Ng and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 676

Ng and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 676 (7 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1140
Re	Gale Ng
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Member Sandra Taglieri
Date	7 September 2015
Place	Perth

The decision under review is affirmed.

..........(Sgd)...S Taglieri...................................

Member Sandra Taglieri

CATCHWORDS

IMMIGRATION AND CITIZENSHIP– citizenship– application for Australian citizenship by conferral– applicant did not satisfy residence requirement–continuing association with Australia– permanent resident– decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)– s 21(1) – s 21(1A) – s 21(2) – s 21(2)(c) – s 22 – s 22(1)(b) – s 22(1)(c) – s 22(2) –s 22(6) and s 23

CASES

Drdacka and Minister for Immigration and Citizenship, Re (2012) 127 ALD; [2012] AATA 299

SECONDARY MATERIALS

Australian Citizenship Instructions, Chapter 5

REASONS FOR DECISION

Member Sandra Taglieri

7 September 2015

INTRODUCTION

1. Gale Ng (“the Applicant”) has applied to the Tribunal for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Respondent”), made on 2 March 2015, refusing her application for Australian Citizenship dated 19 November 2014.

2. The Applicant sought a review of the decision of the Respondent and a hearing was conducted in respect of her application on 31 August 2015. The hearing proceeded largely on the basis of the documents and information contained in the T Documents, which were all received into evidence.

3. The Applicant’s partner, Mr Ryan Koh (“Mr Koh”) also gave oral evidence.  

   RELEVANT EVIDENCE AND FACTS

4. The facts relevant to this application are straightforward and there is no dispute about them.

5. The Applicant was born in Malaysia on 6 December 1983 and first came to Australia on 24 May 2004. She was granted permanent residency on 4 September 2010.

6. The Applicant is in a permanent relationship with Mr Ryan Koh. It is not clear if they are married, but the Tribunal accepts that they are in a spousal like relationship.

7. The Applicant is an Engineer and has had long term employment with GE Oil and Gas, based in Western Australia.

8. The substance of Mr Koh’s evidence was that he and the Applicant intend to make Australia their home and they want to live here. He continues to apply for work in Australia, so that they can return here. He is not an Australia Citizen, having been born in Singapore, although he has lived in Australia for about two and a half to three years, before he returned to Singapore due to inability to find work.

9. The Respondent’s records demonstrate that the Applicant has lived in Australia virtually continuously since arriving in 2004, until she left in September 2014 to join Mr Koh in Singapore. It seems that the decision to go to Singapore was based on her reasonable desire not to be separated from her partner.

10. Mr Koh’s decision to live in Singapore was said to be based on financial necessity as he could not find employment in Australia. The Applicant was able to secure a transfer of her position to Singapore, but she still reports to an Australian Manager.[1]

    [1] T15, page 150 of T documents

11. The arrival and departure records relating to the Applicant show that had been absent from Australia for 169 days in the 12 month prior to the date she applied for Citizenship on 19 November 2014. This was not in dispute by the Applicant.

    THE CITIZENSHIP LAW AND APPLICATION TO THE EVIDENCE

12. As a person not born in Australia, the Applicant has applied to become an Australian Citizen by conferral pursuant to Subdivision B of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

13. Section 21(2) of the Act prescribes the requirements that must be met to be eligible for Citizenship by conferral. There are eight requirements which are set out in subparagraph (2) of section 21.

14. In this case, the Respondent maintained that the residency requirement in subsection 21(2)(c) of the Act was not satisfied and accordingly, the application had to be refused. The Respondent’s representative argued that there was no general discretion to waive the mandatory requirements of subsection 21(2)(c) of the Act.

15. The Applicant seemed to admit that she did not meet all the requirements of residency prescribed in section 21(2)(c) of the Act, but argues nonetheless that she should be granted Citizenship.

16. The issues for the Tribunal are therefore whether the Respondent is correct that subsection 21(2)(c) of the Act is not satisfied and whether there is power to grant Citizenship in the absence of such satisfaction.

17. Subsection 21(2)(c) of the Act provides that a person is eligible to become an Australian Citizen if the Minister is satisfied that the person:

    “Satisfies the general resident requirement (see section 22) or the special requirement (see sections 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application.”

18. On the evidence before the Tribunal, the special resident requirements in sections 22A, 22B and 23 do not fall for consideration as they simply are not relevant to the Applicant’s circumstances. These provisions specify that a person may satisfy the resident requirement of section 21(2)(c) of the Act, despite being absent from Australia during the relevant periods if engaged in particular activities. The activities are prescribed by the Minister and are referred to in the annexure to the Respondent’s Statement of Facts, Issues and Contentions. The Applicant is not engaged and has never been engaged in such activities.

19. In order to be eligible for Citizenship, the Applicant must persuade the Tribunal that she meets the “general residence” requirements, which are stipulated in section 22 of the Act.

20. The “general residence” requirements are contained in section 22 of the Act. They are expressed in mandatory terms and non-compliance can only be executed in limited circumstances.

21. Fundamentally, general residence requires that the person:

    (a) was present in Australia for the period of 4 years immediately before the day of applying for Citizenship; and

    (b) was not unlawfully present in Australia during the 4 year period immediately before the day of applying for Citizenship; and

    (c) was present in Australia for the 12 months immediately before applying for Citizenship. [2]

    [2] Section 22(1) of the Act

22. The evidence demonstrates and the Respondent concedes, that in the Applicant’s circumstances, subparagraph (a) above is satisfied because the period of absence of 169 days prior to applying for Citizenship, is cured by subsection 21(1A) of the Act. The Tribunal accepts that to be so.

23. The Respondent concedes that subsection 22(1)(b) of the Act is satisfied. That is plainly a proper concession, as the evidence demonstrated the Applicant was present in Australia as a permanent resident, not unlawfully.

24. However, the Respondent contends that subsection 22(1)(c) of the Act is not satisfied, and no other provision in the Act overcomes this.

25. Non-compliance with subsection 22(1)(c) of the Act can be overcome if the absence from Australia in the 12 month period prior to making an application for Citizenship is no more than 90 days. [3] The evidence establishes that the Applicant’s absence was 169 days. That being the case, section 22(1B) of the Act does not operate to treat subsection 22(1)(c) of the Act as satisfied.  

    [3] Section 22(1B) of the Act

26. The Respondent submits and the Tribunal accepts that on the evidence before the Tribunal, the other provisions in section 22 of the Act do not overcome the fact that the Applicant does not satisfy subsection 22(1)(c) of the Act. The other provisions relate to administrative error, confinement in prison or psychiatric institution, spousal or interdependent relationships with an Australian Citizen, none of which apply to the Applicant’s circumstances as established by the evidence.

27. The Applicant sought to rely on the Ministerial discretion provision in section 22(6) of the Act. As stated in the Australian Citizenship Instructions[4], section 22(6) permits the Respondent to treat lawful periods of resident other than as a permanent resident as periods of permanent residency.[5] It does not apply to the Applicant, as she was a permanent resident at the relevant times, but not present for the required period.

    [4] T4 and particularly page 90 of the T documents relating to the discretion in section 22(6) of the Act

    [5] For example, particular classes of visa.

28. The Applicant argued that her mother’s Australian Citizenship and the fact that she was an only child meant that she would have a continuing association with Australia. The Tribunal accepts that to be the case, and also agrees that there are other factors such as property ownership that demonstrate a close and continuing association with Australia. Despite these, the Applicant has not demonstrated how these factors overcome non-compliance with the general residence requirement prescribed in section 22(1)(c) of the Act.

29. In determining whether the Respondent arrived at the correct decision, the Tribunal must apply the mandatory provisions of the Act and only exercise discretions to waive or overcome non-compliance with the residence requirements in limited express circumstances. The Tribunal does not have a general and unfettered discretion and cannot ignore the specific provisions of the Act. [6]

    [6] Drdacka and Minister for Immigration and Citizenship [2012] AATA 299 at paragraph [16]

    CONCLUSION

30. The Applicant does not meet the general residence requirements for Citizenship to be granted. This means that her application must fail.

31. If the Applicant has applied for Citizenship prior to joining her partner in Singapore and/or delayed her departure from Australia a short time, it is possible that her application would have been granted as the general residency requirements probably would have been satisfied.

32. This means that Respondent’s decision and this decision may seem harsh and the Tribunal feels some degree of sympathy for the Applicant, however, despite this, the decision under review was correct.

    DECISION

33. For the above reasons, the decision under review is affirmed.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Member Sandra Taglieri

............(Sgd)...A Tran...............................................

Administrative Assistant

Dated 7 September 2015

Date of hearing	31 August 2015
Applicant	By telephone
Representative for the Respondent	Mr D Carroll
Solicitors for the Respondent	Australian Government Solicitor