Bae and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1865
•25 June 2018
Bae and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1865 (25 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3571
Re:Sung Eun Bae
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:25 June 2018
Place:Sydney
The decision of the delegate of the Minister dated 31 May 2017 to refuse the Applicant’s application for Australian citizenship is affirmed.
.............................[sgd]...........................................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP - application for conferral of Australian citizenship – refusal of citizenship application on grounds Applicant does not satisfy the general residence requirement under s 22(1) of the Australian Citizenship Act – meaning of “absent from Australia” considered - implies an intention to return to, and a continuing connection with, Australia – Applicant was not “absent from Australia” for the relevant period – decision affirmed
LEGISLATION
Australian Citizenship Act 2007, ss 21, 22, 22A, 22B, 23
CASES
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Neoh Weng Fei and Minister for Immigration and Border Protection [2016] AATA 624
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11
Department of Immigration and Border Protection, Australian Citizenship Instructions, Chapter 10
REASONS FOR DECISION
Senior Member Linda Kirk
25 June 2018
BACKGROUND
Ms Sung Eun Bae (‘the Applicant’) is a citizen of the Republic of Korea who entered Australia on a series of Visitor visas between 20 May 2001 and 20 February 2012. She currently holds a Subclass 143 (Contributory Parent (Permanent)) visa granted offshore on 6 June 2013. She first entered Australia on this visa on 17 June 2013.
On 27 January 2017, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
The application was refused by a delegate of the Minister for Immigration and Border Protection (‘the Respondent’) on 31 May 2017 for reason that the Applicant did not satisfy the general residence requirement in s 22(1)(a) of the Act.
On 16 June 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the refusal decision.
The matter was heard in Sydney on 6 March 2018. The Applicant attended the hearing in person and was represented by her migration agent and assisted by a Korean interpreter.
LEGISLATIVE FRAMEWORK
Citizenship Act
The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. The provisions relevant to the determination of this application are as follows:
(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 general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; …
The general residence requirement is set out in section 22 of the Act. The relevant provisions are as follows:
22 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.
Pursuant to subsections 22(1A) and 22(1B) of the Act, a person may have some limited periods of overseas absences without impacting on their ability to satisfy the general residence requirement. These provisions, if applicable, operate as deeming provisions to allow an applicant to satisfy the “four year” and “12 month” requirements in s 22(1)(a) and (c) respectively:
(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.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Citizenship policy
The terms “present in Australia” and “absent from Australia” are not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which from 1 June 2016 replaces the policy guidance previously provided in Chapter 10 of the Australian Citizenship Instructions (ACIs), which was last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions. In HSXY and Minister for Immigration and Border Protection [2016] AATA 560, Senior Member Cotter said in relation to the status of the ACIs at [12]:
[N]otwithstanding the introduction of the ACP, the ACIs remain in force and now detail the operational instructions for decision makers; the ACP and the ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.
In this case, there is no inconsistency between the ACIs and the Citizenship Policy in relation to policy guidance relevant to this matter.
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
The Citizenship Policy relevantly provides (page 91, emphasis added) that a person is “present in Australia” if he or she is physically present in Australia:
Presence in Australia for citizenship purposes is not determined by the Migration Act. A person is present in Australia for citizenship purposes if they are physically present in Australia, as defined in s3 of the Act
For the purposes of s 22(1A) the Citizenship Policy provides (page 91, emphasis added):
Section 22(1A) allows for absences from Australia of up to 12 months within the four years immediately before applying for citizenship. A period of time cannot be counted as an absence from Australia unless the person has already been present in Australia. This means that a person does not meet the residence requirement if they have three years continuous presence in Australia (with the last 12 months as a permanent resident) unless they were previously in Australia.
It further provides at page 92 (emphasis added):
If a person’s first arrival in Australia is less than four years before they apply for citizenship, they cannot meet the general residence requirement, even if they spend three years continuously in Australia.
The start date of the four-year lawful residence period is usually the date four years immediately before they lodge their application. However, if the person has not made their first entry into Australia, they need to wait at least four years after their first entry to meet this requirement.
Where a person was outside Australia on the day four years immediately before applying, but had previously been in Australia as the holder of a permanent visa, they may still use the day four years immediately before applying as a start date (for the purposes of being eligible to satisfy the four year lawful requirement), providing that on that day they held a permanent visa.
If these conditions are met, then the person may use the full four year period immediately before applying towards meeting the general residence requirement.
The ACIs provide additional guidance on the calculation of the four-year lawful residence period (at para 5.15.4, emphasis added):
Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4-years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa).
….
For the purposes of the residence calculator, the lawful residence date will be the date that the ‘in effect visa’ that was held ‘on the day 4 years immediately prior to the day of application’ came into effect.
ISSUES FOR DETERMINATION
There is no dispute that the Applicant meets the requirements in subsections 21(2)(a) and (b) of the Act as she was aged over 18 years at the time she made the application, and was a permanent resident at the time she applied for citizenship and at the date of decision by the Minister’s delegate. It is also agreed that she meets the “12 month” general residence requirement in s 22(1)(c).
The issues for determination by the Tribunal are whether the Applicant satisfies the “four year” general residence requirement in s 22(1)(a) of the Act and specifically whether the deeming provision in s 22(1A) of the Act applies.
The Tribunal must determine whether the Applicant was:
·present in Australia for the period of four years immediately before she made her application for citizenship, and (if she was not);
·absent from Australia for no more than 12 months within the four years immediately before applying for citizenship.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant first entered Australia on a Subclass 976 (Electronic Travel Authority (Visitor)) visa on 20 May 2001. She subsequently travelled to Australia on a regular basis on a visitor visa between this date and 20 February 2012. The Applicant told the Tribunal that her frequent visits to Australia were for the purpose of spending time with and supporting her two children, both of whom were studying in Australia. During these visits, she remained in Australia for periods ranging from a few weeks to several months. At the end of her visits she returned home to South Korea where she and her husband had a permanent residence.
On 3 January 2012 the Applicant lodged an application for a Subclass 143 (Contributory Parent (Permanent)) visa which was granted while she was offshore on 6 June 2013.
ICSE Movement Records of the Department of Immigration and Border Protection (DIBP) indicate that the Applicant first entered Australia as the holder of this permanent visa on 17 June 2013. The period between her last departure from Australia on 20 February 2012 and her entry to Australia as a permanent visa holder on 17 June 2013 was 483 days [Tribunal documents, p 39].
DIBP ICSE Movement Records show that the Applicant was not present in Australia for 195 days during the period from 17 June 2013 and the date of her citizenship application on 27 January 2017 [T documents pp 38-42). Between 27 January 2013 (being the day four years immediately before her citizenship application) and her arrival in Australia as a permanent visa holder on 17 June 2013 the Applicant was not present in Australia for 141 days. Accordingly, in the four years before her citizenship application, the Applicant was not present in Australia for 336 days.
The Applicant applied for Australian citizenship on 6 June 2015 but this application was invalid. Her migration agent attempted to apply for citizenship on her behalf via the online application system on 9 December 2016 however the Applicant was ineligible for citizenship on this date. On the same day, her migration agent sent an email to DIBP requesting advice as to when the Applicant would be eligible to apply for citizenship. On 17 January 2017, the Applicant’s agent received an email from the Parramatta branch of DIBP advising her that the Applicant was eligible to apply for citizenship from 29 December 2016. The Applicant lodged her citizenship application on 27 January 2017.
According to the Applicant, she lived in Australia for 1770 days (four years and eight months) prior to lodging her citizenship application, being the total number of days she stayed in Australia as either a temporary or permanent visa holder from 20 May 2001 to the application date, and therefore she meets the requirements of s 22(1)(a).
The Respondent argues that the Applicant does not meet the general residence requirement in s 22(1)(a) because she was not present in Australia for the period of four years immediately before the day she made her application and she cannot benefit from the deeming provision in s 22(1A) because she was not absent from Australia for a period not exceeding 12 months.
The Respondent accepts that for the period that the Applicant was offshore as the holder of a permanent visa (since 17 June 2013) to the date of the citizenship application (195 days) the Applicant was ‘absent’ from Australia.
However, it argues that the 141 days that she was not present in Australia between 27 January 2013 (being the day four years before the citizenship application) and 17 June 2013 (being the date of the Applicant’s arrival to Australia as a permanent resident) the Applicant could not have said to have been “absent” from Australia. The Respondent argues that this is because, prior to 17 June 2013, the Applicant had only been in Australia as the holder of various visitor visas and did not have any residence rights in Australia. Her visits were short visits and she did not establish any continuing connection with Australia. Accordingly, the Respondent submits that the deeming provision in s 22(1A) of the Act does not apply to the period of 27 January 2013 and 17 June 2013, when the Applicant was not in Australia, as during this time she cannot be said to have been “absent from Australia”.
CONSIDERATION
The Applicant has applied for citizenship on the basis that she meets the general eligibility criteria in subsection 21(2) of the Act. There is no evidence that she would satisfy the criteria for the other categories of eligibility in subsections 21(3)-(8).
General residence requirement
In order to be eligible for the conferral of Australian citizenship, the Applicant must have been present in Australia for the period of four years (1461 days) immediately before the date of her application, unless she can benefit from the deeming provision in s 22(1A).
The period between the Applicant’s entry to Australia as a permanent resident (17 June 2013) to the date of her citizenship application (27 January 2017) is 1320 days. She was absent from Australia for 195 days from 17 June 2013 to 27 January 2017 when she was offshore as the holder of a permanent visa. If she can benefit from the deeming provision in s 22(1A) for the 141 days she was not present in Australia from 27 January 2013 to 17 June 2013 then she will satisfy the four year residence requirement in s 22(1)(a). In order to do so she must be able to demonstrate that for this period she was “absent from Australia”.
Meaning of “absent from Australia”
The Tribunal has recognised that the phrase “absent from Australia” in subsections 22(1A) and 22(1B) is to be distinguished from the binary language of “present” and “not present” contained in s 22(1) of the Act which refers to a person being in a geographical location.[1]
[1] Lo and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 579 at [25]; Neoh Weng Fei and Minister for Immigration and Border Protection [2016] AATA 624 at [52]-[53].
The meaning of the phrase “absent from Australia” was recently considered by the Tribunal in Neoh Weng Fei and Minister for Immigration and Border Protection.[2] Having considered the dictionary definition of the word “absent”, the Tribunal found:
It is quite clear that ‘absence’ from a place has a temporal or periodic character in reference to prior presence in the particular place. Thus, properly understood, ‘absent from Australia’ means more than simply not present in Australia.[3]
[2] [2016] AATA 624.
[3] Neoh Weng Fei at [51].
The Tribunal further stated that the word “absent” for the purposes of s 22(1A) “implies an intention to return to and a continuing connection with the place from which the person is absent.”[4]
[4] Neoh Weng Fei at [55].
It identified three characteristics of “absence” which must be established for the deeming provision to apply:
[56]Thus, for the purposes of s 22(1) and (1A), for a period in which a person is ‘absent from Australia’ to be treated as one in which he or she is taken to be present in Australia, the absence or absences must:
(a) be of less than 12 months’ duration (in total) within the 4-year period immediately before the person applied for conferral of Australian citizenship; and
(b) follow a period in which the person was present in Australia;
(c) have a temporary character during which the person intended to return to and maintained a continuing connection with Australia.
The Tribunal added that these considerations were “matters of fact and degree which must be assessed in the particular circumstances of each case.”[5]
[5] Neoh Weng Fei at [57].
In determining whether a period in which a person was not present in Australia was a period in which they were “absent from Australia”, relevant considerations include the person’s actions, intentions and connections to Australia.[6] In particular, the Tribunal found that the question involved consideration of two elements: firstly, whether the time spent outside Australia was expected to be finite, with an end point able to be identified or an arrangement made; and secondly, whether the person had a clear intention to return to Australia.[7]
[6] Neoh Weng Fei at [78].
[7] Neoh Weng Fei at [81].
Accordingly, the Applicant is required to satisfy the Tribunal that during the periods when she was not present in Australia, she was “absent” from Australia, as outlined in Neoh Weng Fei.
Was the Applicant “absent from Australia” during the relevant period?
Based on the evidence before it, the Tribunal finds that during the period 27 January 2013 and 17 June 2013 the Applicant was not “absent from Australia” as outlined in Neoh Weng Fei.
First, whereas the relevant period is 145 days and therefore meets characteristic (a) above, it does not meet characteristic (b) namely that it followed a period in which the Applicant was present in Australia. Prior to 27 January 2013, the Applicant had resided in her home in South Korea for 342 days since her last return from Australia on 20 February 2012.
Secondly, the period of absence does not meet characteristic (c) in that it cannot be said it was of a temporary character during which she intended to return to and maintain a continuing connection with Australia. During this period, the time spent by the Applicant outside Australia could not be said to have been “finite, with an end point able to be identified or an arrangement made.” She was waiting on a decision on her application for a permanent visa, but the date that decision would be made was unknown, and she had no other visa or entitlement to enter Australia. However, as her children were studying in Australia at this time, the Applicant would have intended to return to Australia in future as the holder of either a permanent visa (if granted) or another temporary visa. But, during this period the Applicant did not maintain a continuing connection with Australia, apart from her children who were here undertaking their studies. There is no evidence that the Applicant held property or other assets or had a residence or home in Australia or that she had established any business, social or other ties that would indicate a “continuing connection”.
The finding that the Applicant was not “absent from Australia” during this period is consistent with the Citizenship Policy outlined above. It recognises that “[a] period of time cannot be counted as an absence from Australia unless the person has already been present in Australia.” In relation to the four-year lawful residence period, the policy provides that if at the date four years prior to their citizenship application “the person has not made their first entry into Australia, they need to wait at least four years after their first entry to meet this requirement”. Applied to the Applicant’s circumstances, the relevant date for the calculation of the four-year lawful residence period is 17 June 2013, being the date she first entered Australia as the holder of the permanent visa granted offshore which came into effect on this date, and her eligibility for citizenship was four years from this date, namely 17 June 2017.
It is also consistent with the ACIs which recognise that where the person was outside Australia on the day four years immediately before their citizenship application, they may use this date as the start date for calculating the lawful residence period, “providing that on that day they held a visa which was in effect on that day”. On 27 January 2013 the Applicant was outside Australia, did not hold a visa and had no lawful entitlement to enter Australia. Her permanent residency visa was granted on 6 June 2013 and this came into effect on 17 June 2013 when she first entered Australia as a holder of this visa. Accordingly, the start date for calculating the lawful residence period was 17 June 2013.
In summary, the Applicant cannot include the 141 days she was not present in Australia between 27 January 2013 and 17 June 2013 towards the four year residence period required by s 22(1)(a) and she cannot benefit from the deeming provision in s.22(1A). Had the Applicant lodged her application for citizenship on or after 17 June 2013 she would have met the general residence requirement with the benefit of the deeming provision.
Finally, there is no evidence to support a finding that the Applicant meets the special residence requirements in s 22A and s 22B or the defence service requirement in s 23 of the Act.
CONCLUSION
The Tribunal is not satisfied that the Applicant meets the general residence requirement in s 22(1) of the Act and she is therefore ineligible for the conferral of Australian citizenship as she does not satisfy s 21(2)(c) of the Act.
DECISION
The decision of the delegate of the Minister dated 31 May 2017 to refuse the Applicant’s application for Australian citizenship is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
...............................[sgd].........................................
Associate
Dated: 25 June 2018
Date of hearing: 6 March 2018 Advocate for the Applicant: Ms H Fang, Australia Grace Home Education & Immigration Pty Ltd
Solicitor for the Respondent: Ms K Dunlop, Sparke Helmore
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