REASONS FOR JUDGMENT

1                                             The applicant (Ms Govekar) is a citizen of India who currently resides in India.  She wants to become an Australian citizen.  She has applied to the Court for an extension of time within which to file a Notice of Appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 28 April 2010 (Govekar v Minister for Immigration and Citizenship [2010] AATA 301) (the Tribunal’s decision).  The Tribunal affirmed a decision of a delegate (the delegate) of the Minister for Immigration and Citizenship (the Minister) in which the delegate refused an application made by Ms Govekar to become an Australian citizen.  Ms Govekar’s citizenship application was made on 1 April 2009 and refused by the delegate on 7 August 2009.  Any Notice of Appeal from the Tribunal’s decision was required to be filed by no later than 26 May 2010.  Ms Govekar filed the present Application on 30 June 2010.  Therefore, the delay involved is a little over one month.

The Relevant Facts

2                                             Ms Govekar arrived in Australia on 18 May 2003.  She entered Australia holding a Class BQ Subclass 138 Skilled Australian Sponsored visa.  This visa was a permanent visa for the purposes of the Migration Act 1958 (Cth) and also for the purposes of the Australian Citizenship Act 2007 (Cth) (the 2007 Act).  The sponsor for that visa was her older brother, Rusi Sam Govekar.  At the time he sponsored Ms Govekar, Rusi Govekar was an Australian citizen living in Perth with his immediate family. 

3                                             Ms Govekar’s visa was granted on 21 November 2002 and was subject to a condition that first entry to Australia be made by no later than 20 June 2003.  It was expressed to expire on 21 November 2007.

4                                             In the letter of notification sent by the Department of Immigration and Multicultural and Indigenous Affairs (the Department), the following was said:

Leaving and returning to Australia

If after 21 November 2007 you want to travel outside of Australia and you are not an Australian citizen you will need to have a current resident return visa in your passport.

It is your responsibility to obtain a resident return visa after your current visa ceases.  You must meet specific criteria for grant of a resident return visa.  The criteria are designed to ensure that only permanent residents who have shown a genuine commitment to Australia by either residing in Australia or otherwise making a sound contribution to Australia may be eligible for a resident return visa.

Australian Citizenship

A person is usually eligible for Australian citizenship after he or she has been in Australia as a permanent resident for a total of two years in the five years immediately before the date that they apply, including 12 months in the two years before applying.  Further information about Australian citizenship can be obtained after you arrive in Australia from any office of the Department of Immigration and Multicultural Affairs or from the Citizenship Telephone Enquiry Line on 131 880 (from anywhere in Australia for the cost of a local call). 

5                                             Ms Govekar left Australia on 8 June 2003 and has not thereafter re-entered the migration zone.  She has, therefore, spent only 21 days in Australia after obtaining her skilled migrant visa.

6                                             On 12 October 2007, whilst in India, Ms Govekar applied for a Return (Residence) Class BB Subclass 155 visa (Resident Return visa).  A delegate of the Minister refused her application for that visa on 21 November 2007. 

7                                             Ms Govekar and her brother sought merits review of that decision in the Migration Review Tribunal.  On 10 November 2008, after conducting that review, the Migration Review Tribunal remitted Ms Govekar’s application for a Resident Return visa to the Minister for reconsideration in light of its reasons for decision.  

8                                             On 26 November 2008, the Department granted a Resident Return visa to Ms Govekar.  That visa is valid for travel to Australia until 26 November 2013.

9                                             In the reasons which it gave for remitting the matter to the Department, the Migration Review Tribunal addressed the criteria set out in cl 155.211 and cl 155.212 of the Migration Regulations.  Having decided that Ms Govekar did not meet the criteria laid down in cl 155.212(2) of those Regulations, the Tribunal went on to consider the criteria specified in cl 155.212(3) of those Regulations.  The Tribunal referred to evidence provided to it by Rusi Govekar to the effect that Ms Govekar had substantial ties to Australia that were beneficial to Australia.  The Tribunal also mentioned the fact that Ms Govekar had substantial personal ties to Australia.  The critical part of cl 155.212(3) which was considered by the Migration Review Tribunal was “… the applicant has substantial business, cultural, employment or personal ties with Australia …”.  At [25]–[28] of its Reasons, the Migration Review Tribunal said:

25.       The visa applicant’s family member has indicated that she has strong family ties of benefit to Australia.  These ties correspond with the policy examples above in that the applicant has her close family members who are citizens of or reside in Australia as permanent residents.  The review applicant also informs the Tribunal in their submission that his sister has work skills and experience of benefit to Australia as well.

26.               The Tribunal, therefore, finds that the visa applicant now also satisfies clause 155.212(3) of Schedule 2 of the Regulations.

27.               As there is no evidence that the visa applicant is in breach of criterion 5001 the visa applicant also meets clause 155.221 at time of decision.

CONCLUSION

28.       For the reasons given above the Tribunal finds the visa applicant does now satisfy the requirements for the visa the subject of this review.

The Decision of the Delegate

10                                          As mentioned at [1] above, Ms Govekar lodged an application for Australian citizenship by conferral on 1 April 2009.  A delegate of the Minister refused to approve Ms Govekar becoming an Australian citizen.  The delegate decided that Ms Govekar did not meet the residence requirement specified in s 21(2)(c) of the 2007 Act as reworded by subitem 5B(2) in Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Transitionals Act).  The delegate also concluded that none of the discretions potentially available under s 22 of the 2007 Act were engaged in the circumstances of Ms Govekar’s case.

The Tribunal’s Decision

11                                          Ms Govekar applied to the Tribunal for merits review of the delegate’s decision.  Before the Tribunal, Ms Govekar conceded that she did not meet the residence requirement specified in subitem 5B(2).  She contended, however, that the discretion made available to the Minister by s 22(11) of the 2007 Act was enlivened in the circumstances of her case and should have been exercised in her favour in the circumstances of her case.  She did not argue that she was entitled to the benefit of any of the other discretions found in s 22 of the 2007 Act.  Thus, before the Tribunal, the critical matter was whether the discretion specified in s 22(11) of the 2007 Act was engaged in the circumstances of Ms Govekar’s case.

12                                          The Tribunal held that Ms Govekar:

(a)                Did not satisfy the general residence requirement specified in subitem 5B(2);

(b)               Could not bring herself within the terms of s 22(11) of the 2007 Act; and

(c)                Was not entitled to have the Minister consider exercising the discretion specified in s 22(11) of the 2007 Act.

13                                          The Tribunal concluded that s 22(11) of the 2007 Act was not engaged because:

(a)                Ms Govekar’s Resident Return visa had not been granted by the Minister “… because she was in an interdependent relationship with an Australian citizen …” viz her brother and his wife and their family; and

(b)               In any event, Ms Govekar was not in an interdependent relationship within the meaning of s 22(11) of the 2007 Act at the time she made her citizenship application on 1 April 2009.

Extension of Time (Relevant Principles)

14                                          The source of Ms Govekar’s entitlement to appeal from the Tribunal’s decision is s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).  That section is in the following terms:

44        Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)        A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

15                                          Section 44(2A) of the AAT Act provides that an appeal pursuant to s 44(1) must be instituted within 28 days of the date when the record of the Tribunal’s decision is given to the putative appellant or:

… within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows.

16                                          Order 53 r 7 of the Federal Court Rules regulates applications for extensions of time made pursuant to s 44(2A) of the AAT Act.  That rule is in the following terms: 

7          Extension of time

(1)        Application may be made to the Court or a Judge for an extension of the time specified in subsection 44 (2A) of the Administrative Appeals Tribunal Act 1975 for the filing or serving of a notice of appeal either before or after the expiration of the specified time.

(2)        Such application shall be made in or substantially in the form numbered 55B in Schedule 1.

(3)        An application shall be accompanied by an affidavit showing:

(a)        the nature of the case;

(b)        the questions involved; and

(c)        the reason why an extension of time should be given.

17                                          In Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [17], I said:

17.       In essence, the Court requires a satisfactory explanation for the delay and usually considers other factors such as the applicant’s actions in contesting the decision otherwise by appeal, prejudice to the respondent and the merits of the application.

18                                          The Minister quite properly conceded before me that the delay in the present case was not inordinate and had been satisfactorily explained by Ms Govekar.  The Minister also quite properly conceded that the delay of just over one month had not caused any prejudice to him.  Ms Govekar did not delay commencing her appeal because she was pursuing other avenues of redress. 

19                                          Nonetheless, the Minister opposed the extension of time sought by Ms Govekar.  The Minister contended that none of the grounds of appeal proposed to be relied upon by Ms Govekar had any prospect of succeeding. 

20                                          For the above reasons, the only factor which I need to consider for the purposes of the present Application is the merits of the proposed grounds of appeal.  I will approach the present Application upon the basis that all other relevant factors operate in favour of an order granting the extension of time sought by Ms Govekar. 

Consideration

21                                          On 1 July 2007, the Australian Citizenship Act 1948 (Cth) was repealed by the Transitionals Act.  The 2007 Act came into force on the same day.  As Ms Govekar was a permanent resident of Australia for the purposes of the 2007 Act immediately before the commencement of the 2007 Act on 1 July 2007 and as she had lodged her citizenship application before 1 July 2010, in order to qualify for citizenship, Ms Govekar needed to satisfy the residence requirement set out in subitem 5B(2).  

22                                          Item 5B is in the following terms:

5B       Citizenship by conferral—persons who are permanent residents at commencement

(1)        This item applies if:

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

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

(2)        In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

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

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

(b)        a total period of at least 2 years in the period of 5 years before that day.

(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.

(3)        In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(5), (6) and (11) of the new Act have effect as if the reference in those subsections to “paragraph (1)(c)” were a reference to “subsection (1)” (as applied by subitem (2) of this item).

23                                          Subsections (1) and (2) of s 21 of the 2007 Act provide:

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 general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), 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.

24                                          Section 22(11) is in the following terms: 

Ministerial discretion—person in an interdependent relationship

(11)      If, at the time the person made the application, the person:

(a)        holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and

(b)        is in that interdependent relationship;

then, 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:

(c)        the person held that visa during that period and the person was in that interdependent relationship during that period; and

(d)        the person was not present in Australia during that period; and

(e)        the person was a permanent resident during that period; and

(f)        the Minister is satisfied that the person had a close and continuing association with Australia during that period.

25                                          Thus, when regard is had to s 22(1) of the 2007 Act (as reworded by Item 5B in Schedule 3 to the Transitionals Act) it is clear that Ms Govekar did not satisfy the general residence requirement laid down in s 21(2)(c) of the 2007 Act because she had not spent sufficient time in Australia in the relevant periods.  She was thus driven to rely upon the discretion afforded to the Minister by s 22(11) of the 2007 Act.  No other discretion was or could have been relied upon.  She could only invoke the discretion specified in s 22(11) if she satisfied both of the threshold requirements specified in subpars (a) and (b) of s 22(11). 

26                                          The Tribunal held that she did not satisfy either of those prerequisites. 

27                                          Ms Govekar contended that the Tribunal decided her review on the basis of an incorrect understanding of the law.  She submitted that the Tribunal held that, for the purposes of s 22(11) of the 2007 Act, the expression interdependent relationship means a spouse-like relationship and that this was an unduly narrow and incorrect interpretation of that expression. 

28                                          The critical part of the Tribunal’s reasoning is found at [13]–[18] of its Reasons (especially at [17] and [18]) where the Tribunal said:

13        Ms Govekar contends that her permanent visa was granted on the basis of her interdependent relationship with her brother. She contends that the discretion in s 22(11) is therefore enlivened and should be exercised in her favour. I cannot agree with her.

14        Ms Govekar’s application for a permanent visa was made under the Migration Act 1958. As the MRT decision makes clear, Ms Govekar was granted the permanent visa because firstly, she satisfied the criterion in clause 155.211 of the Migration Regulations 1994 that she be a former permanent resident. Secondly, she satisfied the requirement that she not have been outside Australia for a continuous period of more than five years.

15        Subclause 155.212(3) sets out a number of additional criteria, at least one of which Ms Govekar had to satisfy to be granted the permanent visa. The MRT found at [25] that her “strong family ties of benefit to Australia” meant that she satisfied subclause 155.212(3) which requires “substantial business, cultural, employment or personal ties which are of benefit to Australia”.

16        Nothing in the MRT’s decision discloses any reference to an “interdependent relationship”. As that phrase does not appear in the applicable regulations, that is not surprising.

17        Interdependent relationship is not defined in the Citizenship Act. It was previously defined by reference to reg. 1.09A in the Migration Regulations 1994. That regulation is no longer in force since the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 which came into effect on 15 March 2009. It is clear, however, that “interdependent” in reg. 1.09A meant a spouse-like relationship. Persons within a “prohibited degree of relationship” were specifically excluded from the meaning of interdependent relationship. For the purposes of reg. 1.09A, persons were in a prohibited degree of relationship if they were brother and sister (whether or not they had both parents in common).

18        The fact that reg. 1.09A is no longer in force does not mean that “interdependent” in s 22(11) can now have a meaning squarely at odds with the earlier definition. More importantly, even if it could be understood to include formerly precluded relationships, it was not the basis for the grant of Ms Govekar’s permanent visa.

29                                          Ms Govekar submitted that the question of law which she would raise on appeal if permitted to do so is:  What is the correct interpretation of the expression interdependent relationship in s 22(11) of the 2007 Act and, in particular, is that expression confined to spouse-like relationships with the consequence that the relationship of brother and sister cannot, as a matter of law, fall within the correct interpretation of that expression?

30                                          In her Written Submissions, Ms Govekar referred to the Assistant Treasurer’s Press Release which was promulgated in March 2009 at the time that the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 came into effect.  She submitted that that Press Release suggested that the concept of interdependency was not confined to a spouse-like relationship.  She also referred to other Commonwealth legislation in order to demonstrate that the expression, interdependent relationship, as used in s 22(11) of the 2007 Act, is not confined to a spouse-like relationship.  She referred to similar expressions (such as domestic relationship) which appear in State legislation and which include close personal relationships which are not confined to spouse-like relationships and which might include relationships between family members. 

31                                          Ms Govekar argued that, when due regard is had to the correct interpretation of the expression interdependent relationship in s 22(11) of the 2007 Act, the Tribunal should have concluded that she was in such a relationship vis-a-vis her brother and his immediate family as she was a member of a family unit comprising those persons and herself. 

32                                          There are two threshold requirements specified in s 22(11) of the 2007 Act.  The first of these is the requirement that the permanent visa held at the time that the citizenship applicant applies for citizenship must have been granted because the person was in an interdependent relationship with an Australian citizen (my emphasis).  The fact that the citizenship applicant was in such a relationship at the relevant time must have been the reason or, at the very least, one of the reasons that the Minister granted the relevant permanent visa.

33                                          At [9] above, I have extracted that part of the Migration Review Tribunal’s decision which led to its remitting Ms Govekar’s application for a Resident Return visa to the Minister for decision in accordance with the reasons of the Tribunal.  It is quite clear that in its Reasons, the Tribunal focussed on cl 155.211 and cl 155.212 of the Migration Regulations, as it was obliged to do.  Those clauses make no mention of the concept of an interdependent relationship and do not include as part of the relevant criteria any notion of interdependency or interdependent relationship.  It is equally clear, it seems to me, that the Migration Review Tribunal did not, in fact, base any part of its decision upon the existence of the alleged interdependent relationship which Ms Govekar says she had with her brother. 

34                                          The Minister did not explain his reasons for granting a Resident Return visa to Ms Govekar.  However, he was obliged to reconsider her application in accordance with the reasons for decision given by the Migration Review Tribunal and it is those reasons which illuminate the basis upon which the Minister ultimately acted.  The notion that Ms Govekar was in an interdependent relationship with her brother and his family was not the reason or even one of several reasons for the Minister’s decision to grant a Resident Return visa to her.

35                                          Further, a fair reading of the Administrative Appeal Tribunal’s citizenship decision demonstrates that the essential basis for that decision was that Ms Govekar had failed to prove that she had secured her permanent Resident Return visa because she was in an interdependent relationship with her brother and his family.  The observations made by the Tribunal as to the correct interpretation of the expression interdependent relationship at [17] and [18] of the Tribunal’s Reasons were secondary considerations in the decision made by the Tribunal.

36                                          The Tribunal was plainly correct when it decided that the alleged interdependent relationship between Ms Govekar and her brother and his family was not the basis or even a basis for the grant of Ms Govekar’s permanent Resident Return visa.  In any event, that decision was a decision as to a matter of fact.   It was plainly correct.  It being a decision on a matter of fact, it is not susceptible to review under s 44(1) of the AAT Act.

37                                          The contentions which Ms Govekar has raised in support of the question of law which I have formulated at [29] above are not without substance.  The arguments that would be advanced in support of the Tribunal’s reasoning directed to this question of statutory interpretation also have substance.  Were Ms Govekar able to negotiate the barrier placed in the way of her case by subpar (a) of s 22(11) of the 2007 Act, the question of law sought to be raised by her might well have justified the grant of an extension of time.  However, she is unable to satisfy the requirements of subpar (a) of s 22(11) of the 2007 Act.  For this reason, this is not an appropriate case for dealing with the question of law sought to be raised by Ms Govekar. 

38                                          For all of the above reasons, Ms Govekar has no prospect of successfully appealing the Tribunal’s decision.  Therefore, when regard is had to the merits of the appeal which she intends to bring, an extension of time is not justified.  Her application will therefore be refused with costs. 

Associate:

Dated:         12 October 2010