Federal Court of Australia Gan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 375 Review of: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 23 October 2020 by Member Dr L Bygrave File number: NSD 1216 of 2020 Judgment of: BURLEY J Date of judgment: 16 April 2021 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal upheld decision of delegate of the Minister to refuse the applicant's citizenship application – objection to competency of the application – application dismissed for lack of competency Legislation: Australian Citizenship Act 2007 (Cth) s 21, s 22, s 22A, s 22B, s 23, s 24 Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(b), s 44 Cases cited: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 31 March 2021 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms A Zinn of Mills Oakley ORDERS NSD 1216 of 2020 BETWEEN: SING KIAN GAN Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent order made by: BURLEY J DATE OF ORDER: 16 April 2021 THE COURT ORDERS THAT: 1. The Notice of Objection to Competency filed on 19 November 2020 be upheld. 2. The applicant is to pay the respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 RELEVANT LEGISLATION [8] 3 BACKGROUND [12] 3.1 The delegate's decision [12] 3.2 The Tribunal's decision [15] 4 THE PRESENT APPLCIATION [23] BURLEY J: 1. INTRODUCTION 1 The applicant, Mr Sing Kian Gan, first arrived in Australia on 23 February 1981 and currently holds a Resident Return (subclass 155) visa that was granted on 15 February 2019. In January 2020 he travelled to Malaysia to visit his father, who was mortally ill and has since passed away. By the time Mr Gan was scheduled to fly back to Australia, COVID-19 travel restrictions were in place and Mr Gan could not return to Australia. Mr Gan lodged an application for Australian citizenship by conferral in accordance with s 21 of the Australian Citizenship Act 2007 (Cth) on 21 June 2020. 2 On 14 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided to refuse Mr Gan's application for Australian citizenship because he did not satisfy the general residence requirements in ss 21 and 22 of the Act. Mr Gan then applied to the Administrative Appeals Tribunal for review of the delegate's decision on 17 July 2020. 3 The Tribunal considered and dismissed that application pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application had no reasonable prospect of success. 4 Mr Gan then filed in this Court a document styled as a "Notice of appeal from a tribunal" pursuant to s 44 of the AAT Act. Mr Gan contends the Tribunal erred as follows: 1. The Tribunal Member erred in fact and/or in law when she did not find the Respondent's decision to refuse my application for citizenship by conferral, solely on the requirement undder s 22(1)(c) and 22(1B), wrong. 2. The Tribunal Member erred in fact and/or in law when she did not consider the evidence presented before the Tribunal when making the decision to accept the Respondent's application to dismiss my appeal for no reasonable prospect of success. 3. The Tribunal Member erred in fact and/or in law when she did not find the Respondent's decision, solely on the requirement under s 22(1)(c) and 22(1B), wrong as the full merit of my application has not been considered. 4. The Tribunal Member erred in fact and/or in law when she did not consider that the Citizenship Act's polices are guidelines. In a Tribunal case, the Member quoted Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 376 states "The Tribunal is not bound to strictly apply the Policy, as it is not law". 5 The Minister has filed a Notice of Objection to Competency, contending that the Notice of Appeal fails to identify a question of law arising from the Tribunal's decision, as required by s 44(1) of the AAT Act. The Minister also contends that even if the Notice of Appeal properly identifies a question of law, no error of law is demonstrated. 6 Mr Gan appeared by telephone from Malaysia and represented himself at the hearing. The Minster was represented by solicitors Mills Oakley. Both parties filed written submissions. 7 For the reasons set out below, the Notice of Objection to Competency succeeds. 2. RELEVANT LEGISLATION 8 Section 21 of the Act sets out the process for applying for citizenship, as well as the eligibility criteria. It relevantly provides: (1) A person may make an application to the Minister to become an Australian citizen. 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. 9 Section 22 of the Act sets out the general residence requirement as follows: (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 (1A) If: (a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and (b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence. (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. … (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. 10 Section 24 of the Act deals with the decision to approve or refuse a citizenship application and relevantly provides: (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. (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). … (5) If: (a) the person is covered by subsection 21(2), (3) or (4); and (aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and (b) the Minister did not apply subsection 22(9) in relation to the person; and (c) the Minister did not apply subsection 22(11) in relation to the person; the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia. 11 Section 44(1) of the AAT Act sets out when a party may appeal to the Federal Court of Australia: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 3. BACKGROUND 3.1 The delegate's decision 12 On 21 June 2020, Mr Gan lodged an application for Australian citizenship by conferral. He was in Malaysia at the time he lodged his application. In his application, Mr Gan indicated that he sought a discretion to be exercised in relation to the residence criteria on the basis of "significant hardship or disadvantage". 13 On 14 July 2020, the delegate refused to grant Mr Gan Australian citizenship. The delegate noted that, to meet the general residence requirement in s 22 of the Act Mr Gan must satisfy all three requirements in subsections 22(1)(a), (b) and (c). The delegate found that s 22(1)(a) and (b) were met, but that s 22(1)(c) was not satisfied. As set out above, s 22(1)(c) relevantly required Mr Gan to have been present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship. 14 The delegate expressly had regard to s 22(1B) of the Act which allows for overseas absences for up to 90 days within the 12 months immediately before applying for citizenship to be taken as a period that the person was present in Australia, provided that the person remained a permanent resident throughout that time. However, the delegate found that records from the Department of Home Affairs indicated Mr Gan was absent from Australia for a total of 155 days in the 12 months immediately before he applied for citizenship, and therefore the provision in s 22(1B) did not assist him and he did not meet the residency requirements of s 22(1)(c) of the Act. The delegate also found that exercising the discretion in s 22(6) of the Act would not assist Mr Gan because he had been a permanent resident for more than 12 months and s 22(6) applies to periods of time spent in Australia when the applicant was neither a permanent resident nor an unlawful non-citizen. Further, there was no evidence that the special residence requirements in s 22A or s 22B were met. 3.2 The Tribunal's decision 15 In his application to the Tribunal Mr Gan relied in particular on an email from him to the Minister dated 5 June 2020, a letter to him from the Minster's office dated 7 July 2020, and an electronic airline ticket confirming his flights from Sydney to Kuala Lumpur on 17 January 2020 and proposed return on 12 February 2020. 16 The Tribunal noted that Mr Gan did not dispute that he departed Australia on 17 January 2020 and remains overseas. Nor did he dispute that at the date of his application for Australian citizenship on 21 June 2020 he had been absent from Australia for a period of 155 days. The Tribunal then recorded the circumstances surrounding Mr Gan's absence from Australia, and his application for citizenship, 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'. 17 The Tribunal then proceeded to consider whether the Act provided a mechanism whereby Mr Gan could secure the exercise of Ministerial or other discretion, or otherwise fall within an exception provided for in the Act to the requirements of s 22(1B)(b) (namely, that he not be absent from Australia for more than 90 days). 18 In this respect the Tribunal specifically considered the operation of s 22(6) and concluded that because Mr Gan 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. Mr Gan does not, and cannot, criticise this reasoning. 19 The Tribunal then turned to consider whether there was any other discretion in the Act that may apply to his situation, noting that the options for this course included: • administrative error (subsections 22(4A) and 22(5) of the Act); • confinement in prison or a psychiatric institution (subsection 22(5A) of the Act); • the person is a spouse or de factor partner of an Australian citizen (subsections 22(9) and 22(10) of the Act); or • the person is in an interdependent relationship (subsection 22(11) of the Act). 20 I note parenthetically that although Mr Gan submits that his wife's application for citizenship by conferral was approved on 24 February 2021, as the Tribunal noted at [16] of its reasons, at the time of its decision (and, I add, at the time of Mr Gan's application for citizenship), her application had not been considered by the Minister and therefore the Ministerial discretions in ss 22(9) and 22(10) could not apply to Mr Gan's 21 June 2020 citizenship application. Mr Gan could, perhaps, now submit a new citizenship application seeking to have his wife's citizenship taken into account, assuming he continues to meet the other criteria specified in the Act. 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. 22 The Tribunal then considered the special residence requirements in ss 22A and 22B, and defence service requirements in s 23 of the Act and, after summarising each of those sections concluded that Mr Gan did not meet any of those requirements. Again, Mr Gan does not criticise the Tribunal's reasoning in this regard and, in my respectful view, nor could he. 23 The Tribunal concluded that Mr Gan's application for review had no reasonable prospect of success and accordingly dismissed the application pursuant to s 42B(1)(b) of the AAT Act. 4. THE PRESENT APPLICATION 24 Mr Gan raises substantially the same arguments that were ventilated before the Tribunal. He accepts that his application for citizenship does not comply with the requirements of s 22(1B)(b) because of his absence overseas for a period in excess of 90 days. One can understand his dismay, and also his frustration, that his application should be refused in the current circumstances. As he explains in his submissions, when he left Australia on 20 January 2020, he did not intend to be absent for such a long period of time. He departed Australia in order to visit his ill father for the last time, and whilst absent the COVID-19 virus and lockdowns across the world precluded, and continue to preclude, his return to Australia. He applied for citizenship online whilst in Malaysia, hoping that his forced absence would not preclude him from satisfying the requirements set out in the Act. 25 In an attempt to identify an error, or perhaps an error of law, on the part of the Tribunal, Mr Gan submits that the Minister waived the general residence requirements of the Act. The way that he puts this proposition relies on the circumstances of his completion of the online application form. In essence, he submits that he commenced completing the online form and following the prompts required, but was unable to complete it apparently because he had indicated that he was not present in Australia and the online form therefore would not allow him to proceed. He communicated with the Department about his inability to complete the form and, he submits, a minor adjustment was made to the system and he was advised that he would be able to complete the form by specifying that he sought a residence exception or discretion for "significant hardship or disadvantage". Once Mr Gan had completed the application form in this manner the form was accepted. 26 Mr Gan submits that the acceptance of the form signified general satisfaction on the part of the Department that he had met the general residence requirements under the Act, given that the online form seems to be programmed to prevent the submission of applications if the applicant is not located in Australia when completing the form. He submits that a letter dated 7 July 2020 from the Department, which confirmed that his application had been successfully received, provided confirmation that the general residence requirement had been waived. He submits that the letter was not taken into consideration by the delegate in her decision of 14 July 2020. As Mr Gan is a litigant in person I will assume that he also submits that the Tribunal erred in failing to take these matters into consideration. 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. I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate: Dated: 16 April 2021