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

[2019] AATA 6895

XYQR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 6895 (19 December 2019)

Division:GENERAL DIVISION

File Number:          2019/0679

Re:XYQR  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:19 December 2019

Place:Sydney

The decision under review is affirmed.

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Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – failure to satisfy the general residence requirement under section 22 of the Australian Citizenship Act 2007 (Cth) – whether the applicant satisfies the special residence requirement under section 22A through engagement in an activity that is of benefit to Australia – whether the applicant’s business activities fall within a category of activities specified by legislative instrument IMMI 13/056 – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 43
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C
Legislation Act 2003 (Cth) s 8

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Robert Mckie and Minister of Immigration, Local Government and Ethnic Affairs [1988] AATA 59

Williams and Members of the Companies Auditors and Liquidators Disciplinary Board [2019] AATA 504

SECONDARY MATERIALS

Minister for Immigration and Citizenship, Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056 (at 29 May 2013)

Revised Explanatory Memorandum, Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

19 December 2019

1. The applicant is a Chinese citizen and a permanent resident of Australia. He first arrived in Australia on 3 June 2000 and currently holds a subclass 890 (permanent) visa, granted on 13 February 2014. His wife and children presently live in Australia.

2. On 27 July 2018, the applicant applied for Australian citizenship by conferral pursuant to s 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

3. On 9 November 2018, a delegate of the Minister refused his application pursuant to s 24(1) of the Act. The delegate found that the applicant did not satisfy the general residence requirement under s 22 of the Act; was not eligible to benefit from any of the Ministerial discretions contained in s 22 of the Act, and did not satisfy the special residency requirements in ss 22A, 22B or 23 of the Act (‘the reviewable decision’).

4. On 11 February 2019 the applicant requested the Tribunal to review the decision made under s 24(1), as authorised by s 52(1)(b) of the Act.

5. The applicant concedes that he does not satisfy the general residence requirement.[1]  His travel records show extensive overseas travel in the four years prior to his application for Australian citizenship. His application for citizenship is made under the special residence requirement provided for by s 22A of the Act.

   [1] See letter dated 10 September 2018 from the applicant’s solicitor: T4, p 69.

6. The applicant’s request for citizenship under the special residency requirement rests squarely on the fact that he is a successful and prominent businessman. He has provided evidence of extensive commercial assets and enterprises in China and Australia, and says that his activities are of singular benefit to Australia.

   Request for non-disclosure orders

7. By letter dated 12 July 2019 the applicant’s solicitor wrote to the Tribunal seeking confidentiality orders under s 35 of Administrative Appeals Tribunal Act1975 (Cth) (‘the AAT Act’). The Orders sought were for a private hearing; name suppression; that documents filed with the Tribunal not be disclosed; and that the final decision of the Tribunal not be published.

8. His solicitor says that the applicant is a member of an ethnic minority and that it is public knowledge that this minority has suffered severe discrimination in China. His business interests may suffer if the fact of this application were to become known to the Chinese authorities. He contends that ‘public knowledge of this information [the application for citizenship] can result in [the applicant] facing a significant risk of harm on his return to China’. He has provided substantial material to the Tribunal concerning the treatment of this minority, as well as information relating to his business interests in China.

9. The solicitor for the Respondent opposed the confidentiality request, pointing to the norm of publicity established under s 35(5) of the AAT Act and related case-law.[2]  He also argued that the applicant’s ethnicity was not a relevant consideration in these proceedings.

   [2] See, for example, Williams and Members of the Companies Auditors and Liquidators Disciplinary Board [2019] AATA 504 (19 March 2019) per McCabe DP at [24] to [29].

10. On 31 July 2019 an Interlocutory hearing was held to determine whether non-disclosure orders should be made. In light of submissions from both parties, the decision on non-disclosure orders was reserved pending hearing from the parties on the substantive issue, which was heard on the following day.

11. The material presented to the Tribunal suggests that members of the ethnic group in question have considerable cause for grievance, so that the anxiety felt by the applicant is by no means ill founded. However, despite his ethnicity, the applicant has achieved great success in business in both China and Australia, and there is evidence that he is an exceptional, very successful and prosperous businessman. On the basis of the information provided to the Tribunal, I have no hesitation in saying that he is a man of substance and character.

12. I am not however persuaded that there is any present serious risk of harm to the applicant or his immediate family as a result of his application for citizenship. I note that his wife and children live in Australia. I am not persuaded of the need for the wide ranging orders sought by the applicant. I am however sensitive to the fact that the applicant feels most keenly on this issue, and the anxiety he feels regarding possible prejudice is not to be lightly dismissed in considering the issue of confidentiality. I have therefore decided to grant a confidentiality order under s 35(3), prohibiting the disclosure of information tending to reveal the applicant’s identity, or the identity of any other party or witness to these proceedings.

13. These reasons will therefore be written at a somewhat higher level of abstraction than might otherwise be appropriate. I will pass over much of the substantial material presented relating to the treatment of the ethnic minority in question, as well as to his business activities both in Australia and China. It is possible to proceed in this way because ultimately the disposition of this case depends on a somewhat esoteric legal argument raised by the applicant. I have decided that there is no merit in the argument and that the decision under review should be affirmed. Under these circumstances and in view of the material put as to potential prejudice that might be suffered by the applicant, I have made the non-disclosure order as outlined above.

    The case for the applicant

14. As noted above, it is accepted that the applicant does not satisfy the general residency requirement under s 22 of the Act. There is no suggestion that he satisfies any of the conditions that enliven Ministerial discretion under ss 22(4A) to (11). The applicant is therefore not eligible for Australian citizenship by conferral unless he satisfies ss 22A or 22B.

15. The applicant does not rely on s 22B. I note in passing that s 22B is headed Special residence requirement – persons engaged in particular kinds of work requiring regular travel outside Australia. Section 22B(1)(a) refers to work of a kind specified under s 22C(3). Section 22C(3) states that the Minister may, by legislative instrument, specify kinds of works for the purposes of paragraph 22B(1)(a). None of the kinds of work specified in the relevant instrument apply to the applicant.[3] This is accepted by the applicant.

    [3] See Legislative Instrument, Special Residence Requirement IMMI13/056, and Schedule C.

16. The applicant’s solicitor relies on s 22A. He contends that the applicant’s business activities are of singular benefit to Australia: see applicant’s SFIC, paras 10(a)-(c). He has tendered a good deal of evidence to support the applicant’s standing in business, and I am prepared to accept, without so finding, for the sake of the these proceedings, that the applicant’s business dealings fall into a category of activities that would benefit Australia.

17. Section 22A is headed Special residence requirement – persons engaged in activities that are of benefit to Australia.  Section 22A(1)(a)-(g) contains seven subsections each of which must be satisfied by an applicant seeking approval by this pathway. Subsections (c)-(g) refer to the nature of the applicant’s residence over specified periods prior to the application. For reasons outlined in the following, it is not necessary to make any finding as to whether the applicant satisfies these requirements.

18. Subsections 22A(1)(a) and (b) are as follows:

    Section 22A Special residence requirement – persons engaged in activities that are of benefit to Australia
    (1) Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

    (a) the following apply:

    (i)The applicant is seeking to engage in an activity specified under subsection 22C(1);

    (ii)the applicant’s engagement in that activity would be of benefit to Australia;

    (iii)the applicant needs to be an Australian citizen in order to engage in that activity;

    (iv)in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residency requirement (see section 22); and

    (b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity;
    and …

19. To satisfy the requirements of s 22A, an applicant must be seeking to engage in an activity specified by legislative instrument made under s 22C(1).[4]  The Minister has set out certain activities in a legislative instrument: Special Residence Requirement IMMI13/056, Schedule A. The activities so prescribed are limited to employment in a senior position requiring a high level security clearance in a Commonwealth department or agency, or participation in specified sporting competitions as part of an Australian team. Further, the person must have the support of an organisation specified in the relevant instrument: s 22A(1)(b).

    [4] Section 22C(1) of the Australian Citizenship Act 2007 (Cth) provides: ‘The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i)’.

20. There is no evidence before the Tribunal that the applicant satisfies the requirements of ss 22A(1)(a) or (b).

    (a)As to s 22A(1)(a) there is no evidence that the applicant is seeking to engage in an activity specified in the relevant instrument;

    (b)As to s 22A(1)(b), the applicant concedes that no notice has been given to the Minister by a head of an organisation specified under s 22C(2).

21. The delegate noted:

    You have provided numerous documents to support your application for Australian citizenship. However, I am not satisfied that you are seeking to engage in any of the above activities for this special residence requirement to be considered in your favour.[5]

    [5] T2, p 20.

22. In response to these seemingly insuperable obstacles the applicant’s solicitor argues that legislative instrument IMMI13/056 is invalid on the ground that:

    The provisions of the Australian Citizenship Act 2007 don’t limit what the ‘benefit to Australia’ can conclude (sic) and therefore the instrument is invalid.[6]

    [6] Applicant’s SFIC, paragraph 9.

23. He argues that the applicant’s conduct has been of benefit to Australia. Again, for the sake of determining the validity of this argument, it is assumed without deciding that the applicant’s business activities are of benefit to Australia.

24. Legislative Instrument IMMI13/056 is the only instrument in force in respect of s 22C.

25. Legislative Instrument IMMI13/056 contains the following three Schedules:

    (a)Schedule A relates to activities specified for the purposes of s 22A(1)(a)(i) of the Act. 

    (b)Schedule B specifies certain organisation for the purposes of s 22A(1)(b)(i) of the Act. 

    (c)Schedule C is not relevant for present purposes.

26. The effect of finding that IMMI13/056 is invalid in relation to Schedule A is that no activities would be specified under s 22C(1). Moreover, there would be no relevant activity in relation to which notice might be given to the Minister by the head of an organisation designated under s 22A(1)(b). Schedule B would have no scope for operation.

27. The implication of the applicant’s argument is that, were the Tribunal to find that the relevant Instrument is invalid, then ss 22A(1)(a) and (b) would be non-referential subsections, in other words, there would be no activities or organisations to which these subsections apply.

28. As an exercise of statutory construction, the argument that s 22A operates in a plenary manner without the limitations inherent in s 22A(1)(a) and (b) is not supported by the words or structure of the section. Nor is it supported by the Revised Explanatory Memorandum, which at paragraph [60] states:

    The purpose of new section 22A is to provide that an applicant satisfies the special residence requirement if the applicant is seeking to engage in an activity specified in a legislative instrument; the applicant’s engagement in that activity would be of benefit to Australia; the applicant needs to be an Australian citizen in order to engage in that activity; and in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement in section 22 of the Act.[7]

    [7] Revised Explanatory Memorandum, Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 (Cth), p 10 at para [60].

29. In essence, the applicant’s argument is that the special residence requirement in s 22A operates as a device permitting the Minister, on a case by case basis, and without limitations imposed by the section itself, to consider whether particular activities put forward by the applicant should be regarded as activities that benefit Australia. The argument that section 22A provides a non-exhaustive pathway based simply on a finding of ‘benefit to Australia’ is unconvincing. There is nothing in the legislation to support this construction. Neither the wording, nor the heading of section 22A, supports it. It would render subsections 22A(1)(a) and (b) otiose. Section 22A cannot be interpreted in the manner suggested by the applicant’s solicitor.

30. It is therefore unnecessary to consider at any length the question whether the Tribunal has the power under s 43 of the AAT Act or otherwise to set aside a legislative instrument. As an administrative tribunal engaged in merits review, it would be surprising were the Tribunal so empowered. The power to set aside a legislative instrument on the basis that it is ultra vires is reserved to a Chapter III court.[8] In this respect there are radical differences between a departmental policy, which may in appropriate cases be set aside by the Tribunal,[9] and a legislative instrument, which is a form of delegated legislation that determines rights.[10]

    [8] See Re Robert Mckie and Minister of Immigration, Local Government and Ethnic Affairs [1988] AATA 59 at [16] that: “The Tribunal undoubtedly has power to consider and form an opinion as to the validity or invalidity of an Act of Parliament, just as any other person responsible for the administration of that Act may; but that is the full extent of its power.”

    [9] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J.

    [10] See Legislation Act 2003 (Cth) s 8.

    Decision

31. For these reasons, the correct or preferable decision is to affirm the decision under review.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 19 December 2019

Date(s) of hearing:	1 August 2019
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore Lawyers