Alaa Zaidan and Minister for Immigration and Border Protection

[2014] AATA 584

[2014] AATA 584 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2472
Re	Alaa Zaidan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	21 August 2014
Place	Canberra

The Tribunal affirms the decision under review.

...(sgd) CR Walsh....................

Senior Member CR Walsh

CATCHWORDS

Citizenship by conferral – eligibility – general residence requirement – overseas absences – “good character” requirement – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 – s 21(2) – s 21(2)(c) - s 21(2)(h) - s 22(1) – s 22(1A) – s 22(1B)

REASONS FOR DECISION

Senior Member CR Walsh

21 August 2014

INTRODUCTION

1. Mr Zaidan seeks a review of the decision of a delegate of the Minister for Immigration and Border Protection (Minister), dated 17 April 2014, refusing Mr Zaidan’s application for Australian citizenship by conferral, dated 16 April 2014, because Mr Zaidan did not satisfy:

   (i)the “general residence requirement” in s 22(1) of the Australian Citizenship Act 2007 (Citizenship Act), as required by s 21(2)(c) of the Citizenship Act, because of the number of days (being 510) Mr Zaidan spent overseas in the four years immediately before applying for Australian citizenship; and

   (ii)the “good character” eligibility requirement in s 21(2)(h) of the Citizenship Act – Mr Zaidan did not provide an “overseas penal clearance” from Syria in support of his application for Australian citizenship.

   BACKGROUND

2. Mr Zaidan was born in Iraq on 28 October 1975.

3. Mr Zaidan first arrived in Australia on a UL 679 (Sponsored Family Visitor) visa (UL 679 Visa) on 9 May 2005. Following this arrival, Mr Zaidan’s movements were as follows:

   ·On 20 May 2005, Mr Zaidan departed Australia.

   ·On 25 May 2007, Mr Zaidan arrived in Australia on a UL 679 Visa.

   ·On 1 June 2007, Mr Zaidan departed Australia.

   ·On 12 August 2008, Mr Zaidan arrived in Australia on a UL 679 Visa.

   ·On 9 September 2008, Mr Zaidan departed Australia.

   ·On 15 May 2009, Mr Zaidan arrived in Australia on a TR 676 (Tourist) visa (TR 676 Visa).

   ·On 29 May 2009, Mr Zaidan departed Australia, spending 108 days overseas.

   ·On 3 August 2010, Mr Zaidan arrived in Australia on a TR 676 Visa.

   ·On 29 September 2011, Mr Zaidan was granted a XA 866 (Permanent Protection) visa.

   ·On 23 December 2011, Mr Zaidan departed Australia, spending 177 days in Syria.

   ·On 17 June 2012, Mr Zaidan arrived in Australia.

   ·On 23 October 2012, Mr Zaidan departed Australia, spending 132 days in Syria.

   ·On 5 March 2013, Mr Zaidan arrived in Australia.

   ·On 11 May 2013, Mr Zaidan departed Australia, spending 29 days in Syria.

   ·On 10 June 2013, Mr Zaidan arrived in Australia.

   ·On 10 September 2013, Mr Zaidan departed Australia, spending 64 days in Syria.

   ·On 14 November 2013, Mr Zaidan arrived in Australia.

4. On 16 April 2014, by Form 1300t – ”Application for Australian Citizenship” (dated 8 April 2014), Mr Zaidan applied to the Australian Government, Department of Immigration and Border Protection, for Australian citizenship (Citizenship Application).

5. On 17 April 2014, a delegate of the Minister refused the Citizenship Application on the grounds referred to in paragraph 1 above. (Citizenship Decision).

6. On 15 May 2014, Mr Zaidan applied to the Tribunal for a review of the Citizenship Decision.

   ANALYSIS

   Eligibility for citizenship

7. Section 22(2) of the Citizenship Act sets out the requirements for eligibility for Australian Citizenship. Of particular relevance to this application is s 21(2)(c) of the Citizenship Act, which states that to be eligible to become and Australian citizen a person must satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act), the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) or the “defence service requirement” (in s 23(1) of the Citizenship Act) at the time the person applied for citizenship.

8. The Citizenship Application was refused by a delegate of the Minister primarily because Mr Zaidan did not satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act). The “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) and the “defence service requirement” (in s 23(1) of the Citizenship Act) are not relevant to this application.

   General residence requirement

9. Section 22(1) of the Citizenship Act sets out the “general residence requirement”. Section 22(1) of the Citizenship Act provides:

   General residence requirement

   (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. [Emphasis added]

   10.Section 22(1A) and (1B) of the Citizenship Act state:

   Overseas absences

   (1A)     If:

   (a)                  the person was absent from Australia for 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 for 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 residence. [Emphasis added]

10. In the four years immediately before the Citizenship Application (i.e. in the period from 16 April 2010 to 16 April 2014), Mr Zaidan was absent from Australia for a total of 510 days, being longer than the “12 months” (or 365 days) specified in s 22(1A)(b) of the Citizenship Act, such that Mr Zaidan could not be taken to be “present in Australia” for the purposes of s 22(1)(a) of the Citizenship Act, during each of his periods of absence from Australia in the four years immediately before the Citizenship Application, pursuant to s 22(1A) of the Citizenship Act.

11. In the twelve months immediately before the Citizenship Application (i.e. in the period from 16 April 2013 to 16 April 2014), Mr Zaidan was absent from Australia for a total of 93 days, being longer than the “90 days” specified in s 22(1B) of the Citizenship Act, such that Mr Zaidan could not be taken to be “present in Australia” for the purposes of s 22(1)(c) of the Citizenship Act, during each of his periods of absence from Australian in the twelve months immediately before the Citizenship Application, pursuant to s 22(1B) of the Citizenship Act.

12. Consequently, as at the date of the Citizenship Application, Mr Zaidan did not satisfy the “general residence requirement” in s 22(1) of the Citizenship Act and s 21(2)(c) of the Citizenship Act and was, therefore, ineligible to become an Australian citizen.

13. On the material before the Tribunal, none of the ministerial discretions in s 22 of the Citizenship Act can apply to assist Mr Zaidan meet the “general residence requirement” in s 22(1) of the Citizenship Act and therefore be eligible for Australian citizenship under s 21(2) of the Citizenship Act.

14. Mr Zaidan’s stated reason for his trips overseas to Syria in the four years immediately before the Citizenship Application was to find his Iraqi ex-wife and daughter, who were in Syria seeking asylum, and to persuade them to move to Australia.  Mr Zaidan said that he wanted this for his daughter’s well-being, “because of the Civil Wars in Syria and in Iraq” and “because [his] ex-wife has a bipolar disorder and because of this illness she committed many dangerous acts and [was] not able to look after [his] daughter properly”.  Mr Zaidan explained that his trips to Syria were not holidays or for “pleasure” but, rather, “were trips full of hard work and unhappiness as [he] was looking for [his] daughter travelling from [one] (sic.) village to another risking [his] life in that war torn country”. 

15. The reason for Mr Zaidan’s periods of absence from Australia in the four years immediately before the Citizenship Application are irrelevant to whether he satisfied the relevant legislative requirements for Australian citizenship in the Citizenship Act. Specifically, Mr Zaidan’s reason for his overseas absences in the relevant period is irrelevant to whether Mr Zaidan satisfied the “general residence requirement” in s 22(1) of the Citizenship Act such that he satisfied s 21(2)(c) of the Citizenship Act and was eligible to become an Australian citizen.

16. Mr Zaidan told the Tribunal that he did not understand or appreciate, as it had never been explained to him, the adverse impact that his overseas absences would have on his Citizenship Application and that he was happy to be “punished” for his “mistakes” as long as he was granted Australian citizenship.  Mr Zaidan stated that he needed to be granted Australian citizenship in case all of his family had to “travel overseas together”, noting that the other members of his family (namely, his current wife and two daughters with his current wife) are expected to obtain Australian citizenship on 3 August 2014.

17. It is not a matter of Mr Zaidan being “punished” for his “mistakes”, as he put it. Nor is it relevant that Mr Zaidan did not understand the adverse impact that his overseas absences would have on his Citizenship Application to the issue whether he satisfied the relevant legislative requirements for Australian citizenship in the Citizenship Act. The fact remains that as a consequence of the number of days Mr Zaidan spent overseas in the four years immediately before the Citizenship Application (i.e. 510 days), Mr Zaidan failed the “general residence requirement” in s 22(1) of the Citizenship Act and, therefore, is ineligible for Australian citizenship (i.e. due to his inability to satisfy s 21(2)(c) of the Citizenship Act).

    Good character requirement

18. Another requirement for eligibility for Australian citizenship in s 21(2) of the Citizenship Act is the requirement in s 21(2)(h) that a person must be of “good character” at the time of the Minister’s decision on the person’s Australian citizenship application.

19. It is the Minister’s contention that the Tribunal should not be satisfied that Mr Zaidan is of “good character” as at the date of the Citizenship Decision  in the absence of Mr Zaidan’s provision of a “penal clearance” from Syria.

20. Since the Tribunal has found that Mr Zaidan did not satisfy the “general residence requirement” in s 22(1) of the Citizenship Act on the date of the Citizenship Application (and that Mr Zaidan was not, therefore, eligible for Australian citizenship by virtue of his inability to satisfy s 21(2)(c) of the Citizenship Act), it is unnecessary for the Tribunal to decide this issue.

    DECISION

21. For the above reasons, the Tribunal affirms the Citizenship Decision.

I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

..(Sgd) T Freeman...............

Associate

Dated 21 August 2014

Date of hearing	20 August 2014
Representative for the Applicant	Mr Hajk
Representative for the Respondent	Mr Eteuati
Solicitors for the Respondent	Clayton Utz