Kiragu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Kiragu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2449 (24 July 2020)
Division:GENERAL DIVISION
File Number:2019/2450
Re:Esther Kiragu
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:24 July 2020
Place:Melbourne

The Tribunal affirms the decision under review.
..[sgd]......................................................................
Member K. Parker
Catchwords
CITIZENSHIP – refusal of application for citizenship by conferral – whether Applicant met general residency requirement – Applicant absent from Australia for more than 90 days in 12-month period before making application – length of first absence due to serious illness of Applicant’s mother – second absence due to death of Applicant’s father – Tribunal not satisfied exemptions applied or Ministerial discretions enlivened – Applicant did not meet one of the mandatory criterion of satisfying the general residence requirement – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Secondary Materials
Revised Explanatory Memorandum, Australian Citizenship Bill 2005
REASONS FOR DECISION
Member K. Parker
24 July 2020

The Applicant, Ms Ester Wanjiku Kiragu, is a citizen of the Republic of Kenya and first arrived in Australia in 2014. Ms Kiragu is now a permanent resident in Australia and, on 30 June 2018, applied to become an Australian citizen.
On 9 April 2019 a delegate of the Respondent refused to approve Mr Kiragu becoming an Australian citizen on the basis that she did not satisfy the general residence requirement under s 22 of the Australian Citizenship Act 2007 (Cth) (Act) (Decision Under Review). Ms Kiragu seeks review by the Tribunal of the Decision Under Review.
For the reasons set out below, the Tribunal affirms the Decision Under Review. This means that Ms Kiragu’s application to the Tribunal is unsuccessful. This decision by the Tribunal does not prevent Ms Kiragu from lodging a new application for citizenship by conferral at a time that she is able to meet all eligibility requirements under the Act, including the mandatory criteria of the general residence requirement under s 22 of the Act.
BACKGROUND
Ms Kiragu was born in the Republic of Kenya and presently holds a Kenyan passport.[1]
[1] Refer T-Documents T6/178.
On 30 June 2014 Ms Kiragu arrived in Australia on a temporary student visa (subclass 573).
On 20 September 2016 Ms Kiragu applied for and was granted a Bridging Visa A
[2] Refer Supplementary T-Document ST2/8.
[3] Refer Supplementary T-Document ST2/7.
(class WA-010). On 11 October 2016 Ms Kiragu’s temporary student visa was cancelled.[2] As a result, her Bridging Visa A ceased on 11 October 2016.[3]
On 20 October 2016 Ms Kiragu was granted a Bridging Visa D (class WD-041).[4]
[4] Refer Supplementary T-Document ST2/6.
However, by this date Ms Kiragu had been present in Australia without a visa and therefore, was an “unlawful non-citizen” as defined by s 3 of the Act, between 11 October 2016 and 20 October 2016.
On 21 October 2016 Ms Kiragu’s Bridging Visa D ceased[5] and she was granted a Bridging Visa E (class WE-050).[6] Ms Kiragu’s Bridging Visa E ceased on 4 January 2017 and on this day, Ms Kiragu was granted a further Bridging Visa E (class WE-050).[7]
[5] Ibid.
[6] Refer Supplementary T-Documents ST2/5.
[7] Refer Supplementary T-Documents ST2/4.
On 13 January 2017, Ms Kiragu’s Bridging Visa E ceased upon being granted a permanent Skilled Nominated visa (class SN-190) on the same day.[8]
[8] Refer Supplementary T-Documents ST2/3.
On 18 April 2017 Ms Kiragu departed Australia.[9] While Ms Kiragu was in Kenya, her mother was hospitalised. Her mother was discharged on 27 July 2017.[10] Ms Kiragu returned to Australia on 15 August 2017.[11] On account of this journey, Ms Kiragu was absent from Australia for 119 days (46 days of which occurred in the 12 months prior to her application for citizenship).
[9] Refer Supplementary T-Documents ST1/1.
[10]
[11] Refer Supplementary T-Documents ST1/1.
Ms Kiragu’s father passed away in Kenya on 20 October 2017 and his funeral took place on 28 October 2017.[12] Ms Kiragu departed Australia on 23 October 2017 and returned to Australia on 29 December 2017.[13] Ms Kiragu was absent from Australia on account of this second journey for 67 days.
[12] Refer funeral notice lodged with the Tribunal by Ms Kiragu with her application for review.
[13] Refer Supplementary T-Documents ST1/1.
On 30 June 2018 Ms Kiragu applied for citizenship by conferral (Citizenship Application).[14]
[14] Refer T-Document T4/144.
When assessing the Citizenship Application and whether Ms Kiragu met the general residence requirement under s 22 of the Act, the delegate of the Respondent found that she met the first criteria under s 22(1)(a) of the Act, because she had been present in Australia for the four-year period immediately before applying for citizenship.
However, the delegate was not satisfied that Ms Kiragu had met the second criteria under s 22(1)(b) of the Act. In order to meet the second criteria, Ms Kiragu must not have been present in Australia as an “unlawful non-citizen” at any time during the four-year period immediately before applying for citizenship. The delegate noted that Ms Kiragu’s temporary student visa was cancelled on 11 October 2016, causing her Bridging Visa A to cease.
This caused Ms Kiragu to become an “unlawful non-citizen” between
11 and 20 October 2016 and for this reason, the delegate found that Ms Kiragu did not meet the second criterion under s 22(1)(b) as at 30 June 2018 when she made the Citizenship Application.
In addition, the delegate was not satisfied that Ms Kiragu had met the third criteria under s 22(1)(c) of the Act. In order to meet this requirement, Ms Kiragu must have been present in Australia as a permanent resident for the 12-month period immediately before applying for citizenship. The delegate noted that s 22(1B) of the Act allowed for absences from Australia of up to 90 days within this 12-month period, provided that the applicant had remained a permanent resident throughout this time. In Ms Kiragu’s case, the delegate noted from Departmental records that she had been absent from Australia for a total of 112 days during this 12-month period and as such, she did not meet the third criteria under s 22(1)(c). The delegate stated that she could see no evidence indicating that either of two partial exemptions, specified in s 22(2) of the Act, applied to Ms Kiragu.
Ms Kiragu requested that the Minister exercise his discretion under s 22(5) of the Act on account of a purported “administrative error”. Ms Kiragu stated that she had visited an office of the Department and was advised by an official that 30 June 2018 would be her “application date”, because she met all the requirements of a successful application on that date.[15] The delegate decided, on behalf of the Minister, not to exercise the discretion under subsection 22(5) in Ms Kiragu’s favour, for the following reasons:
The information provided to you in Melbourne was accurate in that you were eligible to apply for Australian citizenship as of 30 June 2018 as you had been present in Australia for 4 years prior to lodgement. However, it must be noted that this exchange was not with the delegated decision maker. In the absence of any records that show that any incorrect information was provided to you during that exchange, there is no evidence to demonstrate that an administrative error has occurred. I am therefore not able to exercise the discretion under section 22(5).
[15] Refer T-Documents T4/165.
LEGISLATION
Section 22 of the Act provides as follows:
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.
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
(b) the total period of the absence or absences was not more than
90 days; 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.
Confinement in prison or psychiatric institution
(1C) …
Partial exemption—person born in Australia or former Australian citizen
(2) …
Ministerial discretion—administrative error
(4A) For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
(5) For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
Ministerial discretion—confinement in prison or psychiatric institution
(5A) …
Ministerial discretion—person in Australia would suffer significant hardship or disadvantage
(6) For the purposes of paragraph (1)(c), 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 (except as a permanentresident or an unlawful non-citizen); and
(b) the Minister is 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.
…
ISSUES
The issue for determination in this application is whether Ms Kiragu met the general residency requirement under s 22 of the Act at the time she made the Citizenship Application on 30 June 2018.
This will require a consideration of whether Ms Kiragu met the three mandatory criteria for satisfying the general residence requirement as set out in ss 22(1)(a), (b) and (c) respectively. The Respondent accepts that Ms Kiragu met the first criteria under s 22(1)(a) on 30 June 2018, and the Tribunal finds accordingly.
At the hearing, the Respondent informed the Tribunal that it did not press its contentions in respect of Ms Kiragu not having met the second criterion under s 22(1)(b) as at 30 June 2018. Instead, the Respondent relied solely on its contention that Ms Kiragu had not met the third criterion under s 22(1)(c) as at 30 June 2018. The Respondent indicated that it had not fully investigated the circumstances with respect to whether Ms Kiragu met the criterion under s 22(1)(b), but it would do so if this became necessary.
In determining whether Ms Kiragu met the third criterion under s 22(1)(c), the Tribunal must turn its mind to whether the Ministerial discretions conferred under ss 22(5) or (6) of the Act were enlivened in the circumstances of this case, and if so, whether to exercise either or both of them.
CONSIDERATION
Does Ms Kiragu meet the third criterion under s 22(1)(c) of the general residence requirement?
Ms Kiragu was absent from Australia for period of more than 90 days during the 12-month period before making the Citizenship Application on account of taking the two journeys as outlined in paragraphs [‎10] and [‎11] above. At the hearing, Ms Kiragu agreed that she had made those two journeys for the periods referred to in those paragraphs. This was corroborated by the Department of Home Affairs’ Movement History for Ms Kiragu which were produced to the Tribunal.[16]
[16] Refer Supplementary T-Documents T1/1.
Ms Kiragu told the Tribunal that when she made the first journey to Kenya, she did not intend to stay for as long as she did. Ms Kiragu told the Tribunal that the day before she was due to return to Australia, her mother collapsed and went into a coma. She said her mother was admitted to and remained in hospital for the following two months in an intensive care unit, and that she was suffering from ALS (amyotrophic lateral sclerosis). Ms Kiragu said she cancelled her return ticket to Australia and remained in Kenya to stay with her mother.
Ms Kiragu informed the Tribunal that her mother has since passed away (in

late-2019). Ms Kiragu told the Tribunal she made the second journey to Kenya when her father passed away. The Tribunal found Ms Kiragu to be a forthright and credible witness and accepts her evidence.
Based on this evidence, the Tribunal finds that in the 12-month period before Ms Kiragu made the Citizenship Application, Ms Kiragu was absent from Australia for a period of longer than 90 days. The Tribunal concludes that Ms Kiragu did not meet the third criterion under s 22(1)(c) of the Act at the time she made the Citizenship Application. This criterion is mandatory in order for a person to meet the general residence requirement under s 22 of the Act. Accordingly, the Tribunal concludes that Ms Kiragu did not meet the general residence requirement under s 22 of the Act at the time she made the Citizenship Application.
There are several Ministerial discretions included in s 22 of the Act which may, depending on the circumstances, assist a citizenship applicant to meet the general residence requirement. The discretions which apply in respect of the third criterion in s 22(1)(c), include the discretions set out in ss 22(5) or (6). These provisions are reproduced above under the heading “Legislative Framework”. The Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 summarise ss 22(5) and (6) but does not provide any further explanation (relevant to this application) as to when those discretions will be enlivened and how they should be applied.[17]
[17] Refer Respondent’s Bundle of Additional Material P7/275–276.
The Department has issued a Citizenship Policy (Policy) to provide guidance to

decision-makers exercising functions and powers under the Act.
Guidance is provided in the Policy that the Minister (and in turn, the Tribunal on review) has a discretion under s 22(5) to count, for the purpose of s 22(1)(c), periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met, and that this discretion can only be exercised on condition that the legal status is absent “…because of an administrative error”.[18]
[18] Refer Respondent’s Bundle of Additional Material P3/91.
In the Policy, guidance is provided about the discretion under s 22(6) of the Act as follows:[19]
Under s 22(6) periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods were not treated a [sic] periods of permanent residence. This section makes explicit reference to

s 22(1)(c) of the Act…
…
Use of this discretion may be appropriate for persons who have become permanent residents of Norfolk Island…
[19] Ibid P3/92.
The guidance referred to in the above two paragraphs is similar to the guidance provided in the Citizenship Procedural Instructions issued by the Department.[20]
[20] Ibid P4/114–115.
The Tribunal considers that neither of the Ministerial discretions under ss 22(5) or (6) of the Act apply in Ms Kiragu’s circumstances as they only apply in situations where the citizenship applicant is physically present in Australia during the relevant period, albeit absent the requisite legal status of being a “permanent resident” during that period, as required by s 22(1)(c).
This is not the case here. Ms Kiragu was not physically present in Australia during the relevant periods. Therefore, the precondition for the discretion under either ss 22(5) or (6) to be enlivened, being that the person is physically present in Australia, albeit absent the requisite legal status, was not met by Ms Kiragu.
Based on the above conclusion, there is no need to embark upon a consideration of whether there was an “administrative error” or whether there was any “hardship or significant disadvantage” caused to Ms Kiragu. As an aside, the Tribunal did not form an impression from Ms Kiragu’s evidence given at the hearing that she would be able to establish the presence of those factors, even if the discretion was enlivened (which the Tribunal has decided it was not).
Otherwise, there was no evidence before the Tribunal, nor any further contentions made by Ms Kiragu, that any of the other Ministerial discretions set out in s 22 applied to her circumstances. The Tribunal was unable to identify the potential application of those other discretions (i.e. under ss 22(9), (10) or (11)) and finds that they were not enlivened in Ms Kiragu’s case to assist her in meeting the third criterion for the general residence requirement under s 22(1)(c).
CONCLUSION
The Tribunal concludes that when Ms Kiragu made the Citizenship Application on 30 June 2018, she met the first criterion under s 22(1)(a) of the general residence requirement. However, the Tribunal concludes that Ms Kiragu did not meet the third (mandatory) criterion under s 22(1)(c) and therefore, she did not meet the general residence requirement under s 22 of the Act at the time of making the Citizenship Application.
At the hearing, the Tribunal explained to Ms Kiragu that she was at liberty to make a new application for citizenship at a time when she considered that she met all the eligibility requirements under the Act.
Ms Kiragu was urged to obtain independent legal advice as to the timing of when she should make a new application, should she wish to do so. Some observations were made to Ms Kiragu at the hearing to assist her as a self-represented applicant. The Tribunal highlighted that if Ms Kiragu were to make a new application on a date on or after 21 October 2020, one of the reasons why the delegate had refused her previous citizenship application would no longer be an issue. This is because on or after 21 October 2020, four years will have expired since the last day that Ms Kiragu was an unlawful non-citizen (being 20 October 2016).
Further, Ms Kiragu informed the Tribunal at the hearing that more recently she has taken two journeys outside of Australia being a trip to Kenya for about 51 days at the end of 2019; and a trip to Malaysia for six days at the start of 2020. This means that provided Ms Kiragu has not (since the hearing), or does not (from now until she makes a new application), make any further journeys outside of Australia, it would also seem that by making a new citizenship application on or after 21 October 2020 she will avoid the difficulty she faced in this application of showing that she had met the third criterion under s 22(1)(c). This is because it does not seem that she will have been absent from Australia for a period of more than 90 days in the relevant 12-month period if the time is “reset” by Ms Kiragu making a new application. However, as mentioned above, it is entirely a matter for Ms Kiragu to satisfy herself as to whether she meets all eligibility requirements under the Act before making a new citizenship application and to seek legal assistance, if she requires it, before doing so.
DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

....[sgd]...................................................................
Associate
Dated: 24 July 2020

Date of hearing: 16 March 2020

Date final submissions received: 26 March 2020

Applicant: In person

Advocate for the Respondent: Ms L Hargrave

Solicitors for the Respondent: Clayton Utz

Refer hospital discharge sheet lodged with the Tribunal by Ms Kiragu with her application for review.

Refer also to Ms Kiragu’s evidence given orally at the hearing as set out in paragraph [‎23] of these reasons.

[2020] AATA 2449

24 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Date of hearing:	16 March 2020
Date final submissions received:	26 March 2020
Applicant:	In person
Advocate for the Respondent:	Ms L Hargrave
Solicitors for the Respondent:	Clayton Utz