Morton and Minister for Immigration and Border Protection

[2017] AATA 582

Morton and Minister for Immigration and Border Protection [2017] AATA 582 (1 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5515

Re:Stuart Charles Morton

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:1 May 2017

Place:Sydney

The application for review has no reasonable prospects of success and is dismissed.

....................................[sgd]....................................

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal of substantive application – whether Tribunal satisfied that substantive application has no reasonable prospect of success – substantive application concerns citizenship residence requirement – substantive application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(b)

Australian Citizenship Act 2007 (Cth) ss 21(2)(c), 22, 22(9), 22A, 22B, 22C, 24

SECONDARY MATERIALS

Australian Citizenship Act 2007 – Specification under section 22C – Special Residence Requirement (Cth)

REASONS FOR DECISION

Senior Member A Poljak

1 May 2017

1. The applicant, Mr Morton, has applied to the Tribunal for review of the decision of a delegate of the Minister for Immigration and Border Protection, the respondent, dated 19 September 2016 (“Application for Review”).

2. The delegate refused to approve Mr Morton becoming an Australian citizenship by conferral pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”), because, relevantly, the delegate was not satisfied that Mr Morton met the eligibility requirements in s 21(2)(c) of the Citizenship Act.

3. These proceedings concern an application for dismissal.

4. The respondent contends that the application for dismissal should be granted pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), on the basis that the application for review has no reasonable prospects of success. The respondent contends this because Mr Morton does not, and cannot, meet the residency requirement in s 21(2)(c), even if he would have the benefit of a favourable exercise of the discretion in s 22(9), which Mr Morton contends for.

5. The issue for determination in the substantive matter is whether Mr Morton satisfies the general residence requirement in s 22 of the Citizenship Act.

   RELEVANT LEGISLATIVE PROVISIONS

6. Section 21 of the Citizenship Act sets out eligibility requirements for citizenship. Relevantly s 21(2)(c) provides as follows:

   (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   …

7. The special residence requirements in s 22A and s 22B of the Citizenship Act do not apply to Mr Morton as he is not seeking to engage in an activity, or engage in work of a kind, specified under subsections 22C(1) and 22C(3). Although he is “a person who is a writer or is engaged in the visual or performing arts” he is not the holder of, and has never held, a Distinguished Talent Visa; see Australian Citizenship Act 2007 – Specification under section 22C – Special Residence Requirement (Cth).

8. Section 22 of the Citizenship Act relevantly provides:

   (1)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

   (d)the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

   (e)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.

   Overseas absences

   (1A)  If:

   (a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

   (b)the total period of the absence or absences was not more than 12 months;

   then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

   (1B)  If:

   (a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

   (b)the total period of the absence or absences was not more than 90 days; and

   (c)the person was a permanent resident during each period of absence;

   then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

   …

9. The only discretionary power and exemption in s 22 which is relevant and may be of some assistance to Mr Morton is s 22(9) which provides:

   (9)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.

   CONSIDERATION

10. Mr Morton applied for Australian citizenship on 13 April 2015 (the “Application”).

11. When considering the general residence requirement contained in section 22(1)(a), it appears that Mr Morton was present in Australia for 783 days and was not present in Australia for 678 days in the four years immediately before the Application. The total period of absences was more than 12 months and as such the ameliorative provision, s 22(1A), does not assist him.

12. Mr Morton satisfies s 22(1)(b) as he was not present in Australia as an unlawful non-citizen at any time during the four-year period immediately before he lodged his Application.

13. In regards to section 22(1)(c), Mr Morton was a permanent resident in the 12 month period immediately prior to when he lodged his Application, but was only present in Australia for 132 days and was not present for 233 days. The total period of absences is more than 90 days and as such he is not assisted by the ameliorative provision, s 22(1B).

14. Mr Morton became a permanent resident of Australia on 21 November 2013 when his permanent Employer Nomination Scheme subclass 186 visa was granted. This means that even if the discretion in s 22(9) were exercised, it could only assist Mr Morton in relation to times when he was not present in Australia during the period from 21 November 2013 to 12 April 2015.

15. Having regard to this period of time there appears to be only two periods when Mr Morton was not present in Australia. If the discretion in s 22(9) were exercised, there still remains a residual period of 431 days during which Mr Morton was not present in Australia and was not a permanent resident.

16. It follows that he would therefore continue to fail to meet the requirements in s 22(1)(a).

17. For all of the reasons above, I am satisfied that the application for review of the substantive matter has no reasonable prospects of success and should be dismissed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 1 May 2017

Date(s) of hearing:	28 March 2017
Applicant:	By phone
Solicitors for the Respondent:	K Powell, Clayton Utz