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

[2023] AATA 400

Sachdeva and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 400 (17 March 2023)

Division:GENERAL DIVISION

File Number:          2022/8256

Re:Ashwani Kumar Sachdeva

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:17 March 2023

Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

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

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – where applicant is a citizen of the Republic of Singapore and a permanent resident of Australia – general residence requirement – absences from Australia in twelve month period immediately before applying for citizenship – where applicant regularly travels abroad for work – where applicant’s work not of a kind which may be considered in regard to special residence requirement – where applicant travelled abroad to care for sick relative – supervening event of national and international travel restrictions owing to pandemic – no discretionary power under legislation – applicant not eligible for grant of citizenship at this time – reviewable decision is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37
Australian Citizenship Act 2007 (Cth), ss 22, 22A, 22B, 22C, 23, 53, 24, 52
Australian Citizenship (Special Residence Requirement) Instrument (LIN 21/069) 2021

Biosecurity (Human Biosecurity Emergency)(Human Coronavirus with Pandemic Potential)(Overseas Travel Ban Emergency Requirements) Determination 2020

Secondary Materials

Media release – Prime Minister – Border restrictions (19 March 2020)

REASONS FOR DECISION

Senior Member D. J. Morris

17 March 2023

BACKGROUND

1. Mr Ashwani Sachdeva is a citizen of the Republic of Singapore. He holds a Permanent Resident Return (Subclass 155) visa, granted to him in 2019. He has resided in Australia since 1987.

2. Mr Sachdeva applied for Australian citizenship by conferral on 20 May 2022. Mr Sachdeva is a successful businessman. He holds the rights to sell sporting equipment of a well-known Australian brand to several neighbouring countries: Singapore, Malaysia, Brunei and, recently, Thailand. This work requires him to travel out of Australia frequently, but generally for short periods.

3. In February 2021 Mr Sachdeva said he received a call from the University Hospital in Singapore. His only sibling, a sister, had been admitted to hospital following a series of health incidents, including a transient ischemic attack. Her doctors sought his advice on his sister’s care. At the time, there were restrictions on international travel because of the global pandemic. Mr Sachdeva eventually obtained clearance from the Department of Home Affairs to travel to Singapore, which he did. He said he intended to stay there for, at most, three months. As it happened, the Singapore Government imposed travel restrictions while Mr Sachdeva was there. He was unable to return to Australia until January 2022.

4. On 16 September 2022 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) decided to refuse Mr Sachdeva’s application to become an Australian citizen by conferral because the delegate found he did not satisfy the requirements of ss 22(1)(a) and 22(1)(c) of the Australian Citizenship Act 2007 (‘the Act’). The delegate therefore refused the application under s 24 of the Act.

5. Under s 52(1)(b) of the Act, the delegate’s decision is reviewable by this Tribunal. On 3 October 2022, Mr Sachdeva lodged an application for review.

   HEARING

6. On 2 March 2023 a hearing was held by telephone, as allowable under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Mr Hargobind Singh Jholl, of Jholl Lawyers & Consultants. The Respondent was represented by Mr Anthony Gardner of Minter Ellison. Mr Sachdeva gave evidence. At the conclusion of the hearing the Tribunal reserved its decision.

7. The Tribunal admitted the following documents into evidence:

   (a)Volume of documents (‘TD’) lodged by the Respondent under s 37 of the AAT Act (Exhibit R1);

   (b)Applicant’s document, Information for Australian Citizenship application (A1);

   (c)Applicant’s document, Additional information for Australian citizenship application (A3); and

   (d)Letter of support from the Hon. Kevin Andrews (A4).

8. The Applicant also lodged a Statement of Facts, Issues and Contentions, on 18 January 2023. The Respondent lodged a Statement of Facts, Issues and Contentions on 24 February 2023. These statements were taken into account.

   SUBMISSIONS

   The Applicant

9. Mr Jholl reiterated that the Applicant conceded that he had been absent from Australia for 616 days in the four-year period prior to his applying for citizenship on 20 May 2022 and accepted that Mr Sachdeva was absent for 251 days more than the allowable period. Mr Jholl said there were three reasons for the absences. In the first place, he said the Applicant needs to travel regularly abroad for short periods because of his work marketing Australian-made sporting equipment in certain countries where he is the sales agent.

10. In the second place, Mr Sachdeva had to travel overseas for an unplanned reason on learning of the serious illness of his only living relative, his unmarried sister who lives in Singapore. She did not have any other family who were available to assist her or to confer with doctors about her care.

11. In the third place, Mr Jholl said that, once Mr Sachdeva got to Singapore to see his sister, his planned two or three month stay turned into what he called a ‘305 day’ stay, because of the travel restrictions imposed by the Singapore Government as a result of the SARS-CoV-2 virus pandemic.

12. Mr Jholl told the Tribunal that Mr Sachdeva became a permanent resident of Australia in 1996, around the time he purchased his first property in this country. His wife and two children live in Australia. One of his sons is married and has two children, who also reside here. Mr Jholl told the Tribunal that both of the Applicant’s sons are Australian citizens, as are his daughter-in-law and two grandchildren. The Applicant’s wife is a permanent resident.

13. Mr Jholl told the Tribunal that Mr Sachdeva has substantial investments in Australia, owning several companies that operate here, a number of real estate properties, and with substantial financial holdings in this country.

14. In response to a direct question from the Tribunal, Mr Jholl confirmed that it is the Applicant’s submission that, but for the unplanned absence in Singapore from February 2021 to January 2022, he would not have been absent from Australia for longer than the allowable period in s 21(1) of the Act.

15. Mr Jholl confirmed that the Applicant is making a case that he satisfies the general residence requirement, not the special residence requirement in the Act.

    The Respondent

16. Mr Gardner submitted that the Applicant did not satisfy subsections 21(1)(a) or (c) of the Act, and that it was not apparent that any of the exemptions set out in the Act applied.

17. Mr Gardner submitted that the Applicant did not seem to meet the general residence criteria, and that no discretion could be applied under the Act.

    ORAL EVIDENCE

18. Mr Sachdeva told the Tribunal that he migrated to Australia as a business migrant in 1987, and that he exports hockey and cricket equipment manufactured in Victoria to five neighbouring countries in the Asia-Pacific region. His work requires frequent overseas travel.

19. Mr Sachdeva said that in 2021 he was in Melbourne when he received a call from a hospital in Singapore informing him that his sister was in the intensive care unit, following a health episode. He told the Tribunal that he is her only living relative, and that his sister is unmarried. He said that, at the time, doctors were asking him significant questions about medical decisions that might have had to be made in terms of his sister’s critical care.

20. The Applicant said that he applied on three occasions for an exemption from the pandemic travel restrictions placed on Australian citizens and permanent residents relating to departure from Australia. He said that in February 2021 he was eventually granted approval for travel to Singapore for a compelling reason.

21. Under cross-examination, Mr Sachdeva said he was not claiming that there had been administrative error by the Minister’s Department, nor that he has been confined in prison or psychiatric institution. He said that at no time has he been an unlawful citizen in Australia.

22. Mr Sachdeva confirmed in a direct question from the Tribunal that his wife is not an Australian citizen. She is a permanent resident and has not applied for citizenship only because she is part-owner of a family property in Singapore, and this would be affected should she become a citizen of another country.

23. Mr Sachdeva asked at the end of his evidence to make a statement to the Tribunal. He said:

    I applied for citizenship. If it was not for getting stuck in Singapore for eleven months, I would have had no problems – I would have qualified. The only reason was because of my sister. I was supposed to be back [in Australia] in three months. I was stranded in Singapore, basically. I didn’t travel anywhere else, and finally made it back.

24. In response to an inquiry from the Tribunal, Mr Sachdeva said that his sister’s health had declined so that she has now been admitted to a nursing home and has become bedridden.

25. In his closing submissions, Mr Jholl submitted to the Tribunal that, although he could not identify the relevant provisions, he contended that the Minister has discretion in special circumstances such as this to allow the citizenship application to go forward.

    CONSIDERATION

    The legislation

26. Section 22(1), (1A) and (1B) of the Act provides:

    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.

    Overseas absences

    (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 for 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.

27. The Act goes on to discuss situations where a person might be confined in prison or psychiatric institutions, partial exemption when a person is born in Australia or is a former Australian citizen, and when a person is a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen.

28. In his evidence he said he was not claiming to have been confined in prison or a psychiatric institution during the relevant period. He is also not making a claim in his submissions that he was born in Australia or is a former Australian citizen. Mr Sachdeva’s birth certificate was in evidence (TD, p 58) and records that he was born in Singapore. He confirmed in a direct response to the Tribunal that he is a citizen of the Republic of Singapore and does not hold any other citizenship.

29. In addition, also in response to the Tribunal, Mr Sachdeva confirmed that his spouse is a citizen of Singapore and a permanent resident of Australia.

30. Section 21(6) of the Act allows for the Minister to exercise a discretion to treat a period when a person was absent from Australia as if he or she was present in Australia, if the Minister is satisfied that the person would suffer significant hardship or disadvantage. No submissions were made by the Applicant that he was seeking for this provision to be agitated. I note that, in terms of the ‘significant hardship or disadvantage’ provision in s 22(6)(b) of the Act, it is only relevant to an exemption if the person is otherwise lawfully in Australia, which means physically in the migration zone, in the four-year period prior to applying (see s 22(6)(a)). Therefore, that is not a provision which would help Mr Sachdeva.

31. For completeness, no submissions were made by the Applicant that he is engaged in work of a kind specified in s 22C(3) of the Act and that the person is required to regularly travel outside Australia because of that work. There was also no submission that the defence service requirement in s 23 of the Act is relevant to Mr Sachdeva. In addition, and also for completeness, s 22A of the Act provides for certain persons engaged in activities that are of benefit to Australia to avail themselves of the special residence requirement pathway. There were no submissions that Mr Sachdeva’s work falls within the stipulated categories set out in the Australian Citizenship (Special Residence Requirement) Instrument (LIN 21/069) 2021.

    The international travel restrictions

32. On 19 March 2020, the Prime Minister of Australia announced that, owing to the SARS-CoV-2 virus pandemic, Australian borders would be closed from 9:00 pm AEDT on 20 March 2020 to all non-citizens and non-residents. A media release issued by the Prime Minister, the Foreign Affairs Minister and the Home Affairs Minister relevantly stated:

    Australia is closing its borders to all non-citizens and non-residents.

    The entry ban takes effect from 9pm AEDT Friday, 20 March 2020, with exemptions only for Australian citizens, permanent residents and their immediate family, including spouses, legal guardians and dependants.

    New Zealand citizens who live in Australia as Australian residents are also exempt, as are New Zealanders transiting to New Zealand. Exemptions for Pacific Islanders transiting to their home countries will continue to apply.

33. In addition, on 25 March 2020, the Minister for Health made a determination, the Biosecurity (Human Biosecurity Emergency)(Human Coronavirus with Pandemic Potential)(Overseas Travel Ban Emergency Requirements) Determination 2020 (‘the Determination’). The Determination set out, at section 5:

    An Australian citizen or permanent resident (the person) must not leave Australian territory as a passenger on an outgoing aircraft or vessel on or after the time this instrument commences unless,

    (a) an exemption set out in section 6 applies to the person; …

    The Determination provided, at section 7(2), that an Australian Public Service employee of the Australian Border Force (ABF) (subsequently amended to be the Commissioner or a member of the ABF) was authorised to grant a written exemption to a person who had to depart Australian territory for “a compelling reason”. The travel ban in the Determination was expressed to commence at 12 pm on 25 March 2020. Therefore, at the time, the Applicant as a permanent resident was subject to restrictions in relation to both departing from and re-entering Australia.

34. The Respondent has provided a document from the Department of Home Affairs dated 2 February 2021, which is an email from a Department officer to the Applicant. It relevantly states (TD, p 173):

    Dear Ashwani

    I refer to your request for an exemption from the travel restrictions placed on Australian Citizens and Permanent Residents for departure from Australia. This advice applies to the following travellers:

    Ashwani Kumar Sachdeva [date of birth and Singapore passport number redacted]

    I have considered your request and determined that your application to travel is authorised on the following grounds:

    Travelling overseas for a compelling reason for at least three months.

35. Before the Tribunal is a statutory declaration from the Applicant setting out that he is a permanent resident of Australia and that his sister had been admitted to hospital. He declares that his sister:

    was presently physically unable to sign any documents or provide instructions and that the hospital had informed him that his presence is required to make important life and death decisions for my sister.

36. Mr Sachdeva furnished documents authenticating his relationship with his sister and medical correspondence from the hospitals asking him to travel urgently to Singapore. He also provided a copy of an airline ticket valid for three months. He relevantly declared (TD, p 174):

    I intend to return in 90 days after I have ensured my sister’s well being is being looked after and to make any arrangements in a nursing home, to access her bank account to ensure that all payments necessary for the purpose of her medical and nursing charges are taken into account and to complete a legal power of attorney. This will require my presence in Singapore.

    The Applicant’s links with and contribution to Australia

37. The Tribunal accepts that Mr Sachdeva is a permanent resident of Australia and had fulfilled the period of time relevant to apply for Australian citizenship by conferral. The Tribunal accepts that he has Australian citizen children and grandchildren and strong links to Australia. There is evidence before me that he has established himself as a well-regarded businessman. His work in exporting Australian manufactured goods contributes to the national economy. He has also built investments in Australia and, as he said in his evidence, this country ‘is his home’.

38. A former Immigration and Citizenship Minister, the Hon. Kevin Andrews, wrote on 5 December 2022, in support of the Applicant (A4):

    I have known Ashwani for many years. He has and continues to make a significant economic contribution to Australia through his business activities. He has made substantial financial commitments to Australia. His work has involved much travel overseas to export Australian sporting goods. He has also contributed to the life of the community, including through his involvement in the Malaysia Singapore Association.

    …

    I wholeheartedly support his application for citizenship, as he has and continues to make a significant contribution to Australia. He is an asset to the nation.

39. The Tribunal notes that, apart from his business contribution, there is evidence in the papers that Mr Sachdeva is highly regarded in his local community. The President of a Rotary Club in Melbourne wrote that the Applicant has been a long-time Rotarian and was in 2019 awarded a Paul Harris Fellowship by that organisation, for his community work (TD, p 61)

40. The Tribunal also accepts, and notes that the Respondent did not contest, that but for the unplanned travel to Singapore to tend to his sister, Mr Sachdeva would have fulfilled the general residence requirement in s 21 of the Act.

    Allowable absences in the four years before applying

41. As Mr Sachdeva applied for citizenship on 20 May 2022, the four-year period during which he must be present in Australia under s 21(1)(a) of the Act began on 19 May 2018 and ended on 19 May 2022. The Act allows absences in aggregate of up to 12 months in that period not to be counted as time out of Australia (s 21(1A)). The Applicant himself in his Statement of Facts, Issues and Contentions conceded that he calculated he was out of Australia for 616 days in the four years before he applied for citizenship.

1. In addition, the Applicant must have been present in Australia for the 12-month period from 19 May 2021 to 19 May 2022 but may have been absent for a total period of 90 days in that period (s 21(1B)).

2. Therefore, in short, a person must be present in Australia for the four-year period before he or she applies for Australian citizenship, but absences totalling no more than 12 months in that period may be treated as time in Australia. In the 12-month period immediately before lodging an application, the rules tighten. In that 12-month period, the person cannot be absent from Australia for more than 90 days.

3. The delegate stated that Department records indicate Mr Sachdeva was out of Australia for 298 days in the 12-month period immediately before he applied for citizenship. On examination of the movement records (TD, pp 206-207), the Tribunal agrees with this calculation.

4. Unfortunately for Mr Sachdeva, these provisions are stark. The Act allows no latitude in calculating the four-year period or the 12-month period, other than the stipulated allowable absences set out above. This means that if a person is out of Australia even for one day more than the allowable absences, he or she does not fulfill the general residence requirement.

5. As an observation, the Tribunal notes that Mr Sachdeva wrote in his submissions that he was ‘stranded in Singapore for 305 days’. This contention was repeated by Mr Jholl. By the Tribunal’s calculation, based on the movement records and Mr Sachdeva’s oral evidence that he travelled only to Singapore to visit his sister and did not travel out of Singapore until he returned to Australia (in fact, was effectively prevented by border closures from doing so), he was actually in Singapore for 355 days. It may be that in citing the period of ‘305 days’ the Applicant is expressing that his original intention was to visit his sister for around 50 days, and this was the unwanted extra time he had to stay there. Nothing however turns on this.

6. The Tribunal is not unsympathetic to the Applicant. He is a person who has made Australia his home for many years, has brought his children up here and now has grandchildren here. He has contributed substantially to the national good, through his hard work and endeavour. Although the delegate ceased consideration of Mr Sachdeva’s application on the basis of the general residence requirement and did not go on to consider the good character requirement, the Tribunal is satisfied on the basis of an Australian national police certificate (TD, p 194) and a Singapore Police Force certificate of clearance (TD, p 195) that Mr Sachdeva on the available evidence is a person of good fame. He is a contributor to this country, as is reflected in the commending remarks made about him by a former Minister of the Crown (A4).

7. The Tribunal notes that in the distinctive circumstances of the closure of Australian borders during the florid period of the pandemic, the terms of the special departure permission Mr Sachdeva received from the Minister’s Department actually required him to be absent from Australia for a period of three months (though it is far from clear whether that was enforceable). The Tribunal accepts the Applicant’s evidence that, unfortunately for him, while he was in Singapore attending to the needs of his sister, the Government of Singapore imposed its own strict border closure rules. This, added to the Australian Government border restrictions, and the almost complete close-down of private international travel, combined to a result that compelled Mr Sachdeva to stay in Singapore for almost a year, in his word, ‘stranded’.

8. As I have said, I sympathise about this factual circumstance in which Mr Sachdeva found himself. However, I cannot accept Mr Jholl’s submissions that, although he was unable to identify a specific provision, he contended that there is a discretionary power that is exercisable to treat this unplanned absence of the Applicant as being time in Australia in terms of satisfying the general residence requirement. There is no such discretion available in the Act.

9. The Tribunal considers that the actions that Mr Sachdeva took to travel to Singapore in aid of his sister, even at a time when travel was restricted and generally more difficult because of the global pandemic, are reflective of those of a dutiful brother. No reproval at all can be attached to him for this.

10. However, Mr Sachdeva’s concedes absence for some 616 days out of Australia in the four-year period before the day he applied for citizenship and his absence for 298 days in the 12 months immediately prior to applying: each has a fatal effect on his application. They mean that he did not satisfy the requirements in s 21(4)(d) of the Act relating to general residence. Therefore, the Minister, or his delegate or the Tribunal standing in his shoes, must not approve the application for citizenship: s 24(1A) of the Act.

    CONCLUSION

11. This decision has no effect on Mr Sachdeva’s continuing ability to hold the class of visa he already does, as a permanent resident of Australia. He is also free to lodge a fresh application for Australian citizenship, noting that officers of the Minister’s Department considering any fresh application will be required to calculate satisfaction of the general residence requirement by both counting back four years from the date of any new application and ensuring absences in the 12 months immediately before an application do not exceed 90 days in total.

    DECISION

12. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 17 March 2023

Date of hearing:	2 March 2023
Advocate for the Applicant:	Mr Hargobind Singh Jholl
Solicitors for the Applicant:	Jholl Lawyers & Consultants
Advocate for the Respondent:	Mr Anthony Gardner
Solicitors for the Respondent:	Minter Ellison