Malik and Minister for Immigration and Citizenship

[2010] AATA 1054

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2217

GENERAL ADMINISTRATIVE DIVISION		)
Re		MUNDRESH MALIK

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date23 December 2010

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship – relevant residency requirements not met – exercise of discretion – interdependent relationship – engaging in activities of benefit to Australia – discretion not exercised – decision under review affirmed.

Australian Citizenship Act 2007 (Cth) ss 22(11), 22A, 22B, 22C
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) Schedule 3, Item 5B

Acts Interpretation Act 1901 (Cth) s 22(1)(h)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

23 December 2010   Senior Member R W Dunne

introduction

1.      On 5 December 2005, the applicant (Mundresh Malik) was granted a Contributory Parent, Subclass 143 visa.  This was a permanent visa.  She became a permanent resident on her arrival in Australia on 25 December 2005.  On 25 May 2010, she applied for conferral of Australian citizenship.  At the time of lodgement of her application, she did not meet the relevant residency requirements set out in the Australian Citizenship Act 2007 (“Act”) and the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“Transitionals Act”). To overcome those requirements, she applied for a Ministerial discretion based on an interdependent relationship with her daughter. In the absence of eligibility for discretion, her application for citizenship was refused by the delegate. Mrs Malik applied to the Tribunal for review of the delegate’s decision.

2.      At the hearing, the applicant was represented by her daughter (Ms Ritika Walia) and Mr P d’Assumpcao appeared for the respondent.  I received into evidence the T documents (Exhibit R1) and the Supplementary T documents (Exhibit R2) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the applicant’s Outline of Argument and Annexure (Exhibit A1).

issue for the tribunal

3. The issue for the Tribunal is whether the applicant is able to satisfy the residency requirements under the Act and the Transitionals Act.

relevant legislative provisions

4. The Act came into operation on 1 July 2007. If a person was a permanent resident of Australia before the commencement of the Act, Item 5B of the Transitionals Act relevantly provides:

“5B  Citizenship by conferral—persons who are permanent residents at commencement

(1)      This item applies if:

(a)a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and

(b)the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.

(2)In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)For the purposes of section 21, a person satisfies the general residence requirement if the person has been present in Australia as a permanent resident for:

(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)a total period of at least 2 years in the period of 5 years before that day.

…”

5.      Section 22(11) of the Act provides:

“Ministerial discretion—person in an interdependent relationship

(11)     If, at the time the person made the application, the person:

(a)holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and

(b)      is in that interdependent relationship;

then, 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:

(c)the person held that visa during that period and the person was in that interdependent relationship during that period; and

(d)      the person was not present in Australia during that period; and

(e)      the person was a permanent resident during that period; and

(f)the Minister is satisfied that the person had a close and continuing association with Australia during that period.”

6.      Sections 22A to 22C of the Act relevantly provide:

“22A    Special residence requirement—persons engaging in activities that are of benefit to Australia

(1)Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

(a)      the following apply:

(i)the applicant is seeking to engage in an activity specified under subsection 22C(1);

…

22BSpecial residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia

(1)Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

(a)at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and

…

22C  Special residence requirement—legislative instruments

(1)The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).

(2)…

(3)The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).”

7.      The current Australian Citizenship Instructions (“Citizenship Instructions”) provide guidance in relation to the operation of s 22(11) of the Act.  The Tribunal should have regard to the Citizenship Instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The relevant paragraphs of the Citizenship Instructions dealing with s 22(11) are set out in Chapter 5 and read:

“From 15 March 2009, the discretion at s22(11) applies only to people who are in an interdependent relationship other than a same-sex de facto relationship.  The same-sex de facto partner of an Australian citizen is now able to access the discretion at s22(9) of the Act.

Under s22(11) periods spent overseas by a permanent resident who was granted their permanent visa because they were in an interdependent relationship with an Australian citizen and is still in that interdependent relationship at the time of making the application, can be counted as periods of permanent residence in Australia.

The discretion to treat periods spent overseas by the applicant as periods during which the person was present in Australia as a permanent resident can only be applied to periods when:

·     the applicant was a permanent resident and

·     the applicant was still in the same interdependent relationship with the Australian citizen and

·     the applicant had a close and continuing association with Australia (see below).

Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen interdependent partner.

Factors that may contribute to a close and continuing association with Australia include:

·     Australian citizen children

·     length of relationship with Australian citizen interdependent partner

·     extended family in Australia

·     return visits to Australia

·     periods of residence in Australia

·     intention to reside in Australia

·     employment in Australia (for example, public or private sector)

·     ownership of property in Australia

·     evidence of income tax payment in Australia and

·     current bank accounts in Australia.

…”

background and evidence of applicant

8.      The material facts in this case are not in dispute.  At the time of lodging her application for citizenship, Mrs Malik did not meet the residency requirement of one year residence in Australia during the two years immediately prior to lodgement.  She failed to meet this requirement by a single day (364 days residence).  At the time of lodgement, Mrs Malik and her daughter provided a request for waiver of the one year and two year criterion on the basis of an interdependent relationship.  A detailed submission by them stated the following:

“…

·     She [Mrs Walia] and her husband sponsored her parents to Australia at significant cost.

·     She [Mrs Walia] and her husband have no other support network in Australia.

·     The applicant has travelled extensively due to the illness of her parents and parents-in-law.

·     The applicant and her husband have sufficient funds to stay in Australia and have never received Centrelink benefits.

·     The applicant has a committed relationship with Australia.

·     The applicant intended to lodge her application in 2009 (when she would have met the residence requirement), however did not realise that the calculator was sliding.

·     Australian citizen is a priority for the applicant and her family.

·     It would be unfair to deny the applicant Australian citizenship due to a shortage of only one day.

·     The relationship between the applicant and her daughter is an interdependent one.

…”

9.      Since becoming a permanent resident, Mrs Malik has spent much of her time in Australia and the rest of the time with her ailing mother in India.  Her husband is also an Australian resident who was granted citizenship on 3 June 2010.  It appears that Mrs Malik misunderstood the residency requirements that applied in her case and was late in undertaking the necessary citizenship test that was required of her.  She has sought the exercise of the discretion applicable to persons who are in an interdependent relationship.  Alternatively, she has sought citizenship based on the special residency requirement applicable to persons engaged in activities that are of benefit to Australia or of work requiring regular travel outside Australia.

10.     In giving her evidence, Mrs Malik said that she provided the main support for her daughter and her family in Australia.  When her daughter was seriously ill in 2009, she cared for her two grandchildren and helped the family with cooking, cleaning and other domestic activities.  Her family is very close and she has spent much time in a supportive role as a member of the family. 

11.     Between December 2008 and March 2009, Mrs Malik worked for Discover Matrix Pty Ltd in India on a voluntary basis.  Discover Matrix Pty Ltd is one of the “major Niche Australian Education Consultancies operating in India”.  She was asked by the organisation to be their goodwill ambassador and to counsel prospective international students (along with their parents) about life in Australia.  The counselling was conducted through formal meetings and seminars arranged at the premises of Discover Matrix for either school students in Delhi or final year students at Delhi University. 

consideration

Is the applicant able to satisfy the residency requirements in the Act and the Transitionals Act?

12. Based on her status as a permanent resident, Item 5B of the Transitionals Act applies to the applicant’s personal circumstances. However, on the evidence, it seems clear that she does not satisfy the requirements of Item 5B(2)(1)(a) of the Transitionals Act. She does not satisfy the general residency requirement in that she has not been present in Australia as a permanent resident for a total period of at least one year in the period of two years before the day she made her application for citizenship. In this regard, I note that the word “year” is not defined in either the Act or the Transitionals Act. However, s 22(1)(h) of the Acts Interpretation Act 1901 defines “Calendar year” to mean “a period of 12 months commencing on 1 January”.  The Macquarie Dictionary relevantly defines “year” as:

“1. a period of 365 or 366 days, divided into 12 calendar months, based on the Gregorian calendar and now reckoned as beginning 1 January and ending 31 December (calendar year)”  [emphasis in original]

13. As Mrs Malik was present in Australia as a permanent resident only for 364 days in the two years before the day she made her application for citizenship, Item 5B(2)(1) of the Transitionals Act is not satisfied.

14.     Mrs Malik has also sought the application of the Ministerial discretion in s 22(11) of the Act.  On its literal reading, s 22(11) relates to persons who hold a permanent visa which was granted to them because the person was in an interdependent relationship with an Australian citizen.  She contends that that interdependent relationship is (and was) with her daughter, Mrs Walia.  I note that Mrs Malik does not hold, and was not granted, a visa of this kind.  Rather, she holds, and was granted, a Subclass 143 visa.  I also note that the following visas were, as at 5 December 2005, interdependent visas:

·Partner (Migrant) (Class BC), Subclass 110 (Interdependency);

·Partner (Provisional) (Class UF), Subclass 310 (Interdependency (Provisional));

·Partner (Residence) (Class BS), Subclass 814 (Interdependency); and

·Partner (Temporary) (Class UK), Subclass 826 (Interdependency).

15.     On the facts and having regard to the Citizenship Instructions, Mrs Malik could not be in an interdependent relationship with her daughter, within the meaning of s 22(11) of the Act, and the exercise of the Ministerial discretion is not available to her. 

16.     In the alternative, Mrs Malik has contended that she has engaged in activities that are of benefit to Australia or in particular kinds of work requiring regular travel outside Australian (ss 22A to 22C of the Act).  To be eligible for the exercise of the discretion under s 22A of the Act, Mrs Malik must, among other things, be seeking to engage in an activity specified under s 22C(1).  I note that the Minister has, by legislative instrument pursuant to s 22C(1), specified the kinds of activities for the purpose of s 22A(1)(a)(i) as follows:

“1.       Employment in a position which requires a high-level security clearance in a Department, an Executive Agency, or a Statutory Agency of the Commonwealth.

2.        Participation in an Australian team in the following competitions:

(a)      the Olympic Winter Games, including qualifying events for the Games;

(b)the Paralympic Winter Games, including qualifying events for the Games;

(c)the Olympic Summer Games, including qualifying events for the Games;

(d)the Paralympic Summer Games, including qualifying events for the Games;

(e)the Davis Cup Competition, including qualifying events for the Competition; and

(f) the Fed Cup Competition, including qualifying events for the Competition.”

17.     There is no evidence that Mrs Malik is seeking to engage in any of the above activities.

18.     With regard to the particular kinds of work requiring regular travel outside Australia (s 22B of the Act), I note that the Minister has specified the kind of work that is required for the purposes of the discretion in s 22B(1)(a) of the Act as follows:

“1.The 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.”

19.     There is no evidence that Mrs Malik is engaged (or has engaged) in any of the above kinds of work. 

conclusion

20. For the reasons set out above, Mrs Malik does not satisfy the residency requirements in the Act and the Transitionals Act, and the discretionary provisions relied on by her do not apply in her circumstances.

decision

21.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         ............J Coulthard............................................
  Associate

Date of Hearing  4 November 2010
Date of Decision  23 December 2010
Advocate for the Applicant       Ms R Walia (applicant's daughter)
Advocate for the Respondent   Mr P d'Assumpcao
Solicitor for the Respondent     AGS