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

Inoo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1240 (17 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0479
Re:Michael Adaji INOO
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Damien O'Donovan
Date:17 May 2022
Place:Canberra

The extension of time sought by the applicant to make his application is refused.
………[Sgd]……….
Senior Member Damien O’Donovan
Catchwords
Extension of time application – extension of time refused – where undisputed facts – applicant applying for citizenship on basis of being stateless – requirements under Citizenship Act not satisfied – Applicant not eligible under Citizenship Act – Tribunal does not have discretion to waive mandatory criteria – Tribunal does not have discretion to grant applicant citizenship – not reasonable to extend time
Legislation
Administrative Appeals Tribunal Act 1975, s29, s29(7)
Citizenship Act 2007, s21(2), s21(3), s21(4), s21(5), s21(6), s21(7), s21(8), s22A(1A), s22A(1)(c), s22A(1)(g), ss22A(4), ss22A(5), ss22A(6), s22B(1A), s24, ss52(3),
REASONS FOR DECISION
Senior Member Damien O'Donovan
17 May 2022

On 19 October 2021 the applicant applied for Australian Citizenship. The application was considered by a delegate of the Minister and on 25 November 2021 he was advised that his application was unsuccessful.
On 13 January 2022 the applicant submitted an application for review of the delegate’s decision to this Tribunal. Section 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) requires that an application for review to be lodged within the prescribed time. The prescribed time in relation to the applicant’s application was 28 days. That period expired on 24 December 2021.
The time for making an application can be extended pursuant to subsection 29(7) of the AAT Act. That power can only be exercised if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The applicant has sought an extension of time for making his application for review. The application is opposed by the respondent. The respondent’s essential point is that no extension should be given because on the undisputed facts of the matter, the applicant cannot succeed. In such circumstances it would not be reasonable to extend time for the making of the application. I accept that argument.
Facts
The critical facts are not in dispute and are all ascertainable from:
(a)the applicant’s application for citizenship submitted to the Department,
(b)other material submitted to this Tribunal by the applicant; and
(c)the respondent’s records filed in these proceedings.
The applicant was born on 31 December 1984, making him 37 years old at present. He was born in Otukpo in Nigeria. Between 31 December 1984 and 7 March 2015 the applicant was a citizen of Nigeria. He held a Nigerian passport between 7 December 2011 and 6 December 2016. His parents were both born in Nigeria and have never held Australian citizenship.
The applicant came to Australia in 2014. He is not and has never been a permanent resident of Australia.
He came to Australia on a Vocational Education and Training Sector visa which is a temporary visa. After the expiry of that visa in 2015 the applicant has remained in Australia on a series of Bridging visas – initially Visa A (subclass WA-101) but since 26 November 2019, Bridging Visa E (subclass WE-050).
On 19 October 2021 the applicant applied for citizenship on the basis that he was stateless.[1] The application was assessed against the requirements of subsection 21(8) and 21(4) of the Australian Citizenship Act 2007 (Citizenship Act). The delegate noted that no claims were made against subsection 21(2), (3), (5), (6) or (7).
[1] See question 21 of Exhibit A
The delegate determined that the requirements of subsection (4) and (8) were not satisfied.
The respondent contends that the Tribunal could not reach a different decision on the established facts even when all of the alternatives available for a grant of citizenship are considered.
Legal Framework
Section 21 of the Citizenship Act provides for the making of applications to become an Australian Citizen including on the ground of statelessness.
Section 24 of the Citizenship Act relevantly provides as follows:
(1A) The Minister must not approve the person [who applied for citizenship under section 21] 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).
The subsections cited are set out below. The subsections which are critical to the outcome in this application have been marked in bold. It is important to note that the requirements in each paragraph are cumulative – each must be satisfied for 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.
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

Permanent or enduring physical or mental incapacity

(3)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)has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii)is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e)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
(f)is of good character at the time of the Minister’s decision on the application.

Person aged 60 or over or has hearing, speech or sight impairment

(4)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii)aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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)understands the nature of the application at the time the person made the application; and
(d)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
(e)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
(f)is of good character at the time of the Minister’s decision on the application.

Person aged under 18

(5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 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.

Person born to former Australian citizen

(6) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born outside Australia; and
(b)a parent of the person was not an Australian citizen at the time of the person’s birth; and
(c)the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and
(d)if the person is aged 18 or over at the time the person made the application—the person is of good character at the time of the Minister’s decision on the application.

Person born in Papua

(7) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born in Papua before 16 September 1975; and
(b)a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and

(c) the parent was an Australian citizen at the time of the person’s birth; and
(d)the person is of good character at the time of the Minister’s decision on the application.

Statelessness

(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country.

Section 5 defines the term permanent resident as follows:
For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a)The person is present in Australia at that time and holds a permanent visa at that time; or
(b)Both:
(i)The person is not present in Australia at that time and holds a permanent visa at that time; and
(ii)The person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c)The person is covered by a determination in force under subsection (2) at that time.
There is no suggestion that the applicant is covered by a determination as provided for in subsection (2).
The Citizenship Act provides for the exercise of ministerial discretion in some circumstances. However, the discretion is very limited in scope. The Minister can waive some of the special residence requirements which would normally apply (see subsection 22A(1A)) when an applicant for citizenship seeks citizenship on the basis that they comply with the requirements of subsection 21(2). This discretion can only be exercised by the Minister personally (see subsection 22A(6)). Any exercise is not reviewable by the Tribunal (subsection 52(3)).
The Minister also has discretion to allow periods when an applicant was in prison or confined in a psychiatric institution to count towards the presence in Australia requirements in section 22A(1)(c) which go towards satisfying the special residence requirement.
The Minister also has discretion to treat a period when the applicant was not a permanent resident as one in which the applicant was a permanent resident if the Minister considers that the applicant was not a permanent resident because of an administrative error (subsection 22A(4)). A similar discretion is available to disregard periods of unlawful non-citizenship for the purposes of satisfying 22A(1)(g) (ss22A(5)).
Under section 22B(1A) the minister has discretion to determine that a person need only satisfy paragraphs (a) and (b) of subsection 22B(1) to satisfy the special residence requirement. However, the discretion cannot be exercised unless the Minister is satisfied that the applicant satisfies paragraph 21(2)(b) of the Citizenship Act which requires the person to be a permanent resident at the time they made an application and at the time the decision is made in relation to the application (paragraph 22(2)(b)).
If the discretion is exercised by the Minister in relation to an applicant, then the person is taken to satisfy the special residence requirement in paragraph 21(2)(c) of the general eligibility requirements for citizenship. The discretion can only be exercised by the Minister personally (subsection 22B(6)) and is not reviewable by the Tribunal (paragraph 52(3)(a)).
No unreviewable discretion has been exercised by the Minister.
Consideration
The Tribunal is prohibited from approving a person becoming an Australian citizen unless they are eligible under one of the subsections 21(2)-(8).
On the facts which have been accepted by the applicant, there is at least one criterion which he does not meet in each of those subsections.
In relation to subsection 21(2) the applicant has never been a permanent resident. Consequently the requirements of paragraph 2(b) are not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(2)
In relation to subsection 21(3) the applicant has never been a permanent resident. Consequently the requirements of paragraph (3)(b) are not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(3).
In relation to subsection 21(4) the applicant was never a permanent resident. Consequently the requirements of paragraph (4)(b) are not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(4).
In relation to subsection 21(5) the applicant was never a permanent resident. Consequently, the requirements of paragraph (5)(b) are not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(5).
In relation to subsection 21(6), the applicant does not have a parent who once was, and at some point, ceased to be an Australian citizen. Consequently, the requirement in paragraph (6)(c) is not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(6).
In relation to subsection 21(7), the applicant was not born in Papua before 16 September 1975. Consequently the requirement in paragraph (7)(a) is not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(7).
In relation to subsection 21(8), the applicant was not born in Australia. Further, he was once a national of Nigeria. Consequently the requirements in paragraphs 8(a) and (c)(i) are not met. Accordingly the applicant is not eligible to become a citizen under subsection 21(8).
Each of the criteria listed above are mandatory criteria for the grant of citizenship. I have no discretion to waive the requirements. If the applicant does not fulfil them, I am prohibited from granting him citizenship. In light of the facts which are presently known, there is no basis on which the Tribunal could grant the applicant citizenship. The prohibition on approving a person becoming a citizen unless the requirements in one of subsections 21(2)-(8) means that the applicant could never obtain a different decision from the Tribunal on review to the decision which he received from the Minister’s delegate.
I have considered the applicant’s submissions on the question of Ministerial discretion. It is clear that the applicant has misunderstood what role ministerial discretion can play in a citizenship decision. In a letter to the Minister the applicant said:
I am writing this submission because in some limited circumstances, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs has the power to grant Australian Citizenship after applying one of the 6 areas of Ministerial discretion even if the person has not been in Australia on a permanent residence visa, and more specifically as in my situation and as it applies in my case under discretion 3 to the person who would suffer significant hardship and disadvantage provided the Minister believes in his own discretion that there is public interest involved and the case falls under the minister’s guideline of being ‘unique and exceptional’.
The ‘discretion 3’ the applicant refers to is found in the notes to the Form 1290 which is used to apply for Australian Citizenship. The notes say:
There are a number of ministerial discretions which may be applied to an application to assist a person to meet the residence requirement for Australian citizenship.
1.…
2.…
3.If you were in Australia as a lawful non-citizen, but not as a permanent resident during the 12 months immediately before application, then that period of time may be treated as a period of permanent residence if you would otherwise suffer significant hardship or disadvantage.
The discretion referenced there is the discretion provided for in subsection 22(6) of the Citizenship Act. It is a discretion which is available to treat a period in which a person was in Australia but not a permanent resident, as a period in which they were a permanent resident. If the discretion is exercised, it assists a person to meet the general residence requirement under paragraph 21(2)(c). However, it does not confer a discretion on any decision maker to ignore the requirement in paragraph 21(2)(b) that, at the time a person makes an application for citizenship, they must be a permanent resident. Consequently, even if the discretion in subsection 22(6) were exercised in a manner favourable to the applicant, his citizenship application would still be doomed to fail because he does not meet the requirements in subparagraph 21(2)(b)(i) and (ii) as he has never been a permanent resident. There is no discretion which can be exercised to resolve this problem.
In light of the conclusion that on the known facts the applicant’s application for citizenship can never succeed, it would not be reasonable in all the circumstances to extend time for the applicant to make an application. The application to extend time is refused.

37. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the direction herein of Senior Member Damien O’Donovan.

...........[Sgd]...............................................
Associate
Dated: 17 May 2022

Date of hearing: 29 April 2022

Non-legal Advocate for the Applicant:

Solicitor for the Respondent:

Mr Peter Kolya, Mandela Advocacy Project Limited

Ms Katie Ervin, Clayton Utz

[2022] AATA 1240

17 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Remedies