Lyn Flora Elizabeth Lavigne and Minister for Immigration and Border Protection
[2014] AATA 12
[2014] AATA 12
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4123
Re
Lyn Flora Elizabeth Lavigne
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 14 January 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS
CITIZENSHIP – general residence requirement – whether applicant a permanent resident at time of Minister’s decision – whether any discretion to grant the application – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 5, 21 and 22
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member J F Toohey
14 January 2014
BACKGROUND
Ms Lyn Lavigne is a citizen of the Seychelles. She and her husband, who is an Australian citizen, married in 1998. Their three children, aged seven, four and three, are all Australian citizens. Ms Lavigne seeks review of a decision by the Minister for Immigration and Border Protection (the Minister) that she is not eligible for Australian citizenship.
Ms Lavigne attended a hearing of the Tribunal by telephone from the Seychelles. Her husband also participated by telephone and spoke on her behalf.
RELEVANT LEGISLATION
To be eligible for Australian citizenship, a person must satisfy the requirements in s 21(2) of the Australian Citizenship Act 2007 (the Act) which states:
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 or the special residence requirement or satisfies the defence service requirement at the time the person made the application; and
(d) understands the nature of an application[for citizenship]; 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.
Ordinarily, a person must satisfy each of these requirements in order to be eligible for citizenship, but some persons may be exempt from some requirements. They are: persons with a permanent or enduring physical or mental incapacity; persons aged 60 or over who have a hearing, speech or sight impairment; persons aged under 18; persons born to a former Australian citizen; persons born in Papua; and stateless people: s 21 (3), (4), (5), (6), (7), (8). Ms Lavigne agrees that none of these applies in her case.
THE ISSUES
Only two of the requirements in s 21 (2) are in issue in this case. They are:
(i)whether Ms Lavigne was a permanent resident at the time of her application and at the time of the Minister’s (and so the Tribunal’s) decision: s 21(2)(b); and
(ii)whether she satisfies the general residence requirement. (Ms Lavigne does not claim to satisfy the special residence requirement or to have completed relevant defence service.)
Was Ms Lavigne a permanent resident at the time of her application and at the time of the decision?
Permanent resident is defined in s 5 of the Act. Ms Lavigne has held a permanent resident visa for most of the past 11 years. Most recently, she held a permanent visa from 19 September 2006 to 19 September 2011, and from 20 September 2012 to 20 September 2013. She says, and I have no reason to doubt, that her permanent visa only lapsed in 2011 through an oversight on her part when she was dealing with her seriously ill mother and her own pregnancy with her third child. Her permanent visa lapsed again in 2013 because she and her husband believed it had been granted for five years, as previously, whereas in fact it had been granted for only one year, apparently in accordance with changes to visa provisions. Ms Lavigne has applied for a further permanent resident visa and expects it will be granted within the next month or so. Based on her visa history, there appears no reason a further visa would not be granted.
At the time of her application for citizenship on 14 June 2013, Ms Lavigne held a permanent visa and was a permanent resident. She therefore satisfied s 21(2)(b)(i) of the Act.
At the time of the reviewable decision on 29 July 2013, Ms Lavigne still held a permanent visa and so also satisfied s 21(2)(b)(ii). However, because that visa lapsed and has not yet been renewed, she does not satisfy this requirement at the time of the Tribunal’s decision.
There is no discretion in the Act by which a person who is not a permanent resident at the time of the decision on the application may be treated as being a permanent resident. Mr Lavigne argued that the Tribunal could defer its decision for a month or so in order for Ms Lavigne to obtain a further permanent visa, thereby enabling her to satisfy s 21(2)(b)(ii). I accept it would be open to the Tribunal to follow that course, although I am not sure it would be in keeping with the spirit of the legislation, especially legislation that, in effect, allows a person to make a fresh application for citizenship at any time.
Even if considerations of public policy did not weigh against deferring a decision, the Minister submits, and I agree, that it would be futile to do so because Ms Lavigne cannot satisfy the general residence requirement in s 22 of the Act.
The general residence requirement
By s 22(1), Ms Lavigne will satisfy the general residence requirement if:
(a)she was present in Australia for the period of four years immediately before the day she made her application; and
(b)she was not present in Australia as an unlawful non‑citizen at any time during that four year period (there is no suggestion that this applies here); and
(c)she was present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application.
A person is taken to taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day he or she made the application was not more than 12 months: s 22(1A).
It is not in dispute that, in the four years immediately preceding her application for citizenship, Ms Lavigne was present in Australia for a total of 36 days. It follows that s 22(1A) does not apply, and that she does not satisfy s 22(1)(a).
A person is taken to satisfy s 22(1)(c) if the total period of any absence in the period of 12 months immediately before the day he or she made the application was not more than 90 days and she was a permanent resident during each period of absence: s 22(1B).
It is not in dispute that, in the 12 months immediately preceding her application for citizenship, Ms Lavigne was present in Australia for a total of 21 days. It follows that s 22(1B) does not apply, and that she does not satisfy s 22(1)(c). Moreover, there was a period of just over three months, from 14 June 2012 to 19 September 2012, when she did not hold a permanent visa, meaning she was not a permanent resident during each period of absence as required by s 22 (1B)(c).
There are discretions in sub-sections 22(4A), (5), (6) and (9) of the Act by which the Minister (and so the Tribunal) may treat a person as satisfying the general residence requirement who would not otherwise do so.
By s 22(4A), for the purposes of s 22(1)(b), the Minister (and so the Tribunal) may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the person was present but was an unlawful non-citizen as a result of an administrative error. There is no suggestion that Ms Lavigne has ever been an unlawful non-citizen. This discretion has no relevance in her case.
By s 22(5), for the purposes of s 22(1)(c), the Minister (and so the Tribunal) may treat a period as one in which the person was present in Australia as a permanent resident if he or she was present but, because of administrative error, was not a permanent resident during that period. Ms Lavigne was overseas during both periods when her permanent visa lapsed and there is no suggestion that administrative error played any part in her visa lapsing. This discretion has no relevance in her case.
The discretion in s 22(5A) concerns persons confined in prison or a psychiatric institution and has no relevance to Ms Lavigne.
The discretion in s 22(6) permits the Minister (and so the Tribunal), for the purposes of s 22(1)(c), to treat a period as one in which a person was present in Australia (except as a permanent resident or an unlawful non-citizen) if the person was present in Australia during that period and would suffer significant hardship or disadvantage if that period were not so treated.
It is clear from written statements submitted by Mr and Ms Lavigne that her reasons for applying for citizenship have to do with recognising her relationship, as an individual and through her husband and children, with Australia. Their statements do not suggest that she would suffer significant hardship or disadvantage. Mr Lavigne argued at the hearing that, without citizenship, she could find herself in a situation where she could not travel to Australia if one of their children had to travel urgently for medical treatment. It seems unlikely that Ms Lavigne would not be granted a visa to travel should such occasion arise and, in any event, she anticipates being granted a further permanent visa shortly.
However, even if I were satisfied that Ms Lavigne would suffer significant disadvantage or hardship, s 22(6) cannot assist her. The discretion relies on a person being present in Australia except as a permanent resident in the 12 months immediately preceding the application. During the 21 days she was present in Australia in that period (from 28 September 2012 to 18 October 2012), Ms Lavigne held a permanent visa and was a permanent resident. It follows that the discretion in s 22(6) cannot be exercised in her case.
The discretion in s 22(9) concerns persons who are the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making their application. It provides:
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.
During all the periods when she was not present in Australia – in both the four years and the 12 months immediately preceding her application – Ms Lavigne was not also a permanent resident. The fact that there was only a short time when she was not a permanent resident does not alter the conclusion that the benefit of this discretion is not available to her. The question whether she had a close and continuing relationship with Australia therefore does not arise.
Finally, by s 22(11), a person in an interdependent relationship with an Australian citizen may, for the purposes of s 22(1)(c), be treated as present in Australia as a permanent resident on conditions including that they are a permanent resident during that period. Ms Lavigne does not rely on this discretion and I am satisfied it does not apply in her case.
There is no other discretion in the Act by which Ms Lavigne’s application might be approved.
CONCLUSION
At the hearing, I went through the legislation in some detail in an effort to explain to Mr and Ms Lavigne the relevant provisions and why I could not see any discretion that would enable me to grant Ms Lavigne’s application. Mr Lavigne expressed his deep frustration that her application could not by some means be approved. Given that Ms Lavigne’s permanent visa has lapsed for relatively short periods and the circumstances in which it lapsed, I understand his frustration. However, the Tribunal has only the powers granted by the legislation.
Nothing about this decision precludes Ms Lavigne from applying for citizenship again at any time in the future when she believes she satisfies the eligibility requirements.
For the reasons I have given, I affirm the decision under review.
30. I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 14 January 2014
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