Ji Lei SHEN and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 882

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 882

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/1798

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ji Lei SHEN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Britton

Date 16 November 2009

Place Sydney

Decision  The decision under review is affirmed

..............................................

CATCHWORDS: Administrative Law – Citizenship – Application of transitional provisions contained in Item 5B of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 – Application of ‘special residence requirement’ contained in Item 8 of Sch 2 of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009

Australian Citizenship Act 2007 (Cth) – ss 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) – Schedule 3

Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth) – Schedule 2

REASONS FOR DECISION

1.           Ms Ji Lei Shen is an Australian permanent resident and resides in China. She applies to the Tribunal for review of the decision to refuse her application for conferral of Australian citizenship.  

2.           Ms Shen has spent a total of just under three years in Australia, spread over five visits. She was last in Australia in May 2006. In 2002 she was granted permanent residency and five years later made an application for Australian citizenship. That application was refused.

decision under review

3.           By letter dated 2 April 2009, a delegate of the Minister for Immigration and Citizenship notified Ms Shen that her application for conferral of citizenship had been refused. The stated reason for that decision was Ms Shen’s purported failure to meet the ‘residency requirement’ prescribed by the Australian Citizenship Act 2007 (Cth) (the 2007 Act).

4.           The delegate also decided that the rules relating to applicants involved in ‘activities of benefit to Australia’ had no application because of recent changes to the law governing the conferral of Australian citizenship.

What legislation applies?

5.           Ms Shen asserts that her application should have been determined under the ‘old law’ by which I understand her to mean the Australian Citizenship Act1948 (Cth) (1948 Act). She claims that she would have satisfied the residence requirement contained in the 1948 Act on the basis of her involvement ‘in activities beneficial to the interests of Australia’.

6.           Under the 1948 Act an applicant for citizenship was required to satisfy various criteria which included a minimum period of residence in Australia — ‘the residence requirement’ (s 13(1)(d)&(e) of the 1948 Act). As Ms Shen correctly points out, the 1948 Act gave the Minister a broad discretion to treat any period a permanent resident applicant had not been present in Australia but was ‘engaged in activities that the Minister considers beneficial to the interests of Australia’ as a period in which the applicant was present in Australia, for the purpose of satisfying the residence requirement (s 13(4)(c) of the 1948 Act). 

7.           The 1948 Act was repealed with effect from 1 July 2007. Parts of the 2007 Act ― including, relevantly, ss 21 (application and eligibility for citizenship) and 22 (general residence requirement) ― commenced on 1 July 2007.

8. Where an applicant was a permanent resident immediately before the commencement of the 2007 Act, and had applied for Australian citizenship within three years of its commencement, their application for citizenship is subject to Item 5B of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (Transitionals Act): see Item 5B (1). 

9.           Accordingly Ms Shen’s application is subject to the provisions of the Transitionals Act and not the 1948 Act because while a permanent resident when the 2007 Act commenced, her application was made after its commencement (viz 10 October 2008).  

does Ms Shen meet the residence requirement?

10.          Item 5B of the Transitionals Act modifies the operation of ss 21 and 22 of the 2007 Act, relevantly those provisions dealing with residency.  By the operation of Item 5B(1), Ms Shen must establish that she had 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.

11.          Ms Shen plainly does not satisfy the requirement in Item 5B(1) as she was present in Australia for only 69 days in the five year period before making her application and not at all in the two year period before that date.

Does a special residence requirement apply?

12.          The discretion available under the 1948 Act ― which allowed the Minister to treat time spent by a permanent resident engaged in activities of a beneficial nature to Australia while overseas, as time spent in Australia — was not carried over into the 2007 Act. Therefore that discretion could not be exercised in respect of Ms Shen’s application.

13.          In September 2009, the 2007 Act was amended to include a ‘special residence requirement’. These amendments apply only to applications for conferral of Australian citizenship made on or after 21 September 2009: Item 8 of Sch 2 of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth). As Ms Shen’s application was made in October 2008, these amendments have no application.

Can Ms Shen meet the residence requirement in any other way?

14.          A number of other exemptions to the residence requirement are available to Ms Shen: ss 22(5), 22(6), 22(9), 22(11) and 23 of the 2007 Act and Item 5B(2) of the Transitional Act. There is no evidence to support a finding that she satisfies any of these exemptions and nor is this asserted.  

Conclusion 

15. The residence requirement is one of a number of mandatory statutory criteria an applicant for Australian citizenship must satisfy. Ms Shen does not meet the applicable residence requirement (Item 5B(1) of Schedule 3 of the Transitionals Act) and cannot avail herself of any of the available exemptions. Accordingly her application for conferral of Australian citizenship must be refused.

16.          As the solicitor for the Minister pointed out, this decision does not preclude Ms Shen from making a fresh application. The special residence requirement contained in s 22A of the 2007 Act applies to applications made after 21 September 2009.  It should be noted that that provision is in materially different terms to the equivalent provision contained in the 1948 Act.

Orders

The decision under review to refuse Ms Shen’s application for Australian citizenship is affirmed.

I certify that the   preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ................................[SGD]..............................................
  Michael Granziera, Associate

Date/s of Hearing  5 November 2009
Date of Decision  16 November 2009
Solicitor for the Applicant          In person
Solicitor for the Respondent     Ms A Linacre, Clayton Utz