Druguet and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 4556

Druguet and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4556 (7 December 2021)

Division:GENERAL DIVISION

File Number:          2021/4203

Re:Marie-Laure Druguet

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:7 December 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – general residence requirements not satisfied – where the applicant is currently residing in Romania – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22, 24

REASONS FOR DECISION

Senior Member A Poljak

7 December 2021

1. Ms Druguet, the applicant, is a citizen of France. She first arrived in Australia on 8 April 2004 and on 15 July 2006, she married an Australian citizen. On 15 October 2018, the applicant was divorced from her Australian citizen husband. The applicant and her ex-husband have two children together, both of whom are Australian citizens.

2. On 1 December 2016, the applicant was granted a Partner (subclass 100) visa, which she still holds. The applicant became a permanent resident for the purposes of the Australian Citizenship Act 2007 (Cth) (the Act) when she entered Australia on 16 January 2017 as the holder of the partner visa.

3. In January 2018, the applicant moved with her ex-husband and children to Romania for her ex-husband’s work and is currently still residing in Romania.

4. On 21 March 2021, the applicant applied for Australian citizenship by conferral (application for Australian citizenship).

5. On 24 June 2021, a delegate of the respondent (the delegate) decided to refuse the applicant’s application for Australian citizenship. The delegate determined that the applicant did not meet the criteria at paragraph 21(2)(c) of the Act because the applicant did not satisfy either of paragraphs 22(1)(a) or 22(1)(c) of the general residence requirements; specifically, the delegate was not satisfied that the applicant was present in Australia:

   (a)for the period of four years immediately before the day she made her application for Australian citizenship; or

   (b)as a permanent resident for the period of 12 months before the date she made her application for Australian citizenship.

6. The delegate found that there were no exemptions or discretions available to the applicant to assist her in meeting the general residence requirements. While the applicant sought to rely upon the Ministerial discretion at subsection 22(9) of the Act to treat periods of time spent outside Australia as time spent within Australia, the delegate found this exemption was not available to the applicant as she was divorced from her Australian citizen husband on 15 October 2018, prior to the date of her application for Australian citizenship. The delegate also determined that they were prohibited from approving the applicant from becoming an Australian citizen because the applicant was not present in Australia. This is the decision under review in these proceedings (decision under review).

   Issues

7. The issues for determination in these proceedings are:

   (a)whether the applicant meets the general residence requirement at paragraph 21(2)(c) of the Act;

   (b)whether the prohibition on approving a person becoming an Australian citizen if they are not present in Australia at subsection 24(5) of the Act continues to apply.

   Relevant Legislative Provisions

8. Paragraph 21(2)(c) of the Act provides that a person is eligible to become an 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 satisfies the defence service requirement (see section 23), at the time the person made the application...

9. Subsection 22(1) of the Act provides:

   (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 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.

10. Subsections 22(1A) and 22(1B) of the Act provide:

    (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.

11. Relevantly, subsection 22(9) of the Act provides:

    (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.

12. Subsection 24(5) of the Act provides that:

    (5) If:

    (a) the person is covered by subsection 21(2), (3) or (4); and

    (aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

    (b) the Minister did not apply subsection 22(9) in relation to the person; and

    (c) the Minister did not apply subsection 22(11) in relation to the person;

    the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia. [Emphasis added]

    Consideration

13. The applicant wishes to obtain Australian citizenship primarily for the benefit of her two children. She explained at hearing that her children both suffer from disorders, including ADHD, Asperger’s and Tourette syndrome and are currently obtaining treatment. The applicant said that should she be granted Australian citizenship, she would be able to come to Australia with her children to obtain better treatment than they are currently provided with in Romania or France. She also expressed her desire to maintain a close connection with Australia and described her close relationship with her ex-husband’s family. The applicant said that prior to COVID-19, the last time she visited Australia was in January 2020 when she stayed with her in-laws for two months. She said despite her divorce, she still maintains a very close relationship with her in-laws for the benefit of the children.

14. Having regard to the specific requirements applicable in this case, there is no dispute that the applicant satisfies the criteria at paragraph 22(1)(b) of the Act.

15. The applicant does not, however, satisfy the criteria at paragraphs 22(1)(a) and 22(1)(c) of the Act. The applicant was absent from Australia for a total of 976 days in the four years immediately preceding the day on which she made her application for Australian citizenship, and 365 days in the 12 months immediately prior to the day on which she made her application for Australian citizenship. This exceeds the total allowable period of absences for the purposes of paragraph 22(1)(a) of 12 months permitted by subsection 22(1A) of the Act, and for the purposes of paragraph 22(1)(c) of 90 days permitted by subsection 22(1B) of the Act.

16. While I understand that COVID-19 has proved very difficult for international travel and has impacted on the applicant’s ability to travel to Australia, this has not been the only factor responsible for her absences in the four years immediately preceding her application for Australian citizenship.

17. Subsection 22(9) of the Act cannot assist the applicant to satisfy paragraphs 22(1)(a) and 22(1)(c) of the Act as she was divorced from her Australian citizen husband prior to making her application for Australian citizenship on 21 March 2021. At hearing she also confirmed that she was not currently in a de facto relationship with an Australian citizen. There are no other Ministerial discretions or exemptions available under the Act to assist the applicant.

18. As the applicant is presently residing in Romania, the prohibition on approving the applicant becoming an Australian citizen in subsection 24(5) of the Act continues to apply.

    Decision

19. While I am sympathetic to the applicant’s circumstances and the reasons for wanting to obtain Australian citizenship, she does not satisfy the applicable criteria as detailed in these reasons.

20. The applicant may apply for Australian citizenship again at any time in the future.

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 7 December 2021

Date of hearing:	1 December 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Hill, MinterEllison