Seyyed Ahamed and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 71

Seyyed Ahamed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 71 (24 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3656

Re:Mohamed Fawas Seyyed Ahamed

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:24 January 2018

Place:Canberra

The Tribunal affirms the reviewable decision of the Minister’s delegate dated 16 June 2017.

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Deputy President Gary Humphries

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether Applicant satisfies the general residence requirement or the special residence requirement – whether any discretion exists to grant citizenship in the circumstances – the law applied by the Tribunal is no different to the law applied by the original decision-maker – reviewable decision affirmed.

Legislation

Australian Citizenship Act 2007 ss 21, 22, 22A, 22B, 22C, 24

Special Residence Requirement (Section 22C) – IMMI 13/056 F2013L01123.

REASONS FOR DECISION

Deputy President Gary Humphries

24 January 2018

Introduction

1. Mr Mohamed Fawas Seyyed Ahamed, the Applicant, has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) – the Respondent in these proceedings.

2. On 11 April 2017, Mr Seyyed Ahamed applied for Australian citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 (the Act). On 16 June 2017, a delegate of the Minister refused to approve this application because the delegate was not satisfied that Mr Seyyed Ahamed met the residence requirements set out in s 21(2)(c) of the Act.

   Background

3. Mr Seyyed Ahamed was born in Sri Lanka in September 1972 and first arrived in Australia on 21 September 2010. He is currently the holder of a Subclass 887 (Permanent) visa which was granted on 27 November 2015.

4. Mr Seyyed Ahamed has been employed by Warmoll Foods Pty Ltd as a Business Development Manager since 1 July 2013. On 11 March 2013, his family, including his wife and three children, began living with him in Australia.

   The evidence

5. Mr Seyyed Ahamed told the Tribunal that he has been absent from Australia because of his work commitments which require him to regularly pursue his employer’s interests overseas. In a letter dated 31 March 2017, Mr Patrick Warmoll, Mr Seyyed Ahamed’s employer, corroborates the fact that much of Mr Seyyed Ahamed’s travel is for his work promoting Australian beef products in the Middle Eastern market.

6. The Minister, in his Statement of Facts, Issues and Contentions, provided the following table which gives a conspectus of Mr Seyyed Ahamed’s movement history from the period 11 April 2013 to 11 April 2017 – capturing the four year period before his application for Australian citizenship. (In the table, the ‘Days absent’ figure is calculated from the days between, but not including, the departure and arrival dates.) In the hearing, Mr Seyyed Ahamed told the Tribunal that this record is accurate.

Departure Date	Return date	Days absent	Visa status
Four year period commenced on 11 April 2013
10 May 2013	9 June 2013	29	VF-475
8 September 2013	12 October 2013	33	VF-475
1 December 2013	1 March 2014	89	VF-475
11 April 2014	11 May 2014	29	VF-475
29 July 2014	29 August 2014	30	VF-475
11 October 2014	25 October 2014	13	VF-475
28 November 2014	13 February 2015	76	VF-475
14 March 2015	22 March 2015	7	WB-020
19 April 2015	5 May 2015	15	WB-020
30 May 2015	6 June 2015	6	WB-020
21 August 2015	19 September 2015	28	SP-489/WB-020
7 December 2015	18 January 2016	41	VB-887
19 February 2016	1 March 2016	10	VB-887
One year period commenced on 11 April 2016
25 April 2016	28 May 2016	32	VB-887
18 July 2016	6 August 2016	18	VB-887
1 October 2016	1 November 2016	30	VB-887
8 December 2016	3 March 2017	84	VB-887
Citizenship application on 11 April 2017
16 July 2017	Unknown	Unknown	VB-887

Total  days absent during the 1 year period	164 days
Total days absent during the 4 year period	570 days

The relevant legislation

1. The Tribunal’s jurisdiction to review the decision of the Minister’s delegate to approve or refuse to approve a person becoming an Australian citizen is conferred by s 52(1)(b) of the Act.

2. Section 24(1) provides that If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

3. However, s 24(1A) provides that The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

4. For the purposes of the current application, s 21(2) of the Act relevantly provides:

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

   (c) 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

5. Section 22(1) of the Act, in turn, sets out the general residence requirement as follows:

   (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.

6. Furthermore, ss 22(1A) and (1B) deem that persons who have been absent from Australia for defined periods are taken to have been present in Australia during those periods if certain conditions can be satisfied. The sections provide as follows:

   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 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.

7. Section 22A, 22B and 22C, meanwhile, set out Special residence requirements which afford some exceptions to the general residence requirement.

8. Section 22A provides:

   Special residence requirement—persons engaging in activities that are of benefit to Australia

   (1) Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

   (a) the following apply:

   (i) the applicant is seeking to engage in an activity specified under subsection 22C(1);

   (ii) the applicant’s engagement in that activity would be of benefit to Australia;

   (iii) the applicant needs to be an Australian citizen in order to engage in that activity;

   (iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and

   (b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity…

9. Section 22B provides:

   Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia

   (1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

   (a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work…

10. Section 22C provides:

    22C Special residence requirement—legislative instruments

    (1) The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).

    (2) The Minister may, by legislative instrument, specify organisations for the purposes of paragraph 22A(1)(b).

    (3) The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).

11. Finally, the Minister has issued a Legislative Instrument for s 22C titled, ‘Special Residence Requirement’ (the Instrument), dated 29 May 2013, which lists various activities, organisations and kinds of work related to these Special Residence Requirement sections.

12. The Instrument provides a number of ways that a person may satisfy the special residence requirement. For example, if a person is engaged in work as a member of the crew of a ship, or a person is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa, then the special residence requirement may be satisfied.

13. However, it was common ground between the parties that the provisions in the Instrument did not apply to Mr Seyyed Ahamed.

    Issues

14. There are two issues that the Tribunal must consider:

    (a)In respect of Mr Seyyed Ahamed’s application for Australian citizenship by conferral, the Tribunal must be satisfied that he meets the residence requirements set out in s 21(2)(c) of the Act.

    (b)If he does not meet these residence requirements, the Tribunal must determine whether it has any discretion to approve his application to become an Australian citizen.

    Consideration

15. The Tribunal makes the preliminary remark that although its function extends to conducting independent merits review of decisions made by Commonwealth government bodies, and it can, in the right circumstances, affirm, vary or set aside reviewable decisions of these bodies, the Tribunal does not have the power to apply a different set of rules to the facts: the law applied by the Tribunal is no different to the law applied by the original decision-maker. That is, the Tribunal has no wider powers than the original decision-maker; and the Act is quite specific about the circumstances in which Australian citizenship may be granted.

16. Section 22(1A)(b) of the Act allows Mr Seyyed Ahamed, in his quest to satisfy the general residence requirement, to be absent from Australia for a period of not more than 12 months in the four year period immediately prior to lodging his application; he was, in fact, absent for 570 days in this period. Likewise, s 22(1B)(b) of the Act allows him to be absent from Australia for not more than 90 days in the 12 month period immediately prior to lodging his application; he was absent for 164 days in this period.

17. Having been absent from Australia for a total of 570 days in the four year period immediately prior to lodging his application for Australian citizenship by conferral; and for a period of 164 days in the 12 month period immediately prior to the lodgement of that application, Mr Seyyed Ahamed is faced with the insurmountable barrier that he cannot satisfy the requirements set out in s 22(1A)(b) and s 22(1B)(b) of the Act and, therefore, cannot meet the general residence requirement in s 22(1).

18. Nor, in his particular circumstances, does Mr Seyyed Ahamed meet any of the special residence requirements as set out in ss 22A, 22B and 22C: he is not, for example, employed as a member of the crew of a ship, nor is employed by, for instance, A Department, an Executive Agency, or a Statutory Agency of the Commonwealth. Accordingly, pursuant to section 21(2)(c), he cannot satisfy the general residence requirement, nor the special residence requirement. Therefore, pursuant to s 24(1A), the Minister, and subsequently the Tribunal, must not approve his application for Australian citizenship.

19. Having established that he does not meet the residence requirements, is there a discretion to approve his application? Unfortunately for him, the answer is no. Section 24(2) confers a discretion on the Minister to refuse an applicant citizenship even where they meet the requirements of s 21, but there is no mirroring discretion to grant citizenship where an applicant does not meet those requirements. The language of s 24(1A) specifically prevents the Minister, and subsequently the Tribunal, from the use of any discretion to grant citizenship in these circumstances.

20. The Tribunal observes that Mr Seyyed Ahamed is making a valuable contribution to Australian enterprise and appreciates that, by all accounts, he appears to exhibit the hallmarks of good Australian citizenship. The Tribunal acknowledges that he is, indeed, a valued and dedicated employee who, through his substantial efforts and business acumen, has produced significant results for his employer’s business overseas. As stated, however, the Act is quite specific and quite directive about its requirements, and the Tribunal cannot apply the law to produce a favourable outcome for Mr Seyyed Ahamed.

21. The Tribunal notes that Mr Seyyed Ahamed may re-apply for Australian citizenship in the future.

    Conclusion

22. Accordingly, the Tribunal affirms the reviewable decision of the Minister’s delegate dated 16 June 2017.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate

Dated: 24 January 2018

Date of hearing:	17 January 2018
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz