Kim and Minister for Immigration and Citizenship

[2011] AATA 366

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4896

GENERAL ADMINISTRATIVE DIVISION		)
Re		Tae Hyang Kim

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date6 May 2011

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is AFFIRMED.

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

M D Allen, Senior Member

CATCHWORDS

CITIZENSHIP:  Application for Australian Citizenship refused.  Applicant does not meet residence requirements for grant of Australian Citizenship by conferral.  Not the spouse of an Australian citizen at time of application. Applicant would not suffer significant hardship or disadvantage.  Decision Affirmed.

LEGISLATION

Australian Citizenship Act 2007, section 22

Australian Citizenship (Transitionals and Consequentials) Act 2007, Schedule 3

REASONS FOR DECISION

31 May 2011 M D Allen, Senior Member            

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that these and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ............[sgd]........................
  K. Lynch, Associate

Date of Hearing  6 May 2011
Date of Decision  6 May 2011
Date of Written Reasons  31 May 2011
Representative for the Applicant               Mr T Kim (self)
Representative for the Respondent          Mr S Moloney, Clayton Utz

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  By application made 10 November 2010, the Applicant sought review of a decision by a delegate of the Respondent refusing to grant him Australian citizenship. 

The Applicant arrived in Australia on 7 September 2006 and the next month he was joined by his wife and son.  The Applicant’s wife became an Australia citizen by conferral on 18 November 2010.  The Applicant had made an application on his own behalf on 30 June 2010 and the date of refusal was 13 October 2010. 

The residence requirements for the grant of Australian citizenship by conferral in the case of this Applicant are set out in item 5B of schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007.  Subsection (1) of item 5B states inter alia that:

“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 1year 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.”

The Applicant has not satisfied those residency requirements.  In fact, for a considerable amount of the period since his first arrival in Australia, the Applicant has been undertaking missionary work in China.

As the Applicant does not meet the residency requirement he must look to other provisions of section 22 of the Australian Citizenship Act 2007 (“AC Act”).  The only possible subsection which would raise the ministerial discretion in the case of this Applicant is subsection 22(6) which reads:

“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…; and

(b) The Minister is satisfied 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.”

On the material before me I cannot ascertain that the Applicant would suffer significant hardship or disadvantage, although no doubt the grant of an Australian citizenship, and hence an Australian passport, would obviate some difficulties faced by the Applicant in his missionary work.  But in any event, subsection 22(6)(a) AC Act makes it clear that the person must have been present in Australia during the period, which the Applicant wasn’t. 

I have also looked at subsection 22(9) AC Act which states inter alia as applying:

“If the person is the spouse… of an Australian citizen at the time the person made the application.”

At the time the Applicant made his application he was not the spouse of an Australian citizen.  As stated previously, in my opinion none of the other provisions of section 22 AC Act apply to the Applicant and the inevitable result of the legislation is that this application must be refused and the decision under review affirmed. 

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