Milne v Minister for Immigration and Citizenship
[2011] FCA 1094
•22 September 2011
FEDERAL COURT OF AUSTRALIA
Milne v Minister for Immigration and Citizenship [2011] FCA 1094
Citation: Milne v Minister for Immigration and Citizenship [2011] FCA 1094 Parties: LLOYD WESTBROOK MILNE v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 1502 of 2011 Judge: BUCHANAN J Date of judgment: 22 September 2011 Catchwords: MIGRATION – citizenship by conferral – statutory tests – application for judicial review dismissed – application for an extension of time to file and serve notice of appeal – no prospects of success of any appeal – application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australia Citizenship Act 2007 (Cth) ss 21, 22(1), 22(5), 22(6), 22(9)
Federal Court of Australia Act 1976 (Cth) s 31ADate of hearing: 20 September 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms B Rayment of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1502 of 2011
BETWEEN: LLOYD WESTBROOK MILNE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
20 SEPTEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to file and serve a notice of appeal filed on 5 September 2011 is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1502 of 2011
BETWEEN: LLOYD WESTBROOK MILNE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
BUCHANAN J
DATE:
22 SEPTEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Section 21 of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) gives a right to a person to make an application to the Minister for Immigration and Citizenship (“the Minister”) to become an Australian citizen (s 21(1)) and states who is eligible to become an Australian citizen (s 21(2)–(8)). The ground of eligibility relevant to the present case is that the right to make an application for citizenship by conferral was given to a person who was a permanent resident (at the time of application and decision) and who satisfied the “residence requirement” (s 21(2)(b) and s 21(2)(c) in its form at that time). The residence requirement was stated by s 22 of the Citizenship Act. I shall return to it shortly.
On 11 November 2008, Ms Kathima Kingwongsa, a citizen of Thailand, who was the de facto spouse of the present applicant, lodged an application for Australian citizenship by conferral. Ms Kingwongsa first arrived in Australia on 1 August 2003 on a tourist visa. She left on 21 October 2003 and visited two further times in 2004. After her application for Australian citizenship was lodged, she arrived in Australia on 21 November 2008 on a tourist visa.
The residence requirement stated by s 22 of the Citizenship Act was in the following terms:
22(1) Subject to this section, for the purposes of section 21 a person satisfies the residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Those are requirements that an applicant be present in Australia for four years immediately before the application and present in Australia as a permanent resident for 12 months immediately before the application. Ms Kingwongsa did not satisfy either of those requirements.
Section 22 provides some limited exceptions to the requirements stated in s 22(1). The ones which have been identified as potentially relevant to the present matter are stated in s 22(5), (6) and (9).
Section 22(5) provides:
22(5)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of administrative error, was not a permanent resident during that period.
It may be noted that any question of whether an administrative error resulted in a person not being a permanent resident requires evaluation in circumstances where the person was nevertheless “present in Australia during that period”. This possible exception did not apply to Ms Kingwongsa. She was not in Australia for a period of 12 months before the application nor, of course, for four years. At the time of the decision on her application for citizenship she had been present in Australia for a total of 230 days in four separate periods.
Section 22(6) provides:
22(6)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
Again, consideration of an application for citizenship under this provision requires, at least, presence in Australia for a sufficient period to count towards satisfaction of the permanent residence requirement. It did not apply to Ms Kingwongsa. It does not, in any event, remove the more general requirement for a presence in Australia for four years before the application is made.
Section 22(9) provides:
22(9)If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
This provision requires that a person be a permanent resident, although not in Australia during the period required by s 22(1). If the other requirements are met the Minister may treat the period “as one in which the person was present in Australia as a permanent resident”. This did not apply to Ms Kingwongsa either. She was not a permanent resident at any stage.
I have dealt with the statutory scheme in this way at the outset to enable an adequate understanding of the matters which follow.
Ms Kingwongsa’s application for citizenship was refused by a delegate of the Minister on 5 February 2009. The Decision Record shows that each of the statutory provisions to which I have referred was considered, along with all the material submitted in support of the application. The explanation for rejection of the application was clear.
Ms Kingwongsa and the present applicant commenced proceedings in the Federal Magistrates Court of Australia (“the FMCA”) on 3 April 2009. Those proceedings were transferred to this Court on 27 April 2009. They were assigned to the docket of Emmett J who gave directions to prepare the matter for hearing. Pursuant to those directions an amended application for an order of review was filed on 27 May 2009. That was necessary because the jurisdictional foundation for the proceedings did not appear from the documents by which the applicant and Ms Kingwongsa had purported to commence the proceedings. Emmett J was prepared, after discussion with the applicant (who represented himself and, by leave, Ms Kingwongsa) to treat the proceedings as an application for judicial review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth), of the decision of the Minister’s delegate of 5 February 2009. That, at least, provided an apparent foundation upon which to seek to invoke the jurisdiction of this Court.
Emmett J gave consideration to the amended application for review which had been filed, which his Honour described as “a difficult document”; although his Honour accepted that it represented a genuine attempt to comply with his earlier direction. Emerging from that document, and his discussion with the applicant, Emmett J identified the elements of the statutory scheme to which I have already referred and concluded that there was no ground upon which the decision of 5 February 2009 could be impugned. With respect, that conclusion is unimpeachable having regard to Ms Kingwongsa’s circumstances and the statutory scheme.
On 3 June 2009, his Honour made an order dismissing the proceeding. It is evident from the terms of his Honour’s judgment that he did so in order to make it apparent that the disposition of the proceeding would be final, rather than interlocutory under s 31A of the Federal Court of Australia Act 1976 (Cth). In other words, an appeal would be available without the need to seek and obtain leave to appeal. No appeal was filed. Instead the only further steps in the proceedings were that the Minister sought and obtained a taxation of costs which were, on 8 February 2010, certified to be $6,200.
On 5 September 2011, the applicant filed an application for an extension of time in which to file and serve a notice of appeal. The application was expressed to refer to a judgment given on 20 May 2009. That was the date upon which Emmett J conducted a directions hearing and directed that the applicant and Ms Kingwongsa file and serve an amended application. I propose, simply as a matter of convenience, to treat the present application as one which seeks an extension of time in relation to the orders made on 3 June 2009.
The application had attached to it a document which purported to state “Grounds of Appeal”. Those grounds of appeal are not addressed to the matters which were the subject of Emmett J’s judgment. I will not lengthen the present judgment by detailing the nature of the assertions which are made in this document. It is sufficient to say that the document fails to come to grips with the obvious difficulties that faced Ms Kingwongsa’s application for citizenship, much less with the fact that no basis for relief in this Court was identified either before Emmett J or in the present application.
The applicant sought an oral hearing. At the hearing I permitted him considerable latitude, in order to understand the essential nature of his complaint and so that I could attempt to evaluate whether there were questions raised which might provide some basis for any appeal, or some form of relief, if an extension of time was granted.
The applicant says now that an application for permanent residency was made in August 2003 (or September according to his affidavit filed on 5 September 2011) accompanied, he says, by payment of the necessary fee. A grant of permanent residency requires more than a single step or application. There is no official record of an application having been made at that time which might lead to the grant of permanent residency. The applicant says that is because officers of the Department of Immigration, including his ex-wife, have tampered with the records. He drew my attention to documents provided under Freedom of Information legislation in October 2009 (after Emmett J’s judgment) which appear to show that his ex-wife interrogated the Department’s computer system by reference to his name on five occasions between 5 and 16 September 2003. The material to which the applicant referred does not support an inference that an application was made by Ms Kingwongsa in 2003 which might, in due course, lead to a grant of permanent residency. There is other material to show that, in September 2003, proceedings were pending in the Family Court of Australia, which had been commenced against the applicant by his ex-wife. He was asked by her solicitors at about that time to give an undertaking not to leave the country. There is no indication from the FOI documents that any person interrogated the Department’s computer system by reference to the name of Ms Kingwongsa before 23 June 2009.
The applicant, in answer to my questions, accepted that he had no notice of receipt of an application made in August or September 2003 and no other correspondence in relation to such an application had ever been received. He informed me, indeed, that in response to repeated telephone calls in the September/October/November period in 2003 he was told that no record of an application existed. No application of which there is a record appears to have been made until 2009. Whether or not any application was made in 2003 there was no reason to think, in the circumstances, that an application for citizenship in 2008 would be evaluated by reference to any idea that such an application had been made.
Whatever application(s) may or may not have been made before 11 November 2008, it is clear that the application for citizenship by conferral was made in circumstances where the applicant and Ms Kingwongsa were well aware that the application for citizenship would be assessed in the absence of any grant of permanent residence. Section 22(9) of the Citizenship Act did therefore not apply. No allegation of administrative error (as referred to in s 22(5)) could remedy the fact that Ms Kingwongsa had not been present in Australia for either of the required periods. No appeal to the idea of significant hardship or disadvantage (as referred to in s 22(6)) could overcome that problem either. The residence requirement in s 22(1) was not satisfied and none of s 22(5), (6) or (9) provided a basis on which to waive its requirements in the exercise of a discretion. Ms Kingwongsa was not eligible for citizenship by conferral.
An application, which might have had the potential to lead to the grant of permanent residence (an application for a partner visa), was made on 13 March 2009, after refusal of Ms Kingwongsa’s application for citizenship and before commencement of proceedings in the FMCA. This application was not processed because it was not accompanied by the necessary fee. A letter to that effect (which was attached to the material provided to Emmett J) was dated the same day, 13 March 2009. Before me, the applicant accepted that the fee had not been paid but appeared to regard this as an unnecessary requirement. Grant of a partner visa, after satisfaction of all necessary requirements, including security and health checks, might well generate a right to apply for permanent residence in Australia after a further period. As the legislation set out earlier shows, eligibility to apply for citizenship might, in due course, follow after a further period as a permanent resident and a total presence in Australia of at least four years. The proceedings before Emmett J were pursued in circumstances where the applicant and Ms Kingwongsa chose from 2003, and again in 2009, not to proceed down the more conventional path. In my view, pursuit of those proceedings was misconceived.
There is nothing arising from the matters referred to by the applicant in his oral remarks, nor in the documents he provided viewed in the light of those oral remarks, which would support any argument that Emmett J had misunderstood the statutory requirements, or otherwise fallen into error.
There would be, therefore, no prospect that an appeal could succeed if an extension of time was granted.
Furthermore, I am not satisfied, in any event, that there is a satisfactory explanation for the delay in the applicant’s attempt to challenge the judgment of Emmett J. He had the material on which he places most weight for almost two years before the present application was made. Although he referred to being overseas during this period he accepts that he has been in Australia for the last 12 months or so. His explanation for the delay is not sufficient. An extension of time should not be granted for that reason also.
I am satisfied that there are no prospects of success of any appeal from the orders made by Emmett J on 3 June 2009, if an appeal was available. I am also satisfied that there is no basis upon which it would be appropriate to grant an extension of time in which to appeal because the delay has not been satisfactorily explained.
The application for an extension of time should be dismissed with costs. An order to that effect was made at the conclusion of the hearing.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 22 September 2011
2
0
3