Shams v Minister for Immigration and Citizenship

Case [2011] FCA 1505

FEDERAL COURT OF AUSTRALIA

Shams v Minister for Immigration and Citizenship [2011] FCA 1505

Citation: Shams v Minister for Immigration and Citizenship [2011] FCA 1505
Appeal from: Shams and Minister for Immigration and Citizenship [2011] AATA 675
Parties: FARIHA SHAMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL
File number(s): NSD 1746 of 2011
Judge: JACOBSON J
Date of judgment: 22 December 2011
Catchwords: STATUTORY INTERPRETATION - application for citizenship by conferral by person under 18 years of age under Australian Citizenship Act 2007 (Cth) - refusal to grant citizenship despite applicant meeting eligibility requirements - citizenship refused because applicant did not meet residency requirement - whether minister was entitled to have regard to residency requirement in exercising discretion to approve or refuse an application for citizenship
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Australian Citizenship Act 1948 (Cth), ss 13 and 15
Australian Citizenship Act 2007 (Cth), ss 12, 20, 21, 22 24, 26 and 34
Cases cited: Singh v Minister for Immigration and Citizenship [2011] FCA 685 followed
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 referred to
Date of hearing: 16 December 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 81
Counsel for the Appellant: Mr H Jewell
Counsel for the First Respondent: Mr J Smith
Solicitor for the First Respondent: DLA Piper Australia
Solicitor for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1746 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

FARIHA SHAMS
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

22 DECEMBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Appellant pay the Respondents’ costs of the Application as agreed or assessed.

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 1746 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

FARIHA SHAMS
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE:

22 DECEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal from the Administrative Appeals Tribunal (the “Tribunal”) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal affirmed a decision of a delegate of the Minister not to approve the appellant becoming an Australian citizen: Shams and Minister for Immigration and Citizenship [2011] AATA 675 (the “Tribunal Decision”).

  2. The appellant is a young Bangladeshi woman. She was 17 years old when she applied to the Minister under s 21(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”) to become an Australian citizen. The appellant satisfied the relevant eligibility requirement to become an Australian citizen, as stated in s 21(5) of the Act, but the…

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AGLC
Shams v Minister for Immigration and Citizenship [2011] FCA 1505
Case
[2011] FCA 1505
Decision Date

CaseChat Overview and Summary

In the case of Shams v Minister for Immigration and Citizenship, the applicant sought judicial review of a decision by the Minister for Immigration and Citizenship to refuse her application for citizenship by conferral under the Australian Citizenship Act 2007 (Cth). The applicant, who was under 18 years of age, met all the eligibility requirements for citizenship by conferral as outlined in section 21(5) of the Act, but her application was refused due to a failure to meet the residency requirement. The central issue before the court was whether the Minister was entitled to consider the residency requirement when exercising the discretion to approve or refuse an application for citizenship by conferral under section 24 of the Act.

The court examined the provisions of the Act, including section 21(5) which sets out the eligibility criteria for applicants under 18 years of age, and section 24(1) which confers a discretionary power on the Minister to approve or refuse an application for citizenship. While section 21(5) does not explicitly include a residency requirement, the court held that eligibility is only one step in the process of citizenship conferral. The court noted that the Act as a whole, including its legislative history and purpose, suggests that a communal relationship with Australia, including residency, is an essential requirement for citizenship. The court concluded that the Minister's discretion under section 24 was not confined to the eligibility criteria in section 21(5) and could legitimately take into account the residency requirement when exercising that discretion.

Consequently, the court dismissed the applicant's appeal, holding that the Minister was entitled to have regard to the residency requirement in deciding whether to approve the applicant's citizenship application. The court ordered that the application be dismissed and that the appellant pay the respondents’ costs of the application as agreed or assessed.

Orders

Orders of the court

1. The Application be dismissed.

2. The Appellant pay the Respondents’ costs of the Application 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Policy Guidelines state that children under the age of 16 would usually be approved if they are permanent residents and meet the stipulated guidelines. The stated guidelines include being with a responsible parent who is an Australian citizen and consents to the application.The Tribunal’s Decision The Tribunal was of the view that upon its proper construction, s 21(5) of the Act did not incorporate a general residence requirement. It considered, nevertheless, that the Tribunal retained a general discretion not to approve an application under s 24(2): see Tribunal Decision at [8]–[9]. The Tribunal referred to the decision of Marshall J in Singh. That decision (though made in respect of an earlier version of s 21(5) of the Act) was authority for the proposition that it was open to a decision-maker dealing with an applicant who was eligible under s 21(5), to have regard to the Policy Guidelines under the ACI in exercising the discretion under s 24. That approach is consistent with the Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth), to which the Tribunal referred. The Tribunal considered that the circumstances of the case did not warrant a departure from the residence requirement stated in the ACI Policy Guidelines. The Tribunal was not persuaded that the applicant would suffer significant hardship and disadvantage if she were not granted citizenship: see Tribunal Decision at [17]–[18] and [22].Consideration The substance of the submissions made by counsel for the appellant was that upon its proper construction, s 21(5) excluded the need to satisfy the general residence requirement stated in s 22 and that it was therefore not open to the Tribunal to have regard to the residence requirement stated in the Policy Guidelines while exercising the discretion contained in s 24. It is true that the residence requirement is not one of the conditions of eligibility stated in s 21(5) for applicants aged under 18 years. However, eligibility for citizenship is only one of the steps prescribed for conferral of citizenship under the scheme contained in Part 2, Division 2, Subdivision B of the Act. In my view, the approach to construction proposed by the appellant would be contrary to the terms of the scheme contained in the Act considered as a whole. This is clear in my opinion from the express terms of the Act considered in it full context. As counsel for the Minister submitted, the scheme appears in the provisions of the Act to which I have referred, and the context includes the legislative history gleaned from the 1948 Act and the Explanatory Memorandum to the Bill. The critical provision in Subdivision B is s 24(1). It confers a discretion on the Minister to “approve” or to “refuse to approve” an application by a person to become an Australian citizen. There are a number of express restrictions on the exercise of the power by the Minister. But apart from those restrictions, the exercise of the discretion is unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J)

Ratio Decidendi

Legal Principle Established

The Tribunal considered that the circumstances of the case did not warrant a departure from the residence requirement stated in the ACI Policy Guidelines. The Tribunal was not persuaded that the applicant would suffer significant hardship and disadvantage if she were not granted citizenship: see Tribunal Decision at [17]–[18] and [22].Consideration The substance of the submissions made by counsel for the appellant was that upon its proper construction, s 21(5) excluded the need to satisfy the general residence requirement stated in s 22 and that it was therefore not open to the Tribunal to have regard to the residence requirement stated in the Policy Guidelines while exercising the discretion contained in s 24. It is true that the residence requirement is not one of the conditions of eligibility stated in s 21(5) for applicants aged under 18 years. However, eligibility for citizenship is only one of the steps prescribed for conferral of citizenship under the scheme contained in Part 2, Division 2, Subdivision B of the Act. In my view, the approach to construction proposed by the appellant would be contrary to the terms of the scheme contained in the Act considered as a whole. This is clear in my opinion from the express terms of the Act considered in it full context. As counsel for the Minister submitted, the scheme appears in the provisions of the Act to which I have referred, and the context includes the legislative history gleaned from the 1948 Act and the Explanatory Memorandum to the Bill. The critical provision in Subdivision B is s 24(1). It confers a discretion on the Minister to “approve” or to “refuse to approve” an application by a person to become an Australian citizen. There are a number of express restrictions on the exercise of the power by the Minister. But apart from those restrictions, the exercise of the discretion is unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J) The scope and purpose of the Act may be seen in particular from the provisions of Part 2 which deal with citizenship and the ways in which it may be acquired or lost. What can be seen from this is that the essential requirements for acquisition of citizenship include a communal relationship with Australia. This can be seen in each of the ways in which a person acquires Australian citizenship, whether automatically, by birth or by conferral under Subdivision B. The communal relationship is recognised in the Preamble to the Act which refers to full and formal membership of the community. Where citizenship is conferred, the preamble states that persons upon whom citizenship is conferred enjoy their rights and undertake to accept their obligations by, inter alia, pledging loyalty to Australia and its people. The pledge is the fourth and final step in the acquisition of citizenship by conferral under subdivision B.