Aw and Minister for Immigration and Citizenship

[2011] AATA 146

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3789

GENERAL ADMINISTRATIVE DIVISION		)
Re		KIN CHRISTINE AW

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date4 March 2011

PlacePerth

Decision The Tribunal affirms the decision under review.

...........[sgd S D Hotop]........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – applicant applied for Australian citizenship by conferral – applicant did not satisfy residence requirement at time of application – application refused – discretion to treat period as one in which applicant present in Australia as permanent resident not applicable – decision under review affirmed

Australian Citizenship Act 2007 (Cth), s 21, s 22 and s 24

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), Sched 3, item 5B

REASONS FOR DECISION

4 March 2011 Deputy President S D Hotop

Introduction

1.      Kin Christine Aw (“the applicant”) was born in Malaysia in September 1957 and is presently a citizen of Singapore.

2.      The applicant entered Australia on 11 December 2002 as the holder of a Class BQ Skilled (Sponsored) Subclass 138 visa and she has held that permanent visa from that date.

3.      On 8 June 2010 the applicant made an application under the Australian Citizenship Act 2007 (Cth) to become an Australian citizen.

4.      By letter dated 10 August 2010 a delegate of the Minister for Immigration and Citizenship (“the respondent”) notified the applicant that her application for Australian citizenship had been refused because she did not meet the statutory residence requirement.

5.      On 3 September 2010 the applicant applied to the Tribunal for review of the delegate’s decision.

The Relevant Legislation

The Australian Citizenship Act 2007 (Cth)

6.      Subdivision B of Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”), which deals with “Citizenship by conferral”, contains the following relevant provisions:

“ 21     Application and eligibility for citizenship

(1)A person may make an application to the Minister to become an Australian citizen.

Note 1:     Subsections (2) to (8) deal with eligibility.

Note 2:Section 46 sets out application requirements (which may include the payment of a fee).

General eligibility

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a)     is aged 18 or over at the time the person made the application; and

(b)is a permanent resident:

(i)at the time the person made the application; and

(ii)at the time of the Minister’s decision on the application; and

(c)     satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and

(d)     understands the nature of an application under subsection (1); and

(e)     possesses a basic knowledge of the English language; and

(f)      has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)     is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h)     is of good character at the time of the Minister’s decision on the application.

…

22Residence requirement

(1)Subject to this section, for the purposes of section 21 a person satisfies the 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.

…

Ministerial discretion – administrative error

…

(5)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 the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

…

Ministerial discretion – person in Australia would suffer significant hardship or disadvantage

(6)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.

…

24Minister’s decision

(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

Note:  The Minister may cancel an approval:  see section 25.

(1A)the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

…”

The Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth)

7.      The Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (“the Transitionals Act”) is described in its long title as:

“ An Act to provide for transitional and consequential matters relating to the enactment of the Australian Citizenship Act 2007, and for other purposes".

8. Part 1 of Schedule 3 contains “provisions relating to the enactment of the Australian Citizenship Act 2007”. Item 5B of Schedule 3 is as follows:

“5B     Citizenship by conferral – persons who are permanent residents at commencement

(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.

(2)Paragraph (1)(b) does not apply if the person:

(a)was born in Australia; or

(b)was an Australian citizen at any time before the person made the application.

(3)  For the purposes of subsection (1), the Minister must not take into account any period during which the person has been:

(a)confined in a prison; or

(b)confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

(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).”

The phrase “the old Act” in item 5B refers to the Australian Citizenship Act 1948 (Cth), and the phrase “the new Act” refers to the Act: see item 1 of Schedule 3.

The Applicant’s Case

9.      The applicant’s case may be summarised as follows:

·     she visited an office of the Department of Immigration and Citizenship (“the Department”) on 6 April 2010 and was informed by an officer that she was eligible to apply for Australian citizenship under the statutory transitional provisions provided that she did so before 1 July 2010;

·     on 18 April 2010 her husband (a citizen of Singapore and the holder of a permanent visa under the Migration Act 1958 (Cth)), who was then in Singapore, suffered a serious eye injury and it was necessary for her to travel to Singapore to assist and support him;

·     she departed Australia for Singapore on 23 April 2010 and stayed with her husband while he underwent various medical treatments for his injured eye, and she returned to Australia on 26 May 2010;

·     as at 23 April 2010 she satisfied the relevant residence requirement for Australian citizenship but she decided not to submit her application for Australian citizenship at that time because she was about to depart Australia and she believed that she had until 30 June 2010 to submit her application;

·     she submitted her application for Australian citizenship to the Department on 8 June 2010 and was subsequently informed by the Department that she “did not meet the [residence] requirement of one (1) year in the two (2) years at the time of application”;

·     although as at 8 June 2010 she had spent less than one year – specifically, 361 days – in the 2 years immediately preceding that date in Australia, as at 23 April 2010 (and in the period from 27 March 2010 to 23 April 2010) she clearly met the residence requirement of 1 year in the immediately preceding 2-year period;

·     in the “compelling circumstances” of her case the Tribunal should exercise discretion “compassionately” and set aside the decision refusing her application for Australian citizenship.

Consideration

10.     Pursuant to s 24(1A) of the Act, the Tribunal “must not approve” the applicant becoming an Australian citizen unless she is eligible to become an Australian citizen under (relevantly) s 21(2).

11.     Section 21(2) of the Act sets out, in paras (a)–(h), the general eligibility criteria for Australian citizenship.  Those requirements, all of which must be fulfilled, include the “residence requirement” set out in s 22.

12. Item 5B of Schedule 3 to the Transitionals Act contains special provisions in respect of the “residence requirement” which are applicable to a person who is a permanent resident immediately before the date of commencement of the relevant provisions of the Act, namely, 1 July 2007, and who makes an application for citizenship under s 21(1) of the Act within the period of 3 years commencing on that date. It is common ground that item 5B applies in the circumstances of this case.

13.     Pursuant to subitem (2) of item 5B, the “residence requirement”, which must be satisfied by the applicant for the purpose of s 21(2)(c) of the Act, is as follows:

“ … 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.”

It is common ground that the applicant satisfied para (b) of that requirement, but not para (a).  More specifically, it is common ground that on 8 June 2010, when the applicant made her application for Australian citizenship, she had been present in Australia as a permanent resident for a total period of 361 days in the period of 2 years before that date.

14. Subitem (2) of item 5B of Schedule 3 to the Transitionals Act, however, provides that subss (5) and (6) of s 22 of the Act (set out in paragraph 6 above), which confer discretionary power which may be exercised in respect of the “residence requirement”, have effect for the purpose of that subitem. For the following reasons, however, neither of those discretionary provisions can be applied in this case so as to treat any part of the period from 23 April 2010 to 26 May 2010, when the applicant was in Singapore, as a period when she was present in Australia as a permanent resident, for the purpose of satisfying the “residence requirement”.

15.     Subsection (5) of s 22 of the Act only applies in circumstances where, “because of on administrative error”, a person who was present in Australia during a particular period “was not a permanent resident during that period”.  That subsection, however, is not applicable in this case because, at all material times when the applicant was present in Australia, she was present as a permanent resident, and, in any event, there is no evidence of “administrative error” in this case.  That subsection, furthermore, does not apply in respect of a period in which the person was outside Australia.

16.     Subsection (6) of s 22 of the Act only applies in circumstances where a person was present in Australia during a particular period “except as a permanent resident or an unlawful non-citizen”.  That subsection is likewise not applicable in this case because, at all material times when the applicant was present in Australia, she was present as a permanent resident.  That subsection, like subs (5), does not apply in respect of a period in which the person was outside Australia.

17.     The Tribunal concludes, therefore, that at the time when the applicant made her application for Australian citizenship under s 21(1) of the Act on 8 June 2010, she did not satisfy the relevant “residence requirement”, as required by para (c) of s 21(2) of the Act, and she was, accordingly, not eligible to become an Australian citizen under s 21(2) of the Act.

18.     It is common ground that subss (3)–(8) of s 21 of the Act are inapplicable in this case.

19.     It follows that, in accordance with s 24(1A) of the Act, the applicant’s application for Australian citizenship, made on 8 June 2010, must not be approved.

Decision

20.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  23 February 2011
Date of Decision  4 March 2011
Representative of the Applicant        Self-represented
Representative of the Respondent    Mr D Estrin
Solicitor for the Respondent              Australian Government Solicitor