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

[2020] AATA 4236

Gan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4236 (23 October 2020)

Division:GENERAL DIVISION

File Number:          2020/4301

Re:Sing Kian Gan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:23 October 2020

Place:Sydney

The application is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – DISMISSAL – application for Australian citizenship by conferral – where respondent seeks dismissal of application – no reasonable prospects of success – applicant does not meet general residence requirements – applicant overseas for 155 days preceding application for citizenship – COVID-19 lockdown – where applicant cannot leave Malaysia – applicant does not satisfy any Ministerial discretions – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Ministerial Instrument (IMMI 13/056) dated 29 May 2013 made under section 22C of the Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

23 October 2020

INTRODUCTION

1. The applicant, Mr Sing Kian Gan, first arrived in Australia on 23 February 1981 and currently holds a Resident Return (subclass BB-155) visa that was granted on 15 February 2019.

2. Mr Gan lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 21 June 2020.

3. On 14 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse Mr Gan’s application for Australian citizenship because he did not satisfy the general residence requirements in sections 21 and 22 of the Act.

4. Mr Gan then applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of this decision on 17 July 2020.

5. On 14 September 2020, the Minister made an application to the Tribunal requesting that Mr Gan’s application be dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that the application has no reasonable prospect of success.

6. This application was heard by the Tribunal on 21 October 2020. Mr Gan and the Minister’s representative attended the hearing and provided submissions by conference telephone.

   RELEVANT LEGISLATION AND CONSIDERATION

7. Section 22 of the Act sets out the general residence requirements. The provisions relevant to this matter are:

   (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

   …

   (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. [emphasis in original]

8. The decision by the Minister’s delegate dated 14 July 2020 stated:

   Departmental records indicate that you were absent from Australia for a total of 155 days in the 12 month period immediately before applying for citizenship. As you were absent for more than 90 days you have exceeded the allowable absences provided in sub-section 22(1B) and cannot be considered to have been present in Australia for the period of 12 months immediately before making your application. Therefore, you do not meet the requirements of paragraph 22(1)(c) of the Act.[1]

   [1] Section 37 documents, page 18.

9. At the Tribunal hearing, Mr Gan confirmed his travel records provided by the Department of Home Affairs (the Department) are accurate. These records show Mr Gan departed Australia on 17 January 2020 and remains overseas. As at the date of his application for Australian citizenship on 21 June 2020, Mr Gan had been absent from Australia for a period of 155 days.

10. Mr Gan told the Tribunal that he accepts he did not meet the general residence requirement – that he is present in Australia as a permanent resident in the 12 months immediately before he made his application for the conferral of Australian citizenship. In oral submissions and a written submission to the Tribunal dated 18 September 2020, Mr Gan explained that he and his wife (who was in Australia) commenced their applications for Australian citizenship online in early June 2020; however, Mr Gan was unable to complete his application online because he did not meet the general residence requirements as he had been absent from Australia for more than 90 days in the previous 12 month period. Mr Gan subsequently emailed the Minister’s office for assistance to continue his online application as he had ‘valid reasons to be away from Australia’ and his circumstances were ‘exceptional’.[2] He wrote that he departed from Australia on 17 January 2020 to visit his father in Malaysia who was unwell and later passed away. The Malaysian government then implemented a lockdown on 18 March 2020 due to the COVID-19 pandemic and Mr Gan was unable to return to Australia.

    [2] Section 37 documents, page 8.

11. Mr Gan lodged his application for Australian citizenship electronically on 21 June 2020; he stated in his application that he is seeking Ministerial discretion due to ‘Significant hardship or disadvantage’.[3]

    [3] Section 37 documents, page 103.

12. 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. Subsection 22(6) of the Act states:

    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 noncitizen); and

    (b) the Minister was 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.

13. I am satisfied the evidence shows Mr Gan was a permanent resident of Australia during the 12 month period before he made his claim for Australian citizenship. Therefore, I find the discretion in subsection 22(6) cannot apply to his circumstances.

14. I now consider whether there is any other discretion in the Act that may apply to Mr Gan’s situation.

15. 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 (subsection 22(5A) of the Act);

    ·the person is a spouse or de factor partner of an Australian citizen (subsections 22(9) and 22(10) of the Act); or

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

16. There is no evidence before me that any of these circumstances are relevant to Mr Gan. While Mr Gan’s wife has lodged her application for Australian citizenship, this application is still in the process of being considered by the Minister and Department and therefore the discretions in subsections 22(9) and 22(10) cannot apply.

17. 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 Mr Gan’s circumstances.

18. 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).

19. The relevant Minister’s Instrument (IMMI 13/056) states these activities 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; or

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

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

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

20. The Minister’s Instrument 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.

21. There is no evidence that Mr Gan either engages in the activities set out in paragraph 19 above or has the support of the organisations set out in paragraph 20 above.

22. I also considered whether Mr Gan 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.

23. 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). The Minister’s Instrument (IMMI 13/056) states:

    1The 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.

24. There is no evidence before the Tribunal that shows Mr Gan is engaged in any of the kinds of work set out in paragraph 23 above.

25. Section 22B of the Act also sets out Ministerial discretions that may apply to Mr Gan’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); or

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

26. There is no evidence before me that any of these circumstances could be applied to Mr Gan and I am therefore satisfied that he does not meet the special residence requirement at section 22B of the Act.

27. Finally, a person who satisfies the defence service requirement at section 23 of the Act is taken to have met the residence requirement 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)died while undertaking service in the permanent forces or reserves (subsection 23(3) of the Act).

28. There is no evidence before the Tribunal that Mr Gan has either completed relevant defence service or is a family member of a person who has completed relevant defence service. I am therefore satisfied Mr Gan does not meet the defence service requirement at section 23 of the Act.

    CONCLUSION

29. On the basis of the information set out above, I am satisfied that Mr Gan 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.

30. This means that Mr Gan’s application for Australian citizenship by conferral must be refused in accordance with subsection 24(1A) of the Act.

31. Subsection 42B(1) of the AAT Act provides that:

    (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:

    (a)  is frivolous, vexatious, misconceived or lacking in substance; or

    (b)  has no reasonable prospect of success; or

    (c)  is otherwise an abuse of the process of the Tribunal.

32. In considering all the relevant circumstances, I am satisfied that Mr Gan’s application for review has no reasonable prospect of success.

    DECISION

33. For the reasons set out above, the application is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 23 October 2020

Date of hearing:	21 October 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms A Zinn, Mills Oakley Lawyers