Almeida da Silva Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 131

Almeida da Silva Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 131 (6 February 2020)

Division:GENERAL DIVISION

File Number(s):      2018/4073

Re:Natasha Almeida da Silva Silva

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:6 February 2020

Place:Sydney

The decision under review is affirmed.

...................................[sgd].....................................

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – person not present in Australia – whether Ministerial discretion should be exercised – whether spouse, de facto partner or surviving spouse or de facto partner of Australian citizen – whether person in an interdependent relationship with Australian citizen – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 42A

Australian Citizenship Act 2007 (Cth) ss  21, 22, 24

CASES

Barari and Minister for Immigration and Citizenship [2010] AATA 897

REASONS FOR DECISION

Chris Puplick AM, Senior Member

6 February 2020

1. This is an application by Ms Natasha Almeida da Silva Silva (Applicant) seeking that the Tribunal review a decision made by a delegate of the Minister (Respondent), dated 19 June 2018, to refuse her application for citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (Act).

   BACKGROUND AND CHRONOLOGY

2. The Applicant first arrived in Australia on 26 January 2007 holding a visitor visa (subclass TR-676). She subsequently departed Australia and was then, while offshore, granted a permanent visa (subclass BS-801) which she used to return to Australia, on the first occasion, on 26 June 2012. She applied for citizenship by conferral on 25 July 2017.[1]

   [1] Section 37 Documents (T Documents) at p. 8.

3. Due to the illness of her partner’s father in The Netherlands the Applicant informed the Department on 20 February 2018 that:

   …I need to relocate from Australia to the Netherlands, within the next month or two. I do not have an indication of how long I would need to live in the Netherlands for, as this will depend on how long the family member stays alive, or gets better. Current processing times [for the citizenship application], as indicated today with an officer over the phone, is from 12-15 months from allocation, which would take me to July or September 2018, and I would definitely be (sic) still be living in the Netherlands.[2]

   [2] Applicant’s email to the Respondent dated 20 February 2018 and contained in bundle of documents filed with the Tribunal on 3 August 2018; T Documents p. 57.

4. The Applicant then sought advice from the Department as to whether or not she would be able to sit the citizenship test and attend the citizenship ceremony whilst overseas.

5. The Department, in reply, on 9 March 2018 advised the Applicant that if she were unable to attend her citizenship appointment (scheduled for 15 March 2018) due to being overseas she might like to consider withdrawing her current application and eventually lodging a new one. She was also advised: “You will also need to notify the Department if you have plans for extended travel outside Australia”.[3]

   [3] Respondent’s email to the Applicant dated 9 March 2018 and contained in bundle of documents filed with the Tribunal on 3 August 2018; T Documents p. 56.

6. Unfortunately, from the Applicant’s point of view, as will be outlined below, at present it is not whether an applicant is overseas at the time of an interview, the sitting of the citizenship test, or the attendance at a citizenship ceremony that matters. The relevant question pertains to whether an applicant is present in Australia at the time the decision about their application is made.

7. It appears that the Applicant then left Australia on or about 1 April 2018 and has remained overseas since that date.[4]

   [4] T Documents at pp. 64 and 68; Applicant’s Movement History from the Department of Home Affairs dated 31 January 2020, and served on the Applicant and filed with the Tribunal by the Respondent following the hearing.

8. It also appears from the evidence that the Applicant was at one stage married to an Australian citizen but that marriage has ended. She is now partnered with Pieter van Steenis about whose citizenship there appears to be no formal evidence before the Tribunal but who the Minister’s delegate appears to have determined is not of Australian citizenship.[5] The Minister’s representative at the hearing appeared to confirm such an understanding.

   [5] T Documents at p. 11.

9. The Applicant currently owns property in Australia (in association with her ex-partner), has paid taxes here for some years, owns a dog that is currently being looked after by a neighbour and is on leave without pay from her employment at the University of Sydney. The Applicant states that she intends, at some stage, to return to Australia and the Minister’s delegate accepts that she has a “close and continuing association with Australia” but is not in a current relationship with an Australian citizen spouse or partner.[6]

   [6] Ibid.

10. In the Respondent’s statement of facts, issues and contentions,[7] the Minister has set out a chronology of the proceedings between the Applicant’s initial lodgement of her citizenship by conferral application and the date of the Tribunal hearing. The Tribunal gratefully acknowledges and largely adopts that chronology as follows (footnotes and references omitted):

    [7] Dated 15 January 2020.

    (a)On 25 July 2017, the Applicant lodged an application for citizenship by conferral.

    (b)On 20 February 2018, the Applicant notified the Department that she would be travelling overseas at some point due to a family emergency.

    (c)On 15 March 2018, the Applicant sat and passed the citizenship test.

    (d)On 1 April 2018, the Applicant departed Australia.

    (e)On 19 June 2018, the delegate refused to grant the Applicant citizenship.

    (f)On 19 July 2018, the Applicant lodged an application for review of the delegate’s decision.

    (g)On 3 August 2018, the Applicant lodged an application for an extension of time for the Tribunal to consider her substantive application.

    (h)On 12 September 2018, the Minister consented to the application for an extension of time on the understanding that the Applicant’s intended return date was in November 2018.

    (i)On 19 February 2019, the matter was listed for first case teleconference (the applicant did not appear).

    (j)On 29 May 2019, the Applicant sought to adjourn the proceeding to 6 January 2020, stating:

    After speaking to my employer at The University of Sydney, I can take my post back as of Monday 2nd December 2019 therefore I would be back then, however to allow buffer for moving and the holidays in case I encounter housing/travel difficulty at that time, I would like to request the first working day after the holidays which is…6 January 2020.

    (k)On 28 June 2019, the Tribunal granted the adjournment.

    (l)On 19 July 2019, the Tribunal listed the matter for hearing on 6 January 2020, and directed the Applicant and Minister to file further material by 6 December 2019 and 20 December 2019 respectively.

    (m)On 18 December 2019, the Tribunal, of its own motion, vacated the hearing. It was relisted for 31 January 2020, and the Tribunal directed the Applicant and the Minister to file further material by 6 January 2020 and 17 January 2020 respectively.

11. As a result of the Applicant’s continuing residence offshore it has proven difficult for the Tribunal to arrange for hearings by telephone in order to determine the review in question.

12. A chronology of such recent endeavours by the Tribunal is attached as Appendix 1 to this decision and illustrates clearly that the Applicant was given every opportunity to participate fully in the Tribunal’s proceedings.

13. On the finally scheduled date of hearing, 31 January 2020, the Tribunal sat and endeavoured to call the Applicant on the telephone numbers in The Netherlands which she had provided. Several such attempts were made, none of which was successful. Calls were either redirected to the Applicant’s voicemail or else the recorded response was that the service in question was not available.

14. The Tribunal adjourned its proceedings in an attempt to contact the Applicant by email to advise that it was making every effort to be in touch with her. After an adjournment of one hour the Tribunal sat again and attempted to establish contact. Once again, all such attempts were unsuccessful.

15. After the Tribunal had concluded the hearing the Applicant sent an email to the Tribunal in which she stated that she had been waiting for the Tribunal’s call but had not received any and that her attempts to call back to Australia had also been unsuccessful.[8] The Tribunal accepts that this is a most unsatisfactory situation but believes that it has fulfilled all its obligations to provide both parties with a fair and proper opportunity to present themselves and their cases.

    [8] Applicant’s email to the Tribunal dated 31 January 2020.

16. As a result of the inability to establish a connection with the Applicant, the Tribunal put it to the Minister’s representative that there was a possibility the application may be dismissed under the provisions of section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides:

    (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

    (a) if the person who failed to appear is the applicant–dismiss the application without proceeding to review the decision; or

    (b) in any other case–direct that the person who failed to appear shall cease to be a party to the proceeding.

17. However, the Minister’s representative indicated to the Tribunal that the Minister would prefer the Tribunal to consider proceeding under the provisions of section 40(1)(b) of the AAT Act which states:

    Powers of Tribunal etc.

    (1) For the purpose of reviewing a decision, the Tribunal may:

    (a) take evidence on oath or affirmation;

    (b) proceed in the absence of a party who has had reasonable notice of the proceeding; and

    (c) adjourn the proceeding from time to time.

18. The Minister put it to the Tribunal that as the issue in question was one of very narrow confine, namely, was the Applicant’s continuing residence overseas such that the Minister was obliged under section 24(5) of the Act to refuse her application, it would be appropriate for the Tribunal to consider the evidence before it and make a finding based thereon.

19. The Tribunal accepted that the Minister’s proposal was persuasive and so proceeded upon that basis.

    THE APPLICATION

20. An applicant is free to apply for a grant of citizenship by conferral under section 21of the Act which provides that, in order for an application for citizenship to be approved, the applicant must satisfy all of the criteria which are listed in subsection 21(2) enumerated from (a) to (h).

21. Once an application is made, section 24 of the Act mandates that the Minister must make a decision on any such application. Section 24, itself, imposes some restrictions on the decision-making process of the Minister. In particular, section 24(5) provides:

    Person not present in Australia

    (5) If:

    (a) the person is covered by subsection 21(2), (3) or (4); and

    (aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

    (b) the Minister did not apply subsection 22(9) in relation to the person; and

    (c) the Minister did not apply subsection 22(11) in relation to the person;

    the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

22. The wording of the section is clear: the Minister must not approve citizenship where an applicant is not, at the relevant time, present in Australia.

23. It is on this basis alone that the Minister’s delegate refused the application.[9] The delegate did not give full consideration to all the criteria set out in section 21 and so, even if this application were to be successful, the only course of action open to the Tribunal would be to remit the matter to the Minister for reconsideration by way of determination of the remaining unassessed criteria in that section.

    [9] T Documents at pp. 8-13, see in particular p. 12.

24. The evidence before the Tribunal establishes that the Applicant has been absent from Australia for a continuous period since 1 April 2018. Evidence tendered by the Respondent following the hearing confirmed that the Applicant had not returned to Australia since that date. The Applicant herself had provided contact numbers for the Tribunal in The Netherlands.

25. The Applicant thus clearly fails to satisfy the requirements of the legislation as she was not in Australia at the time of the Minister’s decision-making. That is a simple matter of fact.

26. The Applicant is also not in a position to take advantage of the potentially ameliorating provisions of sections 22(9) and 22(11) of the Act. They provide:

    (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.

    (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 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:

    (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.

27. In the initial refusal decision the Delegate gave extensive consideration to the provisions of section 22(9) before concluding that the section was not applicable to the Applicant.[10] The same reasoning applies in relation to section 22(11).

    [10] T Documents at p. 11.

28. No evidence was put before the Tribunal by the Applicant which would establish that she is in a spousal, de facto or interdependent relationship with an Australian citizen so as to qualify for the Minister’s discretionary consideration of her application on such a basis. The Applicant had ample time to submit any such evidence and was, by direction of the Tribunal, required to do so by 6 January 2020.

29. In the Tribunal’s decision in Barari, a similar set of circumstances was considered. In that case the applicant had successfully completed the citizenship test but then departed for, and remained, overseas at the time her application for citizenship by conferral was determined. On the basis of her absence from Australia at the time of the decision-making her application was refused. When the matter came to the Tribunal for review, it determined:

    [The applicant] was outside Australia when her citizenship application was refused. The fact that she was outside Australia was the reason it was refused. Section 24(5) of the Act provides limited circumstances in which an application may succeed if the applicant is overseas. The circumstances of the applicant do not fall within the limited circumstances provided for in the section. There is no relevant general discretion that permits the provisions of s 24(5) of the Act to be disregarded. As a consequence, her substantive application has no chance of success.[11]

    [11] Barari and Minister for Immigration and Citizenship [2010] AATA 897 at [6].

30. The same conclusion must be reached in this case.

31. Although there is ample evidence that the Applicant is genuine about her desire for Australian citizenship, has a close and continuing association with this country and there is no reason to suspect that she might not otherwise qualify by meeting all the criteria set out in section 21 of the Act, it is nevertheless the case that in order for that citizenship to be approved she must, at the relevant time (the date of the decision on/approval of her application) be present in Australia. Until the Applicant can herself resolve that issue any application, be it this or any further application which she is free to make at any time, cannot succeed.

    DECISION

32. The decision under review is affirmed.

    APPENDIX 1 – CHRONOLOGY OF THE TRIBUNAL’S ENDEAVOURS TO ALLOW APPLICANT TO PARTICIPATE IN HEARING OF 31 JANUARY 2020

Date

Event

18 December 2019

The following documents were emailed to the Applicant:

·      A Direction which vacated the hearing originally listed on 6 January 2020 and re-listed the matter for hearing on 31 January 2020 (the Direction also listed dates for submissions to be made).

·      A Listing Notice informing the Applicant of the date (31 January 2020), time (10:00am) and location of the hearing (83 Clarence Street, Sydney NSW 2000).

19 December 2019

Applicant acknowledged receipt of email dated 18 December 2019.

7 January 2020

Applicant complied with the Direction dated 18 December 2019 by informing the Tribunal that she had no further submissions or evidence. In her email response, she also confirmed that she will be available for the hearing on 31 January 2020 at 10:00am.

28 January 2020

Tribunal attempted to call the Applicant to undertake a pre-hearing check on the phone number supplied by the Applicant to the Tribunal, being +31 6xxx xxxx9, but was redirected to her voicemail.

Applicant emailed Tribunal informing of an additional contact number +31 6xxx xxxx2 on which she could be contacted. The Applicant also indicated in this email that she would be available on both phone numbers for the purpose of attending the hearing.

29 January 2020

Tribunal attempted to call the Applicant to undertake a pre-hearing check on the number +31 6xxx xxxx2 but was redirected to the Applicant’s voicemail. A voice message was left requesting that the Applicant call back the Tribunal.

Tribunal followed up the voice message with an email outlining the purpose of the pre-hearing check and also informed the Applicant of the date and time of the hearing.

The Applicant was also informed that the default position is for hearings to be heard in person and that her request to appear by phone would be put before the Tribunal Member.

Through email correspondence, the Tribunal granted the Applicant leave to appear at the hearing by telephone and also reiterated the date and time of the hearing.

Applicant confirmed receipt of both emails. The Applicant also indicated in her email that due to the time difference, as she was already asleep, she was unable to take the call made by the Tribunal.

31 January 2020

Hearing held. Applicant did not appear:

·      10:00am: Multiple (unsuccessful) attempts were made to contact the Applicant on her two numbers through the Tribunal’s hearing room phone system.

·      During an adjournment of the hearing, the Applicant was emailed informing her that the Tribunal would attempt to contact her again at 11:00am and that in the event she is unavailable to appear at that time, the Tribunal will proceed on the basis that she has made herself unavailable for the hearing. Attempts were also made to contact the Applicant on her two phone numbers through the Tribunal’s regular phone system. These attempts were unsuccessful and voice messages were left at both numbers.

·      11:00am: Multiple (unsuccessful) attempts were again made to contact the Applicant on her two contact numbers.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd]...............................

Associate

Dated: 6 February 2020

Date(s) of hearing:	31 January 2020
Date final submissions received:	31 January 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C O'Sullivan, Australian Government Solicitor