Karen Varpetyan and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 495

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5106

GENERAL ADMINISTRATIVE DIVISION
Re		Karen Varpetyan

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal   Senior Member A K Britton

Date of decision                2 July 2010

Place   Sydney

Decision   The decision under review is affirmed.

..................[SGD]............................

Senior Member A K Britton

CATCHWORDS

CITIZENSHIP – eligibility –– decision under review affirmed

Australian Citizenship Act 2007 (Cth) ― s 21(2)(c)
Migration Act 1958 (Cth) — ss 13 and 14

REASONS FOR DECISION

Senior Member A K Britton

1.      Australian permanent resident, Mr Karen Varpetyan, applies to the Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to refuse his application for Australian citizenship. The stated reason for the delegate’s decision was Mr Varpetyan’s failure to satisfy one of the eligibility requirements for citizenship, specifically the “residence requirement” contained in the Australian Citizenship Act 2007 (Cth) (“the Act”).

2.      The key issues to be decided in this review are whether Mr Varpetyan satisfies the statutory residence requirement, and, if not, whether any exemption is available to him.

Does Mr Varpetyan satisfy the statutory residence requirment?

3.      Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if, among other things, the decision-maker is satisfied that the person:

(c) satisfies the general residence requirement (see section 22) or has completed relevant defence service (see section 23), at that time

4.      Mr Varpetyan has not completed relevant defence service and nor has this been suggested. The general residence requirement is contained in s 22 of the Act and provides:

General residence requirement

(1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

5.      Mr Varpetyan has been present in Australia since 30 November 1999 and therefore satisfies s 22(1)(a). However for the reasons that follow he does not satisfy ss 22(1)(b) or 22(1)(c).

6.      It is argued for the Minister that Mr Varpetyan does not satisfy s 22(1)(b) as he was present in Australia as an “unlawful non-citizen” in June 2007. (See s 3 of the Act and ss 13 and 14 of the Migration Act 1958 (Cth) for the definition of “unlawful non-citizen”). Mr Varpetyan’s bridging visa expired at midnight on 7 June 2007. He was granted a further bridging visa at about 11am the following day. Neither party was able to provide a copy of that visa. Mr Pinder for the Minister advises that neither the Migration Act nor the Regulations made under it provide for the retrospective operation of bridging visas. In the absence of such provision it would appear that the further bridging visa did not come into effect until the time it was granted.

7.      Therefore Mr Varpetyan was without a visa from midnight 7 June 2007 to about 11am on 8 June 2007.  It follows that he was present in Australia as an “unlawful non-citizen” during the four years immediately preceding the day he applied for citizenship — albeit for a matter of hours — and therefore does not satisfy s 22(1)(b).

8.      Mr Varpetyan’s application for Australian citizenship was made only nine months after he was granted permanent residency in September 2007. Section 22(1)(c) of the Act requires that he be present for a period of 12 months immediately before the day he made the application for citizenship.

9.      As Mr Varpetyan does not satisfy the general residence requirement and has not completed relevant defence service, by the operation of s 21(2) of the Act, he is ineligible to become an Australian citizen.

Do any exemptions apply?

10.     A number of exemptions apply where, as in this case, an applicant does not satisfy ss 22(1)(b) and/or 22(1)(c).  None apply in this case.

(i) Administrative error Exemption 

11.     Section 22(4A) provides that for the purposes of s 22(1)(b), the decision-maker may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the decision-maker considers the person was present in Australia during that period but, because of an administrative error, was an “unlawful non-citizen” during that period. There is no evidence and nor is it suggested that Mr Varpetyan’s presence in Australia as an “unlawful non-citizen” for part of 8 June 2007 was because of an administrative error.

12.     Section 22(5) is in similar terms and gives the decision-maker a discretionary power where the person was not present in Australia as a permanent resident because of an administrative error. Again there is no evidence of administrative error.

13.     It follows that Mr Varpetyan cannot rely on the exemptions contained in ss 22(4A) and 22(5).

(ii) Hardship exemption

14.     Where an applicant does not satisfy s 22(1)(c), the decision-maker may treat a period as one in which the person was present in Australia as a permanent resident, if they are 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: s 22(6) of the Act.

15.     Mr Varpetyan was unable to point to any relevant hardship or disadvantage. Accordingly as the pre-condition to the exercise of the discretionary power contained in s 22(6) is not satisfied, this provision cannot assist Mr Varpetyan.

(iii) Birth/prior citizenship exemption

16.     Section 22(1)(b) of the Act does not apply where the applicant was born in Australia or had been an Australian citizen at any time before making the application for citizenship: s 22(2). Mr Varpetyan was born outside Australia and has never been an Australian citizen. Therefore this exemption is unavailable.

Decision

17.     Mr Varpetyan does not satisfy the residence requirement contained in s 21(2)(c) of the Act and none of the available exemptions apply. Therefore he is ineligible for Australian citizenship. It follows that the decision to refuse Mr Varpetyan’s application for Australian citizenship must be affirmed.

I certify that the preceding 17 paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ...........................[SGD]........................................

Associate

Date of Hearing  18 June 2010
Date of Decision  2 July 2010   
Appearance for the Applicant        Self Represented
Appearance for the Respondent   DLA Phillips Fox