Lazarides and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 321

Lazarides and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 321 (14 March 2017)

Division:GENERAL DIVISION

File Number:           2016/4330

Re:Steven Lazarides

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:14 March 2017

Place:Sydney

The Tribunal affirms the decision under review, being the decision of the delegate of the Minister dated 21 July 2016 to refuse Steven Lazarides’ application for Australian citizenship.

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

Dr L Bygrave, Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant satisfies the general residence requirement, special residence requirements or defence service requirement – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 ss 21; 22(1), 22(1A); 22(1B); 22A; 22B; 23

Administrative Appeals Tribunal 1975 (Cth) s 37

SECONDARY MATERIALS

Minister for Immigration and Citizenship, Australian Citizenship Act 2007 – Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013

REASONS FOR DECISION

Dr L Bygrave, Member

14 March 2017

1. Mr Steven Lazarides is a 56 year old citizen of Cyprus. He first entered Australia in 1969 and currently holds a subclass 155 (five year resident return) visa, which was last granted on 4 July 2016.[1]

   [1] Exhibit T, T2 at p 8.

2. On 15 April 2016, Mr Lazarides applied for Australian Citizenship under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).[2]

   [2] Exhibit T, T2.

3. The application was refused by a delegate of the Minister for Immigration and Border Protection on 21 July 2016 because Mr Lazarides did not satisfy one of the residence requirements under subsection 21(2)(c) of the Act.[3]

   [3] Exhibit T, T2 at p 21.

4. On 19 August 2016, Mr Lazarides applied to the Administrative Appeals Tribunal for review of that decision.[4]

   [4] Exhibit T, T1 at pp 1-6.

5. The matter was heard in Sydney on 13 February 2017. Mr Lazarides did not attend the hearing and consequently, provided no oral evidence to the Tribunal. I have marked the documents filed by the Minister in accordance with section 37 of the Administrative Appeals Tribunal 1975 (Cth) as Exhibit T (T1–T6). 

   EVIDENCE OF MR LAZARIDES

6. Mr Lazarides provided a statement, signed and dated 15 April 2016, with his application for Australian Citizenship. This statement included the following information:

   Steven lazarides is the director and head of operations at Lazarides yachts International pty ltd. Lazarides Yachts activities include international and local boat brokerage with international being 80% of the business. The 2^nd division is the yacht transport side of the business.

   Core duties of Mr. Steven Lazarides include being present at all international transactions, taking care of client's yachts from acquisition, preparing for ship transport and Australian quarantine, loading, discharging in Australia or any other part of the world to the point of handover.

   The success of this business leans heavily on the hands on approach from sales to hand over which demands the expertise and need for Mr. Lazarides to travel abroad in order to effectively carry on business…

   Steven Lazarides has 2 daughter both born and raised in Sydney Australia, the eldest currently attending University whilst the youngest attending high school. Both children live with the parents at the same house for 22yrs. which is owned outright by the family.

   Australia has been home to Steven Lazarides since arrival with his parents and 3 brothers as a 9 yr. old migrant back in 1969, the family roots are well seeded at 21 Kyle st, Arncliffe. Mr. Lazarides lives, works, raises his children and pays his taxes here in Australia, ... [document reproduced as original][5]

   [5] Exhibit T, T5 at p 48.

   RELEVANT LEGISLATION AND ISSUES

7. Section 21(2) of the Act establishes the criteria for general eligibility requirements for the conferral of Australian citizenship. The provisions relevant to the determination of this application are as follows:

   (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…

8. The Tribunal is satisfied that Mr Lazarides meets the requirements in subsections 21(2)(a) and (b) of the Act; he was aged over 18 years at the time he made the application, and was a permanent resident at the time he applied for citizenship and at the date of decision by the Minister’s delegate.

9. The general residence requirement is set out in section 22 of the Act. The relevant provisions are as follows:

   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. [emphasis in original]

10. Pursuant to sections 22(1A) and 22(1B) of the Act, a person may have some limited periods of overseas absences without impacting on their ability to satisfy the general residence requirement:

    (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.

11. In the four years prior to his application for citizenship, between 15 April 2012 and 14 April 2016, Mr Lazarides was present in Australia for a total of 842 days. He was present in Australia for 221 days in the 12 months (15 April 2015 to 14 April 2016) immediately preceding his application for citizenship.[6]

    [6] Exhibit T, T6 at pp 58-62.

12. The Tribunal therefore finds that Mr Lazarides does not satisfy the general residence requirement in section 22(1) of the Act. Further, as the total periods of absence are more than, respectively 12 months and 90 days, sections 22(1A) and 22(1B) of the Act do not apply.

13. Ministerial discretions may be applied to applicants to assist them satisfy the general residence requirement. Therefore, the issues for determination by the Tribunal are whether Mr Lazarides satisfies:

    (a)any of the circumstances set out in sections 22(4A) to 22(11) of the Act which would enable the Minister to exercise his discretion in relation to the residence requirements;

    (b)either of the special residence requirements set out in sections 22A (persons engaging in activities that are of benefit to Australia) or 22B (persons engaged in particular kinds of work that require regular travel outside of Australia) of the Act; and

    (c)the defence service requirement at section 23 of the Act.

    Does Mr Lazarides satisfy any of the requirements to enable a Ministerial discretion to be exercised in relation to residence requirements?

14. Section 22 of the Act enables the Minister, and therefore this Tribunal, to exercise discretions to the general residence requirement where certain requirements are met. Those requirements include:

    ·confinement in prison or psychiatric institution (section 22(5A) of the Act);

    ·administrative error (sections 22(4A) and 22(5) of the Act);

    ·significant hardship or disadvantage (section 22(6) of the Act);

    ·spouse or de factor partner of an Australian Citizen (sections 22(9) and 22(10) of the Act); or

    ·an interdependent relationship (section 22(11) of the Act).

15. There is no evidence before the Tribunal to indicate that any of these circumstances are relevant to Mr Lazarides.

    Does Mr Lazarides satisfy the special residence requirement at section 22A of the Act?

16. Pursuant to section 22A of the Act, a person meets the special residence requirement (persons engaging in activities that are of benefit to Australia) if they are seeking to engage in activities specified in the Ministers Instrument under section 22C(1) and have the support of an organisation specified in the Minister’s Instrument under section 22C(2).

17. The relevant Minister’s instrument (IMMI 13/056) states these activities are currently limited to:

    ·employment which requires a high-level security clearance in a department, an executive agency or a statutory agency of the Commonwealth; or

    ·participation in the Olympic games (including the winter, summer and Paralympic competitions and qualifying events); or

    ·participation in the Davis Cup or Fed Cup competitions, including qualifying events.

18. The Minister’s Instrument 13/056 further sets out the organisations currently specified for the purposes of subsection 22A(1)(b) of the Act include:

    ·any department, executive agency or statutory agency of the Commonwealth;

    ·the Australian Olympic Committee;

    ·Australian Paralympic Committee; and

    ·Tennis Australia.

19. There is no evidence before the Tribunal that Mr Lazarides either engages in the activities set out in paragraph 17 above or has the support of the organisations set out in paragraph 18 above. The Tribunal is therefore satisfied that Mr Lazarides does not meet the special residence requirement at section 22A of the Act.

    Does Mr Lazarides satisfy the special residence requirement at section 22B of the Act?

20. Section 22B of the Act provides that a person meets the special residence requirement (persons engaging in particular kinds of work requiring regular travel outside of Australia) if they are engaged in work of a kind that is specified in the Minister’s Instrument under section 22C(3).

21. The Minister’s Instrument (IMMI 13/056) states:

    1The kinds of work are those undertaken as part of their duties in which a person is:

    (a)a member of the crew of a ship; or

    (b)a member of the crew of an aircraft; or

    (c)engaged in work on a resources installation or a sea installation; or

    (d)a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or

    (e)an Executive Manager of an S&P/ASX All Australian 200 listed company; or

    (f)a Scientist employed by:

    (i)     an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or

    (ii)    Commonwealth Scientific   and Industrial Research Organisation; or

    (iii)    a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).

    (g)a medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Schedule 4 – Part 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation;

    (h)a person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.

22. There is no evidence before the Tribunal that shows Mr Lazarides is engaged in any of the kinds of work set out in paragraph 21 above.

23. Ministerial discretions to the special residence requirement at section 22B are:

    ·alternative residence requirements (section 22B(1A) of the Act);

    ·confinement in prison or psychiatric institution (sections 22B(2) and 22B(3) of the Act); and/or

    ·administrative error (sections 22B(4) and 22B(5) of the Act).

24. There is no evidence before the Tribunal that any of these circumstances could be applied by the Minister to Mr Lazarides.

25. The Tribunal is therefore satisfied that Mr Lazarides does not meet the special residence requirement at section 22B of the Act.

    Does Mr Lazarides satisfy the defence service requirement at section 23 of the Act?

26. A person who satisfies the defence service requirement at section 23 of the Act is taken to have met the residence requirement if they show they have:

    (a)completed relevant defence service (section 23(1) of the Act);

    (b)are a member of the family unit of a person

    (i)who has completed relevant defence service (section 23(2) of the Act) or

    (ii)died while undertaking service in the permanent forces or reserves (section 23(3) of the Act).

27. There is no evidence before the Tribunal that Mr Lazarides has either completed relevant defence service or is a family member of a person who has completed relevant defence service. The Tribunal is therefore satisfied that Mr Lazarides does not meet the defence service requirement at section 23 of the Act.

    CONCLUSION

28. On the basis of the information set out above, the Tribunal is not satisfied that Mr Lazarides meets:

    ·the general residence requirements at sections 22(1), 22(1A) and 22(1B);

    ·the special residence requirements at sections 22A and 22B; or

    ·the defence service requirement at section 23 of the Act.

    For that reason, Mr Lazarides’ application for Australia citizenship by conferral must be refused in accordance with section 24(1A) of the Act.

    DECISION

29. The decision of the delegate of the Minister dated 21 July 2016 to refuse Mr Lazarides’ application for Australian citizenship is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 14 March 2017

Date(s) of hearing:	13 February 2017
Applicant:	On the papers
Solicitors for the Respondent:	MinterEllison