Wissam Mazraani and Minister for Immigration and Citizenship

[2012] AATA 99

[2012] AATA  99

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/0771
Re	Wissam Mazraani
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member JF Toohey
Date	15 February 2012
Date of written reasons	17 February 2012
Place	Sydney

For the reasons given orally at the hearing of this matter on 15 February 2012, the decision under review is affirmed.

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

Senior Member JF Toohey

CATCHWORDS

CITIZENSHIP – whether applicant satisfies general residence requirement – whether discretion available by which applicant can be taken to satisfy general residence requirement – no evidence to support exercise of discretion – applicant not present in Australia – applicant did not appear at hearing – hearing proceeded – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Senior Member JF Toohey

17 February 2012

These written reasons reflect reasons given orally at the conclusion of the hearing on 10 February 2010.

BACKGROUND

Mr Wissam Mazraani arrived in Australia on 19 June 2007 on a skilled migrant visa which gave him the status of permanent resident.  Movements records of the Department of Immigration and Citizenship show that Mr Mazraani left Australia on 21 July 2007.  He returned on 14 July 2008 and left again on 12 July 2009.  There is no record of him entering Australia since then.  His permanent resident status is not affected by his absence.

In June 2010, Mr Mazraani applied for citizenship.  He was apparently in Lebanon at the time. The Minister for Immigration and Citizenship (the Minister) refused his application on the ground that he did not satisfy the general residence requirement in section 22 of the Australian Citizenship Act 2007 (the Act).

The Tribunal’s file shows that Mr Mazraani lodged his application for review on 3 March 2011.  A preliminary conference in September 2011 was rescheduled at his request.  A second conference was vacated.  It appears, from the file, that there were technical problems contacting Mr Mazraani by telephone.  The next conference was vacated when Mr Mazraani advised that “job obligations” precluded him from attending.  After being relisted at a later date, the conference was again vacated. 

On 20 December 2011, the Tribunal sent a notice to Mr Mazraani advising that his application had been listed for hearing on 15 February 2012.  By email on 9 January 2012, Mr Mazraani asked that the hearing be relisted to a later date because of his “examination period” and because he was “consulting a legal representative”.  The Tribunal refused his request, noting that his application had been before the Tribunal for over ten months and there should be sufficient time before the hearing to engage representation. 

By email on 8 February 2012, the Tribunal asked Mr Mazraani to advise whether he intended appearing at the hearing, and to confirm his telephone number.  By email on 14 February, Mr Mazraani wrote that he “could not confirm [his] availability aside from the suitable legal representation at the specified time.  Any absence would be unintended and out of control”.  On 14 February 2010, Tribunal replied by email, advising Mr Mazraani that the hearing would be proceeding as listed, that the Tribunal would contact him on the specified telephone number, and that his failure to appear could lead to his application being dismissed.

On the morning of 15 February 2010, Mr Mazraani sent a further email attaching documents “to be presented to the tribunal”.  It was not clear from his email whether he proposed to participate in the hearing.

Attempts to contact Mr Mazraani by telephone at the start of the hearing were unsuccessful; a recorded message advised that the telephone for the number he had given was “either switched off or unavailable”.

I am satisfied that Mr Mazraani has been given ample opportunity to be heard and that the hearing should proceed in his absence. It is open to the Tribunal to dismiss his application under section 42A (2) of the Administrative Appeals Tribunal Act1975 for his failure to appear at the hearing. However, it appears that Mr Mazraani misunderstands the legislative criteria for Australian citizenship, and written reasons may assist him. I therefore decided to proceed in his absence, taking into consideration his documents and written submissions, and submissions made on behalf of the Minister, and to provide written reasons.

RELEVANT LEGISLATION

The general eligibility requirements for citizenship by conferral are set out in section 21 of the Act.  They include the requirement to satisfy the general residence requirement in section 22 (1).

To satisfy the general residence requirement, a person must have been:

(a)present in Australia for 4 years immediately before the day he or she made the application; and

(b)not present as an unlawful non-citizen at any time during that period; and

(c)present in Australia as a permanent resident for 12 months immediately before making the application.

Section 22 (1B) provides that a person who was absent for no more than 90 days in the 12 months immediately before making an application, and was a permanent resident during each period of absence, is taken to satisfy the third of these requirements.

Mr Marzraani applied for citizenship on 29 June 2010.  As the Department’s movements record shows, he had been absent from Australia since12 July 2009.  He therefore fails to satisfy the first and third criteria. The saving provision in section 22 (1B)  does not apply as he was absent from Australia for more than 90 days.  It follows that he does not satisfy the general residence requirement.  It does not appear, from his submissions to the Department and the Tribunal, that Mr Mazraani disputes that this is so.

DISCRETION TO WAIVE THE GENERAL RESIDENCE REQUIREMENT

Sub-sections 22 (4A), (5), (5A) (6) and (9) of the Act set out grounds on which the Minister may treat a person as satisfying the general residence requirement who would not otherwise do so. 

Mr Mazraani refers to a number of matters that he says are relevant to his application.  In a “Statement of Claim” submitted to the Department, he said he left Australia one month after first arriving as he could not find work.  He returned a year later when his employment prospects looked brighter.  He was on the verge of being offered employment when global economic conditions led to a downturn.  He did his best to find work but conditions became worse and, in July 2009, he returned to Lebanon.  Once there, his elderly mother became ill and needed care, and he started a university degree with the hope of continuing his study in Australia.  He says he has been involved in Activities which are beneficial to Australia, including volunteer youth work.  He describes his departure in 2009 as “involuntary and temporary”.

Unfortunately for Mr Mazraani, consideration of each of the available discretions shows that none of the matters he refers to assists his application.

The discretions in section 22 (4A) and (5) enable the Minister to treat a person as meeting the second and third criteria of the general residence requirement where their failure to meet those criteria is due to administrative error.  There is nothing to suggest administrative error in Mr Mazraani’s case.

The discretion in section 22 (5A) concerns persons confined in prison or a psychiatric institution, and has no relevance to Mr Mazraani.

The effect of section 22 (6) is to enable the Minister to treat a period as one in which a person was present in Australia as a permanent resident if the person would suffer significant hardship or disadvantage otherwise.  Mr Mazraani’s permanent resident status is not in question.  The discretion is not directed to the broader question of whether a person would suffer hardship or disadvantage by the refusal of citizenship. 

Finally, the discretion in section 22 (9) concerns persons who are the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making their application.  Mr Mazraani does not suggest he fits any of these descriptions. 

There is no other discretion in the Act by which a person who does not satisfy the general residence requirement may be granted citizenship.

CONCLUSION

Mr Mazraani does not satisfy the general residence requirement in the Act and there is no available discretion relevant to his circumstances.

I note that, even if Mr Mazraani satisfied the general residence requirement, or could be taken to satisfy it, section 24 (5) of the Act would preclude the Minister from granting him citizenship at a time when he is not present in Australia.

I affirm the decision under review.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey.

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

Associate

Dated 17 February 2012

Date(s) of hearing	15 February 2012
Applicant	In person
Counsel for the Respondent	Clayton Utz