Shane Jopson and Minister for Immigration and Border Protection

[2014] AATA 380

[2014] AATA 380

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6635
Re	Shane Jopson
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	17 June 2014
Place	Brisbane

The Tribunal affirms the decision under review.

..........................Sgd..........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – Whether applicant meets residence requirements – Applicant not a permanent resident at date of application – Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22

CASES

Islam v Minister for Immigration and Citizenship [2011] FCA 933

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

17 June 2014

1. Mr Shane Jopson (“the applicant”) first arrived in Australia in 1996 as the holder of a temporary visa. In 2008, the applicant was granted a DB-861 Skilled – Onshore Independent New Zealand Citizen (permanent) visa which expired in January 2013.
   On 4 September 2013 the applicant made an application for Australian citizenship by conferral. That application was refused by the delegate of the Minister on
   25 November 2013 because the applicant was not a permanent resident.

   RELEVANT LEGISLATION

2. Section 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides:

   21 Application and eligibility for citizenship

   ...

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

   is satisfied that the person:

   ...

   (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

3. Central to the determination of this application is the fact, as verified by the applicant, that on 4 September 2013 the applicant was not a permanent resident. He was also not a permanent resident on 25 November 2013 when the delegate of the Minister made a decision to refuse the application. Therefore, on those dates, the applicant did not satisfy s 21(2)(b) of the Act which required that the applicant be a permanent resident on both relevant dates. This has the consequence that the applicant was not eligible for Australian citizenship by conferral as he was not a permanent resident on both of those dates.

4. There is no power in the Act to dispense with the requirements of s 21(2)(b) of the Act.
   

   [1] [2011] FCA 933 at [18].

   It has been held in Islam v Minister for Immigration and Citizenship[1] that the discretions contained in s 22(6) of the Act are not available to overcome the eligibility requirement under s 21(2)(b) of the Act that the applicant be a “permanent resident” at the time of both the application and the Minister’s decision.

5. I have given consideration to the appropriate decision that should be made by this Tribunal. I consider that the application cannot succeed having regard to the substantive merits of the application.

   DECISION

6. I affirm the decision under review.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member

............................Sgd........................................

Associate

Dated 17 June 2014

Date of hearing	5 June 2014
Applicant	In person
Solicitors for the Respondent	Mr Tom Saunders, Clayton Utz