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

Tahri and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 2130 (28 June 2024)
Division:GENERAL DIVISION
File Number(s):2023/6490
Re:Abdelmoumen TAHRI
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President A Younes
Date:28 June 2024
Place:Sydney

The Tribunal affirms the decision under review.
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Deputy President A Younes
CATCHWORDS
CITIZENSHIP — Application for conferral of Australian citizenship — permanent resident — general residence requirements — special residence requirements — overseas absences — engage in activities that are of benefit to Australia — Whether sections 22A or 22B of the Australian Citizenship Act 2007 (Cth) are satisfied — Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
INSTRUMENTS
Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022
Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021
REASONS FOR DECISION
Deputy President A Younes
28 June 2024

This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 29 August 2023 to refuse the Applicant’s application for Australian citizenship by conferral (the delegate’s decision). The delegate refused the application on the basis that the Applicant did not satisfy the requirements of s 21(4)(d) of the Australian Citizenship Act 2007 (Cth) (the Act).
On 2 September 2023, the Applicant made an application to the Administrative Appeals Tribunal (the AAT/Tribunal) for review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
BACKGROUND
The Applicant is a New Zealand citizen who was born on 23 April 1963. His citizenship application has been assessed on the basis of the 'Person aged 60 or over' requirements.
The Applicant was first granted a Special Category (subclass 444) visa (SCV) on 13 February 2006. Pursuant to s 5(2) of the Act and paragraph 4(2) of the Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022, he was taken to have become a permanent resident on 1 July 2022.
On 28 July 2023, the Applicant made the citizenship application.
RELEVANT LEGISLATION
Sub-section 21(4)(d) of the Act provides that:
(4)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(d) 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 requirements
The general residence requirements are set out in s 22 of the Act, which provides that:
(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.
…
Special Residence Requirements
Section 22A provides for special residence requirements relating to persons engaging in activities that are of benefit to Australia, namely:
(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; and
(c)    the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d)    the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e)    the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f)    the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g)    the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.
…
Section 22B of the Act deals with special residence requirements for persons engaged in particular kinds of work requiring regular travel outside Australia. It provides:
(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; and
(b)    the following apply:
(i)the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii)for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
(c)    the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and
(d)    the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and
(e)    the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and
(f)    the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and
(g)    the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.
…
Section 23 of the Act provides that for the purposes of s 21, a person satisfies the defence service requirement if the person has completed relevant defence service, as defined.
Overseas absences
Sub-section 22(1A) of the Act states that 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.
Sub-section 22(1B) states that 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.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2024 (Exhibit 1).
·Applicant’s Submissions dated 11 February 2024 (Exhibit 2).
·Bundle of documents filed on 31 May 2024 (Exhibit 3).
·T-Documents filed on 3 October 2023 (Exhibit 4).
HEARING
On 13 June 2024, the Applicant attended the hearing and gave evidence in-person. Essentially the Applicant confirmed the information in the movement records, namely that he had departed Australia on 5 February 2019 and returned on 20 June 2023.
ISSUE
In his application for Australian Citizenship by Conferral, the Applicant requested residence exemption under the special residence requirements, namely that he had engaged in work that required regular overseas travels.[1]
[1] Ex 4, 31.
The issue before the Tribunal is therefore whether the Applicant satisfies the special residence requirements.
FINDINGS & REASONS
The Applicant does not dispute that he does not meet the general residence requirements under s 22(1).
As far as Ministerial discretion is concerned, the Applicant has not claimed and there is no evidence before the Tribunal that he satisfies ss 22(4A), (5), (5A), (6), (9), (10), or (11) of the Act.
The Applicant departed Australia on 5 February 2019, and returned on 20 June 2023.[2] The Applicant was therefore absent from Australia for a period of 1423 days in the four year period immediately before the date of the application, in the period 29 July 2019 to 28 July 2023. The period of absence of 1423 days clearly exceeds the 12 month period referred to in s 22(1A) of the Act and consequently, the Applicant does not meet the requirements of s 22(1A) of the Act.
[2] Ex 4, 61-62.
In relation to s 22(1B) of the Act, it is not in dispute that the Applicant was absent from Australia for a total of 327 days in the 12 month period immediately before the date of the citizenship application. The Applicant was absent from Australia for 327 days in the period from 29 July 2022 to 28 July 2023.[3] That period of absence exceeds the 90 day period provided for in s 22(1B) and as such the Applicant does not meet s 22(1B).
[3] Ex 4, 61-62.
In support of the application for review, the Applicant provided a statement dated 11 February 2024, as follows:
…
I have been refused citizenship due to the fact that I have not been residing in Australia for four years. As I understand the requirements of becoming a proud citizen of this country I would like to express my circumstances which has led me to be overseas during that period of time.
I had travelled to Algeria in 2019 with intent to visit my parents and extended family. During this time the COVID-19 pandemic took place, trapping me from leaving the country due to the strict border controls and impossibility to travel without risking my own health. To keep myself afloat financially I opened a furniture business in Algeria for about a year and a half. I am planning to shut down this business due to its lack of success.
As well as my circumstance, I have an entrenched connection with the country and those that reside there. Most of my friends I have known from New Zealand have become Australian citizens and I continue to make relationships with Australians. Since arriving in Australia in 2006, I took pride in my contribution to my local community and occupation as a Security officer for multiple businesses.
My family also have built foundations in this country with my two sons Ibrahim and Chouaib Tahri currently residing in Australia with my two grandchildren.
My daughter Elzohra Tahri was born in Sydney and wishes to complete her studies in Australia. My deceased son Mohamed Tahri was buried in Sydney which deepens my desire to gain citizenship as I want to stay close to him.
In closing, I implore you to take my circumstances and social position into consideration as well as recognise the depth of my integration into Australian society. I hope this letter expresses the sense of belonging and commitment I hold for this wonderful country.
…
During the hearing, the Applicant gave evidence that COVID-19 restrictions impacted on his ability to return to Australia.
The Applicant has provided letters of support and evidence of ownership of a furniture business in Nigeria. The Extract of Business Registration for that business describes the business as “Retail of furniture and furniture related products.”[4]
[4] Ex 4, 53.
Relevantly, the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 made under s 22C of the Act, refers to the following kinds of work specified for the purposes of s 22B(1)(a):
(2)Work that is:
(a)    done on duty by a crew member of a ship or aircraft; or
(b)    done on duty on a resources installation or a sea installation; or
(c)    done in the course of duty by an employee of an S&P/ASX All Australian 200 listed company in one of the following positions:
(i)a chief executive officer; or
(ii)an executive manager; or
(d)    research and development of benefit to Australia done as a scientist who has been awarded a Doctor of Philosophy in their field of specialty and is employed by an Australian university; or
(e)    done in the course of duty as a scientist employed by:
(i)the Commonwealth Scientific and Industrial Research Organisation; or
(ii)a medical research institute that is a member of the Association of Australian Medical Research Institutes; or
(f)    done in the course of duty as a medical specialist of internationally recognised record of exceptional and outstanding achievement in their field of speciality, who:
(i)is a fellow of an organisation listed in column 1 of an item in the table in clause 1 in Schedule 1 to the Health Insurance Regulations 2018; and
(ii)holds a qualification relevant to the organisation.
(3)Work that is in one of the following areas:
(a)    academia and research; or
(b)    the arts; or
(c)    a profession; or
(d)    a sport;
where the particular kind of work is done by a person who is or has been a primary holder of a relevant talent visa and the visa was granted based on an internationally recognised record of exceptional and outstanding achievement in the same area.
On the evidence, the Tribunal finds that the furniture business in Algeria is not work of any kind specified in the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021. Therefore the Tribunal finds that the Applicant does not satisfy the special residence requirements under s 22B of the Act.
The Applicant has not claimed and there is no evidence that the Applicant meets the requirements under s 22A of the Act, namely engaging in activities that are of benefit to Australia.
On the evidence, the Tribunal finds that the Applicant does not meet the special residence requirements under ss 22A or 22B.
The Applicant has not claimed and there is no evidence that the Applicant meets the defence service requirements under s 23 of the Act.
In light of the above, the Tribunal finds that the Applicant does not meet s 21(4)(d) of the Act.
For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the Australian citizenship by conferral.
DECISION

32.     The Tribunal affirms the decision under review.

33.

34.     I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes.

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Associate
Dated: 28 June 2024

Date(s) of hearing:
13 June 2024

For the Applicant: In person

Solicitors for the Respondent: Ms S Giannopoulos, HWL Ebsworth Lawyers

[2024] AATA 2130

28 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	13 June 2024
For the Applicant:	In person
Solicitors for the Respondent:	Ms S Giannopoulos, HWL Ebsworth Lawyers