awMinister for Immigration and Border Protection v Han [2015] FCAFC 79 (4 June 2015)
Background
Mr. Han, the first respondent in this case, is a national of Vietnam. He first entered into Australian in 4 January 2001 and since then he visited the country a number of times up to 9 May 2008. He came with his family, spouse and two children on May 2008 holding Class AD subclass 127 permanent visa, which was to expire on 17 April 2013. On March 27 2013, he applied for Class BB subclass 155 resident return visa which was granted and visa continues. Ms. To, his spouse, became an Australian citizen on 13 June 2013 and Mr. Han applied for Visa on 11 September 2013. For the past 4 years before lodging his visa application, he was in Australian for 458 days and one year before application, he was in the country for only 58 days. His application was however, refused by delegate of the Minister on 20 November 2013 and he applied to AAT for review of this decision. The delegate ruled that he satisfied resident requirement as outlined in s 21(2)(c) of the Act. The Minister was not happy with the AAT decision and an appeal was lodged which was consequentially dismissed.
Reasons
The main legal issues in this case was to determine whether, under the provisions of s29, one could apply for citizenship when the spouse was a citizen of Australian during the time of application or during the entire 4 years as outlined in s22(1)(a) and 12 months prior to the application date as required in s22(a)(c). The minister argued that the correct interpretation of the legal text is that Mr. Han could only qualify for citizenship if his spouse, Ms. To, was a citizen for the entire period of 4 years and 12 months before application as required by the act. However, Mr. Han disagreed with this interpretation arguing that the correct interpretation of the text was that the spouse was only required to be an Australian citizen during the time of application as required by s22(9). Ministers argument about the validity of the spouse citizenship was validated in the judge’s decision in Hingorani and Minister for Immigration and Citizenship [2011] AATA 266 and in Herrmann and Minister for Immigration and Border Protection [2014] AATA 105) where the judges ruled that it was imperative for the spouse to be a citizen of Australia for a period of four years and 12 months as outlined in the Act. However, AAT conferred with Mr. Han’s view in line with jurisprudence of past rulings in Sapronov and Minister for Immigration and Citizenship [2011] AATA 126 and Young and Minister for Immigration and Citizenship [2012] AATA 268 in which it was agreed that it was not imperative that that spouse be an Australian citizen for a period of four years.
In their appeal ruling, the judges paid particular attention to the text, context and legislative purpose. Borrowing from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 ruling, the judges argued that the contemporary approach to statutory construction must begin with considering the text itself rather than looking at the historical considerations and the extrinsic materials.
Implications
The court dismissed the appeal upholding the AAT’s decision to award Mr. Han a resident visa. Disagreeing with the Minister’s application, the court argued that the text must be interpreted in its original meaning, drawing on the intention of the law makers. They argued that the construction of s22(9) conforms is quite rational and conforms with the text within the contextual view of the law. The court emphasized that what was important, as per the provisions of s22(9)(d) was for Mr. Han to show that he had “a close and continuing association with Australia” during the time when he sought the intervention of the minister. This ruling means that that if a person is a citizen then spouse or de facto partner can directly apply for citizenship without staying for the full four year periods in Australian as provided in the law. However, it is important to note that this is not the end and there is likelihood of further appear in the High Court that will give directions on this issue.
Rules
In this case, Flick, Murphy and Griffiths JJ employed the principle of conflict between sources of law, otherwise known as the parliamentary sovereignty in the United Kingdom. Under this principle, it is assumed that when there is a conflict that arises between statutory sources, the plain words or the express meaning of the words of the law, as created in the parliament should be considered the correct interpretation of the law. Generally, the court will assume that what the legislature says in the statute should be considered the correct meaning and interpretation. In Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980), the court ruled that, "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." The same principle was also applied in Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996), where the court stated that, "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Flick, Murphy and Griffiths JJ used the same principle in their ruling by upholding the power of the text as constructed by the parliament stating that the law makers intended the texted to be interpreted to mean the spouse had to be an Australian citizen. If the requirement for the duration before application was necessary, they would have stated that in the text.

Bibliography
Cases
Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980)
Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996)
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
Sapronov and Minister for Immigration and Citizenship [2011] AATA 126
Young and Minister for Immigration and Citizenship [2012] AATA 268
Hingorani and Minister for Immigration and Citizenship [2011] AATA 266 Herrmann and Minister for Immigration and Border Protection [2014] AATA 105)
Legislation
Australian Citizenship Act 2007 (Cth)