ANDRE DU TOIT and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 301

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6101

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDRE DU TOIT

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal J. W. Constance, Senior Member

Date26 March 2009

PlaceCanberra

Decision The reviewable decision made 19 November 2008 is affirmed.

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

J. W. Constance, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for citizenship – Applicant not present in Australia as a permanent resident for prescribed period – hardship discretion does not arise – spouse discretion does not arise – decision under review affirmed

Australian Citizenship Act 2007- Sections 16, 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 – Schedule 3, Item 5B

REASONS FOR DECISION

26 March 2009 J. W. Constance, Senior Member            

INTRODUCTION

1.      Mr Du Toit has applied to the Tribunal to review the decision of the Minister to refuse his application for Australian citizenship made on 11 June 2008. The reviewable decision refusing the application was made on 19 November 2008.  For the reasons which follow the decision of the Minister will be affirmed. 

FACTS

2. The following facts have been agreed between the parties. On the basis of the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975[1] I am satisfied that this agreement is appropriate.

[1] Ex. T1.

Ø30 June 2003 - Mr Du Toit, a South African citizen, arrived in Australia on a Tourist Visa (Subclass 676).

Ø13 July 2003 – Mr Du Toit departed Australia.

Ø8 March 2004 – Mr Du Toit re-entered Australia on a Tourist visa.

Ø19 April 2004 - Mr Du Toit left Australia.

Ø11 April 2005 - Mr Du Toit arrived in Australia on a Spouse (Provisional) (Subclass 309) visa.

Ø20 April 2005 - Mr Du Toit left Australia.

Ø16 March 2007 – Mr Du Toit was granted a Spouse (Migrant) (Subclass 100) visa.

Ø19 June 2007 Mr Du Toit entered Australia on that visa and became a permanent resident.

ØOn 11 June 2008 Mr Du Toit applied for Australian citizenship. His application was refused on 19 June 2008 on the basis that he failed to meet the residence requirements in s 22 of the Australian Citizenship (Transitionals and Consequentials) Act 2007.

RELEVANT LEGISLATION

3.      Section 16 of the Australian Citizenship Act 2007 provides for a person to make an application to the Minister to become an Australian citizen.  One of the requirements for an application to be successful is that the applicant meets certain residency requirements set out in the Act.

4. In Mr Du Toit's case these requirements are established by s 21 of the Act and Item 5B of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.

5.      Item 5B relevantly provides:

(1)       This item applies if:

(a)a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and

(b)the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.

(2)In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)a total period of at least 2 years in the period of 5 years before that day.

…

(3)In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(5), (6) and (11) of the new Act have effect as if the reference in those subsections to “paragraph (1)(c)” were a reference to “subsection (1)” (as applied by subitem (2) of this item).

6.      Subsection 22(6) of the Australian Citizenship Act 2007 provides:

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 permanent 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.

7.      Subsection 22(9) of the Act provides:

If the person is the spouse, widow or widower 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 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.

ISSUE FOR DETERMINATION

8.      The issue for determination is whether Mr Du Toit meets the residence requirement of the Act such as would entitle him to have his application for citizenship approved.

MR DU TOIT'S ARGUMENT

9.      Although given the opportunity to do so, Mr Du Toit did not address the question of whether either of the discretions should be exercised in his favour.  In fact, Mr Du Toit said that the reason he applied to the Tribunal was not about the law which applied, but to give himself the opportunity to explain his frustration with the way his application for citizenship had been dealt with.  This he proceeded to do.

REASONING

10. On the basis of the facts agreed, during the period of 2 years before the day he applied for citizenship Mr Du Toit was present in Australia for a period of 357 days (i.e. from 19 June 2007 to 11 June 2008). Consequently, he does not meet the requirement of subitem 5B(2) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 that he had been present in Australia as a permanent resident for a total period of at least one year in the period of two years before he made his application.

11. As Mr Du Toit was not present in Australia on any of the days prior to 19 June 2007 and within the 1 year prior to his application, he does not satisfy the requirement of s 22(6)(a) of the Australian Citizenship Act 2007.  For this reason the circumstances in which this discretion could be exercised do not arise.

12. Mr Du Toit has also failed to establish the circumstances for the exercise of the discretion given by s 22(9). He was not a permanent resident during the period prior to 19 June 2007 and within the 1 year prior to his application and therefore he does not meet the requirement of s 22(9)(c) of the Act.

DECISION

13.     The reviewable decision made 19 November 2008 is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member.

Signed:         ......................[sgd]..........................................................
  T. Aviram, Associate

Date of Hearing  26 March 2009
Date of Decision  26 March 2009
Written Reasons Requested     6 April 2009
Written Reasons Delivered      30 April 2009
Applicant self-represented        
Counsel for the Respondent    Mr T. Etueuati, Clayton Utz