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

XXVV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1518 (29 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3367
Re:XXVV
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:29 May 2020
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the applicant meets the permanent residence requirement to be granted Australian citizenship by conferral – applicant does not meet permanent residence requirement – whether the applicant is a stateless person pursuant to the Australia Citizenship Act 2007 – applicant was not born in Australia – applicant has previously been a citizen of another country – applicant is not a stateless person - whether the applicant is of good character not in issue – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 42D, 43
Australian Citizenship Act 2007 ss 5, 12, 16, 20, 21, 22, 24, 52, 53
Migration Act 1958 ss 500, 501, 501K
Cases
Re Ap and Minister for Immigration and Border Protection [2014] AATA 706
Nguyen and Minister for Immigration and Citizenship [2013] AATA 272
Secondary Materials
United Nations Convention on the Status of Stateless Persons
REASONS FOR DECISION
Member W Frost
29 May 2020
INTRODUCTION

The Applicant was refused Australian citizenship by a delegate of the Respondent (Minister) on the ground that the Applicant was ineligible because he was not a permanent resident of Australia, as required under the Australian Citizenship Act 2007 (Citizenship Act).
The Applicant applied for review of this decision by the Administrative Appeals Tribunal. The Minister subsequently applied for dismissal of the proceeding on the ground that the Applicant’s application had ‘no reasonable prospect of success’ pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). At an interlocutory hearing, the Tribunal ordered that the decision under review be remitted to the Minister for reconsideration pursuant to section 42D of the AAT Act because that decision had referred to an Australian citizenship application form that was not used by the Applicant to make that application. Accordingly, the Tribunal could not be satisfied that all relevant matters had been considered by the delegate of the Minister in making its decision the subject of the proceeding in the Tribunal.
As a result of the Tribunal’s remittal, a delegate of the Minister made a new decision refusing the Applicant’s application for Australian citizenship, which decision considered the relevant matters pursuant to the application form completed by the Applicant for the conferral of citizenship. That decision was ultimately the decision under review by the Tribunal in this proceeding.
Following the hearing of this application, and in preparing its decision, the Tribunal considered whether the Applicant’s identity should be published or disclosed in this decision in circumstances where the Applicant previously had an application for the review of a refused protection visa heard and determined in the Migration and Refugee Division of the Tribunal. In this regard, the Tribunal considered that section 501K of the Migration Act 1958 (Migration Act), which prohibits the publication by the Tribunal of a protection visa applicant’s identity, was not applicable because this Tribunal’s review of the Applicant’s application for citizenship did not relate to the Applicant in his capacity as ‘a person who applied for a protection visa’.[1] However, in the circumstances the Tribunal considered it appropriate to issue an order pursuant to section 35 of the AAT Act that prohibited the publication or disclosure of information tending to reveal the Applicant’s identity. Therefore, a pseudonym was applied to the names of the Applicant and his de facto spouse.
[1] See Nguyen and Minister for Immigration and Citizenship [2013] AATA 272.
The Tribunal considered all the documents in two bundles of documents filed in this proceeding on 17 July 2019 and 2 March 2020, pursuant to section 37 of the AAT Act,[2] plus the respective Statement of Facts, Issues and Contentions filed by both parties. The following further documents filed on behalf of the Applicant were also considered by the Tribunal:
[2] Being Exhibits 1 and 2, respectively.
(a)Statutory Declaration made by the Applicant on 14 February 2020;[3]
(b)The Minister’s written submissions on jurisdiction dated 22 November 2019;[4]
(c)Email correspondence between the Tribunal, the Applicant’s representative and the solicitor for the Minister between 5 and 8 November 2019;[5]
(d)Extract from the Commonwealth Attorney-General’s Department website titled ‘Right to a name and acquire nationality’, accessed on 25 January 2020 and filed on behalf of the Applicant on 24 February 2020;[6]
(e)Statement from the High Court of Australia dated 13 December 2019 in relation to CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50;[7]
(f)United Nations Convention Relating to the Status of Stateless Persons;[8]
(g)Extracts of sections 12, 14, 16 and 22 of the Citizenship Act;[9]
(h)Witness Statement of DQNK dated 12 February 2020;[10]
(i)Witness Statement of Saroj Prakash Kayastha dated 12 February 2020;[11] and
(j)Department of Home Affairs Form 1290, Application for Australian citizenship - Other situations.[12]
[3] Exhibit 3.
[4] Exhibit 4.
[5] Exhibit 5.
[6] Exhibit 6.
[7] Exhibit 7.
[8] Exhibit 8.
[9] Exhibit 9.
[10] Exhibit 10.
[11] Exhibit 11.
[12] Exhibit 12.
ISSUE
The issue for the Tribunal in this proceeding was whether the Applicant is eligible for Australian citizenship pursuant to the Citizenship Act.
BACKGROUND
In 1984, the Applicant was born in Nigeria.[13]
[13] Exhibit 1, T4, pages 94-124.
On 1 February 2014, the Applicant arrived in Australia on a student visa (TU-572) that was valid until 1 September 2016.[14]
[14] Exhibit 2, T14, pages 198 and 202; Exhibit 1, T6, page 127.
On 20 April 2015, the Applicant applied for a refugee (or protection) visa, which was refused by the Minister’s Department on 30 June 2016. An application was made by the Applicant to the Migration and Refugee Division of the Tribunal for review of that decision. The Applicant was granted a temporary bridging visa (WA-010) until 29 October 2019 while that application was before the Tribunal.
On 7 March 2019, while on the abovementioned temporary bridging visa and in advance of his application for a protection visa being determined, the Applicant applied for Australian citizenship by completing the Department’s Form 1290, ‘Application for Australian citizenship – other situations’.[15] The Applicant’s application was received by the Department on 30 April 2019. In that application, the Applicant stated that he held citizenship of Nigeria; this was said to have been acquired on his birth and ended on 7 March 2015.[16] The Applicant also listed in his application for Australian citizenship his Nigerian passport details, which passport was issued on 7 December 2011 and expired on 6 December 2016.[17] For completeness, the Tribunal finds that the Applicant’s now expired passport issued by the Federal Republic of Nigeria listed his nationality as ‘Nigerian’.[18] In response to the question in the Applicant’s application for Australian citizenship, ‘[w]hich of the following circumstances apply to you?’, the Applicant marked with a tick the box accompanying the statement ‘I am a stateless person’.[19] The Applicant also positively indicated in that application that he was ‘seeking a residence exemption or discretion’.[20]
[15] Exhibit 1, T4, pages 94-108.
[16] ibid, page 95.
[17] ibid.
[18] ibid., page 111.
[19] ibid., page 96.
[20] ibid.
Also on 7 March 2019, the Applicant wrote to the Minister requesting him to exercise a discretion contained in subsection 22(6) of the Citizenship Act (discussed further below in these reasons).[21] The Applicant relevantly stated that:
[21] Exhibit 1, T4, pages 118-124.
I arrived in Australia 5 years ago on a Student Visa which later expired. But before my Student Visa expired, due to a well founded fear of persecution in my former country of habitual residence Nigeria, I filed an application for XA onshore protection Subclass 866 but which was refused. My appeal is currently before the Refugee Review Tribunal section of the Administrative Appeals Tribunal.
At present I am in a de facto relationship of 2 years or more with [DQNK] who I met [in] Sydney, Australia while on holiday.
…
Presently I only speak with my old parents who are still living in Nigeria only phone. Both of these retired parents are now aging if the Minister doesn’t intervene I may not get the opportunity to spend as much time with them now while they are still alive.
It is because such significant hardship and disadvantage therefore that I strongly request on their behalf and on my own behalf that the Minister takes a favourable view of my situation and grant me this Citizenship Application.
…
Furthermore, the Minister should consider granting me this Citizenship because my case is exceptional and unique under Ministerial Discretion 3. This is because the security and political situation in Nigeria only goes from bad to worse each passing day.
…
Therefore if I were to face a possible removal or a voluntary relocation to Nigeria it would put me and my de facto spouse [DQNK] in jeopardy. Otherwise we would be separated against our will.
On 11 May 2019, the Applicant’s application for Australian citizenship was refused by a delegate of the Minister under section 24 of the Citizenship Act, because the Applicant was not a permanent resident of Australia, as required by subsection 21(2)(b) of the Citizenship Act (Original Decision Under Review).[22]
[22] ibid., T2, pages 12-20.
On 14 June 2019, the Applicant applied to the Tribunal for review of the Original Decision Under Review.[23]
[23] Exhibit 1, T1, pages 1-11.
On 31 July 2019, the Minister made an application to the Tribunal to dismiss the Applicant’s application because, it was submitted, the application was not reviewable by the Tribunal pursuant to subsection 42A(4) of the AAT Act, in circumstances where subsection 52(2) of the Citizenship Act was said to apply to the Applicant’s application, meaning the delegate’s Original Decision Under Review was expressly not reviewable by the Tribunal.[24] That is, the Minster contended that the Tribunal was without jurisdiction to review the Applicant’s application. Subsection 52(2) of the Citizenship Act relevantly provides that if the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen and the reasons for the decision did not refer to the eligibility ground in subsection 21(8) about statelessness, a person cannot apply to the Tribunal for review of that decision unless the applicant is a permanent resident. The Applicant is not a permanent resident of Australia.
[24] Exhibit 13.
On 12 August 2019, at an interlocutory hearing to determine the Minister’s dismissal application, the Tribunal decided not to dismiss the Applicant’s application, but to remit the Original Decision Under Review to the Minister for reconsideration pursuant to section 42D(1) of the AAT Act, because the Tribunal identified that the delegate of the Minister had incorrectly stated in its reasons that the Applicant had completed Form 1300t, ‘Application for conferral of Australian citizenship – general eligibility’, which was different to that form actually completed by the Applicant, being Form 1290, ‘Application for Australian citizenship – other situations’.[25] Therefore, the Tribunal could not be satisfied that the delegate had taken into account all required considerations in making its decision refusing the Applicant’s citizenship application, including because the Applicant had claimed to be stateless in his citizenship application form, which claim had not been referred to in the delegate’s reasons in the Original Decision Under Review where such omission (together with the fact that the Applicant is not a permanent resident of Australia) was relied upon by the Minister, in his application to dismiss the Applicant’s application, as grounds for the Tribunal not having jurisdiction. Pursuant to subsection 42D(5)(b) of the AAT Act, the Minister was required within 28 days from the day on which the Original Decision Under Review was remitted by the Tribunal to reconsider the Original Decision Under Review and either affirm that decision; vary the decision; or set it aside and make a new decision in substitution.
[25] ibid., T10, page 144.
On 6 September 2019, at the Minister’s request (and with the Applicant’s consent), the Tribunal made a direction pursuant to subsection 42D(6) of the AAT Act extending the time by which the Minister must reconsider the Original Decision Under Review by 60 days, being until 4 November 2019.[26]
[26] Exhibit 2, T11, pages 145-146.
On 17 September 2019, a delegate of the Minister sent a letter to the Applicant inviting him to ‘comment on, or provide an explanation about, adverse information that may lead to a decision to refuse you becoming an Australian citizen’.[27] The letter relevantly stated that:
Before I proceed to assess your application for Australian Citizenship, I must:
·be satisfied that you meet the requirements of Statelessness (as required under section 21(8) of the Australian Citizenship Act 2007 (‘the Citizenship Act’) and
·not provided false statements or representations or concealed information deliberately in relation to an application as per section 50 of the Citizenship Act.
[27] ibid., T12, pages 147-151.
Relevant information
In considering your citizenship application, specifically in relation to these two matters mentioned above, I will be taking into account the following information:
·you provided a copy of Nigerian Passport…with your citizenship application. you [sic] arrived into Australia on this passport on 01/02/2014 on student subclass visa 572.
·you provided copy Nigerian National Identity card…with your protection visa application.
·at the time of your student visa subclass 572 grant, you declared yourself as a Nigerian National and submitted Nigerian National Identity card.
·“Citizenship – Character Summary” sheet – a summary of the factors that may be relevant to consideration of the good character requirement.
On 1 October 2019, while the Applicant’s citizenship application was being reconsidered on behalf of the Minister pursuant to the Tribunal’s remittal decision, the Migration and Refugee Division of the Tribunal affirmed the Department’s decision of 30 June 2016 refusing the Applicant’s application for a protection visa. The Tribunal understands from the Applicant’s representative that the Tribunal’s decision in relation to the Applicant’s protection visa application is not the subject of an appeal before any Court.
On 8 October 2019, the Applicant’s representative provided the Minister’s Department with the Applicant’s response to the request for his comment or explanation regarding adverse information in relation to his application for Australian citizenship.[28] This documentation included: a Statutory Declaration made by the Applicant[29] and attached an Australian Federal Police criminal record check listing ‘no disclosable court outcomes’ in relation to the Applicant;[30] a certificate of employment from an aged care provider in the Australian Capital Territory;[31] a certificate and emails recognising the Applicant’s achievements in his work;[32] a character reference from Mr Peter Owoeye (who gave evidence to the Tribunal at the hearing)[33] and four purported addendums to the Statutory Declaration.[34]
[28] Exhibit 2, T13, pages 152-197.
[29] ibid., page 153-155.
[30] ibid., page 156.
[31] ibid., page 157.
[32] ibid., pages 158 and 160-166.
[33] ibid., page 159.
[34] ibid., pages 167-194.
On 29 October 2019, the Applicant’s bridging visa (WA-010) ceased.[35]
[35] ibid., T14, page 199.
On 4 November 2019, a delegate of the Minister made a new decision regarding the Applicant’s application for Australian citizenship by conferral. This decision, unlike the earlier decision, considered whether the Applicant was stateless, but again refused the Applicant’s application for citizenship, because the Applicant is neither a permanent resident nor stateless under subsections 21(2) and (8) of the Citizenship Act. This decision is the reviewable decision before the Tribunal in this proceeding (Decision Under Review).
On 26 November 2019, the Applicant was granted a further bridging visa (WE-050) until 10 December 2019.[36] According to the Department, this bridging visa allows a person to ‘stay lawfully in Australia while you make arrangements to leave, finalise your immigration matter or wait for an immigration decision’.[37]
[36] ibid., page 201.
[37] accessed on 21 April 2020.
On 29 November 2019, the Tribunal held an interlocutory hearing in relation to its jurisdiction following the making of the Decision Under Review. Both parties agreed the Tribunal had jurisdiction and the Applicant’s representative confirmed that he wished to continue with the proceeding in the Tribunal.
On 9 December 2019, the Applicant was granted another bridging visa (WE-050), which was in effect as at 2 March 2020 (when the bundle of supplementary documents containing the Applicant’s visa history was filed with the Tribunal by the Minister).[38]
LEGISLATION & POLICY
[38] Exhibit 2, T14, pages 200 and 203.
Citizenship Act
The Preamble to the Citizenship Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 provides for the acquisition of Australian citizenship by application.
Subdivision A in Division 2 sets out how a person is eligible for Australian citizenship by descent. For example, pursuant to subsection 12(1) of the Citizenship Act, a person born in Australia ‘is an Australian citizen if and only if’:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. [emphasis added]
Most relevantly for the issues raised in this proceeding, under subsection 16(2) of the Citizenship Act, a person may be eligible to become an Australian citizen where that person was born outside Australia on or after 26 January 1949, in certain specific circumstances. Section 16 of the Citizenship relevantly provides that:
(1) A person may make an application to the Minister to become an Australian citizen.
Persons born outside Australia on or after 26 January 1949
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. [emphasis added]

Subdivision B in Division 2 sets out how a person is eligible for citizenship by conferral. Subsection 20(a) in Subdivision B of the Citizenship Act states that a person becomes an Australian citizen under Subdivision B if the Minister decides to approve the person becoming an Australian citizen under subsection 24(1) of the Citizenship Act. The note accompanying section 20 of the Citizenship Act states that sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen.
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen by conferral.
Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’.
Subsection 24(1A) relevantly states that the Minister ‘must not approve the person becoming an Australian citizen’ unless that person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
Subsection 21(2) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of cumulative matters in relation to the person, including that: they are aged over eighteen at the time of the application;[39] they possess a basic knowledge of the English language;[40] and they are of ‘good character’ at the time of the Minister’s decision on the application.[41] Relevantly for this proceeding, subsections 21(2)(b) and (c) of the Citizenship Act provide that:
[39] Subsection 21(2)(a) of the Citizenship Act.
[40] Subsection 21(2)(e) of the Citizenship Act.
[41] Subsection 21(2)(h) of the Citizenship Act.
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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)…
[emphasis added]
In subsection 5(1)(a) of the Citizenship Act, a ‘permanent resident’ at a particular time is relevantly defined to mean a person who ‘is present in Australia at that time and holds a permanent visa at that time’.
Section 22(1) of the Citizenship Act, regarding the ‘general residence requirement’ in subsection 21(2)(c), relevantly states that:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general 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.
…
(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. [emphasis added]
A person is considered ‘stateless’ pursuant to subsection 21(8) of the Citizenship Act, and eligible to become an Australian citizen, if the Minister is satisfied that:
(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country. [emphasis added]
Subsection 53(1) of the Citizenship Act provides that the Minister ‘may, by writing, delegate to any person all or any of the Minister’s functions or powers under this Act or the regulations’. This delegation necessarily covers the ability for the Minister to delegate his functions and powers under section 24 of the Citizenship Act in relation to making a decision on an application for Australian citizenship.
Finally, subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.
WITNESSES
The Applicant
There were two Statutory Declarations made by the Applicant in October 2019 and February 2020, respectively, that were filed in this proceeding.[42] These documents, in themselves, did not contain great detail beyond confirming that the Applicant has applied for Australian citizenship, which is now the subject of the proceeding in the Tribunal. The predominant purpose of the Statutory Declarations was to attach documents in relation to the application for review of the Minister’s decision refusing the Applicant Australian citizenship. The only document attached to the Statutory Declaration made by the Applicant on 14 February 2020 is a two-page document titled ‘Application for a protection visa’ (being Part C of the Department’s Form 866C), regarding personal details of an applicant for that visa. In addition, and as described above, the documentation attached to the Statutory Declaration made by the Applicant on 5 October 2019[43] included an Australian Federal Police criminal record check listing ‘no disclosable court outcomes’;[44] a certificate of employment;[45] and four purported later uncertified addendums to the Statutory Declaration.[46] In ‘Addendum 4’ to the Applicant’s Statutory Declaration of 5 October 2019, he relevantly said:[47]
Here is why I am claiming stateless status in Australia.
I state that coming to Australia as an international student from Nigeria with a view to improve my life was a choice I conscientiously made. However, on I becoming stateless, it was coincidence in that I became a person who was unable and unwilling to return to Nigeria because of the fear of persecution, deprivation of liberties and senseless torture and harassment current taking place in the Federal Republic of Nigeria. Therefore, I became a refugee sur place.
...only recently I was deprived my nationality and citizenship of the only country I came to know since birth.
…
I am a “stateless person” at present because I am someone who is not considered as a national by any state under the operation of its law (article 1 of the 1954 Convention relating to the Status of Stateless Persons) until such time as when the Minister of Home Affairs approves my application as a Citizen of Australia under other situations.
[42] Exhibit 3 and Exhibit 2, T13, pages 152-197.
[43] Exhibit 2, T13, pages 153-155.
[44] ibid., page 156.
[45] ibid., page 157.
[46] ibid., pages 167-194.
[47] ibid., pages 175 and 192.
Examination-in-chief
The Applicant gave evidence in-person at the hearing and confirmed that he came to Australia on a student visa in 2014 and has attained the relevant qualifications to be an engineer.
The Applicant has been working in the aged care sector for five years, which covered the period of his studies and following their completion, because of the difficulties in securing employment as an engineer in Australia due to his visa status. In this regard, the Applicant said he had sought certain alternate employment in Australia, but was unable to pursue that employment because it required him to be a permanent resident.
The Applicant told the Tribunal that he would suffer significant hardship or disadvantage if he were not found eligible to become an Australian citizen. The Applicant said he would have pursued further studies but cannot do so on his present visa. He also wanted to purchase a house with his spouse, but cannot do so due to being on a bridging visa and his related uncertain status in Australia. The Applicant referred also to the situation in Nigeria and the difficulties with potentially having to return to his country of birth after being in Australia for six years, because he has now built a life in Australia.
The Applicant told the Tribunal that he had some minor traffic infringements, but no further interactions with the police or the legal system that would count against his character. The Applicant also confirmed that he did not have any legal proceedings on foot in any court in Australia.
Cross-examination
In cross-examination, the Applicant was taken to his application for Australian citizenship and he confirmed to the Tribunal that his place of birth was Nigeria and that he held citizenship of that country.
The Applicant also confirmed that his passport details contained in the extract of his passport in the documents lodged with the Tribunal were correct and were submitted to the Department with his application for citizenship. That is, the Applicant was issued a passport by the Federal Republic of Nigeria on 7 December 2011 and that passport expired on 6 December 2016.
The Applicant confirmed that he arrived in Australia on a student visa and subsequently applied for a protection visa. The Applicant also confirmed that, while this protection visa application was on foot, he was on a bridging visa and applied for Australian citizenship when not holding a permanent visa for Australia.
The Applicant also told the Tribunal that he does not currently have a permanent visa and remains on a bridging visa granted by the Department. Finally, the Applicant confirmed that both his mother and father were Nigerian at the time of his birth.
Following cross-examination, there were no further questions put to the Applicant by way of re-examination.
DQNK – the Applicant’s de facto spouse
A Witness Statement from DQNK dated 12 February 2020 was filed in the proceeding in support of the Applicant’s application for Australian citizenship.[48] The Witness Statement relevantly said:
I have known the Applicant…since March 2016 and have been in a de facto relationship for just under three years. I can honestly describe [the Applicant] as being a fit and proper person.
Due to work commitments, I am only able to spend my weekends, public holidays and work leave with the Applicant in Canberra, ACT. Though that being stated, having been in such a long-term relationship with [the Applicant], I have had considerable interaction with the Applicant (in person and over the phone), and I can attest to his extremely good character, reliability and his being a person of good reputation in the Australian Community.
…both the Applicant and I, would suffer hardship and significant disadvantage if is Citizenship Application was disallowed.
…
The Applicant…is a man of amazing kindness, compassion and patience as well as honesty and integrity. He doesn’t have a family support network in Australia and has had to create all new friendships since coming to Australia. I have personally seen the value of the friendships [the Applicant] has made and that is based on the person that he is. He has friends that will stand with him for life. He is always willing to be of assistance to someone, including someone in need and help them with practical tools.
Therefore, I consider the Applicant to be suitable for the grant of Australian Citizenship via this sort of Application.
[48] Exhibit 10.
DQNK gave evidence in-person to the Tribunal and said that she is a South African born Australian citizen and met the Applicant at work while she was conducting training in Canberra in which the Applicant was participating.
The Applicant was said by DQNK to be of very good character, with honesty, integrity, responsibility and reliability. She said that the Applicant has taught her to be more patient, which has improved her professional and personal life.
DQNK told the Tribunal that she and the Applicant would face significant hardship and disadvantage if he were refused Australian citizenship. If the Applicant were required to return to Nigeria it would affect DQNK and their relationship ‘tremendously’. In this regard, DQNK said that she and the Applicant intended to have a family in the future. DQNK said her faith in the government would be ‘destroyed’ and ‘damaged’ if the Applicant were not granted Australian citizenship. If this occurred, and the Applicant was required to leave Australia, DQNK said that she would re-locate to Nigeria to be with the Applicant. DQNK said that her health issues may be impacted if she lived in Nigeria ‘to be able to be with the person I want to be’. However, such a situation would equally put her family located in Australia in a difficult position, especially her elderly parents that require her support.
DQNK said further that she and the Applicant were unable to create the life together that they wanted in Australia due to his uncertain visa status, which is difficult for her to understand given the Applicant’s character. DQNK was demonstrably upset towards the end of her evidence and the Tribunal briefly adjourned after she had completed that evidence given the impact of it on those present.
Mr Peter Owoeye
A reference letter from Mr Peter Owoeye was filed in this proceeding to support the Applicant’s application for citizenship.[49] Mr Owoeye stated the he and his family have known the Applicant for five years and consider him to be ‘an honest, trustworthy, focused, respectable and reliable person’. The Applicant was also said to be hardworking and caring and Mr Owoeye said he felt privileged to know the Applicant and call him a friend.
[49] Exhibit 2, T13, page 159.
Mr Owoeye also gave evidence in-person at the hearing; he confirmed that he is a citizen of Australia, having migrated from Nigeria in 2014. The Applicant was said to be Mr Owoeye’s closest friend since they met shortly after his arrival in Australia. They previously rented a house together. Shortly after this time, the Applicant was entrusted to drive Mr Owoeye’s wife to the hospital late at night for the delivery of his second child, because Mr Owoeye could not at that stage leave work at an aged care facility. This demonstrated the Applicant’s trustworthiness and reliability.
Mr Owoeye further referred to the Applicant’s good character, the fact that he has been unable to apply for certain employment because he is not an Australian citizen, including the financial impact that this has had, and the disadvantage and hardship the Applicant would face if not granted citizenship. Mr Owoeye also referred to the psychological impact on the Applicant as a result of his uncertain visa status.
Mr Saroj Kayastha
A reference letter from Mr Saroj Kayastha was filed in this proceeding to support the Applicant’s application for citizenship.[50] Mr Kayastha stated that he is an Australian citizen, having migrated from Nepal, and has known the Applicant for six years as a work colleague at an aged care facility and as a friend. Mr Kayastha described the Applicant as being honest, hardworking, caring, kind and generous and attested generally to the Applicant’s good character.
[50] Exhibit 11.
Mr Kayastha gave evidence in-person to the Tribunal and said that the Applicant was a person of good character; he has been unable to pursue certain employment opportunities because of his visa and citizenship situation; and he would be disadvantaged and face significant hardship were he not conferred Australian citizenship. For example, the Applicant would not be able to enjoy various health benefits and employment opportunities in Australia.
CONTENTIONS
The Applicant
It was contended on behalf of the Applicant, by way of his Statement of Issues, Facts and Contentions dated 10 February 2020, that a ministerial discretion in the Citizenship Act, and referred to in Form 1290, ‘Application for Australian citizenship – Other situations’ that the Applicant completed to apply for Australian citizenship, should have been exercised in the Applicant’s favour to make him eligible for citizenship.[51]
[51] Statement of Issues, Facts and Contentions of the Applicant, dated 10 February 2020, page 3.
The discretion was referred to by the Applicant as ‘Discretion 3’, because that is the number assigned to it in Form 1290 under the heading ‘Ministerial discretions’ which, that form says, ‘may be applied to an application to assist a person to meet the residence requirement for Australian citizenship’.[52] The specific wording in Form 1290 of the discretion, which is based on that contained at subsection 22(6) of the Citizenship Act, states that:[53]
If you were in Australia as a lawful non-citizen, but not as a permanent resident during the 12 months immediately before application, then that period of time may be treated as a period of permanent residence if you would otherwise suffer significant hardship or disadvantage.
[52] Exhibit 12, page 2.
[53] ibid.
To this end, the Applicant stated that he:[54]
does not agree that Discretion 3 is also supposed to [be] claimed by Stateless persons only if they were born in Australia or its territories because Section 16 of the Australian Citizenship Act 2007 2(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.
[54] Statement of Issues, Facts and Contentions of the Applicant, dated 10 February 2020, page 4.
The Applicant confirmed that he was not a permanent resident of Australia, but said ‘that is the more reason he applied for Australian Citizenship-in Other Situations under this Discretion of the Minister so that with this discretion when it is applied he would be assisted in meeting the residence requirement under sections 16 and 22(6) of the Australian Citizenship Act’.[55]
[55] ibid.
It was further stated that:[56]
On 11 May 2019 a decision was made by the Department of Home Affairs to refuse an Australian Citizenship in Other Situations Application made by (‘the applicant’) on Form 1290. The delegated officer instead claimed in the decision record that the applicant had completed form 1300t- suggesting that Department had received Form 1300t-Application for conferral of Australian Citizenship-general eligibility and - therefore “this assessment has been made in accordance with subsection 21(2) of the Act. This Form 1300t caters to Applicants who must inevitable be Permanent Resident only. It does make reference to Ministerial discretions but inside its pages it does not have space for intending applicants who are children are 16 year and older but younger that18, stateless persons, persons aged 60 or Over, persons who were born to former Australian Citizens, persons who have a permanent loss or substantial hearing, speech or sight impairment, and persons a permanent or enduring physical or mental incapacity who must use Form 1290.
Form 1290 however is - Application for both conferral and descent of Australian Citizenship in Other Situations-and therefore assessments have been made in accordance with subsection 16(2c) for stateless persons born overseas and in accordance with subsections 22(6).
…
Later on in May 2019, the applicant lodged an application for review of the reviewable decision with the Administrative Appeals Tribunal (‘Tribunal’). The applicant is a citizen of the Federal Republic of Nigeria ('Nigeria'). The applicant was born…1984 and is currently 35 years of age. The applicant is in a long-term de facto relationship with an Australian citizen and intends to have two daughters and a son in Australia who will all be Australian citizens. The applicant has lived in Australia for about 6 years.
As far we know the applicant is NOT the subject of an Interpol Red Notice requested by Nigeria or any other country on Earth.
There is no evidence of a formal request, law enforcement authorities in Australia have neither arrested nor taken active steps to extradite the applicant to Nigeria.
The applicant is of an impeachable character. Despite the purported risk of harm the applicant was assumed to be to the Australian community, the applicant had been residing in the Australian community for over 6 years now and during this period in accordance with, s 501(6) the applicant does not have even the slightest criminal history in Australia related to domestic violence offences involving of his spouse.
The applicant has no other criminal history in Australia or elsewhere in the world. [errors in original]
[56] ibid., pages 5-6.

The Tribunal notes that the Applicant’s Statement of Facts, Issues and Contentions further stated the Tribunal ‘has the statutory power to review the reviewable decision under s 500(6)’ of the Migration Act and that ‘the issues to be determined in these proceedings are: (a) Whether the Tribunal is satisfied that the applicant does not pass the character test in accordance with s 501(6)’ and ‘(b) If the Tribunal is not satisfied that the applicant passes the character test, whether the Tribunal is satisfied that the applicant poses an unacceptable risk of harm to the Australian community’.[57] Further, the Applicant contended that ‘the delegate to the Minister for Home Affairs found that the applicant did not pass the character test under s 501(6)’ of the Migration Act and that the correct or preferable decision is to set aside the decision under review.[58] The Applicant also contended that ‘it is not reasonable to infer from the comments of the delegate that the applicant would present a risk to the Australian community’[59] and continued:[60]
In the event that the Tribunal is not satisfied that the applicant passes the character test, the Tribunal must consider whether to exercise its statutory discretion to refuse the applicant’s application under s 501(2) of the Act. In undertaking that legal task, the Tribunal is bound to have regard to the considerations reflected in Part A of Direction no. 65. Protection of the Australian community.
[57] ibid., page 6.
[58] ibid.
[59] ibid.
[60] ibid. page 7.
In relation to the effect of a refusal to grant the Applicant Australian citizenship, it was submitted that:[61]
if the applicant is removed to Nigeria, it is contended that the likely effect of separation between the applicant and his spouse in Australia would be substantial. For example, given the closeness of the relationship between the applicant and his spouse, the applicant’s spouse would suffer substantial ongoing emotional distress…The applicant is currently the subject the High Commission of Nigerian scrutiny, the effect of which means that the applicant will be arrested and detained immediately upon landing in Nigeria.
[61] ibid.
In relation to the Applicant’s contention that he be considered for Australian citizenship on the grounds of ‘statelessness’ under the Citizenship Act, it was submitted that: ‘The UN 1954 Convention relating to the Status of Stateless Persons is the only known Government document which considers in detail the issues concerning stateless persons. Why is the document not followed in decisions affecting stateless persons?’[62] Additionally, the Applicant contended that:[63]
It must be demonstrated by the department of home affairs that the adoption of a particular document is “contrary to the public interest”. This formulation places the onus primarily on the Respondent to show why the UN 1954 Convention relating to the Status of Stateless Persons should not be used as adopted. This onus has not been discharged.
[62] ibid., page 8.
[63] ibid., page 9.
At the hearing, the Applicant’s representative referred to his client’s separate application to the Department for a protection visa, in which it was stated that he is ‘stateless’. For example, the relevant form completed by the Applicant in 2015, Form 866C, lists the Applicant’s citizenship at birth as ‘Nigeria’, but his current citizenship as ‘stateless’ from March 2015. Further, in that form, the Applicant’s statelessness was said to have occurred because: ‘Our home state has been cut off by and under illegal control of Boko Haram and other forces like the Fulani rather than the Nigerian Federal Government. Yet I am not yet an Australian citizen’.[64]
[64] Exhibit 3.
It was contended by the Applicant’s representative that a person cannot be both a permanent resident and a stateless person. In this regard, it was submitted that the ministerial discretion relied upon would assist a person to be considered a permanent resident where they have sought exercise of that discretion because they are stateless and they have also produced the requisite statement regarding claimed significant hardship or disadvantage.
The Applicant’s representative also contended that the relevant provision that makes him eligible for Australian citizenship was subsection 16(2) of the Citizenship Act (set out above under the heading, ‘Legislation & Policy’). This subsection refers, at sub-paragraph (c), to the Stateless Persons Convention and the Minister being satisfied of an applicant’s good character. When the Tribunal put to the Applicant’s representative that subsection 16(2) had cumulative elements that must all be satisfied, he responded that the Applicant was not required to have been born in Australia to be ‘stateless’, despite the wording of subsection 21(8) regarding statelessness, because section 12 of the Citizenship Act provides for citizenship by birth (subject to some criteria).
The Applicant’s representative maintained his reliance on subsection 16(2) of the Citizenship Act for his client’s claim to be eligible to citizenship, because he was said to be stateless. The Tribunal took the Applicant’s representative through the particular provisions in subsection 16(2) and noted that at the end of sub-paragraphs (a) and (b) it had the word ‘and’, followed by the next sub-paragraph in that provision. The Applicant’s representative said the subsection had the word ‘or’ in its sentences and therefore did not have cumulative requirements that each needed to be met. It was further submitted that the words should be read as stating ‘but’, instead of ‘and’. The Tribunal told the Applicant’s representative that it acknowledged his submission and that it was ultimately a matter of statutory interpretation, but that the Tribunal can only refer to the words in the legislation and cannot read-in or substitute certain words that are not specifically stated in that provision.
It was further contended that the Applicant ‘fears falling into an unlawful status’ due to his reliance on a bridging visa to remain in Australia; becoming unlawful would create ‘further hardship and significant disadvantage’.[65]
[65] Statement of Issues, Facts and Contentions of the Applicant, dated 10 February 2020, page 9.
In relation to subsection 22(6) of the Citizenship Act, the Applicant’s representative submitted that this provision provided discretion to treat a person as a permanent resident, not merely to assist a person to meet the separate general residence requirement, if they would suffer significant hardship or disadvantage if they were not so treated.
The Applicant’s representative also referred at the hearing to the United Nations Convention Relating to the Status of Stateless Persons and its incorporation into Australian law. The Applicant’s representative suggested to the Tribunal that international treaties or laws could be considered ‘superior law’ to domestic legislation.
In closing submissions, the Applicant’s representative referred to section 12 of the Citizenship Act which provides for citizenship by birth where a person has been in Australia for ten years since their birth. Although it was acknowledged that the Applicant did not meet this criteria for citizenship, it was contended on his behalf that this demonstrated that he was not required to be born in Australia to be stateless, despite the requirements of subsection 21(8) of the Citizenship Act.
Additionally, the Applicant’s representative read to the Tribunal a statement of the Commonwealth Ombudsman in relation to the exercise of a discretion in the making of administrative decisions and noted that the Tribunal’s decision would not only impact on the Applicant, but also his spouse, DQNK. Finally, the Applicant sought a decision from the Tribunal that set aside the Decision Under Review and in substitution decide that the Applicant is eligible for the grant of Australian citizenship.
Minister
The Minister, by way of his Statement of Facts, Issues and Contentions dated 2 March 2020, contended that the Applicant does not meet the mandatory eligibility criteria in subsections 21(2) and 21(8) of the Citizenship Act, noting that the balance of the subsections are neither relevant nor applicable.
In this regard, the Minister submitted that the Tribunal must consider the criteria in the Citizenship Act and not Form 1290, which form was said to be a device used by the Department to elicit relevant information from an applicant for citizenship, rather than being a prescriptive legislative instrument with criteria against which an application should be assessed.
In relation to subsection 21(2) of the Citizenship Act regarding a person’s general eligibility, the Minister contended that the Applicant does not meet the eligibility criteria in subsection 21(2)(b)(i) because he was not a permanent resident at the time he made his application for Australian citizenship on 30 April 2019, and is still not a permanent visa holder which would make him a permanent resident of Australia. This is established, the Minister submitted, by the Applicant’s visa history, which demonstrates that he was at the relevant time, and is currently, on a bridging visa in Australia;[66] this visa is a temporary, not permanent, visa;[67] because the Applicant did not hold a permanent visa at the time he made his application for Australian citizenship he was not a permanent resident as defined in section 5 of the Citizenship Act; and there is no discretion available to the Tribunal to make a different finding in relation to the status of the Applicant as a permanent resident in subsection 21(2)(b)(i) of the Citizenship Act.
[66] Exhibit 2, T14, pages 198-203.
[67] ibid., T15, pages 204-214.
As a result, the Minister contended that because the general eligibility criteria for Australian citizenship set out in subsection 21(2) of the Citizenship Act are cumulative, in circumstances where the Applicant does not meet the criterion in subsection 21(2)(b)(i) of being a permanent resident, he is not eligible to become an Australian citizen pursuant to subsection 21(2) of the Citizenship Act.
In relation to subsection 21(8) of the Citizenship Act, which provides that a person is eligible for Australian citizenship if they are stateless, as defined by that Act, the Minister contended that the Applicant does not meet the eligibility criteria. This was said to be because: the Applicant was born in Nigeria and therefore does not meet the criterion in subsection 21(8)(a) requiring a person to be born in Australia;[68] the Applicant was, at least between December 2011 and December 2016, a national of Nigeria, and accordingly does not meet the criterion in subsection 21(8)(c)(i) requiring the person to have never been the national of any country;[69] and there is no discretion available to the Tribunal to make a different finding in relation to the eligibility criterion in subsections 21(8)(a) or 21(8)(c).
[68] Exhibit 1, T4, pages 94 and 111.
[69] ibid., page 111.
The Minister submitted that neither the Applicant’s place of birth as listed on his application for citizenship, being Nigeria, nor his Nigerian passport and its authenticity, are in dispute in this proceeding. In this regard, the Minister further submitted that the Applicant has not provided evidence demonstrating that he is presently not a national or a citizen of Nigeria, nor that he is not currently entitled to acquire the nationality or citizenship of Nigeria. Therefore, it was said, the Tribunal could conclude that the Applicant remains a national and citizen of Nigeria or would be entitled to nationality or citizenship of that country, even though he has not produced a current Nigerian passport.[70] The Minister contended that, in circumstances where the Tribunal is satisfied that the Applicant is currently a national or citizen of Nigeria, or is entitled to Nigerian nationality or citizenship, the Tribunal must then also be satisfied that the Applicant does not meet the criterion in subsection 21(8)(b) and (d) of the Citizenship Act.
[70] Re AP and Minister for Immigration and Border Protection [2014] AATA 706 at [51].
Again, the Minister contended, because the eligibility criteria set out in subsection 21(8) of the Citizenship Act are cumulative, in circumstances where the Applicant does not meet certain criteria in subsection 21(8), he is ineligible to become an Australian citizen based on his claimed statelessness. Additionally, it was submitted, to the extent that the Applicant raises the interpretation of ‘statelessness’, this does not overcome the mandatory eligibility criterion in subsection 21(8)(a) of the Citizenship Act, which clearly and unambiguously requires applicants seeking to gain Australian citizenship in accordance with this subsection to have been born in Australia.
In relation to other matters raised by the Applicant, the Minister contended that:
(a)the Ministerial discretion in subsection 22(6) of the Citizenship Act, to treat a person as having been present in Australia as a permanent resident for the required twelve month period immediately before making an application if they will suffer significant hardship or disadvantage if that period were not so treated, applies to assist a person meet only the general residence requirement in subsection 21(2)(c) of the Citizenship Act and does not apply to the separate permanent resident requirement in subsection 21(2)(b) of the Citizenship Act. Therefore, the Tribunal or, indeed the Minister or his delegate, could not deem a person to be a permanent resident pursuant to the ministerial discretion in subsection 22(6). Accordingly, even if the general residence requirement was met by the Applicant pursuant to exercise of this discretion, it would not change the ultimate outcome in circumstances where the Applicant does not meet that separate mandatory eligibility requirement of being a permanent resident of Australia at the time of his application for citizenship pursuant to subsection 21(2)(b)(i) of the Citizenship Act;
(b)for the same reasons as stated above in paragraph (a), any application of the Ministerial discretion in subsection 22(9) of the Citizenship Act, to treat a period in which the person was not in Australia as one in which the person was present in Australia where they are the de facto partner (amongst other things) of an Australian citizen, would not change the outcome in circumstances where the Applicant does not meet the mandatory eligibility requirement in subsection 21(2)(b)(i) of the Citizenship Act of being a permanent resident of Australia at the time of his application for citizenship; and
(c)The Applicant’s contentions in his Statement of Facts, Issues and Contentions regarding section 501 of the Migration Act are irrelevant because they relate to a different power of the Minister that has not been purported to be exercised in relation to the Applicant. In this regard, contentions made in relation to the Applicant’s protection visa application were said to be less relevant to the Tribunal’s consideration of the current application before it in relation to citizenship.
In relation to the Applicant’s submission regarding subsection 16(2) of the Citizenship Act, the Minister contended that one of the mandatory eligibility criteria for citizenship by descent is that one of the applicant’s parents is an Australian citizen at the time of the applicant’s birth and, on the evidence before the Tribunal, it cannot be satisfied that this is applicable to the Applicant.
In closing submissions, the Minister said the questions before the Tribunal of the Applicant’s eligibility for the grant of Australian citizenship under the Citizenship Act should be determined according to section 21 of that Act. The application before the Tribunal does not relate to whether the Applicant should remain in Australia and the Tribunal should not consider such matters in this proceeding. Accordingly, the Minister contended that, pursuant to subsection 43(1)(a) of the AAT Act, the correct or preferable decision was for the Tribunal to affirm the Decision Under Review, which refused the Applicant’s application for Australian citizenship.
CONSIDERATON
The issue for the Tribunal in this proceeding was whether the Applicant is eligible for Australian citizen pursuant to the Citizenship Act. This issue turned primarily on the Tribunal’s determination of whether the Applicant is eligible to become an Australian citizen in accordance with the eligibility criteria in subsections 21(2) and 21(8) of the Citizenship Act regarding, respectively, a person’s general eligibility for citizenship and a person’s statelessness making them eligible for citizenship.
A person applying for Australian citizenship by conferral must meet the eligibility criteria under section 21 of the Citizenship Act. Most relevantly for the Applicant’s application for Australian citizenship was whether the Tribunal was satisfied that he meets the general eligibility requirement under subsection 21(2) of the Citizenship Act or meets the statelessness provisions under subsection 21(8) of the Citizenship Act.
The Decision Under Review
On 4 November 2019, a delegate of the Minister made the Decision Under Review in accordance with the Tribunal’s order of 12 August 2019, remitting the Original Decision Under Review to the Minister for reconsideration pursuant to section 42D of the AAT Act.
While the Decision Under Review does not expressly state whether it affirms, varies or sets aside the Original Decision Under Review, the Tribunal accepts, as contended by the Minister, that the Decision Under Review is a new decision for the purpose of subsection 42D(4) of the AAT Act, because it considered additional information provided by the Applicant and his eligibility for Australian citizenship in accordance with the statelessness provisions in subsection 21(8) of the Citizenship Act. This consideration of the Applicant’s claimed statelessness, as set out in his application for citizenship, did not form part of the Original Decision Under Review and was the basis for the Tribunal remitting that decision to the Minister for reconsideration.
At an interlocutory hearing in this proceeding on 11 November 2019, the Applicant’s representative confirmed his client’s intention to proceed with the application for review by the Tribunal of the Decision Under Review, not the Original Decision Under Review.
In the circumstances, the Tribunal is satisfied that the Applicant’s application before the Tribunal is an application for review of the new decision, being the Decision Under Review, and not the Original Decision Under Review. Accordingly, this decision of the Tribunal is based on an application before it to review the Decision Under Review.
Permanent resident requirement
The Applicant confirmed in his evidence to the Tribunal that he was born in Nigeria, is a citizen of that country and has never held a permanent visa to live in Australia. On the evidence before the Tribunal, it finds that the Applicant did not hold a permanent visa at the time of his application for Australian citizenship or at the time of the delegate’s decision regarding that application. Additionally, the visa history of the Applicant produced to the Tribunal by the Minister’s Department showed that the Applicant has never held a permanent visa in Australia; the Applicant has only ever held either a student visa or a bridging visa in Australia. Therefore, the Tribunal finds that the Applicant is not, and has never been, a permanent resident of Australia.
Subsection 21(2) of the Citizenship Act sets out eight cumulative requirements for a person to be eligible to become an Australian citizen. Being a permanent resident of Australia is one of the eight mandatory requirements to be eligible for Australian citizenship under subsection 21(2) of the Citizenship Act. As a result of the Applicant not being a permanent resident of Australia at the time he made his citizenship application and the time of the Minister’s decision on that application, the Applicant does not meet the second of the eight cumulative requirements, and is therefore not eligible to become an Australian citizen pursuant to subsection 21(2) of the Citizenship Act.
General residence requirement

The Applicant placed significant reliance on what he termed ‘Ministerial discretion 3’, being a discretion set out in Form 1290 produced by the Minister’s Department, which was completed by the Applicant and constituted his application for Australian citizenship. This discretion has its legislative basis in subsection 22(6) of the Citizenship Act.
The Department’s Form 1290, titled ‘Application for Australian citizenship – Other situations’, has a number of ‘information pages’ which set out the steps required to be completed for an applicant to be considered for the grant of Australian citizenship. The first step covers eligibility and states that Form 1290 should be used by people who: ‘are aged 60 or over’; ‘have a permanent or enduring physical or mental incapacity’; ‘have a permanent loss or substantial hearing, speech or sight impairment’. The form says if an applicant belongs in any of these categories they will also need to, amongst other things, be a permanent resident and satisfy the residence requirement. The form also states that it should be used if a person is: ‘16 or 17 years of age’; ‘under 16 years of age’; ‘an unaccompanied humanitarian minor’; ‘were born in Papua before 16 September 1975’; or ‘were born to a former Australia citizen’. On the evidence before the Tribunal, it is not satisfied that the Applicant fits into any of these categories.
The second step set out in Form 1290 is in relation to the residence requirement for eligibility for Australian citizenship; it is headed ‘Residence requirement’. The ‘general residence requirement’, as set out in Form 1290, states that permanent residents must: ‘have been living in Australia on a valid Australian visa for 4 years immediately before applying which must include the last 12 months as a permanent resident’; and ‘not have been absent from Australia for more than one year in the past 4 years, including no more than 90 days in the year before applying’. The Tribunal has found that the Applicant is not, and has never been, a permanent resident of Australia. Under step two, Form 1290 lists a number of ‘ministerial discretions’ which it is said ‘may be applied to an application to assist a person to meet the residence requirement for Australian citizenship’. These discretions do not apply to the separate and mandatory permanent residence requirement for Australian citizenship. One of these discretions, the third listed in Form 1290, upon which the Applicant relied, states that:
If you were in Australia as a lawful non-citizen, but not as a permanent resident during the 12 months immediately before application, then that period of time may be treated as a period of permanent residence if you would otherwise suffer significant hardship or disadvantage.
While this ministerial discretion set out in Form 1290 is instructive for the completion of applications for Australian citizenship, it is the legislation itself, in the form of the Citizenship Act, that provides for this discretion and which is the relevant instrument to be interpreted and applied in assessing whether to exercise such a discretion.
In this regard, section 22 of the Citizenship Act sets out how a person satisfies the general residence requirement in section 21 of the Act. Subsection 22(6) of the Citizenship Act, being the provision containing the relevant ministerial discretion relied upon by the Applicant, specifically refers to subsection 22(1)(c) which, for the purposes of the general residence requirement in subsection 21(2)(c), requires a person to be present in Australia as a permanent resident for the period of twelve months immediately before the day the person made the application. The Tribunal finds that the ministerial discretion in subsection 22(6) of the Citizenship Act does not, contrary to the Applicant’s submissions, provide for the conferring of the status of permanent resident upon a person to meet that separate and standalone permanent residency requirement in subsection 21(2)(b) of the Citizenship Act. The discretion in subsection 22(6) of the Citizenship Act, if exercised, allows a person to meet only the residence requirement for citizenship in subsection 21(2)(c) by treating the twelve month period immediately before that person applied for citizenship as one in which they were present in Australia as a permanent resident if they would suffer significant hardship or disadvantage if that twelve month period were not so treated.
In short, the discretion available in subsection 22(6) of the Citizenship Act allows the requisite time period of twelve months to be treated as having been met if not doing so would result in significant hardship or disadvantage to an applicant for Australian citizenship. This, in turn, would allow a person to meet one part of the criteria for the general residence requirement in subsection 21(2)(c), but it does not allow a person to be treated as a permanent resident, which is a separate and distinct requirement under subsection 21(2)(b) of the Citizenship Act.
In this regard, the Tribunal notes that the Applicant, in his application made using Form 1290, claimed that he was a stateless person; he left blank the section requiring an applicant to list the date they first entered Australia as a holder of a permanent visa or were granted a permanent visa; and he ticked the box marked ‘yes’ under the question ‘Are you seeking a residence requirement exemption or discretion?’ and listed ‘Exemption 3’ as the relevant discretion. The form expressly states that the ministerial discretion may be applied to assist a person ‘to meet the residence requirement for Australian citizenship’; it does not assist a person to meet the permanent resident requirement.
Accordingly, and in circumstances where the Tribunal has found that the Applicant is not a permanent resident of Australia, the discretion in subsection 22(6) of the Citizenship Act in relation to the residence requirement for eligibility for Australian citizenship does not assist him in meeting the requirement to be a permanent resident. That is, even if the discretion was applied to the Applicant’s circumstances, and he met the general residence requirement under subsection 21(2)(c) of the Citizenship Act, he would still not meet the separate requirement under subsection 21(2)(b) of that Act for him to be a permanent resident of Australia both at the time of his application and at the time of the delegate’s decision on that application, which requirement has no discretion and must be met for a person to be eligible for citizenship under section 21 of the Citizenship Act. Moreover, because of the Tribunal’s finding that the Applicant is not a permanent resident of Australia, he cannot satisfy the general residence requirement set out in subsection 22(1) of the Citizenship Act that specifically requires a person to be a permanent resident, as expressly set out in subsection 22(1)(c), and the associated ministerial discretion therefore cannot be applied in his circumstances.
Statelessness
A further and separate claim made by the Applicant was that he should be granted Australian citizenship because he was stateless. The Tribunal finds that the Applicant does not meet the legislative test of statelessness set out in subsection 21(8) of the Citizenship Act. That provision has cumulative elements of which the Minister must be satisfied for a person to be found to be stateless and eligible for Australian citizenship. For example, under subsection 21(8)(a) of the Citizenship Act, a stateless person is someone who was born in Australia. The Tribunal has found that the Applicant was born in Nigeria and not in Australia; this was confirmed by the Applicant himself in his evidence to the Tribunal.
A stateless person under subsection 21(8) of the Citizenship Act must also be someone who is not or has never been a national of any country; is not or has never been a citizen of any country; and is not entitled to acquire the nationality or citizenship of a foreign country. The Tribunal has found that the Applicant was born in, and is a citizen of, Nigeria; he also held a Nigerian passport. Accordingly, on the evidence before the Tribunal, the Applicant does not satisfy all the cumulative requirements under subsection 21(8) of the Citizenship Act to be considered stateless and eligible for Australian citizenship pursuant to this provision of the Citizenship Act.
In addition, the Tribunal must apply the legislation prescribed by the Parliament of Australia in relation to an application for Australian citizenship. The relevant legislation is the Citizenship Act. Accordingly, and despite the Applicant’s submissions, the UN Convention Relating to the Status of Stateless Persons does not have any application in this matter.
The fundamental requirements for a person to be considered stateless under the Citizenship Act, in order to be eligible for the grant of Australian citizenship, are set out in the legislation prescribed by the Parliament. The Applicant does not meet these requirements and is therefore not stateless as defined by the Citizenship Act.
Other matters
In his submissions to the Tribunal, the Applicant’s representative asserted that the issue of good character played a pivotal role in the success or otherwise of his client’s application. This was misconceived. The Minister did not take issue with the Applicant’s character. The decision to refuse the Applicant citizenship did not turn on the Minister not being satisfied that the Applicant was of good character at the time of the Minister’s decision, as required by subsection 21(2)(h) of the Citizenship Act. As detailed in these reasons, the permanent residency requirement in subsection 21(2)(b) was not satisfied by the Applicant, in addition to him not being stateless under subsection 21(8) of the Citizenship Act. For completeness, and although not necessarily required, the Tribunal finds on the evidence presented to it that the Applicant is of good character and, to that end, would satisfy the requirement of subsection 21(2)(h) of the Citizenship Act. This finding of itself, however, does not lead to the Applicant being eligible for Australian citizenship.
Further in relation to the issue of good character, the Applicant’s representative at the hearing submitted that his client was eligible for Australian citizenship because he met subsection 16(2)(c) of the Citizenship Act, which sets out that the Minister would be satisfied that a person is of good character if they have been a national or citizen of another country or if the Stateless Persons Convention applies to that person. However, subsection 16(2) of the Citizenship Act must be read in its entirety. That provision provides for Australian citizenship by descent and has cumulative mandatory requirements that must be met by a person, which are set out in sub-paragraphs (a) to (c) of that provision. The Applicant sought to rely solely on sub-paragraph (c) in subsection 16(2) of the Citizenship Act to contend that he was eligible for Australian citizenship.
For completeness, subsection 16(2) of the Citizenship Act is again reproduced in these reasons to illustrate the cumulative nature of the requirements in that provision as prescribed by the Parliament:
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. [emphasis added]
As sub-paragraph (a) in subsection 16(2) of the Citizenship Act makes clear, a person born outside of Australia after 26 January 1949 is eligible to become an Australian citizen if a parent of the applicant was an Australian citizen at the time of the applicant’s birth. The Tribunal finds that the Applicant does not meet this requirement because he told the Tribunal that neither of his parents were born in Australia; they were born in Nigeria. Accordingly, the Applicant cannot be conferred Australian citizenship by descent under subsection 16(2) of the Citizenship Act.
While the Tribunal accepts that the Applicant would meet the criterion in sub-paragraph (c) of subsection 16(2) of the Citizenship Act, that subsection requires each of its three sub-paragraphs to be met by an applicant for Australian citizenship. In this regard, and as put to the Applicant’s representative by the Tribunal at the hearing, the legislature has used the word ‘and’, not ‘but’, after a semicolon at the end of both sub-paragraphs (a) and (b) in subsection 16(2). In addition, the use of the word ‘or’ in the subparagraphs, but not at the end of them, does not mean they are not cumulative. Accordingly, each sub-paragraph must be met by an applicant for Australian citizenship by descent pursuant to subsection 16(2) of the Citizenship Act. For the avoidance of doubt, the Tribunal is satisfied, based on the purpose and terms of subsection 16(2), that there has been no legislative error in adopting the use of the word ‘and’; the provision discloses three cumulative requirements, set out in sub-paragraphs (a) to (c), that each must be met by an applicant for Australian citizenship by descent. Accordingly, the Tribunal finds that the Applicant does not satisfy the requirements in subsection 16(2) of the Citizenship Act for Australian citizenship.
The Tribunal further notes that the Applicant’s representative, in his client’s Statement of Issues, Facts and Contentions, also purported to rely on the ministerial discretion set out in subsection 22(9) of the Citizenship Act for applicants with an Australian spouse or de facto partner (amongst other things). However, at the hearing the Applicant’s representative conceded that this provision did not apply to his client because it is applicable to a person that has not been present in Australia for a certain required period of time.
Finally, the submissions prepared by the Applicant’s representative also contained references to section 501 of the Migration Act, which was either misconceived in relation to the Applicant’s circumstances or otherwise retained from submissions prepared on behalf of another client. In this regard, section 501 of the Migration Act relates to the refusal or cancellation of a visa by the Minister on character grounds. The Decision Under Review is the refusal to grant an application made by the Applicant for Australian citizenship; it does not relate to the refusal or cancellation of a visa previously held or applied for by the Applicant. As noted on behalf of the Minister, the contentions made on behalf of the Applicant regarding section 501 of the Migration Act are irrelevant because they relate to a different power of the Minister that has not been purported to be exercised in relation to the Applicant. Moreover, this separate claim was not raised by the Applicant’s representative at the hearing. For these reasons, the Tribunal does not further consider this claim for the purpose of determining the application made to the Tribunal by the Applicant regarding the refusal of his application for Australian citizenship.
CONCLUSION
As a result of the Tribunal’s findings, the Applicant is not eligible to become an Australian citizen. The Tribunal understands that this will be a difficult decision for the Applicant to receive in circumstances where, over five years, he has established a life in Australia, not least through his tertiary qualification as an engineer, stable employment in the aged care sector and devoted long-term relationship with DQNK, an Australian citizen. In this regard, and again for the avoidance of doubt, the Tribunal has found that the Applicant is of good character.
The Tribunal is however bound to apply the legislative provisions of the Citizenship Act as they have been prescribed by the Parliament; the Tribunal cannot modify these provisions to suit the Applicant’s circumstances or his claims made for Australian citizenship. While the Applicant’s good character is not in question, he does not meet a separate and fundamental requirement to be eligible for citizenship in subsection 21(2) of the Citizenship Act, being the requirement to be a permanent resident in Australia; the Applicant is on a bridging visa and has never held a permanent resident visa for Australia. Additionally, the Tribunal has found that the Applicant does not meet the criteria for statelessness under subsection 21(8) of the Citizenship Act. The Applicant is also ineligible for citizenship by descent under subsection 16(2) of the Citizenship Act. As a result, the Tribunal finds that the Applicant is not eligible for Australian citizenship.
Following his unsuccessful protection visa and citizenship applications, in the circumstances, the Tribunal encourages the Applicant to seek further migration advice from a registered migration agent.
DECISION
The Tribunal affirms the Decision Under Review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 29 May 2020

Date(s) of hearing: 18 March 2020

Date final submissions received: 10 February 2020

Representative for Applicant: Mr Peter Kolya

Solicitors for Minister:
Ms Deborah Mak, Clayton Utz Lawyers

[2020] AATA 1518

29 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Natural Justice

Date(s) of hearing:	18 March 2020
Date final submissions received:	10 February 2020
Representative for Applicant:	Mr Peter Kolya
Solicitors for Minister:	Ms Deborah Mak, Clayton Utz Lawyers