Islam and Minister for Immigration and Citizenship

[2011] AATA 414

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5315

GENERAL ADMINISTRATIVE DIVISION		)
Re		Prithee Islam

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Decision Date  15 June 2011

Date of Written Reasons     17 June 2011

Place  Sydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

CITIZENSHIP – application by 12-year old Bangladeshi citizen – holder of Bridging E visa – applicant not a permanent resident – whether discretion to treat applicant as permanent resident – general residence requirement – no discretion to treat applicant as permanent resident – decision under review affirmed

Australian Citizenship Act 2007 ss 21, 22

REASONS FOR DECISION

17 June 2011	Senior Member Jill Toohey
Background

1.      Ms Prithee Islam is a twelve-year old citizen of Bangladesh.  She arrived in Australia with her parents in January 2006.  In February 2006, her father applied for a protection visa.  His application has been the subject of proceedings in the Refugee Review Tribunal, and the Federal and High Courts.

2.      Since February 2006, Ms Islam has held a Bridging E visa (BVE) on the basis of her father’s application for a protection visa.  The BVE entitles her to remain in Australia pending the outcome of proceedings but does not entitle her to permanent residence.

3.      On 6 September 2010, Ms Islam applied for Australian citizenship.  On 25 November 2010, a delegate of the Minister for Immigration and Citizenship (the Minister) refused her application.  Ms Islam seeks review, through her parents, of that decision.   

4.      At a hearing on 15 June 2011, I affirmed the decision under review.  These reasons reflect those given orally at the conclusion of the hearing.

Legislation

5.      The legislation concerning conferral of citizenship is contained in the Australian Citizenship Act 2007 (the Act).

6.      As a general rule, a person is eligible for citizenship if she is over 18 at the time of her application, a permanent resident at the time of making the application and at the time of the decision, and if she satisfies the general residence requirement: s 21(2).  (There are other criteria but they do not matter here).  

7.      One of the criteria to be satisfied in order to meet the general residence requirement is that a person be present in Australia as a permanent resident for 12 months immediately prior to making her application for citizenship: s 22(1)(c). 

8.      There are a number of exceptions in the Act to the general eligibility criteria, and a number of discretions.

9.      An exception to the general eligibility criteria concerns persons aged under 18.  A person who is under 18 at the time of making her application is eligible to become a citizen if she is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application: s 21(5).  There is no requirement to satisfy the general residence requirement.

10.     There is a discretion in s 22(6) by which a person who would otherwise not satisfy s 22(1)(c), and who would therefore not satisfy the general residence requirement, may be treated as a permanent resident. 

11.     Section 22(6) provides:

For the purposes of s 22(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.

Consideration

12.     Ms Islam’s parents contend that the discretion in s 22(6) enables the Minister to treat her as a permanent resident and that the discretion should be exercised in her favour because she will suffer significant hardship and disadvantage otherwise.  They contend that nothing in s 22(6) limits the exercise of the discretion to adults.

13.     I do not agree with that contention.

14.     The discretion in s 22(6) is limited to the purposes of s 22(1)(c).  Section 22(1)(c) concerns that part of the general residence requirement that requires a person to be present as a permanent resident for 12 months immediately prior to making an application. 

15.     The discretion in s 22(6) is not to enable a person who has never been a permanent resident to be treated as a permanent resident.  It goes specifically, and only, to the general residence requirement.

16.     As already noted, a person under 18 is not required to satisfy the general residence requirement.  However, any applicant, regardless of age, must be a permanent resident at the time of making her application and at the time of the Minister’s decision: s 21(2)(b) and s 21(5)(b).  At all material times, Ms Islam has held a BVE; she has not been a permanent resident.

17.     There is no discretion in the Act by which a person who was not a permanent resident at the material times may be treated as a permanent resident for the purpose of a citizenship application.

18.     In support of her application, Ms Islam’s parents refer to information which accompanies the form on which an application for citizenship is made to the Department for Immigration and Citizenship by persons who fall into categories including being under 18 (Form 1290). 

19.     I accept that, read on its own, one paragraph of the information could be taken to mean that any person who was lawfully in Australia but not as a permanent resident may be treated as a permanent resident if she would otherwise suffer significant hardship or disadvantage.  However, read in context, it is quite clear that the discretion is in relation to the general residence requirement.  Moreover, other parts of the information in the form state specifically that an applicant under 18 will need to be a permanent resident.  Even if the information in the form were incorrect, it could not displace the provisions of the Act.

Conclusion

20.     The Minister (and, it follows, the Tribunal) must not approve a person becoming an Australian citizen unless she is eligible to become a citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

21.     I affirm the decision under review.

I certify that the 21 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  15 June 2011
Date of Decision  15 June 2011
Date of Written Reasons          17 June 2011
Applicant  Self-represented
Respondent  Ms J Cumming, Clayton Utz