Giri and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) - [2023] AATA 841

Giri and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 841 (21 April 2023)
Division:GENERAL DIVISION
File Number:2022/3770
Re:Aastha Giri
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:21 April 2023
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[SGD].......................................
Member D Mitchell

CATCHWORDS
CITIZENSHIP – Australian Citizenship Act 2007 (Cth) – citizenship by conferral – where not a permanent resident for 12 months prior to making an application for citizenship – whether the discretions in section 22 apply - whether the Applicant meets the special residence requirements in section 22A or in section 22B – no discretion available – special residence requirements not met – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
CASES
Abdulsalam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1371
FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231
Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4958
REASONS FOR DECISION
Member D Mitchell
21 April 2023
INTRODUCTION

Ms Aastha Giri (the Applicant) is a citizen of Nepal.[1] She began residing in Australia on

12 February 2013 after being granted a Higher Education Sector (subclass 573) visa.[2]
[1] Exhibit 1, T Documents, T4, page 25, Application for Australian Citizenship by Conferral.
[2] Exhibit 1, T Documents, T3, page 14, Decision Record.
On 9 November 2021 the Applicant was granted an Employer Nomination Scheme (subclass 186) visa. This visa is also a permanent residency visa.[3]
[3] Exhibit 1, T Documents, T6, page 60, ICSE record.
On 9 February 2022, the Applicant made an application for Australian citizenship by conferral pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth)

(the Citizenship Act).[4]
[4] Exhibit 1, T Documents, T4, pages 22-56, Form 1290: Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement).
On 9 May 2022, a delegate of the Respondent refused the Applicant’s application for Australian citizenship by conferral. The delegate’s decision was made on the basis that they were not satisfied that the Applicant met the general residence requirements or satisfied any of the available discretions or special residence requirements.[5]
[5] Exhibit 1, T Documents, T3, pages 9-21, Notification of Refusal for Australian Citizenship by Conferral and Assessment of Application attaching the Decision Record and Review Rights.
On 10 May 2022, the Applicant applied to the Tribunal for review of the Respondent’s decision.[6] The Applicant provided the following response in relation to why she claims the decision is wrong:[7]
I applied for my Subclass 482 visa - Permanent Residency (PR) on
[6] Exhibit 1, T Documents, T2, pages 3-8, Application for Review of Decision.
[7] Exhibit 1, T Documents, T2, page 7, Application for Review of Decision.
29th of Sept 2019 and estimated processing time was between 6-7 months as per your Home affair's website. The visa wasn't approved until Nov 202[1], 14 months later. I rang the department multiple time[s] but no one was able to tell me why it was delayed. I am assuming Covid had something to do with it. This delay cost me new job opportunities, I wasn't able to see my family for over 4 years and I was and have been on a salary less than 70k per year compared to professionals my age and ranking, caused by this delay. Hence, I decided to head [sic] a head start on my citizenship when I received my PR, allowing Home Affairs that 7 months or more delay if there were to be one, I rang them and consulted with them before and after the citizenship application was lodged and I was advised that it would be perfectly reasonable for me to apply earlier than wait 12 months which is advised on their website. I then tried applying for a refund for this application, which wasn't possible to do online. The very bizarre and illogical thing is that I have been able to apply for over 6 Australian visas and pay for them online but refund isn't done online by design and I am outraged by that. I understand the legality of this case and I am prepared to take this to the supreme court if I need to. I believe home affairs keeps recording of all their calls including the calls I made and the advice I was given in multiple instances. I have been living in Australia in over 9 years and I spend hours of my spare time volunteering and giving back to this community, your community and mine. I have done everything by the books as per home affairs website and their consultant's advice but have been treated unfairly. Not to mention, I have been on 2 separate phone calls with Home Affairs about their decision and was put on hold multiple times and the person needed few minutes to find the answer, when they couldn't figure it out, both of them asked me to wait and eventually hung up. There goes my 4.5 hours of time on a Tuesday afternoon, while I should actually be working.
ISSUES
The issues before the Tribunal are:
(a)
Whether the Applicant satisfies the general residency requirements in

section 22(1) of the Citizenship Act?
(b)If not, whether the Applicant satisfies any of the Ministerial discretions set out in sections 22(4A), (5), (5A), (6), (9) or (11) of the Citizenship Act?
(c)If not, whether the Applicant satisfies the special residence requirement in sections 22A or 22B of the Citizenship Act?
THE LAW
Section 21 of the Citizenship Act sets out that a person may make an application to the Minister to become an Australian citizen and provides the eligibility requirements. Relevantly to this application, section 21 outlines the following eligibility requirements:
General eligibility
(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
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)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
(h)is of good character at the time of the Minister’s decision on the application.
Section 22 of the Citizenship Act provides the general residence requirements as follows:
(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.
Confinement in prison or psychiatric institution
(1C)Subject to subsection (5A), the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:
(a)confined in a prison; or
(b)confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
Partial exemption—person born in Australia or former Australian citizen
(2)Paragraphs (1)(a) and (b) do not apply if the person:
(a)was born in Australia; or
(b)was an Australian citizen at any time before the person made the application.
Ministerial discretion—administrative error
(4A)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.
(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.
Ministerial discretion—confinement in prison or psychiatric institution
(5A)The Minister may decide that subsection (1C) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.
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 non‑citizen); and
(b)the Minister is 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.
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.
(10)In subsection (9):
surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.
Ministerial discretion—person in an interdependent relationship
(11)If, at the time the person made the application, the person:
(a)holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and
(b)is in that interdependent relationship;
then, 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:
(c)the person held that visa during that period and the person was in that interdependent relationship during that period; and
(d)the person was not present in Australia during that period; and
(e)the person was a permanent resident during that period; and
(f)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Sections 22A and 22B of the Citizenship Act provide special residence requirements for persons engaging in activities that are of benefit to Australia and either require them to be Australian citizens or undertake work requiring regular travel outside of Australia.
Section 24 of the Citizenship Act provides that the Minister must approve or refuse to approve a person’s application to become an Australia citizen and sets out the circumstances where the Minister may or must not approve such an application. Relevantly:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
APPLICANT’S EVIDENCE AND CONTENTIONS
The Applicant provided a written submission dated 11 April 2023[8] of which her evidence under affirmation at the Hearing was consistent.
[8] Exhibit 3, Applicant’s submission.
At Hearing the Applicant told the Tribunal:
·She understood that she did not meet the permanent residency requirements at the time she made her application for Australian citizenship.
·She considered that given the delay in processing her application for permanent residency it was reasonable for her to lodge her application early and that by the time it was processed she would have been a permanent resident for more than 12 months.
·She had not been home to see her family in a long time due to COVID and understood that if she left the country that it may be more difficult for her to return as she was not a citizen.
·She asked her migration agent whether it would be possible to make her application for citizenship early and give the Department of Home Affairs (the Department) extra time to process it and that they said that seemed logical but that she should check with the Department.
·She contacted the Department before making the application and that although the person was uncertain, they told her that they did not see why she could not apply early.
·There is no box on the application form to provide information about why she was applying when she was.
·She contacted the Department after making her application and was again advised it was reasonable for her to have made the application.
·She has been in Australia for 10 years and applied for 10 to 11 visas and if something is incorrect or missing from a visa application the Department would contact her, however what she received in response to her citizenship application was an email from a no-response email address refusing her application and providing her with review rights.
·The decision letter outlined that if certain circumstances were met she would not have to pay the application fee again when she made a new application, however that is not what occurred.
·She made a new application for citizenship in December 2022, however the fee from the present application was not applied and she was told to apply for a refund. She has not at the date of the Hearing received a refund of the application fee.
·She considers that the way her application has been handled by the Department is wrong and is extremely frustrating.
·She wants the Tribunal and Department to consider the COVID situation and that she had sought advice from her migration agent and from the Department as she believes that the forms and laws in relation to applying for citizenship are outdated and do not consider the impacts of COVID.
·She believes that if the Department is allowed to have processing delays she should be afforded the same opportunity to put in an application early to try and mitigate those delays.
·She agrees that she does not meet the Ministerial discretions or special residence requirements.
RESPONDENT’S CONTENTIONS
The Respondent contended that the Applicant did not at the time of making her application for citizenship meet the general residence requirements. The Respondent provided the following in support of their contentions:[9]
15.The respondent (the Minister) contends that the provisions of the Act in relation to ‘general residence’ are to be strictly applied. Section 21(2)(c) of the Act requires that an applicant for citizenship must satisfy the general residence requirement, or the special residence requirement or the defence service requirement at the time the person applies for Australian citizenship.
16.The Minister contends that the applicant cannot satisfy paragraph 22(1)(c) of the Act. Departmental records indicate the applicant was granted a permanent visa on 9 November 2021, and therefore became a permanent resident on this date (T6, 60). Accordingly, the applicant was not a permanent resident 12 months immediately before the date on which she lodged her application for citizenship, being 9 February 2022 (T4, 22). She was therefore a permanent resident for only 92 days, far short of the 12 months required by paragraph 22(1)(c) of the Act.
17. Accordingly, the respondent contends that the Tribunal must affirm the decision under review.
[9] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 3-4, paragraphs 15-17.
CONSIDERATION
Based on the evidence before the Tribunal and the submissions provided by the Applicant and Respondent it is not in dispute that at the time of making her application for Australian citizenship by conferral the Applicant:
(a)did not meet the general residence requirement set out in section 22(1) of the Citizenship Act;
(b)did not qualify for the Ministerial directions set out in sections 22(4A), (5), (5A), (6), (9) or (11) of the Citizenship Act;
(c)did not meet the special residence requirements set out in sections 22A and 22B of the Citizenship Act.
The Tribunal agrees with this evidence and submissions.
In relation to the Applicant’s concerns in relation to the application fee paid to the Department in respect of the application she made for Australian citizenship by conferral on 9 February 2022, this is not a matter for which the Tribunal has jurisdiction to consider.
In relation to the Applicant’s request that the Tribunal take into account her circumstances and in particular the affect that COVID-19 had on her ability to leave the country and the delay in processing her visa application, the Tribunal has taken on board these factors. Unfortunately for the Applicant the requirements of section 22(1)(c) of the Citizenship Act must be strictly applied. Put succinctly in FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231 by Senior Member Polar at [30]:[10]
However, the statutory requirements in s22(1)(c) and s22(1B) of the Citizenship Act are explicit; there are no waiver provisions regarding compassionate circumstances. It is clear on the evidence before the Tribunal that the Applicant did not meet these requirements of the Citizenship Act as part of their application for citizenship by conferral.
[10] This approach was adopted further in Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4958 and Abdulsalam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1371.

The Tribunal acknowledges that the COVID-19 pandemic has affected the operations of commercial, community and government organisations and impacted upon individuals in ways that could not have been envisaged at the time the Citizenship Act was drafted. There have however been no amendments to the general residency requirements in the Citizenship Act to deal with COVID-19 and there is no discretion within the Citizenship Act that presently applies to the Applicant’s permanent residency circumstances at the time of her application.
If the Tribunal was to make a decision that did not accord with the Citizenship Act it would be acting outside of its powers in doing so. Consequently, the Tribunal finds that as the Applicant was not a permanent resident for a period of 12 months prior to making her application for Australian citizenship by conferral, as the Ministerial discretions did not apply and she did not meet the special residence requirements, she was not entitled to be granted Australian citizenship by conferral.
CONCLUSION
For the reasons set out above, the Tribunal finds that at the time of making her application for Australian citizenship, the Applicant did not meet the general residence requirements, did not qualify for any of the Ministerial discretions or meet the special residence requirements.
Accordingly, the decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............[SGD]...............
Associate

Dated: 21 April 2023

Date of Hearing: 14 April 2023

Applicant:

Solicitor for the Respondent:

By Phone

Ms Claire Laizans

Minter Ellison