Rao and Minister for Home Affairs (Citizenship) - [2018] AATA 4168

Rao and Minister for Home Affairs (Citizenship) [2018] AATA 4168 (6 November 2018)
Division: GENERAL DIVISION
File Number(s): 2018/1364
Re:Vibhuti Samarth Rao
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Kira Raif
Date:6 November 2018
Place:Sydney

The decision under review is affirmed.
.............................[sgd].............................
Senior Member Kira Raif
CATCHWORDS
CITIZENSHIP – eligibility – citizenship by conferral – general residence requirement – whether applicant was a permanent resident during period of absence – whether decision-maker should exercise its discretion to treat period of absence from Australia as a period in which the applicant was present in Australia for the purpose of satisfying the general residence requirements – whether applicant can rely on more than one deeming provision – whether Applicant satisfies the special residence or defence service requirements – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 5, 21, 22, 22A, 22B, 22C, 23
Migration Act 1958 (Cth) s 68
CASES
Kumar v Minister for Immigration and Border Protection [2015] FA 446
Milne v Minister for Immigration and Citizenship [2009] FCA 730
Neumeier v Minister for Immigration and Border Protection [2018] AATA 1834
Saleem Al-Khalidi v Minister for Immigration and Border Protection [2015] AATA 438
REASONS FOR DECISION
Senior Member Kira Raif
6 November 2018
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 February 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Act).
The applicant is a national of India, born in December 1988. She was granted a Partner visa on the basis of the sponsorship by her spouse and entered Australia as a holder of the temporary Partner visa in November 2011. She was subsequently granted a permanent Partner visa in June 2013.
The applicant made the application for the Australian citizenship by conferral on 24 February 2017. On 23 February 2018 the delegate of the Minister for Home Affairs refused 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 review of the delegate’s decision.
ISSUES FOR DETERMINATION
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. If the applicant is found to meet the residence requirement, the Tribunal must also determine whether, for the purpose of s 22(9)(d) of the Act, the applicant had a close and continuing association with Australia during the period of her absence from Australia.
For the following reasons, the Tribunal has concluded that the applicant did not meet the general eligibility requirements and that the decision under review should be affirmed.
LEGISLATIVE FRAMEWORK
Section 21 of the Act 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
Section 22 of the Act sets out the general residence requirements. Relevantly, s 22(9) allows a ministerial discretion to be exercised and states:
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.
CONSIDERATION
Does the applicant meet the general residence requirements?
The general residence requirements are set out in section 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, pursuant to s 22(1)(a) of the Act and present in Australia as a permanent resident for a period of 12 months before the application was made, pursuant to s 22(1)(c) of the Act.
The periods of the applicant’s residence in Australia are helpfully set out in the Departmental ICSE records, which are attached to the respondent’s Statement of Facts, Issues and Contentions and the subsequently provided movement records in relation to the applicant.[1] These records indicate that the applicant travelled to Australia briefly for about three months in 2011. She was granted the Class UF Temporary Partner visa and entered Australia in November 2011. The applicant was granted the Permanent Partner Class BC visa on 15 June 2013 and entered Australia as a holder of that visa on 5 September 2013.
[1] Exhibit R5.
The applicant has spent the following periods in Australia prior to her application for the conferral of citizenship in February 2017:
19/11/11 – 07/06/13  Class UF Temporary Partner visa
05/09/13 – 05/04/14  Class BC Permanent Partner visa
14/05/14 – 24/10/14  Class BC Permanent Partner visa
05/11/14 – 29/04/15  Class BC Permanent Partner visa
20/03/16 – 11/04/16  Class BC Permanent Partner visa
The applicant also spent about three months in Australia holding a Visitor visa in 2011; however, that residence is not relevant for the purpose of the present determination.
The Tribunal finds, having regard to that evidence, that the applicant was not present in Australia for the period of 4 years immediately before the day she made the application for the conferral of the citizenship. The Tribunal further finds that 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. The applicant was not born in Australia and there is no evidence she was an Australian citizen at any time before she made the application. There is nothing to suggest that the applicant was present in Australia while not a permanent resident due to an administrative error. The Tribunal finds that s 22(1) is not met unless one of the deeming provisions applies.
Can the applicant rely on more than one deeming provision in section 22 of the Act?
There is nothing to suggest that the applicant has ever been confined to prison or a psychiatric institution and therefore ss 22(1C)(a)-(b) do not apply. There is no evidence that the applicant was ever an unlawful non-citizen and s 22(4A) does not apply. As the applicant’s presence in Australia was as a permanent resident, s 22(6) does not apply. There is no evidence that the applicant is, or has ever been, in an interdependent relationship with an Australian citizen and the Tribunal finds that s 22(11) does not apply.
The applicant concedes that although she was granted a permanent visa on 15 June 2013, she did not enter Australia as a holder of a permanent visa until 5 September 2013.
Section 68(1) of the Migration Act 1958 states that a visa has effect as soon as it is granted. However, s 5(1) of the Citizenship Act relevantly states that:
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.
There is nothing to suggest that the applicant holds, or ever held, a special category visa, a special purpose visa or that she was present in Norfolk Island or the Territory of Cocos (Keeling) Islands. The Tribunal finds that the applicant was not covered by a determination for the purpose of s 5(1)(c). The applicant has not been previously present in Australia and held a permanent visa before leaving Australia prior to June 2013. The Tribunal finds that in accordance with s 5(1) of the Citizenship Act, the applicant was not a permanent resident until she entered Australia as a holder of a permanent visa on 5 September 2013.
The applicant relies on the deeming provision in ss 22(1A) and 22(1B). The Applicant concedes that she was absent from Australia for a part of the period of 4 years before the application and also for a part of the period of 12 months immediately before her application was made.
For the purpose of s 22(1B), the Tribunal has found that the applicant was not a permanent resident, as defined in s 5 of the Citizenship Act, until 5 September 2013. Therefore, the applicant cannot meet s 22(1B)(c) in relation to the period between the grant of the permanent visa in June 2013 and her entry to Australia in September 2013. The Tribunal is also mindful that the deeming provision in s 22(1B) only applies for the purpose of s 22(1)(c) and not for the purpose of any other provision. In this case, the Tribunal considers s 22(1)(a) to be more problematic for the applicant.
Section 22(1)(a) requires the applicant to be present in Australia for the period of 4 years immediately before the day the application was made. The applicant relies on s 22(1A) to cover the period of absence from the date of the grant of the permanent visa in June 2013 to the date of her entry to Australia in September 2013. The applicant also relies on s 22(9) to cover the period of her absence from 2015 until the date the application was made. The applicant urged the Tribunal to consider the entirety of her circumstances, the reasons for the absences and the purpose of the deeming provisions. The Minister submits that since the applicant relies on the deeming provision in s 22(9), she cannot have the benefit of multiple deeming provisions.
The Minister relies on a number of authorities. The Tribunal considered the application of s 22(9) in Neumeier v Minister for Immigration and Border Protection [2018] AATA 1834. That case considered whether s 22(9) required an applicant to be a permanent resident for the deeming provision to apply. This issue is addressed below when consideration is given to s 22(9) but it does not assist the Tribunal in determining whether the applicant can rely on s 22(1A), as well as s 22(9). The same can be said for the reasoning in Milne v Minister for Immigration and Citizenship [2009] FCA 730 and Kumar v Minister for Immigration and Border Protection [2015] FA 446.
The Tribunal has formed the view that the better interpretation of the Citizenship Act is not to combine the deeming provisions to enable the applicant to rely on more than one in meeting the general residence requirements. This is because the capacity to ‘combine’ deeming provisions, such as those in ss 22(1A) and 22(9) would negate or minimise the overall residence requirements enabling the applicants to have spent very little time in Australia before being eligible for citizenship conferral. In the Tribunal’s view, that is not the purpose of the Citizenship Act.
As the applicant must rely on the deeming provision in s 22(9), the Tribunal is of the view that she cannot also rely on the deeming provision in s 22(1A) in relation to the earlier period of her absence from Australia. That is, the applicant cannot extend the period of her absence from Australia which would be deemed as periods when she was in Australia by relying on multiple deeming provisions.
Does the applicant meet the requirements of section 22(9)?
The applicant concedes that she has not lived in Australia for a period of four years immediately before the day she made the application. The applicant relies on s 22(9) to deem her overseas residence as being residence in Australia. The applicant states that she was the spouse of an Australian citizen at the time the application was made and was the spouse of an Australian citizen throughout the periods of her absence from Australia pursuant to s 22(9)(a) of the Act. The applicant also claims that she had a close and continuing association with Australia during that period pursuant to s 22(9)(d) of the Act. The applicant claims that the periods of her absence should be treated as periods in which she was present in Australia as a permanent resident.
The applicant provided a number of documents with her application and additional evidence to the Tribunal addressing these factors. There is evidence of the applicant’s family links to Australia (the applicant’s spouse and two children are Australian citizens), evidence relating to her undertaking study in Australia, her engagement in paid employment and the payment of taxes. The applicant provided a detailed written statement to the Tribunal outlining the reasons for her departure from Australia and gave oral evidence. The Tribunal acknowledges that evidence, which is relevant to establishing whether the applicant had a close and continuing association with Australia during the period of her absence from Australia, for the purpose of s 22(9)(d). However, for the following reasons, the Tribunal determined that it is not necessary to assess the application against that provision of the Citizenship Act.
The Minister submits that the applicant cannot meet s 22(9)(c) because she was not a permanent resident during the period of her absence from Australia. As noted above, the Minister relies on the reasoning in Milne, Kumar, and the Tribunal decisions in Neumeier and Saleem Al-Khalidi v Minister for Immigration and Border Protection [2015] AATA 438.
The Tribunal accepts that the requirements of s 22(9) are cumulative. That is, the applicant must be the spouse or de facto partner of an Australian citizen;[2] must not be present in Australia during the relevant period;[3] the applicant must be a permanent resident during that period;[4] and the applicant must have a close and continuing association with Australia.[5] If any of these requirements are not met, the applicant cannot meet s 22(9) of the Act.
[2] Australian Citizenship Act 2007 (Cth) s 22(9)(a).
[3] Ibid s 22(9)(b).
[4] Ibid s 22(9)(c).
[5] Ibid s 22(9)(d).
The Tribunal finds that for the purpose of the Citizenship Act, the applicant was not a permanent resident until September 2013 when she entered Australia as a holder of a permanent visa. Any period prior to September 2013 cannot be counted for the purpose of the deeming provision in s 22(9) of the Act because that is the requirement of s 22(9)(c). So much is clear from the authorities cited above.
For the reasons stated above, the Tribunal has formed the view that the applicant cannot rely on the deeming provision in s 22(1A) in relation to her absence from Australia between June 2013 and September 2013, in addition to her reliance on s 22(9) in relation to her subsequent absence.
Further, the deeming provisions in s 22 of the Act cannot override the express definition of permanent residence in s 5 of the Act. That is, the deeming provision in s 22(1A) operates to enable the decision-maker to find that the applicant was resident in Australia when she was not. It does not operate to render the applicant a permanent resident of Australia when she was not. Thus, even if the applicant was to be given the benefit of s 22(1A) and deemed to be resident in Australia between June and September 2013, that deeming provision could only apply in relation to the general residence requirement in s 22 but not in relation to the definition of a permanent resident. The Tribunal does not consider that the applicant could be considered a permanent resident of Australia under s. 5 of the Citizenship Act by relying on s 22(1A) of the Act. She was not a permanent resident between June and September 2013. She cannot rely on that period for the purpose of s 22(9).
Accordingly, as the applicant was not a permanent resident in the relevant period, she cannot meet s 22(9), specifically s 22(9)(c).
The applicant provided extensive evidence to the Tribunal concerning her close and continuing association with Australia. The applicant provided a statement outlining the reasons for her travel overseas and referring to the activities she had engaged in that establish, in her submission, association with Australia. There are documents before the Tribunal concerning the applicant’s study, employment, professional associations and other activities, as well as evidence relating to her husband and children. The applicant’s activities were also the subject of her oral evidence to the Tribunal. The Tribunal acknowledges that evidence and also accepts that the applicant’s spouse and two children are Australian citizens. However, the Tribunal has decided that it is not necessary to determine whether the applicant has a close and continuing association with Australia for the purpose of s 22(9)(d) because the Tribunal has formed the view that the applicant does not meet s 22(9)(c) of the Act.
The Tribunal finds that the applicant does not meet the general residence requirements under s 22(1) of the Act.
Does the applicant meet the special residence requirement or the defence service requirement?
The special residence requirements are set out in s 22A and s 22B of the Act.
Pursuant to s 22A(1)(b), there is no evidence that the head of an organisation specified under section 22C(2), or a person whom the Minister is satisfied holds a senior positon in 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 section 22C(1). The Tribunal is not satisfied the applicant meets s 22A(1)(b) and s 22A(1).
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 pursuant to s 22A(2) and there is no evidence of any administrative error as per s 22A(4) of the Act. The remaining exceptions in s 22A do not apply to the applicant. Therefore, the Tribunal finds that the applicant does not meet the special residence requirements in s 22A of the Act.
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 section 22C(3). The Tribunal is not satisfied the applicant meets s 22B(1)(a) and the special residence requirements in s 22B of the Act.
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 she 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.
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.
The applicant submits that after making the application, they were expecting to hear from the decision-maker and were waiting to submit further evidence to demonstrate their close and continuing relationship with Australia but they have not heard from the case officer. The Tribunal acknowledges that evidence. However, the Tribunal conducts a review de novo and it is for this Tribunal to determine that the applicant meets all the legislative requirements for the conferral of the citizenship, even if the applicant believes her case could have been processed differently by the Department.
DECISION

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 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif

..............................[sgd].............................
Associate
Dated: 6 November 2018

Date(s) of hearing: 15 October 2018

Applicant: In person

Solicitors for the Respondent: Ms J Liang – Clayton Utz

Date(s) of hearing:	15 October 2018
Applicant:	In person
Solicitors for the Respondent:	Ms J Liang – Clayton Utz