FEDERAL COURT OF AUSTRALIA Islam v Minister for Immigration and Citizenship [2011] FCA 933 Citation: Islam v Minister for Immigration and Citizenship [2011] FCA 933 Appeal from: Islam and Minister for Immigration and Citizenship [2011] AATA 335 Parties: A R SHAFIN ISLAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 747 of 2011 Judge: BENNETT J Date of judgment: 12 August 2011 Catchwords: ADMINISTRATIVE LAW – pursuant to s 42B of Administrative Appeals Tribunal Act 1975 (Cth) Tribunal dismissed application for review of decision of first respondent refusing appellant's application for citizenship – whether Tribunal had jurisdiction under s 52(2) of Australian Citizenship Act 2007 (Cth) to determine application – whether Tribunal correctly applied s 21(2)(b) of Australian Citizenship Act – whether appropriate for Tribunal to apply s 42B of Administrative Appeals Tribunal Act Legislation: Administrative Appeals Tribunal Act (Cth) s 42B Australian Citizenship Act 2007 (Cth) ss 5, 21(2), 22(1), 22(6), 52 Cases cited: Re Williams & Australian Electoral Commission & the Greens (1995) 38 ALD 366 cited Date of hearing: 12 August 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms M Stone of DLA Piper Counsel for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 747 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: A R SHAFIN ISLAM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BENNETT J DATE OF ORDER: 12 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 747 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: A R SHAFIN ISLAM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BENNETT J DATE: 12 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant, Mr Islam, appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) which, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), dismissed his application for review of a decision of the Minister for Immigration and Citizenship (the Minister). 2 On 29 January 2006, Mr Islam arrived in Australia as the holder of a subclass 676 Tourist Visa and has remained in the country since that date. On 7 February 2006, he was granted a Bridging Visa A and since that time has been granted a series of Bridging Visa E's. On 28 January 2011, Mr Islam applied for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act). 3 A delegate of the Minister refused Mr Islam's application for Australian citizenship on the basis that he was not a "permanent resident" at the time of the application and the Minister's decision as required by s 21(2)(b) of the Act. 4 It was not in dispute before the Tribunal and the Court that at the relevant times Mr Islam was not a "permanent resident" as defined in s 5 of the Act. The finding of the Tribunal that formed the basis for its decision to dismiss Mr Islam's application was that, pursuant to s 21(2) of the Act, a person is only eligible to become an Australian citizen if the Minister is satisfied that the person was a "permanent resident" at the relevant times. Grounds of Appeal 5 The questions of law as framed in Mr Islam's notice of appeal are: 1. That the Tribunal did not understand its imperative responsibilities under s 2A of the AAT Act. 2. That the Tribunal did not follow the relevant law, ss 42B and 43(1) of the AAT Act. 3. That the Tribunal did not consider s 62A of the AAT Act regarding a decision of the Minister where the delegated officer put the wrong section of the Act. 4. That the Tribunal did not understand the application of s 21(2) of the Act. 6 The issues raised by Mr Islam relevant to this appeal in his written submissions are, in essence, that: he complied with the information given by the Department for Immigration and Citizenship in completing his application for citizenship. That information makes no reference to a requirement of permanent residency and does make reference to a ministerial discretion; he requested the exercise of the Minister's discretion under s 21(2) of the Act. Under s 22(6) of the Act the Minister may treat a person's presence as permanent residence for the purposes of s 22(1)(c) of the Act; the Tribunal failed to give reasons for its decision as required by s 43(1) of the AAT Act; and the delegate of the Minister put the wrong section of the Act into the delegate's decision. 7 Another matter raised by Mr Islam concerned the reliance by the Tribunal in its reasons on the Minister's submissions and a failure to consider his submissions. The Tribunal states in its reasons that it considered the argument of both parties. Indeed, the Tribunal adjourned the matter to enable Mr Islam to obtain legal advice and to provide further submissions. Nothing further was heard from Mr Islam and the Tribunal proceeded to make a decision. I see no error on the part of the Tribunal in the procedural course that it took. Consideration Grounds 1, 2 and 4 8 The Tribunal outlined the Minister's submission that Mr Islam's application should be dismissed pursuant to s 42B of the AAT Act as frivolous or vexatious. The Tribunal set out the test to be applied if proceedings are to be regarded as vexatious, irrespective of the motive of the litigant. The test stated by the Tribunal, which was derived from Re Williams & Australian Electoral Commission & the Greens (1995) 38 ALD 366 was, relevantly, that: [Proceedings] are to properly be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 9 The Tribunal stated that its reasons for dismissing Mr Islam's application for citizenship were that, pursuant to s 21(2) of the Act, Mr Islam's application could not succeed and that the application must be dismissed (at [15]). The Tribunal then dismissed the application pursuant to s 42B of the AAT Act. 10 The Minister submits that, read as a whole, the Tribunal gave adequate reasons for dismissing Mr Islam's application as vexatious pursuant to s 42B of the AAT Act. 11 In my view, the Tribunal's reasoning as to why it applied s 42B of the AAT Act is not clear. It is not clear from the Tribunal's reasons why s 21(2) of the Act alone made Mr Islam's application so obviously untenable or manifestly groundless as to be utterly hopeless based upon Mr Islam's submissions as to the application of s 22(6) of the Act. However, it is also apparent that the Tribunal determined to dismiss Mr Islam's application based upon the application of s 21(2) of the Act. It is therefore necessary to look to Mr Islam's submissions in that regard. 12 Section 21 of the Act concerns applications made to the Minister for Australian citizenship. Section 21(2) provides relevantly that a person is eligible to become an Australian citizen if the Minister is satisfied that the person: … (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 … 13 Section 5 of the Act provides relevantly that: (1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if: (a) the person is present in Australia at that time and holds a permanent visa at that time… 14 It is not in dispute that Mr Islam has never been the holder of a permanent visa. 15 Section 22 of the Act relates to the general residence requirement. Section 22(1) relevantly provides: 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 … (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. (original emphasis) 16 Section 22 (6) states: 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 person were not treated as one during which the person was present in Australia as a permanent resident. 17 Mr Islam submits that the Tribunal erred in not taking into consideration the obligation of the Minister to consider the discretionary matters set out in s 22(6) for the purpose of his eligibility to make an application for citizenship. However, it is quite clear from the structure of the Act and from the words of s 22(6) that the discretion available in that subsection relates to the assessment of whether an applicant meets the general residence requirement under s 22(1), which, although relevant to the eligibility criteria in s 21(2)(c), does not apply to the eligibility criteria in s 21(2)(b). 18 That is, the discretions in s 22(6) are not available to overcome the eligibility requirement under s 21(2)(b) that an applicant be a "permanent resident" at the time of both the application and the Minister's decision. 19 The Tribunal gave reasons for its decision as to the application under the Act. The reasons were short but relevantly sufficient to be clear. There is no dispute that Mr Islam was not a permanent resident at the relevant times. As the Tribunal explained, s 21(2) of the Act meant that Mr Islam was not eligible to become an Australian citizen and that his application before the Tribunal to review the decision of the Minister had to be dismissed. 20 Mr Islam also relies on the "Application for Australian citizenship" form completed for his citizenship application (Form 1300t) and draws attention to the reference to ministerial discretions on page 2 of Form 1300t. 21 The above consideration of the application of ss 21(2) and 22(6) of the Act also deals with Mr Islam's complaint about his reliance upon Form 1300t. It is quite clear upon examination of Form 1300t that the Ministerial discretions on page 2 relate to step 2 as set out in the Form 1300t, which is the residence requirement, and not to step 1, which concerns eligibility. Properly read there is nothing in Form 1300t that is inconsistent with the Act. Ground 3 22 Mr Islam takes issue with a typographical error in the decision record of the Minister's delegate. This was also raised by Mr Islam in his letter to the Tribunal dated 11 April 2001. At page 3 of the delegate's decision, the delegate incorrectly cited ss 22(2)(b)(i) and (ii) instead of ss 21(2)(b)(i) and (ii) of the Act. It is clear from the decision record that this was a typographical error only and that the correct subsections are otherwise cited throughout the delegate's decision. In any event that error was not repeated in the Tribunal decision and the Tribunal was conducting a review of the delegate's decision. In his written submissions Mr Islam asserts that the Tribunal erred by not considering his argument about the delegate's mistake but, as the Minister submits, the Tribunal was conducting a de novo merits review and the typographical error made by the delegate was not relevant to this task. Operation of Section 52(2) of the Act 23 Section 52(1)(b) provides that an application may be made to the Tribunal for review of a decision pursuant to s 24 to refuse to approve a person becoming an Australian citizen. Section 52(2) provides: However, if: (a) the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and (b) the Minister's reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and (c) the person was aged 18 or over at the time the person made the application to become an Australian citizen; a person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident. (original emphasis) 24 The Minister makes the alternative submission that pursuant to s 52(2) of the Act the Tribunal did not have jurisdiction to review the delegate's decision as Mr Islam was not a "permanent resident". The Tribunal did not have the opportunity to consider this matter as it was not raised before it. 25 The Minister submits that as the Tribunal did not have jurisdiction to entertain Mr Islam's application, even if the Tribunal had committed an error of law the Court in its discretion should not remit the matter to the Tribunal because it would be futile to do so. It follows that, even if I were of the view that the Tribunal did not give sufficient reasons for its decision to dismiss the application pursuant to s 42B of the AAT Act it would be futile to remit the matter to the Tribunal both because of the lack of jurisdiction on the part of the Tribunal and because the Tribunal's decision as to the application of 21(2) of the Act has not been shown to be in error. 26 I do not express a view as to the application of s 52(2) of the Act in cases in which an applicant's status as a "permanent resident" within the meaning of Act is in dispute. Conclusion 27 The Tribunal did not err in dismissing Mr Islam's application for review of the Minister's decision. It follows that the appeal should be dismissed. Mr Islam is to pay the Minister's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 17 August 2011