Akot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 481
•21 March 2022
Akot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 481 (21 March 2022)
Division:GENERAL DIVISION
File Number: 2021/6047
Re:Andrew Akot
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:21 March 2022
Place:Brisbane
The decision under review is affirmed.
.............[SGD]...........................................................
Deputy President J Sosso
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Applicant has satisfied s 21(2)(c) of Australian Citizenship Act – general residence requirement under s 22(1)(a) – Applicant outside Australia for 482 days in four years immediately before the date of application – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (special residence requirement) Instrument 2021 (Cth)
CASES
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Minister for Immigration and Border Protection v Han (2015) 231 FCR 113
SECONDARY MATERIALS
Department of Home Affairs, Australian Citizenship Instructions (15 May 2012)
Department of Home Affairs, Revised Citizenship Procedural Instructions (19 April 2021)
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
REASONS FOR DECISION
Deputy President J Sosso
21 March 2022
INTRODUCTION
On 18 May 2021, Mr Andrew Ajang Deng Akot (the Applicant) lodged an application for Australian citizenship by conferral – Exhibit 1 T4 pp. 9 – 45.
The Applicant was born, in what is now South Sudan, in 1974 and first arrived in Australia on 13 December 2007. He is currently the holder of a Resident Return (Subclass 155) visa which was granted on 2 June 2018 – Exhibit 2 para 3.
According to Department of Home Affairs (the Department) records, the Applicant became a permanent resident on 13 December 2007 – Exhibit 1 T10 p. 79.
In his citizenship application form, the Applicant responded to a Question seeking information on international travel undertaken over the previous ten years, that he had travelled to South Sudan between 30 July 2019 until 1 March 2020 for a family visit – Exhibit 1 T4 p. 27. No other travel details were provided by the Applicant.
On 7 July 2021, an officer of the Department wrote to the Applicant informing him that his application for Australian citizenship did not meet the residence requirements for citizenship, but that he may be eligible for Ministerial discretion pursuant to s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Act). Subsection 22(9) provides as follows:
“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 the that the person had a close and continuing association with Australia during that period.”
(emphasis in the original)
In response, the Applicant provided documentation indicating that he had three children who were Australian citizens, but no evidence was provided regarding his spouse – Exhibit 1 T9 p. 56, T10 p. 79.
On 19 August 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused the Applicant’s citizenship application on the basis that the Applicant did not satisfy s 22(1)(a) of the Act – Exhibit 1 T10 pp. 75 – 83.
Section 22 deals with the general residence requirement. However, attention must first be given to s 21(2) which deals with general eligibility requirements. In particular, s 21(2) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the general eligibility requirements outlined in s 21(2)(a) – (h). Subparagraph 21(2)(c) provides:
“satisfies the general residence requirement (see section 22)…”
Subsection 22(1) provides that, for the purposes of s 21, a person satisfies the general residence requirement if they meet the requirements outlined in paragraphs (a) – (c). The relevant requirement in this matter is s 22(1)(a):
“the person was present in Australia for the period of 4 years immediately before the day the person made the application…”
Attention also needs to be given to s 22(1A):
“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 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.”
(emphasis in the original)
On 19 August 2021, a delegate of the Minister refused the Applicant’s citizenship application on the basis that the Applicant did not satisfy s 21(2)(c) of the Act – Exhibit 1 T10 pp. 75 – 83. The delegate further found that the Applicant had not provided any evidence of him having an Australian citizen spouse that may have enlivened the Ministerial discretion pursuant to s 22(9) – Exhibit 1 T10 p. 79.
The delegate gave the following reasons for rejecting the Applicant’s citizenship application – Exhibit 1 T10 p. 79:
“I have considered the information contained in your application and that contained on departmental systems and I can see no evidence that any of the partial exemptions set out in subsection 22(2) apply to you.
On 07/07/2021, you were sent a letter requesting you to provide information whether you had Australian citizen spouse at the time of application and same spouse during the absences from Australia within the last 4 years before you made your application.
In response to this request you provided documents which shows that you have Australian citizen children; however you have not provided any evidence of Australian citizenship spouse. Therefore, there is no evidence to support application of Ministerial discretion spouse under s22(9) in your circumstances.
I have considered whether any of the Ministerial discretions set out in subsections 22(4A), (5), (5A), (6), (10) or (11) could be applied to assist you to meet the general residence requirements, however I have no evidence to support the application of any of these discretions in your circumstances.
You have provided no evidence that you satisfy the special residence requirements of sections 22A (persons engaging in activities of benefit to Australia) and 22B (persons engaged in particular kinds of work requiring regular travel outside Australia) of the Act, or that you have completed defence service relevant to section 23 of the Act.
….
I have considered your application against the requirements set out in subsection 21(2) of the Act.
I have decided to refuse your application to become an Australian citizen by conferral because you do not satisfy the requirements of paragraph 21(2)(c) of the Act.”
On 30 August 2021, the Applicant made an application to the Administrative Appeals Tribunal for review of the delegate’s decision of 19 August 2021 – Exhibit 1 T2 pp. 5 – 7.
ISSUES
It is not disputed that the issues requiring resolution are as follows:
(a)does the Applicant satisfy the general residence requirements of s 21(2)(c) and, in particular, s 22(1)(a); and, if not,
(b)whether any of the Ministerial discretions in s 22(4A) – (11) apply; and, if not,
(c)whether the Applicant meets either of special residence requirements of s 22A or s 22B.
THE HEARING
A Hearing was convened in Brisbane on 21 February 2022. Due to social distancing requirements because of the COVID-19 pandemic, the Hearing was conducted remotely.
The Applicant was self-represented and was assisted by a Dinka interpreter. In addition, the Applicant had the benefit of a support person, Ms Delmae Gleeson from Uniting Care.
The Minister was represented by Mr Matthew Hawker of Sparke Helmore Lawyers.
No persons were called to give evidence.
CONSIDERATION
Introduction
The policy underpinnings of the residency requirements of the Act, and guidance on their proper application, are provided in the Australian Citizenship Policy Statement (ACP) and the Citizenship Procedural Instructions (CPI).
The Minister properly concedes that neither the ACP nor CPI are legally binding on the Tribunal – Exhibit 2 para 14.
In Minister for Home Affairs v G and Another (2019) 266 FCR 569, the Full Federal Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations at [18]/574:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
Their Honours subsequently provided the following guidance on the application of executive policy in relation to the exercise of a statutory discretion – [58] – [62]/586 – 587:
“58.It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…
59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case’: Drake (No 2) at 641.
60. However, as Brennan J stated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’.
…
62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations…”
Reference was made by the Full Court to “Drake (No 2)” and the analysis of Brennan J. This was the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
At its heart, what Brennan J (as he then was) said, was that executive policy can be a proper guide to good and consistent decision-making, but when, in the case of a statute which gives a decision-maker broad discretionary power, such a policy cannot unduly fetter a decision-maker in reaching a considered decision on the material before that decision-maker. Perhaps, to put it another way, executive policy can provide a constructive foundation to reaching a considered and legally sound decision, but it cannot fetter a decision-maker when properly evaluating the law and evidence before him or her – see Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
In this matter, reference can be made to the following explanation of the policy underpinning the residency requirements of the Act – Exhibit 1 T15 p. 104 – CPI 8 - 3.1:
“Residence requirements support the policy intention that a person who wishes to become an Australian citizen has spent sufficient time in Australia to gain an understanding of Australia and the responsibilities and privileges that a person accepts by seeking to become an Australian citizen.”
The relevant parts of both the ACP and CPI are contained in Exhibit 1 T14 and T15, and the Tribunal has had regard to those documents when reaching its decision.
Has the Applicant satisfied the general residence requirement under s 22(1)(a)?
As previously noted, s 22(1)(a) requires that a person applying for citizenship must have been present in Australia for a period of four years immediately before the day the citizenship application was made. This requirement is ameliorated by the operation of s 22(1A) which deems an applicant to meet the four year requirement, if the total period of absences was not more than 12 months.
The Department provided to the Tribunal details of the Applicant’s overseas travel from October 2012 to March 2020 – Exhibit 1 T11 pp. 84 - 85. There is no record of the Applicant having travelled overseas since March 2020. Accordingly, s 22(1B) is not applicable to the resolution of this matter.
As the Tribunal is only required to consider the Applicant’s absences from Australia in the four year period prior to making his citizenship application, attention will be directed to his presence in Australia and overseas in the period May 2017 until May 2021.
Departmental records disclose that the Applicant departed Eagle Farm (Brisbane Airport) on 13 May 2017 and arrived back at Eagle Farm on 10 October 2017. The next departure was on 10 June 2018 and the Applicant returned on 29 October 2018. The final departure was 30 July 2019 and the Applicant returned on 1 March 2020 – Exhibit 1 T11 p. 84.
The Applicant stated in his citizenship application form that he had travelled to and from South Sudan from 30 July 2019 to 1 March 2020 for a “family visit” – Exhibit 1 T4 p. 27.
The Department calculated that, in the period 2017 – 2020, the Applicant was absent from Australia for 482 days – Exhibit 1 T12 pp. 88 – 89.
At the Hearing, I asked the Applicant if he had departed Brisbane on 13 May 2017, 10 June 2018 and 30 July 2019 to travel to South Sudan. The Applicant agreed that this was the case. He was also asked if, during his absence from Australia, he had spent that time wholly or almost wholly in South Sudan, and he also agreed that was the case. In short, the Applicant did not contest that he had been absent from Australia, in the four years prior to making his citizenship application, for a period of 482 days.
As is pointed out in CPI 8 -3.1 – Exhibit 1 T15 p. 107:
“…there is no general power under the Act to waive the residency requirements”.
It is not contested that the Applicant was not present in Australia for the four year period immediately before he made his citizenship application – s 22(1)(a). It is also not contested that he was absent from Australia for a period of more than 12 months during that four year period, thereby resulting in him not being able to rely on s 22(1A).
In these circumstances, the Tribunal finds that the Applicant does not satisfy the general residence requirement under s 22(1)(a).
Do any of the Ministerial discretions in s 22(4A) – (11) apply?
There is no evidence, and no submissions, that any of the following Ministerial discretions are relevant to the Applicant’s circumstances:
(a)s 22(4A) and s 22(5) – administrative error;
(b)s 22(5A) – confinement in prison or psychiatric institution;
(c)s 22(6) – person in Australia would suffer significant hardship or disadvantage; and
(d)s 22(11) – person in interdependent relationship.
In the case of s 22(11), the CPI explains that the discretion only applies if a person was granted a visa on the basis of an interdependent relationship, that is, the applicant holds a Subclass 110 (Interdependency) visa or a Subclass 814 (Interdependency) visa – Exhibit 1 T15 p. 109 – CPI 8 - 5.6. There is no evidence before the Tribunal that the Applicant was granted either of those visas.
Attention, however, needs to be directed to the Ministerial discretion contained in s 22(9), namely, where an applicant is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen.
The CPI sets out the following information about the type of material that needs to be provided by an applicant in order for the Minister to favourably exercise the discretion provided by s 22(9) – Exhibit 1 T15 p. 109 – CPI 8 - 5.5:
“Applicants seeking the application of ministerial discretion under subsection 22(9) of the Act will need to provide:
·evidence of their spouse’s, or de facto partner’s, Australian citizenship; and
·their marriage certificate or, if a de facto partner, evidence of their de facto relationship.”
The material before the Tribunal is scant so far as the Applicant’s marital situation.
In his citizenship application form, the Applicant provided no information on his children – Exhibit 1 T4 pp. 17 – 21. He did provide information on his mother and father, including their dates of birth and where they were born – Exhibit 1 T4 p. 22. Further, in Part D of the application form, the Applicant was asked to provide details of “immediate family members”. This term was said to include “full, half, adopted and step brothers and sisters, a spouse or de facto partner including if deceased”. The Applicant ticked the “No” box – Exhibit 1 T4 p. 23.
The Applicant did attach to his application form a photocopy of a Commonwealth Government form headed “Document for travel to Australia”. In this document, the Applicant is stated to be married, and there are details of three children born between 1999 and 2004 – Exhibit 1 T4 pp. 34, 38.
When the Applicant was invited to provide evidence in respect of s 29(9), he again provided evidence with respect to his children but, from the information provided to the Tribunal, did not provide any further information about his wife – Exhibit 1 T9 p. 56.
The Tribunal has been provided with no further information about the Applicant’s wife, in particular, whether she remains his wife, whether she resides in Australia or overseas, and whether she is an Australian citizen. In particular, the Tribunal has no evidence that, if the Applicant is currently married or in a de facto relationship, that his wife or de facto was an Australian citizen at the time he made his citizenship application – Minister for Immigration and Border Protection v Han (2015) 231 FCR 113.
The Applicant was sent a resettlement approval letter on 8 October 2007 from the Australian High Commission in Nairobi, Kenya. Resettlement permission was granted for the Applicant and five other named persons. Three of the named persons appear to be the children of the Applicant. Another person is Tereza Alley who is stated to be single, but who is of a similar age of the Applicant and a child of one years old named Aker Ajang – Exhibit 3. It is not clear what the relationship is of Ms Alley with the Applicant, whether she was, or is, his wife or a family member.
Unfortunately, the Tribunal has not been provided with any helpful evidence about the Applicant’s wife, and there is no evidence before the Tribunal, in particular, whether she is an Australian citizen. In these circumstances, the Applicant does not satisfy the Ministerial discretion under s 22(9).
Special residence requirement – s 22A: engaging in activities that are of benefit to Australia
For the purposes of s 21, a person will satisfy the special residence requirement if they are seeking to engage in an activity specified under s 22C(1) – s 22A(1)(a)(i). Subsection 22C(1) provides that the Minister may, by legislative instrument, specify activities for the purpose of s 22A(1)(a)(i).
Reference can be made to the Australian Citizenship (special residence requirement) Instrument 2021 (Cth) (the Instrument). Clause 5 of the Instrument lists six broad types of activities and six separate organisations. Five of the organisations are sporting bodies: Australian Olympic Committee, Australian Paralympic Committee, Tennis Australia, Commonwealth Games Australia and Cricket Australia. The activities likewise involve participation in high profile sporting events: Olympic Winter and Summer Games, Paralympic Winter and Summer Games, Davis or Fed Cup, Commonwealth Games and various international cricket events.
The other activity is employment in a position which requires a Negative Vetting 2 or higher security clearance in a Commonwealth entity, that is, a Department, executive agency or a statutory agency.
There is no evidence before the Tribunal that the Applicant has engaged, or is seeking to engage, in any of the activities prescribed by cl. 5, or has the support of any of the prescribed organisations to engage in such activities.
In his citizenship application, the Applicant stated that his occupation was a casual worker – Exhibit 1 T4 p. 15. In other material, the Applicant has indicated that he has worked as a chef/cook – Exhibit 1 T9 pp. 62 – 64.
The Tribunal, therefore, finds that the Applicant does not satisfy the special residence requirement prescribed by s 22A.
Special residence requirement – s 22B: work requiring regular travel outside Australia
A person will satisfy the special residence requirement if, at the time of their citizenship application, they are engaged in work of a kind specified under s 22C(3), and the person is required to regularly travel outside of Australia because of that work, and the other requirements of s 22B are met – s 22B(1).
Subsection 22C(3) provides that the Minister may, by legislative instrument, specify kinds of work for the purposes of s22B(1)(a).
Clause 6 of the Instrument specifies the kinds of work that satisfy the requirements of s 22B(1)(a). The kinds of work specified are of a very special kind, namely, members of the crew of a ship or aircraft, a person engaged in work on a resources or sea installation, a Chief Executive Officer or Executive Manager of an S&P/ASX All Australian 200 listed company, as well as specified scientists and internationally recognised medical specialists, and, finally, a person engaged in academia and research, the arts, a profession, or a sport who has held a Distinguished Talent Visa.
There is no evidence before the Tribunal that the Applicant has been engaged in work of the kind specified in cl. 6, and the Tribunal finds that the Applicant does not meet the special residence requirement of s 22B.
Conclusion
For the reasons outlined above, the Tribunal finds:
(a)the Applicant does not satisfy the general residence requirement of s 22(1)(a);
(b)none of the Ministerial discretions prescribed by s 22(4A) – (11) are satisfied; and
(c)the Applicant does not meet either of the special residence requirements prescribed by s 22A or s 22B.
DECISION
The decision under review is affirmed.
60. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 21 March 2022
Date of hearing: 21 February 2022 Applicant: By telephone
Solicitor for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers
Key Legal Topics
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