BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 28 July 2023
• Neutral Citation: [2023] FCA 865
• Date: 28 July 2023

Federal Court of Australia

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

Appeal from:	Administrative Appeals Tribunal decision delivered on 31 March 2021
File number:	NSD 584 of 2021
Judgment of:	MORTIMER CJ
Date of judgment:	28 July 2023
Catchwords:	CITIZENSHIP – application for Australian citizenship by conferral – refusal of application on the basis of not being satisfied as to applicant’s identity – review – whether Tribunal engaged in illogical reasoning in finding that it could not be satisfied of applicant’s identity – appeal allowed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Australian Citizenship Act 2007 (Cth) ss 3, 21, 24(3)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; 274 FCR 532 BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; 78 AAR 481 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464
Division:
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	48
Date of hearing:	15 December 2021
Counsel for the Applicant:	Mr D Godwin (on a direct access basis)
Counsel for the Respondent:	Mr T Liu
Solicitor for the Respondent:	Clayton Utz

ORDERS

		NSD 584 of 2021
BETWEEN:	BQG21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by:	MORTIMER CJ
DATE OF ORDER:	28 July 2023

THE COURT ORDERS THAT:

1. The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The time in which an appeal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be extended to 16 June 2021.

3. Leave be granted to the applicant to rely on the draft notice of appeal dated 26 August 2021.

4. The application pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.

5. The matter be remitted to the Tribunal, differently constituted, for determination according to law.

6. The respondent pay the applicant’s costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

1. The applicant seeks to appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal made on 31 March 2021. His application was filed out of time and he requires an extension of time. The respondent Minister did not oppose the grant of an extension of time. I consider it is appropriate in the circumstances for time to be extended, given there is a reasonable explanation for the delay and given my view of the merits of the applicant’s appeal ground.

2. For the reasons set out below, the s 44 appeal application succeeds.

Introduction

3. On 31 October 2010, the applicant arrived in Australia from Iraq as an “unauthorised maritime arrival”. On his account, he was at that point 17 years of age. He was granted a protection (subclass 866) visa on 4 May 2011. Comparatively, based on the chronologies in the numerous protection visa decisions this Court reviews, the grant of a protection visa to him occurred in a relatively short period of time. There was no evidence of any identity issues being raised with him during the protection visa application process. He was a granted a protection visa with the identity he claimed at that time, being the same identity he claimed in his citizenship application.

4. On 18 June 2015, the relevant time required under s 22 of the Australian Citizenship Act 2007 (Cth) for his residence in Australia having been met, the applicant lodged an application for Australian citizenship by conferral in accordance with s 21 of the Citizenship Act. On 10 July 2019, a delegate of the Minister refused the applicant’s citizenship application, not being satisfied of the applicant’s “identity” or his good character, because of the non-satisfaction that he was who he said he was. The basis for the refusal was a suite of documents gathered by the Department and placed before the delegate, which also formed the basis of the Minister’s contentions to the Tribunal.

5. On 10 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision. On 31 March 2021, the Tribunal affirmed the delegate’s decision.

6. On 16 June 2021, the applicant filed an application for an extension of time to commence an appeal to this Court under s 44(2A) of the AAT Act. Annexed to the application was a draft notice of appeal. Although proceedings such as this are described by s 44 of the AAT Act as an “appeal”, they invoke the original jurisdiction of this Court. It is well established that s 44 appeals are in the nature of judicial review and involve similar approaches by this Court: see Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202].

7. By leave, the applicant subsequently sought to rely on a draft notice of appeal dated 26 August 2021, which the Minister did not oppose.

8. This proceeding was originally docketed to and heard by Farrell J. Her Honour is due to retire on 1 August 2023, and the proceeding was re-allocated to me on 30 June 2023. The parties were given an opportunity to make further submissions and to consider whether they wished to have a further hearing before me. The parties elected not to make further submissions, and not to request any further hearing. I have considered all the materials before Farrell J, including the transcript of the hearing.

9. So far as is relevant to the appeal, the issue for determination before the Tribunal concerned subsection 24(3) of the Citizenship Act, which provides that:

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

10. The Act does not elaborate on how the Minister is to be satisfied of the identity of a person. However, the Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16) provides policy guidance to decision-makers in relation to assessment of identity for the purposes of the Citizenship Act. At [19]-[20], the Tribunal set out the content of CPI 16 as follows:

A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allows a person to be uniquely distinguished from others within a specific context.

[…]

Three pillars of identity	Individual characteristics
Biometrics	Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies
Documents	Only reliable identity documents...