should have limited its consideration under that provision to whether the applicant was so engaged.
2. The Tribunal failed to take into account a consideration relevant to s 21(2)(g) of the Australian Citizenship Act 2007.
Particulars
(a) That two of the appellant’s children are citizens of Australia and normally resident in Australia.
3. The Tribunal erroneously construed the words “maintain a close and continuing association with Australia …” in s 21(2)(g) of the Australian Citizenship Act 2007 by requiring the physical presence in Australia of the applicant for Australian Citizenship.
The Applicant’s Submissions
The First and Second Questions of Law and Ground 1
25 In respect of these questions, it was submitted on behalf of the applicant as follows:
(a) Upon the true interpretation of the relevant statutory provisions, the Minister has a discretion to treat a period or periods of time in which a person has not actually been resident in Australia as a period of residence for the purposes of s 21 and s 22 of the new Act;
(b) The discretion is at large but can only be exercised if both of the conditions set out in subitem (8)(4)(a) and (b) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act are satisfied. Those conditions are preconditions or gateways to the exercise of the discretion;
(c) It was common ground before the Tribunal that the requirements of subitem (8)(4)(b) of Item 7 were satisfied in the present case so that the only question for consideration in the present case was whether or not the requirements set out in subitem (8)(4)(a) of Item 7 were satisfied. The substance of those requirements is that the relevant person must have been:
… engaged in activities during that period that the Minister considers to be beneficial to Australia …
(d) Once both the preconditions set out in subitem (8)(4)(a) and (b) of Item 7 are satisfied, the Minister is called upon to consider whether he will exercise his discretion in favour of the applicant for citizenship. A relevant consideration in the Minister’s determination of that question would be the degree of engagement of the applicant in the activities referred to; and
(e) In the present case, the Tribunal conflated the two step process required by subitem (8)(4) of Item 7 into one step and thus committed an error of law.
26 In support of the ultimate contention made by the applicant in respect of this ground, the applicant made particular reference to [36] and [37] of the Tribunal’s reasons and submitted that, in those paragraphs, the Tribunal had constructed a false dichotomy between activities carried out by the applicant personally, on the one hand, and those carried out by him on behalf of one or other of the corporate entities with which he was involved, on the other hand. It was also submitted in support of this ground that the Tribunal should not have considered the level or degree of engagement by the appellant in the requisite activities when determining whether or not the requirements of subitem (8)(4)(a) and (b) of Item 7 were satisfied but should have limited its enquiry at that stage to the simple proposition of whether or not the applicant was in fact engaged in the requisite activities. The question of the extent to which the applicant was so engaged would only arise when the Minister came to consider the exercise of his discretion. Presumably, it is also submitted on behalf of the applicant that, if the correct approach had been taken, a different result would have ensued.
The Third and Fourth Questions of Law and Grounds 2 and 3
27 In the submissions made on behalf of the applicant, this issue was referred to as the association issue.
28 In support of these grounds, it was submitted on behalf of the applicant that:
(a) When properly interpreted, s 21(2)(g) of the new Act refers to three separate notions, namely:
· … likely to reside in Australia …
· … likely to continue to reside in Australia …
· … likely to maintain a close and continuing association with Australia …
The proposition required to be considered for the purpose of s 21(2)(g) is whether or not one or more of these outcomes are likely to be achieved if the citizenship application were to be approved.
(b) The third concept (the association limb) may encompass the concept of residence embodied in the first two limbs so that, to this extent, there may well be some overlap between the first two limbs, or either of them, and the third;
(c) The association limb does not necessarily require that the applicant be resident or be likely to reside or be likely to continue to reside in Australia and residence in the sense in which it is used in s 21(2)(g) is not an essential requirement of the concept of association for the purposes of the association limb; and
(d) In the present case, the Tribunal asked itself the wrong question by confining its consideration of the provisions of s 21(2)(g) to whether or not the applicant was likely to reside in Australia in the future and failed to consider other matters relevant to the question of association including the presence in Australia of two of the applicant’s five children and the ownership by the applicant of a residential property in Australia.
The Minister’s Submissions
The First and Second Questions of Law and Ground 1
30 Nor, so it was submitted, did the Tribunal construct the false dichotomy for which the applicant contended.
31 It was further submitted on behalf of the Minister that subitem (8)(4)(a) of Item 7 required that the activities which are said to be beneficial to Australia must involve personal exertions by the applicant (whether on his or her own account or through some other entity or vehicle such as a corporation) and that the nexus between the activities of the applicant which are relied upon in support of his or her citizenship application and the asserted benefit to Australia must be direct.
32 It was then submitted on behalf of the Minister that the Tribunal had correctly applied all of these principles in the present case.
33 Counsel for the Minister also submitted that, for the elements of subitem (8)(4)(a) of Item 7 to be satisfied, there needs to be some objective benefit to some public interest of Australia and that this means more than the private interests of the applicant (see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349; and Roberts 41 FCR 82).
The Third and Fourth Questions of Law and Grounds 2 and 3
34 Counsel for the Minister submitted that the Tribunal did address the correct question when considering s 21(2)(g) of the new Act. He submitted that the first sentence of [38] of the Tribunal’s reasons makes this clear. He went on to submit that the association limb did not arise in the present case or, alternatively, did not arise except by reference to the question of residence. Therefore, there was no occasion to consider the association issue by reference to any other fact or circumstance.
35 Mr Potts also submitted that:
Even if there was some misconstruction or misapplication of s 21(2)(g) (which is denied), it is ultimately irrelevant unless the appellant also succeeds on ground 1, because the earlier findings by the Tribunal were entirely dispositive of the applicant’s case. It did not need to embark upon any consideration of s 21(2)(g) to complete the review. Its findings in that regard were superfluous. Success on the second ground alone would not therefore undermine the Decision, nor entitle the applicant to relief.
Consideration
The Relevant Legislation
36 The old Act was in force in the period from 26 January 1949 to 1 July 2007. Thus, at the time when the applicant made his application to become an Australian citizen (viz on 29 June 2007), it was the old Act which governed that application. Section 13 of the old Act prescribed the various matters of which the Minister needed to be satisfied before exercising his discretion to grant citizenship.
37 Section 13(1)(e) of the old Act provided that:
13 Grant of Australian citizenship
(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
38 Section 13(4)(b)(i) was in the following terms:
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a) …
(b) subject to paragraph (a), the Minister may, in the Minister’s discretion:
(i) treat a period during which the applicant:
(A) was a permanent resident;
(B) was not present in Australia; and
(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;
39 Subparagraph (a) of s 13(4) is not presently relevant.
40 Section 5A of the old Act set out in some detail the circumstances in which certain non-citizens should be taken to be permanent residents for the purposes of the old Act. In respect of the period after 1 September 1994, a non-citizen was to be taken to be a permanent resident for the purposes of the old Act if the person was present in Australia and held a permanent visa (s 5A(1)(bb)(i) of the old Act). Permanent visa, for the purposes of the old Act, had the same meaning as in the Migration Act (see the definition of permanent visa in s 5 of the old Act).
41 Thus, as at 30 June 2007, under the old Act:
(a) The Minister had a discretion whether or not to grant a person a certificate of Australian citizenship once he or she was satisfied that certain conditions had been met;
(b) One of those conditions was that the applicant for citizenship be present in Australia as a permanent resident for the prescribed period; and
(c) The Minister had a further discretion to treat certain periods of absence from Australia as periods of time during which the applicant was present in Australia as a permanent resident for the purposes of the residence requirement described in subpar (b) above.
42 It will be noticed that s 13(1)(e) of the old Act required that the Minister consider and determine whether the citizenship applicant has been present in Australia as a permanent resident for a (single) period of not less than two years or, alternatively, for two or more periods of time which, when added together, amount to two years or more, during the requisite period of five years immediately preceding the date when the citizenship application was lodged with the Minister.
43 By cl 42 of Pt 2 of Sch 1 to the Transitionals Act, the old Act was repealed with effect from 1 July 2007. Section 3 of the Transitionals Act provides:
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
44 Thus, Pt 1 of Sch 3 to the Transitionals Act came into effect from 1 July 2007 “… according to its terms …”.
45 Subitems (2), (7) and (8) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act provide:
Old certificate by grant and stateless applications
(2) If a person’s application (the old application) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act.
Note: The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment.
….
Assessing new applications under the new Act
(7) In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application or the old declaration, as the case requires, was made under the old Act.
Note: The new application will be assessed under the provisions of the new Act. The effect of this subitem is that some of those provisions will be applied at the time the old application or the old declaration, as the case requires, was made under the old Act.
(8) In applying section 22 of the new Act to a new application covered by subitem (2), 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 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.
(2) Paragraph (1)(b) does not apply if the person:
(a) was born in Australia; or
(b) was an Australian citizen at any time before the person made the application.
(3) For the purposes of subsection (1), the Minister must not take into account any period during which the person has been:
(a) confined in a prison; or
(b) confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
(4) 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 engaged in activities during that period that the Minister considers to be beneficial to Australia; and
(b) the person was not present in Australia during that period but was a permanent resident during that period.
46 Sections 2A to 54 of the new Act commenced on 1 July 2007.
47 As at 1 July 2007, the Minister had not dealt with the applicant’s application for citizenship. Therefore, by reason of the operation of subitem (2) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act, on and from 1 July 2007, that application was taken to be an application to become an Australian citizen made under s 21 of the new Act. Further, by reason of the operation of subitem (7) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act, a reference in the new Act to the time the person made the application is taken to be a reference to 29 June 2007 for the purposes of the Minister’s consideration and determination of the present applicant’s citizenship application.
48 Sections 20 to 28 of the new Act comprise Subdiv B of Div 2 of that Act.
20 Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.
Note: Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
Note 1:Subsections (2) to (8) deal with eligibility.
Note 2:Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application:
(a) sat a test approved in a determination under section 23A; and
(b) successfully completed that test (worked out in accordance with that determination).
…
24 Minister’s decision
(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.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
50 Other subsections of s 21 and s 24 are not presently relevant. Sections 23, 25 and 28 are not presently relevant. Section 23A deals with the citizenship test. Sections 26 and 27 deal with the pledge of commitment.
51 Subdivision B of Div 2 of Pt 2 of the new Act was enacted in circumstances where broadly similar provisions were contained in the old Act. Section 24 of the new Act allows the Minister either to approve or refuse a citizenship application. However, the Minister can only approve such an application if the applicant is eligible to become an Australian citizen because the applicant has satisfied those eligibility criteria set out in s 21 of the new Act which are relevant to that particular applicant and if the applicant satisfies the Minister of his or her identity. In the present case, the applicant must satisfy the general eligibility criteria set out in s 21(2) and s 21(2A). In order to meet the residence requirement referred to in s 21(2)(c) of the new Act, the applicant must satisfy the residence requirement provided for in s 22 of the new Act.
52 Subitem (8) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act provides for the substitution of different subsections (viz subss (1) to (4) as set out in that subitem) for subss (1), (1A), (1B), (1C), (2), (4A) and (5A) in s 22 of the new Act insofar as the new Act applies to applications for citizenship made under s 13 of the old Act which had not been determined by 1 July 2007. The applicant’s application for citizenship is such an application. Therefore, when applying s 22 of the new Act to the applicant’s application for citizenship, I am to read s 22 of the new Act as not incorporating in that section subss (1), (1A), (1B), (1C), 2, (4A) and (5A), as enacted, but as including in that section subss (1) to (4) in the terms required by subitem (8) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act. I shall refer to s 22 of the new Act with the subitem (8) subsections as the transitional s 22.
53 Subsections (5), (6), (9), (10) and (11) of s 22 are not presently relevant. Subsections (5), (6) and (11) of s 22 are to be interpreted as directed by subitem (9) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act. There are no subss (7) and (8) in s 22.
54 Permanent resident, for the purposes of the new Act, is defined as having the meaning given to that expression by s 5 of the new Act (see s 3 of the new Act). Section 5 of the new Act provides:
5 Permanent resident
(1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a) the person is present in Australia at that time and holds a permanent visa at that time; or
(b) both:
(i) the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c) the person is covered by a determination in force under subsection (2) at that time.
(2) The Minister may, by legislative instrument, determine that:
(a) persons who hold a special category visa or a special purpose visa; or
(b) persons who have held a special category visa; or
(c) persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;
and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.
Permanent resident under the old Act
(3) If, under this Act, it is necessary to work out if a person was a permanent resident at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.
55 Permanent visa, for the purposes of the new Act, has the same meaning as in the Migration Act (see the definition of permanent visa in s 3 of the new Act). Under the Migration Act and therefore, for the purposes of the new Act, the visa granted to the applicant by the Minister on 19 April 2004 is a permanent visa (see s 5 and s 30(1) of the Migration Act).
57 Subitems (8)(1) and (8)(4) of Item 7 of Pt 1 of Sch 3 to the Transitionals Act are of critical importance in the present case.
The Correct Interpretation of the Transitional Section 22
59 The expression “… present in Australia as a permanent resident …” is found in subs (1) of the transitional s 22. It is the phrase deployed by the legislative draftsman as expressing the core attributes of the residence required for the purposes of s 21(2)(c) of the new Act. That requirement, in turn, is satisfied, in the ordinary case, when both of the criteria laid down in subpar (a) and subpar (b) of subs (1) of the transitional s 22 are met.
60 In my view, the phrase present in Australia as a permanent resident, when used in subs (1) of the transitional s 22, captures two ideas. First, there is a requirement that the person concerned be physically present within the borders of Australia. Second, the subsection requires that, for the whole of the period or periods of time in which that person is physically present in Australia, that person must be in Australia as a permanent resident. A person will have status as a permanent resident if that person falls within the definition of permanent resident found in s 5 of the new Act. Because subs (1) of the transitional s 22 proceeds upon the basis that the person concerned is physically present in Australia, the notion of permanent residence referred to in subs (1) of the transitional s 22 simply requires that the person hold a permanent visa for the whole of the relevant period or periods of time or is a person covered at the relevant time by a determination made by the Minister under s 5(2) of the new Act. Therefore, the phrase present in Australia as a permanent resident, when used in subs (1) of the transitional s 22, requires that the citizenship applicant be physically present in Australia throughout the relevant period or periods and that that person hold a permanent visa or be covered by a s 5(2) determination for the whole of that period or those periods. Periods of time when a citizenship applicant is physically present in Australia but does not hold a permanent visa would not count.
61 The word period appears twice in the first line of each of subpar (a) and subpar (b) of subs (1) of the transitional s 22. The use of that word in those subparagraphs contrasts with the phrase at a particular time which appears in s 5(1) of the new Act.
62 The word period ordinarily connotes an interval of time, a length of time, a portion of time or a span of time. It is often a reference to a fixed length of time. The word is also often used in respect of an activity or, as here, in respect of a state of affairs. When used in this latter sense, the activities or state of affairs conducted over the span of time may be required to be continuous.
63 The phrase at a particular time directs attention to a particular point in time rather than to a span of time.
64 Section 13(1)(e) of the old Act contained the words period (singular) and periods (plural). When the plural was used, the relevant periods were to be aggregated.
65 In my view, in subs (1) of the transitional s 22 the word period is used in its ordinary sense.
66 First, it is used to identify the outer limits of the span of time in respect of which the residence requirement is to be considered. So, in the present case, for the purposes of subpar (a) of subs (1) of the transitional s 22, that span of time is the time between 29 June 2005 and 29 June 2007 and, for the purposes of subpar (b) of subs (1) of the transitional s 22, that span of time is the time between 29 June 2002 and 29 June 2007.
67 Second, the word period serves to direct attention to that span of time or those spans of time during which the citizenship applicant satisfied the residence requirement (ie was present in Australia as a permanent resident). The concept total period, as used in subpar (a) and subpar (b) of subs (1) of the transitional s 22, means the span of time or the aggregates of all spans of time during which the applicant continuously satisfied the residence requirement.
69 In my view, then, what is contemplated by subpar (a) and subpar (b) of subs (1) of the transitional s 22 is a determination of how many days in each of the relevant periods (two years before the day the person made the application for subpar (a) and five years before the person made the application for subpar (b)) the citizenship applicant satisfied the residence requirement and then a further determination as to whether the number of days in the subpar (a) period was equal to or exceeded 365 (ie one year) and whether the number of days in the subpar (b) period was equal to or exceeded 730 (ie two years).
70 It is subs (1) of the transitional s 22 which lays down the core criteria for the residence requirement for the purposes of s 21(2)(c) which, as I have already mentioned (as to which see [49] to [51] above), is one of the subparagraphs which contain general eligibility criteria for Australian citizenship.
71 The phrase “… present in Australia as a permanent resident …” also appears in the introductory words of subs (4) of the transitional s 22. In my judgment, when used in subs (4), the phrase has the same meaning as it has when used in subs (1).
72 Subsection (4) empowers the Minister to treat a single period of time or two or more periods of time as a period or periods (as the case may be) in which the citizenship applicant was present in Australia as a permanent resident even though the applicant was not actually present in Australia at all during that period or periods. The effect of the Minister treating such a period or periods in this manner is to feed that period or periods of time into the calculations required to be carried out for the purposes of subs (1) of the transitional s 22.
73 The Minister may treat a single period or several periods in this fashion provided that all of the criteria set out in subs (4) of the transitional s 22 are satisfied.
74 In my view, the process required to be undertaken by subs (4) of the transitional s 22 is as follows:
(a) The citizenship applicant must identify one or more periods of time which he or she contends are apt for subs (4) treatment by the Minister;
(b) In respect of each such period of time identified in this way by the citizenship applicant, the citizenship applicant:
(i) May provide material and advance arguments as to why, during that period, the applicant was engaged in activities beneficial to Australia; and
(ii) Must establish that he or she was not present in Australia but nonetheless was a permanent resident during that period. Establishing that such a person was a permanent resident during the relevant period would necessitate that person bringing himself or herself within one or other of the definitions of permanent resident found in s 5(1)(b) or s 5(1)(c) of the new Act; and
(c) The Minister must then consider the contentions of the applicant in respect of each period of time said to qualify for subs (4) treatment and determine whether the requirements of both subpar (a) and subpar (b) of subs (4) of the transitional s 22 are satisfied. The criteria set out in subpar (a) are that:
(i) the applicant must have been engaged in activities;
(ii) during the period or periods of time which are sought by the applicant to be fed into the calculations required by subs (1) of the transitional s 22; and
(iii) those activities must be considered by the Minister to be beneficial to Australia.
Satisfaction of the criteria set out in subpar (b) of subs (4) of the transitional s 22 essentially involves the determination of matters of fact by reference to the definitions contained in s 5 of the new Act. These facts must be found to exist as facts during the relevant period or periods of time.
75 The exercise authorised by subs (4) of the transitional s 22 is designed to assist citizenship applicants to achieve Australian citizenship even though the residence requirement (comprising the need to meet the residence criteria required to be met by s 21(2)(c) of the new Act) has not, in fact, been satisfied by reference to subs (1) of the transitional s 22 alone. The way in which this is effected is that certain periods of non-residence are to be treated as periods of actual residence for the purposes of that requirement. The provisions of subs (4) of the transitional s 22 are intended to govern and direct the quantification of that time spent out of Australia which is to be counted as time spent in Australia for the purposes of subs (1) of the transitional s 22.
76 The starting point of the enquiry is to identify a period of time spent out of Australia and to determine in respect of that period of time whether the whole of that period or only part of that period, and if so, what precise part, is to count as time spent in Australia. The time which is to count as time spent in Australia is that time during which the citizenship applicant met each and every one of the conditions specified in subpar (a) and subpar (b) of subs (4) of the transitional s 22.
77 In my view, if all of the conditions set out in subpar (a) and subpar (b) of subs (4) of the transitional s 22 are satisfied, the Minister is obliged to treat the time out of Australia in respect of which those criteria are established as time in Australia as a permanent resident for the purposes of subs (1) of the transitional s 22. In my view, therefore, may, as it appears in the first line of subs (4) of the transitional s 22, is to be read as must.
78 The introductory words of subs (4) of the transitional s 22 (The Minister may treat …) amount to an instruction to the Minister to take into account in favour of the citizenship applicant those periods of non-residence during which the applicant satisfied the criteria set out in subs (4).
79 As Mason CJ said in Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited (1994) 182 CLR 51 at 64:
But, as the Court went on to point out in Ward v Williams, the question whether a public officer, to whom a power is given by facultative words, is bound to exercise that power upon any particular occasion, or in any particular manner, is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power (see Ward v Williams (1955) 92 CLR 496 at 505).
80 In the same case, Brennan J (at 84–85) and Dawson J (at 97–98) made statements to a similar effect. A number of the relevant authorities were also gathered together and discussed by Beazley J in Corlette v Mackenzie (1995) 62 FCR 584 at 589–593.
81 The Preamble to the new Act provides as follows:
Preamble
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
82 Australian citizenship is a privilege. However, the Parliament is to be taken as wanting to encourage as many persons who are relevantly connected to Australia to take up what is described in the Preamble as:
… full and formal membership of the community of the Commonwealth of Australia …
83 The thrust of both the old Act and the new Act is to be inclusive and to expand the numbers who embrace the common bond referred to in the Preamble.
84 These matters form part of the scope and purpose of the new Act and the context in which subs (4) of the transitional s 22 is to be construed.
85 In the present case, the Minister retains a discretion to refuse to approve a citizenship applicant becoming an Australian citizen despite the fact that that person meets all of the relevant eligibility criteria for becoming an Australian citizen under s 21(2) and s 21(2A) of the new Act. The new Act does not specifically circumscribe the exercise of that discretion and it is not necessary for me in the present case to examine what (if any) constraints are imposed upon the Minister should he be minded to refuse an application pursuant to s 24(2) of the new Act.
86 In addition, subs (4) of the transitional s 22 raises two matters for the Minister’s consideration: the first (that dealt with in subpar (a)) involves the Minister coming to a view or judgment about the activities of the applicant; and the second (that dealt with in subpar (b)) requires the Minister to examine and decide matters of fact without any exercise of subjective judgment. It is only when all of the criteria set out in both subpar (a) and subpar (b) of subs (4) of the transitional s 22 are satisfied that subs (4) is engaged. Once engaged, the period determined as covered by the provisions of subs (4) is then fed into subs (1) of the transitional s 22 which then is fed into the general eligibility criteria in s 21(2) and s 21(2A) of the new Act. In this way, the role which subs (4) plays in the citizenship process is that it leads to the satisfaction of one of the general eligibility criteria for citizenship laid down by s 21(2) and s 21(2A). Subsection (4) of the transitional s 22 is intended to relax, in particular cases, the strict requirements of subs (1) of the same section. The criteria laid down in subs (1) comprise questions of fact. In my view, there is no reason to give to the Minister a residual discretion not to treat periods of non-residence as periods of residence for the purposes of s 22(1) once the criteria in subs (4) are satisfied. Activities which are beneficial to Australia are intended to serve as a proxy for physical presence.
87 For these reasons, it seems to me that, bearing in mind that the Minister retains an overall discretion to approve or refuse any particular citizenship application once the eligibility criteria are satisfied and bearing in mind that the residence requirement with which subs (1) and subs (4) of the transitional s 22 are concerned is essentially designed to feed into the eligibility criteria laid down in s 21(2)(c), the Minister is bound to exercise the power afforded to him by the introductory words of subs (4) of the transitional s 22 once the criteria laid down in subpar (a) and subpar (b) of that subsection are satisfied.
88 In the present case, it is common ground that throughout the period from 2 May 2004 to 29 June 2007, the applicant was a permanent resident within the meaning of that expression as used in the new Act. Further, it is clear that, for much of that period, the applicant was not present in Australia. The precise periods of time during which the applicant was not present in Australia can be identified from the movement records maintained by the Department of Immigration and Citizenship in respect of the applicant.
89 The applicant and the Minister part company in respect of the following matters or issues, namely:
(a) What is meant by the expression engaged in activities when used in subpar (a) of subs (4);
(b) What is meant by the clause that the Minister considers to be beneficial to Australia when used in subpar (a) of subs (4); and
(c) Did the Tribunal apply incorrect interpretations of the expression referred to in (a) and of the clause referred to in (b).
90 In my judgment, subs (4) is intended to relax the strict requirements of subs (1). This is consistent with the inclusive nature of the scope and purpose of the new Act. In approaching the interpretation of subpar (a) of subs (4), this circumstance must be borne in mind.
91 I think that the words that period when used in both subpar (a) and subpar (b) refer to the period or periods identified and claimed by the citizenship applicant as apt for subs (4) treatment and also refer to the same period as is captured by the words a period in the first line of the introductory words of subs (4).
93 Further, the activities must be considered by the Minister to be beneficial to Australia. The Minister must come to that view honestly and rationally. There must be some basis for the Minister coming to that view.
94 The phrase beneficial to Australia was explained by Einfeld J in Roberts (1993) 41 FCR 82 at 87 as follows:
It seems to me that the term “activities beneficial to the interests of Australia” means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia.
95 I agree with his Honour’s observations. However, I wish to add some observations of my own. The advantage or benefit to Australia contemplated by the language of subs (4)(a) must be real and not merely potential or hypothetical. That advantage or benefit must be identifiable and not de minimis.
96 It must also be remembered that what is required by that subsection is that the Minister consider that the activities are beneficial to Australia. This imposes a requirement that the Minister act both honestly and rationally in forming the view which he or she is required to form. In my view, it is perfectly appropriate for the Minister to have regard to the ACI in considering whether or not the relevant activities are beneficial to Australia.
97 I will now turn to the questions of law raised in the appeal and the application of the above principles to the facts and circumstances of the present case.
The Present Case and the Questions of Law Raised in the Appeal
98 The first question of law, as amplified by particular (a) to Ground 1, does not, in my view, arise in the present case.
99 I do not think that the Tribunal proceeded upon the basis that activities undertaken through and on behalf of a corporation could never qualify as activities engaged in by the citizenship applicant for the purpose of subs (4)(a) of the transitional s 22.
100 In its reasons, the Tribunal quoted extensively from the ACI. The ACI does not specifically refer to a dichotomy of the kind about which the applicant complains in this appeal and the general tenor of its language suggests that individuals may take the benefit of activities carried out by them (ie through their personal efforts) even though those activities were carried out during the course of their employment by a corporation. Further, at [26] of its reasons, the Tribunal expressly stated that it would regard the applicant’s efforts in the business of Australian Mingsheng as activities which might count as activities of the relevant kind for the purposes of subpar (a) of subs (4) of the transitional s 22, should the remaining criteria prescribed by subs (4) be satisfied.
101 At [27] of its reasons, the Tribunal held that the relevant activities in 2004 had not been established as being beneficial to Australia with the consequence that the applicant could not take the benefit of them personally for the purposes of subs (4) of the transitional s 22. The rejection of the applicant’s claims in this regard was not on the basis that the activities were for the benefit of the corporation (Australian Mingsheng) but rather on the basis that they had not been proven to be beneficial to Australia.
102 In respect of the later periods of time with which the Tribunal expressly dealt, the reasoning of the Tribunal manifested a similar approach.
103 In my view, no dichotomy of the kind alleged was constructed by the Tribunal.
104 However, as will be apparent from what I have said at [92] above, I am of the opinion that activities may be engaged in by the citizenship applicant even though they are done through and on behalf of a corporation.
105 The second question of law, as amplified by particular (b) to Ground 1, raises for consideration the question of whether or not subs (4) of the transitional s 22 requires the two step process urged upon the Court by the applicant or simply involves assessments of the kind discussed and explained at [65] to [78] above. For the reasons discussed in those paragraphs, I am of the view that the two step process for which the applicant contends is not required by subs (4) of the transitional s 22. There is, in my view, a very direct and close connection between the period or total period which is to be the subject of subs (4) treatment and each of the period or periods referred to in subpar (a) and subpar (b) of subs (4). The whole exercise is directed to a quantification of intervals or spans of time for the purpose of bringing them to account in favour of the citizenship applicant for the purposes of subs (1) of the transitional s 22 and thus for the purposes of the eligibility criteria set out in s 21(2)(c). Subsection (4) does not involve a preliminary run over the target in order to get the citizenship applicant through some imaginary gateway and then an exercise of discretion which is at large although perhaps informed by the nature of the criteria set out in subpar (a) and subpar (b) of subs (4).
106 Subsection (4) requires a precise focus by the Minister on the particular period or periods claimed by the citizenship applicant as apt for subs (4) treatment and then a consideration by the Minister as to whether or not the criteria in subpar (a) and subpar (b) of subs (4) are met in respect of that period or periods. Once those criteria are met in respect of that period or periods, the Minister is required to treat that period or periods as having the same qualities as those periods where the applicant was actually present in Australia with the necessary status as a permanent resident and thus is required to treat the citizenship applicant as having satisfied the residence requirement prescribed by subs (1) of the transitional s 22 for the purposes of s 21(2)(c).
107 I would answer Question 2: Subitem (8)(4)(a) of Pt 1 of Sch 3 to the Transitionals Act is concerned with the degree of engagement by the citizenship applicant in activities that the Minister considers to be beneficial to Australia and is not solely concerned with the fact that the applicant has engaged in such activities to some extent.
108 In my judgment, the submissions made on behalf of the applicant in relation to the third and fourth questions of law are correct. It is true, as Mr Potts submitted on behalf of the Minister, that the Tribunal did recite correctly the substance of the criteria laid down in s 21(2)(g) of the new Act (see [38] of the Tribunal’s reasons). But, in my view, the Tribunal did not go on to address the question of whether or not the applicant was likely to maintain a close and continuing association with Australia if his application for citizenship were to be approved. If, as Mr Potts submitted, the Tribunal confined itself to considering the question of residence as the only matter that could conceivably go to its assessment of the association limb contained in s 21(2)(g), then it failed to take into account a relevant consideration, namely, that two of the applicant’s children are citizens of Australia and are normally resident in Australia.
109 Further, it probably also failed to pay due regard to the fact that the applicant owned a residential property in Australia and had done so since 2004.
110 In my judgment, the association limb is directed to the future upon the basis that the hypothesis contained in the subsection (viz that the citizenship application is approved) comes to pass. Indeed, the same may be said of the first and second limbs of s 21(2)(g). For this reason, I do not think that the close association contemplated by s 21(2)(g) needs to be in existence at the time that the relevant citizenship application is made. Rather, the matter is to be tested upon the basis that the hypothesis comes to pass so that the word maintain, when used in the third limb of s 21(2)(g), is meant to be read as establish and keep.
111 Although in s 21(2)(g) there may be some overlap between the first limb and the association limb and the second limb and the association limb, I am of the view that the association limb does not require that the applicant for citizenship maintain a personal presence in Australia. Indeed, in my view, the association limb is intended to cover at least the circumstance that the citizenship applicant is not likely to reside and not likely to continue to reside in Australia but is nonetheless likely to maintain a close and continuing association with Australia if the citizenship application were to be approved. That limb may also cover other circumstances.
112 For these reasons, I would answer Question 3: Possibly. This is a matter for the Minister. I would answer Question 4: No.
Conclusions
113 The applicant has succeeded in respect of Questions 3 and 4 but failed in respect of Questions 1 and 2. Counsel for the Minister submitted that I should not set aside or vary the Tribunal’s decision and remit the matter to the Tribunal for further consideration unless the applicant is successful in respect of Questions 1 and 2. He further submitted that success in respect of Questions 3 and 4 only would not justify setting aside the Tribunal’s decision. Counsel for the applicant accepted the correctness of these submissions.
114 In the present case, the Tribunal did not deal with the applicant’s citizenship application strictly in the way which I consider the relevant statutory provisions required that application to be dealt with. Instead of focussing attention on particular periods of time in the manner that I consider the subsection requires, the Tribunal arbitrarily selected periods of one or two calendar years and then weighed the applicant’s claims for subs (4) treatment in a general way by reference to each of those periods. The Tribunal was not satisfied that the criteria set out in subpar (a) of subs (4) of the transitional s 22 were met in the present case in any of the periods with which it dealt except for the period from November 2006 to 29 June 2007, a period of about seven months. In the case of the calendar year 2004, the Tribunal took the view that the applicant had failed to establish that the Minister ought to have considered the applicant’s activities as relevantly beneficial to Australia. In respect of the calendar year 2005, the Tribunal was not persuaded that there was a sufficient nexus between the applicant himself and the relevant activities nor was the Tribunal satisfied that those activities were beneficial to Australia. A similar position was taken in respect of the period 2006 and 2007 (with the exception of the period commencing from late November 2006).
115 The Court has to adopt a practical approach when considering whether or not relief should be granted as a result of its determination of questions of law pursuant to s 44 of the AAT Act. In the present case, the approach taken by the Tribunal in grouping together shorter periods of time into calendar years or, as was the case in 2006 and 2007, into an 18 month period, did not distort or place a different complexion upon those matters which were advanced by the applicant as supporting his subs (4) claims. In my view, had the approach which I have held is the correct approach strictly been taken in the present case the ultimate conclusions reached by the Tribunal in respect of the applicant’s subs (4) claims would not have been any different. Further, the only questions of law raised by the applicant are those which I have extracted at [24] above. The applicant did not raise any question or issue concerning the way in which the Tribunal approached the delineation of the periods which it considered might receive subs (4) treatment. To send the matter back to the Tribunal in those circumstances would be futile. The Court will not take that course if to do so would be futile (see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560–562; and Commissioner of Taxation v Eskandari (2004) 134 FCR 569 at [50]–[54) (pp 583–584).
116 The applicant has failed to persuade me that Question 1 arises at all in the present case and has failed altogether in respect of Question 2. These are the two most important questions raised by the applicant in the appeal.
117 In addition, were I to set aside the Tribunal’s decision and remit the matter to the Tribunal for further consideration, the Tribunal will not be in a position finally to dispose of the applicant’s application for citizenship. This is because the Minister has not yet addressed all of the eligibility criteria which the present applicant is required to meet by s 21(2) and s 21(2A) of the new Act (see [56] above).
118 For these reasons, I do not propose to set aside or vary the Tribunal’s decision.
119 The decision of the Tribunal is affirmed.
120 As the Minister has substantially succeeded in his opposition to the present application, I think that he is entitled to his costs. Accordingly, I propose to make an order for costs in favour of the Minister.
| I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. |
Associate:
Dated: 14 May 2009
| Counsel for the Applicant: | Mr L Karp |
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| Solicitor for the Applicant: | Christopher Levingston & Associates |
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| Counsel for the First Respondent: | Mr JAC Potts |
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| Solicitor for the First Respondent: | DLA Phillips Fox |
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| Counsel for the Second Respondent: | The Second Respondent submitted |
| Date of Hearing: | 28 April 2009 |
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| Date of Judgment: | 14 May 2009 |
