Ekaterina Gorshechnikova and Minister for Immigration and Border Protection
[2014] AATA 891
•2 December 2014
[2014] AATA 891
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3919
Re
Ekaterina Gorshechnikova
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 2 December 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
AUSTRALIAN CITIZIENSHIP – Applicant living in Singapore – Failure to meet general residence requirement – Discretion to treat periods of absence as time spent in Australia not enlivened – No “close and continuing association with Australia” – Reviewable decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
2 December 2014
Ekaterina Gorshechnikova is a Russian citizen who holds a visa entitling her to remain in Australia as a permanent resident. She applied for Australian Citizenship on
29 April 2014 but the Minister for Migration and Border Protection (“the Minister”) says the applicant does not meet the eligibility requirements in the Australian Citizenship Act 2007 (Cth) (“the Act”). I agree, for reasons I will explain.
What you must establish in order to be eligible for the grant of Australian citizenship
Section 21 of the Act sets out a number of criteria that must be satisfied before a person is eligible to become a citizen. Section 21(2)(c) requires that the applicant satisfy one of three residence requirements. The only one of them that is relevant in this case is the general residence requirement. The content of the requirement is set out in s 22(1) of the Act. That sub-section refers to an expectation that one was physically present in Australia for the four years immediately before the date of the application for citizenship, and that one was present as a permanent resident in the 12 months immediately before the date of the application. That is a problem for Ms Gorshechnikova: movement records establish (and the applicant accepts) she was out of the country for over 1200 days during the four years preceding the application (see exhibit one at p 212). She has only made seven comparatively brief visits to Australia during that period. That is not enough to satisfy the general residence requirement. The Act acknowledges individuals might be absent from Australia for periods of time during the assessment period. In some circumstances, the Minister can treat periods of absence during the assessment period as if the applicant was present in Australia. One circumstance in which this might be done is addressed in
s 22(9).
The discretion in s 22(9) of the Act
The discretion in s 22(9) is potentially available where the applicant is a permanent resident who is married to (or in a de facto relationship with) an Australian citizen. The Minister concedes the applicant in this case is able to satisfy all the requirements in
s 22(9) save one: the requirement in s 22(9)(d) that the Minister be satisfied the applicant “ had a close and continuing association with Australia” during the assessment period.
The discretion in s 22(9) is not enlivened unless and until the decision-maker is satisfied there is a close and continuing association with Australia in the sense intended by the statute. If I am satisfied as to that jurisdictional fact, the question then arises as to whether I should exercise the discretion. I will deal with these questions separately.
Is there a close and continuing association with Australia during the assessment period?
The assessment period commences four years before the date of the application. In this case, it runs from 29 April 2010 until 29 April 2014. The 12 month period during which the applicant must have been a permanent resident commenced on 29 April 2013.
The Minister’s statement of facts and contentions urged me to follow the advice in the Australian Citizenship Instructions (“the Instructions”) when deciding whether the applicant had a close and continuing association with Australia within the meaning of the statute. I acknowledge that many of the factors referred to in the Instructions are relevant to that inquiry. The Instructions are not an aid to interpretation of the statute, however: they merely set out the factors that might be relevant to the separate question of whether and how to exercise the discretion. I do not propose to rely on the Instructions for the purpose of deciding the anterior question, namely whether I am satisfied as to the existence of the jurisdictional fact.
The applicant resided in Australian for a number of years before she became a permanent resident. She moved here with her family in 1997 and attended secondary school and university on the Gold Coast. Her parents were on bridging visas; her father ultimately died before his application for a different visa could be approved. The applicant’s mother continues to reside in Australia on a bridging visa. I mention these circumstances because they provide a context for the applicant’s contention that she had a close connection with Australia in the period under review.
The applicant was married to Mario Durinic, an Australian citizen, in 2008. She has given birth to two children who are also Australian citizens by descent; a third child is on the way. The family has resided together in Singapore since November 2008.
Ms Gorshechnikova said she followed her husband when he took a job in that country. She explained in her evidence that she did not anticipate being in Singapore so long: she and Mr Durinic expected to return to Australia after about a year but events (including her ill-health and employment opportunities for her husband) intervened.Ms Gorshechnikova has extended family living in Australia. The family members (apart from her mother) hold Australian citizenship. The applicant’s brother and his family live on the Gold Coast, and former in-laws of her siblings also reside in this country.
The applicant gave evidence that she is close to her husband’s family (especially her husband’s mother) who reside in Melbourne. She also gave oral evidence that she maintains contact with friends from Australia, many of whom have visited the couple in Singapore. The couple also participates in the large Australian expatriate community in Singapore.The applicant has only visited Australia on seven occasions during the assessment period. The movement records tendered by the Minister suggest most of those visits were of comparatively short duration. She points out she has travelled here more regularly recently, and notes two factors that prevented her from travelling to Australia more often: she was in poor health during part of the assessment period, and she had responsibilities with respect to her children. The movement records suggest the applicant was absent for 339 days in the 12 month period before the application.
Ms Gorshechnikova and her husband bought a property in Australia in 2010. It is located in Paradise Point. The property adjoins the applicant’s mother’s home. It has been rented in the past and the applicant is currently looking for a tenant to take a lease over the property. Ms Gorshechnikova says the property was acquired because it was so close to her mother. The applicant and her husband borrowed money to buy the property. They do not have other investments in this country, although they do have bank accounts (and the applicant has a Queensland driver licence). The applicant has also paid Australian tax on the rental income in the past.
The applicant tendered evidence provided by her husband’s employer. The employer noted Mr Durinic’s desire to return to Australia. The letter explained it was anticipated that might occur “after the closure of the 2014-2015 Australian financial year”
(see exhibit 2). Mr Durinic explained in his evidence at the hearing that he was hopeful of remaining with the same employer and confident of securing a position in its Australian operations when the time came. He did not have firm plans to return to Australia: it was obviously still an aspiration on his part. Having said that, I accept the applicant and Mr Durinic are sincere in their professed desire to live in Australia at some point.
There is no particular mystery to the meaning of the words “close and continuing association with Australia”. They are ordinary English words; their meaning is
well-understood. I accept the applicant had a continuing association with Australia during the assessment period, but I am not persuaded it was especially close.
I acknowledge there are certainly links to Australian citizens (most obviously the applicant’s husband and children, who reside with her in Singapore), and there is an interest in real estate and some other links which I have already detailed – but those links are not sufficiently extensive or strong in light of the substantial periods of absence to persuade me there was or is a close and continuing association.
If the discretion were enlivened, would it be exercised in the applicant’s favour?
I do not need to consider how the discretion would be exercised, but I will do so in any event.
Even if the applicant did have a close and continuing association with Australia, I would not be inclined to exercise the discretion. The applicant was unable to identify a good reason why the discretion should be exercised. She indicated she experienced a degree of embarrassment and frustration in front of her children when she was unable to use the same queue at the airport, and she also pointed to the fact a Russian passport holder tended to face more demanding visa requirements when attempting to travel overseas.
I am not satisfied there was a good reason to exercise what is, in effect, a discretion to excuse non-compliance with the general requirements. She falls a long way short of complying with the general residence requirement: she has spent very little time in this country in recent years. The applicant retains her permanent resident status in Australia; she is able to come and go as she pleases. She will presumably be able to reapply for Australian citizenship in due course when the couple’s plans to move back to Australia are realised in a few years. In the meantime, she does not labour under any particular disadvantage or prejudice if the discretion is not exercised.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Dated 2 December 2014
Date of hearing 18 November 2014 Applicant In person Solicitors for the Respondent Sparke Helmore
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