Nakedi Phaho and Minister for Immigration and Citizenship

[2012] AATA 626

[2012] AATA  626

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1901
Re	Nakedi Phaho
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	18 September 2012
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

CITIZENSHIP – general residence requirement – applicant did not satisfy the general residence requirement – whether any discretion to grant the application – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 ss 21(2), 22(1)(c) and 22(5)

SECONDARY MATERIALS

Department of Immigration and Citizenship, Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member J F Toohey

BACKGROUND

1. Ms Nakedi Phaho is a citizen of South Africa.  She came to Australia on a long stay business visa in 2004.  In January 2005, she was granted an employee nomination scheme permanent resident visa.  It gave her the right to leave and re-enter Australia for up to five years, after which her permanent residency would be lost if she left without first obtaining a resident return visa.

2. On 30 December 2011, Ms Phaho travelled to South Africa to spend time with her family after undergoing surgery.  Unfortunately, she did not realise that the effect on her visa of leaving was that she lost her permanent residence.  It was only when she returned to Australia on 15 February 2012 that she learned that she had to apply again for permanent residence.  She was granted a temporary visa on arrival, and a permanent visa from 6 March 2012.

3. On 17 February 2012, Ms Phaho applied for Australian citizenship.  The Minister for Immigration and Citizenship (the Minister) refused her application on the ground that she failed to satisfy the general residence requirement in the Australian Citizenship Act 2007 (the Act).  Ms Phaho seeks review of that decision. 

   THE AUSTRALIAN CITIZENSHIP ACT 2007

   4.To be eligible for Australian citizenship, a person must satisfy the criteria in s 21(2) of the Act.  One of the criteria for eligibility is that, at the time of applying, a person satisfies the general residence requirement, or the special residence requirement, or has completed relevant defence service: s 21(2)(c). 

   5.Ms Phaho does not claim to satisfy the special residence requirement or to have completed relevant defence service.  The only issue is whether she satisfies the general residence requirement.

   6.By s 22(1), Ms Phaho will satisfy the general residence requirement if:

   (a)she was present in Australia for the period of four years immediately before the day she made her application; and

   (b)she was not present in Australia as an unlawful non‑citizen at any time during that four year period; and

   (c)she was present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application.

4. A person may be taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day he or she made the application was not more than 12 months: s 22(1A).

5. A person may be taken to satisfy s 22(1)(c) if the total period of any absence in the period of 12 months immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence: s 22(1B).

   DID MS PHAHO SATISFY THE GENERAL RESIDENCE REQUIREMENT AT THE TIME OF HER APPLICATION?

6. When she applied for citizenship on 17 February 2012, Ms Phaho had spent several periods outside Australia in the preceding four years.  However, the total period of her absences was less than 12 months.  She is therefore taken to satisfy s 22(1)(a).

7. In the 12 months immediately preceding her application, Ms Phaho was away from Australia for just under seven weeks while visiting her family.  That was well within the three months allowed for by s 22(1B).  However, she was not a permanent resident during her absence, her permanent residency having been lost on her departure.  She therefore cannot not be taken to satisfy s 22(1)(c).

8. As Ms Phaho cannot satisfy s 22(1)(c), she cannot satisfy the general residence requirement.

   IS THERE ANY DISCRETION TO GRANT MS PHAHO’S APPLICATION?

9. There are discretions in s 22 by which a person may be treated as being present in Australia despite not otherwise satisfying the general residence requirement.  The relevant discretions are considered below.

   Administrative error

10. If a person was present in Australia for 12 months preceding their application, but was not a permanent resident during that period because of administrative error, he or she may be treated as satisfying s 22(1)(c): s 22(5). 

11. Ms Phaho told the Tribunal that she had been given to understand by officers of the Department of Immigration and Citizenship (the Department) that her original visa entitled her to leave and return at any time without affecting her permanent resident status.  She says she would not have gone to South Africa in December 2011 had she known the effect it would have; she only went because she was recovering from surgery, she was feeling stressed, and her daughter was pressuring her to visit her family.

12. According to the Australian Citizenship Instructions (ACIs), which provide advice and guidance to decision-makers, “administrative error” embraces a range of administrative actions and “will extend to administrative mistakes and circumstances in which incorrect advice is provided”: ACIs 36.10

13. The ACIs further state that the onus is on an applicant to show that an administrative error has occurred and decision-makers must be satisfied that such error has occurred.

14. There is no record of Ms Phaho being given the advice she claims, but the Minister’s representative does not dispute what she says, and I have no reason to doubt her.  However, it is doubtful such advice would amount to administrative error.  I note that the Department wrote to Ms Phaho in October 2006, when she was first granted permanent residence, advising her about the effect of leaving after five years without first obtaining a resident return visa.  It is fair to say that letter would not be easy for a layperson to understand, but it set out the position correctly. 

15. Even if I was satisfied that Ms Phaho was given incorrect advice amounting to administrative error, she was not present in Australia for 12 months immediately preceding her application.   The discretion in s 22(5) relies on a person’s presence in Australia for 12 months immediately preceding the application. 

16. Finally, even if I could exercise the discretion in Ms Phaho’s favour, it would make little practical difference to her application.  At best it would allow her to be treated as being present as a permanent resident from 15 February 2012 when she returned to Australia, meaning she would satisfy s 22(1)(c) 12 months later, in February 2013

    Significant hardship or disadvantage

17. A person may be treated as satisfying s 22(1)(c), even if not present as a permanent resident during that time, if he or she was present for 12 months preceding their application and would otherwise suffer significant hardship or disadvantage: s 22(6).

18. Ms Phaho does not claim that she would suffer significant hardship or disadvantage if her application were refused.  It follows that this discretion does not apply.

    Relationships to Australian citizens

19. If a person was the spouse or de facto partner of, or in an interdependent relationship with, an Australian citizen at the time of applying and had a close and continuing association with Australia during that period, then periods of absence from Australia can be counted as periods of permanent residence: subs 22(9) and (10)

20. Ms Phaho is not in any of the relationships described.  It follows that subs 22(9) and (10) cannot apply to her.

    Conclusion

21. Ms Phaho feels aggrieved that she has lived and worked in Australia since 2004, that she wants to be a citizen, and that she would be eligible were it not for what she was led to understand about her right to leave and re-enter Australia at any time.

22. I have sympathy for Ms Phaho, but it is likely she will be eligible for citizenship within a short time.  On 6 March 2013, she will have been present in Australia for all but seven weeks of the preceding four years, and she will have been present in Australia as a permanent resident for 12 months.  Unless some other reason arises to refuse her application, there should be no reason she would not satisfy the general residence requirement and have her application approved.

23. I affirm the decision under review.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

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

Associate

Dated  

Date(s) of hearing	18 September 2012
Applicant	In person
Solicitors for the Respondent	Mr S Kikkert, Department of Immigration and Citizenship, Litigation and Opinions Branch