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Principles of Statutory Interpretation | Law Sample | M100

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Question

  • Read the decision of Minister for Immigration and Border Protection v Han [2015] FCAFC 79 (4 June 2015) attached to this assignment.
  • Examine and discuss (in plain English) the reasons Flick, Murphy and Griffiths JJ decided as they did and the implications of this case in terms of the residency requirements for a spouse or de facto partner of an Australian citizen wishing to become a citizen of Australia.
  • Explain whether their Honours employed any principles of statutory interpretation in reaching their conclusions?

Solution

Minister for Immigration and Border Protection v Han (2015) FCAFC 79 (4 June 2015)

There are three basic questions that are raised.

Submission by Mr Han –He submitted that as per section 22 (9) the only requirement is that when an application is made then the spouse must be an Australian citizen and Ms To was an Australian citizen when the application was made. He submitted that section 22 (9) does not submit that the spouse of the applicant must also be the resident during the relevant period.

After analysing the submissions, the judges affirmed the submission made by Mr Han[2].

The Honours rejected the interpretation of section 22 (9) by the Minister and submitted that the words ‘that Australian citizen’ signifies a citizen of Australia who is referred to in the chapeau. Further, the words ‘during that period’ must be considered as ‘a period’ and is such period which is dependent on the Ministers requested intervention. Considering the same it was submitted that mainly the applicant who is dependent on the discretion of the Minister as per section 22 (9) in order to comply with the basic residence requisites must have a spouse who is the citizen of Australian when the application is made or has a spouse who is the citizen of Australian at the time when the applicant was not in Australia and for which intervention of Minister is desired.

[1] Hingorani and Minister for Immigration and Citizenship (2011) AATA 266 ( Hingorani ) & Herrmann and Minister for Immigration and Border Protection (2014) AATA 105) (Herrmann).

[2] Sapronov and Minister for Immigration and Citizenship (2011) AATA 126 (Sapronov ) and Young and Minister for Immigration and Citizenship (2012) AATA 268 (Young ).

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Considering the above, the judges held that the approach adopted by AAT (that is, the submission of Mr Han was affirmed) was the correct approach.

  1. The implications of the case in terms of the residency requirements for a spouse or de facto partner of an Australian citizen wishing to become a citizen of Australia.

The case has highlighted a very important question dealing with the eligibility requirement to become and an Australian citizen by conferral. The main issue is for getting a general residence requirement under section 21 and section 22 of the Australian Citizenship Act 2007 (Cth), whether the applicant (who is seeking his application at the discretion of the minister under section 29 of the Act in order to comply with the general residence requirements as per section 22 (1) (a) and (c) of the Act) has to establish that either he or his spouse or de facto partner was the citizen of Australia OR it is enough that the applicants’ spouse or de facto partner is the citizen of Australia when the applicant has applied for citizenship……

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