Arman Uddoula and Minister for Immigration and Citizenship
[2012] AATA 445
•23 March 2012
[2012] AATA 445
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1116
Re
Arman Uddoula
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 23 March 2012 Date of written reasons 16 July 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
MIGRATION - application for Australian citizenship - person not present in Australia - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) - ss 21(2), 22(9), 22(11), 22A, 22B, 24(5)
WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT
Senior Member A K Britton
16 July 2012
I will give brief reasons for my decision.
The applicant, Mr Arman Uddoula is not in attendance today. I am satisfied that Mr Uddoula was given notice of today’s proceedings and has, at some earlier point, advised that he would be returning to Australia shortly before this application was to be heard.
As I mentioned earlier this morning, a file note taken by my Associate indicates that yesterday, attempts were made to contact Mr Uddoula by phone and by email without success. In addition an attempt was made this morning to contact Mr Uddoula by phone and the line was unable to be connected. It is now just past quarter past 10, 15 minutes after the scheduled hearing time, and in my view, given the difficulties in contacting Mr Uddoula to date, and given the matters that fall to be determined, it is appropriate to continue to consider the application, notwithstanding Mr Uddoula’s absence.
The matters raised by this application are relatively straightforward. Mr Uddoula made an application for Australian citizenship on 29 March 2010. By letter dated 15 February 2011, Mr Uddoula was notified by a delegate of the Minister for Immigration and Citizenship that his application for citizenship had been refused, on the ground that he was not present in Australia. Section 24(5) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that the Minister must not approve a person becoming an Australian citizen at a time when the person is not present in Australia. I will return to consider section 24(5), but there is no dispute that Mr Uddoula was not present in Australia when he applied to become an Australian citizen and the Minister refused that application. That is confirmed by the Department of Immigration’s records which show Mr Uddoula’s movements in and out of Australia at the relevant period, handed up today (Exhibit A1).
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.
In my view, all of the above criteria are satisfied. First, Mr Uddoula is covered by section 21(2) of the Act (paragraph (a)).
Second, he does not satisfy the special residence requirement referred to in sections 22A or 22B of the Act (paragraph (aa)).
Section 22A deals with:
… persons engaged in activities that are of benefit to Australia.
Section 22B deals with:
… persons engaged in particular kinds of work requiring regular travel outside Australia.
There is no evidence that either of those provisions apply and nor has this been asserted.
Third, section 22(9) has no application (paragraph b). It provides:
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 that the person had a close and continuing association with Australia during that period.
Section 22(9) gives the decision maker discretion to treat a period where the person is not present in Australia, as a period where the person is present in Australia, where the person is the spouse, de facto partner, surviving spouse or de facto partner of an Australian citizen. That does not apply and again, this that been asserted. Paragraph (c) relates to the application of s 22(11) of the Act.
Fourth, section 22(11) which is in similar terms to s 22(9) and gives the decision-maker a discretionary power to treat a period where the person is not present in Australia, as a period where the person is present in Australia, where the person is in an “interdependent relationship” with an Australian citizen, has no application.
Mr Uddoula satisfies the four pre-conditions to s 24(5) of the Act and therefore, the Tribunal, acting as substitute decision maker must not approve Mr Uddoula becoming an Australian citizen. I am satisfied that Mr Uddoula is not present in Australia as at the time of this decision. Notwithstanding that the relevant date when the Minister’s delegate made the reviewable decision (15 February 2011) is different to the date of this decision — that is, today’s date — the same facts apply — Mr Uddoula is not present in Australia and satisfies all the criteria listed in s 24(5). For these reasons, I have decided to affirm the decision under review.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of ................................[sgd]........................................
Associate to Senior Member A K Britton
Dated 16 July 2012
Date(s) of hearing 23 March 2012 Applicant In person Solicitors for the Respondent Ms H Dejean, Australian Government Solicitor
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