GBSN and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 650

GBSN and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 650 (31 August 2015)

Division	General Division
File Number(s)	2015/1360
Re	GBSN
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	31 August 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – CITIZENSHIP – general residence requirement – whether applicant’s employment in Australian Consulate overseas equivalent to time spent in Australia – special residence requirement – discretion – decision under review affirmed

Legislation

Australian Citizenship Act 2007 s 21, 22

REASONS FOR DECISION

Senior Member J F Toohey

31 August 2015

Background

1. The applicant arrived in Australia in January 1998 on a tourist visa and was subsequently granted a number of student visas while she completed her studies in Australia. 

2. In late 2007, shortly after being granted a Five Year Resident Return visa, the applicant returned to her own country to live for family reasons.  She has been granted further Resident Return visas since then but has spent only brief periods in Australia since late 2007.  Since 2010, she has been employed in the Australian consulate in her home country.

3. On 3 November 2014, the applicant applied for Australian citizenship.  On 23 February 2015, a delegate of the Minister for Immigration and Border Protection (the Minister) refused her application on the ground that she did not satisfy the general residence requirement in the Australian Citizenship Act 2007 (the Act).  Further, that none of the discretions in the Act was available to her.  The applicant seeks review of that decision.

   Relevant legislation

4. A person is eligible to become an Australian citizen if he or she meets the requirements in s 21 of the Act.  The Minister (and so the Tribunal) must not approve a person becoming an Australian citizen unless he or she satisfies the general eligibility requirements in s 21(2), or comes within one of the other categories in s 21, none of which applies here.

5. Relevant to this application, to satisfy the general eligibility requirements in s 21(2), a person must satisfy the general residence requirement in s 22, or the special residence requirement in s 22A or s 22 B: s 21(2)(c).

6. By s 22(1), a person satisfies the general residence requirement if:

   (a)the person was present in Australia for the period of four years immediately before the day he or she made the application; and

   (b)the person was not present in Australia as an unlawful non-citizen at any time during that four year period; and

   (c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day he or she made the application.

7. By s 22(1A), a person may be taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day he or she made the application was not more than 12 months.

8. By s 22(1B), a person may be taken to satisfy s 22(1)(c) if the total period of any absence in the period of 12 months immediately before the day he or she made the application was not more than 90 days and he or she was permanent resident during each period of absence.

   Did the applicant satisfy the general residence requirement?

9. The applicant spent a total of 19 days in Australia in the 12 months, and 44 days in the four years, immediately preceding her application for citizenship.  She accepts that she did not meet, and cannot be taken to have met, the general residence requirement as set out above.  However, she says, her employment since 2010 in the Australian consulate should be counted as time spent in Australia for the purpose of that requirement.

10. In support of this submission, the applicant refers to a number of Articles of the Vienna Convention on Consular Relations 1963.  However, nothing in that Convention has the effect of declaring consular property to be part of Australia, and nothing in the Act enables consular property to be treated as such.  Nothing allows for the construction contended for by the applicant.

11. Sections 22(4A) to s 22(9) contain discretions by which the Minister may treat a period as one in which a person was present in Australia as a permanent resident for the purposes of the general residence requirement.  I am satisfied that none of those provisions applies to the applicant.  Other than the discretion concerning persons in a spousal or interdependent relationship (neither of which the applicant relies on), each is a discretion to treat a person who was not a permanent resident as if a permanent resident during a period he or she was present in Australia. 

12. The applicant submits that she would suffer hardship or disadvantage if her application is refused and refers to the discretion in s 22(6).  Like those already referred to, that discretion may only be exercised where the person was present in Australia during the period in question.  It does not assist the applicant because she was living offshore. 

13. I find that the applicant did not meet the general residence requirement at the time of her application. 

    Did the applicant satisfy the special residence requirement in s 22A or s 22B?

14. The applicant submits that, alternatively, she satisfies the special residence requirement in ss 22A or s 22B. 

15. Section 22A concerns persons engaging in activities that are of benefit to Australia.  It provides, relevantly, that a person satisfies the special residence requirement if he or she is seeking to engage in an activity specified under s 22C(1), that his or her engagement would be of benefit to Australia, that the applicant needs to be an Australian citizen to engage in that activity, and there is insufficient time for the applicant to satisfy the general residence requirement.

16. Section 22B concerns persons engaged in specified kinds of work which require regular travel outside Australia. 

17. By s 22C(1) and s 22C(3), the Minister may, by legislative instrument, specify activities and kinds of work for the purposes of s 22A and s 22B respectively.

18. By legislative instrument dated 29 May 2013, the Minister specified a number of activities for the purposes of s 22A.  Employment in a consulate is not one of them.  The applicant submits that the work she does in the consulate is at least as beneficial to Australia as those specified by the Minister but the Tribunal has no discretion to include activities not specified by the Minister, no matter how beneficial to Australia.

19. By the same instrument, the Minister also specified kinds of work for the purposes of s 22B.   They do not include any form of consular work.  Even if they did, it could not be said that the applicant has been required to travel outside Australia regularly for that purpose.

20. I find that the applicant did not meet the special residence requirement at the time of her application. 

    Conclusion

21. I have no reason to doubt the value of the work that the applicant does at the Australian consulate.  However, the Tribunal has only the statutory powers in the Act.  It has no discretion to approve an application for citizenship for any reason other than those set out in the Act.

22. As the applicant does not satisfy the general residence requirement or the special residence requirement, and as none of the requirements for the exercise of any of the discretions in the Act is satisfied, it follows that her application for citizenship must be refused.

23. I affirm the decision under review.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 31 August 2015

Date(s) of hearing		26 August 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Mr Andras Markus, Australian Government Solicitor