Wickham and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 804

CATCHWORDS – CITIZENSHIP – jurisdiction – decision refusing grant of citizenship – whether Tribunal’s jurisdiction excluded by requirement that applicant be a permanent resident – no jurisdiction.

Administrative Appeals Tribunal Act 1975 ss. 3 and 25
Australian Citizenship Act 1948 ss. 5A, 13 and 52A

DECISION AND REASONS FOR DECISION [2005] AATA 804

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2005/475
GENERAL ADMINISTRATIVE DIVISION     )          

Re                JOHN WICKHAM

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  22 August 2005
Place:  Melbourne

Decision:The Tribunal does not have jurisdiction to review the respondent’s decision dated 4 May 2005.

S A FORGIE
  Deputy President

REASONS FOR DECISION

Mr John Wickham, is a citizen of the United Kingdom. He lived in Australia from 29 January 1964 until the early 1970s when he returned to live in England. Over the years, he has returned to Australia on four occasions for varying periods up to three weeks. Mr Wickham applied for a grant of Australian citizenship under s. 13 of the Australian Citizenship Act 1948 (“Act”) but a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) refused his application.  I have decided that I cannot review the Minister’s decision because the Tribunal does not have the jurisdiction to do so unless Mr Wickham is a permanent resident.

THE ISSUE

1. The issue in this case is whether the Tribunal has the authority or power, and so jurisdiction, to review the Minister’s decision. 

BACKGROUND

1. For the purposes of deciding whether the Tribunal has jurisdiction to review the Minister’s decision, I accept Mr Wickham’s history of his travels between Australia and England.  I set out my findings of fact on these matters in the following paragraphs.

1. Mr Wickham, who was a member of the Royal Navy (Fleet Air Arm), accepted an offer to work with the then Department of Supply at the Government Aircraft Factory at the area known as Fishermans Bend.  The Department paid for him and his family to move to Australia and he took up his position early in 1964.  As a member of the Royal Navy (Fleet Air Arm), neither he nor his family held passports. 

1. Mr Wickham’s marriage came to an end at some time in the 1960s or early 1970s.  He entered another relationship and he and his partner had two children born in Australia.  Mr Wickham and his partner travelled to England in the early 1970s with their children.  They both applied for and were granted British passports as they “… expected to return within a year”.[1]  At the time, Mr Wickham did not realise that he could have applied for Australian citizenship and then an Australian passport.  He and his partner married when they were in England and then, at the instigation of Mrs Wickham, decided to stay there. 

   [1] Email from Mr Wickham to Mr Tony Gawne, District Registrar, and Ms Anthea Hammond, Deputy District Registrar dated 2 August 2005

1. Mr Wickham’s first wife and son from his first marriage live in Australia.  His second wife and his children from his second marriage are free to travel between Australia and England with Australian passports.  Mr Wickham must apply for a visitor’s visa when he wishes to travel to Australia and he feels that he is the odd one out in his family.  He would very much like to end his years in Australia, which he loves and still feels is home.  Mr Wickham feels that he is accepted as an Australian when he visits Australia and as an Australian when he lives in England.  When he lived in Australia, the Veterans’ Agency, which is part of the Ministry of Defence in the United Kingdom, paid his war pension through the Department of Veterans’ Affairs in Australia.  He received worker’s compensation under Australian law when he was employed by the Department of Supply. 

1. If he cannot have Australian citizenship, Mr Wickham would like a Return Resident Visa (“RRV”) to enable him to live where he feels is home.  He would not be a burden on the Australian taxpayer as he has a permanent income that is well able to meet his needs.  If he could have an RRV, he could apply for Australian citizenship as soon as possible.

LEGISLATIVE FRAMEWORK

Grant of citizenship

1. Part III of the Act sets out the circumstances in which a person acquires Australian citizenship. In general terms, Australian citizenship may be acquired by birth, adoption or descent or by a grant. In this case Australian citizenship acquired by a grant is relevant and that is the subject of s. 13. That section provides that the Minister may grant Australian citizenship to a person in several sets of circumstances. Only two sets are relevant to Mr Wickham’s circumstances. The first is found in s. 13(1) and provides that, subject to the section itself and provided a person applies in accordance with an approved form:

   “… the Minister may, in the Minister’s discretion, … grant a certificate of Australian citizenship to a person who satisfies the Minister that:

   (a)the person is a permanent resident;

   (b)the person has attained the age of 18 years;

   (c)the person understands the nature of the application;

   (d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

   (e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

   (f)the person is of good character;

   (g)the person possesses a basic knowledge of the English language;

   (h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

   (j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.”

1. Sections 13(2) to (8) qualify the operation of s. 13(1). In particular, ss. 13(3) and (3A) qualify the operation of ss. 13(1)(d) and (e) relating to the period during which the person has been a permanent resident in Australia.  Section 5A sets out a number of circumstances in which a person who is not an Australian citizen will be taken to be, or to have been, a permanent resident for the purposes of the Act. Among those circumstances are those that a person has held a valid visa that is in a class of visas prescribed for the purpose of s. 5A(1)(d)(A) or a return endorsement that was in force.[2]

   [2] Act, s. 5A(1)(d)(A)

1. The second set of circumstances is found in s. 13(9). Subject to certain qualifications that are not relevant in this case,[3] and in so far as it is relevant in this case, s. 13(9) provides that:

   [3] Act, s. 13(11)

   “… the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:

   (a)who has not attained the age of 18 years;

   (b)who;

   (i)        has attained the age of 18 years; and

   (ii)has made the application before attaining that age;

   (c)who is a permanent resident and is the spouse … of an Australian citizen; or

   (d)…”

Review of decisions by the Tribunal

1. Unlike a court of general jurisdiction which may consider all matters that come before it for trial, the Tribunal’s jurisdiction to is limited.  The first limitation imposed on its jurisdiction is that it may review only decisions made in the exercise of powers conferred by an enactment.  An “enactment” includes an Act or an instrument, such as regulations or by-laws, made under an Act.[4]  A “decision”[5] is broadly defined in s. 3(3) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).

   [4] AAT Act, s. 3(1)

   [5] Section 3(3) provides that the word “decision” includes a reference to:

1. The second limitation is that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”[6]  The AAT Act itself is not such an enactment.  Section 25(1) simply provides that other enactments may make such a provision.  It states:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment.”

Section 25(4) complements s. 25(1) by providing that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

[6] AAT Act, s. 25(4)

1. Implicit in s. 25(1) is that the Tribunal does not have jurisdiction if a decision does not conform to these two limitations.  There is no question in this case that the Minister has made a decision.  That means that the first limitation has been overcome but only in relation to Australian citizenship.  The Minister has not made any decision in relation to whether Mr Wickham is, or should be, entitled to an RRV.  In the absence of a decision in relation to his having an RRV, the first limitation is not met and the Tribunal does not have jurisdiction to consider the matter at all.  That is to say, it does not have the power or ability to consider whether or not Mr Wickham should be granted an RRV.

2. In relation to Australian citizenship, the second limitation may only be overcome if there is an enactment providing that a person may make an application to the Tribunal for review of the decision. In relation to decisions made under the Act, s. 52A provides for review of the Minister’s decisions. It provides that applications may be made to the Tribunal for review of decisions made by the Minister refusing an application under s. 13.[7]  That provision is, however, only part of the section.  A section must be read as a whole.  Consequently, the provision entitling a person to make an application must be read with the qualification the section makes to that entitlement.  That qualification is:

   “A person is not entitled to make an application under subsection (1) for review of a decision under section 13 (other than paragraph 13(9)(a) or (b)) unless the person is a permanent resident.”[8]

   [7] Act, s. 52A(1)(a)

   [8] Act, s. 52A(2)

1. The effect of the qualification is that Mr Wickham may not apply to the Tribunal for review of the Minister’s decision because it was made under s. 13 and was not made under either ss. 13(9)(a) or (b).  It was not, and could not be, made under either of those sections because Mr Wickham is not a person who is under the age of 18 years[9] and is not a person who applied for Australian citizenship before he was 18.[10]  As Mr Wickham may not apply to the Tribunal for review of the decision, the Tribunal does not have jurisdiction to review the Minister’s decision.

   [9] And so does not come under s. 13(9)(a)

   [10] And so does not come under s. 13(9)(b)

1. For the reasons I have given, I decide that the Tribunal does not have jurisdiction to review the respondent’s decision dated 4 May 2005.

   I certify that the sixteen preceding paragraphs are a true copy of the reasons for the decision herein of
   Deputy President S A Forgie,

Signed:           ...............................................................

Nathaniel Wills  Associate

Date of Jurisdiction Hearing
- on the papers  10 August 2005

Date of Decision  22 August 2005
For the Applicant  self represented

Solicitor for the Respondent         Ms Elaine Yong

Australian Government Solicitor

“(a)       making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)        issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)        imposing a condition or restriction;
(e)        making a declaration, demand or requirement;
(f)         retaining, or refusing to deliver up, an article, or
(g)        doing or refusing to do any other act or thing.”