SELLIAH and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 427

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0188

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAMESH NAGARAJAH SELLIAH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member S E Frost

Date22 June 2011

PlaceSydney

Decision The decision under review is affirmed.

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

S E Frost
  Senior Member

CATCHWORDS

CITIZENSHIP – eligibility – general residence requirement – requirement to be present in Australia for four years immediately before applying for citizenship – overseas absences – decision under review affirmed

Australian Citizenship Act 2007 (Cth) s 22

REASONS FOR DECISION

22 June 2011 Senior Member S E Frost

1.The applicant applied for Australian citizenship in December 2010.  A delegate of the Minister refused the application, basing that decision on the applicant’s failure to satisfy the so-called “general residence requirement” in s 22 of the Australian Citizenship Act 2007.

2.There are three elements to the general residence requirement.  Initially the delegate considered that the applicant met one of those elements but failed the other two.  However, after re-examining the facts, the Minister now takes the position that the applicant fails all three.

The issue

3.The question for the Tribunal is whether the applicant satisfies all three elements of the general residence requirement in s 22 of the Act.  The three elements are:

·being present in Australia for the period of 4 years immediately before applying for citizenship (s 22(1)(a));

·not being present in Australia as an “unlawful non-citizen” at any time during that 4 year period (s 22(1)(b)); and

·being present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship (s 22(1)(c)).

4.The tests in paras (a) and (c) are modified by subs (1A) and (1B) so that:

·periods of absence from Australia in the 4 year period referred to in para (a) are overlooked if in total they do not exceed 12 months (subs (1A)); and

·periods of absence from Australia in the 12 month period referred to in para (c) are overlooked if in total they do not exceed 90 days, provided the person was a permanent resident during each period of absence (subs (1B)).

The first element

5.The applicant applied for Australian citizenship on 9 December 2010.  The applicant accepts that, in the 4 years prior to that date, he was present in Australia during the following periods:

·from 13 to 16 February 2008;

·from 26 November 2008 to 3 December 2009; and

·from 6 December 2009 and ongoing (but, for the purposes of the relevant calculation, this period expires on 8 December 2010, being immediately prior to the application for Australian citizenship).

6.The total period of his presence in Australia is slightly over two years.  Even taking into account the modification in s 22(1A), the applicant cannot be regarded as having been present in Australia for the period required by s 22(1)(a).

7.That means that the applicant fails to meet the first element of the general residence requirement.

The second and third elements

8.The applicant’s failure to meet the first element of the general residence requirement means that he cannot be granted Australian citizenship at this time.  That makes it unnecessary for me to consider whether he currently meets the second or third element, and in the particular circumstances of this case, I consider that it would be unwise for me to consider those elements.

9.That is because, should the applicant decide to make a future application for Australian citizenship at a time when the first element (s 22(1)(a)) is met, the Minister will be required to consider the application on the basis of the information made available by the applicant at that time.  To the extent that the application may require the Minister to consider whether to exercise a discretion under subs (4A) and/or (5) of s 22, the Minister should be given the opportunity to consider the entirety of the material submitted with the application, free from the influence of any views the Tribunal may have in relation to the evidence currently before it, or the appropriateness of the exercise of a discretion on the basis of that evidence.

Decision

10.The decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S E Frost

Signed:         ...............[sgd].................................................................
  Associate

Date of Hearing  14 June 2011
Date of Decision  22 June 2011
Applicant self-represented        

Solicitor for the Respondent            Ms K Hooper, DLA Piper