Herz and Minister for Immigration and Citizenship

[2011] AATA 201

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4016

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMEEL ALI HASAN HERZ

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date28 March 2011

PlaceAdelaide

Decision The decision under review is affirmed.

D G Jarvis
  ...[Signed]…
     Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Application for citizenship by conferral – permanent resident – applicant did not satisfy residence requirement – hardship if application not granted – residence requirement not affected by Treaty obligations – decision under review affirmed.

Australian Citizenship Act 2007 (Cth), ss 21(2) and 22(1)(a)

Dietrich v R (1992) 177 CLR 292

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

REASONS FOR DECISION

28 March 2011   Deputy President D G Jarvis

1.      The applicant, Jameel Ali Hasan Herz, is a Bahrainian national, who arrived in Australia as a refugee on 7 January 2006.  In December 2006, he became a permanent resident by virtue of being granted a protection visa.

2.      On 26 August 2010, he applied for citizenship by conferral.  He did not meet the residency requirements of the Australian Citizenship Act 2007 (Cth) (the Act), and a delegate of the Minister refused his application.

3.      The applicant has applied to the tribunal for review of the delegate’s decision.

Issue before the Tribunal

4.      The issue before the tribunal is whether the applicant has met the residency requirements of s 22(1)(a) of the Act, that is, whether he was present in Australia for the period of four years immediately before the day when he made his application for citizenship.

Background

5.      The following background facts are based on the evidence of Mr Herz, which was not contested, and on the documentary material before me.

6.      At the time of the hearing Mr Herz was living in Adelaide, and was a full-time student.  He has since moved to Sydney.  He has no relatives in Australia, and all of his family reside in Bahrain.  He cannot return there.  He is missing his family, and is suffering from anxiety and depression.

7.      Mr Herz’s mother is in her mid-70’s.  She is suffering from a heart condition and asthma.  Mr Herz is missing his family, and his mother in particular, and is concerned about her because of her poor health.  He is desperate to see her before she dies.

8.      In 2007, Mr Herz went to Thailand to visit his mother, but she was unable to travel there, and he returned to Australia after seven days.

9.      About two or three weeks later, on 27 April 2007, he went to Syria, and two or three months later again his mother joined him there.  While he was in Syria a nasal condition from which he had previously suffered flared up, and he became ill and had treatment in a private clinic.  He said that his treatment was cheaper in Syria than it would have been in Australia, but he stopped having the treatment because it was painful.

10.     He and his mother remained in Syria.  In about March 2008, his mother had a heart attack and a severe episode of asthma.  She was taken to the Al Radi Specialist Hospital by ambulance, and was in intensive care for three days.  After she was discharged from hospital Mr Herz stayed on in Syria to look after her.  He returned to Australia in November 2008, and has remained in Australia since then.

11.     In a statutory declaration made in October 2010 in support of his application to this tribunal (exhibit A1), Mr Herz said he was unable to visit his mother in Bahrain, and because he was a refugee, he was unwilling and too frightened to apply for a Bahraini passport.  He also said that because of his mother’s illness, she could not travel very far, but the closest country is Qatar, and she would be able to travel there by road.  He said that according to his research, he would need a valid passport from his country of citizenship in order to enter Qatar and meet his mother there.

Legislation

12.     The provisions of the Act that relate to citizenship by conferral and that are relevant to the present matter are as follows:

“21      Application and eligibility for citizenship

(1)A person may make an application to the Minister to become an Australian citizen.

Note 1:Subsections (2) to (8) deal with eligibility.

Note 2:Section 46 sets out application requirements (which may include the payment of a fee).”

General eligibility

(2)A person is eligible to become an Australian citizen if 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 has completed relevant defence service (see section 23), at the time the person made the application;

...

22      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.

...

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.

...

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.

...

24.Minister’s decision

(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.

Note:The Minister may cancel an approval: see section 25.

(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).”

13.     Section 21(2)(c) refers to the special residence requirement provided for in ss 22A and 22B.  These sections relate to persons engaged in activities that are of benefit to Australia or to persons engaged in particular kinds of work requiring regular travel outside Australia.  They have no relevance to the present case.  Mr Herz has not completed relevant defence service, and so s 23 of the Act is not applicable either.

Consideration

14.     It is clear that Mr Herz does not meet the residency requirements of s 22(1)(a) of the Act, in that he had not been present in Australia for the period of four years immediately before he made his application for citizenship.  Further, he does not meet the requirements of s 22(1A), because the total period of his absence overseas was in excess of 12 months.

15.     Provision is made in s 22(6) of the Act for a discretion in effect to waive the residence requirement of s 22(1)(c) (that is, residence in Australia as a permanent resident for 12 months immediately before making the application for citizenship) on the grounds of significant hardship or disadvantage, but there is no such discretion in the case of the four year residence requirement in s 22(1)(a).

16.     Mr Herz requested that the tribunal waive the residency requirement of s 22(1)(a) on humanitarian grounds, having regard to his mother’s illness and his own circumstances.  I then requested the respondent to provide supplementary submissions as to whether Australia had any international treaty obligations that might confer a discretion on the tribunal to grant citizenship on humanitarian grounds.  The respondent subsequently filed comprehensive submissions which were most helpful.  These submissions referred to a number of cases, including Dietrich v R (1992) 177 CLR 292 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. These cases are authorities for the following propositions that are relevant to the present matter:

(a)treaties ratified by Australia have no direct legal effect upon Australia’s domestic law in the absence of legislation implementing the terms of the treaty;

(b)without implementing legislation, a treaty ratified by Australia cannot confer upon an individual a private legal right or obligation; and

(c)treaties that have been ratified but not implemented by Australia can be taken into account as part of the process of statutory construction, for example where a statutory provision is ambiguous, but otherwise, statutes must be applied even if this would conflict with a principle of international law or with Australia’s international obligations.

17.     The supplementary submissions proceeded to refer to various treaties, but it is clear that none of the treaties can be relied upon by the applicant to override the clear requirements of s 22(1)(a) of the Act, or to confer on this tribunal a discretion which is not provided for in the Act.

18.     As counsel for the Minister, Mr d’Assumpcao, properly pointed out, the delegate’s refusal of Mr Herz’s application will not preclude him from lodging a fresh application when he is in a position to meet the residency requirements of s 22(1)(a).  However, he had not met those requirements when he lodged the application that is under consideration in the present proceedings, and as a result he is not eligible under s 21(2) to be granted Australian citizenship.

19.     The other grounds for eligibility of citizenship referred to in s 24(1A), namely ss  21(3), (4), (5), (7) and (8), are not applicable in the present case.  It follows that by virtue of s 24(1A) of the Act, this tribunal, standing in the shoes of the Minister in the present proceedings, must not approve Mr Herz’s application because he is not eligible to become an Australian citizen under any of the stipulated subsections of s 21.

Decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis

…[Signed]…

Associate

Date/s of Hearing  17 December 2010 
Date of Decision  28 March 2011

Date of final submissions

received  28 January 2011
Applicant  In person 

Solicitor for the Respondent     Mr P d’Assumpcao

Australian Government Solicitor