Loo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 104
•4 February 2020
Loo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 104 (4 February 2020)
Division: GENERAL DIVISION
File Number(s): 2019/5645
Re: Ms Lay Peng Loo
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal: Mrs J C Kelly, Senior Member
Date: 4 February 2020
Place: Sydney
The application is dismissed pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Mrs J C Kelly, Senior Member
Catchwords
DISMISSAL – refusal to grant Australian citizenship by conferral – applicant not meeting general residence requirement – the applicant was not present in Australia for the period of 4 years immediately before the day she made the application – the applicant was not present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application – whether section 22(9) Ministerial discretion applies – subsection 42B(1)(b) no prospect of success – review application is dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B
Australian Citizenship Act 2007 (Cth) ss 21, 22
Cases
Minister for Immigration and Border Protection v Han [2015] FCAFC 79; 231 FCR 113
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
4 February 2020
Ms Loo has applied for review of the decision made on 3 September 2019 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse her application for citizenship (the application for review). The Minister contends that the application for review should be dismissed pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) because it has no reasonable prospects of success.
Ms Loo appeared before the Tribunal assisted by her husband, Mr Mellor.
The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Act).
Section 22(1) of the Act provides:
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.
Ms Loo and the Minister agree that she was not present in Australia for the period of 4 years immediately before the day she applied for citizenship and therefore did not satisfy s 22(1)(a) of the Act. They also agree that she was not present in Australia as a permanent resident for the period of 12 months immediately before the day she applied for citizenship and therefore does not satisfy s 22(1)(c) of the Act. Therefore, she does not satisfy the general residence requirement. She had been in Australia for a total of 131 days in the 4 years immediately before she applied for citizenship and for 35 days as a permanent resident in the 12 months prior to making her application.
The parties also agree that Ms Loo did not hold a valid permanent resident visa during the period 22 May 2018 to 6 August 2018. She applied for the BB-155 – resident return visa on 6 April 2018 but it was not granted until 6 August 2018.
Subsections 22(1A) to 22(11) of the Act modify the application of subsections 22(1)(a), (b) and (c) in particular circumstances. The only provision which was suggested may assist Ms Loo is subsection 22(9) of the Act which confers a discretion on the Minister and therefore this Tribunal as follows:
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
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Section 5 of the Act defines “permanent resident”:
(1) 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 …
The issue to be decided is whether Ms Loo “was a permanent resident during that period” as required by s 22(9)(c) of the Act.
In the review application, Mr Mellor wrote that:
there was a delay of 124 days between the date of application and the grant of the visa.
three emails sent to the Department went unanswered, and the visa was granted only after a visit to the Australian Consulate General in Hong Kong where a senior immigration officer apologised for the delay which he put down to administrative oversight.
the two previous renewals of Ms Loo’s visa in 2016 and 2017 had been approved 12 days and 8 days respectively after the date of application.
the senior immigration officer had told Ms Loo that she qualified for Citizenship by Conferral and that she should apply.
Ms Loo held valid permanent resident visas during the rest of the relevant four year period.
Mr Mellor argued that s 22(9)(c) did not require an applicant for citizenship to be a permanent resident during the entirety of the period specified in s 22(1)(c) of the Act, relying on the decision in Minister for Immigration and Border Protection v Han [2015] FCAFC 79; 231 FCR 113 (4 June 2015 at [56] and [57]).
He also referred to the insertion of s 22(3) proposed in the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) which although not enacted, provides insight into the Minister’s intentions and directly relates to Ms Loo’s situation, where through no fault of her own, her visa lapsed for a short period of time. As such, the period when she did not hold a valid visa and was therefore not a permanent resident, should be deemed to be a period when she was a permanent resident.
The Tribunal went through both Mr Mellor’s arguments in detail during the hearing, addressing the legislation and the Court’s statements in Han.
In Han, the Court considered the legislative history leading up to the enactment of s 22(9) in the Act which “provides another element of the relevant context” for the purpose of statutory construction. The provision in the Bill was in the same form as the provision enacted. In that context, the Court considered statements of policy in the Explanatory Memorandum which accompanied the Bill.
The Bill Mr Mellor relied on cannot assist the interpretation of the Act. It was not enacted and was discharged from the Notice Paper on 18 October 2017. It has no relevance.
The Tribunal does not accept Mr Mellor’s interpretation of “during” in s 22(9)(c) of the Act. The decision in Han does not support that interpretation. Han was concerned with the Minister’s contention that the spouse or de facto partner of the applicant for citizenship had to be an Australian citizen, not only at the time of application, but throughout the entirety of the relevant periods “in respect of which amelioration is sought”. The Court was concerned with the construction of s 22(9)(a) of the Act. The Court held that on the proper construction of the provision, the spouse of the applicant for citizenship had to be an Australian citizen only at the time of application.
Section 22(9) ameliorates the operation of s 22(1)(c) where a person is the spouse or de facto partner of an Australian citizen at the time the person made the application.
Each of the three elements of s 22(1)(c) of the Act must be satisfied:
being present in Australia
as a permanent resident
for the period of 12 months immediately before the day the person made the application.
Paragraph 37 of Han is relevant. There the Court said:
It is also clear that the various references in paragraphs (a) to (d) of s 22(9) to “during that period” are a reference to the period which is the subject of the Minister’s requested intervention, which is referred to in the chapeau as “a period”.
In this case, the “period” is the period Ms Loo was absent from Australia in the 12 months immediately before she applied for citizenship.
Section 22(9) only ameliorates the requirement in s 22(1)(c) of being present in Australia. It maintains the requirement in s 22(1)(c) that the person be a permanent resident during the entirety of the 12 month period immediately before the person applied for citizenship.
Ms Loo did not hold a valid permanent resident visa for over two months from May to August 2018. During that period she was not a permanent resident. There is no legislative provision which overcomes this difficulty, accepting that this was a consequence of the Department’s procedures and therefore s 22(9)(c) is not satisfied.
Mr Mellor and Ms Loo have been very frustrated as a result of their interactions with the Department. Most recently, Ms Loo’s visa was again not renewed until after it had ceased, although she had lodged the application “months before” the cessation date. That resulted in her losing her permanent residence status again for a short period. Mr Mellor made the point that the Department’s conduct could deprive Ms Loo of any hope of meeting the criteria for citizenship. During discussion at the hearing, Ms Donald said that in 2016 the validity of resident return visas was reduced to one year instead of the previous five years. Mr Mellor was frustrated that the same documents had to be submitted each year. He understood that they were archived and not accessible for later applications. It appears that since the reduction in the period of validity, the Department has been overwhelmed by the number of applications.
The Tribunal is not the forum that can resolve issues arising from the Department’s processes and procedures unless the relevant legislation provides relief. The Act does not in this case
For the reasons set out above, the application for review has no reasonable prospects of success. The application is dismissed pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 4 February 2020
Date(s) of hearing:
28 January 2020
Applicant:
In person
Solicitors for the Respondent:
Ms M Donald- Sparke Helmore Lawyers
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