Liang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4622
•14 December 2021
Liang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4622 (14 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1152
Re:Yanwen Liang
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:14 December 2021
Place:Sydney
The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 17 June 2021 to refuse Ms Liang’s application for Australian citizenship is affirmed.
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Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant meets the requirements for conferral – whether consideration can be delayed – whether the prohibition for the grant of citizenship pursuant to subsection 24(5) of the Australian Citizenship Act 2007 (Cth) is enlivened – relevant facts and circumstances considered – relevant law and policy considered – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)CASES
Lesi v Administrative Appeals Tribunal [2015] FCA 1186
Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 33 – Prohibitions on Approval
REASONS FOR DECISION
Mr S Evans, Member
14 December 2021
INTRODUCTION
Yanwen Liang applied for Australian citizenship by conferral on 8 December 2018 and departed Australia 11 days later. She returned to Australia between 8 and 17 September 2019 and is yet to return. As Ms Liang did not meet the requirements to be granted Australian citizenship, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) refused her application. Ms Liang contends that she was unable to meet the requirements for a grant of Australian citizenship due to factors beyond her control. She wishes to advance her application from China and seeks review of the decision of the delegate to refuse her application.
BACKGROUND AND FACTS
Ms Liang was born in China in 1988. She first arrived in Australia on 29 September 2010 as the holder of a subclass 573 (Temporary) visa. On 10 September 2014 she arrived in Australia as a permanent resident after being granted a subclass 190 visa.
On 8 December 2018 she made an application for Australian citizenship by conferral. On 19 December 2018 she departed Australia, returning on 8 September 2019. On 9 September 2019 she was granted a Resident Return (Subclass 155) visa. She departed Australia on 17 September 2019.
On 14 August 2019, 28 October 2019 and 5 December 2019 the Department emailed Ms Liang letters of appointment for citizenship tests. The letters were sent to the email address nominated by Ms Liang in her citizenship application. Ms Liang claims not to have seen the letters as they had been directed to her spam email folder. Consequently, Ms Liang did not respond to the invitations.
On 4 February 2020 a delegate of the Minister made a decision to refuse her application for citizenship by conferral because she had not sat the citizenship test. On 2 March 2020 Ms Liang applied to the Administrative Appeals Tribunal for review of the decision of the delegate.
On 26 May 2020 the Minister applied to have Ms Liang’s application to the Tribunal dismissed on the ground that it had no reasonable prospects of success as Ms Liang had not completed the required citizenship test. The Minister’s application was made under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). On 1 September 2020 the Tribunal remitted the decision to the Minister for reconsideration.
In accordance with paragraph 42D(5)(b) of the AAT Act, the Minister was required to make is reconsideration decision by 28 September 2020. The Minister allowed Ms Liang further time to present evidence regarding her intentions to return to Australia. To allow for her to return the Minister sought three separate extensions of time under subsection 42D(6) of the AAT Act, each of which were granted. Ultimately, a decision was required to be made by 21 June 2021.
A third and final request for an extension of time was made on 15 March 2021. The Minister advised that due to the considerable delay, if Ms Liang did not return to Australia prior to 21 June 2021, the Minister intended to proceed to reconsider her application and would do so on the basis that Ms Liang was not in Australia. Proceeding on this basis would mean that the prohibition on the grant of citizenship to applicants outside Australia would apply.
Ms Liang claims to have had a flight to Australia booked for May 2021. By letter dated 16 April 2021 Ms Liang’s representative informed the Minister that Ms Liang was pregnant and had been diagnosed with placenta previa and would not be returning to Australia on the May 2021 flight as planned. It was also requested she be allowed to complete the citizenship test in China.
LEGISLATION AND POLICY
The relevant legislation is contained in the AAT Act and the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’).
Section 21 of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 21(2) sets out the general eligibility criteria for Australian citizenship.
Relevantly, subsection 21(2A) provides:
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Subsection 24(1) provides that if a person makes an application under section 21 of the Citizenship Act the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Citizenship Act provides the Minister must not approve an application for citizenship unless the person is eligible to become an Australian citizen under subsections 21(2) – 21(8) of the Act.
Subsection 24(5) provides for a prohibition for approval on applicants who are overseas:
Person not present in Australia
(5) 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.
Departmental policy relevant to this application is set out in the Citizenship Policy which includes the Citizenship Procedural Instructions (‘CPIs’). CPI 33 deals with prohibitions on approval of citizenship applications. The Tribunal will generally apply departmental policy such as the CPIs unless there are cogent reasons not to do so.
The AAT Act provides that where a decision is remitted to the person who made it for reconsideration the Tribunal may specify a period within which the decision is to be reconsidered or the decision must be reconsidered within 28 days. Subsection 42D(6) provides that the period for reconsideration of a decision may be extended by the Tribunal following a request by the decision maker:
42D Power to remit matters to decision‑maker for further consideration
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
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Time limits
(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
CONTENTIONS AND ISSUES
Ms Liang contends that since the Tribunal remitted her application for citizenship on 1 September 2020, she booked five flights to Australia, the first of which was scheduled to depart on 30 October 2020. The first four of the flights were cancelled by the carrier owing to the COVID-19 pandemic. Ms Liang was unable to take the final flight, scheduled for May 2021, owing to her pregnancy and health condition. At the time of the hearing she planned to travel to Australia on 29 November 2021.
She argues that in the circumstances it would be reasonable that she be able to advance her application by taking the citizenship test in China. Furthermore, the Minister should delay making a decision on her application until she returns to Australia so that the prohibition on granting citizenship provided by subsection 24(5) no longer applied.
The Minister submits that Ms Liang has had ample opportunity to return to Australia and notes she has been residing outside Australia since December 2018. Further, if she were to sit the test in China, her application would still need to be considered against other criteria. Relevantly, the other criteria includes paragraph 21(2)(g) of the Citizenship Act which requires that an applicant for citizenship is likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia, should the application be approved.
The Minister’s position is that the decision on Ms Liang’s application should not be delayed on the basis of a speculative future change in circumstances which would result in a prohibition on approval no longer applying. Should the Tribunal disagree, the Minister contends that the Tribunal does not have the authority to delay making a decision on such grounds.
Issues to be determined
I consider the issues to be determined to be:
(i)whether consideration of Ms Liang’s application for Australian citizenship can be delayed until such time as she is able to be present in Australia. And if so;
(ii)should a decision on her application be deferred until such time as she returns to Australia.
CONSIDERATION
It is not in contention that Ms Liang does not currently meet the criteria for Australian citizenship.
Ms Liang wishes to sit the citizenship test at the Australian Consulate in Guangzhou, China. Should she be able to do so, she would potentially satisfy the criteria in paragraphs 21(2)(d), 21(2)(e) and 21(2)(f) of the Citizenship Act. Ultimately, however, she would be required to be present in Australia in order for a grant of citizenship. As such, she requires a decision on her application to be deferred until such time as she returns to Australia.
Ms Liang submits that she has been prevented from meeting the criteria for conferral of Australian citizenship by Australian government policy which has prevented her from travelling to Australia. Whilst there is some merit to this argument, I accept the Minister’s position that Ms Liang has been afforded ample opportunity to return to Australia. Whilst acknowledging the serious impact of the COVID-19 pandemic on Ms Liang’s ability to return to Australia, it is the case that she has chosen to reside in China since December 2018, over a year before the pandemic began. It can be inferred from the requirements set out in the Citizenship Act that with some exceptions, applicants are generally expected to be residing in Australia. Nonetheless, as outlined Ms Liang has been provided opportunity to advance her application. Whilst living in China she was first invited to sit the citizenship test in August 2019 and the application was finally refused on remittal to the Minister in June 2021. I do not consider this unreasonable or unfair.
Leaving aside the question of fairness, subsection 24(5) prohibits grant of citizenship to a person who is not present in Australia. Ms Liang argues that the Minister should delay making a decision until such time as she is present in Australia and the prohibition provided by subsection 24(5) is not applicable.
The central question then becomes whether the decision regarding Ms Liang’s application for Australian citizenship might be deferred until the bar on approving her application is removed. The issue of the Minister, or the Tribunal in this instance, postponing consideration of an application until an event occurs in the future was considered by the Federal Court in Lesi v Administrative Appeals Tribunal [2015] FCA 1186 (‘Lesi’). The Court determined that the Minister does not have the power to defer consideration of an application on the ground that a bar to grant of citizenship may expire at some point in the future:
As I understand it, there is no restriction under the Act on the applicant making another application for citizenship after January 2016. I think the removal of an express power to defer, albeit subject to a time limit, points in the opposite direction to that advanced by the applicant. In other words, it suggests to me that the Minister does not have power to defer consideration of an application. It is true that there is no time limit on the Minister’s consideration of the matter and the complexities in the administrative steps and the information gathering process will vary from case to case. That means that the time periods within which applications will be determined will vary, but that is quite a different thing from the exercise of an express power to defer. I do not think the Minister has the power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.
I think that this case is, in one sense, stronger than that in Hassani because there is in this case no express power to defer. It is true that the Tribunal’s general power to adjourn is unconfined in its terms, but it seems to me that there would need to be something in the Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of the general power to adjourn. I can find nothing in the Act to that effect. I will follow my decision in Hassani.
More recently, this Tribunal considered the fairness of placing an application ‘on hold’ in Omara and Minister for Home Affairs (Citizenship) [2019] AATA 42 and relying on Lesi, concluded that the Minister did not have the authority to do so. Senior Member Puplick observed:
What this does raise however, is whether or not, in some sort of sense of fairness or equity the Applicant should be allowed to pursue his current application and somehow put it “on hold” until after 13 April 2019 which is less than three months away.
Unfortunately for the Applicant, judicial authority on this point is against him. In Lesi the court stated:
“I do not think that the Minister has power to postpone consideration of an application merely on the ground that a bar in paragraph 24(6)(g) will expire in the future.”
This decision was recently followed in the cases of Oliver and Bobbe and this Tribunal accepts that it has no capacity to take a different view.
It is argued on behalf of Ms Liang that in Lesi the delay in making a decision was to accommodate circumstances which arose out of criminal proceedings, making Ms Liang’s application sufficiently distinguishable for the authority not to apply. I do not accept this argument, particularly as the bar provided by subsection 24(5) is similar to that provided by subsection 24(6) in so much as there is nothing in the Act to suggest that the future occurrence of an event is a relevant consideration.
Further, as was the case in Lesi, there is no restriction under the Act on Ms Liang making another application for citizenship.
For these reasons, I consider the correct and preferable decision was to reconsider Ms Liang’s application for Australian citizenship dated 8 December 2018. Based on the evidence Ms Liang was, and remains, ineligible for Australian citizenship and the decision under review will be affirmed.
DECISION
The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 17 June 2021 to refuse Ms Liang’s application for Australian citizenship is affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 14 December 2021
Date(s) of hearing: 11 October 2021 Solicitor for the Applicant: Mr R Strang, Global Law Centre Solicitor for the Respondent: Mr T Aviram, Clayton Utz
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