Cuthbert and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 13
•14 January 2021
Cuthbert and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 13 (14 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3416
Re:Anna Cuthbert
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:14 January 2021
Place:Sydney
The Tribunal dismisses the application for review under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospect of success.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal of substantive application – AAT Act s 42B – whether application for review has reasonable prospect of success – decision to refuse application for Australian citizenship by conferral – Applicant fails residence requirements – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Loo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 104
Milne v Minister for Immigration and Citizenship [2009] FCA 730
Milne v Minister for Immigration and Citizenship [2011] FCA 1094Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465
SECONDARY MATERIALS
Revised Citizenship Procedural Instructions (1 January 2019) CPI 8, CPI 33
Citizenship Policy (1 June 2016) ch 3
REASONS FOR DECISION
Chris Puplick AM, Senior Member
14 January 2021
This is a case where the Tribunal, as is its statutory duty, must apply the law as it has been written by the Parliament, despite the fact that any reasonable person would regard the resultant outcome as manifestly unfair.
For the reasons given below, the Tribunal must grant the application by the Minister (Respondent) to dismiss the application made by Mrs Anna Cuthbert (Applicant) for the review of a decision of the Minister’s delegate to refuse her application for Australian citizenship under the provisions of the Australian Citizenship Act 2007 (Cth) (Act).
The Respondent’s dismissal application rests upon section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
…
(b) has no reasonable prospect of success;
THE FORMAL APPLICATION
The Applicant lodged an application for Australian citizenship by conferral on 22 May 2020, which was refused by a delegate of the Minister on 1 June 2020 (refusal decision). The Applicant sought review of that refusal decision by the Tribunal on 4 June 2020.
In response to the Applicant’s application for review the Respondent submitted that it should be dismissed as it has no reasonable prospect of success. However, at the request of the Applicant the Tribunal agreed to hear both parties before making any such determination.
The matter came before the Tribunal for an interlocutory hearing on the Respondent’s dismissal application on 3 December 2020. As the Applicant is resident in France the hearing was conducted remotely by telephone.
The Tribunal thanks both parties for making their various submissions.
THE APPLICANT
The Applicant arrived in Australia in 1970 and pursued a highly successful career as a fabric designer. Indeed, her work was recognised with several industry and government awards, and she was active in promoting export opportunities for her products.[1] She was an active contributor to her local community and a supporter of local charities.[2]
[1] Supplementary section 37 documents (supplementary T documents) at 6-12.
[2] Ibid 13-14.
In 1984 she married Garry Cuthbert who is an Australian citizen. She has Australian children, grandchildren and stepchildren.
The Applicant has travelled extensively across the globe and in 2014 she and her husband settled in France. Before leaving Australia, the Applicant had made an application for Australian citizenship. However, that application was not completed prior to her departure due to difficulties obtaining the required documentation from the French authorities within the specified time.[3] It is unfortunate that this process was not resolved at that time.
[3] Ibid 13.
Mr Cuthbert is now aged 77 years and there is evidence before the Tribunal that he suffers from chronic health problems including heart conditions and osteoarthritis, such that he is unable to travel and there is little prospect of him being able to do so in the future.[4]
[4] Ibid 4-5.
The Applicant had lived and worked in Australia for over 43 years. She has deep connections to the country and to family here. Apart from her husband, she has no family in France and only limited ties to the United Kingdom.
She sought Australian citizenship because, among other reasons, she fears that if anything happens to her husband she will be alone in France without support, and without the security and comfort which Australian citizenship might afford her.
THE LEGISLATION
As the Applicant is a person over the age of 60 years her citizenship application must be dealt with under the provisions of section 21(4) of the Act which provides:
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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) understands the nature of the application at the time the person made the application; and
(d) 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
(e) 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
(f) is of good character at the time of the Minister's decision on the application.
To be granted Australian citizenship by conferral an applicant must satisfy all of the requirements of this subsection. The delegate, however, found that the Applicant failed to satisfy the residence requirement in section 21(4)(d).
There are several categories of “residence requirement”. However, in this instance the only applicable category is that of “general residence”. The provisions of sections 22A, 22B and 23 are not relevant to the Applicant. The general residence requirements are set out in section 22 of the Act which relevantly provides:
(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.
Overseas absences
(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.
CONSIDERATIONS
The evidence before the Tribunal establishes that:
(a)the Applicant was absent from Australia for 1461 days in the 4-year period prior to her lodgement of the citizenship application. This is a period greater than that allowed under the Act (12 months) pursuant to section 22(1A).
(b)the Applicant is a citizen of the United Kingdom. She first arrived in Australia in 1970 as a permanent resident. Her Resident Return (subclass 155) visa expired on 1 April 2020 while she was living outside Australia and her current Resident Return visa was not granted until 9 April 2020. During this 8-day period the Applicant was not present in Australia and also legally not a permanent resident of Australia (she did not hold a permanent resident visa), and hence she fails the test in section 22(1)(c).
(c)section 22(1B) permits a citizenship application to be considered if a person has been absent from Australia for a period of up to 90 days in the 12 months immediately preceding his/ her application. The evidence establishes that the Applicant was not present in Australia for any part of that preceding 12-month period.
The Applicant thus fails the statutory requirements for periods of presence and residency in Australia, and hence fails to meet all the requirements necessary for a grant of Australian citizenship by conferral pursuant to section 21(4).
Section 22(9) allows some discretion to be exercised in relation to an applicant who is married to, or the de facto partner of, an Australian citizen. 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.
However, here the Tribunal encounters the roadblock arising from section 22(9)(c). As noted above, the Applicant was not a permanent resident (the holder of a permanent resident visa) for the period of 1 April 2020 to 9 April 2020. Hence the discretion provided in section 22(9) cannot be enlivened to treat the Applicant as having been present in Australia when she was in fact overseas.
The Applicant contends that the 8-day period during which she did not hold a permanent resident visa was “an administration issue…not of my making”.[5] That is true.
[5] Supplementary T documents at 18.
The 8-day lacuna is particularly galling for the Applicant who submitted her application for visa renewal on 9 March 2020, 23 days prior to its expiry on 1 April 2020. The visa processing took some 30 days and left the Applicant technically visa-less from 1 until 9 April 2020.[6] This period is then counted against her by the Respondent.
[6] Respondent’s further submissions dated 14 December 2020 at 5.
Section 22(5) allows some discretion to be exercised where an administrative error has occurred. It provides that:
(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.
The Respondent wraps itself in a self-awarded fig-leaf of protection by relying upon chapter 3 of the Citizenship Policy which specifically stated that, in relation to “administrative error”:
A delay in processing an application does not constitute an administrative error in itself.
It is most unhelpful when the Respondent files its further submissions on 14 December 2020 but relies on a Citizenship Policy that was revoked as at 27 November 2020.
The current Revised Citizenship Procedural Instructions (CPIs) however do provide, in similar terms, the circumstances when the section 22(5) discretion would not be applied:
A delay in processing an application for a permanent visa would not be considered an administrative error unless the delay was unreasonable and the result of a mistake or oversight by the Department.[7]
[7] Revised Citizenship Procedural Instructions (1 January 2019) CPI 8.
Exercise of the discretion in section 22(5), however, is predicated on the Applicant having been present in Australia during the 12-month period immediately before she lodged her Australian citizenship application. As this prerequisite has not been met, consideration of any alleged administrative error cannot arise.[8]
[8] Milne v Minister for Immigration and Citizenship [2009] FCA 730, [11], [13], [14] and [17].
In her application for review, the Applicant stated:
I believe the decision does not take into consideration my specific situation where I am spending some years in France after retirement with my Australian husband of 35 years and am unable to fulfil the residency requirement. His prolonged chronic health problems have prevented any return to Australia at this stage. Having lived and worked in Australia for 43 years I have an ongoing connection through my sons and their families as well as financial arrangements of superannuation, pension and bank accounts.
Citizenship would provide me with the security I may need in the future.[9]
[9] Section 37 documents at 6.
The Tribunal is entirely sympathetic to the case advanced by the Applicant. She is clearly a person of character and integrity, and she has been a long-term resident of Australia with deep ties to the country and with an Australian family.
In ordinary circumstances there would be no reason that such a person should not be able to avail him/ herself of the benefits and security of Australian citizenship.
However, there are, in the Applicant’s case, some extraordinary circumstances. These include a minor 8-day lacuna in her permanent residence status and her absences from Australia during the qualifying periods. All the relevant legal authorities make it clear that these impediments cannot be overcome within the framework of the Act.[10]
[10] Milne v Minister for Immigration and Citizenship [2011] FCA 1094, [10]-[11]; Loo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 104, [23]; Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465, [4].
Taken together, and in the absence of any discretion to do otherwise, the Tribunal cannot establish any basis upon which the Applicant’s application for Australian citizenship by conferral could be granted.
It does note, however, that the Applicant’s current visa permits her to return to Australia and at some later date, when residence requirements have been fulfilled, to make a further application for citizenship.[11]
[11] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
There is a further contention raised by the Respondent arising under section 24(5) of the Act which 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.
As the discretion provided in section 22(9) cannot be enlivened in this case, the decision maker would be prohibited by the statute from approving the Applicant’s citizenship application if she is not present in Australia at the time of decision.
In its submissions dated 1 December 2020, the Respondent states:
Further, the applicant is currently in France which means that the prohibition in subsection 24(5) of the Act would apply so long as she remains offshore.[12]
[12] Respondent’s submissions dated 1 December 2020 at [17].
This is not entirely correct. If at final hearing the Tribunal were, in theory, to decide in favour of the Applicant, it would need to remit the matter for reconsideration as the delegate had not yet assessed some of the other eligibility criteria under section 21(4). Paragraph 6.1 of CPI 33 provides a mechanism whereby a decision on granting citizenship may be delayed until an applicant returns to Australia where the applicant’s non-presence in Australia is the only barrier to the application proceeding and the applicant has demonstrated his/ her intention to return within a reasonable period.[13]
[13] Revised Citizenship Procedural Instructions (1 January 2019) CPI 33.
It is not possible, given the current circumstances in this matter, to know whether or not the Applicant would be able to avail herself of this potential lifeline, and the Tribunal does not make its decision on the dismissal application on the basis of the section 24(5) consideration in this case.
DECISION
The Tribunal dismisses the application for review under section 42B(1)(b) of the AAT Act as it has no reasonable prospect of success.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 14 January 2021
Date(s) of hearing: 3 December 2020 Date final submissions received: 14 December 2020 Applicant: In person (by phone) Solicitors for the Respondent: Mr L Dennis, MinterEllison
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