Arsenova and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 4382

Arsenova and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4382 (23 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5731

Re:Irina Arsenova

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:23 November 2018

Place:Sydney

The Tribunal affirms the Delegate’s decision to refuse the Applicant’s application for citizenship.

...................................[SGD].....................................

Senior Member M Griffin QC

CATCHWORDS

CITIZENSHIP – refusal of citizenship – general eligibility –– whether Applicant is likely to reside or continue to reside in Australia – whether applicant maintain a close and continuing association with Australia – Applicant spent significant periods outside Australia – Applicant was not a permanent resident as defined by section 5 of the Citizenship Act – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(c), ss22(1), (1A), 1(B), (9)

SECONDARY MATERIALS

Citizenship Policy Chapter 7A

REASONS FOR DECISION

Senior Member M Griffin QC

23 November 2018

1. The Applicant has applied to the Tribunal for review of a decision of a Delegate of the Minister for Immigration and Border Protection (Minister) dated 8 September 2017. The Delegate refused to approve the Applicant’s application for Australian citizenship because the Delegate was not satisfied that the Applicant met the general, special, or defence service residence requirement and was likely to reside or would continue to reside in Australia.

2. The Applicant was born in the Russian Federation on 6 April 1969 and was granted a Tourist Visa on 2 February 2010, arriving in Australia on 15 February 2010. On 17 February 2011 the Applicant married Robert Arthur Meade. On 11 May 2011, the Applicant was granted a Temporary Partner Visa. The Applicant was absent from Australia for 17 days from 1 November 2012 and departed Australia again on 23 December 2013 and did not return until 2015.

   Issues

3. There are two issues in this matter pursuant to section 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) whether the Tribunal can be satisfied that the Applicant satisfies the residence requirement and if so whether pursuant to section 21(2)(g) of the Citizenship Act whether Tribunal can be satisfied that the Applicant would likely reside or continue to reside or maintain a close and continuing association with Australia.

4. The hearing of this matter was unfortunately disjointed because of technical difficulties involving the Applicant’s presence by telephone. Several adjournments were necessary to ensure the Applicant received a fair hearing. The Tribunal accepted further material which the Applicant provided in the way of testimonials and references.

5. The Tribunal has taken into account all material provided by the Applicant in this matter, including the references provided by the Applicant following the adjourned hearing on 12 October 2018.

   Relevant legislation

6. Section 21(2)(c) of the Citizenship Act, which relates to the residence requirement, provides that the Minister must be satisfied that the Applicant –

   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.

7. The only relevant section on the facts of the present case is section 22 concerning the general residence requirement, which relevantly provides –

   General residence requirement

   (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 non­citizen 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.

   Overseas absences

   (1A)       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.

   (1B)      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.

   …

   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.

8. Chapter 7A of the Citizenship Policy, which provides policy guidance as to the exercise of the Ministerial discretion in subsection 22(9), states –

   In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:

   ·evidence that the person migrated to and established a home in Australia prior to the period overseas

   ·Australian citizen children

   ·long term relationship with Australian citizen spouse or de facto partner

   ·extended family in Australia

   ·regular return visits to Australia

   ·regular periods of residence in Australia

   ·intention to reside in Australia

   ·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

   ·ownership of property in Australia

   ·evidence of income tax paid in Australia over the past four years and

   ·evidence of active participation in Australian community based activities or organisations.

   In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.

   Discussion

9. The Applicant applied for Australian citizenship on 26 August 2016 and therefore the relevant four year period immediately before the day the Applicant made the application commenced on 26 August 2012. In the relevant four year period, the Applicant was absent from Australia for a total of 965 days and present in Australia for a total of 496 days. In the twelve months prior to lodging her application for Australian citizenship, the Applicant was only present in Australia for a total of 27 days.

10. As the Applicant has been absent from Australia for more than 12 months in the four year period immediately before the date of her application and more than 90 days in the twelve month period before the date of application, the deeming provisions under subsections 22(1A) and (1B) do not assist the Applicant. Therefore the Applicant does not satisfy the general residence criteria in subsection 22(1) based on subsections 22(1A) and (1B).

11. The Applicant was not a permanent resident as defined by section 5 of the Citizenship Act. Objectively, on the evidence, the Applicant does not fulfil the residence requirements in terms of presence in Australia according to the Citizenship Act and, therefore, is unable to establish the threshold issue of residence.

12. The Applicant was not a permanent resident at the relevant time and therefore, no question of ministerial discretion arises.

13. It is therefore unnecessary to consider any other issue in this matter.

    Conclusion

14. The Tribunal affirms the Delegate’s decision to refuse the Applicant’s application for citizenship.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

................................[SGD]........................................

Associate

Dated: 23 November 2018

Date(s) of hearing:	26 September 2018
Date final submissions received:	18 October 2018
Applicant:	By telephone
Solicitors for the Respondent:	A Ray, Clayton Utz