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

[2021] AATA 2800

Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2800 (11 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0462

Re:Petrovski

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:11 August 2021

Place:Sydney

The application is dismissed for want of jurisdiction.

............................[SGD]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Application for citizenship by conferral – Whether the Tribunal has jurisdiction to review the decision of the delegate – Where the Applicant applied to the Department using the incorrect form – Whether the Tribunal is precluded by section 46(1) of the Australian Citizenship Act 2007 from considering the application – No jurisdiction – Application dismissed

LEGISLATION

Acts Interpretation Act 1901 (Cth), s 25C

Australian Citizenship Act 2007 (Cth), ss 21, 46

CASES

Hashim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 58

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

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

11 August 2021

BACKGROUND

1. On 8 January 2020, the Applicant applied to the Department of Home Affairs (the Department) for Australian citizenship by conferral.

2. On 21 January 2020, a delegate of the Respondent made a decision refusing the Applicant’s application for Australian citizenship on the basis that she did not meet the requirements of paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (the Act) regarding physical or mental incapacity.

3. On 28 January 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.

4. On 15 April 2021, the Respondent wrote to the Tribunal and the Applicant claiming that the Tribunal has no jurisdiction to review the decision of the delegate that is the subject of the Applicant’s application.

5. The basis for the Respondent’s claim is that the Applicant’s application to the Department on 8 January 2020 was lodged using form 1300t, rather than form 1290.

6. Section 46(2) of the Act governs the approval of forms used to apply for citizenship and relevantly provides that ‘the Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made’.

7. Form 1300t has been approved by the Minister for the purposes of applying for citizenship where an applicant meets the general eligibility criteria outlined under s 21(2) of the Act. Section 21(2) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 years 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 or the special residence requirement, or satisfies the defence service requirement, 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.

8. Form 1290 has been approved by the Minister for the purpose of applying for citizenship where an applicant meets any of the other eligibility criteria outlined in ss 21(3)-(8) of the Act. In her application to the Department, the Applicant was assessed against the eligibility criteria outlined in s 21(3) of the Act, which provides that 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 or the special residence requirement, 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.

9. Section 46(1) of the Act provides:

   (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….

10. The Respondent claims that the Tribunal is prohibited by s 46(1)(a) of the Act from reviewing the delegate’s decision against the eligibility criteria set out in s 21(3) of the Act. The basis for this is that form 1300t only allows the Minister, and the Tribunal standing in the Minister’s shoes, to consider s 21(2) of the Act. On this basis, the Respondent contends that the application should be dismissed for want of jurisdiction.

    LEGAL FRAMEWORK

11. Section 46 of the Act sets out the requirements for a valid citizenship application.

12. Section 46(1) provides that an application under a provision of the 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.

13. Section 46(2) of the Act governs the approval of forms used to apply for citizenship and relevantly provides that ‘the Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made’.

14. Section 21 contains the relevant eligibility criteria relating to applications for citizenship by conferral.

15. Section 21(3) relevantly outlines the conditions of eligibility for Australian citizenship by conferral that may apply to a person with a 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.

    THE ISSUE

16. The issue for determination is whether the Tribunal has jurisdiction to review the delegate’s decision dated 21 January 2020, which refused the Applicant’s application for Australian citizenship by conferral.

    DISCUSSION

17. At the hearing, the Applicant gave a lengthy outline of her dealings with the Department, including the various forms she said that she had lodged, together with details of her mental illness and the supporting medical records she said she had lodged.

18. The provisions of s 46 of the Act are critical to the determination of this matter. The effect of the provisions is that an application for Australian citizenship must be made using a form that has been approved by the Minister.

19. Relevantly, form 1300t has been approved by the Minister for the purposes of s 21(2) of the Act. Form 1290 has been approved by the Minister for the purposes of ss 21(3)-(8) of the Act.

20. Accordingly, for the Applicant to have her application for citizenship considered under s 21(3) of the Act, she must lodge form 1290. Section 46 is quite clear in its wording. There is no discretion as to the form to be used in order for an application to be considered under particular sections of the Act.

21. There is relevant Federal Court authority for this proposition in the case of SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, where the Court stated in relation to a citizenship application at [28], ‘the application will be valid only if he or she uses the specific form, otherwise the application is invalid’.

22. A relevant decision in this Tribunal can be found in Hashim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 58. In that decision, the Tribunal found it did not have jurisdiction to determine a matter on the basis of the criteria in s 21(3) of the Act, as the Applicant had at no stage filed a form 1290.

23. In light of the above and the evidence presented at hearing, in my opinion the Tribunal does not have jurisdiction to determine the current application as the Applicant did not lodge the prescribed form, namely form 1290, in relation to her application under s 21(3).

24. I have also had regard to s 25C of the Acts Interpretation Act 1901 (Cth), which states that ‘where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient’.

25. In my view, that does not assist the Applicant. The Acts Interpretation Act does not of itself confer any jurisdiction on the Tribunal. It is only a guide to the interpretation of Commonwealth statutes. It does not, in my view, contemplate a situation where entirely the wrong application form is used. It may assist where there is a failure to fill in all parts of a form correctly or when the correct form is used but there is not strict compliance with its requirements.

26. The section does not, in my opinion, give jurisdiction to the Tribunal to consider a situation where an entirely incorrect form is used. If that were so, it would result in a complete lack of order and certainty in public administration.

27. The language of s 46(1) is clear. The application of s 25C of the Acts Interpretation Act does not provide a way around it.

28. I note that the Applicant said at the hearing that she had previously filed the correct form, namely form 1290, and that she had been misled by the Department into filing the incorrect form at a later date. No corroborating evidence was put to the Tribunal. In any event, regardless of what may have happened in the past, for the purposes of this application, the correct form was not lodged with the Department.

29. Although it is not the Tribunal’s role to advise the Applicant, and she must take her own advice, the best course for the Applicant would seem to be for her to re-apply for Australian citizenship, using form 1290 together with the relevant supporting documents.

    DECISION

30. The application is dismissed for want of jurisdiction.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..............................[SGD]..........................................

Associate

Dated: 11 August 2021

Date of hearing:	21 July 2021
Date final submissions received:	21 July 2021
Applicant:	In person (by telephone)
Solicitors for the Respondent:	L Hargrave, Clayton Utz