Yang and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1192

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1192

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1046

GENERAL ADMINISTRATIVE DIVISION		)
Re		YUZHOU YANG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr M.A. Griffin, Member

Date30 November 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr M.A. Griffin, Member

CATCHWORDS

CITIZENSHIP – application for citizenship refused - insufficient period of permanent residency - injuries sustained as victim of criminal act - discretion to treat temporary residence as permanent - change in circumstances - no hardship or disadvantage - no basis for exercise of discretion - decision affirmed

Australian Citizenship Act 1948, section 13

REASONS FOR DECISION

30 November 2005 M.A. Griffin             

1.      The Applicant, Mr Yang Yuzhou, seeks review of the decision, made by a delegate of the Respondent Minister, to refuse his application for the grant of Australian citizenship.

2.      In March 2002, Mr Yang came to Australia to study. In June 2003, whilst working the night shift as a shop attendant, Mr Yang was assaulted during a shop robbery. He was knocked unconscious and sustained injuries to his face, shoulder and back.  These injuries restricted his ability to work.

3.      Mr Yang was granted permanent residence on 19 February 2004.  He applied for the grant of citizenship on 27 July 2005.  His application was refused because he had not been present in Australia as a permanent resident for not less than two years during the period of five years immediately preceding the date of his application. The refusal decision referred to the discretion which allows “periods of temporary residence to be counted as periods of permanent residence if the applicant would suffer significant hardship or disadvantage” but concluded that Mr Yang did not meet this criterion (Tp.11).

4.      At the time of his application, Mr Yang had spent the following time in Australia as a permanent resident:

·538 days in the two years prior to the application, and

·538 days in the five years prior to the application.

5.      Mr Yang recognised in his application that his period of permanent residency was insufficient to meet the criterion for the grant of citizenship (Tp.58) and thus included a statement of the significant hardships and disadvantages he would suffer if he was not granted citizenship.  These factors were as follows:

·“For a new immigrant, the compensation issues coming after that [the assault] are the holy disasters

·“I don’t have a job because of the injury…constantly waiting for the approval of any treatment claim from the insurance company”.

·“…I’m not protected by any explicit welfare system…I couldn’t use the job network…because I am not covered by Centrelink”.

6.      The application included a medical certificate which stated that Mr Yang was restricted to working four hours a day, three days a week and that he was not to lift weights heavier than 7.5kg (Tp.64). The application also stated that “a concrete citizenship identity is more beneficial than any consolation to help me secure my life and overcome the hard time”.

Consideration

7. The relevant legislation is section 13 of the Australian Citizenship Act 1948 (“the Act”) which sets out the circumstances in which the Minister may grant a certificate of Australian citizenship to a person.  Subsections 13(1) and 13 (4) relevantly provide:

“13     Grant of Australian citizenship

(1)Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a)       the person is a permanent resident;

(b)       the person has attained the age of 18 years;

(c)       the person understands the nature of the application;

(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)        the person is of good character;

(g)       the person possesses a basic knowledge of the English language;

(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

…

(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and

(b)       subject to paragraph (a), the Minister may, in the Minister's discretion:

(i)        treat a period during which the applicant:

(A)      was a permanent resident;

(B)      was not present in Australia; and

(C)was engaged in activities that the Minister considers beneficial to the interests of Australia;

as a period during which the applicant was present in Australia as a permanent resident;

(ii)treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;

(iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant—treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or

(v)if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia—treat the period as a period during which the applicant was present in Australia as a permanent resident. “

8.      In his oral evidence, Mr Yang revealed significant recent changes in his circumstances. He said that his condition had improved as a result of medical treatment he had received. He said he had a medical assessment on 5 November 2005 and was now fit for full time work, albeit with the continuing restriction on lifting weights above 7.5 kg.  Mr Yang is still unable to work at night due to the trauma from the night assault.

9.      Mr Yang also revealed that he is now eligible for assistance from the Commonwealth Rehabilitation Service, which he said is better than the Centrelink Jobsearch Network.  Moreover, Mr Yang revealed that he has been successful in obtaining the Special Benefit allowance from Centrelink which entitles him to a Healthcare card and a fortnightly payment of some $400.00.  Furthermore, there was an arbitration decision made in his favour which requires the insurer to pay his medical expenses and a regular financial payment in the amount of $70.00 per week.

10.     Mr Yang acknowledged that he will be eligible for the grant of citizenship on 19 February 2006 and at which time he will be eligible for a student loan to undertake post-graduate study.

11.     In these circumstances, I do not consider that Mr Yang would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to him. I find there is no factual basis upon which to exercise the discretion to enable the period of temporary residence to be counted as permanent residence.

12.     The Tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M. A Griffin, Member

Signed: A. Krilis
  Associate

Date of Hearing  8 November 2005
Date of Decision  30 November 2005
Representative for the Applicant    Self
Solicitor for the Respondent          Kate McNamara