Federal Court of Australia Minister for Immigration, Citizenship and Multicultural Affairs v Broide [2025] FCA 13 Appeal from: Broide v Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 387 File number: SAD 39 of 2024 Judgment of: CHARLESWORTH J Date of judgment: 23 January 2025 Catchwords: STATUTORY INTERPRETATION – where s 22B of the Australian Citizenship Act 2007 (Cth) prescribed conditions depending upon when a citizenship application was made to the Minister for Immigration, Citizenship and Multicultural Affairs – whether on the proper construction of s 22B an application was made at the time that it was dispatched, rather than at the time that it was received Legislation: Australian Citizenship Act 2007 (Cth) ss 21, 22B, 24, 46, 52 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Migration Act 1958 (Cth) s 501CA Social Security Act 1991 (Cth) s 1185G Cases cited: Broide v Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 387 Secretary, Department of Family and Community Services v Haagar (2001) 115 FCR 25 Somai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4087 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 28 Date of hearing: 29 August 2024 Counsel for the Applicant: Mr P Knowles SC with Mr N Swan Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: The Respondent appeared in person ORDERS SAD 39 of 2024 BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Applicant AND: DAVID HENRY BROIDE Respondent order made by: CHARLESWORTH J DATE OF ORDER: 23 JANUARY 2025 THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal made on 16 February 2024 be: (a) set aside; and (b) substituted with a decision affirming the decision of the applicant's delegate made on 19 January 2023 refusing the respondent's application for Australian Citizenship. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J 1 An eligible person may make an application for Australian citizenship to the Minister for Immigration, Citizenship and Multicultural Affairs under s 21(1) of the Australian Citizenship Act 2007 (Cth). To be eligible, the person must satisfy the Minster that (among other things) one of the alternate criterion in s 21(2)(c) is fulfilled. That can be done if the person satisfies the "special residence requirement" in s 22B of the Act at the time that the person makes the application. Section 22B provides a pathway for eligibility for Australian citizenship for permanent residents engaged in specialised work who must regularly travel outside of Australia. Section 22B(1)(c) requires such an applicant to be present within Australia for a total of at least 480 days "during the period of 4 years immediately before the day the person made the application". 2 Professor David Henry Broide is a citizen of the United States of America and South Africa. He arrived in Australia on 11 April 2015 as the holder of a Distinguished Talent visa. The visa recognised his work in asthma and allergy research and his academic contribution in that field. In the years following his arrival, Professor Broide spent periods of time in Australia related to his work. 3 On 5 April 2022 Professor Broide completed an application form for Australian citizenship in which he asserted that he fulfilled the "special residence requirement" in s 22B of the Act. He was at that time residing in San Diego California. He handed the application form and supporting documents to an international courier, DHL Express Worldwide on 7 April 2022 for express delivery from California to Australia. On the same day he paid a fee prescribed for the application in accordance with the Act. As at 7 April 2022 Professor Broide had been present in Australia for a total of 498 days in the previous four years. 4 Delivery of the document was not as express as Professor Broide expected it might be. It arrived in Sydney on 14 April 2022 and was not delivered to the Department of Home Affairs (administered by the Minister) until 29 April 2022. In the four years prior to that date, Professor Broide had resided in Australia for 477 days. 5 A delegate of the Minister concluded that the application had been made on the day that it was received by the Department. On that basis, the delegate found that Professor Broide did not satisfy the special residence requirement in s 22B of the Act and his application for citizenship was refused. 6 On Professor Broide's application, the Administrative Appeals Tribunal reviewed the delegate's decision in the exercise of its powers under s 52 of the Act. The Tribunal concluded that Professor Broide's citizenship application was made on 7 April 2022, being the date on which it had been dispatched. Accordingly, the Tribunal found that Professor Broide satisfied the special residence requirement and set the delegate's decision aside: Broide v Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 387. 7 This appeal from the Tribunal's decision is brought by the Minister under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is limited to questions of law. The appeal gives rise to a single issue of construction: whether, for the purposes of s 22B(1)(c) of the Act, an application is "made" on the date that it is dispatched or on the date that it is received. 8 Neither party has drawn the Court's attention to any prior authority of this Court directly addressing the question The Tribunal member considered two prior Tribunal decisions yielding different answers: Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730 (in which it was held that an application was made on the date that the Department received it) and Somai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4087 (in which it was held that the application was made on the date that it was dispatched). This Court is bound by neither of those decisions. 9 Professor Broide appeared self-represented on this appeal. His arguments focussed for the most part on an alleged error in the Tribunal's approach in resolving conflicting prior Tribunal decisions. It is unnecessary to resolve those arguments. The outcome of this appeal turns upon the proper construction of s 22B of the Act, not upon any procedural question concerning inconsistent Tribunal decisions. 10 For the reasons that follow, I have concluded that the construction advanced in the Minister's submissions should be preferred. Consideration 11 Section 21(1) of the Act provides that "[a] person may make an application to the Minister to become an Australian citizen". As mentioned earlier, eligibility in Professor Broide's case depended on the application of s 22B(1). It is as follows: (1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if: (a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and (b) the following apply: (i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application; (ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and (c) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and (d) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and (e) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and (f) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and (g) the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application. 12 In order for a valid application to be "made" under s 21 it must fulfil other procedural requirements, including that it contain the things specified in s 46 of the Act. Section 46 contemplates that the application will contain all of the information necessary to support it: it must be made on a form approved by Minister, it must contain all of the information elicited by that form, it must be accompanied by other information and documents required by the regulations and it must be accompanied by the relevant fee. 13 If a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen: Act, s 24(1). By way of wider legal context, a failure or refusal of the Minister to perform that obligation (once it arises) may be remedied by orders with declarations and or orders having the effect of compelling performance. 14 As the Tribunal observed, the question of when an application is "made" gives rise to at least two constructional choices. Either an application is made when the applicant does all that he or she can do to put the Minister in possession of it, or it is made when the application is received by the Minister (in practical terms, when it is delivered to the Department). 15 As Kiefel CJ, Nettle and Gordon JJ said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (at [14]), the starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose. Context is to be considered at the first stage of the construction process, and is to be regarded in its widest sense. 16 Considered alone, the word "made" does not obviously supply the answer to the question arising on this appeal, thus making the context all the more important. 17 The context of s 22B is one in which a person may make an application under s 21 of the Act "to the Minister", giving rise to an obligation on the part of the Minister to approve or refuse to approve the person becoming a citizen. The obligation to decide includes an obligation to determine whether the applicant is an "eligible person" and so requires that the Minister form a state of satisfaction as to whether or not (in this case) the special residency requirement is fulfilled by reference to an identifiable date. 18 There are two related aspects of that statutory context that support the Minister's argument. 19 The first is that the act of making an application is one that involves the citizen applicant applying "to the Minister" (emphasis added). The phrase envisages that the application will be communicated by one person (the applicant) to another (the decision-maker). In Secretary, Department of Family and Community Services v Haagar (2001) 115 FCR 25, Cooper J construed s 1185G of the Social Security Act 1991 (Cth), which made provision for the backdating of a benefit to the date upon an application for the benefit was made. His Honour said: 24 It is apparent that the written request in the approved form is not made in a vacuum. It is a request ultimately made to or of the Secretary to be acted upon by the Secretary in terms of s 1185J(1). Section 1185J(1), in its ordinary sense, contemplates that at the time when the Secretary is required to consider the matters in s 1185J(1)(b), he or she has available the written request in the form required by s 1185J(1)(a). That is, s 1185J(1) does not contemplate a situation where a request can be made to or of the Secretary without the Secretary having received a request in the statutory form. 25 Once it appears that the statutory scheme contemplates the giving of notice of the request, including the contents of the request, to the Secretary and for it to be acted upon by the Secretary, it is difficult to avoid the conclusion that the legislature intended that the request would be made for the purpose of s 1185G when a request in the statutory form was at the latest received by Centrelink for consideration by the Secretary and that no request was made, in the sense of being complete, until it was received by or on behalf of the Secretary as the person empowered to grant the request. 20 Here, as in Haagar, s 22B must be considered in the context of the mandatory duty imposed by s 24(1) of the Act to decide an application made to the Minister. It seems to me that a duty to consider and decide a citizenship application is one that cannot be performed in a practical sense unless the Minister (by the Department) is in actual possession of it. As I have mentioned, the legal context is one in which a citizenship applicant whose application is not decided may be entitled to remedies having the effect of compelling performance. The circumstance that the Minister's duty cannot be performed without actual possession of the application strongly suggests that the application is "made" when that possession occurs. I do not consider that Parliament could have envisaged the imposition of a duty on the Minister to decide an application that has been despatched but not yet delivered. 21 Second, and relatedly, the Minster must be in position to identify the date upon which an application is "made" with precision, in order for the time calculations in s 22B(1)(c) (and elsewhere in the Act) to be performed. If the construction favoured by the Tribunal is correct, the Minister may not know the date upon which the application was "made" without reverting to the applicant. Whilst that would not be impossible to do, it does introduce the possibility of an additional step to be made by the Minister in ascertaining when the application was dispatched. As in the present case, the date on which an application was dispatched may not be apparent on the face of the document itself, Professor Broide having signed the form on 5 April 2022 and then placing it into the hands of an international courier two days later. The possibility of uncertainty tends to undermine the intent evinced by s 46 that the Minister will have before him or her all of the information necessary to perform the duty to decide. 22 I am reinforced in that view by the number of instances in which the date upon which an application is "made" assumes prescriptive significance in the scheme. Contemplation of when an application is "made" includes an assessment of the validity of the application against all of the mandatory requirements of s 46. Again, that can only be done when an application or purported application is received in fact and so able to be considered. As Counsel for the Minister acknowledged, receipt through the agency of the Department is sufficient. 23 Before concluding I will briefly mention four matters referred to in the reasons of the Tribunal. 24 First, the Tribunal had regard to the importance of certainty from the point of view of the citizenship applicant, specifically in ascertaining when a citizenship application fulfilling the special residence requirement can be made. The present case is a stark illustration of the disadvantages flowing from the Minister's preferred construction when considered from the point of view of the citizenship applicant. The facts are such that at the time that he dispatched the application, Professor Broide satisfied the special residency requirement, but by the time the application was delivered to the Department, it did not. That in large part is due to the unusual circumstance that a document dispatched by "express" courier took 22 days to arrive at its destination, but similar kinds of uncertainty in predicting the outcome of the application at the time of its dispatch may arise when the delay between delivery and dispatch is shorter. Whilst that is a relevant circumstance in construing the provisions of the Act, in my view the risk of uncertainty from the citizenship applicant's point of view may be overcome in other ways contemplated by the statute itself. They include the circumstance that an application may be transmitted electronically and the circumstance that the citizenship applicant may time the making of the application in accordance with his or her knowledge as to the number of days he or she has been present in Australia as at the date that the application is likely to be received by the Department having regard to the risk of delay. Accordingly, uncertainty viewed from the perspective of the citizenship applicant is insufficient of itself to justify the construction advanced by Professor Broide on the appeal. 25 Second, the Tribunal considered that if the Minister's construction were to be adopted, s 22B(1)(c) would have the potential to operate differently depending on the manner of lodgement (that is, depending on whether lodgement is made electronically or by delivery of hard copy documents). Respectfully, there is no relevant legal difference: in each instance the date upon which the application is made to the Minister is the date on which it is received by the Department, whether by tangible delivery or electronic communication. The circumstance that there exists a factual difference (including the risk of unexpected delay or ordinary delay associated with mail) does not introduce any arbitrariness in the legal sense. 26 Third, the Tribunal took the view that the word "made" is an "active verb" suggesting "action by the maker". Whilst that is true, the word "made" must be considered in its textual context and against the broader context discussed above. In short, the action contemplated by the word "made" is the act of communicating information to the Minister so as to enliven and facilitate the performance of the obligation to decide the application. 27 Finally, the Tribunal considered a number of authorities, including some earlier Tribunal decisions as well as the judgment of the Full Court in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578. It is not necessary to consider the earlier Tribunal decisions. The Full Court in Stewart concluded that representations were "made" under s 501CA(3) of the Migration Act 1958 (Cth) at the time that they were dispatched, rather than the date upon which they were received. That result is explained in large part by the different statutory context, specially the fact that the person making the representation would necessarily be in detention at the time that the representations were made. 28 In the result, I am satisfied that the Tribunal erred in law in its construction of s 22B of the Act. There will be orders setting its decision aside and substituting it with a decision to the effect that the delegate's decision to refuse Professor Broide's citizenship application be affirmed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate: Dated: 23 January 2025