Colley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 640

Colley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 640 (26 March 2021)

Division:GENERAL DIVISION

File Number:          2020/5407

Re:Mary Colley

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:26 March 2021

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – applicant’s Australian citizenship application refused – applicant did not satisfy residence requirements under paragraph 21(2)(c) and general residence requirements under paragraphs 22(1)(a) and 22(1)(c) of the Australian Citizenship Act 2007 – various provisions of Australian Citizenship Act 2007 considered – general eligibility for citizenship considered – applicant found to satisfy requirements under paragraphs 21(2)(a) and 21(2)(b) –  general residence requirements considered – applicant’s absence from Australia, permanent residency and visa history considered – applicant found to not satisfy subsection 22(1) and subsections 22(1A) and 22(1B) found not applicable – discretion under subsection 22(9) considered – applicant found to not satisfy paragraph 22(9)(c) – other discretions considered under section 22 – none found to be applicable - special residence requirements considered – applicant found to not satisfy sections 22A and 22B - defence service requirement considered – applicant found to not satisfy section 23 – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C and 23

SECONDARY MATERIALS

IMMI 13/056

REASONS FOR DECISION

Dr L Bygrave, Member

26 March 2021

INTRODUCTION

1. The applicant, Ms Mary Colley, is a citizen of the United Kingdom who first arrived in Australia on 27 January 2007. She currently holds a resident return (class BB subclass 155) permanent visa that was granted on 27 August 2018.

2. On 8 August 2020, Ms Colley lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse Ms Colley’s application for Australian citizenship on 12 August 2020 because she did not satisfy the general residence requirements in sections 21 and 22 of the Act.

4. Ms Colley applied for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 5 September 2020.

   RELEVANT LEGISLATION AND CONSIDERATION

5. 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; and…

6. There is no dispute that Ms Colley meets the requirements in paragraphs 21(2)(a) and (b) of the Act: Ms Colley was aged over 18 years at the time she made her application, and was a permanent resident both at the time she applied for citizenship and at the date of the Minister’s decision. Thus, the sole issue for determination by the Tribunal is whether Ms Colley satisfies the requirement in paragraph 21(2)(c) of the Act.

7. Section 22 of the Act sets out the general residence requirements. 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. [emphasis in original]

8. The provisions in subsections 22(1A) and 22(1B) of the Act permit a person to have some limited periods of overseas absences without impacting their ability to satisfy the general residence requirement:

   (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.

9. The decision by the Minister’s delegate dated 12 August 2020 stated that Ms Colley was absent from Australia for a total of 1430 days in the four years prior to her application for citizenship, and a total of 366 days in the 12-month period immediately before applying for citizenship.[1] At the Tribunal hearing, Ms Colley confirmed she was absent from Australia for these periods.

   [1] Exhibits T-T2, page 15 and T-T5, page 71.

10. Therefore, I find Ms Colley does not satisfy the general residence requirement in subsection 22(1) of the Act. Further, subsections 22(1A) and 22(1B) of the Act do not apply as Ms Colley’s total periods of absence from Australia are more than 12 months and 90 days respectively.

11. Section 22 of the Act enables the Minister (and therefore this Tribunal) to exercise discretions in relation to the general residence requirement where certain requirements are met.

12. Ms Colley made submissions to the Tribunal that, as the spouse of an Australian citizen, the discretion in subsection 22(9) of the Act should apply to her circumstances. Subsection 22(9) of the Act provides:

    (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. [emphasis added]

13. The evidence before the Tribunal is that Ms Colley became a permanent resident of Australia on 19 May 2012, but her permanent partner (subclass 100) visa ceased on 11 November 2016 while she was outside Australia. Ms Colley was then granted a resident return (class BB subclass 155) permanent visa on 27 August 2018.

14. This means that Ms Colley did not hold a permanent resident visa for the period from 11 November 2016 to 27 August 2018, which is within the four-year period immediately prior to her lodging her application for Australian citizenship. For this reason, Ms Colley cannot satisfy the requirement in paragraph 22(9)(c) of the Act, which means the discretion in subsection 22(9) of the Act cannot apply to her circumstances.

15. I now consider whether there is any other discretion in the Act that may apply to Ms Colley.

16. Other Ministerial discretions in the Act are:

    ·administrative error (subsections 22(4A) and 22(5) of the Act);

    ·confinement in prison or a psychiatric institution (subsections 22(1C) and 22(5A) of the Act);

    ·the person in Australia would suffer significant hardship or disadvantage (paragraph 22(1)(c) and subsection 22(6) of the Act); or

    ·the person is in an interdependent relationship (subsection 22(11) of the Act).

17. There is no evidence before me that any of these discretions are relevant to Ms Colley.

18. The Act also sets out special residence requirements in sections 22A and 22B, and defence service requirements at section 23, which I have also considered in relation to Ms Colley’s circumstances.

19. Pursuant to section 22A of the Act, a person meets the special residence requirement (persons engaging in activities that are of benefit to Australia) if they are seeking to engage in activities specified in the Minister’s Instrument under subsection 22C(1) and have the support of an organisation specified in the Minister’s Instrument under subsection 22C(2).

20. The relevant Minister’s Instrument (IMMI 13/056) states that activities for the purposes of subparagraph 22A(1)(a)(i) of the Act are currently limited to:

    ·employment which requires a high-level security clearance in a department, an executive agency or a statutory agency of the Commonwealth;

    ·participation in the Olympic games (including the winter, summer and Paralympic games and qualifying events);

    ·participation in the Davis Cup or Fed Cup competitions, including qualifying events; or

    ·participation in any men’s or women’s international cricket match.

21. IMMI 13/056 further sets out the organisations currently specified for the purposes of paragraph 22A(1)(b) of the Act. They include:

    ·any department, executive agency or statutory agency of the Commonwealth;

    ·Australian Olympic Committee;

    ·Australian Paralympic Committee;

    ·Tennis Australia; and

    ·Cricket Australia.

22. There is no evidence before me that Ms Colley engages in the activities set out in paragraph 20 above or has the support of the organisations set out in paragraph 21 above. I am therefore satisfied that she does not meet the special residence requirement at section 22A of the Act.

23. I also considered whether Ms Colley could satisfy section 22B of the Act, which provides a special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia.

24. Section 22B of the Act provides that a person meets the special residence requirement (persons engaging in particular kinds of work requiring regular travel outside of Australia) if they are engaged in work of a kind that is specified in the Minister’s Instrument under subsection 22C(3). IMMI 13/056 states that for the purposes of paragraph 22B(1)(a) of the Act:

    The kinds of work are those undertaken as part of their duties in which a person is:

    (a) a member of the crew of a ship; or

    (b) a member of the crew of an aircraft; or

    (c) engaged in work on a resources installation or a sea installation; or

    (d) a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or

    (e) an Executive Manager of an S&P/ASX All Australian 200 listed company; or

    (f) a Scientist employed by:

    (i) an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or

    (ii) Commonwealth Scientific and Industrial Research Organisation; or

    (iii) a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).

    (g) a medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Schedule 4 – Part 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation;

    (h) a person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.

25. There is no evidence before the Tribunal that shows Ms Colley is engaged in any of the kinds of work set out in paragraph 24 above.

26. Section 22B of the Act also sets out Ministerial discretions that may apply to Ms Colley’s situation. These discretions include:

    ·alternative residence requirements (subsection 22B(1A) of the Act);

    ·confinement in prison or a psychiatric institution (subsections 22B(2) and 22B(3) of the Act); and/or

    ·administrative error (subsections 22B(4) and 22B(5) of the Act).

27. There is no evidence before me that any of these discretions could be applied to Ms Colley and I am therefore satisfied that she does not meet the special residence requirement at section 22B of the Act.

28. Finally, I considered section 23 of the Act. Under this provision, a person is taken to have met the residence requirement for the purposes of section 21 of the Act, if they show they have:

    ·completed relevant defence service (subsection 23(1) of the Act); or

    ·are a member of the family unit of a person:

    (i)who has completed relevant defence service (subsection 23(2) of the Act); or

    (ii)who died while undertaking service in the permanent forces or reserves (subsection 23(3) of the Act).

29. There is no evidence before the Tribunal that Ms Colley has either completed relevant defence service or is a family member of a person who has completed relevant defence service. There is also no evidence before the Tribunal that Ms Colley is a family member of a person who died while undertaking service in the permanent forces or reserves. I am therefore satisfied she does not meet the defence service requirement at section 23 of the Act.

    CONCLUSION

30. On the basis of the information set out above, I am satisfied that Ms Colley does not meet:

    ·the general residence requirements at subsections 22(1), 22(1A) and 22(1B);

    ·the special residence requirements at sections 22A and 22B; or

    ·the defence service requirement at section 23 of the Act.

31. For these reasons, I find that Ms Colley cannot satisfy the requirement in paragraph 21(2)(c) of the Act. This means that Ms Colley’s application for Australian citizenship by conferral must be refused in accordance with subsection 24(1A) of the Act.

    DECISION

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 26 March 2021

Date(s) of hearing:

Applicant:

11 March 2021

In person

Solicitor for the Respondent:

Mr L Dennis, Minter Ellison