Judd v Minister for Immigration

Case [2017] FCA 827

FEDERAL COURT OF AUSTRALIA

Judd v Minister for Immigration and Border Protection [2017] FCA 827

Appeal from: Judd v Minister for Immigration and Border Protection [2017] AATA 239
File number(s): NSD 453 of 2017
Judge(s): PERRY J
Date of judgment: 24 July 2017
Catchwords: MIGRATION – where applicant applied for Australian citizenship by conferral under s24(1), Australian Citizenship Act (2007) (Cth) – where Administrative Appeals Tribunal affirmed Minister’s decision refusing approval – whether Tribunal breached requirements of procedural fairness by making adverse findings without notice – application allowed  
Legislation:

Australian Citizenship Act 2007 (Cth), ss 19G, 20, 21, 22, 22A, 22B, 23, 23A, 24, 25, 26, 27, 28

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), s 424A

Cases cited:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115

Kioa v West (1985) 159 CLR 550

Lidono Pty Ltd v Commissioner of Taxation [2002] FCA 174; (2002) 67 ALD 656

Lin v Minister for Immigration and Citizenship [2009] FCA 494; (2009) 176 FCR 371

Lo v Minister for Immigration & Border Protection [2014] AATA 736; (2014) 144 ALD 450

Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Puafisi v Minister for Immigration and Citizenship [2008] FCAFC 39

Re Ann Nee Chang and Minister for Immigration and Citizenship  [2009] AATA 14

Re Saba and Minister for Immigration and Border Protection [2014] AATA 579

Re Sabumei and Minister for immigration and Border Protection [2014] AATA 648

Smith v NSW Bar Association (1992) 176 CLR 258

Somaghi Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100

SZBEL v Minsiter for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALR 630
Date of hearing: 18 July 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Appellant: Mr S Lloyd SC and Mr J King
Solicitor for the Appellant: Fragomen
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

NSD 453 of 2017
BETWEEN:

JASPER JUDD

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

24 JULY 2017

THE COURT ORDERS THAT:

1.Pursuant to section 44 of the Administrative Appeals Tribunal Act 1976 (Cth), the decision of the Administrative Appeals Tribunal given on 28 February 2017 is set aside and the application for review of decision is remitted to heard and decided again by a different…

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AGLC
Judd v Minister for Immigration [2017] FCA 827
Case
[2017] FCA 827
Decision Date

CaseChat Overview and Summary

In the matter of Judd v Minister for Immigration, the Federal Court was called upon to review the decision of the Administrative Appeals Tribunal (AAT) in relation to the applicant's application for Australian citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth). The AAT had affirmed the Minister's decision to refuse approval of the applicant's citizenship application. The key issue before the Court was whether the AAT had breached the requirements of procedural fairness by making adverse findings without providing the applicant with prior notice. The Court held that the AAT had indeed breached procedural fairness by not allowing the applicant to respond to the adverse findings made against him.

The Court examined the concept of a "close and continuing association" with Australia as required under section 22(9) of the Act, which qualifies the general residence requirement. The Court found that this concept necessitated a multi-factorial approach, taking into account various factors such as the applicant's ties to Australia, his family situation, and his financial links to the country. The Court also held that the AAT had erred in not allowing the applicant to address certain adverse findings made against him, particularly in relation to his intention to return to Australia and his declaration of domicile in his UK tax returns. The Court found that the AAT had not provided the applicant with an opportunity to address these matters, which amounted to a breach of procedural fairness.

As a result, the Court set aside the AAT's decision and remitted the matter back to the AAT to be heard and decided again by a different member. The Court also ordered that the respondent pay the applicant's costs as agreed or assessed. The case highlights the importance of procedural fairness in administrative decision-making, particularly in matters relating to migration and citizenship.

Orders

Orders of the court

1. Pursuant to section 44 of the Administrative Appeals Tribunal Act 1976 (Cth), the decision of the Administrative Appeals Tribunal given on 28 February 2017 is set aside and the application for review of decision is remitted to heard and decided again by a different member of the Tribunal.

2. The respondent is to pay the applicant’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”. 4. BACKGROUND It is helpful briefly to summarise certain key facts by way of background drawn from the Tribunal’s findings. The applicant and his wife have been married since 1991 (Tribunal’s reasons at [56]). On 19 August 2003 the applicant and his family were granted Subclass 457 Business (Long Stay) visas valid until 19 August 2007. The applicant entered Australia on his subclass 457 visa on 16 September 2003. He was followed in December 2003 by his family. They established a home here and the children attended school in Australia (Tribunal’s reasons at [22]-[24]). In January 2007, the applicant was offered the permanent role of CFO for the European-based division of the company for which he worked but he ultimately decided to turn it down. The Tribunal accepted that in making that decision, the fact that the applicant’s family had settled within the Australian community and that he and his wife wished to make Australia their permanent home were important considerations (Tribunal’s reasons at [27]). Following that decision, the applicant took steps to convert his status from a temporary resident to a permanent one, despite the detrimental impact that this had on his compensation package and tax status. In June 2007, the applicant transferred his UK pension into an Australian superannuation account and made a substantial non-concessional contribution into his Australian superannuation fund (Tribunal’s reasons at [29]). On 6 July 2007, the applicant and his family became permanent residents of Australia upon being granted subclass 856 visas (Tribunal’s reasons at [30]). In November 2009, the applicant’s wife and four children applied for citizenship. This was granted by conferral on 24 June 2010. The applicant did not apply at that time because he did not meet the general residence requirement. His global role had required him to travel outside Australia to such an extent that he fell short of satisfying the requirement (Tribunal’s reasons at [32] and [35]). Nor was the applicant’s occupation specified for the purposes of the special residence requirement until June 2013 after he had left that occupation (Tribunal’s reasons at [35]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal hearing was held on 17 August 2016 and the applicant was cross-examined on essentially two topics only: first, that his superannuation fund was not really portable outside Australia and that his Australian pension was portable once he was able to draw a pension; and secondly, that there uncertainties about his family situation and, in particular the circumstances of his and his wife’s parents, which may affect his plans to return to Australia in 2020. 5.3 The Tribunal’s reasons for decision The first issue for the Tribunal was whether it was satisfied that the applicant had a close and continuing association with Australia during the four-year period before he applied for citizenship (June 2011 to June 2015), thereby engaging the operation of s 22(9) deeming him to have been in Australia for that period (see above at [11]-[13]). While accepting that the applicant had a close association with Australia from 29 June 2011 until he left in January 2013, the Tribunal did not accept that he had a close and continuing association with Australia thereafter (Tribunal’s reasons at [89]). The Tribunal therefore found that its discretion under s 22(9) to deem compliance with s 22(1)(a) and (c) was not engaged and accordingly the general residence requirement in s 21(2)(c) was not met. In reaching this conclusion, the Tribunal referred relevantly to the following matters:(1)the fact that the applicant has not made regular return visits to Australia since leaving in January 2013;(2)the finding that the applicant’s trip to Australia in July 2016 was primarily because of the Tribunal hearing (Tribunal’s reasons at [57]); (3)the transfer by the applicant of his United Kingdom pension and refusal of the position in Europe in 2007, being matters to which the Tribunal gave little weight given that those were decisions made by the applicant when he was still forging a career with the company in Australia and that he had been establishing a new business career in the UK since his return (at [62]);(4)the applicant’s and his wife’s concern about their parents’ welfare which caused them to move back to the United Kingdom in 2013, and an alleged inconsistency between that concern and the applicant’s evidence about their parent’s current situation (at [66]); (5)the strength of the financial link between the applicant and Australia by reason of his superannuation and bank accounts in Australia (at [67]-[73]); (6)the fact that the applicant is not on leave from employment in Australia whilst in the UK and owns no real property in Australia (at [74] and [75]);(7)the fact that the applicant has paid income tax in Australia but that the amount has decreased significantly recently, consistently with the applicant no longer living and working in Australia (at [76]); (8)the applicant’s completion of a Fine Arts Diploma in Australia and his membership of clubs in Australia (at [77]-[80]); and(9)the applicant’s ongoing Australian friendships to which the Tribunal gave little weight (at [81]).

Ratio Decidendi

Legal Principle Established

Further, to the extent, if any, that it was suggested that there was no unfairness in the Tribunal’s finding at [57] because the finding concerned the applicant’s own conduct, I agree with the applicant that the suggestion must be rejected. As Gummow J observed in Somaghi at 119 (in a passage approved by the Full Court in Alphaone at 591):… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but which is seen to be the conduct of the applicant in question.7.2.3The Tribunal’s findings as to the primary purpose of the declarations in UK tax returns of domicile in Australia (Tribunal’s reasons at [67]) Secondly, the applicant submits that further important context for the Tribunal’s subsequent findings is provided by the Tribunal’s consideration of the applicant’s evidence that he had declared in his UK tax returns that he had been domiciled outside the UK since 7 July 2007, being the date on which he was granted permanent residence in Australia. That evidence was not challenged, as the Tribunal found at [67]. The Minister’s submission in closing address before the Tribunal was only that “[t]here is [sic] various reasons why people choose to be domiciled in various places and not a lot can be read into that”, perhaps suggesting that it might not be a factor to which the Tribunal could attach much weight as a result. However, Mr Marcus for the Minister then continued immediately to confirm that:But as I said, Madame Senior Member, we do not actually take issue with the proposition that the applicant is telling the truth when he says that it is his current intention to return. We accept that. We just say that that’s not enough if the current intention relates to something three and a half years away. … Because circumstances can change. That being so, it is apparent that there was no suggestion by the Minister that the applicant had sought to further his application for citizenship by declaring his place of domicile to be Australia in his UK tax returns. To the contrary, the Minister accepted those declarations as consistent with the applicant’s genuine intention to return to Australia. That notwithstanding, the Tribunal found at [67] of its reasons that:The Tribunal takes into account that the applicant has maintained that he is a permanent resident despite negative tax consequences and stated in his UK tax returns that he is domiciled outside of the UK. That evidence was not challenged. The applicant has a subclass 155 five year resident return visa which is valid until 31 October 2017. Given the expense and effort the applicant has made pursuing his application for citizenship, the Tribunal accepts that the applicant would not do anything to jeopardise maintaining whatever migration right he has to Australia. Declaring that he was a resident of the UK in his UK tax returns may not have assisted that objective.