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Administrative Appeals Tribunal of Australia |
Last Updated: 1 October 2021
FXXN and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (Citizenship) [2021] AATA 3525 (27 September
2021)
File Number: 2021/2552
Re: FXXN
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member D.
J. Morris
Date: 27 September 2021
Date of written reasons: 1 October 2021
Place: Melbourne
The Tribunal dismissed the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the application has no reasonable prospect of success.
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Senior Member D. J. Morris
CITIZENSHIP – where applicant applied for Australian citizenship by conferral – where applicant held protection visa at time of application – where a delegate of Minister refused application as not satisfied applicant was of good character – applicant sought review before Tribunal – where a delegate of Minister has since cancelled Applicant’s visa – where Applicant seeking separate review of that decision before Tribunal – application dismissed as having no reasonable prospect of success
PRACTICE AND PROCEDURE – where essential requirement underpinning
application no longer present – where no discretion
exercisable that could
be beneficial to applicant – where not appropriate to exercise power to
adjourn application –
where applicant may lodge fresh application in
future if circumstances change – application dismissed as having no
reasonable
prosect of success – oral decision followed by written
reasons
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33A, 35, 40, 42B, 42C, 43
Australian Citizenship Act 2007 (Cth), ss 5, 21, 22, 24, 52
Migration Act 1958 (Cth), ss 5, 30, 109
Cases
Filsell and Comcare;
Re [2009] AATA 90; (2009) 109 ALD 198; (2009) 49 AAR 506
Lavigne and
Minister for Immigration and Border Protection; Re [2014] AATA
12
Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 70 AAR
103
Paraponiaris and Secretary, Department of Employment; Re [2015]
AATA 895
REASONS FOR DECISION
Senior
Member D. J. Morris
1 October 2021
BACKGROUND
1. The Applicant in this matter previously held a protection visa and has applied for the cancellation of that visa to be set aside. The Tribunal, on its own motion, on 27 September 2021, issued an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of his name and assigning to him the anonym ‘FXXN’.
2. FXXN brought an application for review to the Tribunal of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse his application for Australian citizenship by conferral on 30 March 2021. That is a decision reviewable by the Tribunal under section 52 of the Australian Citizenship Act 2007 (‘the Citizenship Act’).
3. FXXN arrived in Australia in October 2010 as an irregular maritime arrival. On 30 April 2012, he was granted a Protection (subclass 866) visa on the basis of his claims, which were accepted by a delegate of the Minister, that he was a stateless person.
4. On 31 August 2017, FXXN applied for citizenship. In his application FXXN stated that he does not hold, nor has ever held, citizenship of another country.
5. The delegate was satisfied that FXXN was aged 18 or over when he lodged his application for citizenship. He therefore met the requirements of section 21(2)(a) of the Citizenship Act. The delegate was further satisfied that FXXN was a permanent resident, and satisfied section 21(2)(b) of the Citizenship Act, and that he met the general residence requirement set out in section 22 of the Act, under section 21(2)(c) of the Citizenship Act. However, the delegate was not satisfied of FXXN’s identity and refused the application on 21 June 2019, on the basis that approval was prohibited under section 24(3) of the Citizenship Act. I will call this ‘the 2019 refusal decision’.
6. FXXN sought review of the 2019 refusal decision before the Tribunal. On 5 May 2020, a then Deputy President of the Tribunal made a decision by consent under section 42C of the AAT Act setting aside the 2019 refusal decision and remitting the matter to the Respondent with a direction that the prohibition under section 24(3) of the Citizenship Act no longer applies. In other words, the Respondent consented that he was satisfied of FXXN’s identity.
7. On 30 March 2021, a delegate of the Minister refused FXXN’s application on the basis that the delegate was not satisfied, FXXN was of good character because the delegate found that FXXN was a citizen of the Islamic Republic of Iran and that he had “claimed an identity [i.e. statelessness] at odds with evidence held by the Department” (i.e. the Department of Home Affairs), and further that he had done so “with the intention of being granted a Protection visa”. I will call this ‘the 2021 refusal decision’.
8. On 21 April 2021, FXXN applied to the Tribunal for review of the 2021 refusal decision, as he is entitled to do under section 52 of the Citizenship Act.
9. On 7 September 2021, before FXXN’s application for review of the 2021 refusal decision was heard by the Tribunal, his protection visa was cancelled by a delegate of the Minister acting under section 109 of the Migration Act 1958 (‘the Migration Act’).
10. The Respondent sought that FXXN’s application to the Tribunal for review of the 2021 refusal decision be dismissed on the basis that it has no reasonable prospect of success.
HEARING
11. A hearing was held by telephone on 27 September 2021, (as permitted under section 33A of the AAT Act). The Applicant spoke on his own behalf. The Minister was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Persian (Farsi) language.
12. The Tribunal explained that the purpose of the hearing was to consider the request by the Minister that the matter be dismissed. In response to direct questions by the Tribunal, FXXN confirmed that he had received a notice of intention to cancel his protection visa and a subsequent notice to cancel the visa. FXXN confirmed that he has applied for a review of that decision by the Migration and Refugee Division of this Tribunal. The Tribunal has subsequently ascertained that FXXN lodged an application for review of that decision on 10 September 2021, but the matter has not yet been heard.
13. FXXN said that his view was that there was no purpose in proceeding with his application for review of refusal of his citizenship application, because he no longer holds a visa.
14. Mr Cunynghame, for the Minister, submitted that the Respondent agrees with the oral submission of the Applicant and referred to written submissions lodged with the Tribunal.
15. After a short adjournment to allow the Tribunal to consider the Minister’s written submissions, the Tribunal dismissed the application for review and advised the parties that a written decision would be provided to them.
16. The Tribunal noted that FXXN currently does not hold a visa, and also his advice that he had engaged a migration agent in respect of that matter. The Tribunal urged FXXN to ensure that he applies for a bridging visa to regularise his migration status while his application for review of the cancellation of his visa is considered.
REASONS THE MATTER WAS DISMISSED
17. Below are the reasons in writing, in accordance with section 43(2) of the AAT Act, that FXXN’s application for review of the 2021 refusal decision was dismissed.
18. In Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:
... as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
19. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 27 September 2021, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.
Is the Applicant a permanent resident?
20. Section 5 of the Citizenship Act provides that a person is a ‘permanent resident’ at a particular time if, and only if, the person holds a ‘permanent visa’ or the person is covered by a determination made by the Minister. Section 3 of the Citizenship Act, in turn, states that ‘permanent visa’ has the meaning given by the Migration Act.
21. Section 30 of the Migration Act relevantly sets out:
Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) by be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may by a visa, to be known as a temporary visa, to remain:
(2) (a) during a specified period; or
(2) (b) until a specified event happens; or
(2) (c) while the holder has a specified status.
22. At the time FXXN applied for citizenship, he held a protection visa, which is in the category of being a permanent visa. That is why the delegate considering his application was satisfied that he met the requirement of section 21(2)(b) in the Citizenship Act of being a ‘permanent resident’.
23. However, with the cancellation of his visa on 7 September 2021, FXXN no longer holds a visa of any type.
24. Because FXXN is not now a visa-holder, his circumstances have changed from those when he lodged his application for review of the 2021 refusal decision. The ground on which the delegate refused his application on 30 March 2021 – that the delegate was not satisfied the Applicant was of good character at the time of the decision – was a valid ground for FXXN to seek review by this Tribunal. That is because section 21(2)(h) of the Citizenship Act reads:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
....
(h) is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
25. A person may not satisfy a delegate of the Minister that he or she is of good character but may nonetheless satisfy the Tribunal that they are, because the Tribunal stands in the shoes of the decision-maker (in this case the Minister) and a decision on good character is a contemporary one. In other words, a person may be able to furnish the Tribunal with evidence that satisfies the decision-maker that they are of good character at the time the application for review of the decision is decided.
26. Section 21(2)(b) of the Citizenship Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(b) Is a permanent resident:
(b) (i) At the time the person made the application; and
(b) (ii) At the time of the Minister’s decision on the application;...
27. FXXN factually was a permanent resident, as the holder of a visa of the kind referred to in section 30(1) of the Migration Act, when he applied for citizenship. He thus satisfied section 21(2)(b)(i) of the Citizenship Act. He was also a permanent resident when the delegate made the 2021 refusal decision. However, by a separate action of a delegate of the Minister on 7 September 2021, he is no longer a permanent resident in the terms of section 5 of the Citizenship Act.
28. At the day of the interlocutory hearing, FXXN’s application for citizenship could not succeed because an essential prerequisite of the grant of citizenship, being that the person be a permanent resident, was no longer applicable to him.
29. The Tribunal finds that FXXN is not a permanent resident as at 27 September 2021, the date his application was dismissed.
Does the application have ‘no reasonable prospect of success’?
30. Deputy President Alpins, in Re: Paraponiaris and Secretary, Department of Employment 2015] AATA 895, said, at [31]:
In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.
31. And, at [33]:
The Tribunal’s power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances “it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing” (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198, at [33]).
32. In respect the comment at [31], I interpret the learned Deputy President to be referring to a case where some evidence may have emerged, or may possibly emerge, which is pivotal to whether a reviewable decision is correct in law or whether a discretionary power may be enlivened.
33. There is no discretionary power that may be enlivened in FXXN’s case to benefit him, because there is no power of a decision-maker acting under the Citizenship Act to confer or restore a visa, and thereby bring the Applicant (back) into the category of being a permanent resident.
Should the matter be adjourned?
34. The Tribunal has wide powers in the AAT Act in relation to the procedures to manage applications for review of administrative decisions. One of those powers is found in section 40(1)(c) of the AAT Act:
Powers of the Tribunal etc.
(1) For the purpose of reviewing a decision, the Tribunal may:
. ...
(c) adjourn the proceeding from time to time.
35. The Respondent submitted that the Tribunal should not use the power of adjournment to adjourn FXXN’s application indefinitely “on the basis that the applicant may at some point in the future satisfy section 21(2)(b)(ii) of the Citizenship Act if his application for review of the visa cancellation decision succeeds”. The Respondent further submitted that an indefinite adjournment would be contrary to the Tribunal’s objective, set out in section 2A of the AAT Act.
36. Section 2A of the AAT Act relevantly provides:
Tribunal’s objective
In carrying out its function, the Tribunal must pursue the objective of providing a mechanism of review that:
36. (a) ...
36. (b) Is fair, just, economical, informal and quick; ...
37. In Re: Lavigne and Minister for Immigration and Border Protection [2014] AATA 12, Senior Member Toohey considered an application for citizenship where Ms Lavigne, a Seychelloise, had formerly held a permanent visa but it had lapsed after she had returned from Australia to the Seychelles to attend to an ailing relative.
38. In somewhat similar circumstances to FXXN, Ms Lavigne had held a permanent visa:
(a) At the time she applied for citizenship; and
(b) At the time her application was refused, in her case on the grounds that she had not met the general residence requirement.
39. But that had changed by the time her matter was heard by the Tribunal.
40. The learned Senior Member relevantly stated, at [9]-[10]:
There is no discretion in the Act by which a person who is not a permanent resident at the time of the decision on the application may be treated as being a permanent resident. Mr Lavigne argued that the Tribunal could defer its decision for a month or so in order for Ms Lavigne to obtain a further permanent visa, thereby enabling her to satisfy s 21(2)(b)(ii). I accept it would be open to follow that course, although I am not sure it would be in keeping with the spirit of the legislation, especially legislation that, in effect, allows a person to make a fresh application for citizenship at any time.
Even if considerations of public policy did not weigh against deferring a decision, the Minister submits, and I agree, that it would be futile to do so because Ms Lavigne cannot satisfy the general residence requirement in section 22 of the Act.
(Emphasis added.)
41. I agree with the position of general principle adopted by Senior Member Toohey. Ms Lavigne’s visa had lapsed rather than been cancelled, as in FXXN’s case. Otherwise, her circumstances were not materially different from FXXN, in the sense that she had ceased to be a permanent resident by the time of the decision on the application. FXXN is in the same category.
42. For the Tribunal to exercise the power to adjourn FXXN’s application (noting that is not something the Applicant has sought) would, in my view, come into conflict with the objective in section 2A of the AAT Act of providing a mechanism that is ‘just’, nor would it be ‘quick’.
43. It would not be just, because it would be of prejudice to the Minister in having to expend public funds preparing submissions on a matter that may never be heard. It would also not be quick, because it cannot be predicted:
(a) When FXXN’s application before the Migration and Refugee Division of the Tribunal will be heard;
(b) What the outcome might be; and
(c) Whatever the outcome, whether that decision might be further appealed by either party to the Courts.
44. It is not a proper use of the Tribunal’s power to adjourn a matter simply because of future outcomes of other matters an applicant might have before the Tribunal, yet unknown.
45. It would also be, as Deputy President Alpins quoted above, from Deputy President Jarvis’s decision in Re: Filsell and Comcare [2009] AATA 90, an inappropriate use of the public resources of the Tribunal and, in this case, the public money that funds the Respondent, to proceed with a hearing when there is factually no likelihood of an outcome beneficial to the Applicant.
46. The Tribunal finds that the matter should not be adjourned indefinitely.
47. In making this finding, the Tribunal should not be interpreted as saying that there are no circumstances when a matter might be adjourned to allow a factual circumstance to change, but that power should be used very rarely and only in special circumstances, ideally when there is agreement between the parties that it is apt. Otherwise, the use of the adjournment power in this way may give the appearance that the Tribunal is ‘helping a party to make its case’, which is not a proper function of administrative review.
Other avenue of relief for the Applicant
48. The Tribunal emphasises that in dismissing this application, it has made no findings in relation to whether it is satisfied FXXN is of good character, the ground on which the delegate refused his application for citizenship by conferral. That question has not been considered by me and has no bearing on the decision to dismiss on other grounds.
49. The Tribunal notes that FXXN has the opportunity in the future, if his visa is restored, to lodge a fresh application for citizenship when the legislative requirements under the Citizenship Act will be considered at that time. If there is again an adverse decision, he may avail himself of the right of review provided by section 52 of the Citizenship Act.
DECISION
50. The Tribunal dismissed the application under section 42B(1)(b) of the AAT Act because the Tribunal is satisfied that the application has no reasonable prospect of success.
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51.
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..................[sgd]......................................................
Associate
Dated: 1 October 2021
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Date of interlocutory hearing:
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27 September 2021
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Self-Represented
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Mr Adam Cunynghame
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Sparke Helmore Lawyers
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2021/3525.html