Govekar and Minister for Immigration and Citizenship

[2010] AATA 301

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4210

General Administrative DIVISION		)
Re		Kamal Sam Govekar

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date28 April 2010

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

CITIZENSHIP – citizenship by conferral - applicant held Return Resident (permanent) visa – visa granted on basis of substantial personal ties of benefit to Australia - applicant did not satisfy general residency requirement for conferral of citizenship – whether discretion to treat periods of absence as periods present in Australia – whether visa was granted on basis of interdependent relationship - meaning of interdependent relationship – prohibited degree of relationship – decision under review affirmed 

Australian Citizenship 2007 - s.21, s.22

Australian Citizenship (Transitionals and Consequentials) Act 2007- s.5B of Schedule 3

Migration Act 1958

Migration Regulations 1994 Regs 1.09A, clause 115 of Schedule 2

Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008

REASONS FOR DECISION

28 April 2010	Senior Member Jill Toohey
Background

1.      Kamal Sam Govekar is an Indian citizen.  She arrived in Australia on 18 May 2003 on a subclass 138 Skilled Australian-Sponsored (permanent) visa.  She has a number of family members in Perth and Sydney.  It had been her intention to remain in Perth with her brother and his family but she had to return to India to care for their elderly parents.  She left Australia on 8 June 2003.  She has not returned to Australia since.

2.      In October 2007, Ms Govekar applied for a subclass 155 Return Residence visa.  The Minister for Immigration and Citizenship (the Minister) refused her application.  The Migration Review Tribunal (MRT) set aside the Minister’s decision on the basis that Ms Govekar satisfied the relevant criteria and had substantial personal ties of benefit to Australia.  She was granted the visa on 26 November 2008.  It lasts for five years and gives her the right to enter Australia at any time during that period.

3.      On 1 April 2009, Ms Govekar applied for Australian citizenship.  The Minister refused her application because she failed to satisfy the relevant residence criterion and there was no discretion applicable to her case.  Ms Govekar seeks review of that decision.

4.      Ms Govekar attended a hearing before this tribunal by telephone from India.  Her brother, who has assisted her throughout these proceedings, also attended by telephone.

The issues

5.      I have to decide:

(i)whether Ms Govekar satisfies the criteria for conferral of citizenship;

(ii)if not, whether there is any discretion to grant her application;

(iii)if there is such a discretion, whether it should be exercised.

The general residence requirement

6.      Section 21 of the Australian Citizenship 2007 (the Citizenship Act) sets out the eligibility requirements for conferral of citizenship. In issue here is s 21(2)(c) by which Ms Govekar must satisfy a general residence requirement. It is not in issue that she satisfies the other criteria, including having passed a citizenship test.

7. The general residence requirement as it applies to Ms Govekar is set out in s 5B of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act2007.  The transitional provision applies because Ms Govekar was a permanent resident before 1 July 2007 and lodged her application for citizenship before 1 July 2010.

8. By subitem (2) of s 5B, Ms Govekar will satisfy the general residence requirement if she has been present as a permanent resident for:

(a)a total of at least one year in the period of two years before the day on which she made the application; and

(b)a total period of at least two years in the period of five years before that day.

9.      Ms Govekar lodged her application for citizenship on 1 April 2009.  It is not in dispute that she has not been in Australia since 8 June 2003.  She cannot satisfy the general residence requirement.

Is there a discretion 

10. Section 22 of the Citizenship Act sets out a number of circumstances in which a person may be taken to satisfy the general residency requirement despite not being in Australia for the required period.

11. Ms Govekar relies on the discretion in s 22(11). She does not contend that any other discretion is available to her and I am satisfied that is correct.

12. Section 22 (11) provides that if, at the time of applying for citizenship by conferral, a 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 the general residency requirement, 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.

13. Ms Govekar contends that her permanent visa was granted on the basis of her interdependent relationship with her brother. She contends that the discretion in s 22(11) is therefore enlivened and should be exercised in her favour. I cannot agree with her.

14.     Ms Govekar’s application for a permanent visa was made under the Migration Act 1958. As the MRT decision makes clear, Ms Govekar was granted the permanent visa because firstly, she satisfied the criterion in clause 155.211 of the Migration Regulations 1994 that she be a former permanent resident.  Secondly, she satisfied the requirement that she not have been outside Australia for a continuous period of more than five years. 

15.     Subclause 155.212(3) sets out a number of additional criteria, at least one of which Ms Govekar had to satisfy to be granted the permanent visa.  The MRT found at [25] that her “strong family ties of benefit to Australia” meant that she satisfied subclause 155.212(3) which requires “substantial business, cultural, employment of personal ties which are of benefit to Australia”.

16.     Nothing in the MRT’s decision discloses any reference to an “interdependent relationship”.  As that phrase does not appear in the applicable regulations, that is not surprising. 

17.     Interdependent relationship is not defined in the Citizenship Act. It was previously defined by reference to reg. 1.09A in the Migration Regulations 1994. That regulation is no longer in force since the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 which came into effect on 15 March 2009.  It is clear, however, that “interdependent” in reg.1.09A meant a spouse-like relationship.  Persons within a “prohibited degree of relationship” were specifically excluded from the meaning of interdependent relationship.  For the purposes of reg. 1.09A, persons were in a prohibited degree of relationship if they were brother and sister (whether or not they had both parents in common).   

18. The fact that reg.1.09A is no longer in force does not mean that “interdependent” in s 22(11) can now have a meaning squarely at odds with the earlier definition. More importantly, even if it could be understood to include formerly precluded relationships, it was not the basis for the grant of Ms Govekar’s permanent visa.

Conclusion

19. Ms Govekar’s visa was not granted on the basis of an interdependent relationship. The discretion in s 22(11) of the Citizenship Act 2007 is not available to her and her application therefore cannot succeed.  

20.     I am satisfied that the decision under review was correct and must be affirmed.

I certify that the 20 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ........[sgd].................................................................
           Diana Weston  Associate

Date of Hearing  22 April 2010

Date of Decision  28 April 2010

Representative for the Applicant  Mr Rusi Sam Govekar

Representative for the Respondent:               Mr Greg Johnson, DLA Phillips Fox