KXRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2440
•23 July 2020
KXRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2440 (23 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7881
Re:KXRQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 July 2020
Place:Sydney
The decision under review is affirmed.
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship by conferral is refused – failure to meet “general residency criteria” – the Department’s failure to re-issue the Applicant a permanent visa in a timely manner constituted an “administrative error” – whether the Tribunal is bound by the Australian Citizenship Policy – Applicant’s failure to meet the “special residency requirements” – Applicant found not to be present in Australia at the time of the Tribunal’s decision – decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth) – ss 21(2)(c), 21(2)(a), 21(2)(b), 21(2)(c), 21(2)(d), 21(2)(e), 21(2)(f), 21(2)(g), 21(2)(h), 22(1)(a), 22(1)(b), 22(1)(c), 22(1A), 22(1B), 22(9), 22C, 23, and 24(5)
Migration Act 1958 (Cth) – ss 30(1) and 68(1)
CASES
AFX17 v Minister for Home Affairs [2020] FCA 807
AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926
Al-Mughrabi and Department of Immigration and Multicultural Affairs [1999] AATA 164
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Drake v Minister for Immigration and Ethnic Affairs (no.2) [1979] 2 ALD 634
Elias v Commissioner of Taxation[2002] FCA 845; (2002) 123 FCR 499
Gboueh v Minister for Immigration and Border Protection [2014] FCA 883
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Liu and Department for Immigration and Ethnic Affairs (1996) 41 ALD 589
Marasli and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1093
Minister for Home Affairs v G [2019] FCAFC 79
Plaintiff M64/2015v Minister for Immigration and Border Protection [2015] 258 CLR 173
Re Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Re ER Aston and Y Aston and Secretary to the Department of Primary Industries [1985] AATA 306
Re Lai and Minister for Immigration and Ethnic Affairs [1987] 11 ALD 535
SECONDARY MATERIALS
Australian Citizenship Instructions
Australian Citizenship Policy
Special Residence Requirement Instrument (IMMI 13/056)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 July 2020
The application
KXRQ[1] (the Applicant) applied for Australian citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act) on 30 June 2019. That application was refused by a delegate of the Minister (the Respondent) on 15 November 2019 and on 30 November 2019 the Applicant sought a review of that decision in this Tribunal.
[1] The Applicant’s original name was changed by deed poll on 17 February 2015. Section 37 Tribunal Documents (T Docs) at [74].
The matter was heard by the Tribunal on 30 June 2020. The hearing was arranged, in accordance with Covid19 restrictions, to be conducted by video-link to all parties. In the event, the Applicant, who was in Doha (Qatar), was only able to participate by audio-link as video connection proved to be impossible. The Tribunal and the Respondent were present by video-link. Despite these difficulties it was possible for all parties to participate in the hearing and the Tribunal is satisfied that all parties were provided with procedural fairness for the presentation of their cases. At the conclusion of the hearing on 30 June 2020, the Tribunal requested that each of the parties provide and exchange further documentation, a process which was completed by 10 July 2020.
The basis of the refusal
The basis of the delegate’s decision was the contention by the Minister that the Applicant cannot satisfy the residence criteria in paragraph 21(2)(c) of the Act because he does not meet the general residence criteria in paragraphs 22(1)(a) or (c) of the Act, and none of the Ministerial discretions apply to overcome that state of affairs.
Background
The Applicant is a citizen of Egypt, although born in the Philippines.[2] He first arrived in Australia in January 2008 and has made regular visits to and from Australia. He has held several visas and is currently the holder of a Return Resident (subclass 155) visa, granted on 7 September 2019.
[2] Ibid at [75].
In 2008, he married his wife. The marriage took place in Australia. The Applicant’s wife was granted Australian citizenship in February 1998.[3] The couple have four Australian citizen children ranging in age from 4 to 11 years.[4]
[3] Ibid at [83] and [82].
[4] Ibid at [84]-[91].
The Applicant is a qualified aviation engineer and a member of the Institution of Engineers Australia.[5] He is currently employed as a Technical Training Instructor by Qatar Airways[6] and is currently resident in Doha with his immediate family, although his wife’s family are primarily resident in Australia.
[5] Ibid at [188].
[6] Ibid at [1197].
The legislative framework
The eligibility criteria for citizenship by conferral is set out in section 21(2) of the Act:
(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.
Any applicant for citizenship by conferral must meet all the specified criteria.
In determining this application, the Minister’s delegate found that the Applicant satisfied criteria (a) and (b) but failed to satisfy criterion (c). As a result of this finding, the delegate did not proceed to assess the remaining criteria; nor did they assess other criteria related to the Applicant’s identity or his security status.[7]
[7] Ibid at [16] to [19].
Additionally, the delegate based their decision to refuse the application on the provisions of section 24(5) of the Act which provides:
If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
The general residency requirements which are established criteria in section 21(2) are defined in section 22(1) of the Act:
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.
Section 22(1A) and 22(1B) then qualify the 4 year and 12 month requirements 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
(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.
The term 'permanent resident' is defined in section 5(1) of the Act as:
For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a) the person is present in Australia at that time and holds a permanent visa at that time; or
(b) both:
(i) the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c) the person is covered by a determination in force under subsection (2) at that time.
To find the definition of the term “permanent visa” it is necessary to resort to the Migration Act 1958 (Cth) (Migration Act) which, at section 30(1) states:
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
Certain facts
The following facts are established by consideration of the Applicant’s movement records[8] and by records of the Department. As facts they are uncontested by the parties:
(a)the Applicant was absent from Australia for 1,367 days of the four years immediately prior to applying for citizenship,
(b)the Applicant was absent from Australia for 332 days of the 12 months immediately prior to applying for citizenship,
(c)the Applicant did not hold a permanent visa between 23 August 2018 and 21 September 2018.
[8] Supplementary Tribunal Documents at [1]-[5].
The visa lacuna
Although there is no disagreement in relation to the length of absences from Australia in either the relevant four year or 12 month period, the non-holding of a permanent visa between 23 August 2018 and 21 September 2018 is the subject of contention between the parties.
There is no doubt that the Applicant did not hold a visa for that one month period. However the cause of that lies in the administrative actions of the Respondent’s Department.
The relevant chronology is:
·on 22 August 2017, the Applicant was granted a Return Resident (subclass 155) visa which was valid until 22 August 2018;
·on 9 July 2018, the Applicant applied for a further visa of the same class, to which he was entitled, and in relation to which there was no basis for refusal; and
·on 22 September 2018 the visa, as applied for, was granted. Under the terms of section 68(1) of the Migration Act the visa took effect as of that day.
Hence, between 23 August 2018 and 22 September 2018, the Applicant was not in possession of a current visa. This lacuna was the result of the Department taking from 9 July 2018 to 22 September 2018 (55 working days) to act upon the renewal application which had been submitted some six weeks prior to its expiry.
The non-holding of a visa for this period of one month was then used as the basis to make a decision adverse to the Applicant. By contrast, the Applicant claims that he met all the necessary requirements to ensure that he was a valid visa-holder and that there was nothing further which he could do to ensure that he was. He holds that the failure to re-issue his visa constituted an “administrative error” on the part of the Department for which he is being punished or treated adversely.
In reply, the Respondent maintains that it can define away any purported administrative error on its behalf by relying on the Australian Citizenship Policy (Policy) which states simply, after giving examples of what might constitute administrative error, that:
“A delay in processing an application does not constitute an administrative error in itself.”[9]
[9] Australian Citizenship Policy (1 June 2016) page [27].
The Tribunal notes that in the paragraph which precedes that just quoted, the Policy also states:
“While each case will need to be assessed on its own merits …..”[10]
[10] Idem.
The Introduction of the Policy states:
“The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”
The Policy itself is not a legislative instrument in the sense that Ministerial Directions under the Migration Act are in that they are a “guide” to decision-making and are not in any way legally or legislatively binding on the decision-maker.
This was specifically recognised by the Full Federal Court in Minister for Home Affairs v G[11] where it stated (in relation to the Australian Citizenship Instructions (Instructions) which were the predecessor document to the Policy):
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
[11] [2019] FCAFC 79 at [18].
Similarly, in Aston the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.”[12]
[12] Re ER Aston and Y Aston and Secretary to the Department of Primary Industries [1985] AATA 306 at [21].
The Tribunal accepts, of course, that there is significant utility in the Department making guidelines to assist decision-makers and this has been recognised in past decisions of this Tribunal and by the High Court.[13]
[13] Drake v Minister for Immigration and Ethnic Affairs (no.2) [1979] 2 ALD 634; Plaintiff M64/2015v Minister for Immigration and Border Protection [2015] 258 CLR 173.
However, as the Full Federal Court went on to say in G:
“An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision‐maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision‐maker] will make in the circumstances of a given case”: Drake (No 2) at 641.”[14]
[14] [2019] FCAFC 79 at [59].
This position was also taken by the Federal Court in Gboujeh where it stated at paragraph 39:
“At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.”[15]
[15] Gboueh v Minister for Immigration and Border Protection [2014] FCA 883.
In Elias, Hely J noted that while the Commissioner of Taxation was free to provide policy guidelines to decision-makers, and they were not in error in following them, nevertheless they should be followed in such a way that:
“the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”[16]
[16] Elias v Commissioner of Taxation[2002] FCA 845; (2002) 123 FCR 499 at 506-7.
In relation to the Instructions (and hence, by implication, the Policy), the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
“I do not accept the Australian Citizenship Instructions[17] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[18]
[17] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[18] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
The question here is not so much the words of the statute, but rather whether or not the failure of the Department to deal with the Applicant’s visa application in a timely manner so as not to render him visa-less, constituted some form of administrative error.
The question of what constitutes an administrative error in these circumstances has been considered by the Tribunal on a number of occasions.
In Lai the Tribunal found that the unnecessary transfer of an application for permanent residency between offices of the Department resulted in a delay to the application being processed and this amounted to an “administrative error within the meaning of that phrase in s 13(4)(b)(v) of the Act”,[19] that section being the relevant section of the Australian Citizenship Act 1948 (Cth) which was the predecessor of section 22(5) of the current Act.
[19] Re Lai and Minister for Immigration and Ethnic Affairs [1987] 11 ALD 535 at [538].
In Liu the Tribunal commented:
(25) The tribunal there noted that the words “administrative error” were quite clear and unambiguous and that they did not bear the limited construction sought to be placed upon them by the Australian Citizenship Instructions. The tribunal found that there had been a clear administrative error on the part of the department.
(26) This tribunal would, with respect, agree that the examples of administrative error given by the instructions are not comprehensive or exhaustive. They are not intended so to be. …..[20]
[20] Liu and Department for Immigration and Ethnic Affairs (1996) 41 ALD 589.
In Al-Mughrabi, the Tribunal took a somewhat different view and concluded that the considerable lapse of time in the processing of a permanent resident visa did not amount to administrative error.[21] This decision was followed by the Tribunal in Marasli, although the Tribunal did note that the policy, as set out in the then Instructions was “not very enlightening.”[22]
[21] Al-Mughrabi and Department of Immigration and Multicultural Affairs [1999] AATA 164 at [19].
[22] Marasli and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1093 at [10].
The most extensive discussion of this issue arises in Chaudhary where the Tribunal dealt with the failure to process payment for an application for a visa resulting in the applicant being held to be an unlawful non-citizen for a period from 1 May to 7 May 2007. In this instance, the Tribunal found that there had been an administrative error and decided that:
“the matter is remitted to the Department with the direction that the discretion in s 22(4A) of the Act should be exercised in favour of Mr Chaudhary to disregard the period 1 May to 7 May 2007 when he was an unlawful non-citizen in Australia. Mr Chaudhary therefore satisfies the general residence requirement referred to in s 22(1)(b) of the Act.”[23]
[23] Re Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 at [45].
Admittedly, none of these cases touch exclusively on the question of any delay in processing an application but what they do confirm is that the list of what might constitute administrative error as outlined in the Policy is not exhaustive and neither can the Policy itself just exclude certain activities from administrative review by this Tribunal. To find otherwise would be to concede Humpty Dumpty’s point in Alice through the Looking Glass:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”[24]
[24] LEWIS CARROLL (Charles L. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872.
One reason that the Applicant is not able to claim the status of a permanent resident is simply because he lacks a permanent visa and he lacks a permanent visa because the Department was tardy in re-issuing him one to which he was fully entitled. There was nothing more that was required of the Applicant and nothing more in his power to do than what he did in seeking to maintain his status as a permanent resident, and the fact that the Department alone deprived him of this status should not be held against him in terms of consideration of his application.
There are obviously certain practical questions to consider in terms of the time that processing renewal applications might take the Department, acknowledging its considerable volume of work related to migration and citizenship matters. It would be unreasonable to expect instant decisions, or decisions made within unreasonably short time constraints. Sometimes there are reasonable explanations for long delays.[25]
[25] KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207 at [86].
There are also clear differences between the time required for considered decision-making in complex cases and that which might be required for processing something straightforward and uncontroversial, as was the case in this instance.
However, a line has to be drawn somewhere or else the Department could simply ignore its responsibilities and never make a decision unless or until compelled to do so by the Courts. Recently, in a matter arising under the Migration Act, although there may not be an “implied time limitation”[26] on the exercise of certain powers, the Federal Court has both held that a Minister had failed to make a decision within a “reasonable time”[27] and directed the Minister to make a decision within a certain time or risk facing contempt proceedings.[28]
[26] KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [113].
[27] AFX17 v Minister for Home Affairs [2020] FCA 807.
[28] AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8].
In BMF16 the Federal Court accepted that the Minister “accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay”[29] in decision making. In this instance the Respondent simply dismisses a materially significant delay by asserting that it cannot be taken to be of relevance for the purpose of the Act.
[29] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [28].
To accept the Respondent’s submissions in this matter, the Tribunal would have to accept that:
(a)the Applicant had a right to make a claim for Australian citizenship by conferral but in doing so needed to hold a valid and continuing permanent resident visa;
(b)the Applicant, being the holder of a valid visa and entitled to have it renewed, sought to have it renewed giving the Department a reasonable amount of time to do so;
(c)the Department failed to act within a reasonable time thereby providing a ground upon which his citizenship application could be refused; and
(d)the Department asserts that the Applicant cannot complain about this because it has, by issuing a Policy which is without legislative foundation or legally binding effect, says he cannot.
The effect of the Department’s administrative actions is potentially to deprive an otherwise qualified applicant of the right to seek something very precious – Australian citizenship.
That is neither fair, nor just.
The Department’s position vis-à-vis its own Policy is that it also serves to limit the capacity of the Tribunal to discharge its legislative responsibility of independent review of all elements of a reviewable decision.
The Applicant’s matter remained unresolved for a period of more than ten weeks and the Tribunal determines that this action of the Department constitutes, in this particular case, an administrative error.
Further considerations
However, even if that were to be accepted, the Applicant faces a seemingly insurmountable barrier in his application, namely section 24(5) of the Act:
If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
Sections 22A, 22B and 23
There is however, a way around this provision through consideration of what are referred to as “special residency requirements” outlined in sections 22A, 22B and 23 of the Act.
This issue was raised by the Applicant with the Tribunal during the hearing and had not been put to it previously. As a result, the Tribunal directed both parties to file (and exchange) further submissions on this point, which they did and which the Tribunal considered.
Those sections give the Minister a discretion to waive the general residency requirements where:
·section 22A: an applicant is seeking employment in a “specified” activity that would be of benefit to Australia and requires the holding of Australian citizenship and where there is evidence from an appropriate person, that the Applicant has a “reasonable prospect” of such employment.
·section 22B: an applicant is engaged in the kind of work which requires that person to travel outside Australia because of that work.
·section 23: an applicant (or relative) could not satisfy the residency requirements as a result of “relevant defence service.”
The “specified” activities to which section 22A refers are set out in a legislative instrument made by the Minister under section 22C of the Act. In this instance that is the Special Residence Requirement Instrument (IMMI 13/056) which was made on 29 May 2013 (Legislative Instrument).
However, nothing under the Act is ever that simple. Sections 22A and 22B also contain requirements that an applicant, in order to avail themselves of those provisions must have been present in Australia for a certain specified number of days in certain periods:
·Section 22A: 180 days in the 2 years and 90 days in the 12 months immediately preceding the making of the application and ordinarily resident in Australia in the preceding 2 years.
·Section 22B: 480 days in the 4 years and 120 days in the 12 months immediately preceding the application and ordinarily resident in Australia in the preceding 4 years.
It is not necessary to refer to section 23 as neither the Applicant nor any relevant family member has any connection with any form of relevant defence service.
It is clear that the Applicant cannot avail himself of any of these discretions because he does not qualify on physical residency grounds, regardless of his permanent resident status. In addition, he has provided no evidence that any appropriate person has indicated that he had “reasonable prospects of being engaged” in any activity which is specified in the Legislative Instrument.
Although the Applicant has submitted a screenshot of correspondence from BAE System Australia relating to a position as a “training instructional designer” at Wagga Wagga (NSW), this does not satisfy any of the legislative requirements or the provisions of the Legislative Instrument.
Although he has spent time travelling outside Australia for his work, the evidence is that during the relevant time, he and his family were primarily resident in Qatar rather than Australia.
Section 22(9)
This provides:
(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
the Minister is satisfied that the person had a close and continuing association with Australia during that period.
It may well be that this Ministerial discretion could be enlivened if the Tribunal is correct in finding that the lack of permanent residency required by section 22(9)(c) was the result of administrative error. However, there has been no assessment of the requirements of section 22(9)(d) undertaken and none was advanced before the Tribunal. There would be a heavy burden on the Applicant to show a “close and continuing” association with Australia during the period given his absences from Australia for the overwhelming bulk of that time. This is not a matter which the Tribunal, at this stage, is able, or required to assess.
Section 22(11)
This section is not relevant for the Applicant as it refers to applicants who are in an inter-dependent relationship, which the Applicant is not.
Conclusion
Given the Tribunal’s finding that the failure of the Applicant to satisfy the permanent residency requirements was a result of administrative error on the part of the Department, it might well appear that the viable option would be to remit the matter to the Minister for reconsideration on that basis under enlivened provision of section 22(9).
However, ultimately that would be a futile exercise as the provisions of section 24(5) have indeed proven to be insurmountable. They make it quite clear that the Minister must not approve a grant of citizenship by conferral, when the alternatives presented in sections 22A, 22B and 23 are not available and even if section 22(9) is enlivened, at a time when the person is not present in Australia.
The Applicant is not present, at the time of decision-making and whatever may otherwise be the merits of his case, that absence is fatal to his application.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 23 July 2020
Date(s) of hearing: 30 June 2020 Applicant: By telephone Solicitors for the Respondent: Ms S Prasad
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