Eileen Goersdorf and Minister for Immigration and Border Protection

[2013] AATA 909

[2013] AATA  909

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2534
Re	Eileen Goersdorf
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	15 October 2013
Date of written reasons	18 December 2013
Place	Brisbane (heard in Darwin)

The decision under review is affirmed.

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

Deputy President P E Hack SC

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – general residence requirement – special residence requirement – decision affirmed

LEGISLATION

Australian Citizenship Act 2007, ss 22(1), 22A(1), 22B(1)

Australian Citizenship Act 2007 – Special Residence Requirement under Section 22C – September 2009 (IMMI 09/095)

REASONS FOR DECISION

Deputy President P E Hack SC

1. The applicant, Ms Eileen Goersdorf, was born in Germany in March 1972.  She became a permanent resident of Australia in March 2002. In February 2013, following a conversation with officers in the respondent’s department to which I will return, she applied for Australian citizenship by conferral. The requirements for the conferral of Australian citizenship are set out in s 21 of the Australian Citizenship Act 2007 (Cth) (the Act).  So far as is presently relevant, the person is required to satisfy what is called the “general residence requirement” or the “special residence requirement” or have completed relevant defence service at the time of making the application. There are a number of other matters to be satisfied and it is apparent that Ms Goersdorf satisfies each of those. A delegate of the respondent, the Minister for Immigration and Border Protection, determined that Ms Goersdorf did not satisfy the general residence requirement or the special residence requirement. There is no question that she has ever engaged in defence service so no further attention need be given to that. 

2. The general residence requirement is set out in s 22(1) of the Act.  It provides that 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.

3. Ms Goersdorf was a permanent resident and she was never an unlawful citizen.  The difficulty arises because she was not present in Australia for the period of four years immediately before the day of the application. She was not present because she was pursuing her profession as a registered nurse with the charity Médecins Sans Frontières undertaking humanitarian work in areas of significant conflict throughout the world.  The work she performed is commendable but it has taken her out of this country for significant periods, a little less than two years in the four years, prior to the lodging of the application.

4. There is provision in s 22(1A) of the Act to excuse an overseas absence but that is where the period of absence is not more than 12 months. Here, the absence exceeded 12 months. Thus because Ms Goersdorf was undertaking the work that I have outlined she did not satisfy the general residence requirement.  

5. The special residence requirement is set out in s 22A(1) of the Act and is satisfied if, relevantly, an applicant is seeking to engage in an activity specified in s 22C(1) of the Act[1]. Those activities are specified by legislative instrument[2] and comprise employment in a position which requires a high-level security clearance in a department, executive agency or statutory agency of the Commonwealth or participation in an Australian sporting team. Ms Goersdorf was not undertaking any of those activities.

   [1]           See s 22A(1)(a)(i) of the Act.

   [2]           See IMMI 09/095.

6. The undertaking, or the seeking to engage in, activities of that nature is the linchpin for each of the criteria specified in sub-paragraphs 1 to 4 of s 22A(1)(a) of the Act. In those circumstances, Ms Goersdorf cannot satisfy the special residence requirements under s 22A of the Act.  

7. The other way of satisfying this special residence requirement is set out in s 22B(1)(a) of the Act and relates to persons engaged in particular kinds of work which require regular travel outside Australia. That also is the subject of a legislative instrument[3]. The current instrument of 22 September 2009[4] specifies the kinds of work for the purposes of s 22B(1)(a) of the Act as being work undertaken as part of the duties of persons who are a member of a crew of a ship or an aircraft or engaged in work on a resources installation or a sea installation.

   [3]           See s 22C(3) of the Act.

   [4]           IMMI 09/095.

8. The result is that the delegate was correct to determine that Ms Goersdorf does not satisfy either the general residence requirement or the special residence requirement and accordingly the decision must be affirmed. 

9. It is though appropriate given the Tribunal’s normative function that I remark upon what appears to me at least to be less than desirable administration. It seems to me to be plain that Ms Goersdorf could not possibly satisfy the residence requirements. The nature of her absences from Australia is such that anything more than a passing enquiry would have revealed that to be the case. She said, and I have no reason to doubt, that she first made an enquiry at the office of the Department in Darwin but did not get a great deal of satisfaction from the person to whom she spoke. She called, at considerable length, the national telephone line later that month and explained her circumstances in some detail and was told words to the effect that she might not succeed based on her long absences from Australia but there was room for leniency. Encouraged by that she completed a quite detailed application including the provision of detailed information and certified translations of a German birth certificate and suchlike, which I am sure was both expensive and difficult to obtain.

10. Even after the application was lodged it ought to have been apparent that Ms Goersdorf did not satisfy the residence requirement yet she was invited to attend and undertake a citizenship test and complete documents in relation to a police check, no doubt again involving personal inconvenience. 

11. Ultimately the decision was made by letter of 26 April 2013. The application for the review of the decision was made shortly after. As I say I have no doubt the decision must be affirmed but I think Ms Goersdorf has been put to considerably more inconvenience than was necessary in the circumstances. Whether it is appropriate for the respondent to review the way in which applications of this nature are considered is a matter that I will leave for the respondent but it seems to me that the present method of considering these matters has led to undesirable consequences as in the present case.       

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Associate

Dated 18 December 2013

Date(s) of hearing	15 October 2013
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor