FEDERAL COURT OF AUSTRALIA Zubair v Minister for Immigration and Citizenship [2008] FCA 217 MIGRATION – Application for an extension of time to file and serve a notice of appeal – Where Administrative Appeal Tribunal held it did not have jurisdiction to determine application – Where s 52A(2) of the Australian Citizenship Act 1948 (Cth) required an applicant for Australian citizen to be a permanent resident of Australia – Where the appellant had never been a permanent resident of Australia – Application dismissed. Australian Citizenship Act 1948 (Cth) ss 13 and 52A(2) MUHAMMAD ZUBAIR v MINISTER FOR IMMIGRATION AND CITIZENSHIP VID 38 OF 2008 TRACEY J 4 MARCH 2008 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 38 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MUHAMMAD ZUBAIR Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: TRACEY J DATE OF ORDER: 4 MARCH 2008 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 38 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MUHAMMAD ZUBAIR Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: TRACEY J DATE: 4 MARCH 2008 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an extension of time within which the applicant may file and serve a notice of appeal from a decision from the Administrative Appeals Tribunal ("the Tribunal"). The decision which the applicant wishes to impugn is a decision by the Tribunal that it did not have jurisdiction to determine an application which he had lodged with the Tribunal. The Tribunal's decision was given orally in the course of a telephone hearing on 16 November 2007. The application for an extension of time was filed in this Court on 22 January 2008. It was accompanied by an affidavit which the applicant had sworn on 11 January 2008 and a notice of appeal, also dated 11 January 2008. These documents were mailed from Pakistan where the applicant is presently resident. 2 The Court does not have before it the Tribunal's file. In particular it does not have the appeal notice that was lodged with the Tribunal or a transcript of the Tribunal's oral reasons for determining that it lacked jurisdiction to entertain the appeal. The Minister's solicitor was, however, able to provide a copy of a "hearing report" which indicates that the Tribunal found that the applicant was not entitled to make the application because of the provisions of s 52A(2) of the Australian Citizenship Act 1948 (Cth) ("the Act"). 3 It appears, from an affidavit sworn by a solicitor acting for the Minister, that the decision which the applicant desired the Tribunal to review was a decision of a delegate of the Minister to refuse to grant the applicant Australian citizenship. The application was made to the Australian High Commission in Islamabad on 30 April 2007 and rejected by letter dated 28 June 2007. The application was rejected because it was, at relevant times, a requirement that applicants for the grant of Australian citizenship be permanent residents of Australia: see s 13(1)(a) of the Act. The solicitor's affidavit deposes, on the basis of departmental records, that the applicant is not and has never been a permanent resident of Australia. 4 The records disclose that the applicant first came to Australia on a tourist visa in 2000. Shortly after arrival his in Australia the applicant sought a protection visa. On 15 June 2001 a delegate of the Minister refused to grant the protection visa and this decision was affirmed by the Refugee Review Tribunal in a decision handed down on 11 April 2003. A bridging visa, held by the applicant, expired on 22 May 2003. Despite this the applicant remained in Australia without a valid visa until 8 September 2006. He was then located by Immigration officers and was granted further bridging visas pending his voluntary departure from Australia on 2 October 2006. 5 The only explanation for the applicant's failure to make a timely application to this Court is to be found in the affidavit sworn on 11 January 2008. All that is said is that "I am an external/outsider and the correspondence almost take ample time to reach me." By this I understand the applicant to be suggesting that he did not receive formal advice from the Tribunal of its decision and of his (possible) right to seek review of the decision in this Court for some long time after 16 November 2007. The applicant does not state when he received the Tribunal's notification. 6 The applicant's draft notice of appeal contains the following "grounds": "It is humbly submitted that I applied for my lawful and genuine visa for Australia on the basis that I had been working in Seven Eleven for six years. I paid my taxes regularly to the Govt during my stay. Therefore kindly grant me visa for Australia. I assure you sir that I will abide by all the rules in true spirits. However my detailed reply is also attached on separate sheets for your kind consideration please." Those "separate sheets" were photocopies of documents relating to various aspects of the applicant's sojourn in Australia: Medicare records, a blood donor card, a record of service as an employee, a driving licence, taxation records and the like. 7 Many of these claims of a close and active association with Australia are reiterated in written submissions filed in support of the present application. In those submissions the applicant asserts that he has been jobless since his return to Pakistan and that he wishes the Court to grant him permission to return to Australia and once here regain employment. 8 In the course of a telephone hearing this morning the applicant confirmed that he has never been a permanent resident of Australia. He said that he had been misled about his status and his entitlement to remain in Australia by a migration agent. Otherwise he relied on the written material which had been filed in the Court. 9 By s 13(1)(a) of the Act it was a requirement for the grant of a certificate of Australian citizenship that an applicant was "a permanent resident". The applicant's application for citizenship was rejected because he did not satisfy this requirement. By s 52A of the Act it was provided that applications could be made to the Tribunal for review of decisions made under s 13 of the Act. This right was qualified by s 52A(2) which provided that: "(2) A person is not entitled to make an application under subsection (1) for review of a decision under section 13 … unless the person is a permanent resident." It was this provision that led the Tribunal to reject the applicant's purported appeal. Although the hearing report records a decision that the Tribunal had "no jurisdiction" I understand this to mean that there was no valid application before the Tribunal because the applicant had no entitlement to make the application. The Tribunal was plainly correct to so hold. 10 In circumstances such as the present the Court would ordinarily be disposed to grant an enlargement of time within which an appeal against the Tribunal's decision might be lodged. The applicant acted promptly once he received notice of the Tribunal's decision and no prejudice to the Minister was suggested. Any appeal against the Tribunal's decision would, however, be bound to fail. That being so the proper exercise of the Court's discretion requires that the application be dismissed. It will be so ordered. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 March 2008 Solicitor for the Applicant Self Represented Counsel for the Respondent: Ms E Loh Solicitor for the Respondent: Clayton Utz Date of Hearing: 4 March 2008 Date of Judgment: 4 March 2008