FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration and Citizenship [2012] FCA 201

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        This is an appeal by the applicant from a decision of the Administrative Appeals Tribunal (AAT) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The AAT affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse the applicant’s application for citizenship, made under the Australian Citizenship Act 2007 (Cth) (the Act).

2        The applicant, who is aged under 18 years and is represented by her father as litigation representative, contends that the Minister’s delegate and the AAT misinterpreted s 22(6) of the Act by concluding that it provided a discretion available only for applicants for citizenship aged 18 years and over. Whether this is so or not involves a question of law which conditions the existence of this Court’s jurisdiction under s 44(1) of the AAT Act. Section 44(1) of the AAT Act provides that “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”.

RELEVANT LEGISLATION

3        The Act provides that persons may become Australian citizens by either automatic acquisition or by making an application. Citizenship by application is divided into three categories: citizenship by descent, citizenship for particular adopted persons, and citizenship by conferral. Citizenship by conferral is the only category relevant to the applicant. Section 19G provides a simplified outline of when citizenship may be granted by conferral:

You may be eligible to become an Australian citizen under this Subdivision in 7 situations:

•    you satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or

•    you have a permanent or enduring physical or mental incapacity: see subsection 21(3); or

•    you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or

•    you are aged under 18: see subsection 21(5); or

•    you were born to a former Australian citizen: see subsection 21(6); or

•    you were born in Papua: see subsection 21(7); or

•    you are a stateless person: see subsection 21(8).

4        Section 21(2) of the Act provides that a person is eligible to apply for citizenship by conferral where 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.

5        The general residence requirement in s 21(2)(c) refers to s 22. Section 22 relevantly provides:

(1)    Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a)    the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)    the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

(c)    the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

6        As noted in s 22(1), the requirements of the section are “subject to this section”. Section 22(6) forms part of the section. Section 22(1) thus operates subject to s 22(6). Section 22(6), in terms, defines the field of its operation as “for the purposes of paragraph 1(c)) (that is, s 22(6) operates for the purposes of s 22(1)(c) and not otherwise). Section 22(6) is in these terms:

(6)    For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)    the person was present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and

(b)    the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

7        Section 21(5) of the Act sets out rules for eligibility for persons aged under 18:

(5)    A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a)    is aged under 18 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.

8        Permanent resident is defined in s 5 of the Act:

(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.

…

9        Section 3 gives “permanent visa” the same meaning as in the Migration Act 1958 (Cth) (the Migration Act). Section 30(1) of the Migration Act provides that:

(1)    A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

(2)    A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

(a)    during a specified period; or

(b)    until a specified event happens; or

(c)    while the holder has a specified status.

10        Section 37 of the Migration Act provides that bridging visas are a class of temporary visas.

THE DECISION OF THE AAT

11        The reasons for decision of the AAT outline the factual background of this matter (see Islam v Minister for Immigration and Citizenship [2011] AATA 414 at [1]-[3]). The applicant is a twelve year old citizen of Bangladesh. She has held a Bridging E visa since February 2006 pending the outcome of her father’s application for a protection visa. Her father’s application has been the subject of ongoing court proceedings.

12        The applicant made an application for Australian citizenship on 6 September 2010. A delegate of the Minister refused her application on 25 November 2010.

13        The AAT noted that the applicant’s Bridging E visa does not entitle her to permanent residence. As such, she did not meet the eligibility requirements in s 21(5) of the Act for the conferral of citizenship on a person under the age of 18 years.

14        The applicant submitted before the AAT that the Minister’s discretionary power in s 22(6) of the Act allowed the Minister to treat her as a permanent resident, and that discretion should be exercised in her favour. The AAT rejected this contention on the ground that “the discretion in s 22(6) is limited to the purposes of s 22(1)(c)” (at [14]). The discretion in s 22(6) goes only to the general residence requirement in s 22(1)(c) (at [15]).

15        The AAT found there was no discretion in the Act which would allow the Minister to treat a person who was not a permanent resident at the material times to be treated as a permanent resident for the purpose of a citizenship application (at [17]). The decision of the Minister to refuse the applicant’s application for citizenship was upheld.

DECISION

16        The applicant contends that the AAT made three errors of law: - (i) the AAT misunderstood the application of s 22(6) of the Act, (ii) the AAT wrongly interpreted s 22(1)(c) of the Act, and (iii) the AAT did not understand the relevance of ss 2A and 19G of the Act. Consideration of the statutory provisions does not support these contentions.

17        As a person under the age of 18, the applicant can meet the eligibility requirements for conferral of citizenship if she is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application (s 21(5) of the Act). Section 22(6)), as a matter of proper construction of the provisions, is not available to the applicant. In its own terms the section applies “for the purposes of” s 22(1)(c) of the Act which itself operates only for the purposes of s 21 of the Act and, more specifically, provides that “for the purposes of section 21 a person satisfies the general residence requirement if…”. In other words, s 22(6) operates only for the purposes of the general residency requirement in s 21 of the Act. The general residency requirement appears in s 21(1)(c) (the path of conferral available to persons aged 18 and over) but not in s 21(5) (the path of conferral available to persons aged under 18).

18        It is common ground between the parties that the applicant is present in Australia on a Bridging E visa. Bridging visas, as defined in s 37 of the Migration Act (set out above), are temporary visas. A person must hold a permanent visa to be considered a permanent resident. As a temporary visa holder, the applicant is not entitled to permanent residency and does not meet the eligibility requirements set out in s 21(5). For the reasons given, s 22(6) does not provide an alternative means of satisfying the requirement of permanent residency in s 21(5). Section 22(6) thus cannot assist the applicant in satisfying the requirement of permanent residency in s 21(5). Sections 2A (which sets out a simplified outline of the Act) and 19G (which sets out a simplified outline of when citizenship may be granted by conferral) do not support the applicant’s case. The AAT did not err in its construction of the provisions of the Act. For these reasons, the applicant’s contentions of error of law, and various submissions in support, cannot be accepted.

19        For the reasons given, the appeal should be dismissed.

Associate:

Dated:    9 March 2012