Kamore and Minister for Immigration and Citizenship

[2011] AATA 765

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 765

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2011/2065  

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER KAMORE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date31 October 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

CITIZENSHIP – general residence requirements – special residence requirements – Ministerial discretion – whether the Tribunal has any discretion – person not present in Australia – decision under review affirmed.

Australian Citizenship Act 2007 ss 21, 22, 22A, 22B

Migration Regulations 1994 Sch 2 cl 881.511

Australian Citizenship Act 2007 – Special Residence Requirement under Section 22C – September 2009

REASONS FOR DECISION

31 October 2011                 Ms N Isenberg, Senior Member

1.      On 30 May 2011 Mr Kamore applied for review of a decision to refuse his application for conferral of Australian citizenship.  The refusal was made on the basis that he failed to satisfy the general residence requirements under section 22 of the Australian Citizenship Act 2007 (the Act). 

BACKGROUND

2. Mr Kamore first entered Australia on 17 December 1999 as the holder of a Subclass 560 (Student) visa. He was first granted a permanent visa on 3 May 2005, when he was granted a Subclass 881 (Skilled-Australian-sponsored Overseas Student) visa. That visa permitted him to travel to and enter Australia for a period of 5 years from the date of grant: clause 881.511 of Schedule 2 of the Migration Regulations 1994.

3.      On 22 March 2010, less than five years after he was granted a permanent visa, and while he was in Kenya, Mr Kamore applied to become an Australian citizen on the basis that he satisfied the general eligibility criteria.

ISSUES

4.      The issues to be determined by the Tribunal are whether Mr Kamore satisfies:

·the general residence requirement (as it applies to a person who was a permanent resident immediately before 1 July 2007 and applied for citizenship on or before 1 July 2010) pursuant to section 22 of the Act;

·the special residence requirement at section 22A of the Act; or

·the special residence requirement at section 22B of the Act.

MR KAMORE’S SUBMISSIONS

5.      Mr Kamore said he first came to Australia in December 1999 to study at Wollongong University.  As an overseas student his tuition fees were $6,000 per semester.  His goal was to become a pilot.  He understood that in order to be considered for employment by Qantas there was a requirement of tertiary qualifications and Australian residency.  He graduated in 2003 with a Bachelor of Commerce majoring in Economics. 

6.      He commenced flight training at a cost of either $250 or $340 per hour which he financed by working odd jobs and it involved a lot of personal sacrifice.  In May 2005 he was granted a permanent resident visa. 

7.      He ultimately achieved the required minimum of 250 hours to obtain a commercial pilots’ licence.

8.      As a junior pilot, he needed to get more experience to meet the requirements of Qantas.  This proved too difficult as the Australian job market was filled with experienced pilots, so he left Australia to try his luck in Africa.  He obtained, he said, a vast range of experience flying into war-torn regions like Southern Sudan and Somalia.

9.      He returned to Australia in September 2008 and pursued an Airline Transport Pilots’ Licence.

10.     In November 2008 his elder brother (who is an Australian Citizen and also in the aviation industry), was hijacked while on a humanitarian flight and was detained in Somalia.  Mr Kamore’s family in Kenya were devastated and not coping, so he left Australia for Nairobi.  After nine months, following ransom demands and intervention from the Australian, French and Kenyan governments, his brother was released.  The financial drain made it impossible for Mr Kamore to return immediately to Australia, and he remained in Kenya where he continued to build his flight time and experience.

11.     He applied for Australian citizenship at the Australian Embassy in Nairobi in March 2010. 

12.     In March this year he received an email from Qantas informing him that he had been shortlisted for pilot testing and he was required in Australia for the simulator interview.  By this time, his Australian residency had expired, although he was immediately granted a resident return visa when requested.

13.     He then learned that because Qantas had ‘introduced a new route to Port Moresby’, Australian citizenship is now a pre-requisite for its pilots.

14.     Mr Kamore said that he has a Kenyan wife and two very young children.  He said that the company he worked for for two years only paid him about $900 per month, and he and others have been laid off as there is little work.

15.     Mr Kamore confirmed in his evidence that he was first granted a permanent visa on 3 May 2005 and, between that date and the date of his application for citizenship, he spent the following periods in Australia:

•3 May 2005 - 15 June 2005 (44 days)

•1 July 2005 - 12 April 2006 (286 days)

•24 April 2006 - 30 September 2006 (160 days)

•10 April 2007 - 18 April 2007 (9 days)

•18 September 2008 - 31 January 2009 (136 days)

CONSIDERATION

16.     I accept that Mr Kamore has had a long-term career goal of working for Qantas and has worked assiduously for some years to meet their requirements.  Indeed, this is no idle dream: he has provided correspondence from Qantas that suggests that he would have reasonable prospects of achieving that goal.  The present obstacle, I accept, is his status, that is, that he is not an Australian citizen and for that reason, presses this application.  Unfortunately, his motivation in seeking citizenship is not a matter for me.  I must apply the law as it relevantly applies.  There can be no dispute that the law is cumbersome and formulaic – but, nonetheless, it is the law which I must apply.

17.     Under section 21(1) of the Act a person may make an application to the Minister to become an Australian citizen.  The criteria that must be satisfied by a person applying for Australian citizenship under section 21 includes satisfying the general eligibility grounds (as required under section 21(2)(c)), which are that the person satisfies the general residence requirement or one of the special residence requirements, at the time of application.

General Residence

18.     In applying section 22 of the Act (the "general residence requirement") to an application made on or before 1 July 2010 by a person who was a permanent resident immediately before 1 July 2007, as is the case here, the following applies:

(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.

(2) ...

(3) …

19.     Mr Kamore does not satisfy the general residence requirement in section 22(1).  In the two years before applying for citizenship he spent a period of 136 days in Australia.  This is less than one year.  He therefore does not satisfy section 22(1)(a) of the general residence requirements.

20.     Further, he spent only a total period of 635 days in Australia (less than two years) in the five years from being granted a permanent visa to the date of his application for citizenship.  He therefore does not satisfy section 22(1)(b) of the general residence requirement.

Ministerial Discretion

21.     There are limited discretions available to the Minister (or delegate) which allow for periods in which a person was not present in Australia to be treated as a period in which the person was present in Australia, but these are limited to spouse and dependent relationships: sections 22(9) and 22(11) of the Act.

22.     Neither of the Ministerial discretions at sections 22(9) and 22(11) can be applied in relation to Mr Kamore because he is not the spouse or de facto partner of an Australian citizen, nor is he in an interdependent relationship with an Australian citizen.

Special Residence: Section 22A

23.     Where a person is engaging in activities that are of benefit to Australia and the person needs to be an Australian citizen in order to engage in that activity, the residency requirements are less onerous, but the categories of activities are very limited such as employment which requires a high-level security clearance or participation in various Australian sporting teams.  Mr Kamore does not satisfy the special residence requirement in section 22A.  There is no evidence that Mr Kamore is seeking to engage in the very limited activities referred to in the Australian Citizenship Act 2007 – Special Resident Requirement under Section 22C – September 2009 legislative instrument made by the Minister pursuant to section 22C of the Act.

Special Residence: Section 22B

24.     Where a person engages in particular kinds of work requiring regular travel outside Australia, the residency requirements are less onerous but, again, the categories of activities are limited. It includes being a member of the crew of an aircraft.

25.     It is clear that the provision relates to classes of workers who, in the course of their work are required to travel overseas.  Mr Kamore’s work, albeit as member of the crew of an aircraft, does not come within this provision. 

26.     Mr Kamore also does not satisfy the special residence requirement at section 22B.  He spent only a total of 327 days in Australia (and therefore less than 480 days) in the four years immediately before the date of his application for citizenship.  He therefore does not satisfy section 22B(1)(c) of the special residence requirement.

27.     Further, in the 12 months immediately before applying for citizenship, he spent no days in Australia and so does not satisfy section 22B(1)(d) of the special residence requirement.

Person Not Present in Australia

28.     Where a person is not present in Australia, as is the case here, there are restrictions upon approval of that person becoming an Australian citizen in any event.  Those circumstances include, at section 24(5):

If:

(a)the person is covered by subsection 21(2), (3) or (4); and

(aa)the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

…

the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

29.     That means there is no discretion unless the person meets the strict criteria as set out above.

30.     Mr Kamore should not be discouraged from his aspirations.  However, as the law stands at present, he is likely to have to return to Australia to gain citizenship, which he sees as the remaining impediment to his goal.  The law, especially in migration and citizenship, is undergoing frequent change and Mr Kamore should monitor any changes which may alter the legislative requirements.

DECISION

31.     For the reasons set out above I find Mr Kamore does not satisfy any of the residence requirements required in order to meet the criterion at section 21(2)(c) of the Act.

32.     Consequently, the decision refusing his citizenship application is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ........[sgd].....................................................................
             C. Taylor, Associate

Dates of Hearing  20 October 2011
Date of Decision  31 October 2011
Applicant  Self-Represented

Solicitor for the Respondent     Will Sharpe, Sparke Helmore