Milne v Minister for Immigration & Citizenship [2009] FCA 730

FEDERAL COURT OF AUSTRALIA

Milne v Minister for Immigration & Citizenship [2009] FCA 730

MIGRATION – judicial review of decision of delegate of Minister for Immigration and Citizenship – whether inconsistency in wording of s 22(9)(c) of Australian Citizenship Act 2007 (Cth) – whether s 22(9)(c) requires applicant to have been a permanent resident during relevant period Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Citizenship Act 2007 (Cth) ss 21(1), 21(2), 22(1), 22(5), 22(6), 22(9) Federal Court of Australia Act 1976 (Cth) s 31A(2) Federal Magistrates Act 1999 (Cth) s 39 Federal Magistrates Court Rules 2001 (Cth) r 8.02 Migration Act 1958 (Cth) ss 45B(1), 46(1)(ba), 47(3) LLOYD WESTBROOKE MILNE and ANOR v MINISTER FOR IMMIGRATION & CITIZENSHIP

NSD 380 of 2009

EMMETT J

3 JUNE 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 380 of 2009

BETWEEN: LLOYD WESTBROOKE MILNE

First Applicant

KATHIMA KINGWONGSA

Second Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 3 JUNE 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The proceeding be dismissed. 2. The applicants pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 380 of 2009

BETWEEN: LLOYD WESTBROOKE MILNE

First Applicant

KATHIMA KINGWONGSA

Second Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: EMMETT J

DATE: 3 JUNE 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding concerns the construction of provisions of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). It relates to a decision made on 5 February 2009 by a delegate of the respondent, the Minister for Immigration and Citizenship (the Minister). By that decision, the Minister's delegate rejected an application by the second applicant, Ms Kathima Kingwongsa, for Australian citizenship by conferral. The first applicant, Mr Lloyd Milne, is Ms Kingwongsa's husband, pursuant to a ceremony conducted overseas in Thailand. Ms Kingwongsa is a Thai national. Mr Milne has appeared in person and, without objection from the Minister and with the leave of the Court, has appeared on behalf of Ms Kingwongsa. 2 The matter was originally commenced in the Federal Magistrates Court on 3 April 2009. By his Response of 24 April 2009, the Minister contended that the Federal Magistrates Court had no jurisdiction in relation to the proceeding. Accordingly, on 27 April 2009, for reasons then given, Cameron FM ordered, pursuant to s 39 of the Federal Magistrates Act 1999 (Cth), and rule 8.02 of the Federal Magistrates Court Rules 2001 (Cth), that the proceeding be transferred to the Federal Court. 3 When the matter came before me for directions on 20 May 2009, I directed the applicants to file and serve an amended application specifying the decision in respect of which judicial review was sought, the source of the Court's jurisdiction to review the decision and the grounds of review. I stood the matter over to today for hearing. 4 Pursuant to my direction, an amended application for an order of review was filed on 27 May 2009. That document is a difficult document, in the sense that it contains a great deal of material and does not expressly address the three issues to which I referred in my direction. I accept, however, that the document, having been prepared by Mr Milne, without legal assistance, represents a genuine attempt by him to comply with the direction that I gave on 20 May 2009. After some dialogue with Mr Milne I understand that, by the proceeding, he seeks to obtain judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of the Minister's delegate of 5 February 2009. 5 Following that decision it appears that Ms Kingwongsa lodged an application to the Minister for a partner visa. By letter of 13 March 2009, the Minister's delegate returned the application, saying that the application had been determined as invalid and could not be processed because it was not accompanied by the visa application charge of $2,105. It may be that that is a decision which is covered by the amended application. However, as will become apparent, even if that decision were to be set aside, assuming it is a decision, it would not affect the validity of the decision of 5 February 2009. 6 Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies certain criteria. Relevantly, s 21(2)(b) provides that the person must be a permanent resident at the time the person made the application and at the time of the Minister's decision on the application. Section 21(2)(c) provides that the person must satisfy the residence requirement, under s 22, at the time the person made the application. 7 Section 22(1) provides that a person satisfies the residence requirement for the purpose of s 21 if three prerequisites are satisfied, namely: (a) the person was present in Australia for the period of four years immediately before the day the person made the application; (b) the person was not present in Australia as an unlawful non-citizen at any time during that four 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. 8 Section 22(1)(c) is critical to the proceeding presently before the Court. Ms Kingwongsa did not satisfy the prerequisite of s 22(1)(c) in that, while she has been present in Australia as the holder of tourist visas for various periods, she has not been present in Australia as a permanent resident at any time. The point of the present proceeding is that the applicants seek to challenge the construction placed by the Minister's delegate on several provisions of s 22, which qualify the operation of s 22(1)(c), namely, the requirement that a person satisfies the residence requirement only if the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person makes an application for Australian citizenship by conferral. 9 A complaint made on behalf of the applicants by Mr Milne is that, for what he asserts are unlawful reasons, the Minister's department has failed to process proper applications for permanent residence he made on behalf of Ms Kingwongsa. Whether or not the rejections of applications or decisions refusing permanent residency in the past are capable of review is not a matter presently before me. It may be, and I express no view about the matter at all, that Ms Kingwongsa and Mr Milne may have some remedy in relation to some conduct in the past on the part of the Minister's department or officers of the department. 10 Section 22(5) provides that, for the purposes of s 22(1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period. The Minister's delegate considered whether administrative error had occurred in relation to Ms Kingwongsa's circumstances. The Ministers' delegate stated that Mr Milne claimed that an administrative error was made by the department that resulted in both he and Ms Kingwongsa being unable to stay in Australia. 11 The difficulty with the contention of administrative error is that s 22(5) is predicated upon a person being present in Australia during a period. The material before the delegate indicates Ms Kingwongsa had previously arrived in Australia on 21 November 2008, as the holder of a subclass 676 short-stay visa. That is to say, she had not been present in Australia for the period of 12 months immediately before the day the application was made. Accordingly, no question of administrative error could arise that would attract the operation of section 22(5). 12 Section 22(6) provides that, for the purposes of s 22(1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident, relevantly, if the person was present in Australia during that period, except as a permanent resident, and the Minister is satisfied that the person will suffer hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident. On the other hand, where s 22(9) applies, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if, relevantly: · the person was not present in Australia during that period; and · the person was a permanent resident during that period. Section 22(9) applies, relevantly, where the person is the de facto partner of an Australian citizen at the time the person makes the application. The Minister's delegate accepted that Ms Kingwongsa was the de facto partner of Mr Milne, who is an Australian citizen. 13 The substantial argument advanced on behalf of the applicants by Mr Milne is that there is an inconsistency in the language of s 22(9)(c). I do not consider that his contentions as to that matter are correct. The scheme of the exceptions constituted by ss 22(5), 22(6) and 22(9) is to provide exception to the prerequisite of s 22(1)(c), namely, that for a relevant period a person must be present in Australia as a permanent resident. There are two elements in that concept, namely, being present in Australia and being so present as a permanent resident. 14 Section 22(5) is directed to the second element. Thus, in specified circumstances, where a person was present in Australia during a relevant period, the Minister may treat that presence as presence as a permanent resident even though the person was not present as a permanent resident. 15 Sections 22(6) and 22(9), in a sense, complement each other. Each is concerned with a different exception. Section 22(6) is directed to the question of whether a person was present as a permanent resident during the relevant period. Section 22(9) is concerned with the question of whether the person was present in Australia during the relevant period. 16 Thus, under s 22(6), a person may be treated as having been present in Australia, as a permanent resident, even though the person was not a permanent resident during the relevant period. On the other hand, under s 22(9), a person may be treated as being present in Australia even though the person was not in fact present in Australia during the relevant period. That is to say, the two provisions are directed to the two separate elements of the prerequisite of s 22(1)(c). 17 In one case the Minister may treat a person as being present as a permanent resident even though the person was not a permanent resident. In the other case, the Minister may treat a person as having been present in Australia even though the person was not present in Australia. In the first case, the prerequisite is that the person was in fact present in Australia. In the second case, the prerequisite is that the person, even though not present in Australia, was in fact a permanent resident during that period. 18 It is unarguable that Ms Kingwongsa was not a permanent resident during any relevant period. It follows that the ground upon which Mr Milne and Ms Kingwongsa seek to impugn the decision of 5 February 2009 cannot succeed. 19 Insofar as the present proceeding puts in issue the rejection of the application for a permanent residence visa, that application also cannot succeed. Under s 46(1)(ba) of the Migration Act 1958 (Cth), an application for a visa is valid if and only if, relevantly, any visa application charge that the regulations require to be paid at the time when the application is made has been paid. Section 45B(1) provides that the amount of visa application charge is the amount prescribed in relation to the application. Section 47(3) provides that the Minister is not to consider an application that is not a valid application. 20 While Mr Milne says that he is entitled to have a fee waived in some circumstances, there can be no doubt that the relevant visa application charge was not paid in connection with the application lodged on behalf of Ms Kingwongsa on 13 March 2009. In so far as the proceeding relates to a review of the decision to treat that application as an invalid application, it cannot succeed. 21 When the matter was called on for hearing this morning, the Minister invited the Court to dismiss the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Under that provision, the Court may give judgment for one party against another in relation to the whole or any part of the proceeding if the first party is defending the proceeding and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. To avoid any argument as to whether or not an order for dismissal under s 31A is interlocutory or otherwise, the parties accepted that it was appropriate that I treat the hearing today as a final hearing of the proceeding. 22 It follows that the proceeding must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.