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

[2022] AATA 2485

Kirubi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2485 (5 August 2022)

Division:GENERAL DIVISION

File Number:          2021/7237

Re:Mr David Kirubi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:5 August 2022

Place:Brisbane

The decision under review is affirmed.

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

Member R Maguire

Catchwords

Citizenship – refusal of application – special residence – requirements not met – review of decision – affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021.

REASONS FOR DECISION

Member R Maguire

5 August 2022

1. By application dated 5 October 2021, the applicant seeks review of a decision of a delegate of the respondent (“Minister”) to refuse the grant of Australian citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (Act).

1. The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (“Tribunal”) for review of a decision made under
   s 24 of the Act.

BACKGROUND FACTS TO DECISION

1. The applicant is a 41-year-old citizen of the Republic of Kenya who first arrived in Australia on 23 July 2011. He is currently the holder of a Resident Return (Subclass 155) visa, granted to him on 30 July 2019.

2. On 12 September 2021, the applicant lodged an application for Australian citizenship by conferral[1]:

   [1]     Exhibit 1, Section 37, T Documents, T4, pages 35 – 302.

3. On 5 October 2021, a delegate of the Minister (delegate) refused the application on the basis that the applicant did not satisfy s 22(1)(a) of the Act[2]: Noting that the applicant was seeking to satisfy the special residence requirement in s 22B of the Act, the delegate considered that the applicant’s employment at “Johnson Controls” did not meet the specified kind of work under s 22(C)(3) of the Act. The delegate was not satisfied that there was any evidence that the special resident requirement in s 22A was met, that the defence service requirement in s 23 was met, that a partial exemption under s 22(2) applied or that any of the Ministerial discretions in ss 22(4A), (5), (5A), (6), (9), (10) or (11) were met. Nor was the delegate satisfied, and the applicant did not claim, that the requirements of s 21(3), (4), (5), (6), (7) or (8) were met.

   [2]     Ibid, T6, pages 309-312.

4. On 5 October 2021, the applicant applied to the Tribunal for review of the delegate’s decision[3]:

   [3]     Ibid, n 1, T2, pages 5-33.

ISSUES

1. The issue in this matter is whether the applicant satisfies the general residence requirement under s 21(2)(a) of the Act and, if not:

   (a)Whether any of the Ministerial discretions in s 22(4A) to (11) apply such that s 21(2)(a) is taken to be satisfied;

   (b)Whether the applicant meets either of the special residence requirements in s 22A or 22B.

LEGISLATIVE REGIME

1. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to s 24(1) of the Act, where a person makes an application under
   s 21, the Minister must approve or refuse to approve the application by writing. Section 24(1A) of the Act provides that the Minister must not approve of a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under 21(2), (3), (4), (5), (6), (7), or (8) of the Act.

2. The applicable criteria for the present application are set out in s 21(2) of the Act.

3. Sections 22(1)(a) to (c) of the Act provides that a person satisfies the general residence requirement if:

   (c)The person was present in Australia for the four years immediately before the day they made the application; and

   (d)The person was not present in Australia as an unlawful non-citizen during that 4-year period; and

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

4. Where a person has been absent from Australia for part of the 4 year period prior to the application, and the total period of absence or absences was not more than 12 months, s 22(1A) of the Act  provides that for the purposes of s 22(1)(a), the person is taken to have been present in Australia during each period of absence.

5. The Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (“CPIs”) provide guidance for decision makers regarding residence requirements.[4] Whilst policy is not strictly binding, decision makers will generally apply policy unless there are cogent reasons not to do so.[5]

   [4]     CPI 8

   [5]     Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 640, per Brennan J.

6. The residence requirements reflect the policy intention that a person seeking Australian citizenship has spent enough time in Australia to understand the country and the duties and privileges a person accepts by seeking Australian citizenship.[6]

   [6] Ibid, n 4.

7. Although the Act does not provide a general power to waive the residence requirements, there are ministerial discretions that can be applied to assist a person in meeting the residence requirements.[7] The Act provides the following ministerial discretions when considering the general residence requirement:

   (a)Present in Australia as an unlawful non-citizen due to an administrative error: s 22(4A);

   (b)Not a permanent resident due to an administrative error: s 22(5);

   (c)Confinement in prison or psychiatric institution: s 22(5A);

   (d)Would suffer significant hardship or disadvantage: s 22(6);

   (e)Spouse or de facto partner or surviving spouse or de facto of an Australian citizen: ss 22(9) and (10);

   (f)Person in interdependent relationship: s 22(11).

   [7] Ibid.

8. An applicant seeking consideration of a discretion must provide a statement and supporting evidence when lodging the application for citizenship.[8] If such material is not lodged, and there is no information on departmental records to indicate a discretion may apply, the decision maker is not obliged to request further information and may proceed to make a decision on the information before them.[9]

   [8] Ibid, n 4.

   [9] Ibid.

9. Section 22(2) provides that ss 22(1)(a) and (b) do not apply if the person was born in Australia or was an Australian citizen at any time prior to the application.

10. Sections 22A and 22B of the Act provide that a person may satisfy the special residence requirement if:

    (a)The person is seeking to engage in a specified activity, which engagement would be of benefit to Australia, the person needs to be an Australian citizen in order to engage in that activity and in order for the person to engage in that activity, there is insufficient time for the person to satisfy the general residence requirement (s 22A); or,

    (b)The person is engaged in a specified kind of work which required them to regularly travel outside Australia (s 22B).

11. The Minister has issued the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (“Instrument”)[10] under
    s 22C of the Act that specifies what kinds of work may satisfy
    

    [10] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions with annexures dated 25 February 2022, page 5, at [18]. Referred to as ‘Annexed hereto as “Annexure 1”’. Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (“Instrument”).

    s 22B(1)(a).

12. In the course of oral submissions before the Tribunal, the applicant informed the Tribunal that he satisfied the General Residence requirement as of 7 July 2022, and had made a further application for citizenship.

13. The applicant’s argument when distilled, was in essence that the scope of Ministerial discretion was too narrow, and needed to be broadened for a range of reasons which he said were in Australia’s interests.

CONSIDERATION

General residence requirement

1. The applicant was absent from Australia for a total of 521 days within the four years immediately prior to his application for citizenship[11]:Accordingly, he does not meet the general residence requirement in s 22(1)(a), even when the allowable absence of 12 months under s 22(1A) of the Act is taken into account.

   [11] Ibid, n 1, T7, page 318.

2. In his submissions provided to the Tribunal on 21 February 2022, the applicant submitted that he satisfied s 22(1A) of the Act because he has not travelled outside of Australia between 12 September 2021 and
   21 February 2022. That submission must be rejected. That is because
   s 22(1A) involves a consideration of whether the applicant was present in Australia during the four years immediately before the day the applicant made the application: see s 22(1A)(a). In this case, the applicant applied for citizenship on 12 September 2021. Whether or not the applicant has travelled outside of Australia after
   12 September 2021 is therefore not relevant to the Tribunal’s consideration.

Ministerial discretions

1. The applicant does not claim, and there is no evidence to suggest, that he satisfies any of the Ministerial discretions. His core complaint was the narrow width of the discretion. It is not the role of this Tribunal to tamper with the width of a Ministerial discretion. That is the sole responsibility of the Government of the day.

2. Therefore, unless the applicant satisfies the special residence requirements (or defence residence requirements, which are not relevant to this application), he will not meet the general eligibility criteria for the grant of citizenship by conferral contained in s 21(2) of the Act.

Special residence requirement in s 22A of the Act

1. In order to satisfy s 22A, the applicant must be seeking to engage in an activity specified in clause 5 of the Instrument. In general terms, this includes employment in a position requiring a high-level security clearance in a Commonwealth department or agency, or participation in particular Australian sporting teams. The applicant must also have the support of an organisation listed in clause 5 of the Instrument to satisfy the requirement.

2. The applicant does not claim, and there is no evidence to suggest, that he is engaging in any of the activities in clause 5 of the Instrument, or that he has the support of a relevant organisation prescribed. Accordingly, he does not meet the special residence requirement in
   s 22A of the Act.

Special residence requirement in s 22B of the Act

1. In order to satisfy s 22B, the applicant must be engaged in a kind of work specified under s 22C(3) in clause 6 of the Instrument. This is limited to work that is:

   (a)done on duty by a crew member of a ship or aircraft; or

   (b)done on duty on a resources installation or a sea installation; or

   (c)done in the course of duty by an employee of an S&P/ASX All Australian 200 listed company in one of the following positions:

   (i)a chief executive officer; or

   (ii)an executive manager; or

   (d)research and development of benefit to Australia done as a scientist who has been awarded a Doctor of Philosophy in their field of specialty and is employed by an Australian university; or

   (e)done in the course of duty as a scientist employed by:

   (i)the Commonwealth Scientific and Industrial Research Organisation; or

   (ii)a medical research institute that is a member of the Association of Australian Medical Research Institutes; or

   (f)done in the course of duty as a medical specialist of internationally recognised record of exceptional and outstanding achievement in their field of speciality, who:

   (i)is a fellow of an organisation listed in column 1 of an item in the table in clause 1 in Schedule 1 to the Health Insurance Regulations 2018; and

   (ii)holds a qualification relevant to the organisation.

   (g)in one of the following areas:

   (i)academia and research; or

   (ii)the arts; or

   (iii)a profession; or

   (iv)a sport;

   where the particular kind of work is done by a person who is or has been a primary holder of a relevant talent visa and the visa was granted based on an internationally recognised record of exceptional and outstanding achievement in the same area.

2. The applicant holds the positions of “Vice President, ADT Asia Pacific” and “Vice President, Johnson Controls Command Center as a Service (CCaaS)” at “Johnson Controls.” A search of reveals that “Johnson Controls” is not an S&P/ASX All Australian 200 listed company.

3. As “Vice President, ADT Asia Pacific,” the applicant is responsible for the following:[12]:

   “…leading the ADT business, a part of Johnson Controls global operation founded in 1884 and is widely considered as an industry leader in the provision of electronic security services. This encompasses provision of monitoring services (security, fire, medical, lone worker), electronic security system design and installation, reactive servicing and preventative maintenance.”

   [12] Ibid, n 1, T4, page 86.

4. As “Vice President, Johnson Controls Command Center as a Service (CCaaS),” the applicant is responsible for the following [13]:

   “…leading the first Johnson Controls’ Growth Board venture funded company, the Command Center as a Service (CCaaS), a globally life safety and asset protection innovations focused company with its roots in the ADT Australia and New Zealand business, and now executing for customers of scale in the enterprise and government, on a global basis including here in Australia and New Zealand. For example, the Johnson Controls Command Center as a Service business is involved in the Minderoo Foundation Fire Shield Mission with a goal to reduce the scale and impact of bushfires in Australia and beyond, by being able to extinguish dangerous fires within an hour.”

   [13] Ibid, T2, page 13.

5. In circumstances where the applicant is not engaged in work of a kind specified in clause 6 of the Instrument, he does not meet the special residence requirement in s 22B of the Act.

CONCLUSION

1. For the above reasons, the Tribunal finds that:

   (a)The applicant does not satisfy the general residence requirement in s 22(1)(a) of the Act;

   (b)None of the Ministerial discretions apply to the applicant such that s 22(1)(a) is taken to be satisfied; and,

   (c)The applicant does not satisfy either of the special residence requirements in s 22A and 22B.

DECISION

1. Accordingly, the decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

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

Associate

Dated: 5 August 2022

Date of hearing:	29 July 2022
Date final submissions received:	4 April 2022
Applicant:	Via video conference
Solicitors for the Respondent:	Matthew Hawker (Sparke Helmore Lawyers)

EXHIBIT REGISTER

Exhibit Number	Description of Exhibit	Date of Document	Party	Filing Date
1	Section 37, T-Documents (T1 – T10, paged 1 – 353)	Various	R	4 NOV 2021
2	Minister (Alex Hawke) Press Release dated 14 September 2021 (1 page)	14 SEP 2021	A	7 OCT 2021
3	Applicant’s Email Submissions dated 21 February 2022 (16 pages)	Various	A	21 FEB 2022
4	Respondent’s Statement of Facts, Issues and Contentions with annexures dated 25 February 2022 (pages 1 – 8) & Annexure (from page 9)	25 FEB 2022	R	25 FEB 2022
Other Evidence
5	Applicant’s Movement Records (5 pages)	4 MAR 2022	R	4 MAR 2022
6	Applicant Submission Youtube Video Statement and attachments (5 pages)	7 MAR 2022	A	7 MAR 2022
7	Applicant’s Citizenship Application Video Statement (7 pages)	11 MAR 2022	A	11 MAR 2022
8	Applicant’s online submissions and attachments - Attachment 1 – Article ’75-test Wallaby Quade Cooper finally on cusp of Australian citizenship’ dated 12 July 2021 ( (24 pages) - Attachment 2 – Article ‘Over to you Shannon: Quade Cooper’s Aussie citizenship request turns up a gear’ dated 13 September 2021 (Foxsports.com.au) (7 pages)	7 DEC 2021 12 JUL 2021 13 SEP 2021	A	7 DEC 2021
9	Applicant’s submissions to rescind online video statement (youtube video and links) (Exhibit 6 above) (1 page)	4 APR 2022	A	4 APR 2022