Neupane v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1032
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Neupane v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1032
File number(s): SYG 1511 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 November 2023 Catchwords: MIGRATION – Minister for Immigration – whether Minister erred at law – whether Minister biased – whether there was jurisdictional error. Legislation: Administrative Decision (Judicial Review) Act 1977 (Cth) s5
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth) ss 14, 37
Australian Citizenship Regulation 2016 (Cth)
Australian (Transitional and Consequentials) Act 2007 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 12.02(1), 13.06 (1)(c)
Cases cited: Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Nicky v Minister for Immigration and Border Protection [2015] FCA 174
SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 5 October 2023 Date of hearing: 5 October 2023 Place: Parramatta Solicitor for the Applicant: Mr Godwin of Counsel Solicitor for the Respondent: Mr Moss ORDERS
SYG 1511 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASHIM NEUPANE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to rule 7.03(2) and 11.01(1) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the Minister for Home Affairs is joined as the Second Respondent;
2.Pursuant to rule 7.01 and 7.02 of the Rules the application be amended to include the following words on page 3 under the heading “Grounds of application”:
“This is an application under section 5 of the Administrative Decisions
(Judicial Review) Act 1977 (Cth)”.
3.Pursuant to rule 1.07(1) of the Rules, the following rules are dispensed with:
(i) Rule 4.01 (use of correct form to commence proceedings);
(ii) Rule 4.02 (content of application); and
(iii) Rule 27.02 (correct form for ADJR proceedings).
4.The application against the first respondent, being the Minister for Immigration, Citizenship and Multicultural Affairs, is dismissed with no order as to costs.
5.The Application against the Second Respondent is dismissed.
6.The Applicant to pay the Second Respondents costs fixed in the sum of $2,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPRHEYS
INTRODUCTION
This is an application for reinstatement of an Application to this Court for judicial review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs. On 5 October 2023, the Court dismissed the Application pursuant to r 13.06 (1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, after the applicant failed to appear at the final hearing of this matter.
The applicant is a citizen of Nepal who arrived in Australia in 2010. The applicant travelled to Australia with his family on a Diplomatic (Temporary) (Class TF) Subclass 995 visa.
In 2016, the applicant’s mother departed from Australia, and the applicant remained with his father and older brother. In 2017, the applicant’s father departed Australia.
On 14 October 2020, the applicant lodged an Application for Evidence of Australian citizenship on the basis that the applicant claimed to have been abandoned. On 30 October 2020, the applicant’s Application for citizenship was refused by a delegate of the Department of Home Affairs (“the Delegate”). The applicant sought an internal review of the decision however, the decision was affirmed on 8 December 2020.
On 31 March 2021, the applicant lodged a second Application for Evidence of Australian citizenship. This application was declined on 31 August 2021. The applicant sought an internal review of the decision on 20 September 2021, which was unsuccessful, with the original decision being affirmed on 12 September 2022.
The applicant now seeks judicial review of the Delegate’s second decision in this Court.
THE LAW IN RELATION TO A REINSTATEMENT APPLICATION
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], it was held that reinstatement is a discretionary exercise. Three factors are relevant:
1. Whether there was a reasonable excuse for the parties’ absence when the proceeding was struck out;
2. The existence and nature of any prejudice that might flow to the other party and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to order; and
3. Whether the applicant has a reasonably arguable prospect of success on the substantive application, if not, there is no purpose in reinstating.
THE APPLICANT’S EVIDENCE IN RELATION TO NON-APPEARANCE
In an Affidavit of 23 October 2023, the applicant notes that the matter was stood over from 3 May 2023 with a request that the applicant be provided with pro bono representation. The applicant states there was no response from the Migration Team of the Court until 29 September 2023, when the applicant sought a postponement of the hearing. The applicant claims that no response was given to his postponement request.
The applicant received a communication from Chambers on 29 September 2023 that the Court had not been able to secure pro bono representation. It went on to state “The Court will contact you when this has been confirmed”. The applicant claims that he was not further contacted. If the applicant had been contacted, he claims that he would have made arrangements to seek legal representation in his case, if the Court was not able to source representation for him.
In relation to the telephone contact prior to the hearing, the contents of the conversation were not disputed by Counsel who appeared for the applicant.
THE DEPARTMENT OF HOME AFFAIRS’ DECISION
In section one of its decision, the Delegate states that it is exercising power under s 37(2) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). On 20 September 2021, the applicant’s migration agent sent to the Delegate a request for an internal review of the decision not to confirm the applicant’s eligibility for an Australian citizenship.
In section two of its decision, the Delegate outlines which materials was relied upon to make its determination, including:
· Citizenship Act;
· Australian (Transitional and Consequentials) Act 2007 (Cth);
· Australian Citizenship Regulation 2016 (Cth);
· Australian Citizenship Act 1948 (Cth);
· Revised Australian Citizenship Procedural Instructions;
· Australian Citizenship Policy;
· Application for Evidence of Australian Citizenship; and
· Departmental systems and records from two matters.
In section three of its decision, the Delegate outlined the applicant’s background. This can be summarised as follows:
· The applicant was born in Nepal, as were both of his parents.
· On 29 January 2010, the applicant was granted a Visitor (subclass 676) visa, however he did not travel to Australia before this visa expired.
· On 23 April 2010, the applicant travelled to Australia with his parents and his older brother on a Temporary Diplomatic (subclass 995) visa. The applicant was granted three further Diplomatic visas on 21 September 2010, 21 September 2011, and 26 September 2012.
· On 30 September 2013, the applicant’s brother applied for a Vocational Educational (subclass 572) visa which listed the applicant’s mother as his student guardian. This visa was granted on 23 May 2014 and cancelled on 5 January 2017.
· The applicant’s mother’s student guardian visa was refused on 28 November 2013 for not meeting the genuine temporary entrant criteria. She reviewed the decision to the Administrative Appeals Tribunal on 18 December 2013 and the decision was affirmed on 1 October 2014. She lodged an application for judicial review to the Federal Court of Australia on 3 November 2014 and was granted a Bridging visa.
· On 9 October 2013, the applicant’s father lodged an application for a Protection (subclass 866) visa and included the applicant as his only dependent. This application was deemed invalid, and the Bridging visa associated with the application ceased on 20 December 2013. The applicant remained in Australia unlawfully until 30 January 2014 when he was granted a Bridging visa associated with his father’s second Protection visa application.
· On 10 January 2016, the applicant’s mother departed Australia with the applicant’s brother and they both returned on 6 February 2016.
· On 19 August 2016, the Federal Court affirmed the Department’s decision to refuse the applicant’s mother’s Student Guardian visa.
· On 28 November 2016, the applicant’s mother departed Australia. On 5 July 2017, the applicant’s father departed Australia.
In section A, the Delegate outlined the legislative requirements concerning its powers under
s 37(2) of the Citizenship Act.
In section B, the Delegate stated its findings in relation to the legislative requirements. The Delegate was satisfied as to the applicant’s identity. It referred to the policy at the time of the decision which stated that “the abandoned child provisions would usually only apply when the parent/s and their status is unknown”. The Delegate stated that the applicant was aware of the identity of his parents as he provided a letter dated 24 January 2013 from the Second Secretary at the Embassy of Nepal which stated that the applicant was born in Nepal and identified his parents. The applicant also provided details of both of his parents which matched department records. The Delegate considered that at the time the applicant’s parents departed Australia, he was capable of deciding whether or not he would return with them.
The Delegate placed significant weight on information concerning the applicant’s brother, including that he was also residing in Australia and providing some financial support to the applicant, to support the conclusion that the applicant did not meet the policy requirements for being considered an abandoned child in Australia.
The Delegate considered the decision in Nicky v Minister for Immigration and Border Protection [2015] FCA 174 (“Nicky”) and SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110 (“SZRTN”) but found that they had no impact on the applicant, nor did they change the outcome of his ability to be found an Australian citizen by birth.
The Delegate considered a statutory declaration dated 24 March 2021 which detailed the assistance provided to the applicant following his parent’s departure from Australia. The Delegate placed little weight on the statutory declaration as they were versions of events that were not supported by any evidence.
The Delegate ultimately found that the evidence did not demonstrate that the applicant was an abandoned child in Australia and that this had been contrarily proven. Thus, the Delegate found that the applicant did not acquire Australian citizenship by operation of law under s 14 of the Citizenship Act.
THE GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds for a judicial review are contained within an Initiating Application filed with the Court on 10 October 2022. They are as follows:
“This is an application under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)”.
1. The Minister erred in his decision by going out of the scope of section 14 of the Citizenship Act.
Particulars
The section 14 of the Citizenship Act 2007 does not say that I have to be born in Australia as alleged by the Minister.
2. The Minister made a decision to suit itself.
Particulars
Since the Minister stretched the section 14 outside of its scope, the decision appears to have been made to suite itself.
THE LAW
The Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) section 5 provides that:
1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:
a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
c)that the person who purported to make the decision did not have jurisdiction to make the decision;
d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
g)that the decision was induced or affected by fraud;
h)that there was no evidence or other material to justify the making of the decision;
i)that the decision was otherwise contrary to law.
Section 37(1) of the Citizenship Act provides that “a person may make an application to the Minister for evidence of the person’s Australian citizenship”. This requires satisfaction that the person is an Australian citizenship: Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 at [63], [65].
Section 14 of the Citizenship Act provides that “a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved”.
THE APPLICANT’S SUBMISSIONS IN RELATION TO THE SUBSTANTIVE APPLICATION
Counsel who appeared at the hearing on behalf of the applicant sought to draw a distinction between the previous legislation and the current provisions. It was submitted that the change in the legislation was significant and the decisions of Nicky and SZRTN could be distinguished as not applicable in the current situation.
THE RESPONDENT’S SUBMISSIONS
The first respondent opposed the matter being reinstated as it had no reasonable prospects of success. The first respondent submitted that the applicant has brought their application against the incorrect respondent. The decision that is the subject of this judicial review was made by the Department of Home Affairs, not the Minister for Immigration. They identified two issues, first that the application was not commenced against the proper respondent. Second, this Court only has jurisdiction in relation to this application under s 5 of the ADJR Act.
Accordingly, the first respondent submitted that the Court ought to make orders permitting the Minister for Home Affairs be joined as the second respondent in the matter and for the Judge’s Associate to amend the Initiating Application to include a further ground that “This is an application under s 5 of the ADJR Act. The first respondent has also sought various orders to dispense with the relevant rules requiring this type of application to be commenced using the correct forms and in the correct format. The first respondent’s legal representatives also sought that the application against the first respondent be dismissed. The Court agrees with these submissions and will make orders accordingly.
The first respondent submitted that the pleaded grounds of judicial review are factually misconceived. The Delegate did not consider that s 14 of the Citizenship Act required the applicant to be born in Australia. Its reasoning did not mention anything about where the child was born, but rather focused on whether the applicant’s citizenship by reason of their birth was ascertainable.
The first respondent submitted that the Delegate’s decision was consistent with the comments of Perram J at [25] in SZRTN and Flick J in Nicky. In Nicky, the applicant provided to the Department both of his parents’ certification of birth and passport evidencing citizenship. In SZRTN, Perram J stated “[t]here is no doubt about who [the applicant] is or where he comes from”. Based on the construction of s 14 of the Citizenship Act, the section has no operation with respect to the applicant.
CONSIDERATION
In relation to the first consideration for reinstatement, being the reasons for the applicant’s non-appearance on 5 October 2023, a review of the Court’s correspondence indicates the following:
a. Prior to a direction’s hearing on 21 April 2023, the applicant sought assistance from the Court regarding legal representation. The applicant stated that he was unable to obtain legal assistance due to financial difficulties. The matter was adjourned to 4 October 2023 for final hearing. On 3 May 2023, the final hearing date was changed to 5 October 2023.
b. On 2 May 2023, the Court made a referral pursuant to r 12.02(1) of the Rules that the applicant be referred for legal assistance.
c. On 29 September 2023, the applicant contacted Chambers expressing concern that he has not heard anything regarding legal representation. The applicant requested that the hearing be postponed until he had a legal representative appointed.
d. On the same day, Chambers advised the applicant that the relevant area responsible for allocating pro-bono Counsel had not been able to secure anyone. It went on to state “The Court will contact you when this has been confirmed.”
e. On 4 October 2023, the relevant area within the Court confirmed they had not been able to fill the referral for pro bono assistance. This communication does not appear to have been forwarded to the applicant.
On 5 October 2023, the applicant failed to appear at the hearing when it was called. My Associate contacted the applicant by telephone prior to the matter being called. The transcript of the hearing records that the Court was told that the applicant advised my Associate that he was at work and could not attend the hearing, even by telephone. In these circumstances, on the application of the respondent, the matter was dismissed for non-appearance.
The Court is satisfied that the applicant was aware of the hearing listed on 5 October 2023. Even in circumstances where the Court had been unable to obtain pro bono representation, the applicant was under an obligation to attend, even to ask for a further adjournment. The applicant’s decision to decline to appear even briefly by telephone was inappropriate.
Even in the circumstances as outlined above, the Court is prepared to give the applicant the benefit of the doubt as to the reasons for non-attendance. There are reasonable grounds for some confusion on the applicant’s part, although this does not explain his unwillingness to at least appear by telephone when he was contacted prior to the hearing. This factor favours reinstatement.
In relation to the second consideration for reinstatement, the respondent properly conceded that, other than as to costs, no prejudice flowed from an order for reinstatement. The Court considers this consideration to be neutral as regards reinstatement.
That leaves the third consideration, being the substantive merits of the application. In the Court’s view, the substantive application is misconceived and has no prospects of success even at an impressionistic level. As submitted by the respondent, the applicant’s identity and citizenship are not in doubt. The applicant is of Nepalese citizenship. Both of the applicant’s parents are of Nepalese citizenship. The abandoned child provisions have no relevance in this matter. The Delegate properly considered all the evidence and found that the applicant had not been “abandoned” in Australia. If anything, the Delegate found the applicant most likely determined to stay in Australia after his parents returned to Nepal.
Further, the applicant was receiving some financial support from his brother.
Section 14 of the Citizenship Act 2007 states as follows:
A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.
The Delegate also had regards to departmental policy in relation to s 14 of the Citizenship Act 2007 which states:
The abandoned child provisions would usually only apply when the parents and their status is unknown.
For example, if a student visa holder gave birth in Australia and then left their child at a hospital and the mother’s details and status were known, then that child would not be an Australian citizen under the abandoned child provisions.
In the current case, the identity and status of the applicant’s parents is well known. The citizenship of the applicant is well known via a passport he provided details of to the Department. In the Court’s view, notwithstanding the changes to the relevant legislation, the reasoning of Flick J in Nicky at [42] – [45] is still relevant. The applicant is not stateless, his citizenship is well known. The applicant is not entitled to Australian citizenship where the country of birth and nationality of the child are known.
In my view, the application has absolutely no prospects of success. The Court is not satisfied, even if the matter was reinstated, noting the applicant was represented at the reinstatement hearing, that the ultimate outcome would be in his favour.
Even accepting some legitimate confusion from the applicant as regards to his requirement to attend the hearing on 5 October 2023, this is not in the Court’s view the major consideration. The Court is not persuaded that the matter should be reinstated, as there is no point in doing so, as the application has no prospects of success.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 16 November 2023
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