Natalwala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 41

Natalwala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 41 (23 January 2023)

Division:GENERAL DIVISION

File Number:          2022/5065

Re:Farida Natalwala

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:23 January 2023

Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant is a citizen of the Republic of India – applicant applied for Australian citizenship by conferral – permanent resident – delegate found general residence requirement not met – pandemic travel restrictions prevented applicant returning to Australia – what discretion is exercisable – no discretion relevant in this circumstance to allow partial exemption of general residence requirement – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37

Australian Citizenship Act 2007 (Cth), ss 21, 22A, 22B, 23, 24

Secondary Materials

Department of Home Affairs – Australian Citizenship Procedural Instructions – CPI 8 Residence Requirements and Discretions (reissued 19 April 2021)

Media release – Prime Minister – Border restrictions – 19 March 2020

REASONS FOR DECISION

Senior Member D. J. Morris

23 January 2023

1. Mrs Farida Natalwala is a citizen of the Republic of India. She has two adult sons. She resides in Australia with one of her sons, his wife and their two children. She has lived in Australia generally since 2013. She is a permanent resident. When she first came to Australia, she held a Skilled Independent (Class VE) (subclass 175) visa. The visa she currently holds is a Resident Return (Class BB) (subclass 155) visa. She was granted that visa in September 2019.

2. Mrs Natalwala’s another son lives in the Kingdom of Saudi Arabia. She visits him periodically for periods of a few weeks. Since living in Australia, she has also undertaken other travel, back to India to see family and to other countries for holidays.

3. In March 2020, Mrs Natalwala departed Australia to visit her son in Saudi Arabia. She travelled via India. She intended to be abroad for about eight weeks. She obtained a visitor visa from the Saudi Arabian government, which generally has a duration of 90 days.

4. On 19 March 2020, the Prime Minister of Australia announced that, owing to the SARS-CoV-2 virus pandemic, Australian borders would be closed from 9:00 pm AEDT on 20 March 2020 to all non-citizens and non-residents. A media release issued by the Prime Minister, the Foreign Affairs Minister and the Home Affairs Minister relevantly stated:

   Australia is closing its borders to all non-citizens and non-residents.

   The entry ban takes effect from 9pm AEDT Friday, 20 March 2020, with exemptions only for Australian citizens, permanent residents and their immediate family, including spouses, legal guardians and dependants.

   New Zealand citizens who live in Australia as Australian residents are also exempt, as are New Zealanders transiting to New Zealand. Exemptions for Pacific Islanders transiting to their home countries will continue to apply.

5. Mrs Natalwala contended that she was unable to return to Australia as intended. She eventually did return to Australia on 11 January 2022. Seven days later, she lodged her citizenship application. Mrs Natalwala used available provisions where the person was aged 60 years or older at the time of applying.

6. On 23 May 2022, a delegate of the Minister responsible for the Australian Citizenship Act 2007 (‘the Act’) refused Mrs Natalwala’s application for Australian citizenship by conferral. The delegate found that Mrs Natalwala did not satisfy the general residence requirement set out in s 22(1)(a) of the Act because she was not present in Australia for the period of four years immediately before the day she applied for citizenship. The delegate further found that Mrs Natalwala did not satisfy s 22(1)(c) of the Act, because she was not present in Australia as a permanent resident for the 12-month period immediately before the day she made her citizenship application. The delegate, therefore, refused the application for citizenship under s 24(1) of the Act.

   HEARING

7. A hearing was held on 16 January 2023 by video link, as is allowed by s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Mr Husain Natalwala, her son, as a lay advocate. The Respondent was represented by Ms Gabrielle Gutmann of Minter Ellison Lawyers.

8. The Tribunal admitted the following documents into evidence:

   (a)Volume of ‘T’ documents lodged by the Respondent under s 37 of the AAT Act (Exhibit R1);

   (b)Application for review lodged by the Applicant on 13 June 2022 (Exhibit A1);

   (c)Visa Grant notice dated 3 December 2012 (Exhibit A2);

   (d)Department of Home Affairs letter advising refusal of citizenship dated 23 May 2022 (Exhibit A3); and

   (e)Extract of Australian passport of Mr Husain Natalwala (Exhibit A4).

9. The Tribunal also had regard for a Statement of Facts, Issues and Contentions of the Respondent.

   SUBMISSIONS

10. Mr Husain Natalwala submitted on behalf of the Applicant that she travelled to Saudi Arabia in March 2020 with the intention of visiting her son who lives there for a period of ‘around two months’ and then returning to Australia, where she lives with him and his family. He said that travel restrictions were then introduced because of the Covid-19 pandemic. Mrs Natalwala found it impossible to arrange her return flight to Australia. 

11. Mr Husain Natalwala said the Government of the Kingdom of Saudi Arabia extended the terms of visitor’s visas, including the Applicant’s visa, because of the worldwide travel restrictions. Eventually, Mrs Natalwala was able to secure a flight to India. She departed Saudi Arabia on 21 November 2021 and spent some six weeks in India before flying back to Australia. She arrived back in this country on 11 January 2022 (although she cited 10 January 2022 in her citizenship application).

12. Mr Husain Natalwala said that he had read the Minister’s Statement of Facts, Issues and Contentions. He noted that in the application to the Tribunal, Mrs Natalwala sought to rely on partial exemptions for the general residence requirement for persons on interdependent visas. He now accepted this was not applicable to his mother, so she no longer presses that submission. Mr Husain Natalwala confirmed that the Applicant was not seeking to rely on the provisions in the Act relating to special residence requirements (ss 22A and 22B of the Act) or defence service requirement (s 23 of the Act). 

13. Essentially, Mr Husain Natalwala contended that the pandemic travel restrictions were something over which the Applicant had no control and that these restrictions intervened to prevent her from satisfying the general residence requirement and being granted citizenship. Mr Husain Natalwala told the Tribunal that he, his wife, and their two dependent children were granted Australian citizenship in November 2021 and that his mother had moved to Australia ‘around four or five months’ after he and his family did.

14. The Respondent submitted that it was not challenged that Mrs Natalwala had intended to travel out of Australia in March 2020 for only a short period. Ms Gutmann said that the travel restrictions announced by the Prime Minister, which came into effect on 20 March 2020, did not ban permanent residents from returning to Australia but that the Minister freely concedes that travel into Australia was very difficult for any persons at that time.

15. The Respondent submitted that there was no provision for the general residence requirement to be waived in this case and further submitted that, if the Applicant is now seeking to rely on the provisions relating to significant hardship or disadvantage in s 22(6) of the Act, that avenue is also not open to her because she was not present in Australia for the requisite period, whether as a permanent resident or otherwise.

    CONSIDERATION

16. The Tribunal had in evidence Mrs Natalwala’s Department movement records since she first arrived in Australia in April 2013 (TD, p 118). These records relevantly show that the Applicant departed Australia on 24 January 2020 and returned to this country on 11 January 2022. In a letter to the Department (TD, p 67), Mrs Natalwala said that she went to India with a plan to visit family there and then go on to visit family in Saudi Arabia and intended to return in “April 2020”.

17. The provisions of the Act in relation to ‘general residence’ are relatively strict. Section 21(4)(d) of the Act requires that an applicant for citizenship must satisfy them, or the special residence requirement or the defence service requirement at the time the person applies for Australian citizenship. The Tribunal notes that, in this case, the Applicant makes no claims that she is eligible to be considered under any of the special residence requirements or the defence service requirement.

18. In her application to the Department (TD, p 28), Mrs Natalwala stated she was not applying for partial exemption from the general residence requirements on the grounds of being either born in Australia or a former Australian citizen.

19. There are certain other specific partial exemptions in the Act relating to satisfying the general residence requirement. These include situations where a person may be declared to be unlawfully in Australia owing to an administrative error or may not have been a permanent resident in the four-year period leading up to the date of applying, owing to an administrative error. In addition, a person may be confined in prison or a psychiatric institution or may be the spouse or de facto partner (or former spouse or de facto partner) of an Australian citizen, or a person in an interdependent relationship. Such situations allow certain modifications to the general residence requirement.

20. None of these partial exceptions are relevant to Mrs Natalwala. She is a widow of a citizen of India and does not claim a de facto partner in Australia. The Tribunal noted during the hearing that to take advantage of the provisions relating to interdependent relationships requires a citizenship applicant to have held one of two specific categories of visa, neither of which have been issued since 2009; therefore, while it might be historically relevant to persons who still hold such a visa, it is pretty well a ‘dead letter’ in terms of a general pathway for exemption.

21. In terms of the ‘significant hardship or disadvantage’ provision in s 22(6)(b) of the Act, the Tribunal agrees with the submission of the Minister: that it is only relevant to an exemption if the person is otherwise lawfully in Australia, which means physically in the migration zone, in the four-year period prior to applying (see s 22(6)(a)). That is, therefore, not a provision available to Mrs Natalwala.

22. Having examined the provisions in the Act, the Tribunal is satisfied of the following. Mrs Natalwala was absent out of Australia for a total period of 824 days in the four-year period starting on 16 January 2018 and ending on 17 January 2020 (i.e., the day before she applied for citizenship). These periods were from 6 December 2018 to 14 March 2019 (a period of 98 days); from 15 November 2019 to 23 November 2019 (8 days); and from 24 January 2020 to 11 January 2022 (718 days). The Act only allows absences for a total period of 12 months not to be counted as periods out of Australia in this four-year period.

23. In addition, Mrs Natalwala was absent out of Australia for the period 16 January 2021 to 11 January 2022, a total period of 361 days (when 90 days may be allowed) in the 12-month period immediately before she applied for citizenship.

24. Both of these facts mean that she does not satisfy the requirements in s 21(4)(d) of the Act relating to general residence. Therefore, the Minister (or the delegate or the Tribunal standing in his shoes) must not approve her application for citizenship: s 24(1A) of the Act.

    CONCLUSION

25. The Tribunal is satisfied that the reviewable decision was correct in law. In this instance, there was no discretion available to be exercised by the decision-maker.

26. The Tribunal makes some general remarks. Nothing in this decision should be taken to reflect on the Applicant. She is a permanent resident of this country. Her son, daughter-in-law and two of her grandchildren are Australian citizens. There is no evidence before me casting a shadow on Mrs Natalwala’s character. A supervening event over which she had no control, being the global pandemic and the resultant travel restrictions imposed by the Australian Government and many other national governments, made it very hard for her to depart Saudi Arabia and return to Australia as she had planned. Unfortunately, there is no leeway in the general residence requirement for a person in Mrs Natalwala’s circumstances.  This requirement must be met before her other eligibility for Australian citizenship can be assessed. The fact that it was not met was fatal to her application for citizenship proceeding.

27. This decision has no effect on the Applicant’s continuing ability to hold the class of visa she already does, as a permanent resident of Australia. Mrs Natalwala is also free to lodge a fresh application for Australian citizenship, noting that Department officers considering any application must necessarily calculate satisfaction of the general residence requirement by counting back four years from the date of any application.

    DECISION

28. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 23 January 2023

Date of hearing:	16 January 2023
Applicant:	Mrs Farida Natalwala
Lay Advocate for the Applicant:	Mr Husain Natalwala
Advocate for the Respondent:	Ms Gabrielle Gutmann
Solicitors for the Respondent:	Minter Ellison Lawyers