FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2015] FCA 446

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from a decision of the Administrative Appeals Tribunal (“Tribunal”) (Bhavesh Kumar v Minister for Immigration and Border Protection [2014] AATA 944) (“Decision”).

2    The Decision affirmed a decision of a delegate of the first respondent (“Minister”) (“Delegate’s Decision”) that the delegate was not satisfied that the applicant satisfied the general residence requirement in s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (“Act”), as articulated in s 22 of the Act, to be eligible to become an Australian citizen.

Background

3    The applicant is a citizen of Fiji. The applicant holds a five year Resident Return (Subclass 155) visa (“permanent resident visa”), by virtue of which the applicant has permanent residency in Australia. On 24 June 2013, the applicant applied for conferral of Australian citizenship. In the Delegate’s Decision, the delegate rejected that application, in part because he was not satisfied that the applicant demonstrated a “close and continuing association” with Australia for the purposes of s 22(9)(d) of the Act.

4    The applicant sought a review of the Delegate’s Decision in the Tribunal. The Tribunal affirmed the Delegate’s Decision. The Tribunal found that the applicant met the requirements to enliven the discretion in s 22(9) including the “close and continuing association with Australia” requirement in (d) of s 22(9), but that the discretion should not be exercised in the applicant’s favour so as to allow the applicant to satisfy the general residence requirement.

5    On the hearing of the appeal, I granted the applicant leave to file in Court an amended notice of appeal, incorporating an additional ground of appeal to which no objection was taken by the Minister.

Statutory Context

6    In order for the applicant to be conferred citizenship under subdiv B of the Act, it was (and is) necessary for the applicant to be eligible to do so. Amongst other things, the Minister had to be satisfied that the applicant satisfied the general residence requirement: s 21(2)(c) of the Act.

7    The general residence requirement is set out in s 22(1). Relevantly, it requires an applicant to be present in Australia for the period of four years immediately before the day the applicant makes the application (s 22(1)(a)) and to be present in Australia as a permanent resident for the period of 12 months immediately before the day the applicant makes the application (s 22(1)(c)).

8    It was not in dispute, either before the delegate or before the Tribunal, that the applicant did not satisfy either of the requirements in s 22(1)(a) and (c). It followed that, subject to other provisions of the Act, the applicant was not eligible for the conferral of citizenship. That remains the position of the applicant in this appeal.

9    At issue before the Tribunal was the potential application of s 22(9) of the Act which, relevantly, provides as follows:

If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, 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 a spouse or de facto partner of that Australian citizen during that period; and

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

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

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

The Dispute in the Tribunal

10    Section 22(1) is stated to apply “subject to this section”. It was not in dispute that s 22(9) constitutes a statutory exception to the application of the general residence requirement in s 22(1), allowing the Minister in the relevant circumstances to treat a particular period as one in which the applicant was present in Australia as a permanent resident, thereby potentially allowing the applicant to meet the general residence requirement (where he or she would not otherwise do so). What is not so clear, as a matter of statutory construction, is whether, if the requirements of para (a)–(d) inclusive of s 22(9) are met so as to enliven the Minister’s discretion, the favourable exercise of that discretion overcomes the failure to meet the para (a) requirement of s 21(2) as well as the para (c) requirement of that section, or just the latter. This matter was not raised in the Tribunal, but it was a matter I raised with the parties’ counsel on the hearing of the appeal and in respect of which the parties, at my request, subsequently furnished written submissions. This is a matter to which I shall return later in these reasons.

11    Similarly, there was no dispute before the delegate or before the Tribunal that the applicant met the requirements in s 22(9)(a)–(c). In the Delegate’s Decision, the delegate was not satisfied that the applicant met s 22(9)(d). That was challenged in the Tribunal.

12    It was not in dispute before the Tribunal that, where the applicant met the requirements of s 22(9)(a)–(d), the decision-maker could then exercise a discretion to treat the relevant period as one in which the applicant was present in Australia as a permanent resident. In addition to the matters going to the question of whether the applicant had a “close and continuing association” with Australia pursuant to s 22(9)(d), the Tribunal heard argument about how it ought to exercise the discretion it had under s 22(9).

13    To that end, the applicant argued in the hearing before the Tribunal that once the Tribunal was satisfied that the applicant met the requirements of s 22(9)(a)–(d), then the Tribunal should exercise its discretion in favour of the applicant unless there was a good reason not to do so: AB 416; Transcript at p 6, line 41. The Tribunal confirmed with counsel for the applicant that the applicant’s position was that once it was shown that there was a close and continuing association then “there’s no reason not to exercise it. Just go ahead and do it”: AB 454; Transcript at p 44, line 16–17.

14    The applicant gave evidence (in response to questioning from the Tribunal), and made submissions, about why the discretion should be exercised in his favour. The effect of that evidence and submissions may be summarised as follows:

(1)    The applicant was thinking of relocating to Australia in the next five years because his daughter will be starting school in Australia. He was planning on “doing everything to come down here”. The applicant also noted that Fiji allowed dual citizens. The Tribunal noted the applicant’s affidavit evidence that it was the applicant’s plan to come to Australia within the next four to five years: AB 426–427; Transcript at p 16, lines 25–45; and p 17, lines 1–26.

(2)    The applicant had concerns about the future of Fiji based on what had happened there on previous occasions. In addition, he stated that he would have to apply next year to continue his permanent residency and had an expectation that he would be granted a visa of a year: AB 428–429; Transcript at p 18, lines 27–46; and p 19, lines 1–35.

(3)    The applicant was subject to having to re-apply for permanent residence and would be exposed to the risk that the criteria for such visas may change. Given this, the applicant was being prudent in applying for citizenship when the rules allowed him to do so. In addition there would be the administrative burden of keeping abreast of changes in the migration rules. The applicant may be exposed to political risk given the changes that may happen in Fiji: AB 447–448; Transcript p 37, lines 18–47; and p 38, lines 1–30.

Findings and Reasoning of the Tribunal

15    It is uncontroversial that the Tribunal found, correctly, that in the four years preceding the applicant’s citizenship application, the applicant was present in Australia for “between 215 and 218 days” (at [4]) and that, by reason of this the applicant did not “nearly” meet the general residence requirement in s 22(1) of the Act.

16    The Tribunal then found that the applicant met the requirements of s 22(9)(a)–(d), including, relevantly, that the applicant had a close and continuing association with Australia (at [14]). These findings are not in dispute in this appeal.

17    The Tribunal noted that s 22(9) provided “what amounts to an alternative way of satisfying the general residence requirement” (at [5]). The Tribunal noted that where the requirements of s 22(9)(a)–(d) are met then the Tribunal must “consider whether the discretion should be exercised in his favour” (at [6]). It went on to find that the requirements of s 22(9)(a)–(d) having been met, this “enlivened” the discretion under s 22(9) (at [16]).

18    The Tribunal’s reasoning in relation to whether it should exercise the enlivened discretion in the applicant’s favour proceeded in a number of steps:

(1)    Step 1: the Act does not set out the criteria that govern the exercise of the discretion (at [17]).

(2)    Step 2: the applicant’s stated position – that the discretion should be exercised in the applicant’s favour once sub-paras (a) to (d) were met unless there was a good reason not to do so (at [17]) – was not accepted (at [18]). There was no “residual discretion to withhold approval”. An applicant does not “become entitled to the benefit of the discretion because an association has been established unless there is a good reason to suggest the discretion should not be so exercised” (at [18]).

(3)    Step 3: the discretion was an exceptional power allowing the decision-maker to “relieve someone of the consequences of failing to comply with the usual or general rule” (at [18]).

(4)    Step 4: the Tribunal considered that “the structure of the legislation suggests it is incumbent on the decision-maker to have a good reason to exercise the power, as opposed to creating a presumption in favour of the exercise of the power in the absence of a reason to the contrary” (at [18]).

(5)    Step 5: the reasons provided by the applicant (summarised by the Tribunal at [19] and [20]) were not sufficient reason to exercise the discretion in the applicant’s favour.

Applicant’s Grounds of Appeal

19    The applicant’s grounds of appeal in his amended notice of appeal filed with the leave of the Court on the day of the hearing, can be summarised as follows:

(1)    Para 3: The construction of s 22(9) of the Act by the Tribunal is wrong; its conclusion at [18] that “ it is incumbent on the decision-maker to have ‘a good reason to exercise’ the discretion” effectively adds a fifth condition, being the existence of “a good reason to exercise” the discretion, which is neither expressly stated, nor to be inferred or implied.

(2)    Para 3A:    At [19]–[21] it took into account matters extraneous to the discretion in s 22(9) which it was not entitled to take into account.

(3)    Para 4: Even if the Tribunal’s construction concerning the discretion in s 22(9) explained in [18] of its reasons is correct, the construction actually applied in [19] and [20] of its reasons, requiring the existence or identification of “a compelling reason”, is wrong.

(4)    Para 5: Even if the Tribunal’s construction concerning the discretion in s 22(9) explained in [18] of its reasons is correct, there was evidence before the Tribunal of “good reasons” to exercise the discretion (in the applicant’s favour).

Consideration and Analysis

20    The discretion reposed in the Minister by s 22(9) is “unconfined” in the sense referred to by the Tribunal at [17] of its reasons: “[T]he Act does not set out criteria that govern the exercise of the discretion”. As Dixon J (as his Honour then was) said in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 relevantly at 505:

[T]here is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any object the legislature could have had in view …

21    The only reason given by the Tribunal for refusing to exercise the discretion in the applicant’s favour was that the Tribunal was “not satisfied there is a good reason to exercise the discretion in [the applicant’s] favour at this point” (at [21]). The first of the applicant’s complaints on appeal is that this, in effect, imposes a fifth requirement, in addition to those in paras (a) to (d) inclusive of s 22(9), that has to be met before the discretion is exercised in favour of an applicant. I cannot agree. The only considerations that have to be met before the discretion is enlivened are those set out in paras (a) to (d) inclusive of s 22(9). What the Tribunal concluded was not that a further condition had to be satisfied before the enlivened discretion could be exercised, but that, in the absence of a “good reason” to do so, the applicant was not entitled to the benefit of the exercise of the discretion in his favour.

22    In my view, having regard to the purpose of s 22(9), to be discerned from its text, and contextually from the text of the other provisions of s 22, the Tribunal’s conclusion at [5] of its reasons that “[s]ection 22(9) offers what amounts to an alternative way of satisfying the general residence requirement in s 21”, is undoubtedly correct.

23    Consistently with that view, if the discretion reposed in the Minister by s 22(9) of the Act is enlivened by an applicant because he or she meets the requirements in (a)–(d) inclusive, the word “may” permits the Minister to consider any matters, either in favour of or against “treat[ing] a period as one in which the person was present in Australia as a permanent resident”, provided those matters are not “definitely extraneous to any objects the legislature could have had in view”, to use the words of Dixon J in Browning in the extract reproduced in [20] above.

24    My view of the width of the discretion finds support in “the subject matter and the scope and purpose of the statutory enactments”, to use the words of Dixon J again, that are s 22 of the Act. Accepting for the moment that s 22(9) provides the Minister with a discretion to overcome the failure by a person to meet the presence in Australia requirement of four years in s 22(1)(a), as well as the presence in Australia requirement of 12 months as a permanent resident in s 22(1)(c), there is potentially a very wide range of different circumstances that might come before the Minister, both as to the extent of the failure to meet the presence in Australia requirements of s 22(1)(a) and (c), and the reason or reasons for those failures. In the present case, the Tribunal found at [4] of its reasons that in the four years preceding his application for citizenship, the applicant was present in Australia for only between 215 and 218 days, “not nearly long enough to meet the criterion in s 22(1)”. In other words, the failures to meet the presence in Australia requirements of s 22(1)(a) and (c) were significant failures. Moreover, on the findings of the Tribunal at [19] and [20] of its reasons, the conclusion is inescapable that the applicant’s failure to meet the presence in Australia requirements was not due to any extenuating circumstances, or due to matters outside the control of the applicant, but was a matter of voluntary choice on his part to reside outside Australia during large parts of the presence in Australia periods prescribed by s 22(1)(a) and (c).

25    What the Tribunal said in the last sentence of [18] of its reasons:

The structure of the legislation suggests it is incumbent on the decision-maker to have a good reason to exercise the power, as opposed to creating a presumption in favour of the exercise of the power in the absence of a reason to the contrary

has to be understood in this statutory and factual context. So understood, the Tribunal’s decision not to exercise the discretion in favour of the applicant is, on the facts of this particular case, consistent with that construction.

26    As to the reference in the Tribunal’s reasons to “good” in the phrase “good reason”, I read that as requiring no more than “sufficient” reason. The Tribunal’s reference in [20] of its reasons to the inability of the applicant to identify any “compelling reason” does not, in my view, elevate the test, on its application, to higher than sufficient; in context, it is to be read as speaking only in a temporal sense – there is no “good reason” now; the words: “Why not wait?” in [20] of the Tribunal’s reasons impel that conclusion.

27    For these reasons, the grounds of appeal in paras 3 and 4 of the amended notice of appeal cannot sustain the appeal.

28    The applicant did not elaborate on why the matters referred to in [19] to [21] of the Tribunal’s reasons were extraneous to the Minister’s discretion in s 22(9). In my view, they were not extraneous in the sense referred to by Dixon J in Browning in the passage reproduced in [20] above and the ground of appeal in para 3A is not made out.

29    As to the ground of appeal in para 5 of the amended notice of appeal, if the Tribunal’s construction concerning the discretion in s 22(9) explained in [18] of its reasons is correct, as I have concluded it is, the only basis on which this ground could be made good is if it could be shown that the discretion miscarried in the sense referred to in House v The King (1936) 55 CLR 499 at 504–505. It is not enough that a different decision-maker would have regarded the reasons put forward as sufficient reason to exercise the discretion in the applicant’s favour.

Additional Point of Statutory Construction

30    During the course of the hearing of the appeal, I raised with counsel for the applicant a question going to the proper construction of the discretion reposed in the Minister by s 22(9) of the Act, in particular whether, if enlivened by a person who met the requirements of paras (a)–(d) inclusive, it enabled the Minister to treat that person as being present in Australia for the requisite period of four years prescribed by para (a) of s 22(1), as well as being present in Australia for the requisite period of 12 months as a permanent resident prescribed by para (c) of s 22(1).

31    The impetus for this question came from my observation that the discretion afforded the Minister by s 22(9) is expressed as being to “treat a period as one in which the person was present in Australia as a permanent resident”. Paragraph (a) of s 22(1) does not require the person to be a permanent resident at any time during the period of four years before the day the person made the application, merely present in Australia for that period; on the other hand, para (c) of s 22(1) requires the person to be present in Australia as a permanent resident for the period of 12 months before the day the person made the application.

32    The issue raised by this question had not been raised in the Tribunal below, and neither party had raised it in submissions on appeal. I therefore gave the parties the opportunity of a few days to consider the issue and make further written submissions thereon. Both parties took up this opportunity. The issue was particularly important to the case at hand because if the discretion reposed in the Minister by s 22(9) did not enable the Minister to treat a person, who failed the presence in Australia requirement in s 22(1)(a), as being present in Australia for the requisite period of four years, the applicant could not succeed, even if his view of the nature of the discretion reposed in the Minister by s 22(9) was correct.

33    On the view I have taken of the nature of the discretion reposed in the Minister by s 22(9), this issue is not relevant to the case at hand, but in deference to the submissions of the parties I should set out my considered view and my reasons for it, assisted as I was by the submissions of the parties.

34    Both parties submitted that the Ministerial discretion in s 22(9), if enlivened by the meeting of the requirement is paras (a)–(d) inclusive, enables the Minister to treat each of the periods in both s 22(1)(a) and (c) as “a period … in which [a] person was present in Australia as a permanent resident”. The Minister put it as “the better reading of s 22(9) … than the one adopted by his Honour in Milne”, being a reference to the judgment of Emmett J in Milne v Minister for Immigration & Citizenship [2009] FCA 730, an authority to which I referred the parties during the course of the hearing. The applicant’s submissions were more dismissive of the construction I suggested may be open, namely, that s 22(9) only enabled the Minister to cure a failure to meet the physical presence in Australia as a permanent resident requirement in s 22(1)(c).

35    Because this issue is no longer relevant, I do not propose to dwell on the respective submissions, their merits or otherwise. In any event, neither touches upon the real reason why I think, after careful consideration, the discretion extends to both a failure to meet the presence in Australia requirement in both s 22(1)(a) and (c), at least on the facts of this case.

36    If s 22(9) extends to a failure to meet the requirement in s 22(1)(a) then, unless the person is a permanent resident for four years before the application is made, the requirement in para (c) of s 22(9) will not be met: the words “that period” in para (c) are a reference back to “a period” in the chapeau of s 22(9) and, in the context of s 22(1)(a), “that period” is four years immediately before the application is made. On the facts of this case, the applicant was a “permanent resident” during that four year period, so para (c) is met and the discretion is enlivened with respect to a failure to meet the presence in Australia requirement of s 22(1)(a).

37    This may well explain why s 22(9), unlike s 22(5) and (6) does not commence: “For the purposes of paragraph (1)(c)…”; there will be cases, of which this is one, where the discretion is enlivened so as to encompass failure to meet the presence in Australia requirement of four years in s 22(1)(a), because the “permanent resident” requirement in s 22(9)(c) for “that period” (four years) is met.

Associate:    

Dated:    13 May 2015