Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 58

Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 58 (28 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5457

Re:Noor Hashim

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 January 2021

Place:Sydney

The Tribunal does not have jurisdiction to determine the applicant’s eligibility for Australian citizenship under subsection 21(3) of the Australian Citizenship Act 2007 (Cth).

........................[sgd]............................................

Senior Member A Poljak

CATCHWORDS

PRACTICE & PROCEDURE – jurisdiction question – decision refusing application for Australian citizenship by conferral – general eligibility criteria – whether Tribunal can determine applicant’s eligibility under incapacity criteria – where incorrect application form used by Applicant – Tribunal does not have jurisdiction

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 25C

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

SECONDARY MATERIALS

Australian Citizenship Policy

Australian Citizenship Policy Statement

Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member A Poljak

28 January 2021

1. On 19 May 2017, Noor Hashim, the applicant, lodged an application for Australian citizenship by conferral (Citizenship application) under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).  

2. On 28 August 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse the applicant’s application for Australian citizenship under section 24 of the Act as the applicant was found to not be of good character. The applicant seeks review of this decision (substantive proceedings). 

3. These interlocutory proceedings concern whether the Tribunal has jurisdiction to review the decision in the substantive proceedings and determine the applicant’s eligibility for Australian citizenship when his Citizenship application was made using the incorrect form.

   Approved forms for making and application for Australian citizenship

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. The ‘general eligibility’ criteria are set out in subsection 21(2) of the Act. Subsection 21(3) of the Act sets out the eligibility criteria for an applicant that has a ‘permanent or enduring physical or mental incapacity’.

5. The requirements of an application for Australian citizenship are set out in section 46 of the Act. Subsection 46(1) provides as follows (emphasis added):

   46 Application requirements

   (1) An application under a provision of this Act must:

   (a) be on the relevant form approved by the Minister for the purposes of that provision; and

   (b) contain the information required by the form; and

   (c) be accompanied by any other information or documents prescribed by the regulations; and

   (d) be accompanied by the fee (if any) prescribed by the regulations.

6. Subsection 46(2) of the Act allows for the Minister to approve one or more forms for the purposes of a provision of the Act under which an application for Australian citizenship may be made. At all relevant times, the Minister has approved two forms for the purpose of section 21. The first is Form 1300t, entitled ‘Application for Australian Citizenship - General eligibility’ (Form 1300t), and the second is Form 1290 entitled ‘Application for Australian citizenship - Other situations’ (Form 1290).

7. Form 1300t has been approved by the Minister for the purposes of subsection 21(2) of the Act. Form 1290 has been approved by the Minister for the purposes of subsections 21(3)-(8).

8. Prior to 27 November 2020, when the Australian Citizenship Policy (ACP) was replaced with the Australian Citizenship Policy Statement (ACPS), the ACP stated:

   There are two forms which have been approved for the purposes of making an application for conferral of Australian citizenship under s21 of the Act. If an applicant appears to have applied on the alternative form it is open to an officer to find that the application meets the requirements of s46 if all other requirements are met.

   If an officer believes that an applicant may have inadvertently completed the incorrect form for their circumstances the officer should contact the applicant as soon as practicable to discuss their intentions.

   For example, if a person makes an application on Form 1300T and paid the appropriate fee for that form but it is apparent that the person should have applied on Form 1290 because they are aged 60 or over, the application may be accepted and processed under the appropriate provision (in this example, s21(4)) and part of the fee may be refunded under regulation 13 on the basis that the person has paid an incorrect fee. [Emphasis added]

9. Paragraph 3.2 of the Revised Citizenship Procedural Instructions (CPI) contemplates that some applicants may apply under the incorrect provision, and goes on to state:

   In some cases, the applicant will be required to lodge a new application if the incapacity was not present at time of application. This is because paragraph 21(3)(d) requires that the person has a permanent or enduring physical or mental incapacity at the time of application. The Act does not make any allowance for a person who acquired an incapacity after making their application.

   Contentions

10. The Minister contends that the Tribunal cannot determine the applicant’s eligibility for citizenship under paragraph 21(3)(f) of the Act because the application was not made using the correct form, Form 1290, such that there was no valid application which can be assessed under subsection 21(3) to (8) of the Act. The applicant applied for Australian citizenship using Form 1300t.

11. The applicant contends that the Tribunal does have jurisdiction to determine the eligibility of the applicant under subsection 21(3) of the Act in the present circumstances of this case.

    Summary of relevant correspondence

12. On 22 January 2020, it appears that the applicant’s legal representative realised the applicant’s mistake in using Form 1300t and emailed the Department of Home Affairs (Department), requesting that the applicant’s Citizenship application be considered under the incapacity provisions under subsection 21(3) of the Act. In support of this request, the applicant provided evidence going to the requirements under subsection 21(3).

13. On 22 April 2020, the Department requested further information from the applicant in support of his Citizenship application.

14. On 21 May 2020, the applicant’s legal representative again emailed the Department and advised:

    “Please find attached an updated Form 956 for Mr Hashim.

    Legal Aid NSW continues to assist Mr Hashim. The previous solicitor, Lucy Pedrana, is no longer working with Legal Aid NSW and her email address no longer works.

    Due to Covid-19 restrictions, it took us some time to complete an updated Form 956 and I am worried that we may have missed some correspondence from your office.

    If any correspondence was sent in relation to Mr Hashim’s citizenship application since 15 March 2020, please re-send it to me, so that I may deal with it appropriately.

    I note that Mr Hashim had applied for citizenship with form 1300t, but we have since requested that his citizenship application be assessed under the section 21(3) incapacity provisions.

    Thank you for your assistance…” [Emphasis added]

15. On 22 May 2020, the applicant’s legal representative received the following response from the Department:

    “Thank you for providing Form 956.

    Please see below request for information letter below and attachments sent on 22 April 2020.

    With regards to your request to have his citizenship application be assessed under the section 21(3) incapacity provisions, we will need to assess the claim and evidence provided. Please provide evidence to support the applicant’s claim.

    As you did not receive the initial letter dated 22 April 2020 I have now extended the due date. As you received this letter via email, therefore, you must reply to this request within 28 days of the date of this letter.

    If you do not reply within this timeframe, a decision may be made on your application based on the information held by the Department.

    If you are unable to provide the document(s) within this timeframe, please write to us and provide a valid reason. An extension may be granted depending on your circumstances.” [Emphasis added]

16. Detailed submissions and further evidence in support of the applicant’s request for assessment under the incapacity provisions was provided to the Department on 19 June 2020.

17. On 16 July 2020, the Department notified the applicant’s legal representative of adverse information going to the applicant’s Citizenship application and invited comment. On 17 July 2020, the applicant’s legal representative provided a response by way of written submissions. Further correspondence followed regarding the adverse information however, there was no other correspondence from the Department regarding the applicant’s request to have the citizenship application considered under subsection 21(3) of the Act.

18. On 28 August 2020, the applicant’s Citizenship application was determined having regard to the general eligibility requirements in subsection 21(2) of the Act.

    Consideration

19. Firstly, I will address the ACP, although I note that it was replaced by the ACPS on 27 November 2020. In his original Citizenship application dated 19 May 2017, the applicant advised that he was not suffering from a permanent or enduring mental incapacity, and that he did not need help with the citizenship test. The applicant declared that the information he supplied in that application was complete, truthful and correct in every detail. As such, it cannot be said that the applicant inadvertently completed the wrong form for his circumstances.

20. The Full Federal Court decision of SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 (SZJDS), concerned the operation of subsection 347(1)(a) of the Migration Act 1958 (Cth). Section 347 allowed a person to make an application to the Migration Review Tribunal if they had been refused a visa. At the relevant time, subsection 347(1)(a) was in similar terms to subsection 46(1) of the Act. The issue in SZJDS concerned two forms which had been approved for the purposes of subsection 347(1)(a). One form was for an applicant not in immigration detention, and another was for an applicant in immigration detention.

21. The majority of the Full Federal Court (Rares and Cowdroy JJ) found at [26]-[28]:

    Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.

    The second scenario arises where an applicant uses the prescribed form but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act which provides that where “an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.

    The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity. [Emphasis added]

22. Subsequent authorities have found that section 25C of the Acts Interpretation Act 1901 (Cth) may be applicable to a provision of the Migration Act 1958 (Cth) which is analogous to subsection 347(1)(a) (subsection 412(1)(a)): see MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25 (MZAIC).

23. The applicant contends that the majority’s judgment in MZAIC is authority for the proposition that the principles set out in section 25C apply even in these circumstances, namely, that the provisions related to “substantial compliance” as set out in section 25C apply in circumstances where the wrong form is used but contains the information required by the right form.  

24. MZAIC concerned an applicant using a superseded form to apply to the Refugee Review Tribunal for review. The superseded form and then current form were similar in content and identical in purpose. The Full Court in MZAIC found that SZJDS was readily distinguishable because ‘in that case the appellant was not within the particular class of applicant for review contemplated by the form’ (see at [25]).

25. MZAIC is distinguishable from this matter, as although both Form 1300t and Form 1290 are the prescribed forms for an application for Australian citizenship, they each concern different provisions of the Act which have distinct requirements. The forms used under the Citizenship Act fall within the circumstance in SZJDS and not in MZAIC. The conclusions of MZAIC are not applicable to this matter.

26. While there is an extensive degree of overlap between the information obtained by Form 1300t and Form 1290, they have a significant difference. For an applicant who has applied via Form 1300t, but then seeks to be evaluated against Form 1290, the additional information required by the Department is information that the applicant has a permanent or enduring physical or mental incapacity and (i) is not capable of understanding the nature of the application at the time; or (ii) is not capable of demonstrating a basic knowledge of the English language at the time; or (iii) is not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time. Critically, Form 1290 requires this information to be provided at the time of the application, which is when the relevant incapacity must exist.

27. It is difficult at this stage of the proceedings to determine whether all the required information regarding the requirements under subsection 21(3) of the Act was provided to the Minister prior to making the decision under review. This is particularly so given that the delegate never considered the evidence provided to the Department concerning the applicant’s alleged incapacity.

28. There is no dispute however that the delegate made a reviewable decision under section 24 in this case. Additionally, the Tribunal conducts a de novo review of the section 24 decision and is not bound by the grounds on which the delegate made his or her decision. If the Tribunal were to undertake a review of the delegate’s decision having regard to the requirements under subsection 21(3) of the Act, it would be considering aspects of the Citizenship application and evidence for the first time.

29. It was plain from the correspondence from the applicant’s representative to the Department that the applicant sought to have the Citizenship application considered under the requirements of subsection 21(3) of the Act, however, this was nearly 3 years after the initial application was filed. At no stage was a Form 1290 completed and provided to the Department. The intended consequences of the applicant making an application using Form 1300t is that at all relevant times he had made a valid application under the general eligibility criteria. The Minister was required by subsection 24(1) to determine the valid application. He was required to decide the applicant’s application under subsection 21(2), which is what occurred. This is the decision to be reviewed by the Tribunal.

30. The most suitable course, if the applicant wishes to have his application for citizenship considered under the requirements of subsection 21(3) of the Act, would be for the applicant to re-apply for Australian citizenship using Form 1290 and to provide current medical evidence regarding his alleged incapacity. Regarding the current proceedings and the adverse character finding, the applicant may still proceed with his application for review in this Tribunal and have the matter considered in relation to the requirements under subsection 21(2) of the Act.

31. I accept that the applicant has suffered significant delays in relation to his citizenship application and that he may suffer from mental health and mental capacity issues. However, he has permanent residency and is able to travel outside of Australia. Any fresh application for citizenship would not impact that.

32. For the reasons set out above, I am not satisfied that the Tribunal has jurisdiction to determine the eligibility of the applicant under subsection 21(3) of the Act in the present circumstances of this case.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 28 January 2021

Date of hearing:	11 December 2020
Solicitors for the Applicant:	Legal Aid NSW
Solicitors for the Respondent:	Australian Government Solicitor