Hingorani and Minister for Immigration and Citizenship

[2011] AATA 266

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3445

GENERAL ADMINISTRATIVE DIVISION		)
Re		Deepak HINGORANI

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date21 April 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Mr RP Handley
  Deputy President

CATCHWORDS

CITIZENSHIP - conferral of citizenship - applicant married to Australian citizen - applicant does not meet residence requirements – application of Australian Citizenship Instructions – decision under review affirmed

RELEVANT LEGISLATION

Australian Citizenship Act 2007: ss 21, 22, 22A, 22B, 23, 24

Australian Citizenship (Transitionals and Consequentials) Act 2007: Sch 3, item 5B

Acts Interpretation Act 1901: s 15AB

CITATIONS

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Sapronov and Minister for Immigration and Citizenship [2011] AATA 126

OTHER AUTHORITIES

Australian Citizenship Instructions, Chapter 5

Australian Citizenship Bill 2005 Revised Explanatory Memorandum

REASONS FOR DECISION

21 April 2011 Mr RP Handley, Deputy President           

1.      Mr Hingorani has applied for a review of a decision of a delegate of the Minister of Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground that he did not meet the residence requirements.  The issue for the Tribunal is whether this is the correct or preferable decision.

BACKGROUND

2.      Mr Hingorani was born in India in October 1958 and is aged 52.  He is presently an Indian citizen.  Mr Hingorani first arrived in Australia with his wife in August 2001 holding permanent subclass 136 Skilled - Independent visas.  His wife was granted Australian citizenship on 18 February 2009.

3.      On 11 May 2010, Mr Hingorani applied for Australian citizenship by conferral.  On 13 July 2010, a delegate of the Minister refused his application on the ground that he did not meet the residence requirements.  On 16 August 2010, Mr Hingorani applied to the Tribunal for a review of this decision. 

Discussion

4.      Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen.  Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility requirements:

(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 has completed relevant defence service (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.

5.      Thus, s 21(2)(c) requires that the applicant must either satisfy the residency requirement set out in ss 22, 22A or 22B or have completed the relevant defence service described in s 23.  However, because Mr Hingorani was a permanent resident at the time of the commencement of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transition Act) on 1 July 2007 and lodged his application prior to 1 July 2010, the residency requirement set out in s 22(1) of the Act does not apply to him and, instead, he has to satisfy the residency requirement set out in item 5B of Schedule 3 of the Transition Act:

5BCitizenship by conferral - persons who are permanent residents at commencement

(1)This item applies if:

(a)a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and

(b)the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.

(2)In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)For the purposes of section 21, a person satisfies the general residence requirement if the person has been present in Australia as a permanent resident for:

(a)   a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)   a total period of at least 2 years in the period of 5 years before that day.

…

6. The Movement Records for Mr Hingorani provided by the Department of Immigration and Citizenship (the Department) show that in the two years before the day on which Mr Hingorani lodged his application for citizenship on 11 May 2010, that is from 11 May 2008 to 10 May 2010, he was present in Australia for 54 days. In the five‑year period 11 May 2005 to 10 May 2010, he was present for 106 days. Thus, Mr Hingorani does not satisfy the general residence requirements set out in item 5B(2)(1) of Schedule 3 of the Transition Act.

7.      Consideration must therefore be given to whether any of the Ministerial discretions set out in ss 22(4A) to (11) of the Act are applicable to enable Mr Hingorani to otherwise satisfy the general residence requirements.  Section 22(4A) and (5) are concerned with administrative error and Mr Hingorani does not contend that such an error occurred in this case.  Section 22(5A) is applicable where a person is confined in prison or a psychiatric institution, and is not relevant in Mr Hingorani’s case.  Section 22(6) applies where the Minister is satisfied that the person will suffer significant hardship or disadvantage if a period during which the person was present in Australia (except as a permanent resident or unlawful non-citizen) is not treated as one during which the person was present in Australia for the purpose of satisfying the general residence requirements. 

8.      Mr Hingorani contends that s 22(6) is a relevant discretion and points to the actions he and his family have taken since arriving in March 2006.  These actions have included he and his wife renting and subsequently purchasing a unit in Parramatta, obtaining health insurance, settling his sons into secondary school and university, his wife obtaining casual employment and his enrolling with CPA Australia, and his passing his driving test.  Mr Hingorani said it was necessary for him to spend a significant time away from Australia because of the nature of his work.  He contends that due to his family’s determined efforts, they have been successful in overcoming significant hardship or disadvantage, resulting in his wife and two sons being granted Australian citizenship.  As a consequence, he would be subjected to hardship or disadvantage “both on professional (inability to obtain employment) and personal – emotional grounds (3 members of my family are living in Australia), if variation to residence requirements is not granted and my application for citizenship is refused”.

9.      Guidance to decision-makers as to what is meant by significant hardship or disadvantage in this context is provided by Government policy in the form of the Australian Citizenship Instructions (the Instructions).  Attachment B to the Instructions provides guidance on what constitutes significant hardship and disadvantage.  Attachment B states that the onus is on the applicant to provide evidence to support the application and that the applicant would normally be required to demonstrate some or all of (1) an inability to gain employment because employment is restricted to Australian citizens, (2) difficulty of international travel because a person is unable to obtain or use a passport from their country of nationality/citizenship, and (3) academic or other potential is limited or restricted because of a lack of Australian citizenship.  Each application must be assessed on its merits but while “policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy”.

10.     Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case:  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.

11.     I acknowledge that migrating to another country requires addressing a whole range of issues in the settling-in process, some of which will undoubtedly be very challenging.  I also accept Mr Hingorani’s evidence that he has continued working overseas in what he believes to be his family’s best interests and, in particular, in order to ensure their financial security so that his children can focus on their education and so that any family health problems can be appropriately treated in Australia.  However, in my view this is not the sort of hardship or disadvantage anticipated by the Instructions.  Moreover, in any event, as Ms Stone, for the Minister pointed out, s 22(6) does not apply in Mr Hingorani’s case because it only permits time spent in Australia to be counted in satisfying the general residence requirements and does not apply in respect of time spent outside Australia.

12.     Thus in my view, the delegate correctly identified the relevant discretion in Mr Hingorani’s case as that set out in s 22(9) which states:

(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.

13.     I agree with the Minister’s submission that the discretion is only available in respect of periods spent outside Australia from the time when Mr Hingorani’s wife became an Australian citizen to the time Mr Hingorani lodged his application for citizenship.  I respectively disagree with the decision of the Tribunal in ReSapronov and Minister for Immigration and Citizenship [2011] AATA 126, to which Ms Stone drew my attention, which decided otherwise. I note the use of the words ‘that period’ in s 22(9)(a) referring back to the word ‘period’ in the first sentence of the subsection. Section 15AB(1) of the Acts Interpretation Act 1901 permits reference to extrinsic material to confirm the meaning of a provision of an Act or to determine the meaning of a provision where the provision is ambiguous or obscure or the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or unreasonable.  Such extrinsic material includes any explanatory memorandum relating to the Bill containing the provision laid before either House of the Parliament by a Minister before the time when the provision was enacted (s 15AB(2)(e)). 

14.     In the case of the Australian Citizenship Bill 2005, which was enacted on 15 March 2007 and became the Australian Citizenship Act 2007, the Revised Explanatory Memorandum for the Bill, which took into account amendments made by the House of Representatives and was circulated by authority of the Minister, stated with regard to the then clause 22(9) of the Bill:

This provision allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the period overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the period spent overseas.  [My emphasis]

15. In my view, the Revised Explanatory Memorandum supports an interpretation of s 22(9)(a) of the Act as meaning that the discretion can only be exercised in respect of periods spent overseas when the person’s spouse was an Australian citizen. I note that the interpretation adopted by the Instructions, accords with my view. However, such policy does not fall within the list of extrinsic material included in s 15AB(2) of the Acts Interpretation Act 1901 to which reference can be made in interpreting legislation and I have not taken that policy into account in forming my view as to how s 22(9) should be interpreted.  The policy, which is intended to guide decision-makers in the exercise of the s 22(9) discretion, states:

The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:

·the applicant was the spouse or de facto partner of a person who was an Australian citizen, and

·the applicant was a permanent resident and

·the applicant had a close and continuing association with Australia

16.     The interpretation of s 22(9) I have adopted means, in Mr Hingorani’s case, that the discretion can only be exercised in respect of periods spent overseas when his wife was an Australian citizen.  Mr Hingorani’s wife became an Australian citizen on 18 February 2009.  The discretion may therefore be exercised in respect of any periods Mr Hingorani was outside Australia between that date and when he lodged his application for citizenship on 11 May 2010. 

17.     The Department’s Movement Records show that Mr Hingorani spent a total of 425 days outside Australia during this period.  Thus, if the discretion were exercised in his favour, and all of this time spent outside Australia were treated as if it were time spent in Australia, he would satisfy item 5B(2)(1)(a) (54 + 425 days = 479 days) because the total days amount to a period of greater than one year in the two year period 11 May 2008 to 10 May 2010.  However, he would still not satisfy item 5B(2)(1)(b) because the total days (106 + 425 = 531) amount to a period of less than two years in the five year period 11 May 2005 to 10 May 2010.

18.     In conclusion, I am satisfied that the relevant discretion in s 22(9) of the Act, if exercised in Mr Hingorani’s favour, would not assist him in meeting the applicable general residence requirements.  Thus, because he does satisfy these requirements, he is not eligible for the conferral of Australian citizenship.

Decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:..............[sgd].................................................................
  A. Veness, Associate

Date of Hearing:  12 April 2011
Date of Decision:  21 April 2011
Representative for the Applicant:              Self-represented
Representative for the Respondent:         M Stone, DLA Phillips Fox