Hollonds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 981

Hollonds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 981 (28 February 2020)

Division:GENERAL DIVISION

File Number:2019/7313          

Re:Katherine Ann Hollonds

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date of decision:  28 February 2020

Date of written reasons:         17 April 2020

Place:Melbourne

The Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975 dismisses the application.

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

Mr A. Maryniak QC, Member

Catchwords

PRACTICE AND PROCEDURE – citizenship – application for dismissal pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 – no reasonable prospects of success – general residence requirement not satisfied – discretions not enlivened – application granted – substantive application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Mr A. Maryniak QC, Member

17 April 2020

1. The Applicant seeks review of the decision of a delegate of the Respondent made on 23 October 2019 to refuse the Applicant’s application for citizenship pursuant to s 22 of the Australian Citizenship Act 2007 (the Act).  She currently holds a Resident Return Visa (subclass 155) (RRV).

2. The Respondent brings this interlocutory application pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), contending that the substantive application has no reasonable prospects of success on established facts and in law. In summary, the Respondent contends that the Applicant cannot satisfy the general residence requirement under the Act because she was neither a permanent resident nor present in Australia during the period 12 June 2018 to 20 June 2018 (the Relevant Period), being a period falling within the 12 months preceding her application for citizenship made 8 November 2018.

3. Relevantly, in April 2018 the Applicant held a RRV which expired on 12 June 2018 (T15).  The Applicant lodged an application for a new RRV on 21 April 2018.  However, the subsequent RRV was not granted until 20 June 2018, some days after the Applicant had departed Australia.

4. Some months after the subsequent RRV had been applied for and granted, the Applicant lodged her citizenship application, the foundation of this application, on 8 November 2018.

5. The Applicant returned to Australia on 2 May 2019.

6. The Respondent submits and the Tribunal finds that the Applicant was not present in Australia nor did she hold a permanent visa during the Relevant Period.

7. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless that person is eligible under the Act.  This provision is an express prohibition and is not discretionary.

8. Relevantly, s 21(2)(c) of the Act provides that to be eligible to become an Australian citizen by conferral, a person must satisfy the general residence requirement in s 22 of the Act.  The critical general residence requirement in s 22(1)(c) of the Act is that the person was present in Australia as a permanent resident for the period of 12 months immediately before the day that person made the application.

9. In relation to this application, this mandatory requirement means that for the period comprising 12 months prior to 8 November 2018, the Applicant must have been present in Australia as a permanent resident throughout that period in order to satisfy the requirement under the Act.

10. As stated above, the Respondent submits and the Tribunal has found that during the Relevant Period, which falls within the critical 12 month period, the Applicant was neither present in Australia nor was she a permanent resident.

11. At the dismissal hearing, the Applicant was represented by her husband, Mr Hollonds.  They have been married for 31 years and the Applicant had serious health issues emerging through the period May to August 2018.

12. On behalf of the Applicant, it was submitted that over the years she had made three earlier citizenship applications, one in 2015, one in September 2018 and one in October 2018.  These were all unsuccessful.  She has owned three homes in Australia, has significant investments in Australia, and holds bank and credit card accounts.  She has substantial family and other ties with Australia and is of good character.  She has no criminal history, is financially independent and intends to continue to reside in Australia.  She is in essence a ‘model’ resident of Australia.

13. The Applicant lodged with the Tribunal various documents which have been considered including one titled ‘Interlocutory Hearing Seeking Dismissal – the Applicant, Katherine Hollonds Response’, which Mr Hollonds spoke to.

14. In summary, the main argument put was that the Applicant was lawfully in Australia during the critical period both before and after her RRV expired and that the Respondent had incorrectly deemed, without cause, her permanent residency as expired before she actually left Australia.  As a result of that error, she was unable to rely on her permanent residency expiry for the period after she departed Australia on 12 June 2018 and until      20 June 2018.

15. It was also submitted that during telephone calls with the Respondent throughout May and June 2018, the Applicant was told she could depart Australia and that such departure would have no effect on her permanent residency.  On this basis it was submitted that the Applicant qualified by way of administrative error to an entitlement to the Ministerial discretion pursuant to s 22(5) of the Act.

16. The Applicant submitted that because her RRV expired upon her proceeding through passport control at around 8.14am on 12 June 2018, but that she was still physically airside until her aircraft took off some 3 to 4 hours later, that the Respondent had unlawfully deemed her RRV as expired whilst she was still physically airside.  It is contended that this ‘error’ meant she was unable to rely on her earlier permanent residency expiry for the period after she departed Australia on 12 June 2018 until               20 June 2018. 

17. Subsections 5(1)(a) and (b) of the Act define a permanent resident as such if and only if:

    (a)[that] person is present in Australia at that time and holds a permanent visa at that time; or

    (b)both:

    (i)     [that] person is not present in Australia at that time and holds a permanent visa at that time; and

    (ii)    [that] person has previously been present in Australia and held a permanent visa immediately before last leaving Australia…

18. The Respondent submits that as a consequence of the Applicant’s visa expiring on 12 June 2018 and a further permanent visa not being issued until 20 April 2018, the Applicant did not hold a permanent visa between these dates and thus was not a permanent resident in Australia during the Relevant Period.

19. With respect to the alleged administrative error, section 22(5) of the Act relevantly provides:

    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.

20. The Respondent properly makes the point that regardless of any processing errors or administrative errors, the Applicant cannot rely upon this discretion as she seeks its exercise to bridge the Relevant Period.  In such circumstances, this discretion cannot be enlivened because the Applicant was not present in Australia during the Relevant Period.   There is no dispute on the facts of her absence from Australia during the Relevant Period. As a consequence, the Applicant does not satisfy the requirement of s 22(1)(c) of the Act.

21. Equally, the Applicant is shut out from any claim as to hardship under the Minister’s discretion pursuant to s 22(6) of the Act because such discretion cannot be enlivened as; again, she was not present in Australia during the Relevant Period.

22. As to the alleged representation(s) from the Respondent made prior to the Relevant Period with regard to the Applicant leaving Australia and the status of her permanent residency, the Tribunal is satisfied on the basis of the submissions and sequence of accepted facts, that such could only have impacted on permanent residency.                 Any representation(s) could not be relevant or applicable to any future application for Australian citizenship made some six months later, such application not having being contemplated around the time the alleged representations were said to have been made.

23. Having considered the documentary evidence comprising the T documents in this matter and the written and oral submissions of the parties (save for some written materials forwarded to the Tribunal by the Applicant after the Tribunal had made its decision) the Tribunal is satisfied that the foundation for the Respondent’s interlocutory application is established.

24. That said, the Tribunal does understand the unfortunate difficulty faced by the Applicant in this matter and this decision should not be taken as any reflection upon her as a future Australian citizen should she elect to bring a fresh application for citizenship, which she is not prevented from doing in the future.

25. By reason of the matters discussed above, the Tribunal dismisses the Applicant’s application for review dated 7 November 2019 pursuant to s 42B(1) of the AAT Act.

I certify that the preceding twenty five (25) paragraphs are a true copy of the written reasons for the decision of Mr A. Maryniak QC, Member.

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

Associate

Dated: 17 April 2020              

Date of hearing:	28 February 2020
Advocate for the Applicant:	Mr Allan Lloyd Hollonds
Solicitors for the Respondent:	Clayton Utz Lawyers Mr Oliver Morris