FEDERAL COURT OF AUSTRALIA

Amir v Minister for Immigration and Citizenship [2012] FCA 879

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The application be dismissed as incompetent.

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 on a question of law from a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant’s application for Australian citizenship.

2    The applicant is an eight year old boy from Pakistan. As a minor, he cannot bring this application without the appointment of a legal representative: see r 9.63 of the Federal Court Rules 2011; see also Stephens-Sidebottom v State of Victoria [2011] FCA 893 and Harwood v State of New South Wales (Department of Education and Training) [2012] FCA 264.

3    When the matter was called on for hearing last week, the applicant’s father appeared by telephone. I explained the rule to him and adjourned the matter to today.

4    The applicant’s father appears in person this morning. He was assisted by an interpreter. I repeated the requirement of the rules and explained them to him. It is not clear to me whether he has agreed to be the legal representative for his son. The reason for this is probably because he has a justifiable concern that if he accepts the appointment he will be liable for a costs order. The Minister’s solicitor has indicated that the Minister will seek such an order if the applicant’s father accepts the appointment as legal representative and the proceeding is dismissed.

5    The Minister’s solicitor has also made it clear that if the applicant’s father does not agree to be the legal representative she will ask for the application to be dismissed as incompetent and she will also seek costs for reasons which I will mention later.

6    The applicant applied for citizenship under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act). That section specifies the conditions upon which a person is eligible for citizenship. The only real question which arises on the appeal is as to the proper construction of the provisions of ss 21 and 22 of the Act, in particular, the provisions of s 22(6) to which I will refer later.

7    Different conditions apply depending upon, inter alia, the age of an applicant. The conditions which apply to a person aged 18 years or over include a requirement that a person be a permanent resident and that he or she satisfy the general residence requirement stated in s 22 of the Act: see ss 21(2)(b) and (c). By contrast, the only relevant condition applicable to an applicant who is aged under 18 years is that the person be a permanent resident at the time when the person made the application and at the time of the Minister’s decision: see s 21(5). The general residence requirement applicable to persons 18 years or over includes the requirement specified in s 22(1)(c), which is as follows:

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

…

(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.

8    The Minister has a discretion under s 22(6) to disregard in certain circumstances the requirements of s 22(1)(c) of the Act. Section 22(6) is as follows:

(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.

9    The applicant is not a permanent resident and therefore did not meet the eligibility condition stated in section 21(5). However, in the hearing before the Tribunal his father who appeared on his behalf contended that the discretion conferred by s 22(6) enabled the Minister to treat his son as a permanent resident. The Tribunal rejected that submission, finding that on the proper construction of s 22(6) the discretion is conferred only in relation to the general residence requirement.

10    The Tribunal noted that the same conclusion was reached by Jagot J in Islam v Minister for Immigration and Citizenship (2012) 125 ALD 476. The Tribunal acknowledged at [18] and [19] of its reasons that the form on which the application was made could be read in a manner consistent with the interpretation for which the applicant’s father contended. However, the Tribunal concluded, at [19], by stating when read in context it is quite clear that the discretion conferred by s 22(6) applies only in relation to the general residence requirement.

11    When the matter was called on this morning I pointed out to the applicant’s father that in my opinion the present case is indistinguishable from the decision of Jagot J in Islam. Accordingly, I made it clear to him that the only real question of law which arises would have to be decided adversely to his son because the decision of Jagot J is not plainly wrong, and I would therefore follow it. Indeed, in my view, the decision of Jagot J is correct. As her Honour explained at [17], s 22(6) applies, “for the purposes of,” s 22(1)(c) of the Act. That subsection operates only for the purpose of s 21 and in particular for the purpose of determining whether a person satisfies the general residence requirement.

12    But s 21 makes it clear that the general residence requirement does not apply to persons under 18. The only relevant condition of eligibility for minors is that they must be a permanent resident. It follows, as Jagot J said in Islam at [18], that s 22(6) does not provide an alternative means for persons such as the applicant to satisfy the requirement of permanent residence stated in s 21(5).

13    As I said earlier, it was probably because of what I have said above, and, in particular, the views which I expressed to the applicant’s father about the outcome of today’s application which left him in the position where he seemed to be uncertain whether to accept the appointment as his son’s legal representative.

14    The question which then arises is whether I ought to exercise my power to waive compliance with the requirement that a legal representative be appointed. I do not consider I should exercise that power in the present case where the applicant is a minor. Accordingly, it seems to me that I have no alternative but to dismiss the application as incompetent.

15    The question which then arises is as to the costs of the proceeding. The Minister’s solicitor submits it is plain that the application was brought by the appellant’s father and that a costs order should be made against him.

16    I do not consider that this submission is borne out by the material before me. It is true that the applicant’s father appeared this morning and he seems to have had a role in preparing the written submissions filed on 25 July 2012 which I have read. But I am not satisfied that the position is as clear as the Minister contends and I do not consider that it would be appropriate to make a costs order against the applicant’s father.

17    I should add that the notice of appeal raised two other questions of law. But in my opinion, those questions do not arise for the reasons set out in [8] to [10] of the written submissions of Mr Godwin of counsel, who appeared for the Minister when the matter was before me on 3 August 2012. It follows that I will order that the application be dismissed as incompetent.

Associate:

Dated:    16 August 2012