Apache Energy Pty Ltd and Chief Executive Officer of the National Offshore Petroleum Safety and Environmental Management Authority and Winestock

[2012] AATA 298

[2012] AATA 299

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4625
Re	IVA DRDACKA
APPLICANT
And	MINISTER OF IMMIGRATION AND CITIZENSHIP
RESPONDENT

Decision

Tribunal	Regina Perton, Member
Date	18 May 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

Catchwords

Citizenship – application for citizenship by conferral – permanent resident – overseas at time of application – general residence requirement – lack of discretion – decision affirmed.

Legislation

Australian Citizenship Act 2007 sections 21, 22, 24

REASONS FOR DECISION

Regina Perton, Member

18 May 2012

1. Miss Iva Drdacka is a 29 year old citizen of the Czech Republic.  She first arrived in Australia on a student visa on 19 July 2003.  In January 2004 Miss Drdacka began a relationship with an Australian citizen.  After they had lived together for two years, Miss Drdacka applied for a visa on the basis of her de facto relationship with an Australian citizen.  On 17 March 2006 a delegate of the Minister for Immigration and Citizenship (the Minister) granted Miss Drdacka  a temporary visa, namely a Subclass 820 (Spouse) (Class UK) visa.   On 6 May 2008 a delegate of the Minister granted her a permanent visa, namely a Subclass 801 (Spouse) (Class BS) visa. 

2. Miss Drdacka and her partner separated on 4 April 2011.   On 7 April 2011 she returned to her family in the Czech Republic, where she remains. 

3. Miss Drdacka lodged an application for citizenship on 21 June 2011.  On 3 October 2011 a delegate of the Minister refused the application.   On 26 October 2011 Miss Drdacka lodged an application for review of the decision dated 3 October 2011 with this Tribunal. 

4. The issue before the Tribunal is whether Miss Drdacka satisfied the residence requirements at the time of her application for citizenship.  If she did not, the Tribunal will consider if it has any discretion to waive those requirements.

RELEVANT LEGISLATION

1. Section 21(1) of Australian Citizenship Act 2007 (the Act) sets out the eligibility criteria for citizenship. Section 21(2)(c) provides that:

   (2) A person is eligible to become and 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 has completed relevant defence service (see section 23), at the time the person made the application;

   …

2. Section 22(1) of the Act 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;

   (b) the person was not present in Australia as an unlawful non-citizen at any time during that four 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. Section 22(1B) of the Act provides:

   Overseas absences

   (IB)If:

   (a) the person was absent from Australia for part of the period 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 resident during each period absence.

4. Section 22(5) of the Act provides that:

   Ministerial discretion – administrative error

   …

   (5)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.

5. Section 22(6) of the Act provides that:

   Ministerial discretion--person in Australia would suffer significant hardship or disadvantage

   (6)  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.

6. Section 22(9) of the Act provides:

   Ministerial discretion--spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

   (9)  If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, 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 a spouse or de facto partner of that Australian citizen during that period; and

   (b)  the person was not present in Australia during that period; and

   (c)  the person was a permanent resident during that period; and

   (d)  the Minister is satisfied that the person had a close and continuing association with Australia during that period.

7. Section 24(1A) of the Act provides that the Minister must not approve an application for citizenship unless the person meets the criteria set out in sections 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

DID misS dRDACKA SATISFY THE RESIDENCy REQUIREMENT AT THE TIME OF HER APPLICATION FOR CITIZENSHIP?

1. A permanent resident in Miss Drdacka’s situation is eligible for citizenship when she meets the requirements of sections 22(1)(a), (b) and (c) of the Act.  There are also some exceptions where a person was not in Australia for the whole of the four year period.  The Minister’s delegate conceded that Miss Drdacka was a permanent resident for four years before she made the application for citizenship and that she was not an unlawful resident.  Hence, Miss Drdacka satisfied the requirements in sections 22(1)(a) and (b). However, the Minister’s delegate decided that Miss Drdacka did not satisfy the requirement in section 22(1)(c) of the Act.

2. Miss Drdacka left Australia after she and her partner split up and has not returned.  In a submission to the Tribunal received on 16 March 2012, Miss Drdacka described her eight years in Australia, her studies, experiences, work and love for Australia.  She then stated:

   …

   This last year was very difficult for me.  I had to leave Australia when I split up with my partner of seven years as I was living and working with him and due to that fact I did not have a place to go or funds to support myself.  I had to go back to Czech Republic, live again with my mum and get a job.  The situation is much better now as I am currently working as a translator and I am also helping organizing educational seminars in Czech, Poland, Austria and Hungary.  I am very pleased that I have things to do, but I would love to come back and live again in Australia…

   …

   It is unfortunate that my application with the Immigration Department was refused as one criterion was not met – the application was not lodged in time, but I believe that there are many reasons for the decision to be overturned.

   …

3. Immigration records indicate that in the year before her application for citizenship, namely from 21 June 2010, Miss Drdacka was absent from Australia for more than 90 days.   Miss Drdacka was outside Australia for less than 90 days from her departure on 7 April 2011 until her application for citizenship on 21 June 2011. However, she had been out of Australia earlier during the year before application.  Miss Drdacka travelled outside Australia from 10 June 2010 until 12 August 2010.  The period between 21 June 2010 and 12 August 2010 is included in the calculation.  Consequently, Miss Drdacka does not satisfy section 22(1)(c) of the Act as she was absent for 126 days during the year before her application for citizenship. 

Do any of the discretionary provisions assist miss drdacka?

1. The Tribunal has examined the very limited discretion available in the Act for a person in Miss Drdacka’s situation.  The discretion in sections 22(5) and 22(6) are not relevant, as Miss Drdacka was a permanent resident for four years before she applied for citizenship. She does not need any dispensation for not having met that requirement.   Section 22(9) allows for limited discretion where a person was the spouse or surviving spouse of an Australian citizen at the time of the application.  That does not apply to Miss Drdacka as she was no longer the de facto partner of an Australian citizen when she applied for citizenship.

2. The citizenship legislation does not give the Tribunal a general discretion to grant citizenship where a person does not meet mandatory provisions.  Therefore, the Tribunal is unable to set aside the delegate’s decision.  The Tribunal notes that the end of her relationship does not mean that Miss Drdacka cannot live in Australia if she chooses.  Miss Drdacka still retains her permanent residency and can return to Australia on that basis. 

decision

1. The Tribunal affirms the decision under review.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.

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

Associate

Dated 18 May 2012

Date(s) of hearing	10 April 2012 (Hearing on the papers)
Applicant	Iva Drdacka
Representative for the Applicant	Self-represented
Representative for the Respondent	Masothy Yin, In-house litigation section, Department of Immigration and Citizenship