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

[2024] AATA 3544

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3544 (30 September 2024)

Division: GENERAL DIVISION

File Number(s):       2023/5070

Re: Hansraji Singh

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr D Stevens, Member

Date:30 September 2024

Place:SYDNEY

The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 10 January 2024 to refuse the citizenship application, is affirmed.

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

Mr D Stevens, Member

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – Applicant born in Fiji – citizen of New Zealand - General residence requirement not satisfied: s22 Australian Citizenship Act 2007 (Cth) – Eligibility requirement not satisfied s23(1)(c) Australian Citizenship Act 2007 (Cth) – Issues for Determination – whether a discretion can overcome general residence requirement – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007

SECONDARY MATERIALS

Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022 made under the Australian Citizenship Act 2007

Citizenship Procedural Instructions (CPI)

REASONS FOR DECISION

Mr D Stevens, Member

30 September 2024

1. The Applicant, Hansraji Singh, is a 72-year-old woman who was born in Fiji and who is a citizen of New Zealand.[1] She applied for Australian citizenship by conferral on 21 April 2023.[2] A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused her application on 22 May 2023.[3] Mrs Singh applied to the Tribunal for a review of the delegate’s decision on 11 July 2023.[4] The Tribunal remitted the decision to the Respondent for reconsideration on 23 November 2023.

   [1] T-Documents, T4, p. 114 – 115, 131, 133.

   [2] T4, p. 112 – 135.

   [3] T2, p. 11 – 21.

   [4] T1, p. 1 – 6.

2. On 10 January 2024, a delegate of the Respondent refused Mrs Singh’s application for citizenship.[5] The delegate found that Mrs Singh did not satisfy the general residence requirement under section 22 of the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’). This is the decision which is now under review.

   [5] Supplementary T- Documents, T1, p. 1 - 11

3. For the reasons that follow, the decision of the delegate will be affirmed.

   LEGISLATIVE SCHEME

4. The legislation relevant to this application is found in the Citizenship Act.

5. Subsection 24(1A) of the Citizenship Act provides that the Minister must not approve a person’s citizenship application unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8).

6. In her application, Mrs Singh answered “Yes” to two questions under the heading “Special circumstances:[6]

   “Does the applicant have a permanent loss or substantial impairment of hearing, speech or sight that prevents them from sitting the Australian citizenship test?”

   and:

   “Is the applicant permanently physically or mentally incapacitated and therefore not capable of sitting the Australian citizenship test?”

   [6] T4, p. 112

7. Accordingly, the delegate considered her eligibility under the provisions of subsection 21(3), which appears under the heading:

   Permanent or enduring physical or mental incapacity

8. Subsection 21(3) provides among other things that:

   (3) 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 …

   General residence requirement

9. The ‘general residence requirement’ referred to in paragraph 21(3)(c) of the Citizenship Act, is defined in section 22. Section 22 provides:

   22 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.

10. Subsection 5 of the Citizenship Act provides among other things:

    (1) For the purposes of this Act, a person is a permanent resident at a particular time if …:

    …

    (c) the person is covered by a determination in force under subsection (2) at that time.

    (2) The Minister may, by legislative instrument, determine that:

    (a) persons who hold a special category visa or a special purpose visa; or

    (b) persons who have held a special category visa

    …;

    and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

11. The Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022 made under the Australian Citizenship Act 2007 provides relevantly:

    4 Persons who hold a special category visa

    (1) For subsection 5(2) of the Act, this section applies to a person who:

    (a) is a New Zealand citizen; and

    (b) holds a special category visa; or

    (c) both:

    (i) held a special category visa on or after 1 July 2023; and

    (ii) holds a permanent visa which was granted to the person on or after 1 July 2023.

    (2) The person is taken to have become a permanent resident on 1 July 2022 if the person was granted a special category visa before 1 July 2022

    Special residence requirements

12. There are two special residence requirements referred to in subsection 21(3)(c). The first is that defined in section 22A of the Citizenship Act. It provides conditions that must be met, including:

    (f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application

13. The second is that defined in section 22B of the Citizenship Act. It provides conditions that must be met, including:

    (f) the applicant was a permanent resident for the period of 12 months immediately before the day the applicant made the application

    Defence service requirement

14. The defence service requirement referred to in subsection 21(3)(c), is defined in section 23 of the Citizenship Act, and provides that:

    a person satisfies the defence service requirement if the person has completed relevant defence service.

    HEARING AND ISSUES

15. The matter was heard on 17 September 2024. Mrs Singh was represented by her son-in-law, Mr Sylesh Charan, who appeared via telephone. Mr Charan also gave evidence. The Respondent was represented by Mr Zhang of Clayton Utz, who appeared via video.

16. At the hearing the parties agreed that Mrs Singh

    a)    is a New Zealand citizen;

    b)    lodged an application for Australian citizenship by conferral on 21 April 2023;

    c)    was present in Australia for the period of 4 years immediately before the day she lodged the application;

    d)    was not present in Australia as an unlawful non-citizen at any time during that 4 year period;

    e)    was granted a special category visa before 1 July 2022; and

    f)     became a permanent resident of Australia on 1 July 2022.

17. Consequently, the initial issue to be determined is whether, pursuant to paragraph 21(3)(c) of the Citizenship Act, Mrs Singh is eligible to become an Australian citizen insofar as she:

    satisfied the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfied the defence service requirement (see section 23), at the time [she] made the application.

18. If she did not meet this eligibility requirement to become a citizen, the Applicant contends “there are loop holes” which the Respondent “is not taking … into account”.[7] At the hearing, Mr Charan submitted that the decision maker can “bend the rules on a person-to-person basis”. I have treated these submissions as references to provisions such as exemptions or discretions which may be available to the Minister in the decision-making process. The further issue that then arises for consideration is whether there is any discretion available for citizenship by conferral in the event that Mrs Singh does not meet the requirements of paragraph 21(3)(c) of the Citizenship Act.

    [7] Email from Sylesh Charan to Sydney Registry, Administrative Appeals Tribunal, 1 November 2023, point 3

    EVIDENCE AND CONSIDERATION

19. At the hearing, Mr Charan gave evidence that before the Applicant applied for citizenship, Mr Charan viewed the Respondent’s website. He said that the website referred to only two criteria regarding a person in Mrs Singh’s position applying for citizenship, namely that she was a New Zealand citizen and that she was over 60 years of age. He also gave evidence that he telephoned the Respondent and spoke to an officer who confirmed that those were the two criteria. Mr Charan said there was no reference to any required period as a permanent resident. He submitted that this was a major point of contention for the Applicant.[8]

    [8] See also Email from Sylesh Charan to Sydney Registry, Administrative Appeals Tribunal, 1 November 2023, points 1 and 2, and T1, p. 2-3

20. The Respondent’s representative did not concede that this was the information on the website at the time, nor that the information had been confirmed in any telephone conversation with Mr Charan. The Respondent’s representative submitted that regardless of what Mr Charan may or may not have been told, the Tribunal was required to consider the structure and provisions of the Citizenship Act in coming to its decision.

21. Mrs Singh and Mr Charan may have been of the view at the time that Mrs Singh’s application was lodged that there were only two factors relevant to Mrs Singh’s application, namely her New Zealand citizenship and her age. If they were of that view, they were wrong, regardless of whether they formed that view from reading the Respondent’s website or from speaking with an employee of the Respondent. If they were misled in any way, that is unfortunate, and I understand why they may be upset. However, insofar as it was wrong, their interpretation of the law and the applicable criteria was not relevant to the delegate in reaching their decision, and it is not relevant to my role in considering the matter.

22. The general residence requirement referred to in paragraph 21(3)(c), requires among other things that the applicant for citizenship was present in Australia as a permanent resident for the period of 12 months immediately before the day they made the application (paragraph 22(1)(c)). It is not in dispute that Mrs Singh was present in Australia as a permanent resident from 1 July 2022, that is for a little under 9 months rather than the required 12 months, at the time she lodged her application on 21 April 2023. She therefore does not meet the general residence requirement.

23. The first special residence requirement referred to in paragraph 21(3)(c), namely that set out at section 22A, requires among other things that the applicant for citizenship was a permanent resident for the period of 2 years immediately before the day they made the application (paragraph 22A(1)(e)). As Mrs Singh was present in Australia as a permanent resident for a little under 9 months, she does not meet this special residence requirement.

24. The second special residence requirement referred to in paragraph 21(3)(c), namely that set out at section 22B, requires among other things that the applicant for citizenship was a permanent resident for the period of 12 months immediately before the day they made the application (paragraph 22B(1)(f)). As Mrs Singh was present in Australia as a permanent resident for a little under 9 months, neither does she meet this special residence requirement.

25. The defence service requirement referred to in paragraph 21(3)(c), requires the applicant for citizenship to have completed relevant defence service. At the hearing, Mr Charan agreed that Mrs Singh had not done so, and that this requirement was not applicable to her application.

26. Mrs Singh did not meet any of the eligibility requirements set out in section 21(3)(c) of the Citizenship Act at the time she applied for citizenship. The Minister could not be satisfied that Mrs Singh was eligible to become an Australian citizen at the time she made her application.

    Are there any discretionary matters for consideration which may assist the Applicant?

27. The Applicant contends “there are loop holes” which the Respondent “is not taking … into account”.[9] At the hearing, Mr Charan submitted that the decision maker can “bend the rules on a person-to-person basis,” and can “think outside the box”. I have treated these submissions as references to provisions such as exemptions or discretions which may be available to the Minister in the decision-making process.  

    [9] Email from Sylesh Charan to Sydney Registry, Administrative Appeals Tribunal, 1 November 2023, point 3

    A. General residence requirement

28. The Respondent notes that section 22 of the Citizenship Act “contains a number of ministerial discretions that may be applied to assist a person to meet the residence requirements for conferral of Australian citizenship”.[10] (The Applicant has had the advantage of subsections 22(1A) and (1B) being applied to her application in that periods of her absence from Australia were disregarded.) These each require that the Minister be satisfied of a matter. For this to occur, there must be evidence of that matter for the Minister to consider.

    [10] R SOFIC [34]

29. The Respondent further notes that when Mrs Singh was asked in her application “Is the applicant seeking a discretion under the Ministerial discretions?”, her response was “No”.[11]

    [11] R SOFIC [36], T4, p. 116

30. Relevant provisions are found at subsections 22(2), 22(4A), 22(5), 22(5A), 22(6), 22(9), and 22(11). At hearing, Mr Charan agreed that the provisions at subsections 22(2) (applicants born in Australia or who were previously an Australian citizen), 22(4A) (periods during which an applicant was considered to be an unlawful non-citizen), 22(5A) (applicants who had been confined in either a prison or a psychiatric institution), 22(9) (applicant is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen), and 22(11) (applicant holds a permanent visa granted to them because they were in an interdependent relationship with an Australian citizen) were not relevant to Mrs Singh’s application. He sought to rely upon the discretions at subsections 22(5) and 22(6).

31. Subsection 22(5) appears under the heading “Ministerial discretion – administrative error”. It provides:

    For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

32. At the hearing, Mr Charan referred to his evidence that the Respondent’s website referred to there being only two criteria for conferral of citizenship upon an applicant in Mrs Singh’s situation, with no reference to a requirement of a period as a permanent resident, and that this had been confirmed to him in a telephone conversation with an officer of the Respondent.[12] He submitted that this may have involved an administrative error.

    [12] See also Email from Sylesh Charan to Sydney Registry, Administrative Appeals Tribunal, 1 November 2023, points 1 and 2, and T1, p. 2-3

33. Mr Zhang for the Respondent submitted that subsection 22(5) does not provide a general discretion in relation to an administrative error, but rather allows only for a period of time to be treated as a period during which a person was a permanent resident, where the reason that they were not a permanent resident was because of an administrative error. He submitted that the reason that Mrs Singh was not a permanent resident for the period 21 April to 30 June 2022 was because of the date of a particular Determination, and so arose from the details of a legislative change rather than from an administrative error.

34. In my view, if I accept Mr Charan’s evidence regarding the contents of the website, and his account of his subsequent conversation with a departmental officer, this does not amount to an administrative error that led to Mrs Singh not being treated as a permanent resident for a period. In other words, if these were administrative errors, they were not errors that are relevant for the purposes of subsection 22(5).

35. Subsection 22(6) provides:

    For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

    (a) the person was present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and

    (b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

36. Mr Charan sought to rely upon this discretion and referred to “significant disadvantage”. He submitted that if Mrs Singh was not granted citizenship and the law changed in future such that non-citizens could not remain in the country, Mrs Singh would be disadvantaged in that she would have to return to Fiji where she had only one distant relative and no house, while all her family would remain in Australia. Mr Charan also submitted that if the law changed in future to reduce the entitlements and benefits that non-citizens such as Mrs Singh received compared to those received by citizens, Mrs Singh may be disadvantaged if her family decide for financial reasons that she must return to Fiji.

37. Mr Zhang for the Respondent submitted that this was all speculative and that the Tribunal should only consider actual and significant hardship or disadvantage that the Applicant will suffer.

38. Mr Charan gave evidence that the refusal of her citizenship and the extended review process had increased the level of Mrs Singh’s medical depression and reduced her confidence. Mr Zhang noted that this was not supported by medical evidence. I am willing to accept that this could well be the effect upon a person of Mrs Singh’s age and in her situation. However, Mr Charan also gave evidence that Mrs Singh was being cared for by her General Practitioner and that a treatment plan was in place.

39. I am not satisfied on the evidence available to me that Mrs Singh “will suffer significant hardship or disadvantage” if a period of time is not treated as a period of permanent residence, and her application is refused as a result. The provision applies where the Minister is satisfied that the person “will suffer”. This requires evidence of an inevitability or great likelihood. Other than a possible deterioration of her existing depression, which is being medically managed, there is no evidence before me of any actual change in Mrs Singh’s circumstances resulting from her application being refused. I do not accept that this detriment amounts to significant hardship or disadvantage. The other submissions amount to concerns about an uncertain future in which legislation may or may not change, with no evidence of inevitability or great likelihood.

    B. Section 22A Special residence requirement

40. In her application when asked “Is the Applicant applying under the Special Residence requirement?”, Mrs Singh responded “Yes”. The discretion she selected was “Seeking to engage in activities of benefit to Australia”.[13]

    [13] T4, p. 116

41. The relevant provision here is section 22A of the Citizenship Act. To satisfy this special residence requirement, the applicant must among other things seek “to engage in an activity specified under subsection 22C(1)”. Relevant activities are set out under Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 and include participation in an Australian team in the Olympic, Paralympic or Commonwealth Games.[14]

    [14] Supplementary T – Documents, T1, p. 23

1. At the hearing, Mr Charan agreed that Mrs Singh did not seek to engage in any relevant activity. Accordingly, the associated discretions do not apply.

   C. Section 22B Special residence requirement

2. The relevant provision is section 22B of the Citizenship Act. To satisfy this special residence requirement, the applicant must among other things seek “to engage in work of a kind specified under subsection 22C(3) and the person is required regularly to travel outside Australia because of that work”. Relevant activities are set out under Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021, and include work done on duty by a crew member of a ship or aircraft; work done by the chief executive officer of an S&P / ASX AII Australian 200 listed company; or work done as a scientist employed by the Commonwealth Scientific and Industrial Research Organisation.[15]

   [15] Supplementary T – Documents, T1, p. 23 - 24

3. Mrs Singh did not nominate this requirement in her application. At the hearing, Mr Charan agreed that she did not seek to engage in any relevant work. Accordingly, the associated discretions do not apply.

   D. Defence service requirement

4. The relevant provision is section 23 of the Citizenship Act. At the hearing, Mr Charan agreed that this requirement is not relevant to Ms Singh’s application.

   Other eligibility provisions

5. Mrs Singh’s application was considered under subsection 21(3) of the Citizenship Act. The other eligibility provisions are contained within subsections 21(2), (4), (5), (6), (7) and (8). There was no submission at the hearing that this was not the appropriate provision. However, the Applicant contends generally that there are provisions that the Respondent “is not taking … into account”.[16]

   [16] Email from Sylesh Charan to Sydney Registry, Administrative Appeals Tribunal, 1 November 2023, point 3

6. The “General eligibility” provision at subsection 21(2) contains a requirement (subsection 21(2)(c)) which is identical to section 21(3)(c). Mrs Singh’s position would have been no better if her application had been considered under subsection 21(2) instead of subsection 21(3).

7. The provision at section 21(4) appears beneath a heading, “Person aged 60 or over or has hearing, speech or sight impairment”. Mr Charan raised at the hearing that Mrs Singh is both over 60, and has a sight impairment in that she has lost her right eye. Section 21(4)(d) contains a requirement identical to section 21(3)(c). Mrs Singh’s position would have been no better if her application had been considered under subsection 21(4) instead of subsection 21(3).

8. The provision for “Person aged under 18” at section 21(5) does not apply as Mrs Singh was born in 1952.[17]

   [17] T4, p. 115 and 131

9. The provision at section 21(6) applies to a “Person born to former Australian citizen”. In her application when asked if she “was born outside Australia to a former Australian citizen?”, Mrs Singh responded “No”.[18] At the hearing, Mr Charan agreed that the provision did not apply.

   [18] T4, p. 112

10. The provision at section 21(7) applies to a “Person born in Papua”. Mrs Singh was born in Fiji.[19] At the hearing, Mr Charan agreed that the provision did not apply.

    [19] T4, p. 120 and 131

11. The provision at subsection 21(7) relates to stateless persons. In her application Mrs Singh stated that she is a current citizen of New Zealand, having acquired citizenship on 5 April 2007.[20] At the hearing, Mr Charan agreed that the provision did not apply.

    [20] T4, p. 114

    APPLICANT’S FURTHER SUBMISSIONS

12. Mr Charan submitted that Mrs Singh was not a danger to the country, and that she was not a burden as she was cared for by her family. He submitted that she is an elderly person, and nobody knows what her remaining life span will be. He said that hers was a genuine application. He raised that it should be possible to “bend the rules on a person-to-person basis,” and to “think outside the box”.

13. However, these are not factors that assist Mrs Singh in meeting the residence requirements, or that allow them to be waived. Mrs Singh did not satisfy the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or the defence service requirement (see section 23), at the time she applied for citizenship, and so she does not meet the eligibility requirement of subsection 21(3) of the Citizenship Act. Neither would she meet the eligibility requirements under any of the other relevant provisions of section 21 of the Citizenship Act. There is no evidence that any of the ministerial discretions available within sections 22, 22A or 22B of the Citizenship Act are available to assist her in meeting any of the eligibility requirements. As a result, her application cannot succeed.

14. The Respondent submits that Mrs Singh “is not prevented from applying for Australian citizenship again, at a time when she would not be prevented from meeting the general residence requirement by virtue of the operation of s22(1)(c)” of the Citizenship Act.[21] Mrs Singh may wish to seek advice regarding applying again for Australian citizenship.

    [21] R SOFIC [41]

    DECISION

15. The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 10 January 2024 to refuse the citizenship application, is affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Mr D Stevens, Member

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

Associate

Dated: 30 September 2024

Date(s) of hearing:	17 September 2024
Advocate for the Applicant:	Mr S Charan, relative
Solicitors for the Respondent:	Mr A Zhang, Clayton Utz