Federal Court of Australia

Gan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 91

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant is to pay the respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, Mr Sing Kian Gan, applies for an extension of time and leave to appeal from the judgment and orders made by the primary judge dated 16 April 2021: Gan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 375. In essence, the primary judge upheld a Notice of Objection to Competency filed by the respondent, by holding that the Notice of Appeal relied upon by the applicant failed to identify a question of law arising from the decision of the Administrative Appeals Tribunal (Tribunal) dated 23 October 2020, as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

2    This application, which is dated 7 December 2021, was filed with a supporting affidavit. It was filed in response to the respondent filing a Notice of Objection to Competency of the appeal dated 2 July 2021, based on the impugned judgment being interlocutory, therefore requiring leave to appeal from it, and where no application for leave to appeal had been filed: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The respondent consents to the applicant relying on this application and submitted that if leave is granted it considers it unnecessary to press its Notice of Objection to Competency.

3    Accordingly, the issue to be determined is whether the applicant has established that an extension of time to file his application for leave to appeal and leave to appeal should be granted.

4    For the reasons below, the application is dismissed.

Background

5    The applicant is a citizen of Malaysia who was born on 29 December 1961. The applicant first arrived in Australia on 23 February 1981 and is currently the holder of a Resident Return (Subclass 155) visa granted on 15 February 2019. On 17 January 2020, the applicant departed Australia and has not returned since. He travelled to Malaysia to visit his father, who was then ill and has since passed away. By the time the applicant was scheduled to return to Australia, COVID-19 travel restrictions were in place and he could not return.

6    On 21 June 2020, the applicant lodged an application for Australian citizenship by conferral. He was in Malaysia at the time he lodged his application. It was a requirement for the grant of citizenship, amongst other things, that the applicant had been present in Australia as a permanent resident for the period of 12 months immediately before the day he applied for citizenship: s 22(1)(c) of the Australian Citizenship Act 2007. A total period of absences from Australia of 90 days or less is permitted: s 22(1B).

7    On 14 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to grant the applicant Australian citizenship on the basis that s 22(1)(c) was not satisfied. The delegate expressly had regard to s 22(1B) of the Citizenship Act. The delegate found that departmental records indicated that the applicant was absent from Australia for a total of 155 days in the period of 12 months immediately before the date he applied for citizenship.

8    On 17 July 2020, the applicant applied to the Tribunal for review of the delegate’s decision. In the Tribunal the applicant submitted the following documents with his review application: an email from the applicant to the Minister dated 5 June 2020; a letter from the Minister’s office dated 7 July 2020; and electronic airline tickets. On 23 October 2020, the Tribunal dismissed the application pursuant to s 42B(1)(b) of the AAT Act on the basis that the application had no reasonable prospect of success.

Tribunal decision

9    The Tribunal recorded the applicant’s concession that he did not meet the general residence requirements. It also expressly considered his evidence that he had been unable to complete the online citizenship application form because he had been absent from Australia for more than 90 days in the 12 month period immediately preceding his citizenship application, and that he had emailed the Minister’s office for assistance. The Tribunal summarised the applicant’s position as follows:

[10]    Mr Gan told the Tribunal that he accepts he did not meet the general residence requirement – that he is present in Australia as a permanent resident in the 12 months immediately before he made his application for the conferral of Australian citizenship. In oral submissions and a written submission to the Tribunal dated 18 September 2020, Mr Gan explained that he and his wife (who was in Australia) commenced their applications for Australian citizenship online in early June 2020; however, Mr Gan was unable to complete his application online because he did not meet the general residence requirements as he had been absent from Australia for more than 90 days in the previous 12 month period. Mr Gan subsequently emailed the Minister’s office for assistance to continue his online application as he had ‘valid reasons to be away from Australia’ and his circumstances were ‘exceptional’. He wrote that he departed from Australia on 17 January 2020 to visit his father in Malaysia who was unwell and later passed away. The Malaysian government then implemented a lockdown on 18 March 2020 due to the COVID-19 pandemic and Mr Gan was unable to return to Australia.

[11]    Mr Gan lodged his application for Australian citizenship electronically on 21 June 2020; he stated in his application that he is seeking Ministerial discretion due to ‘Significant hardship or disadvantage’.

10    The Tribunal considered whether any of the discretions or exemptions to the general residence requirements applied to the applicant. The Tribunal concluded that the applicant was a permanent resident of Australia during the 12 month period before he applied for Australian citizenship and therefore the discretion in s 22(6) of the Citizenship Act did not apply; there was no evidence that any of the Ministerial discretions (see ss 22(4A), 22(5), 22(5A), 22(9), 22(10), 22(11)) were relevant to the applicant; there was no evidence that the applicant was engaged in activities that were of benefit to Australia, as contemplated by s 22A; there was no evidence that the applicant was engaged in particular kinds of work requiring regular travel outside of Australia, as contemplated by s 22B; and there was no evidence that the applicant completed relevant defence service or was a family member of a person who had completed relevant defence service for the purpose of s 23.

11    The Tribunal was satisfied that the applicant did not meet the general residence requirements, the special residence requirements or the defence service requirement, and as such, it concluded that the applicant’s Australian citizenship application must be refused in accordance with s 24(1A). The Tribunal was satisfied that the application for review had no reasonable prospect of success and dismissed the application pursuant to s 42B(1)(b) of the AAT Act.

Primary judgment

12    On 6 November 2020, the applicant filed a Notice of Appeal in this Court pursuant to s 44 of the AAT Act. On 19 November 2020, the respondent objected to the competency of that appeal on the basis that it failed to identify a question of law arising from the decision of the Tribunal, as required by s 44(1). On 16 April 2021, the primary judge made orders upholding the Notice of Objection to Competency filed on 19 November 2020 with costs. The primary judge at [24]-[26] summarised the applicant’s submissions, noting that they were substantially the same arguments ventilated before the Tribunal.

13    The primary judge concluded at [27]-[31]:

[27]     Regrettably for Mr Gan none of these points has merit. On no view can the acceptance of his online application be regarded as a waiver of the requirements under the Act or, more specifically, the requirement under s 22(1B)(b). Furthermore, the letter from the Minister dated 7 July 2020 is simply confirmation that his application was received on 21 June 2020 “and remains under consideration” by the Department. On no view could this be considered to support the contention advanced by Mr Gan as to waiver.

[28]     Accordingly, having regard only to the submissions advanced by Mr Gan, I consider that the Tribunal did not fall into error in determining that his application did not comply with the requirements of s 22(1B)(b).

[29]     Nor, having regard to the reasoning of the Tribunal, do I consider that it fell into error in its determination that there was no other available discretion or circumstance available for consideration in relation to Mr Gan’s position that would mean that he did not have to comply with that requirement. In this respect, the Minister correctly submits that the language in s 24(1A) is mandatory, requiring that the Minister “must not” approve a person becoming a citizen unless they meet the eligibility criteria, including the general residence criteria under ss 22(1)(c) and 22(1B).

[30]    Finally, I note that the Court’s jurisdiction is only enlivened by a question of law properly raised on the appeal. A particular question of law said to arise from a decision of a tribunal should be stated with precision and a mere assertion that the tribunal “erred in law” does not raise a question of law: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). In [1] and [3] of the Notice of Appeal, Mr Gan simply asserts that the Tribunal member was wrong as a matter of law. However neither paragraph engages meaningfully with the reasoning of the Tribunal, or purports to identify an error within that reasoning. Paragraph [2] of the Notice of Appeal contends that the Tribunal erred by failing to consider the evidence presented before it. Mr Gan has not pointed to any evidence that the Tribunal failed to consider that might have any material bearing on the outcome of his application. As set out above, although the Tribunal may have not referred to the 7 July 2020 letter from the Minister, that letter did not waive the general residence requirements in the Act, and the Tribunal’s failure to refer to it specifically does not amount to an error of law. In [4] of the Notice of Appeal Mr Gan contends that the Tribunal failed to consider the Act’s policies as guidelines. However, there is no serious question that a policy document applies such that the statutory requirements to which I have referred above should be qualified or read down. Nor did Mr Gan submit as much.

[31]    Accordingly, although I have considered the substance of the submissions advanced by Mr Gan, the correct outcome in the present application should be that it is dismissed for want of competency.

Relevant principles

14    The power to extend time in which to appeal is unfettered; however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters identified in that judgment to which the Court will usually have regard are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17]-[19] per Spender, O’Loughlin and Dowsett JJ.

15    The practical application of that concept was considered by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585. Her Honour relevantly observed at [62]-[63]:

[62]     … [I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

[63]     The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

16    This approach was endorsed by the Full Court of the Federal Court (Tracey, Perry and Charlesworth JJ): see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] and [38].

17    As to leave to appeal, the discretion is also an unfettered one, with each case being determined on its merits. Nonetheless, the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. This Court must exercise the power to grant leave in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638 at [6]. As with the extension of time, the evaluation of the prospects of success of the proposed appeal grounds is conducted “at a reasonably impressionistic level” and enquires whether a ground “is sufficiently arguable” or “has reasonable prospects of success”: EBT17 v Minister for Home Affairs [2019] FCA 200 at [4] citing MZABP at [62]-[63]; Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 at [58].

Consideration

18    As the respondent notes, in the applicant’s affidavit dated 6 December 2021, the applicant seeks to explain his delay by contending that the Court’s Registry told him he was required to complete a Notice of Appeal to appeal the orders of the primary judge, and that he had 28 days to do so. The respondent accepts that the applicant has provided some explanation for the delay and that, as an unrepresented litigant, it is at least plausible that he may have relied on information provided by the Registry as to the applicable timeframe for an appeal to be filed, although the precise circumstances in which such information was provided are not identified, and it may not have been appreciated by the applicant that he in fact required leave to appeal.

19    The respondent also accepted that it suffers no prejudice other than costs if time were to be extended and leave granted, but submitted that the Minister should not be prejudiced by being required to defend an unmeritorious appeal.

20    The respondent submitted that what was critical was that the applicant’s purported grounds of appeal do not establish that the decision of the primary judge is attended by sufficient doubt to warrant an extension of time being granted. That is, there is insufficient merit in the two grounds of appeal contained in the application for an extension of time and leave to appeal, and the three proposed grounds contained in the draft notice of appeal, to warrant the extension and grant of leave.

21    In that context, it is the merits of the proposed grounds which is the focus of this application.

22    The applicant conceded before the Tribunal that he did not meet the general residence requirements.

23    In his submissions (and affidavit) to this Court, the applicant detailed the history of his application for citizenship. He submitted that on 21 June 2020, he successfully completed and submitted an application online for exemption to the general residence requirements. He submitted that he understood this did not mean his application was approved as there were other citizenship requirements to be met for its full merit. On 7 July 2020, he received a letter from the Department of Home Affairs’ Director to inform him his application was successfully received but that he would be required to go through the normal processing time like other applicants. The applicant submitted that this letter was not taken into consideration in the delegate’s decision. He submitted that on 14 July 2020, the delegate wrongly refused his application for citizenship for not satisfying the general residence requirements due to his overseas absence of more than 90 days for which he had already sought exemption and discretions from the Minister and the Department.

24    The applicant contended that on 31 August 2020, one and a half months after his application was refused, he took a screenshot of a message on his computer screen from the Department’s system that stated “The applicant Sing Kian Gan must be in Australia when we make a decision about the application except in certain limited circumstances. The applicant will be able to continue, however they should review the eligibility information on our website”. It was submitted that the screenshot message was not taken into consideration in the delegate’s decision, and that there was no intention by the Minister and the Department to refuse his application at the initial stage of the assessment. He was allowed to continue with his application subject to satisfying other citizenship requirements for its full merit. It was submitted that the Minister and the Department’s Director had properly considered his request for exemption to the general residence requirements and that this is shown in the Department Director’s letter and screenshot message in their system to allow him to continue with his application to its full merit.

25    The applicant submitted that the issue before the Tribunal was whether he had satisfied the general residence requirements, which included taking into consideration exemptions and discretions. It was submitted that because the Tribunal and the primary judge agreed with the delegate’s decision to refuse the applicant’s application for citizenship solely on the basis that his overseas absence was more than 90 days, where exemptions and discretions had already been sought with supporting evidence, their decisions are also wrong.

26    As noted above, there are two grounds identified in the application for an extension of time and leave to appeal, and three in the draft notice of appeal.

27    The grounds of appeal in the application for an extension of time and leave to appeal are as follows:

1.    My email to MICMSMA on 5 June 2020 seeking exemption to the general residence requirements and to exercise his discretions and the Department of Home Affairs’ letter dated 7 July 2020 confirming my request to MICMSMA to exercise his discretions were not properly and correctly taken into consideration in the decision.

2.    The DHA have considered my request for exemption and exercised its discretion to allow me to continue with my application subject to satisfying other citizenship requirements for its full merit. There was no intention by them to refuse my application based solely on s 22(1)(c) and sub-section 22(1B) of the general residence requirements. This was clearly supported by the evidence of a screenshot taken on 31 August 2020 - one and a half months after my application was wrongly refused on 14 July 2020. This evidence was not taken into consideration in the decision.

28    The grounds in the draft notice of appeal are as follows:

1.    The Court did not take into consideration the evidence provided at the hearing of a message on the screen shot of the Department of Home Affairs’ system taken on 31 August 2020 that states “The Applicant Sing Kian Gan must be in Australia when we make a decision about the application except in limited circumstances. The applicant will be able to continue, however they should review the eligibility information on our website”.

2.    Based on the message on the screen shot taken on 31 August 2020, one and a half month after my application was refused on 14 July 2020, there was clearly no intention by the Minister and the Department of Home Affairs to refuse my application for citizenship by conferral.

3.    The Minister and the Department of Home Affairs have allowed my application to continue based on significant hardship or disadvantage, subject to satisfying other citizenship requirements of the Act for approval.

29    Two general observations at the outset. First, the applicant’s submissions do not address the reasoning of the primary judge, nor grapple with the basis on which the primary judge upheld the Objection to Competency. Second, only one of the grounds of appeal (ground 1 in the draft notice of appeal) addresses the primary judgment. This is an appeal from that judgment and, as such, it is alleged error therein which must be identified.

30    Before addressing the proposed grounds it is appropriate to refer briefly to the relevant legislation.

31    Section 21 of the Citizenship Act is relevantly as follows:

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 satisfies the defence service requirement (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.

…

32    Section 22 is relevantly as follows:

22 General residence requirement

(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.

Overseas absences

…

(1B)     If:

(a)     the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

(b)     the total period of the absence or absences was not more than 90 days; and

(c)     the person was a permanent resident during each period of absence;

then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

…

Ministerial discretion—person in Australia would suffer significant hardship or disadvantage

(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.

33    Section 24 is relevantly as follows:

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).

…

34    It is s 22(1B)(b) which was relevantly in issue, the applicant having been absent from Australia for 155 days.

35    Turning to the grounds of appeal.

36    The first ground in the application for an extension of time and leave to appeal, recited above at [27], appears to be directed to the delegate and not the primary judge. In any event, as the primary judge concluded at [27], the letter dated 7 July 2020 is “simply a confirmation that his application was received on 21 June 2020 ‘and remains under consideration’ by the Department. On no view could this be considered to support the contention advanced by Mr Gan as to waiver”. Those findings were plainly open. Moreover, this was not relevant to the issue before the Tribunal, which was whether the application for review had reasonable prospects of success on the basis that the applicant could meet the general residence requirements.

37    The second ground in the application for an extension of time and leave to appeal appears to be the same as grounds 1 and 2 of the draft notice of appeal. These grounds will therefore be addressed together. Each relates to the screenshot.

38    The text in the screenshot is in the following terms:

The applicant Sing Kian Gan must be in Australia when we make a decision about the application except in certain limited circumstances. The applicant will be able to continue, however they should review the eligibility information on our website

39    The relevance of this screenshot is unclear. The only evidence is from the applicant that the screenshot was taken on 31 August 2020. This is one and a half months after his citizenship application had been refused, which occurred on 14 July 2020. There is no information as to when the message in the screenshot appeared or the circumstances in which it was sent. In any event, the screenshot is a “warning” which relates to a separate provision, s 24(5) of the Citizenship Act, which was not in issue. Section 24(5) was not the basis of the impugned decision in this case. Rather, the relevant issue was the general residency requirements. Therefore, this screenshot does not relate to any of the purported questions of law which were before the primary judge. I note also, in any event, that the primary judge concluded at [30] that the applicant had not pointed to any evidence that the Tribunal failed to consider which might have a bearing on the outcome of his application. That conclusion is not challenged. The primary judge also concluded that the failure of the Tribunal to refer to the letter of 7 July 2020, which did not waive the general residence requirements in the Citizenship Act, did not amount to an error of law. Given the screenshot also does not relate to any relevant issue, the same conclusion would equally apply to it.

40    In so far as these grounds allege that this screenshot reflects “no intention” that the application for exemption would be refused, the submission is misconceived. The ground appears to be more a submission, and one not directed to any error by the primary judge.

41    In any event, as the respondent correctly submitted, there is no correlation between the screenshot and the relevant issue of whether the applicant satisfied the general residence requirements. There was no evidence before the Tribunal or the primary judge that the Minister or the Minister’s Department had waived the general residence requirements simply because the applicant was able to submit his online citizenship application or because he had received a warning message referring to the prohibition in s 24(5) of the Citizenship Act. The applicant’s ability to successfully complete the online application for citizenship by conferral was not indicative of any waiver by the Minister of the general residence requirements. The online application form did not assess whether the applicant met the legislative criteria for the grant of citizenship nor whether any of the discretions and exemptions applied.

42    The primary judge’s conclusions at [27] and [30] in respect to the online application are apt.

43    Moreover, the application for citizenship was to be decided based on the provisions in the Citizenship Act, and not on any intention purportedly held by the Minister or the Department.

44    Neither grounds 1 nor 2 of the draft notice of appeal (nor ground 2 in the application for an extension of time and leave to appeal) have merit.

45    Turning to ground 3 of the draft notice of appeal, that the Minister and Department have “allowed” the applicant’s citizenship application to continue based on significant hardship or disadvantage (that is, relying on s 22(6)), subject to him satisfying other citizenship requirements of the Citizenship Act for approval. I note now that despite this ground, the applicant submitted that s 22(6) is irrelevant to his citizenship application as he is a permanent resident, and that filling out that part of the online form was the only way he could proceed.

46    In any event, in so far as this ground tends to suggest that allowing his application to proceed was indicative of the Minister waiving the general residence requirements, it cannot succeed for the reasons given by the respondent. The delegate expressly considered whether the Ministerial discretion set out in s 22(6) of the Citizenship Act could be applied but found it did not assist the applicant. Similarly, the Tribunal specifically considered s 22(6) (as it did other bases in the Citizenship Act for an exemption) and concluded that because the applicant was a permanent resident of Australia during the 12 month period before he made his claim for Australian citizenship, the discretion provided in that section could not apply to his circumstances. As the primary judge observed at [18], the applicant did not, and cannot, criticise this reasoning.

47    Moreover, in respect to the various discretions in the Citizenship Act, the primary judge concluded at [21] that there was no fault in the Tribunal’s reasoning, stating:

[21]    The Tribunal concluded there was no evidence before it that any of the circumstances applicable under those subsections were relevant to Mr Gan. Mr Gan does not, and in my view could not, criticise the Tribunal’s reasoning in this respect.

48    As noted by the primary judge at [29], the language in s 24(1A) is mandatory, requiring that the Minister “must not” approve a person becoming a citizen unless they meet the eligibility criteria, including the general residence criteria under s 22.

Conclusion

49    The applicant has not established that there is any arguable case such as to warrant an extension of time and leave to appeal. None of the grounds of appeal have any apparent merit. There is no reason to doubt the decision of the primary judge.

50    It would therefore be futile to grant an extension of time and leave to appeal. Accordingly, the application for an extension of time and leave to appeal from the primary judgment is dismissed with costs.

Associate:

Dated:    11 February 2022