Sadiq and Minister for Immigration and Citizenship [2009] AATA 999 (18 December 2009)

Last Updated: 18 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2315

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Usman Sadiq

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President

Date 18 December 2009

Place Melbourne

Decision

For reasons given orally at the hearing, the Tribunal dismisses the application for reinstatement.

..............................................
Deputy President

PRACTICE AND PROCEDURE – application for review withdrawn in error – whether appropriate to reinstate - Australian citizenship – changes in residency requirements disadvantaging permanent resident migrants who had entered Australia in the period prior to the requirements changing – application for reinstatement dismissed.

Australian Citizenship Act 2007 ss 21 and 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 s 5B

Australian Citizenship Act 1948 s 13

REASONS FOR DECISION

11 January 2010

Mr G L McDonald, Deputy President

1. The applicant applied for the review of a decision made under the Australian Citizenship Act 2007 (referred to in these reasons as ‘the 2007 Act’) refusing him Australian Citizenship. He subsequently withdrew the application but now seeks to have it reinstated. The respondent opposed the reinstatement application being granted on the basis that even if reinstated the application had no chance of succeeding. For brief reasons given at the hearing the Tribunal accepted the respondent’s submission. The Tribunal undertook to provide written reasons.
2. In order to become an Australian citizen a person must make an application to the Minister for Immigration and Citizenship (the Minister) under s 21 of the 2007 Act. Section 21 sets out the criteria which an applicant must fulfil to be accepted as a citizen. One such requirement is found in s 21(2)(c) which provides that an applicant must be able to satisfy the Minister that he/she meets the relevant resident requirements set out in s 22 of the 2007 Act. Relevantly, s 22 is in the following terms:

(1) Subject to this section, for the purposes of section 21 a person satisfies the 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.

3. In cases where an applicant was a permanent resident as at 1 July 2007, being the date the 2007 Act came into force, then s 22(1) has no effect and the application is to be determined in accordance with s 5B of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act). Section 5B of the Transitional Act provides:

If:
(a) a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and
(b) the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.
then, for the purposes of that application, subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1) For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total period of at least 2 years in the period of 5 years before that day.

4. The reference to ‘the old Act’ is to the Australian Citizenship Act 1948 (as defined in s 1 of Part 1, Schedule 3 of the Transitional Act).
5. It is uncontested that the applicant was a permanent resident prior to 1 July 2007. The applicant lodged the application for citizenship with the respondent’s department on 5 February 2009. Therefore, the application was lodged within three years of the commencement day of the 2007 Act and the provisions of s 5B, Schedule 3 of the Transitional Act apply. The applicant must satisfy the residence requirements set out in s 5B(1).
6. The applicant and his family entered Australia on 10 February 2005 as permanent residents on a Business Skills Visa 127. The applicant told the Tribunal that he has established and successfully operated a business exporting goods from Australia to his home country (Pakistan). In order to operate the business, the applicant has been required to spend time in Pakistan. The applicant accepts that, as the result of his absences from Australia, he cannot meet the residency requirements set out in s 5B(1) of the Transitional Act. Nevertheless the applicant told the Tribunal, and the Tribunal accepts that his export business has provided, and continues to provide economic benefit to Australia.
7. As at 10 February 2005 when the applicant and his family entered Australia as permanent residents the provisions of the old Act applied. The residency requirements under s 13 of the old Act were substantially the same as those found in s 5B(1), Schedule 3 of the Transitional Act and are as follows:

...
(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...

8. Importantly, s 13(1A)(b) in combination with s 13(4)(b) of the old Act provided a discretion to the Minister to deem periods spent outside Australia by a permanent resident as periods during which the permanent resident was present in Australia. The discretion could only be exercised if the person was ‘... engaged in activities outside Australia that are beneficial to the interests of Australia.’ No such provisions were included in the 2007 Act. Further, the discretionary provisions under the old Act have not been included in the Transitional Act. Therefore, permanent residents who may have qualified for consideration under the discretionary provisions of the old Act in the period leading up to the introduction of the 2007 Act, are not able to be considered for citizenship under the Transitional Act. Since the applicant falls into this category his application cannot succeed.
9. The legislature has attempted to accommodate applicants who were permanent residents immediately before the 2007 Act came into force by retaining similar periods of residency as those found in the old Act for a three year period. However, the discretion previously available to permanent residents who were involved in businesses which took them out of Australia for a time for activities which were beneficial to Australia has not been included in the 2007 Act or the Transitional Act. As a result, some permanent residents have suffered what amounts to a retrospective change to their standing to be granted citizenship.
10. The removal of the previously existing discretion seems unfortunate and unduly harsh for those who had already entered Australia as permanent residents and who have successfully established themselves and worked in Australia’s economic interests on the understanding that by doing so, they stood to be granted Australian citizenship. Examples, such as that faced by the applicant in this case, raise fairness issues in that the rules have been changed to the detriment of some permanent residents who had at least a prospect of gaining citizenship before the 2007 Act came into force. The resulting detriment may be considered to be worthy of reconsideration for that limited class of migrant.
11. For the reasons expressed, the Tribunal dismisses the application for reinstatement.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 18 December 2009

Date of Decision 11 January 2010

For the Applicant self represented

Solicitor for the Respondent Ms A Tibell,

Clayton Utz