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Claim for citizenship not properly ‘made’

An American-South African professor has lost his bid for Australian citizenship after a debate over the meaning of the word “made” in legislation.

Asthma and allergy researcher David Henry Broide applied from California three years ago to become an Australian, but the “express” delivery of his documents to the Department of Home Affairs (DHA) took 22 days and his application was denied on the basis he had not satisfied conditions prescribed under the Australian Citizenship Act 2007 (Cth).

At the time he handed his documents to an international courier on 7 April 2022, Professor Broide believed he had satisfied the “special residence requirement” that he be in Australia for a total of at least 480 days “during the period of four years immediately before the day the person made the application”, under the Act.

At that date, he had been present in Australia for a total of 498 days in the previous four years. When the paperwork was delivered to the DHA on 29 April 2022, Professor Broide had been present in Australia for a total of 477 days in the previous four years.

In January 2023, a delegate of the Minister concluded the application had been made on the day it was received by the department, and on that basis refused the application.

In February last year, the Administrative Appeals Tribunal (AAT) concluded the proper construction of Section 22B of the Act meant the application was made at the time it was dispatched rather than the time it was received, and set aside the delegate’s decision.

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In the Federal Court last week, Justice Charlesworth disagreed, ordering the AAT’s decision be set aside and substituted with a decision affirming the refusal.

“As the tribunal observed, the question of when an application is ‘made’ gives rise to at least two constructional choices,” she said.

“Either an application is made when the applicant does all that he or she can do to put the Minister in possession of it, or it is made when the application is received by the Minister (in practical terms, when it is delivered to the department).

“Considered alone, the word ‘made’ does not obviously supply the answer to the question arising on this appeal, thus making the context all the more important.”

Justice Charlesworth pointed to the citizen applying “to the Minister”, which required the receipt of the application by the Minister in order for them to consider it.

“The circumstance that the Minister’s duty cannot be performed without actual possession of the application strongly suggests that the application is ‘made’ when that possession occurs,” she said.

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“I do not consider that Parliament could have envisaged the imposition of a duty on the Minister to decide an application that has been despatched but not yet delivered.

“Second, and relatedly, the Minister must be in position to identify the date upon which an application is ‘made’ with precision, in order for the time calculations in s 22B(1)(c) (and elsewhere in the Act) to be performed.”

Justice Charlesworth also addressed the tribunal’s view that the word “made” was an “active verb” suggesting “action by the maker”.

“Whilst that is true, the word ‘made’ must be considered in its textual context and against the broader context… “ she said.

“In short, the action contemplated by the word ‘made’ is the act of communicating information to the Minister so as to enliven and facilitate the performance of the obligation to decide the application.”

Justice Charlesworth also pointed out that the risk of uncertainty in the application could have been overcome in ways such as via an electronic application, or better timing of the application.

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