Dau and Minister for Home Affairs (Citizenship) - [2019] AATA 2313

Dau and Minister for Home Affairs (Citizenship) [2019] AATA 2313 (30 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1491
Re:Hoang Anh Dau
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:30 July 2019
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member A Poljak
CATCHWORDS
CITIZENSHIP – Citizenship by conferral – residence requirements – whether the applicant had a close and continuing relationship with Australia – de facto partner of an Australian citizen – where applicant not overseas with Australia citizen de facto partner – where reasons why applicant outside Australian for a lengthy period of time not related to de facto relationship – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 24, 52
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kanis v Minister for Immigration and Border Protection [2018] AATA 3222
Taherv Minister for Immigration and Border Protection [2013] AATA 917
UI Haque v Minister for Immigration and Multicultural Affairs and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Australian Citizenship Bill (Cth)
Citizenship Policy, June 2016
REASONS FOR DECISION
Senior Member A Poljak
30 July 2019

Ms Hoang Anh Dau, the applicant, is a citizen of Vietnam. She was granted a student visa on 9 February 2009 and arrived in Australia on 27 February 2009. She has been in a relationship with an Australian citizen since 2010. The applicant left Australia on 22 October 2015, without her Australian citizen partner, to undertake studies in the United States.
The applicant lodged her current application for Australian Citizenship on 23 December 2016 (“Citizenship application”) under s 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). On 23 February 2018, the applicant’s Citizenship application was refused (“the decision”) as the Minister’s delegate found that she did not satisfy the general residence requirements in s 22(1)(a) of the Act. The Minister’s delegate also found that the discretion in s 22(9) of the Act could not be applied because the applicant did not have a close and continuing association with Australia as required by s 22(9)(d). This is the decision under review in these proceedings.
The relevant period for the purposes of s 22(9) is 22 October 2015 to 23 December 2016 (“the relevant period”); being the date that the applicant left Australia and the date of her current application for Australian citizenship.
During the relevant period, the applicant met the requirements of s 22(9)(b) and (c). This was because she was not present in Australia and was a permanent resident, having being granted a Skilled Independent (subclass 189 visa) on 16 October 2014.
The issues before the Tribunal in these proceedings are whether:
(a)the applicant was a spouse or de facto partner of an Australian citizen during the relevant period (s 22(9)(a)); and
(b)the applicant had a close and continuing relationship with Australia during the relevant period (s 22(9)(d)).
RELEVANT LEGISLATIVE PROVISIONS
Subsection 21(1) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dau and Minister for Home Affairs (Citizenship)

Details

AGLC: Dau and Minister for Home Affairs (Citizenship) [2019] AATA 2313
Case: [2019] AATA 2313
Decision Date: 30 July 2019

CaseChat Overview and Summary

The applicant, Dau, sought Australian citizenship by conferral. The Minister for Home Affairs affirmed a decision refusing the applicant's citizenship application, which was based on the applicant not meeting the residency requirements. The applicant contended that she had a close and continuing relationship with Australia, despite being overseas for a significant period.

The primary legal issue before the Court was whether the applicant had satisfied the residency requirements for citizenship by conferral, specifically whether the period spent overseas could be disregarded. This involved determining if the applicant had a close and continuing relationship with Australia, and if her absence was for reasons related to her de facto relationship with an Australian citizen.

The Court found no evidence to support a claim that the applicant would suffer significant hardship or disadvantage if the 12-month residency period prior to her application was not treated as time spent in Australia as a permanent resident. The applicant's own evidence indicated she travelled to the United States for study due to superior opportunities and held permanent residency there. The Court concluded that her reasons for being outside Australia for a lengthy period were not connected to her de facto relationship with an Australian citizen.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no evidence before me to support a finding that the applicant will suffer significant hardship or disadvantage if the 12 month period before she applied for Australian citizenship was not treated as one during which she was present in Australia as a permanent resident. To the contrary, the evidence of the applicant is that she travelled to the United States to study because of the superior opportunities available to her compared to that in Australia and that she has permanent residency in the United States. Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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