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

Lawal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 380 (7 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5842
Re:Afolabi Muqaddas Lawal
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:7 February 2022
Date of written reasons: 7 March 2022
Place:Sydney

The Tribunal affirms the decision to refuse Mr Lawal’s application for Australian citizenship.
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Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – where the Applicant does not meet the general residence requirement – whether the discretion under subsection 22(6) of the Australian Citizenship Act 2007 (Cth) can be exercised – whether the Tribunal is satisfied that the Applicant will suffer significant hardship or disadvantage – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Revised Citizenship Procedural Instructions - CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
WRITTEN REASONS FOR DECISION
Mr S Evans, Member
7 March 2022
INTRODUCTION

The applicant, Afolabi Muqaddas Lawal, is a citizen of Nigeria who first arrived in Australia on 14 October 2014 as the holder of a Subclass TU-573 (higher education sector) visa. Having held a series of visas since his arrival, on 29 June 2021 he became an Australian permanent resident.
On 18 July 2021, Mr Lawal applied under subsection 21(1) of the Australian Citizenship Act 2007 (Cth) for Australian citizenship by conferral. On 20 August 2021 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused his application, as they were not satisfied that Mr Lawal met the general residence requirement for Australian citizenship. Mr Lawal seeks review of the decision at the Administrative Appeals Tribunal (‘the Tribunal’).
The matter was heard on 7 February 2022. Having heard the evidence I was in a position to make a determination on Mr Lawal’s application. In deference to Mr Lawal’s circumstances I gave my decision and provided reasons for it orally. Subsequently, Ms Hardie who appeared for the Respondent, asked for written reasons, which are now provided.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the Australian Citizenship Act 2007 (Cth) (‘the Act’).
Subsection 21(2) of the Act sets out the general eligibility requirements for a person to become an Australian citizen by conferral. Paragraph 21(2)(c) sets out the residence requirements that an applicant must satisfy:
21 Application and eligibility for citizenship
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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 general residence requirement referenced in paragraph 21(2)(c) is set out in section 22:
22 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.
There is no dispute that Mr Lawal satisfies the criteria at paragraphs 22(1)(a) and 22(1)(b). Regarding the criteria at paragraph 22(1)(c), the relevant 12-month period commenced on 18 July 2020 and Mr Lawal did not become a permanent resident until 29 June 2021. As such he does not satisfy paragraph 22(1)(c).
Mr Lawal submits that his circumstances are such that the Ministerial discretion at subsection 22(6) of the Act should be exercised to allow him to satisfy the criteria at paragraph 21(2)(c) of the Act. Subsection 22(6) of the Act provides:
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 permanent resident 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.
The Australian Citizenship Policy Statement (‘the Policy’) and the Revised Citizenship Procedural Instructions (‘the Instructions’) set out the departmental policy relevant to Mr Lawal’s application. Departmental policy and instructions assist decision makers by providing guidance on the interpretation of and exercise of powers under the Act. The Tribunal will usually apply departmental policy unless there are cogent reasons not to do so.
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship, at section 3 contains relevant guidance on factors to be considered when exercising the discretion afforded by subsection 22(6) of the Act:
3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant
hardship or detriment’
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
The Instructions also consider some commonly encountered scenarios, including the ability of applicants to obtain work in Australia and access to education fee help. The Instructions state:
·Claimed inability to obtain work in Australia on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available.
Many employment opportunities with the Australian Public Service (APS) and other Commonwealth employers require a person to be an Australian citizen, or to become an Australian citizen before they can be appointed permanently. Comparable employment opportunities outside the Commonwealth may be limited, depending on the skills of the applicant. However, the potential hardship or disadvantage:
omay be considered a significant hardship or disadvantage/detriment, where a person is unable to obtain employment and therefore unable to adequately financially support themselves or their family due to their citizenship status;
omay not be significant where comparable work can be obtained as a contractor or the applicant could be engaged as an employee on probation until such time as they are eligible for Australian citizenship;
omay have greater significance where all types of position (e.g. temporary, permanent or contractor) require a security clearance for which Australian citizenship is a requirement.
Where hardship or disadvantage is being claimed in relation to his or her employment, consideration should be given to what evidence the applicant can produce as to potential employment, for example evidence of a conditional employment offer based on their being a citizen.
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ISSUE TO BE DETERMINED
There is no dispute that Mr Lawal does not meet the residence requirement set out in paragraph 22(1)(c) of the Act as he was not in Australia as a permanent resident for the 12 months immediately before the day he made his application for citizenship.
As such, the issue to be determined is whether Mr Lawal would suffer significant hardship or disadvantage such that the discretion provided by subsection 22(6) of the Act should be exercised in his favour in order for him to satisfy the residence criteria at paragraph 21(2)(c) of the Act.
EVIDENCE
Mr Lawal is currently without permanent accommodation and described himself as being homeless, having moved out of his permanent accommodation 45 days prior to the hearing.
Mr Lawal holds a security licence and in March 2019 he began working as a railway security guard. Whilst working as a security guard he found he became tired and was subsequently diagnosed with leukaemia in 2020. Mr Lawal also suffers from mental health conditions. He takes medication for both conditions, but he told the Tribunal that he has not been regularly taking medication to treat his leukaemia, but that he will soon see his treating doctor.
Mr Lawal gave evidence that he has been in receipt of social security benefits since July 2021 and is entitled to health care through Medicare.
He has received an offer to study a Bachelor of Nursing at the University of Wollongong. His studies were due to commence in February 2022 and he sought assistance from the university’s welfare team to help find accommodation. He was told that the welfare team is unable to assist him until he has enrolled in his course.
Mr Lawal is experiencing financial difficulty owing to his being unemployed since June 2020. He gave evidence to the Tribunal that he sought to obtain a personal loan but his application was refused owing to him being a permanent resident.
Mr Lawal claims to have applied to the Australian Defence Force (‘ADF’) and was not considered on account of his not being a citizen. Similarly Mr Lawal was also unable to apply to the Australian Federal Police (‘AFP’). He also indicated he had considered working as a security guard at the Department of Home Affairs.
CONSIDERATION
The question for the Tribunal is whether Mr Lawal would suffer significant hardship or disadvantage should the discretion provided by subsection 22(6) not be exercised in his favour.
In the present circumstances, I consider that Mr Lawal’s future employment is not a consideration that weighs in favour of the discretion in subsection 22(6) being exercised. Whilst I accept that he has had difficulty finding employment since June 2020, there is no evidence that he has been denied employment solely on account of his not holding Australian citizenship. Whilst Mr Lawal indicated he sought employment with the ADF and the AFP, there is no evidence of him having an offer of employment contingent on his being an Australian citizen.
Mr Lawal contends that not having Australian citizenship will affect his health. The evidence before the Tribunal certainly substantiated that Mr Lawal suffers from mental health conditions and is being treated for leukaemia. The evidence in regards to both conditions is that he has been treated for some time in the public health system and that he has access to Medicare. As such, Mr Lawal’s claim that his health is at risk should he denied Australian citizenship is not accepted.
During the hearing, Mr Lawal indicated that he had suffered severe hardship in the past, though he did not provide details. In his written submission he stated that he had been exposed to a difficult situation and had a fear that the ‘horrific experience would reoccur’. Once again he did not provide details.
The discretion in subsection 22(6) requires me to be satisfied that Mr Lawal would suffer from significant hardship or disadvantage if the discretion were not exercised in his favour. Mr Lawal has identified his health, unemployment and lack of permanent accommodation as the factors which militate in favour of the discretion in subsection 22(6) being exercised.
In this matter the evidence supports a conclusion that Mr Lawal’s existing hardships are independent of and not related to his citizenship status. It follows that his failure to meet the general residence requirement would not cause him to suffer significant hardship or disadvantage such that the discretion in subsection 22(6) should be exercised.
DECISION
Pursuant to a decision made on 20 August 2021 the Tribunal affirmed the decision to refuse Mr Lawal’s application for Australian citizenship.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 7 March 2022

Date(s) of hearing: 7 February 2022

Applicant: Self-Represented

Solicitor for the Respondent: Ms S Hardie, HWL Ebsworth

[2022] AATA 380

7 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	7 February 2022
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth