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

[2024] AATA 2156

Po and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2156 (26 June 2024)

Division:GENERAL DIVISION

File Number(s):2023/5846      

Re:Chun Yip Po   

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:26 June 2024  

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 25 July 2023 to refuse the citizenship application, is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP - Delegate of the minister found Applicant did not satisfy s 21(4)(d) of the Citizenship Act 2007 (Cth) - delegate not satisfied Applicant met the general residence requirement under subsections 22(1)(a) and (c) – ISSUE: whether the discretion provided in section 22(9) of the Act can be exercised - Applicant does not satisfy the criteria - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Mr S Evans, Member

26 June 2024

INTRODUCTION

1. The applicant, Chun Yip Po, was born in Hong Kong and is a citizen of Hong Kong SAR.[1] On 13 June 2023, he applied for Australian citizenship by conferral.[2] On 25 July 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused Mr Po’s application.[3] On 10 August 2023, Mr Po applied to the Tribunal for review of the delegate’s decision.[4]

   [1] T-Documents, T3, p.20-23; p.377.

   [2] T3, p.19-52.

   [3] T2, p.8-18.

   [4] T1, p.1-6.

2. The delegate found that Mr Po did not meet the residence requirement for grant of citizenship. The delegate also found that they were prohibited from approving the application because Mr Po was outside Australia at the time of the decision, and Mr Po did not hold a permanent visa within 12-months of lodging his application.[5]

   [5] T2, p.12-18.

3. For the reasons that follow, the decision of the delegate will be affirmed.

   RELEVANT LEGISLATION 

4. The legislation relevant to this application is found in the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’).

5. The Minister must not approve a person’s citizenship application unless they satisfy the requirements under ss 21(2)-(8) of the Citizenship Act.

6. Mr Po was born in March 1957 and aged over 60 at the time he lodged his application for citizenship.[6] Section 21(4) sets out the eligibility requirements for a person aged 60 or over. Subsection 21(4)(d) of the Citizenship Act relevantly provides:

   (4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (d)satisfies 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; and

   …

   [6] T3, p.20; p.377-378.

7. The general residence requirement referred to in subsection 21(4)(d) in section 22 of the Citizenship Act provides:

   22  General residence requirement

   (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.

8. The Citizenship Act contains deeming provisions allowing for overseas absences whereby a person is permitted to be overseas from Australia:

   (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.

   (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.

9. Section 22(9) of the Citizenship Act provides for Ministerial discretion to treat a period as one in which the person was present in Australia as a permanent resident in certain circumstances.

   Ministerial discretion—spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

   (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.

   ISSUE

10. The issue to be determined is whether the discretion provided in section 22(9) of the Citizenship Act can and should be exercised so that Mr Po meets the general residence requirement for grant of Australian citizenship.

    EVIDENCE AND CONSIDERATION

11. In a statement dated 9 June 2023, Mr Po provided context and background to his application for Australian citizenship. Relevantly, he married his wife in May 2010, and she became a citizen on 18 August 2020. His stepdaughter and two stepsons are also Australian citizens.[7]

    [7] T3, p.57-58.

12. Mr Po writes that he and his wife were granted a permanent residence visa on 4 July 2014, and they share a close relationship. He says he has strong ties to Australia including investing in property which demonstrates his ‘commitment to establishing a permanent residence’ in Australia. He claims to have diligently fulfilled his tax obligations in Australia and that he and his wife intend to continue investing in Australia.[8] 

    [8] Ibid.

13. Mr Po’s immigration movement history records show he was absent from Australia during the following periods in the four years immediately prior to making his application for citizenship:

    ·13 June 2019 to 13 September 2019;

    ·5 October 2019 to 4 November 2019;

    ·25 November 2019 to 25 December 2019;

    ·11 March 2020 to 23 April 2020;

    ·16 December 2020 to 28 October 2022; and

    ·7 January 2023 to 18 May 2023.[9]

    [9] T5, p.392-395; R SOFIC [28].

14. The movement records are not controversial. They reveal that Mr Po Mr was absent from Australia for 1013 days in the four-year period immediately before applying for citizenship.[10] During the 12-month period immediately before making his application, Mr Po was absent for 137 days between 13 June 2022 and 28 October 2022. He was also absent for 131 days between 7 January 2023 and 18 May 2023. In total, he was outside Australia for 268 days in the period 13 June 2022 and 13 June 2023.

    [10] T2, p.15.

15. A person is taken to have fulfilled the residence requirement if they meet the requirements in subsection 22(1)(a)-(c). As he was not present in Australia as an unlawful non-citizen Mr Po satisfies subsection 22(1)(b). Subsection 22(1)(a) requires that a person is not absent for more than 12 months during the four years immediately before the day of their application for citizenship, and 22(1)(c) requires they were not absent for more than three months in the 12 months immediately before the day of their application. It is not controversial that Mr Po does not satisfy subparagraph 22(1)(a) or 22(1)(c) of the Citizenship Act.

16. Section 22(1A) and (1B) provide for overseas absences. However, Mr Po is not assisted by the deeming provisions in section 22(1A) because he was absent for more than 12-months in the 4 years immediately before the day he applied for citizenship. Similarly, Mr Po is not assisted by the provision in section 22(1B) as he was absent from Australia for more than 90 days during the relevant 12-month period.

17. Mr Po was granted a Resident Return (subclass 155) visa on 16 August 2021 (the 2021 RRV). He was sent notification he had been granted the visa which included advice he ‘Must not to arrive after 16 August 2022’.[11] Mr Po accepts he did not travel to Australia after being notified of the visa and its expiry on 16 August 2022.

    [11] T7, p.397-400.

18. He gave evidence that he had attempted to return to Australia prior to the 2021 RRV expiring, but it was difficult to secure a flight due to the COVID-19 pandemic. He claims to have purchased a ticket to Australia but that the flight was cancelled and attempts to find alternative flights were unsuccessful.

19. Mr Po was outside the country when he applied for another Resident Return (subclass 155) visa which was granted and came into effect from 23 September 2022 (the 2022 RRV).[12]

    [12] T6, p.396.

20. In correspondence dated 12 June 2023, Mr Po’s migration agent Stanley Chan writes that the discretion provided by section 22(9) of the Citizenship Act should be exercised in his favour for the following reasons:

    (a) Mr. PO has been the spouse of an Australian citizen during the relevant period.

    (b) Although not physically present in Australia during that period, Mr. PO maintained his permanent residency status.

    (c) Mr. PO's close and continuing association with Australia is evident through his investments, contributions to the tax system, and intention to reside permanently in the country.

    (d) Mr. PO has a strong and enduring relationship with Australia, as demonstrated by his past and ongoing ties to the country, including regular return visits, property ownership, and a commitment to community engagement.[13]

    [13] T3, p.55.

    Should the discretion be exercised in Mr Po’s favour?

21. Section 22(9) provides that the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the meet the criteria in subsection 22(9)(a)-(d). As the criteria are conjunctive, all must be met for the discretion to be exercised.

22. Paragraphs (a) and (b) may be satisfied as Mr Po has been married to his Australian citizen wife since 2010.[14] It follows that all his periods of absence during the four years prior to his application for citizenship are potentially capable of being treated by the Minister as periods in which he was in Australia.

    [14] Ibid, p.54.

23. The Respondent submits that Mr Po cannot satisfy subsection 22(9)(c) of the Citizenship Act as he was not a permanent resident during all his periods of absence from Australia.

24. Subsection 5(1) of the Citizenship Act defines a permanent resident. Relevantly, a person is a permanent resident at a particular time if and only if:   

    …       

    (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

    …

25. Mr Po accepted at the hearing that, contrary to his agent’s request, he was not a permanent resident between 17 August 2022 and 22 September 2022 as the 2021 RRV had expired, and he was waiting for the 2022 RRV to be issued by the Department.[15]

    [15] R SOFIC [31].

26. Mr Po said he applied for the 2022 RRV on 8 August 2022 and he considers the time it took to process his application was excessive. Had his application been processed in a timely manner, he contends he would have held a permanent residency visa between 17 August 2022 and 23 September 2022.

27. He told me that he had been let down by the Department and treated unjustly. Had he known his citizenship application would be rejected, he said he would have done everything he could to return to Australia earlier.

28. I make no finding on these claims because even if they were to be accepted, they do not assist Mr Po’s application. That is because the discretion provided in subsection 22(9) allows the Minister, or the Tribunal in this instance, to treat, in specified circumstances, a period of absence from Australia as if it were a period of presence in Australia. It does not provide discretion to treat a person as a permanent resident during a period when they were not one.

29. As Mr Po does not satisfy 22(9)(c) of the Citizenship Act, he does not meet the criteria for exercise of the discretion provided by section 22(9). As such, he does not satisfy the general residence requirement in section 22 of the Citizenship Act and his application cannot succeed.

    DECISION

30. The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 25 July 2023 to refuse the citizenship application, is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

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

Associate

Dated: 26 June 2024

Date(s) of hearing:	8 May 2024
Applicant:	In-person
Solicitors for the Respondent:	Ms N. Donaghy, HWL EBSWORTH