Mok and Minister for Immigration and Citizenship

[2008] AATA 922

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 922

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3210

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JUNE-LIAN MOK

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date15 October 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe.

Senior Member

CITIZENSHIP – permanent resident – not present in Australia for 2 years in 5 years – any relevant discretion – discretion regarding hardship’s not available – no discretion under current Act relating to activities beneficial to Australia

Australian Citizenship Act 2007

Australian Citizenship Act 1948

Australian Citizenship (Transitionals and Consequentials) Act 2007

Re Grylls and Department of Immigration and Citizenship (2007) AATA 2085  

REASONS FOR DECISION

15 October 2008 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent dated 24 June 2008 to refuse an application for Australian citizenship.

2.      At the hearing the applicant Ms June-Lian Mok was unrepresented.  The respondent Minister for Immigration and Citizenship (the Minister) was represented by Mr D Catanese of the Australian Government Solicitor’s office.  Evidence was given by Ms Mok.

3.      Ms Mok was born in England of Malaysian parents and is currently a citizen of Malaysia.  Her parents separated in 1970 and her mother migrated to Australia in 1988 and is now an Australian citizen.  Ms Mok first entered Australia in February 1982 on a Student visa at age 15 and remained here until 1992.  She obtained a permanent residence visa in 1988.  From 1992 until 7 November 2006, Ms Mok remained overseas except for some short visits to Australia.  From 7 November 2006 she remained in Australia until 14 March 2008 when she departed for Singapore.  She made application for Australian citizenship under an application lodged on 6 December 2007.

4.      The Australian Citizenship Act 2007 (the 2007 Act) came into force from 1 July 2007 and the Australian Citizenship Act 1948 (the 1948 Act) was repealed. Under s 21 of the 2007 Act a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the residence requirements under s 22. Pursuant to Item 5B of Part 1 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act), a person who is a permanent resident under the 1948 Act who makes application within the first three years of the 2007 Act satisfies the resident 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.

It was accepted that Ms Mok satisfied (a) as being present for 413 days in the preceding two years but did not satisfy (b) as being present for 443 days only in the preceding five years.  As a consequence, she does not satisfy the residence requirements to be eligible for citizenship.

5.      While Ms Mok recognised that she had not satisfied the residence requirement, she sought the exercise of some discretion.  She said that on her return to Australia in November 2006 she had intended to remain here indefinitely.  As an only child she felt responsible for her mother.  With her skills in health care, nutrition and science she sought employment in Australia.  She was unsuccessful in obtaining suitable employment after making some 40 applications.  While no prospective employer noted her lack of citizenship in a response to her application, Ms Mok said that it had been commented on informally as indicating some doubt on her commitment to this country.  In addition, she maintained that she was ineligible for public sector employment without citizenship. She said that, as a result, she was forced to obtain employment in Singapore as a Senior Market Development Manager with Shire Pharmaceutical Contracts Ltd in March 2008.  Ms Mok said that her employer has agreed to consider her for any suitable role which may arise in its Sydney office which opened in 2007.  She believed that her work in the pharmaceutical and medical service industry since 1994 would be beneficial to Australia.

6.      Initially, Ms Mok believed that a discretion contained in s 22(6) of the 2007 Act could assist her.  This provides:

(6)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:

(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

Clearly, this discretion is not relevant to the circumstances of Ms Mok as there were no periods in which she was present in Australia which have not been as a permanent resident or not included in the accepted total days present in Australia.

7.      Ms Mok also sought to rely on the decision of this Tribunal in Re Grylls and Department of Immigration and Citizenship (2007) AATA 2085. However, in that case, the decision under review was made on 14 February 2007 under the 1948 Act. Under that Act, s 13(4)(b) provided a discretion to treat a period during which an applicant was a permanent resident and not present in Australia as a period during which the applicant was present where the applicant was engaged in activities that the Minister considered beneficial to the interests of Australia. Unfortunately for Ms Mok, the 2007 Act does not contain any similar discretion. Under Item 7 of Part 1 of Schedule 3 of the Transitionals Act, the discretion formerly available under s 13(4)(b) of the 1948 Act remains available but only where a person’s application was made prior to 1 July 2007 but no decision had been made before that date. Here, Ms Mok’s application was lodged on 6 December 2007 and, whether or not her activities might be considered as beneficial to Australia, no such discretion is available. For completeness, it should be said that her circumstances would be likely to be distinguished from those of Mr Grylls. His activities outside Australia consisted of installing, commissioning and servicing products manufactured by his employer in Australia. In this case Ms Mok would be relying solely on the grounds that her skills and experience obtained outside Australia may benefit Australia in future. It is clearly possible that she would not satisfy the requirements for that discretion to be applied. However, it is clear that no such discretion is available in relation to her application.

8.      There are no other discretionary provisions under the 2007 Act which are available to overlook the failure of Ms Mok to satisfy the residence requirements to be eligible for citizenship.  To the contrary, s 24(1A) of that Act excludes the possibility of any discretion not specifically provided for by stating:

The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2),(3),(4),(5),(6),(7) or (8)

None of these subsections is relevant to Ms Mok.

9.      It follows from the foregoing that Ms Mok is not eligible to become an Australian citizen under the 2007 Act and the decision under review must be affirmed.

I certify that the nine (9) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed:         Dianne Eva  

Clerk

Date of Hearing  13 October 2008
Date of Decision  15 October 2008
Self Represented  Ms June-Lian Mok

Solicitors for the Respondent    Mr D Catanese & Ms K Miller,
  Australian Government Solicitor