NXYD and Minister for Home Affairs (Citizenship)

[2018] AATA 3144

NXYD and Minister for Home Affairs (Citizenship) [2018] AATA 3144 (30 August 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0942

Re:NXYD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:30 August 2018

Place:Sydney

The Tribunal affirms the decision under review.

...........................[SGD].............................................

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – refusal of application for citizenship by conferral – applicant failed to meet the general residence requirement under the Australian Citizenship Act 2007 – not present in Australia for the period of 4 years immediately before the day the application was made – absence for a period of more than 12 months – special residency requirement not met – defence service requirement not met – other claims – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Senior Member K Raif

30 August 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The applicant is a national of Canada, born in November 1977. The applicant applied for Australian citizenship by conferral on 6 May 2017. He stated in his application that he was informed he would be eligible to apply for the conferral of Australian citizenship in July 2017 but was making an application earlier because he was “looking forward to a Federal government placement” and was “required to have an Australian passport”.

3. On 27 February 2018 a decision was made to refuse that application because the delegate formed the view that the applicant did not meet the residence requirements in s. 21(2) of the Act. The applicant seeks a review of the delegate’s decision.

4. The issue before the Tribunal is whether the applicant satisfied the general residence requirement, the special residence requirement or the defence service requirement at the time the application was made. For the following reasons, the Tribunal has concluded that the applicant did not meet these requirements and that the decision under review should be affirmed.

   RELEVANT LAW

5. Section 21 of the Australian Citizenship Act 2007 deals with the general eligibility to become an Australian citizen. Relevantly, s. 21(2)(c) relates to the residency requirement and provides that an applicant must satisfy

   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

   Does the applicant meet the general residence requirement?

6. The general residence requirements are set out in s. 22 of the Act. Essentially, the applicant must have been present in Australia for a period of four years immediately before the day the application was made and present in Australia as a permanent resident for a period of 12 months before the application was made.

7. The information in the primary decision record indicates that the applicant was not present in Australia for a period of four years because he was absent from Australia for a total period of more than 12 months during the four years. The applicant’s movement records show that in the relevant period the applicant was outside of Australia from 6 May 2013 to 8 July 2014, for a period exceeding 14 months. The applicant confirmed this in his oral evidence to the Tribunal. Under s. 22(1A), the total period of absence or absences must not be more than 12 months for such absences to be considered as Australian residence. The Tribunal is not satisfied the applicant was present in Australia for a period of at least four years immediately before the day he made the application for the visa.

8. There is no evidence that the applicant was born in Australia or was an Australian citizen at any time before he made the application. There is no evidence that the applicant is the spouse or de facto partner, or surviving spouse or de facto partner of an Australian citizen at the time the applicant made the application. There is no evidence that any of the other exceptions set out in s. 22 apply to the applicant.

9. The Tribunal is not satisfied the applicant meets s. 22(1)(a) and the general residence requirement set out in s. 22.

   Does the applicant meet the special residence requirement or the defence service requirement?

10. The special residence requirements are set out in ss. 22A and 22B of the Act.

11. The applicant claims he had performed work for the benefit of Australia and that he was granted his Resident Return Visa on that basis. There is no evidence that the head of an organisation specified under subsection, or a person whom the Minister is satisfied holds a senior positon that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in an activity specified under subsection 22C(1). The Tribunal is not satisfied the applicant meets s. 22A(1)(b) and s. 22A(1).

12. As the applicant does not meet s. 22A(1)(b), the ministerial discretion set out in s. 22A(1A) does not apply. There is nothing to suggest the applicant was confined in a prison or psychiatric institution (s. 22A(2)) and there is no evidence of any administrative error (s. 22A(4)). The remaining exceptions in s. 22A do not apply to the applicant. The Tribunal finds that the applicant does not meet the special residence requirements in s. 22A.

13. There is nothing before the Tribunal to indicate that at the time when the application was made, the applicant was engaged in work of a kind specified under subsection 22C(3). The Tribunal is not satisfied the applicant meets s. 22B(1)(a) and the special residence requirements in s. 22B.

14. The defence service requirement is set out in s. 23 of the Act. There is no evidence before the Tribunal that the applicant has completed relevant defence service or that he is a member of the family unit of a person who has completed relevant defence service. The Tribunal is not satisfied the applicant meets the defence service requirement in s. 23.

15. As the applicant does not meet the general residence requirements in s. 22, the special residence requirements in ss. 22A and 22B and the defence service requirement in s. 23, the Tribunal finds that the applicant does not meet s. 21(2)(c) and the general eligibility requirements to become an Australian citizen.

    Other claims

16. The applicant raised some concerns with the factual findings made by the delegate, for example in relation to his country of birth. The applicant also identified what he claims to have been many deficiencies in the way his application was processed. The Tribunal acknowledges that evidence, however, the Tribunal does not consider any such errors had affected the overall assessment of the applicant’s eligibility for the conferral of the Australian citizenship. Neither does the claimed delay in the processing of the application.

17. The applicant submits that there was a backlog of applications and if his application was processed in October when it was first looked at, he would have met the residence requirements. However, s. 21(2)(c) expressly states that the residence requirements must be made at the time the person made the application, not at the time when the application is assessed. It does not help the applicant that he may have met the residence requirements in October 2017.

18. The applicant argues that his online application should not have been accepted if he could not meet the residence requirements. He states that his first application was not accepted and that is the reason he made another application. The applicant states that his application was accepted and he was not notified that he did not meet the residence requirements and that means that he was assessed as meeting the requirements. The applicant states that he received advice from multiple officers from the Department that if the application was accepted and the fee taken, then he would have been assessed as meeting the residence requirements. However, the applicant concedes that at the time he made the application in May 2017, he was about two months short of meeting the residence requirements. He did not meet the residence requirement when applying for the conferral of Australian citizenship. It may have been useful if the applicant was informed about his eligibility at an earlier date but the acceptance of the application and the delay in its processing do not alter the fact that the applicant does not meet the residence requirements.

19. The applicant refers to his communication with migration consultants who claim that others in the same circumstances have been approved for the conferral of citizenship. The Tribunal finds that submission unhelpful. The Tribunal must assess the applicant’s circumstances and his own eligibility for citizenship and not what he believes occurred in other cases.

    CONCLUSION

20. Having found that the applicant does not meet the eligibility requirements for the conferral of Australian citizenship, the Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

.......................... [SGD]..............................................

Associate

Dated: 30 August 2018

Date(s) of hearing:	29 August 2018
Applicant:	In person
Solicitors for the Respondent:	T Hillyard - Sparke Helmore