Georgi and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1866

Georgi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1866 (25 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3267

Re:Christian Georgi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:25 June 2018

Place:Sydney

The decision of the delegate of the Minister dated 5 June 2017 to refuse the Applicant’s application for Australian citizenship is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship – refusal of citizenship application on grounds Applicant did not satisfy the residence requirement - discretion in section 22(11) of the Australian Citizenship Act 2007 not applicable to Applicant – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21, 22, 22A, 22B, 23

REASONS FOR DECISION

Senior Member Linda Kirk

25 June 2018

BACKGROUND

1. Mr Christian Georgi (‘the Applicant’) is a Finnish national who first arrived in Australia on 15 December 2009 on a Subclass 976 (Electronic Travel Authority (Visitor)) visa (‘ETA (Visitor) visa’). He currently holds a Subclass 155 (‘Five Year Resident Return’) visa.

2. On 3 March 2017, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection (‘the Respondent’) on 5 June 2017 for the reasons that the Applicant did not satisfy the residence requirement in s 22(1) and that the discretion in s 22(11) of the Act was not applicable to his circumstances.

4. On 5 June 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Respondent’s decision.

5. The matter was heard in Sydney on 21 February 2018. The Applicant attended the hearing in person and was unrepresented.

   LEGISLATIVE FRAMEWORK

   Citizenship Act

6. The criteria for the general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. The provisions relevant to the determination of this application are as follows:

   (2) 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

   …

7. The general residence requirement is set out in section 22 of the Act. the relevant provisions are as follows:

   22 General residence requirement

   (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.

8. Pursuant to subsections 22(1A) and 22(1B) of the Act, a person may have some limited periods of overseas absences without impacting on their ability to satisfy the general residence requirement:

   (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.

9. Subsection 22(11) of the Act provides:

   Ministerial discretion—person in an interdependent relationship

   If, at the time the person made the application, the person:

   a)holds a permanent visa granted to the person because the person was in an

   interdependent relationship with an Australian citizen; and

   b)is in that interdependent relationship;

   then, for the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

   c)the person held that visa during that period and the person was in that interdependent relationship during that period; and

   d)the person was not present in Australia during that period; and

   e)the person was a permanent resident during that period; and

   f)the Minister is satisfied that the person had a close and continuing association with Australia during that period.

   ISSUES FOR DETERMINATION

10. The Applicant meets the requirements in subsections 21(2)(a) and (b) of the Act as he was aged over 18 years at the time he made the application, and was a permanent resident at the time he applied for citizenship and at the date of decision by the Minister’s delegate.

11. The issues for determination by the Tribunal are whether the Applicant satisfies the general residence requirement, including whether the discretion in s 22(11) is applicable in his circumstances.

12. The Tribunal must determine whether the Applicant:

    ·had been present in Australia for the period of four years immediately before he made his application for citizenship;

    ·had been present in Australia as a permanent resident for the period of 12 months immediately before he made his application;

    ·held a permanent visa granted to him because he was in an interdependent relationship with an Australian citizen; and

    ·is in that interdependent relationship.

    EVIDENCE BEFORE THE TRIBUNAL

13. The Applicant first entered Australia on an ETA (Visitor) visa on 15 December 2009 when he was 15 years old.  He came to Australia to join his mother, also a Finnish national, who had established a relationship with an Australian citizen.  On 2 December 2010, the Applicant’s mother was granted a Subclass 820 (Partner (Temporary)) visa and on 14 May 2012 she was granted a Subclass 801 (Partner (Residence)) visa.  The Applicant was a dependent child of his mother who was the primary holder of both visas. His mother subsequently acquired Australian citizenship by conferral in 2014.

14. The Applicant attended high school in Australia for one year and then learned the Thai language and began to travel extensively in Asia.  He met his current girlfriend, a Thai national, in mid-2015 and they travelled together to Singapore, Vietnam, France and Finland. His girlfriend wanted to study in Australia however she became ill and this prevented her from doing so.  She currently lives in Thailand with her parents and the Applicant visits and stays with her there frequently.

15. Department movement records show that in the four years (1461 days) prior to the Applicant’s citizenship application, from 3 March 2013 to 3 March 2017, he was present in Australia for 1040 days.  In the twelve months (365 days) before his application from 3 March 2016 to 3 March 2017, he had been present in Australia for 151 days.[1]

    [1] T documents, pp 48-50.

16. The Applicant told the Tribunal that he wants to become an Australian citizen as it will make him feel more integrated into and connected with the country and it will give him greater opportunities. He is a freelance photographer and wants to establish his own business. His girlfriend wishes to come to Australia to live with him as his partner.

17. In a statement included with his application for review the Applicant said:

    Regarding my close and continuing association with Australia, even during my periods of absence I have always come back regularly and as often as possible – my main residence has since first coming here been Australia and I think of it as my home. I have a keen interest to stay here for good and pursue a career locally, hopefully with my girlfriend/partner as soon as possible after she fully recovers.

18. The Applicant told the Tribunal he lives with his mother and her husband in their home.  His mother does not work and is financially independent and in good health.  He has a very strong bond with his mother and they do not have any other relatives in Australia.

19. He told the Tribunal that his mother considers them to be in an interdependent relationship and he is concerned that she would be affected if he lost his permanent residency or if he has to remain overseas for an extended period of time.

20. In his application for review of the Respondent’s decision the Applicant stated:

    I have applied for the exemption due to an interdependent relationship with an Australian citizen, my mother, as I have not satisfied the residence requirement due to taking care of the health of my partner and being with her overseas during that time didn't count towards the residence requirement.

    The decision states that this exemption can only be applied to a person who had been granted an interdependency visa. This has not been stated clearly as a requirement, only that the person needs to be in an interdependent relationship. Additionally, scenarios of hardship can be imagined if due to continuing circumstances I might not satisfy residence requirements being left with a Permanent Residence that also has residence requirements and eventually needs to be renewed, even though I have significant connections to Australia.

    CONSIDERATION

21. The Applicant has applied for citizenship on the basis that he meets the general eligibility criteria in subsection 21(2) of the Act.  There is no evidence that he would satisfy the criteria for the other categories of eligibility in subsections 21(3)-(8).

    Residence requirements

22. The Applicant was present in Australia for 1040 days (and absent for 421 days) in the four years prior to his application. He was present in Australia for 151 days (and absent for 214 days) in the 12 months immediately before making his application for citizenship.

23. The Applicant concedes, and the Tribunal finds, that due to his extended absences from Australia in the years prior to his application, he does not meet the general residence requirement in subsections 22(1)(a) and 22(1)(c) of the Act.

24. The Respondent submits, and the Tribunal agrees, that the discretion in s 22(11) of the Act would only assist the Applicant with respect to satisfaction of s 22(1)(c) of the Act that is concerned with the general residence requirement, specifically with the Applicant’s presence in Australia as a permanent resident for the period of 12 months immediately before the day he made the application.  

25. However, in this case, the Applicant does not meet the residence requirement contained in s 22(1)(a) of the Act, for which the discretion in s 22(11) is not applicable. There is no evidence that would support the exercise of the discretion in s 22(1A) which is concerned with the requirement of s 22(1)(a).

26. Accordingly, regardless of whether the discretion in s 22(11) is available in the Applicant’s circumstances to assist him to satisfy the requirements of s 22(1)(c), as he does not meet the requirements of s 22(1)(a) he is unable to meet the general residency requirement of the Act.

27. This finding makes it unnecessary for the Tribunal to determine whether the Applicant holds a permanent visa granted to him because he was in an interdependent relationship with an Australian citizen and that he was in that interdependent relationship at the time of his application for citizenship and, therefore, whether the Ministerial discretion in s 22(11) may assist the Applicant to meet the general residence requirement in s 22(1).

28. Finally, there is no evidence to support a finding that the Applicant meets the special residence requirements in sections 22A and 22B or the defence service requirement in s 23 of the Act.

    CONCLUSION

29. The Tribunal is not satisfied that the Applicant meets the general residence requirement in s 22(1) of the Act and he is, therefore, ineligible for the conferral of Australian citizenship as he does not satisfy s 21(2)(c) of the Act.

    DECISION

30. The decision of the delegate of the Minister dated 5 June 2017 to refuse the Applicant’s application for Australian citizenship is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 25 June 2018

Date of hearing:	21 February 2018
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison