Abdulsalam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 1371

Abdulsalam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1371 (27 May 2022)
Division:GENERAL DIVISION
File Number: 2021/6214
Re:May Abdulsalam

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:27 May 2022
Place:Perth

The Tribunal affirms the decision under review.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – absence from Australia – whether the discretions in section 22 apply – whether the Applicant meets the residence requirements – section 22A – whether the Applicant was engaging in activities that are of benefit to Australia – section 22B – whether the Applicant was engaging in a particular kind of work requiring regular travel outside of Australia – whether the Act provides for waiver in compassionate circumstances – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22(1), 22(1), 22(1)(a), 22(1)(c), 22A, 22B, 22C, 23, 24(1)
Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (Cth) part 5, 6
Health Insurance Regulations 2018 (Cth)
Public Service Act 1999 (Cth)
CASES
FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4231
Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4958
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS

Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 8
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
27 May 2022
INTRODUCTION

Mrs Abdulsalam seeks review of a decision made by a delegate of the Respondent on 10 August 2021 (the delegate) to refuse her application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
The citizenship application was refused because Mrs Abdulsalam was out of Australia for a considerable period of time and therefore did not satisfy the residency requirements stipulated under the Act.
Mrs Abdulsalam’s application for review is made in accordance with s 52(1)(b) of the Act which allows the Administrative Appeals Tribunal (the Tribunal) to review the decisions made under s 24 of the Act.
The application was heard by the Tribunal on 7 April 2022. The hearing was conducted through MS Teams. Mrs Abdulsalam was supported by her daughter Ms Dalya Ali Hussein, and both gave oral evidence. The Tribunal was assisted by an interpreter in the Arabic language.
The Respondent was represented by Mr Christopher West of Sparke Helmore Lawyers who participated by telephone conference.
BACKGROUND
Mrs Abdulsalam is a 68-year-old citizen of Iraq who first arrived in Australia as the holder of a Carer visa and became a permanent resident in 2015 (T7/79). She last departed Australia on 24 October 2019 and returned on 18 March 2021 (T8/86).
On 14 July 2021, Mrs Abdulsalam lodged an application for Australian citizenship by conferral (T4/14–43). In the application Mrs Abdulsalam stated that she was applying under the special residence requirement because she was “[e]ngaged in work of a particular kind requiring regular travel outside of Australia” (T4/18).
In a letter to the Department of Home Affairs (the Department), supporting her citizenship application, dated 12 July 2021, Mrs Abdulsalam explained that she departed Australia on 24 October 2019 to visit her son in Oman, then travelled to Jordan for a holiday and was then prevented from returning to Australia until 18 March 2021 due to the COVID-19 pandemic (T5/58). Mrs Abdulsalam also provided medical evidence of a diagnosis of colon cancer in 2018 and subsequent treatment involving surgery and chemotherapy (T5/60–66; T5/71).
On 10 August 2021, the delegate refused Mrs Abdulsalam’s application for citizenship on the basis that she did not satisfy the general residency requirements contained under s 22 of the Act (T7/79–82). The delegate also found that Mrs Abdulsalam had not provided evidence of satisfying the special residence requirement in s 22B or s 22A of the Act. Nor was the delegate satisfied that there was any evidence that Mrs Abdulsalam met the defence service requirements in s 23 of the Act.
On 6 September 2021, Mrs Abdulsalam applied to the Tribunal for review of the delegate’s decision (T2/6–12). In the application, Mrs Abdulsalam provided the following reasons for her application and claimed that the delegate’s decision is wrong (T2/11):
I request that you review my current application for citizenship because being overseas for more than 360 days after 4 years of residency was out of my control, and I have all the supporting documents for my claim (See details in the attached letter please).
The letter attached to Mrs Abdulsalam’s application is headed “Citizenship application eligibility” and reiterates that she departed Australia for an 80-day trip to see her son, but after airports were closed and lockdowns imposed, it was difficult for her to obtain a ticket to return home due to consequences of the COVID-19 pandemic (Exhibit R1, Annexure 1).
ISSUES
The Tribunal must decide in this matter whether Mrs Abdulsalam satisfies the general residence requirements under s 22(1)(a) or s 22(1)(c) of the Act and, if not:
(a)Whether any of the Ministerial discretions in s 22(4A) to (11) of the Act apply such that s 21(4)(d) of the Act is taken to be satisfied; or
(b)Whether Mrs Abdulsalam meets either of the special residence requirements in s 22A or s 22B of the Act.
LEGISLATIVE F RAMEWORK
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Relevantly to this application, s 21 outlines the following eligibility requirements:
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the   person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i)      at the time the person made the application; and
(ii)     at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an ad equate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approve d; and
(h)is of good character at the time of the Minister’s decision on the application.
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
…
Person aged 60 or over or has hearing, speech or sight impairment
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is:
(i)      aged 60 or over at the time the person made the application; or
(ii)    aged 18 or over at the time the person made the application and Is suffering from a permanent loss or substantial impairment of   hearing, speech or sight at that time; and
(b)is a permanent resident:
(i)     at the time the person made the application; and
(ii)    at the time of the Minister’s decision on the application; and
(c)Understands the nature of the application at the time the person made the application; and
(d)Satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the   application; and
(e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f)is of good character at the time of the Minister’s decision on the application.
Section 22 of the Act provides the general residency requirements as follows:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years Immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B)If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present In Australia as a permanent resident during each period of absence.
Confinement in prison or psychiatric institution
(1C)Subject to subsection (5A), the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:
(a)confined in a prison; or
(b)confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
Partial exemption—person born in Australia or former Australian citizen
(2)Paragraphs (1)(a) and (b) do not apply if the person:
(c)was born in Australia; or
(d)was an Australian citizen at any time before the person made the application.
Ministerial discretion—administrative error
(4A)For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non‑citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non‑citizen during that period.
(5)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
Ministerial discretion—confinement in prison or psychiatric institution
(5A)The Minister may decide that subsection (1C) does not apply in relation to the person If, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.
Ministerial discretion—person in Australia would suffer significant hardship or disadvantage
(6)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was present in Australia during that period (except as a perm anent resident or an unlawful non‑citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
Ministerial discretion—spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
(10)In subsection (9):
surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.
Ministerial discretion—person in an interdependent relationship
(11)If, at the time the person made the application, the person:
(a)holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and
(b)is in that interdependent relationship;
then, for the purpose s of paragraph (1)(c), the Minister may treat a period as one in which the pers on was present in Australia as a permanent resident if:
(c)the person held that visa during that period and the person was in that interdependent relationship during that period; and
(d)the person was not present in Australia during that period; and
(e)the person was a permanent resident during that period; and
(f)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
(Original emphasis.)
Sections 22A and 22B of the Act provide special residence requirements for persons engaging in activities that are of benefit to Australia. Sections 22A and 22B relevantly provide:
22A Special residence requirement—persons engaging 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 residence 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
(c)the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d)the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e)the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f)the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g)the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.
…
22B   Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia
(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a)at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
(b)the following apply:
(i)     the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii)    for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
…
(Original emphasis; notes removed)
The activities and work specified for the purposes of ss 22A and 22B, respectively, are set out in 22C of the Act. For the purposes of s 22C of the Act the Minister by legislative instrument has issued the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (Cth) (LIN) specified activities, organisations and kinds of work for the purposes of ss 22A(1)(a)(i), 22A(1)(b) and 22B(1)(a) of the Act.
For the purposes of s 22A(1)(a)(i) of the Act, part 5 of LIN specifies the following activities:
Employment in a position which requires a Negative Vetting 2 or higher security clearance in a Commonwealth entity that is:
(a)a Department;
(b)an executive agency; or
(c)a statutory agency.
For the purposes of s 22A(1)(b) of the Act, part 5 of the LIN specifies the following organisations:
A Commonwealth entity that is:
(a)a Department;
(b)an executive agency; or
(c)a statutory agency
For the purposes of s 22B(1)(a) of the Act part 6 of the LIN specifies that the kinds of work are those undertaken as part of their duties, in which a person is:
Work that is:
(a)done on duty by a crew member of a ship or aircraft; or
(b)done on duty on a resources installation or a sea installation; or
(c)done in the course of duty by an employee of an S&P/ASX All Australian 200 listed company in one of the following positions:
(i)     a chief executive officer; or
(ii)    an executive manager; or
(d)research and development of benefit to Australia done as a scientist who has been awarded a Doctor of Philosophy in their field of specialty and is employed by an Australian university; or
(e)done in the course of duty as a scientist employed by:
(i)     the Commonwealth Scientific and Industrial Research Organisation; or
(ii)    a medical research institute that is a member of the Association of Australian Medical Research Institutes; or
(f)done in the course of duty as a medical specialist of internationally recognised record of exceptional and outstanding achievement in their field of speciality, who:
(i)     is a fellow of an organisation listed in column 1 of an item in the table in clause 1 in Schedule 1 to the Health Insurance Regulations 2018; and
(ii)    holds a qualification relevant to the organisation.

The Tribunal is also assisted by the extensive guidance contained in the “Revised Citizenship Procedural Instructions” (1 January 2019) (the CPIs). As established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal will generally apply policy unless there are cogent reasons not to do so.
CPI 8 “Residence Requirements and Discretion” also provide guidance for the decision maker on Special residence requirements under s 22A of the Act.
6. Special residence requirements – Section 22A – Persons seeking to engage in activities that are of benefit to Australia
…..
6.2 Person is seeking employment in a position requiring Negative Vetting 2 or higher in a Department, Executive Agency or Statutory Agency of the Commonwealth
This provision essentially covers people employed under the Australian Public Service Act 1999 and does not cover:
·employment by State or Territory governments;
·employment by a business that provides services to a Department, an Executive Agency or a Statutory Agency of the Commonwealth.
…..
(Original emphasis.)
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had the following material before it:
·T-Documents (T1–T10, pp 1–116);
·Respondent’s Statement of Issues, Facts and Contentions dated 18 February 2022 (Exhibit R1);
·The oral evidence of Ms Dalya Ali Hussein; and
·The oral evidence of the Applicant.
Oral evidence of the Applicant
Mrs Abdulsalam presented as an honest applicant, genuine in her desire to become an Australian citizen. During her examination she told the Tribunal that (Transcript/5–6):
(a)when she left Australia on 24 October 2019, it had been her intention to stay overseas for two to three months, but the airports were then closed;
(b)although she secured return bookings for 1 April 2020 and 15 January 2021, those bookings were cancelled; after appeals and petitions, Australian Foreign Affairs secured a booking for her on 17 March 2021;
(c)during the delay her health deteriorated because of cancer, and she developed severe pneumonia;
(d)the delay was brought about by compelling circumstances that were beyond her control, and throughout her daughter was in contact with the authorities and was advocating on her behalf;
(e)she was seeking the assistance of the Tribunal because “I [Mrs Abdulsalam] hope and I know that you have discretions, and you can understand, and hopefully approve of my situation”.
Oral evidence of Ms Dalya Ali Hussein
Ms Hussein confirmed the circumstances of her mother’s absence from Australia. She said that it was her mother’s intention to return to Australia as soon as possible and not to breach any Australian law. Ms Hussein said that her mother’s need to return to Australia was not only related to the citizenship application, but to missed and follow-up medical appointments (Transcript/7).
Ms Hussein told the Tribunal that she understands that her mother can make a new application for citizenship but feels “that it’s not fair that my mother spend another four years, in total it will be eight years for a reason that’s out of her control” (Transcript/9).
CONSIDERATION
The Respondent submits that it is not in dispute that Mrs Abdulsalam “does not meet the requirements in section 21A and 21C of the Citizenship Act. Being that she was not present in Australia for the four years prior to her application, or a permanent resident in the 12 months immediately prior to the date of her application” (Transcript/3).[1]
[1] The Tribunal notes that the correct section reference for general residence requirement is s 22(1) of the Act.
The Respondent further submits that there is no evidence that Mrs Abdulsalam satisfies the Ministerial discretions or the special residence requirement, and that “there is no general discretion in the Citizenship Act that allows the residence’s requirement to be deemed met or waived in compassionate circumstances” (Transcript/4).
General residence requirement
The evidence is, and it is not in dispute, that Mrs Abdulsalam was absent from Australia for a total period of 553 days in the four years immediately prior to making her application, and for 247 days in the 12 months prior (T8/86). The Tribunal therefore finds that she fails to satisfy the general residence requirement, even taking into account the allowable absences under s 22(1A) and 22(1B) of the Act.
The Tribunal now considers whether Mrs Abdulsalam satisfies any of the Ministerial discretions or special residence requirements prescribed in the Act.
Ministerial discretions
There is no evidence to suggest that Mrs Abdulsalam meets any of the Ministerial discretions in s 22(4A)–(11) of the Act (T7/84–85).
Special residence requirements
In order to satisfy s 22A of the Act, Mrs Abdulsalam must be seeking to engage in an activity specified in paragraph [5] of the LIN (Exhibit R1, Annexure 2). In general terms, such activities include employment in a position requiring a high-level security clearance in a Commonwealth department or agency, or participation in particular Australian sporting teams like the Australian Davis Cup team, the Australian team for the paralympic Summer or Winter Games, or the Australian Test Cricket Team. The applicant must also have the support of an organisation listed in the LIN to satisfy the requirement.
There is no evidence that Mrs Abdulsalam is engaging in any of the activities specified under paragraph [5] of the LIN or that she has the support of a relevant organisation prescribed, and Mrs Abdulsalam makes no submissions regarding such engagement. The Tribunal is therefore satisfied that Mrs Abdulsalam cannot meet the special residence requirement in s 22A of the Act.
In order to satisfy s 22B of the Act, Mrs Abdulsalam must be engaged in a kind of work specified in paragraph [6(2)] of the LIN. This limited work includes work that is: done by a crew member of a ship or aircraft; done on a resource or sea installation; done on duty by a chief executive officer or executive manager of an S&P/ASX All Australian 200 listed company; certain research and development of benefit to Australia by a scientist or Doctor of Philosophy; done in the course of duty as a scientist employed by certain organisations or institutes; or done in the course of duty as a medical specialist in certain specialities.
Mrs Abdulsalam has provided no evidence of being engaged in a kind of work specified in paragraph [6] of the LIN nor any evidence that she was, during the relevant periods, required to regularly travel outside of Australia because of that work. In other words, Mrs Abdulsalam did not offer evidence or make submissions relevant to her original statement that she was “[e]ngaged in work of a particular kind requiring regular travel outside of Australia” (T4/18; see para 7 above). Rather, the evidence is that the purpose of Mrs Abdulsalam’s travel was to see her son and have a holiday (T5/58), and there is no evidence before the Tribunal of any work undertaken by Mrs Abdulsalam during her absence from Australia.
Compassionate circumstances
The Tribunal has careful and sympathetic regard to Mrs Abdulsalam’s contention that the Tribunal should take a compassionate approach to her application and the compelling circumstances behind it. These circumstances have arisen as a consequence of the COVID-19 pandemic and Mrs Abdulsalam’s medical conditions.
However, the Act is explicit and contains no compassionate waiver provisions in relation to the residence requirements for citizenship. Like Senior Member B Pola in the matter FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4231 at [30] and Member D Mitchell in the matter Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4958 at [33], the Tribunal, in the present matter, is unable to find any discretion in the provisions of the Act such as to allow a finding that Mrs Abdulsalam meets the residence requirements for citizenship.
CONCLUSION
The Tribunal finds that Mrs Abdulsalam does not satisfy the general residence requirements for the granting of Australian citizenship by conferral as prescribed in s 22(1)(a) or s 22(1)(c) of the Act. The Tribunal is also satisfied that none of the Ministerial discretions apply to Mrs Abdulsalam, and that she does not meet the special residence requirements in s 22A and s 22B or defence service requirements in s 23 of the Act. Finally, the Tribunal is of the view that there are no compassionate provisions in the Act such that would allow a waiver of the requirements in Mrs Abdulsalam’s circumstances.
It follows from the above that the Tribunal must affirm the decision under review.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 10 August 2021 to refuse Mrs Abdulsalam’s application for Australian citizenship by conferral, is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member

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Associate
Dated: 27 May 2022

Date of hearing:
Applicant:

7 April 2022

Self-represented

Counsel for the Respondent: Christopher West

Solicitors for the Respondent:
Sparke Helmore Lawyers