Sebecke and Minister for Immigration and Citizenship

[2011] AATA 731

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1201

GENERAL ADMINISTRATIVE DIVISION		)
Re		BIANCA SEBECKE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date20 October 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

CITIZENSHIP – Application for Australian citizenship – Permanent resident of Australia –  Permanent residency requirements – Absence from Australia during required four year period – Applicant not present in Australia as permanent resident for twelve month period – No special circumstances to warrant departure from policy – Applicant ineligible for Australian citizenship – Decision under review affirmed

Australian Citizenship Act 2007 (Cth) ss 21, 22

Australian Citizenship Instructions

Liu v Minister for Immigration and Citizenship [2009] FCA 494

REASONS FOR DECISION

20 October 2011	Dr P McDermott, RFD, Senior Member
INTRODUCTION

1.      The applicant, Ms Bianca Sebecke, is a citizen of Germany and a permanent resident of Australia. She is the holder of a Class BB Resident Return (subclass 155) visa. On 10 January 2011 Ms Sebecke made an application to become an Australian citizen. On 24 February 2011 that application was declined by a delegate of the Minister. Ms Sebecke now seeks review of that decision by this Tribunal.

LEGISLATION

2.      The Australian Citizenship Act 2007 (Cth) (“the Act”) applies to this case.

3.      Section 21 of the Act provides for the eligibility of a person to become an Australian citizen. In the case of Ms Sebecke, as she was 17 years of age at the time of her application, her application is governed by s 21(5) of the Act.

4.      Section 21(5) of the Act provides

Person aged under 18

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

(a)       is aged under 18 at the time the person made the application; and

(b)       is a permanent resident:

(i)        at the time the person made the application; and

(ii)       at the time of the Minister’s decision on the application.

CONSIDERATION

5.      On 24 February 2011, a delegate of the Minister declined Ms Sebecke’s  application to become an Australian citizen. The reason given by the delegate for rejecting the application was because Ms Sebecke did not satisfy the general residence requirement in ss 22(1) and 22(1A) of the Act. However, the terms of s 21(5) do not impose a requirement that the applicant satisfy the general residence requirement. What was not apparent from the reasoning of the delegate was that the Australian Citizenship Instructions[1] imports the general residence requirement for applications by persons under 18 under s 21(5) of the Act.

[1] Australian Citizenship Instructions, page 62.

6.      The Australian Citizenship Instructions is a policy document which is intended to provide guidance on policy to decision-makers in relation to the interpretation of, and the exercise of powers under the Act and the Australian Citizenship Regulations 2007 (Cth).[2]

[2] T-Document 5, Folio 50.

7.      The general residence requirements are set out in s 22(1) of the Act. This section provides:

(1) …, in relevant respects, that for the purposes of s 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.      Ms Sebecke became a permanent resident on 23 July 2003.

9.      During the period of four years immediately before Ms Sebecke made her application, she was not present in Australia for the required four year period. She therefore does not satisfy the general residence requirement in s 22(1)(a) of the Act.

10.     In cases where an applicant is absent from Australia during that four year period,  it is important to have regard to s 22(1A) of the Act, which 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.

11.     It is not in dispute that in the four years immediately before Ms Sebecke made her application, she was absent from Australia for 553 out of 908 days. Therefore, at the time that she made her application for citizenship, she did not come within the terms of s 22(1A) of the Act. Therefore, s 22(1)(a) of the Act is not satisfied by this provision.

12.     In having regard to the general residence requirement I have also been guided by the decision in Liu v Minister for Immigration and Citizenship [2009] FCA 494, where Foster J considered the meaning of “present in Australia as a permanent resident”. While His Honour was considering the application of transitional legislation, the observations made are of assistance in construing s 22(1)(c) of the Act. His Honour remarked:

In my view, the phrase present in Australia as a permanent resident … captures two ideas. First, there is a requirement that the person concerned be physically present within the borders of Australia. Second, … that for the whole of the period or periods of time in which that person is physically present in Australia, that person must be in Australia as a permanent resident.[3]

[3] Liu v Minister for Immigration and Citizenship [2009] FCA 494 at [60].

13.     In this case, s 22(1)(c) of the Act cannot be satisfied by Ms Sebecke. This is because, in the twelve months prior to her application for Australian citizenship, Ms Sebecke was absent from Australia for 128 of 365 days. She was therefore not physically present with the borders of Australia as a permanent resident for the required period of twelve months.

14.     Ms Sebecke also cannot satisfy s 22(1B) of the Act. She cannot be taken to be present in Australia as a permanent resident during her period of absence because her total period of absence was more than 90 days. She was absent from Australia for 128 days.

DISCRETION

15.     If an applicant does not meet the eligibility criteria in respect of the general residence requirement, the Australian Citizenship Instructions provide that in cases of special circumstances there can be a departure from the policy contained in those Instructions.

16.     The Australian Citizenship Instructions provide that where an applicant does not satisfy the general residence requirement, there can be a departure from the policy if the applicant has significant hardship or disadvantage.[4]

[4] Australian Citizenship Act 2007 (Cth), s 22(6); Australian Citizenship Instructions, Attachment B.

17.     Ms Sebecke is currently completing her final year of secondary school. The main issue of contention that has been raised by her is that, as a permanent resident, she will be unable to access HECS-HELP at university. Although I have no information concerning her eligibility for HECS-HELP I also do not have any information concerning her financial circumstances or that of her family. It appears that the primary motivation for Ms Sebecke’s citizenship application is to gain access to HECS-HELP. In terms of the Australian Citizenship Instructions, this can be regarded as a personal want, which would not warrant a departure from the policy.

18.     Ms Sebecke does not now maintain that the fact she is not an Australian citizen will prevent her in applying for university scholarships. During the hearing I advised Ms Sebecke that my survey of university scholarships did not reveal that applicants need to have Australian citizenship. She has already made application for some scholarships and may be successful. In considering her best interests I have taken in account that in the future she is able to undertake university studies in Australia.

19.     In considering Ms Sebecke’s application, I have also had regard to the fact that her application has been made within two months of her return to Australia from Germany. I have also considered that, in giving evidence, the applicant remarked that her last move to Germany was intended as a permanent, and not as a temporary, move. Her family transported all of their personal effects to Germany.

20.     I have decided that there is no significant hardship or disadvantage which would warrant a departure from the policy of the Australian Citizenship Instructions.

DECISION

21.     I affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ...................[Sgd]..........................................................
              Research Associate

Date/s of Hearing  9 August 2011
Date of final submissions         12 September 2011
Date of Decision  20 October 2011
Applicant was self-represented

Solicitor for the Respondent               David McLaren, Sparke Helmore Lawyers