Fathima Mohamed Mashoor and Minister for Immigration and Border Protection
[2015] AATA 11
•13 January 2015
[2015] AATA 11
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3013
Re
Fathima Mohamed Mashoor
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 13 January 2015 Place Adelaide The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Senior Member R W Dunne
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – refusal by the delegate – general residence requirement not met – whether applicant was unlawful non-citizen – exercise of discretion – discretion not exercised – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 3, 21 and 22
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member R W Dunne
13 January 2015
INTRODUCTION
The applicant in this case is Fathima Mohamed Mashoor. She applied for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (“2007 Act”) on 9 May 2014. Following the decision by the delegate to refuse her application for citizenship, she seeks review of that decision by this Tribunal.
At the hearing the applicant was represented by her father, Mohamed Mashoor Mohamed Marzook, (with the assistance of an interpreter by telephone) and the respondent was represented by Ms V Greenslade from the office of the Australian Government Solicitor. I admitted the T documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, into evidence.[1]
[1] Exhibit R1.
ISSUES CONSIDERED BY THE TRIBUNAL
The following issues are considered by the Tribunal:
(a)Whether the applicant is eligible to become an Australian citizen.
(b)Whether the discretion in s 22(4A) of the 2007 Act should be exercised to treat the period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister (or this Tribunal standing in the shoes of the Minister) considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
(c)Whether the discretion in s 24(2) should be exercised to refuse to approve the application for Australian citizenship, notwithstanding that the applicant satisfied the eligibility requirements set out in s 21(5) of the 2007 Act.
THE 2007 ACT
Section 21(2) of the 2007 Act provides that a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the person:
“…
(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 applicant has not claimed that she completed relevant defence service, nor did she claim to have met the special residence requirement. The general residence requirement is contained in s 22 of the 2007 Act and provides:
“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.”
POLICY GUIDANCE
In relation to the general residence requirement in s 22, Chapter 5 of the current Australian Citizenship Instructions (“Instructions”) relevantly states:
“To meet the general residence requirement (s22) a person is required to have been lawfully present in Australia for a period of four years immediately prior to making their application, including the last 12 months as a permanent resident.
…
Under s 22(1)(b), a person cannot meet the general residence requirement if they have been an unlawful non-citizen at any time during the 4-year period immediately before applying for citizenship. This means they will need to have spent 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the general residence requirement, unless they became unlawful because of administrative error – see Section 5.16 Ministerial discretion – administrative error (s 22(4A) & (5)).
…”.
The expression “unlawful non-citizen” is referred to in clause 5.15.2 of the Instructions and it states:
“An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia without a valid visa.”
Section 22(4A) of the 2007 Act refers to the Ministerial discretion. It provides:
“For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.”
MINISTERIAL DISCRETION
Where s 22(4A) applies, the Instructions provide guidance in relation to the exercise of the discretion in that section. The Tribunal should have regard to the Instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The relevant paragraphs of the Instructions relating to s 22(4A) and administrative error are set out in Chapter 5 and read:
“5.16 Ministerial discretion - administrative error (s22(4A) & (5))
Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c) (respectively) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met (although the specific sections do not apply to people who were permanent residents immediately before 1 July 2007 - in these circumstances the equivalent provisions under s5B of Schedule 3 of the Transitional Act apply instead).
Under s22(4A) the Minister ‘… may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period’.
…
The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’. The condition can be divided into 2 parts:
• there must be an administrative error (in other words, an error of a particular kind) and
• the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).
The concept of ‘administrative error’ embraces a range of administrative actions. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided. While each case will need to be assessed on its own merits, specific examples include the following:
• the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE
• the applicant was advised by the department that they were a lawful non-citizen when in fact they were unlawful
• the applicant had been entitled to a permanent visa but made an application for a temporary visa as a result of incorrect advice from an officer of the department.
...
In order for this discretion to be applied, the onus is on the applicant to provide evidence that an administrative error has indeed occurred. All reasonable efforts should be made by the decision maker to verify the applicant’s claims. The department may on its own initiative take action where the department can identify a clear case of administrative error and apply this discretion on the applicant’s behalf.
…”
Under s 24(1) of the 2007 Act, if a person makes an application to become an Australian citizen (s 21), the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible under ss 21(2), (3), (4), (5), (6), (7) or (8) of the 2007 Act. Section 24(2) provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(5) of the 2007 Act.
In relation to s 24(2), the Instructions in clause 5.11.1 state:
“… The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.”
Further, clause 5.12 of the Instructions states:
“… Applicants aged 16 or 17 would not usually be approved under s 24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
· satisfies the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). See section 5.17 Ministerial discretion- significant hardship or disadvantage (s 22(6)) for guidance.
…
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child … to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.”
Clause 5.17.2 of the Instructions provides guidance on what is meant by “significant hardship or disadvantage”. It states that applicants would normally be required to demonstrate some or all of the following circumstances:
·inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonable available;
·difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety of similar reasons or cannot obtain an alternative travel document; or
·academic (for example, research, academic scholarship) of other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship
Clause 5.17.2 also states:
“…Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all the circumstances of the case to assess whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence that a person’s lack of Australian citizenship is the cause of the significant hardship and disadvantage is required. These are 2 separate requirements. For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
The onus is on the applicant to provide the evidence to support the application. Decision makers should also be aware of situations where is appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.
When making a decision regarding whether a person’s circumstances constitute ‘significant hardship or disadvantage’ officers should be aware of the difference between personal needs and personal wants.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders.
…”
BACKGROUND AND EVIDENCE OF APPLICANT
The applicant was granted a permanent Class CB, subclass 151 Former Resident, visa on 17 September 2012. When her application for citizenship was applied for she was 16 years old. She confirmed that she lives in Australia with her mother and father and her three siblings. She attends the Islamic College of South Australia and will be in Year 12 next year. When it was suggested to the applicant that she had been present in Australia without a visa on two occasions between 13 June 2011 and 21 June 2011 (the first occasion) and 6 July 2012 and 9 July 2012 (the second occasion), she said that her father had dealt with the respondent in relation to the issue of visas and that she was unaware of the circumstances relating to the visas question.
When the Tribunal asked the applicant why she wished to be granted Australian citizenship, she said it was necessary to enable her to attend the university. She said she had been told this by her teachers. When questioned further, she said she understood citizenship was necessary to enable her to study business studies (management) or teaching.
RESPONDENTS CONTENTIONS
The relevant period for consideration for the purposes of ss 22(1)(a) and 22(1)(b) is the period from 9 May 2010 to 8 May 2014, that is the four years immediately before the day the respondent received the applicant’s citizenship application.
At the time of her application for citizenship it was not disputed by the respondent that the applicant satisfied s 22(1)(a) of the 2007 Act. However, although it appeared that the applicant had been present in Australia as an unlawful non-citizen during the four years immediately before the application for Australian citizenship was made, the respondent’s contentions focused on the requirements of s 21(5) and s 24(2) of the 2007 Act.
APPLICANT’S CLAIMS
Further to what she said in paragraph 16 above, the applicant claimed that it was necessary for her to be an Australian citizen to be eligible for HECS-HELP to enable her to attend the university. If she was not eligible for HECS-HELP because she was not an Australian citizen, her parents would not be able to afford to send her to the university.
CONSIDERATION
Is the applicant eligible to become an Australian citizen?
On the evidence, it appeared to me that the applicant did not satisfy s 22(1)(b) of the 2007 Act because of the occasions between 13 June 2011 and 21 June 2011 and between 6 July 2012 and 9 July 2012 when she was present in Australia as an unlawful non-citizen. In the review of the application for Australian citizenship by the applicant’s father, which I heard on 9 December 2014, I found that s 22(1)(b) was not satisfied in his case. It followed that, as the general residence requirement had not been satisfied, he was not eligible to become an Australian citizen. If it had been necessary for me to consider the application of s 22(1)(b) in the applicant’s case, I would have also been inclined to find that the general residence requirement had not been satisfied and she would not be eligible to become an Australian citizen.
Should the discretion in s 22(4A) be exercised to treat the period in which the applicant was present in Australia as an unlawful non-citizen as a person who was not present in Australia during that period because of an administrative error?
For much the same reasons that applied in her father’s case before me, the applicant was not able to deny that she was not present in Australia on the two occasions in June 2011 and July 2012 referred to in paragraph 15 above. As I found in the case of the applicant’s father, there was no administrative error in the applicant’s case. In the circumstances and having regard to the policy appearing in Chapter 5 of the Instructions, I am not prepared to exercise the discretion contained in s 22(4A) of the 2007 Act.
Whether the discretion in s 24(2) should be exercised to refuse to approve the application for Australian Citizenship, notwithstanding that the applicant satisfies the eligibility requirements under s 21(5) of the 2007 Act?
The respondent’s contention is that the issue in dispute in the applicant’s case is whether she is eligible to become an Australian citizen pursuant to s 21(5) of the 2007 Act. The respondent accepts that the applicant was a person under the age of 18 and a permanent resident at the time of her application. Accordingly, the question before the Tribunal in her case is whether the discretion under s 24(2) of the 2007 Act should be exercised to refuse to approve the application for citizenship, despite the applicant satisfying the eligibility requirements set out in s 21(5).
The respondent contends that the discretion under s 24(2) of the 2007 Act should not be exercised in the applicant’s favour. In my view on the evidence, this contention is supportable for all the reasons that follow.
As mentioned in paragraph 9 of these reasons, the Tribunal should generally apply the policy reflected in the Instructions unless there are cogent reasons not to do so: see Drake (supra). Relevant to the applicant’s case, Chapter 5.12 of the Instructions states that applicants aged 16 or 17 would usually not be approved under s 24 unless they satisfy the residence requirements (or unless they would suffer significant hardship or of disadvantage if they had to meet this requirement).
As I have found in paragraph 20 above, the applicant does not meet the general residence requirement in s 22(1)(b) of the 2007 Act. Further, the respondent contends that the applicant does not satisfy the relevant policy as there is no evidence or supporting documentation before the Tribunal that she would suffer significant hardship or disadvantage if the application is not approved. It appears that on 5 August 2014 an email was sent to the applicant at her nominated email address requesting further evidence within 7 days of significant hardship or disadvantage if the application was not approved. The applicant’s father replied by email on 7 August 2014 requesting further clarification. This email was responded to by a Citizenship Officer on 11 August 2014. As the time frame passed and no evidence was received, it is clear that there is no basis for the discretion under s 24(2) of the 2007 Act to be applied.
Moreover, the applicant is a 17 year old who lives with her family in Australia and holds a permanent resident visa. As a permanent resident, she applicant is entitled to access public education, health services and public welfare. The respondent contends that any desire to obtain Australian citizenship for the applicant is properly characterised as a personal want rather than a personal need. The respondent notes that even where an applicant does not meet the relevant policy guidelines, decision-makers (in the applicant’s case, the Tribunal) are to consider the full circumstances of the case. I agree with the respondent’s contention that there is no evidence to suggest that the applicant’s circumstances are ‘unusual’ and would warrant approval of her application outside policy. Further, I would also agree that there is currently no evidence that the ‘best interests of the child’ would be impacted if Australian citizenship was not granted. There is nothing to indicate that the applicant faces any particularly difficult challenges at this point in time from not being granted Australian citizenship.
SUMMARY
I am satisfied that the applicant failed to satisfy s 22(1)(b) of the 2007 Act. I am also satisfied:
that the discretion in s 22(4A) should not be exercised in the applicant’s favour; and
that the discretion in s 24(2) should be exercised to refuse to approve the applicant’s application for citizenship despite eligibility under s 21(5) of the 2007 Act.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne .....................[Sgd]...................................................
Administrative Assistant
Dated 13 January 2015
Date(s) of hearing 16 December 2014 Advocate for the Applicant Mr Mohamed Mashoor Mohamed Marzook Respondent In person Advocate for the Respondent Ms V Greenslade Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Refusal of Citizenship
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General Residence Requirement
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Discretionary Decisions
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Eligibility for Citizenship
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