Broide and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2024] AATA 387

Broide and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 387 (16 February 2024)

Division: GENERAL DIVISION

File Number(s):2023/0724      

Re:David Henry Broide  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:               16 February 2024

Date of written reasons:         8 March 2024

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal

sets aside the decision under review and substitutes a decision that the applicant satisfies

section 22B(1)(c) of the Australian Citizenship Act 2007 (Cth).

..................[sgnd]......................................................

Senior Member Dr N A Manetta

CATCHWORDS

CITIZENSHIP – application for citizenship refused – whether the applicant satisfies the residence criteria under section 22B(1)(c) of the Australian Citizenship Act 2007 (Cth) – statutory interpretation – when citizenship application is ‘made’ – whether an application  is ‘made’ on the day it is posted or the day it is received in the post – different outcome depending on method of lodgement somewhat illogical and arbitrary – dicta in Wang not applied – decision in Somai followed – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

CASES

Somai and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4087

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Wang and the Minister for Border Protection (Citizenship) [2017] AATA 730

REASONS FOR DECISION

Senior Member Dr N A Manetta

8 March 2024

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties with amendments  and some further elaboration.

2. This is an application by Professor David Broide seeking a review of a decision of the respondent’s delegate dated 19 January 2023.[1] By this decision, the delegate refused Professor Broide’s application for citizenship because he did not satisfy one of the residence criteria applicable to the circumstances of his case under the Australian Citizenship Act 2007 (Cth)  (‘the Act’).[2]  This criterion appears in section 22B(1)(c) of the Act, and it specifies  that an applicant for citizenship must have been present in Australia for at least 480 days during the four years ‒ and these are the critical words ‒ ‘immediately before the day the person made the application’.  If this criterion is not satisfied in Professor Broide’s case, the delegate was right to refuse his application for citizenship given the mandatory terms of this provision.

   [1] Ex R1, 36ff.

   [2] Ibid, 40.

   BACKGROUND FACTS

3. Professor Broide completed the formalities in respect of his citizenship application as follows.  He filled out an application form he had downloaded from the relevant departmental website, sealed it in an envelope, and sent the envelope express to Australia with a company trading as DHL Express Worldwide (‘DHL’).  At the time, he was living in the United States.  He handed the envelope in question to DHL in San Diego on April 7, 2022. The envelope was tracked by DHL.  There is no suggestion that the envelope was inappropriately addressed. Professor Broide also paid the departmental fee due in respect of the application over the internet on the same day.  The respondent did not submit to me that Professor Broide had made an inappropriate choice to use DHL, or that DHL offered an unreliable service, as is the case with some postal and delivery services around the world.  Nothing to this effect arose from any of the material before me.

4. The envelope should have arrived in Sydney in three to five days in the normal course of events. It arrived in Australia about[3] seven days later (namely, on April 14, 2022), but it was delayed in Sydney for a further fortnight before being delivered to the respondent on April 28, 2022. This information appears in Professor Broide’s statement,[4] and I note the respondent has not taken issue with the statement in this regard.

   [3] Strictly speaking, there may have to be adjustments made for the time difference between San Diego, USA and Sydney.

   [4] Ex A1, 4.

5. The parties are agreed that if, as contended by Professor Broide, the application for citizenship was ‘made’ on April 7, 2022 (i.e., the day on which the application fee was paid and the envelope handed over to DHL in the USA), Professor Broide satisfies the 480-day criterion in s 22B(1)(c) of the Act.  The parties are also agreed that if, as contended by the respondent, the application was only ‘made’ when it was received by the respondent on April 28, 2022, Professor Broide falls short of the 480-day criterion by three days.

   CRITICAL QUESTION FOR THE TRIBUNAL

6. The parties are agreed, therefore, that the critical question before the Tribunal is whether the application was, as Professor Broide contends, ‘made’ on April 7, 2022 or whether, as contended by the respondent, it was ‘made’ on April 28, 2022, when the form was received. No third possibility emerged from the parties’ submissions, and none occurs to me.

   REASONS

7. The answer to the question of when Professor Broide ‘made’ his application is not given expressly in the Act or in regulations made under the Act. The question must be determined, therefore, through the application of the usual principles of statutory interpretation.  These  require an analysis of both language and context.  I might refer, by way of example, to certain dicta[5] in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]:

   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)

   [5] Of the majority comprising Kiefel CJ, Nettle and Gordon JJ.  See also Gageler J (as he then was) at [35]-[36].

8. As a matter of language, the word ‘made’, as it appears in section 22B(1)(c), does not of itself decisively answer the critical question in my view.  It could refer to the citizenship applicant having done all he or she could do to put the respondent in possession of the application in due course in a permissible manner (e.g., by posting it with a reliable service to an appropriate address).  Equally, the word ‘made’ could refer to the respondent receiving the application.  As I say, I am not persuaded that the matter is resolved decisively one way or the other by purely linguistic considerations.

9. The respondent submitted that in the case of a hard-copy application, the Department must have the application in order to consider it.  That is, of course, true as a matter of fact.  But the same is true of an electronic application lodged online.  The Department must have access to an application filed in its electronic portal in order to consider it. If the Department were unable to access its own portal for some technical reason, or if the portal malfunctioned and ‘erased’, or ‘lost’, the application, that would not mean that those who had sought to lodge an application via the portal had not ‘made’ an application. To make the logical point that decision-makers cannot consider a hard-copy application unless they have it before them does not throw much light on when a hard-copy application was intended by the Act to have been ‘made’ in my opinion.        

10. Context is also important to the task of interpretation, as are the consequences of competing interpretations.  The Act and regulations do not prohibit hardcopy applications.  In preparing and sending his application, Professor Broide engaged in a permitted and, I would add, commonplace, transaction.  This aspect of the matter forms part of the statutory context I should weigh.  If the respondent’s position is correct, it must follow that section 22B(1)(c) of the Act was intended to have the potential to operate differently depending on the manner of lodgment.  For example, in this case, if Professor Broide had lodged his application online on April 7, 2022, he would have met the 480-day criterion; but as he chose to use a permissible delivery method instead, he ended up failing the criterion.  In either case, however, he would have done all that he needed to do personally to complete the application in a permissible way.   That there should be a different outcome depending on the method of lodgment strikes me as somewhat illogical and arbitrary.  That is one aspect of the matter that makes the respondent’s interpretation less likely in my view.

11. So far as authorities are concerned, the respondent referred me to Wang and the Minister for Border Protection (Citizenship) [2017] AATA 730 (‘Wang’).  In particular, the respondent referred me to paragraph [21] of that decision, which I set out below with the preceding paragraph:

    20. On 23 February 2016, Ms Wang signed an application for Australian citizenship. The identity declaration part of this form was signed on 11 March 2016. The application bears two Departmental date stamps: one for 6 April 2016 and the other for 12 April 2016.

    21. Considering s 46 of the Australian Citizenship Act 2007 (Citizenship Act), the application is taken to be made when it is received by the Department on behalf of the Minister and the prescribed fee is paid. In this case, that date is likely to be 12 April 2016. It appears that Ms Wang omitted to provide her credit card details in the form she lodged on 6 April 2016, and this information was provided under cover of her letter on 11 April 2016. This would serve to explain the 12 April 2016 Departmental date stamp. (emphasis supplied)

12. This authority is not of decisive relevance in my opinion.  Section 46(1)(d) of the Act expressly requires an application to be accompanied by the prescribed fee. The first sentence of paragraph [21] is mainly concerned to state the Tribunal’s view that a fee must be paid in order for an application to be considered ‘made’.   The Tribunal held, therefore, that Ms Wang’s application was not ‘made’ on April 6, 2016, when the application form was lodged, because she had not yet paid the fee as at that date.[6] 

    [6] The Tribunal’s conclusion about the significance of paying the prescribed fee poses no difficulty for Professor Broide as he paid the fee over the internet on the same day he delivered the envelope to DHL.

13. I do not think the first sentence in paragraph [20] of Wang I have highlighted (above) should be applied literally, and uncritically, to Professor Broide’s case.  There is a danger in reading sentences appearing in a decision too literally.  Decisions should always be read in context, and against the background of what the Tribunal had to decide, and not as if particular expressions had necessarily been chosen with a range of different scenarios in mind.  As far as I can see, the Tribunal was not called upon to decide whether an application that is posted is ‘made’ at the time of posting or at the time of its receipt.   This was not a critical point of difference in Wang.

14. I was informed by the respondent that there was no other authority on point; but I have found the authority of Somai and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4087 (‘Somai’).  This case addresses squarely the point in issue in this case. There is detailed reasoning to support the Tribunal’s conclusion, and other authorities are canvassed in some detail.  These authorities deal with the concept of making an application in other statutory contexts.  

15. The Tribunal concluded in Somai that a citizenship application should be taken to be ‘made’ for the purposes of the Act on the day it is posted, at least when registered mail is used,[7] and not on the day it is received by the Department. The distinction was critical to the Tribunal’s decision in the case. Wang was cited, but the dicta in that case were not applied.[8] 

    [7] See Somai at [53].

    [8] Ibid, at [36].

16. This gives rise to the important question of whether I should follow Somai, which is directly on point[9] and the conclusion of which is supported by detailed reasons.  In my opinion I should.  I have not formed the opinion that Somai was clearly wrongly decided.  In fact, I have a preference for the view expressed in Somai.  But even if I had thought Somai was wrongly decided, an important question would arise. That question is: Should the Tribunal follow a directly applicable and reasoned precedent in this Tribunal with which it might happen to disagree (in circumstances where the decision is not clearly wrong in its view) or should it always consider the question afresh for itself and decide the matter in accordance with its own view?  This question arises in a context where there is, to my knowledge, only one directly relevant authority (i.e., Somai). I am not faced with the different situation of having to prefer one directly applicable authority over another.    

    [9] I would equate Professor Broide’s use of DHL with the use of a registered postal service.  

17. I believe I should express my view on the question I have posed. There is no statutory provision governing expressly when the Tribunal should follow one of its own decisions; but section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) does require the Tribunal to ‘pursue the objective of providing a mechanism of review’ that is, amongst other things, ‘fair’ and that ‘promotes public trust and confidence in the decision-making of the Tribunal’.[10] I do not think questions of statutory construction should be answered variously by differently constituted Tribunals across the country.  The Tribunal operates nationally with a multiplicity of members, and uniformity in the interpretation of federal law across the country by the Tribunal is important both to ‘fairness’ and to promoting ‘public trust and confidence in the decision-making of the Tribunal’.  Statutory provisions often throw up difficult questions of construction that can be plausibly answered one way or another; and opposing views on the better interpretation can often be respectably held.  That is the environment within which the Tribunal must discharge its statutory functions.    

    [10] See section 2A(b) and (d).

18. As I have said, I have a preference for the conclusion reached in Somai; but even if I did not have that preference, I would follow Somai in order to fulfil the Tribunal’s obligation to provide a mechanism of review that meets the criteria in section 2A to which I have referred, rather than consider myself free to depart from it. I would make clear, however, that if I had thought the conclusion in Somai clearly wrong, I would have declined to follow it.  In that event, I would have explained my reasons for my conclusion in detail.          

19. The respondent submitted in its Statement of Facts, Issues and Contentions[11] that there is another reason for refusing Professor Broide’s application for citizenship; namely, that he ceased to be an Australian permanent resident on 15 February 2023.  This was not a basis for the delegate’s decision, I note; and I have decided that I am not in a position on the evidence before me to decide what could well be a complex legal and factual question.  In these circumstances, I have decided to decline to address that question.  Again, this reflects fairness in my conduct of the review.

    [11] Ex R3, 8-9 [38]-[39].

20. It only remains to point out that the Tribunal frequently relies on the respondent to refer it to all relevant decisional law.  I was specifically informed that an authorities database had been consulted by the respondent and only Wang was listed.  The respondent’s representatives ought to find out how it came to pass that Somai was not recorded in the relevant database. I do not, of course, blame anyone: I merely point to an anomaly.  The Tribunal was able to locate Somai relatively easily by interrogating the search engine in connection with Wang, which was the principal authority cited by the respondent in its argument. Somai came up, I believe, as a decision that had considered Wang.

    FORMAL DECISION

21. The appropriate decision in this case is, therefore, to set aside the decision under review and to substitute a decision that the applicant satisfies s 22B(1)(c) of the Act.  The respondent should now resume its consideration of Professor Broide’s citizenship application since it ought not to have been refused on the basis that section 22B(1)(c) was not satisfied.

    I certify that the preceding twenty-one (21)

    paragraphs are a true copy of the reasons

    for the decision herein of Senior Member

    Dr N A Manetta

    ………[sgnd]…………………………..
    Associate

    Dated: 8 March 2024

    Date of hearing:  21 September 2023 and 16 February 2024

    Advocate for the Applicant:      Self-Represented

    Advocate for the Respondent:  Ms S Roberts