Frankline Eweama and Minister for Immigration and Citizenship
[2013] AATA 410
[2013] AATA 410
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3713
Re
Frankline Eweama
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms K Hogan Member Date 20 June 2013 Place Perth The Tribunal affirms the decision under review.
…………[sgd]...........…
Ms K Hogan, MemberCATCHWORDS
CITIZENSHIP REFUSAL - application for citizenship made under s 21 of the Australian Citizenship Act – applicant not engaged in work of a kind specified in the Legislative Instrument Made Under Section 22C(3) for required period of time required by s 22B(1)(b) of the Australian Citizenship Act – applicant does not satisfy the special residency requirement under s 22B of the Australian Citizenship Act
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Minister for Immigration and Citizenship, Special Residence Requirement under Section 22C, 22 September 2009
REASONS FOR DECISION
Ms K Hogan, Member
20 June 2013
BACKGROUND
Mr. Frankline Eweama has applied to this Tribunal seeking review of a decision of the respondent Minister made under s 24(1) of the Australian Citizenship Act 2007 (the Act) to refuse to approve him becoming an Australian citizen by conferral.
Mr Eweama, the holder of a skilled permanent residence visa, is a citizen of the Federal Republic of Nigeria, who arrived in Australia on 22 April 2008.
On 20 August 2012, Mr Eweama made a valid application under section 21(1) of the Act to become an Australian citizen by conferral (T documents page 71) but was refused on the basis that he did not meet the general residence requirement or the special residence requirement as required by section 21(2)(c) of the Act.
Mr Eweama has not sat and passed a citizenship test as would be required by section 21(2A) of the Act.
It was not disputed that between 20 August 2008 and 19 August 2012 (the four year period prior to lodging the application for citizenship) Mr Eweama spent a total of 1,006 days in Australia.
ISSUE
The issue is whether Mr Eweama satisfies the special residence requirement in section 22B of the Act and thereby satisfies the general eligibility criterion as required by section 21(2)(c).
EVIDENCE
The Tribunal was provided with a number of documents including:
(a)the section 37 documents;
(b)written submissions from Mr Eweama and the respondent.
Mr Seth Okeyere, Supervising Geologist, Cape Lambert Resources, gave evidence, by telephone, on behalf of Mr Eweama.
The Tribunal heard oral submissions on behalf of the parties.
THE LEGISLATIVE FRAMEWORK
For convenience, the relevant sections of the Act are set out in full:
Section 21(2) provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(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; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 22B provides:
(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
...
(i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
...
Section 22C(3) provides that the Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).
By 1(c) of Schedule C to Special Residence Requirement under Section 22C the Minister of Immigration and Citizenship specified that a person engaged in work on a resources installation or a sea installation was work for the purposes of paragraph 22B(1)(a).
APPLICANT
Mr Eweama's evidence was that at the time of his application for citizenship he was employed as a laboratory technician contracted to Marampa Mines in Sierra Leone.
His oral and written evidence was that his employer company, under his supervision, was contracted to install an onsite laboratory and to monitor seabed installations in relation to iron ore samples. He was responsible for the installation of the Benthic Multicoring System (BMS) on the deep sea floor and was involved in the sample preparation and testing.
He contended that this work qualifies him under the special residence requirement because he was a person engaged in work on a resources installation or a sea installation for the purposes of paragraph 22B(1)(a).
He confirmed that he commenced that employment in November 2010 and that he arrived on site in January 2011.
Mr Seth Okeyere gave evidence by telephone regarding Mr Eweama's duties and confirmed the length of employment.
RESPONDENT
The respondent did not contest that Mr Eweama satisfies the criteria in section 22B(1)(c) to (g) of the Act.
The respondent contended that as the general residence requirement, as set out in section 22 of the Act, required Mr Eweama to have been in Australia for a minimum of 1,095 days in the four years immediately before the day the application was lodged, the total of 1,006 days spent in Australia by the applicant did not satisfy the general residence requirement.
The respondent contended that Mr Eweama did not satisfy section 22B(1)(a) of the Act on the basis that he was engaged in work of a kind specified in the legislative instrument made under section 22C(3) of the Act.
The respondent contended that Mr Eweama’s evidence revealed that even if the Tribunal were to conclude that he had been engaged in the kind of work required, he had not been engaged for the length of time required by section 22B(1)(b) for a total of at least two years during the four years immediately before the day he made the application for citizenship.
CONSIDERATION OF ISSUES
The written and oral evidence of Mr Eweama and Mr Okeyere confirms that Mr Eweama was not engaged in work of a kind specified in the legislative instrument made under section 22C(3) of the Act for the length of time required by section 22B(1)(b), that is, for a total of at least two years during the four years immediately before the day he made the application for citizenship (20 August 2012).
Whilst the evidence suggested Mr Eweama's was engaged in work of a kind specified in the legislative instrument made under section 22C(3) of the Act, it is not necessary for the Tribunal to make a specific finding in this regard as the Tribunal finds that Mr Eweama was not involved in that work for the length of time required by section 22B(1)(b).
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.
..............[sgd]..........................................
Administrative Assistant
Dated 20 June 2013
Date of hearing 1 May 2013 Applicant In Person Advocate for the respondent Mr Kochardy
0
0
0