Khan and Minister for Home Affairs (Citizenship)

Khan and Minister for Home Affairs (Citizenship) [2019] AATA 2364 (30 July 2019)
Division:GENERAL DIVISION
File Number:2018/6926
Re:Dr Nayyer Naveed Khan
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Member S Barton

Date:30 July 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
11 May 2018 under review, is affirmed.
..........................[sgd].........................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirement – Australian citizen – application of Ministerial discretion – spouse or de facto partner – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 21, 22, 24, 52
CASES
Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Vasiunina and Minister for Immigration and Border Protection [2018] AATA 943
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 7A
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – cl 22
REASONS FOR DECISION
Deputy President Boyle
Member S Barton
30 July 2019
BACKGROUND

This is an application for the review of a decision of a delegate of the Respondent
(the Reviewable Decision). The Reviewable Decision, made on 31 October 2018
(T7, page 74) refused the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the general residence requirements under s 22 of the Citizenship Act.
BACKGROUND
The Applicant is trained as an orthopaedic surgeon and is a citizen of Pakistani citizen. He is not qualified to practice medicine in Australia. He was born in 1967 in Pakistan. He first arrived in Australia on 21 May 2006 and was granted an Employer Nomination Scheme Subclass (186 Permanent) visa on 24 January 2014 (Exhibit R1, paragraph [3]).
The Applicant is married to Dr Shagufta Gul, whom he met while they were both studying in Pakistan. They married in January 1992 and have four adult children. The Applicant, his wife and their children live in Australia.
The Applicant and his wife bought their first home in Australia in May 2013. They shifted from that house to their current address in March 2015 while their two eldest children were studying at university and the younger two children were enrolled in the local high school.
The Applicant’s wife has been practicing as a General Practitioner in Australia since 2012. The Applicant undertook post-graduate studies in orthopaedic surgery in Malaysia and since 2007 has been practicing as an orthopaedic surgeon for a medical practice in Malaysian on a ‘fly in and fly out routine’ (T5, pages 43-48, 53). This has resulted in significant absences by the Applicant from Australia.
The Applicant’s wife was granted Australian citizenship on 22 January 2018. All four children are also Australian citizens.
On 20 April 2018 the Applicant applied for Australian citizenship by conferral. On
31 October 2019 the Department of Home Affairs advised that the conferral of citizenship had been refused under the Citizenship Act because he did not satisfy the general residence requirement under s 22 of the Citizenship Act (T7, page 74).
On 27 November 2018 the Applicant applied to the Tribunal for a review of that decision (T2, page 3).
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act. The Applicant was at the time that he made the application for citizenship a permanent resident for the purposes of s 52(2) of the Citizenship Act being the holder of a permanent visa. The Tribunal is therefore satisfied that it has jurisdiction.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Friday 12 July 2019. The Applicant appeared in person and was unrepresented.
The Respondent was represented by Mr Ashley Burgess, who appeared in person.
The Applicant gave oral evidence and was cross-examined. The Applicant did not call any witnesses. Both parties made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
written statement of the Applicant, dated 14 February 2019

(Exhibit A1);
(b)written statement of Dr Shagufta Gul, dated 14 February 2019 (Exhibit A2);
(c)
written statement of Professor Sally Sandover, dated 24 February 2017

(Exhibit A3);
(d)
written statement of Dr Muhammed Jehangir, dated 28 January 2019

(Exhibit A4);
(e)the Applicant and his family’s Australian citizenship paperwork (Exhibit A5);
(f)copies of Certificate of Title, rates notice, and utility bills relating to the Applicant’s property in Australia (Exhibit A6);
(g)
documents relating to Wazir Family Trust property development project

(Exhibit A7);
(h)bundle of documents being Wazir Family Trust investment property council rates, landlord insurance and utility bills (Exhibit A8);
(i)Applicant financial statements and various accounts (Exhibit A9);
(j)Department of Home Affairs movement record (Exhibit A10);
(k)Applicant occupational English test and IELTS results (Exhibit A11);
(l)Respondent’s Statement of Facts, Issues and Contentions dated 17 April 2019 (Exhibit R1);
(m)documents produced under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T documents) numbered T1 to T11 comprising 117 pages (Exhibit R2); and
(n)Australian Citizenship Bill 2005 Explanatory Memorandum (Exhibit R3).
ISSUES
The issues for decision by the Tribunal are:
(a)whether the Applicant satisfies the general residence requirements under s 22 (1) of the Citizenship Act; and
(b)if not, whether the discretion under s 22(9) of the Citizenship Act can and should be exercised to treat any or all of the Applicant’s periods of absence from Australia as a period in which the Applicant was present in Australia as a permanent resident.
ELIGIBILITY FOR CITIZENSHIP
General eligibility criteria for Australian citizenship are set out in s 21(2) of the Citizenship Act which is as follows:
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
The only residence requirement that is relevant in this case for the purposes of
s 21(2)(c) is the general residence requirements under s 22(1) of the Citizenship Act .
Section 22(1) of the Citizenship Act is as follows:
(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.
(Original emphasis.)
Sections 22(1A) and (1B) of the Citizenship Act makes allowances for persons being overseas during the periods identified in s 22(1) as follows:
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than
12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B)If:
(a)the person was absent from Australia for a part of the period of
12 months immediately before the day the person made the application; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Under these provisions, a person is taken to have fulfilled the residency requirement if they were not absent for more than 12 months during the four years immediately before the day of their application for Australian citizenship and were not absent for more than three months in the 12 months immediately before the day of their application.
The Citizenship Act contains several subsections which provide for Ministerial discretion. Of note in this matter is the Ministerial discretion enabled by s 22(9) of the Citizenship Act, where Ministerial discretion may be exercised in some circumstances to treat a period that a person was absent as one in which a person was present in Australia as a permanent resident. Section 22(9) of the Citizenship Act provides the following:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, 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 a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
CONSIDERATION
The first issue to be addressed is whether the Applicant satisfies the general residence requirements under s 22(1) of the Citizenship Act. The Tribunal notes Senior Member Fice’s observations in Taher and Minister for Immigration and Border Protection [2013] AATA 917 (at [10] and [11]) (Taher) that ‘residency is of paramount importance when determining whether to grant citizenship to an applicant.’ Senior Member Fice points to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) which states:
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.
It not suggested that the Applicant was present in Australia at any time during the relevant period as anything other than a lawful non-citizen.
The Applicant was, by operation of s 22(1A) of the Citizenship Act, allowed to be:
absent for a part of the period of 4 years immediately before the day the person made the application; and
the total period of the absence or absences was not to be more than 12 months.
The departure and arrival records, which are not disputed by the Applicant, show that the Applicant was absent from Australia for a total of 944 days in the four years immediately prior to the application for citizenship. Section 22(1A) of the Citizenship Act permits a person to be absent from Australia for an aggregate period of 12 months in that four year period and still comply with s 22(1)(a). The Applicant was absent from Australia in excess of 12 months in aggregate over that period so therefore does not comply with s 22(1)(a) of the Citizenship Act.
The departure and arrival records also indicate that in the 12 months immediately before the Applicant made his application for citizenship he was absent from Australia for 256 days. Section 22(1B) of the Citizenship Act permits a person to be absent from Australia for an aggregate of 90 days during that 12 month period and still comply with s 22(1)(c). The Applicant was absent for more than 90 days in that period and therefore does not comply with s 22(1)(c) of the Citizenship Act.
The Applicant does not dispute that he does not meet the general residence requirements. In his submission to the Tribunal, the Applicant has described his professional circumstances which, he says, require him to practice as an orthopaedic surgeon in Malaysia, as he is not yet registered to practice as an orthopaedic surgeon in Australia. Put another way, the Applicant’s understandable desire to earn an income in his chosen profession is the reason that he has been absent from Australia for periods which mean that he does not meet the general residency requirements.
The Tribunal must consider whether the discretion in s 22(9) of the Citizenship Act can or should be exercised to treat any of the Applicant’s periods of absence from Australia as a period in which the Applicant was present in Australia as a permanent resident.
Senior Member Walsh, in Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 (at [22]), noted ‘It is clear from the EM [Explanatory Memorandum] that…[it] is intended to require spouses of Australian citizens to meet the same criteria as other adult applicants for Australian citizenship…’. However, ‘[t]he EM acknowledges that, in some circumstances, the spouse of an Australian citizen may have difficulty meeting the residence requirements…’ Section 22(9) of the Citizenship Act provides a basis upon which discretion may be exercised in those circumstances.
As Senior Member Fice in Taher at [19] notes:
The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s 22(1), even when allowances are made for overseas absence as provides in subsections (1A) and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia. It is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.
According to s 22(9) of the Citizenship Act, discretion may be exercised, and the Applicant’s periods of absence can be treated as periods in which the Applicant was present in Australia as a permanent resident if:
(a)the Applicant was a spouse or de facto partner of that Australian citizen during that period; and
(b)the Applicant was not present in Australia during that period; and
(c)the Applicant was a permanent resident during that period; and
(d)the Minister is satisfied that the Applicant had a close and continuing association with Australia during that period.
In his submission to the Tribunal, the Applicant has provided evidence of his associations with Australia; the Australian citizenship of his wife and children; the establishment of a family medical business and family trust; the purchase of properties; and community activities. It is clear that the Applicant is seeking recourse to the Ministerial discretion provided by s 22(9)(d) of the Citizenship Act, on the basis that he has ‘a close and continuing association with Australia’ during the periods of his absences.
However, s 22(9) of the Citizenship Act is conjunctive; Ministerial discretion may be exercised only if each condition is met. That the Applicant meets the requirements of s 22(9) (b) and (c) is not in dispute in this application, however, the Applicant must meet the requirement of s 22(9)(a), that is, that:
(i)the person was a spouse or de facto partner of that Australian citizen during that period.
(Emphasis added.)
There is no dispute that the Applicant’s wife is an Australian citizen. However, the Applicant’s absences during the four years, immediately before he made an application to become an Australian citizen, can only be treated by the Minister as a period in which he was in Australia if the Applicant’s wife was an Australian citizen during “that period” which, in this case, means those periods of absence.
On its ordinary meaning, the language of s 22(9)(a) of the Citizenship Act requires the Applicant to have been the spouse or de facto partner of an Australian citizen during periods that he was absent from Australia. That requires two things:
(i)that the person is married or in a de facto relationship; and
(ii)that the spouse or de facto is an Australian citizen
at the times when the Applicant is absent from Australia.
The Applicant’s wife did not acquire Australian citizenship until 22 January 2018. Therefore, as the Respondent contends, ‘the effect of s 22(9)(a) of the Act is that only periods of absence that can be treated as if the applicant was present in Australia are those periods that post-date the Applicant’s spouse’s grant of citizenship (Exhibit R1, paragraph [22]).’
The Respondent notes that the Applicant was absent from Australia for 69 days between the Applicant’s wife acquiring Australian citizenship (Exhibit R1, paragraph [23]) therefore:
If these periods of absence were treated as periods in which the applicant was present in Australia, then the applicant would be deemed to have been present in Australia:
a. for 586 days in the four years period prior to lodging the application, and absent for 875 days; and
b. for 178 days in the 12 months prior to lodging the application (as a permanent resident), and absent for 187 days.
The Respondent contends that the Applicant would still not satisfy the general residency requirements of 22(1)(a), 22(1)(c), 22(1A) and 22(1B), even if the discretion in s 22(9) was applied to the periods he was absent and he was deemed to be in Australia (Exhibit R1, paragraphs [24]-[25]).
The Tribunal agrees with the Respondent’s contention (Exhibit R1, paragraph [26]):
that the discretion in s 22(9) of the Act, even if exercised, does not assist the applicant, because the length of his absences prior to his wife being granted citizenship is fatal to his application.
During the hearing, the Respondent did not dispute that the Applicant had a close and continuing association with Australia in the period after his wife acquired Australian citizenship. However, given that the Applicant falls short of the general residency requirements, the Tribunal is not in position to explore this aspect further, beyond noting that the Applicant’s family are successful and industrious members of the Australian community.
CONCLUSION
The Applicant lodged his application for Australian citizenship aware that he did not meet the general residence requirements set out in s 22(1) of the Citizenship Act, even with the allowances for overseas absences set out in the Citizenship Act. In his written submission to the Tribunal and at the hearing, the Applicant contended that his close and continuing association to Australia should outweigh his failure to meet the general residency requirement.

As discussed above, the residency requirement is of fundamental importance when considering eligibility for Australian citizenship. It is not a matter for discretion. Section 21 of the Citizenship Act makes it clear that a person is not eligible to become an Australian citizen unless he or she satisfies all of the requirements of s 21(2) of the Citizenship Act. The discretion allowed by s 22(9), as Senior Member Fice stated, ‘is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.’ The Citizenship Act requires the Applicant meet the general residence requirement like every other applicant for Australian citizenship, if necessary by the alternative means outlined in s 22(9) of the Citizenship Act.
The Tribunal finds that the Applicant does not satisfy the general residency requirements under s 22(1) of the Citizenship Act. The discretion afforded by s 22(9) of the Citizenship Act is of no assistance to the Applicant because he was not married to an Australian citizen for his periods of absence prior to 22 January 2018, the date on which his wife became an Australian citizen.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

31 October 2018 is affirmed
.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle and Member S Barton.

.............................[sgd]..........................................
Associate
Dated: 30 July 2019

Date of hearing:

12 JULY 2019

Applicant:

Representative for the Respondent:

Self-represented

Mr Ashley Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2019] AATA 2364

30 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing