Muhammad Abdullah Amir and Minister for Immigration and Citizenship
[2012] AATA 191
•3 April 2012
[2012] AATA 191
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4701
Re
Muhammad Abdullah Amir
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal J F Toohey, Senior Member
Date 3 April 2012 Place Sydney The decision under review is affirmed.
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J F Toohey, Senior Member
CATCHWORDS
CATCHWORDS – MIGRATION – CITZENSHIP – application by child – child not a permanent resident – whether discretion to waive requirement that an applicant be a permanent resident – no discretion to waive requirement – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007
CASES
Islam v Minister for Immigration and Citizenship [2012] FCA 201
REASONS FOR DECISION
J F Toohey, Senior Member
BACKGROUND
The Applicant is an eight-year-old boy from Pakistan. He came to Australia with his father, Amir Ishaq, in 2008. Mr Ishaq applied for a protection visa and included the Applicant in his application. That application has been finally determined and rejected.
The Applicant currently holds a bridging visa which entitles him to remain in Australia pending the outcome of these proceedings. It does not entitle him to permanent residence. He seeks review, through his father, of a decision by the Minister for Immigration and Citizenship (the Minister) to refuse his application for citizenship on the ground that he is not a permanent resident.
The Applicant attends a government primary school. A letter from his teacher, which is undated but appears to have been written in 2011, shows that he had been doing well and showing “great progress” academically and socially, but he had recently become unsettled and withdrawn as he worried about his future.
According to a report of a clinical psychologist in August 2011, the Applicant had become withdrawn and fearful at the prospect of returning to Pakistan; he told her that he had seen his mother (who remains in Pakistan) kill his sister, and he feared she and her family would kill him and his father if they are forced to return.
A second psychologist reported to the school in October 2011 that Mr Ishaq was reluctant to send the Applicant to school because he was concerned for the safety of his son and other students because he was “self harming [sic] and violent to people around him”.
IS THE APPLICANT ELIGIBLE TO BECOME AND AUSTRALIAN CITIZEN?
The legislation concerning the conferral of citizenship is the Australian Citizenship Act 2007 (the Act).
A person is eligible for citizenship if he or she satisfies each of the criteria in s 21(2) of the Act (the general eligibility criteria). In particular, he or she must:
(a) be over 18 at the time of making the application; and
(b) be a permanent resident at the time of making the application and at the time of the Minister’s decision; and
(c) satisfy the general residence requirement.
To satisfy the general residence requirement, a person must meet each of the criteria in s 22(1)(c). He or she must have been:
(a) present in Australia for the period of 4 years immediately before the day of making the application; and
(b) not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) present in Australia as a permanent resident for the period of 12 months immediately before the day of making the application
There are a number of exceptions to the general eligibility criteria. One concerns persons aged under 18 years. A person who is under 18 years of age at the time of making the application is eligible to become a citizen if he or she is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application: s 21(5).
In other words, a person under 18 is only required to be a permanent resident to be eligible for citizenship; he or she is not required to satisfy the general residence requirement. However, as the Applicant is not a permanent resident, he cannot satisfy this eligibility criterion.
IS THERE DISCRETION TO TREAT THE APPLICANT AS A PERMANENT RESIDENT?
There are a number of discretions in the Act. In particular, s 22(6) provides:
For the purposes of s 22(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.
Mr Ishaq contends that the discretion in s 22(6) enables the Minister (and therefore the Tribunal) to treat his son as a permanent resident. He claims that the reference in s 22(6)(a) to a person being “present in Australia during that period (except as a permanent resident)” means that a person who has never been a permanent resident may be treated as one for the purpose of a citizenship application. Further, Mr Ishaq argues that the discretion should be exercised in the Applicant’s favour otherwise he will suffer significant hardship and disadvantage.
Unfortunately for the Applicant, I cannot agree with that contention. It was dealt with and rejected by the Federal Court in Islam v Minister for Immigration and Citizenship [2012] FCA 201.
The discretion in s 22(6) may only be exercised for the purposes of s 22(1)(c), being that part of the general residence requirement that requires a person be present as a permanent resident for the 12 months immediately prior to making an application. It goes specifically, and only, to that criterion in the general residence requirement.
In effect, s 22(6) enables the Minister (and therefore the Tribunal) to shorten the length of time for which a person must have been present in Australia as a permanent resident to less than the 12 months ordinarily required. It does not permit a person who has never been a permanent resident to be treated as a permanent resident, and it does not empower the Minister to grant citizenship to a person on the grounds of significant hardship or disadvantage alone.
CONCLUSION
A person under 18 years of age is not required to satisfy the general residence requirement. However, any applicant, regardless of age, must be a permanent resident at the time of making his or her application and at the time of the Minister’s decision. At all material times, the Applicant has held a bridging visa only; he has not been a permanent resident.
There is no discretion in the Act by which a person who was not a permanent resident at the material times may be treated as a permanent resident for the purpose of a citizenship application.
The form on which an application for citizenship is made to the Department for Immigration and Citizenship includes information for persons who fall into various categories including being under 18 (Form 1290).
I accept that, when read on its own, one paragraph of the information could be taken to mean that any person who is lawfully in Australia but not as a permanent resident may be treated as a permanent resident if he or she would otherwise suffer significant hardship or disadvantage. However, read in context, it is quite clear that the discretion is in relation to the general residence requirement. Moreover, other parts of the information state specifically that an applicant under 18 years must be a permanent resident. Even if the information in the form were incorrect, it could not displace the provisions of the Act.
The Minister (and, it follows, the Tribunal) must not approve a person becoming an Australian citizen unless he is eligible to become a citizen under subsection 21 (2), (3), (4), (5), (6), (7) or (8).
I affirm the decision under review.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of J F Toohey, Senior Member.
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Associate
Dated 3 April 2012
Date(s) of hearing 9 March 2012 Date final submissions received 30 March 2012 Advocate for the Applicant Mr Amir Ishaq Solicitors for the Respondent Mr Masothy Yin
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