MERCHANT and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 507

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 507

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1878

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAY MERCHANT

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date25 July 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...............[Sgd]....................

Senior Member

CATCHWORDS

CITIZENSHIP — General residence requirement — Not present in Australia as a permanent resident — Decision under review affirmed

Australian Citizenship Act 2007 (Cth), s 5, 21, 22, 22A, 22B, 23

Liu v Minister for Immigration and Citizenship [2009] FCA 494

REASONS FOR DECISION

25 July 2011 Dr P McDermott, RFD, Senior Member  

1.Mr Jay Merchant is a citizen of Canada who “is on a mission to curl in the 2014 Olympics for Australia”.[1] To enable him to be a member of the Australian Olympic curling team he has made an application to become an Australian citizen. His application was unsuccessful and he now seeks review of the decision to reject his application for citizenship.

[1] Lethbridge Journal, 29 July 2010, p. 11 (T4, fol. 126).

BACKGROUND

2.On 5 May 2006, Mr Merchant arrived in Australia on a student visa. On 29 November 2010, he was granted a Distinguished Talent (subclass 858) visa. On 28 March 2011, the applicant applied for Australian citizenship. That application was declined by a delegate of the Minister. The applicant now seeks review of that decision by this Tribunal.

LEGISLATION

3.The Australian Citizenship Act 2007 (“the Act”) applies to this case.

4.Section 21 of the Act provides for the eligibility of a person to make an application to become an Australian citizen. In the case of Mr Merchant, his application is governed by subsection 21(2) of the Act. There is no contention that any of the other subsections in s 21 have any relevance.

5.Subsection 21(2) of the Act provides:

General Eligibility

(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 has completed relevant defence service (see section 23), at the time the person made the application; and

(d) understands the nature of an application under subsection (1); 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.

6.There is no issue concerning the ability of Mr Merchant to satisfy some of the conditions in subsection 21(2) of the Act. For example, there is no issue concerning his good character. He had also provided evidence that he achieved full marks for the citizenship examination. What is in issue in this application is whether Mr Merchant satisfies the general residence requirement in s 22 as required by subsection 21(1)(c) of the Act.

7.The general residence requirements are set out in subsection 22(1)(c) of the Act. That subsection provides, in relevant respects, that for the purposes of section 21 a person satisfies the general residence requirements if:

“..as a permanent resident for:

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.”

8.For the purposes of s 5 of the Act, Mr Merchant became a permanent resident when on 29 November 2010 he was granted a Distinguished Talent (subclass 858) visa.  

9.During the four years immediately before Mr Merchant made his application, he was not present in Australia as an unlawful non-citizen. He therefore satisfies s 22(1)(b) of the Act.

10.It is not in contention that in the four years immediately before Mr Merchant made his application, he was present in Australia for 323 days. Of those days, some 112 days where spent as a permanent resident. I accordingly find that at the time that he made his application for citizenship, he did not satisfy the general residence requirements in subsection 22(1)(c) of the Act.

11.In making this finding I have been guided by the decision in Liu v Minister for Immigration and Citizenship [2009] FCA 494 where Foster J considered the meaning of “present in Australia as a permanent resident”. While His Honour was considering the application of transitional legislation, the observations made are of assistance in construing subsection 22(1)(c) of the Act . His Honour remarked (at [60]):

“In my view, the phrase present in Australia as a permanent resident … captures two ideas. First, there is a requirement that the person concerned be physically present within the borders of Australia. Second, …. that for the whole of the period or periods of time in which that person is physically present in Australia, that person must be in Australia as a permanent resident”.

12.In this case subsection 22(1)(c) of the Act cannot be satisfied. This is because prior to his application for citizenship, he was not physically present within the borders of Australia for the period of 12 months as a permanent resident.

13.I should also mention that there is no evidence before me that at the time Mr Merchant made his application for citizenship that he satisfied the special residence requirement in s 22A of the Act as he had not been a permanent residence for two years prior to his application for Australian citizenship. There is also no evidence that he has been engaged in work specified in a legislative instrument which requires regular travel outside Australia (see s 22B). There is also no evidence before me that Mr Merchant had completed relevant defence service (see s 23).

STATUTORY DISCRETION

14.If an applicant does not meet the eligibility criteria in respect of the residence requirement, the Minister has certain discretions under subsections 22(4A) to (11) of the Act. What I must consider is whether there is any statutory discretion available to overcome the failure of Mr Merchant to satisfy the general residence requirement of the Act and, if so, how that discretion should be exercised.

15.I do not consider that there is any statutory discretion available to overcome the failure of Mr Merchant to satisfy the general residence requirement of s 21(2)(c) of the Act. Certainly, Mr Merchant did not suggest that there was any such statutory discretion which could assist him.

16.Three possible statutory sources of discretion have been raised as having possible relevance to Mr Merchant’s case:-

i.subsection 22(4A) administrative error,

ii.subsection 22(6) significant hardship or disadvantage and

iii.subsection 22(9) spouse or de facto partner.

17.There certainly no suggestion by Mr Merchant that because of an administrative error that he was an unlawful non-citizen. Accordingly there is no basis for the application of subsection 22(4A) of the Act.

18.I should also, as a matter of completeness, mention subsection 22(5) of the Act which confers discretion where a person is present in Australia but not as a permanent resident because of an administrative error. However, this is not the case here.

19.In my view subsection 22(6) of the Act does not assist Mr Merchant. This is because even if the periods of time in which he was present in Australia are treated as periods when he was in permanent residence, he would still not satisfy the general residence requirement of s 21(2)(c) of the Act.

20.There is no suggestion that Mr Merchant is a spouse, de facto partner, surviving spouse or surviving partner of an Australian citizen. There is therefore no basis for the exercise of discretion in subsection 22(9) of the Act. There is also no suggestion that Mr Merchant is a person who is in an interdependent relationship within the meaning of subsection 22(11) of the Act.

CONCLUSION

21.Mr Merchant does not satisfy the general residence requirement of section 21(2)(c) of the Act. He is therefore not eligible to become an Australian citizen. There is no discretionary power available to this Tribunal to dispense with this general residence requirement.

22.I understand that Mr Merchant comes to this Tribunal on a matter of principle. The “T-Documents” while containing the application form of Mr Merchant do not include the instructions to complete the form which are not routinely kept in the records of the respondent. Mr Merchant tendered a copy of the instructions that accompanied the application form that Mr Merchant completed as well as the current form of instructions that were only modified this month. The current form of instructions certainly contains a clearer explanation of the general residence requirement. However, Mr Merchant has quite properly acknowledged that it is the language in the Act and not the language in the forms which is decisive of this application.

23.I affirm the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ..............[Sgd]........................................................
  Research Associate

Date of Hearing  20 July 2011
Date of Decision  25 July 2011
The Applicant was self-represented
Solicitor for the Respondent     Mr Tigiilagi Eteuati, Clayton Utz Lawyers