Anand Kumar and Minister for Immigration and Border Protection
[2014] AATA 145
[2014] AATA 145
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5483
Re
Anand Kumar
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin Q.C, Deputy President
Date 14 March 2014 Place Sydney The decision under review is set aside. In substitution, the decision is made that the requirements of s 22(1A) are satisfied. The matter is remitted to the Respondent for determination of the remaining requirements under the Act.
................................[SGD]........................................
The Hon. Brian Tamberlin Q.C, Deputy President
CATCHWORDS
MIGRATION AND CITIZENSHIP - Application for Australian Citizenship - Whether Applicant unlawful non-citizen - Migration Zone - Applicant held valid visas while within Australia - Purposive approach to interpreting legislation – Decision under review set aside – Remitted for reconsideration
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Explanatory Memorandum to the Australian Citizenship Bill 2005
REASONS FOR DECISION
The Hon. Brian Tamberlin Q.C, Deputy President
14 March 2014
By letter dated 24 October 2013, Mr Kumar was notified that his application for Australian citizenship had been refused under the Australian Citizenship Act 2007 (Cth) (‘the Act’), because he did not satisfy the general residence requirements of the Act, under s 22, at the time when he made his application.
Section 22 of the Act, relating to general residence requirements, provides that applicants for Australian citizenship must immediately before the application be present in Australia for four years, including 12 months as a permanent resident, and must not have been an unlawful non-citizen at any time in this period. It also mandates that applicants must not have been absent from Australia for more than 12 months in those four years, and no more than 90 days in the 12 months immediately before making their application.
The letter notifying the decision records that Mr Kumar was outside Australia from 4 May 2007 to 20 July 2010 - and part of this period outside Australia fell into the residence requirement of four years immediately before the day when the application was made. The application was made for citizenship by Mr Kumar on 2 August 2013. As at the date four years immediately before making the application, namely the 2 August 2009, Mr Kumar is said to have been outside Australia, and during the period of absence he did not have any authority to enter and remain in Australia. His Permanent visa Class BQ138 ceased to operate on 11 June 2009, and he was not granted another visa (BB155) until 6 May 2010, which was by way of an Offshore Grant.
The letter of refusal stated:
At the time you applied for Australian citizenship you are taken to have been present in Australia for the following periods:
- less than 4 years immediately before the day you made the application – not meeting the requirement at paragraph 22(1)(a) of the Act;
- no time as an unlawful non-citizen during that 4 year period - meeting the requirement at paragraph 22(1)(b) of the Act;
- 12 months as a permanent resident immediately before you made the application meeting the requirement at paragraph 22(1)(c) of the Act;
ISSUE
The only issue before me on this application is whether Mr Kumar as at 2 August 2013 satisfied the general residence requirements in s 22 of the Act.
BACKGROUND
Mr Kumar is a male citizen of Fiji, who was born on 12 April 1970. He is currently 43 years old. He first arrived in Australia as the holder of a Permanent visa on 21 June 2004. He departed Australia on 4 May 2007 and that visa ceased to operate on 11 June 2009. His present visa was Granted offshore on 6 May 2010, and he returned to Australia on 20 July 2010. The application for Australian citizenship, together with supporting documents, was lodged with the Department on 2 August 2013. On 25 August 2013 the Applicant lodged an application for review of the delegate’s decision to refuse his application.
CONTENTIONS FOR THE RESPONDENT
The relevant requirements of s 22 are as follows:
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.
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.
The respondent’s first contention, in effect, contrary to the reasons referred to in the letter of refusal, is that in the four year period he was absent from Australia without any visa in force, Mr Kumar was an “unlawful non-citizen”, because under s 22(1A) he is deemed for the purposes of paragraph (1)(a) of section 22 to have been “present in Australia” during his period of absence, without a visa.
Alternatively, the Minister contends that s 22(1A) does not apply where the applicant does not during the absence have a visa that is in effect.
Under section 3 of the Act the expression “unlawful non-citizen” has the same meaning as in the Migration Act 1958 (Cth). Under s 14 of the Migration Act an unlawful non-citizen is defined as ‘a non-citizen in the migration zone, who is not a lawful non-citizen. Under s 5 of the Migration Act the expression ‘migration zone’ is defined as ‘the area consisting of the States, the Territories, Australian resource installations and Australian sea installations’. It is common ground that during the periods of his absence, in the four year period, Mr Kumar was not in the migration zone.
Mr Kumar submits that at all times when he was in Australia in the relevant period he was lawfully present, because when in Australia he held a lawful, valid effective visa entitling him to be in Australia. It was only during part of his period of absence from Australia that he ceased to hold a valid visa due to expiry of his visa and before getting a new visa. He therefore says that at no time when he was present in the migration zone was he without a valid and effective visa, and therefore his status cannot be characterised as that of an unlawful non-citizen.
The Minister contends that in interpreting requirements of s 22 a purposive approach should be taken, and that on such an approach, Mr Kumar should be characterised as an unlawful non-citizen. The Minister refers to extrinsic materials comprising an Explanatory Memorandum in relation to the Australian Citizenship Bill 2005, and to two second reading speeches which he contends support the conclusion that the requirements for four years residence are designed to ensure that applications for citizenship have spent sufficient time living in Australia to become familiar with the Australian way of life, and to get a sense of what it means to be Australian, and of the commitment they need to make to become an Australian citizen.
I do not accept the primary submission advanced by the Minister that during the vacation period, Mr Kumar was at some time at least an unlawful non-citizen. At all relevant times while he was in the migration zone, Mr Kumar held a valid visa entitling him to be here. I do not consider that s 22(1A) can be applied in relation to s 22(1)(b) to produce the result that Mr Kumar is somehow deemed to be present in Australia, and therefore, was an unlawful non-citizen because during part of that period he did not hold an effective, valid visa.
It is in my view quite clear that s 22(1A) is directed specifically and solely to the requirement in s 22(1)(a), and does not operate to vary or affect in anyway the requirements of s 22(1)(b) or (c), or vary the definition of unlawful non-citizen in the Migration Act. To contend otherwise is to give no effect to the words “for the purposes of paragraph (1a)(a)”. It is a very specific provision in terms and it is designed to produce a beneficial outcome in favour of an applicant. It is not in my view open to apply this deeming provision to create a theoretical deemed presence in Australia, to produce the consequence that Mr Kumar was an unlawful non-citizen. Such an interpretation produces an artificial and odd outcome. For these reasons, I do not accept the primary submission advanced by the Respondent that he was an unlawful non-citizen at any time in the four year period.
A secondary submission was advanced to the effect that a person can only satisfy the four year period requirement of s 22(1)(a) if at all times the person was the holder of a valid effective visa, and as Mr Kumar does not satisfy that requirement he is not eligible for a grant of citizenship. There is no basis for this submission in the language of the Act.
The interpretation advanced for the Minister requires the insertion of additional language for which there is no foundation. I do not accept the further submission by the Respondent.
CONCLUSIONS
For the above reasons I decide that Mr Kumar does satisfy the general residence requirement.
I set aside the decision of the delegate to substitute a decision that the requirements of s22(1A) are satisfied, and I direct that the matter be remitted to the Respondent for determination of the remaining requirements under the Act.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin Q.C, Deputy President
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Associate
Dated 14 March 2014
Date of hearing 10 February 2014 Counsel for the Respondent Mr J Smith Solicitors for the Respondent Australian Government Solicitor
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