Oommen and Minister for Immigration and Border Protection (Citizenship)
[2020] AATA 935
•23 April 2020
Oommen and Minister for Immigration and Border Protection (Citizenship) [2020] AATA 935 (23 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5238
Re:Rachel Amita Oommen
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:23 April 2020
Place:Sydney
The application is dismissed pursuant to s 42B(1)(b) of the AAT Act.
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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – refusal to grant Australian citizenship by conferral – applicant not meeting general residence requirement – the applicant was not present in Australia for the period of 4 years immediately before the day she made the application – the applicant was not present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application – whether section 22(9) Ministerial discretion applies – subsection 42B(1)(b) no prospect of success – review application is dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B
Australian Citizenship Act 2007 (Cth) ss 5, 22
CASES
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Milne v Minister for Immigration and Citizenship [2011] FCA 1094
Neumeier and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1834
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
23 April 2020
OVERVIEW
On 24 November 2018, the applicant lodged an application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).[1] She is married to an Australian citizen, Mr Fabian Schwarz. They have a young child, who is also an Australian citizen. She is a Canadian citizen and was, at the time of her application, a permanent resident of Australia.[2] On 26 February 2018, she was admitted to the Royal Australian College of General Practitioners.[3]
[1] T1/13; T4/133-185; T5/186.
[2] T1/15.
[3] T1/11.
The Act sets out the requirements for Australian citizenship by conferral. One of those requirements is the general residence requirement. Section 22 of the Act defines it as follows:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
On 5 April 2019, the delegated decision-maker of the Minister refused the application (the Reviewable Decision).[4] The delegate found that the applicant did not satisfy s 22(1)(a) of the Act, for the following reason:
According to our records, on the day 4 years immediately prior to lodging your citizenship application on (24 November 2014) you were not present in Australia and did not hold an Australian visa that was in effect which was granted while you were in Australia or a visa granted outside Australia that had previously been used to enter Australia. Therefore, you do not satisfy the requirements of paragraph 22(1)(a) of the Act. [5]
[4] T2/40.
[5] T2/41, 42.
I note in passing that the delegate found that the applicant satisfied s 22(1)(b) and 22(1)(c) of the Act, the latter being satisfied by reason of subsection 22(1B) of the Act. The delegate stated:
You have remained a permanent resident in the 12 months immediately before applying for citizenship. Departmental records indicate that you were absent from Australia for a total of 22 days within the 12 months immediately before applying for citizenship.
Subsection 22(1B) provides:
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
On 27 August 2019, the applicant lodged an application for review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[6]
[6] T1/4.
By letter dated 4 December 2019, the respondent’s representative requested the Tribunal to consider exercising its discretion to dismiss the application pursuant to s 42B(1)(b) of the AAT Act. The representative submitted that the applicant’s substantive application for review had no prospects of success.
The matter was listed for a telephone directions hearing. This took place on 14 January 2020. The applicant was represented by her spouse, Mr Schwarz.
The delegate’s representative did not seek to defend the reasoning of the delegate with respect to s 22(1)(a),[7] but for reasons that appear below, the delegate’s conclusion was correct, if somewhat elliptical.
[7] Transcript, 14 January 2020, p 4 [7]; p 6, [2].
The delegate’s representative maintained that the applicant was ineligible for Australian citizenship at the time of the application (24 November 2018), and that ultimately the application had no prospects of success. She referred to departmental records which showed that over the four year period from 24 November 2014 to 24 November 2018 (1461 days), the applicant spent 933 days out of the country. Therefore, the applicant did not satisfy s 22(1)(a) of the general residency requirement. Nor was this curable by relying on s 22(1A), because the absence was more than the period of absence permitted under that subsection, namely 12 months.
Section 22(1A) provides:
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
She argued further that the applicant was not able to rely on the Ministerial discretion available to spouses of Australian citizens contained in s 22(9) because she was not a permanent resident during the relevant period of absences.
CONSIDERATION
The 12 month permanent residence requirement: s 22(1)(c)
With respect to the 12 month permanent residency requirement in s 22(1)(c), the applicant was granted permanent residency on 21 November 2017.[8] She applied for citizenship of 24 November 2018. Therefore, she was a permanent resident for the entire 12 months period prior to applying for citizenship. She spent 24 days[9] outside the country in the 12 month period between 24 November 2017 to 23 November 2018.[10] This absence is less than 90 days, and 22(1B) states that for the purposes of paragraph [s22(1)(c)], the person is taken to have been present in Australia as a permanent resident during each period of absence. Therefore, s22(1B) can be relied upon to cure the deficiency in satisfying the 12 month permanent resident requirement in s 22(1)(c).
The four year residence requirement: s 22(1)(a)
[8] T9/197
[9] The Delegate incorrectly referred to 22 days: see above *.
[10] T10/198.
With respect to the four year requirement contained in s 22(1)(a), the applicant was absent for 933 days. This is well in excess of the 12 months permitted under s 22(1A), which cannot therefore be relied upon to cure the deficiency.
The discretionary power under s 22(9)
The only other provision raised as a means of overcoming the obstacle contained in s 22(1)(a) is the discretionary ground under s 22(9), which provides:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, 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 a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Section 22(9) is a curative provision which enables an applicant to overcome a failure to satisfy the general residence requirement. In effect, it asks the Minister to treat a period of time during which the applicant was not in Australia as one in which he or she was present in Australia as a permanent resident. The critical matter is whether the Minister is satisfied that the person had a close and continuing association with Australia during that period, as required by s 22(9)(d).
The Minister’s representative contends that the requirement that the applicant be a ‘permanent resident’ during that period, as defined by s 5 of the Act, is also a necessary condition.
This is relevant because on 29 August 2014, the applicant applied for a Partner (Provisional) (class UF) Partner (Provisional) (subclass 309) visa, which was granted on 7 May 2015.[11] The Stay Period under the Visa was “Until notified that subclass 100 has been decided or the application is withdrawn”.[12]
[11] T6/188.
[12] T6/190.
On 21 November 2017, the applicant was granted a Partner (Migrant) (class BC) subclass Partner (subclass 100) visa.[13] Under that visa, she was permitted to stay for an indefinite period from the date of each arrival. She was therefore a permanent resident from 21 November 2017.
The statutory construction point
[13] See also Letter, 21 November 2017, from the Department of Immigration and Border Protection to the Applicant.
In this particular case, the hurdle for the applicant relates to s 22(1)(a), not s 22(1)(c).[14] Section 22(9) is needed to make good the 933 days she spent outside Australia in the four years prior to 24 November 2018.
[14] See para [12] above.
It should be noted that there is a live question as to the proper construction of s 22(9), specifically, whether s 22(9) may operate curatively both in respect of the four year requirement in s 22(1)(a), and in respect of the 12 month permanent residence requirement in s 22(1)(c).[15]
[15] Milne v Minister for Immigration & Citizenship [2009] FCA 730; Kumar v Minister for Immigration and Border Protection [2015] FCA 446; Neumeier and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1834.
While the application of the Ministerial discretion under s 22(9) to the 12 month requirement qua permanent resident in s 22(1)(c) is relatively clear, it is less obvious that it applies to the four year residence requirement in s 22(1)(a). It seems for example somewhat incongruous to require permanent residence status throughout the four year period when applying s 22(9) given that there is no requirement in s 22(1)(a) that the applicant was a permanent resident throughout the four year period.
The concept of ‘a permanent resident’ is defined, for the purposes of the Act, in s 5 as:
(1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a) the person is present in Australia at that time and holds a permanent visa at that time; or
(b) both:
(i) the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c) the person is covered by a determination in force under subsection (2) at that time.
(2) The Minister may, by legislative instrument, determine that:
(a) persons who hold a special category visa or a special purpose visa; or
(b) persons who have held a special category visa; or
(c) persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;
and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.
I note in passing that no material before me suggests that the applicant was covered by a determination in force under subsection (2) at any relevant time.
In Kumar v Minister for Immigration and Border Protection [2015] FCA 446, Edmonds J stated, obiter, that in an appropriate case, s 22(9) could be used to cure a defect in the four year requirement in s 22(1)(a), as well as a defect in the 12 month permanent residence requirement in s 22(1)(c). However, with respect, his Honour’s comments do not support the notion that s 22(9) may be used to cure a failure to meet the four year requirement, whether or not the applicant was a permanent resident during the four year period.
It is useful to contrast s 22(9) with another deeming provision, s 22(5). The latter provides:
For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
Section 22(5) permits a person to be treated in some circumstances as if they had a particular legal status, that is, that of a permanent resident. No such implication can be drawn from s 22(9).
This is borne out by Buchanan J’s observation in Milne v Minister for Immigration and Citizenship [2011] FCA 1094 at [11]:
[Section 22(9)] requires that a person be a permanent resident, although not in Australia during the period required by s 22(1). If the other requirements are met the Minister may treat the period “as one in which the person was present in Australia as a permanent resident”. This did not apply to [Ms X…]. She was not a permanent resident at any stage.
Although the matter was not raised by the Minister’s representative, I have considered whether there is any scope to treat the term ‘permanent resident’ in s 22(9)(c) as having a variable meaning according to whether the section is directed to curing a defect in s 22(1)(a) or s 22(1)(c).
(a)In respect of s 22(1)(c), the state of affairs to be cured is that the person was absent for more than 90 days in the 12 months preceding the application (while holding a permanent visa throughout the period);
(b)In respect of s 22(1)(a), the state of affairs to be cured is that the person was absent for more than 12 months in the preceding four years. This could be cured by showing a strong association with Australia provided that the applicant held a permanent visa over the 12 months immediately before the date of application. ‘Permanent resident’ in this context would mean no more than that the applicant had an ongoing relationship with Australia on a permanent or indefinite basis. This would be treated essentially as a matter of fact rather than as a legal status.
In view of the opening words of s 5(1) (‘For the purposes of this Act, a person is a permanent resident at a particular time if and only …etc’) reaching such an variable interpretation of the phrase ‘permanent resident’ would require a higher authority than that vested in this Tribunal. I also note that the comments by Edmonds J in Kumar and Buchanan J in Milne do not support this interpretation.
The material before the Tribunal indicates that the applicant applied for a permanent visa on 29 August 2014, but did not become a permanent resident until 21 November 2017. As she was not a permanent resident during the relevant period, the discretionary power under s 22(9) cannot be engaged to cure the deficiency in satisfying the four year residency requirement under s 22(1)(a).
The applicant would have little difficulty establishing that she has a close and continuing association with Australia during the four years prior to her citizenship application. She is married to an Australian citizen and they share a child. She has lived in Australia and worked here. She is a qualified doctor and brings much needed skills to the country at a time of great need.
Unfortunately for the applicant, and indeed for the country given her health qualifications, she does not satisfy the general residence requirement contained in s 22(1)(a), as qualified by s 22(1A). Moreover, she is not an eligible candidate for the exercise of Ministerial discretion under s 22(9). She does not satisfy the requirement in s 22(9)(c) of being a ‘permanent resident’ within the meaning of s 5 during the periods of absence within the four years’ preceding her application. There is no evidence that she held a permanent visa at the time of her application, or that she had previously been in Australia and held a permanent visa immediately before last leaving Australia, as required by s 5. Therefore, s 22(9) cannot be called in aid so as to engage the Minister’s discretion to overcome the deficiencies of her application under s 22(1)(a), as qualified by subsection 22(1A).
The applicant and Mr Schwarz wish to share with their child common Australian citizenship. Regrettably, for the reasons aforesaid, the Tribunal has no alternative but to dismiss the application pursuant to s 42B(1)(b) of the AAT Act, and expresses the hope that a further application for citizenship by the applicant will be processed with all due expedition.
DECISION
The application is dismissed pursuant to s 42B(1)(b) of the AAT Act.
APPENDIX
Departure from Australia Return to Australia Absence 3 February 2014*
(start counting from 24 November 2014)
9 February 2015 77 1 March 2015 28 September 2015 211 4 October 2015 14 January 2017 468 20 January 2017 22 June 2017 153 8 January 2018# 14 January 2018 6 18 March 2018 5 April 2018 18 Total (days) 933 * Not a permanent resident
# Permanent resident
| I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member |
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Associate
Dated: 23 April 2020
| Date(s) of hearing: | 14 January 2020 |
| Advocate for the Applicant: | Dr F Schwarz |
| Solicitors for the Respondent: | Ms L Crick, Clayton Utz |
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