HELENA POEHLMANN and MINISTER FOR IMMIGRATION & CITIZENSHIP
[2009] AATA 587
•7 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3432
GENERAL ADMINISTRATIVE DIVISION ) Re HELENA POEHLMANN Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date7 August 2009
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
R W Dunne
(Signed)
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – refusal by delegate – applicant permanent resident – residence requirement not met – transitional provisions – exercise of discretion – activities beneficial to Australia – interdependent relationship with Australian citizen – discretion not exercised – decision under review affirmed
Australian Citizenship Act 2007 ss 21(2), 22(5), (6) and (11)
Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3, Item 7
Migration Regulations 1994 Regs 1.03, 1.09A, Schedule 2Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Mautner and Minister for Immigration and Citizenship (2008) 105 ALD 645
Re Gu and Minister for Immigration and Citizenship [2008] 104 ALD 129
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82REASONS FOR DECISION
7 August 2009 Senior Member R W Dunne introduction
1. The applicant (Ms Helena Poehlmann) arrived in Australia from Germany when she was 14 years old and was granted a permanent resident visa on 17 August 1981. On 22 March 2007, she lodged an “Application for grant of Australian citizenship”. At the time of lodgement of the application, she had spent only 58 days in Australia in the previous five years and 27 of those days fell within the previous two years. The application was considered under the Australian Citizenship Act 2007 (“2007 Act”). Although Ms Poehlmann lodged the application on 22 March 2007, with the introduction of the 2007 Act, she was requested to complete a new application and did so on 7 June 2008. On 12 June 2008, Ms Poehlmann was advised by letter that her original application for Australian citizenship had been refused. She now seeks review of that decision.
2. At the hearing, Ms Poehlmann represented herself and Danielle Forrester (from the Office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. The Tribunal received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
issues for the tribunal
3. The issues for the Tribunal are:
(a) Whether the discretion should be exercised to treat the period in which the applicant claims she was engaged in activities beneficial to Australia as a period in which she was present in Australia as a permanent resident.
(b) Whether the discretion should be exercised to treat the period in which the applicant claims she was in an interdependent relationship with an Australian citizen as a period in which she was present in Australia as a permanent resident.
(c)Whether the applicant should be granted Australian citizenship.
legislative and policy background
4. Section 21(2) of the 2007 Act sets out the general eligibility criteria for a person to become an Australian citizen. It reads:
“21 Application and eligibility for citizenship
…
(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 residence requirement (see section 22), or has completed relevant defence service (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 21(2)(c) makes it an eligibility criterion for the person to meet the residence requirement set out in s 22(1) of the 2007 Act. However, that residence requirement does not apply in the present case by operation of Item 7(8) and Item 7(9) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“Transitionals Act”).
5. The 2007 Act came into operation on 1 July 2007. Ms Poehlmann lodged her application for citizenship, prior to the commencement of the 2007 Act, but a decision had not been made by the respondent by 1 July 2007. Under Item 7(2) of Schedule 3 of the Transitionals Act, her application became a “new application” which was taken to have been made under s 21 of the 2007 Act. For these applications undetermined before the 2007 Act came into effect there were certain modifications that could be applied. Some of these are to be found in Item 7(8) and Item 7(9) of Schedule 3 of the Transitionals Act.
6. Item 7(8)(1) of Schedule 3 of the Transitionals Act provides:
“(8)In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1)For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b)a total period of at least 2 years in the period of 5 years before that day.”
7. Where a person does not satisfy the time requirements in Item 7(8)(1) of Schedule 3, the Transitionals Act allows for a discretion, now provided in Item 7(8)(4) of Schedule 3, which reads:
“(4)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 engaged in activities during that period that the Minister considers to be beneficial to Australia; and
(b)the person was not present in Australia during that period but was a permanent resident during that period.”
8. The current Australian Citizenship Instructions (“Instructions”) provide guidance in relation to the exercise of the discretion in Item 7(8)(4). The Tribunal should have regard to the Instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The relevant paragraphs of the Instructions are set out in Chapter 5 and read:
“… periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be treated as periods in which the applicant was present in Australia as a permanent resident. This discretion applies to both residence requirements (that is, both ‘2 years in the last 5’ and ‘1 year in the last 2’).
As a matter of policy:
·the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked and
·the applicant must have been engaged in a series of activities, not just a one-off transaction and
·the activities must also be during the relevant period/s under consideration and
·the activities must have been ‘beneficial to the interests of Australia’ during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.
Policy also states that the discretion will usually only be exercised if the applicant is in Australia and was either:
·required to work overseas by a Federal, state or territory department, semi-government authority or private employer or
·self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis or
·engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:
·the Australian community generally or
·prominent persons associated with the applicant’s field of endeavour (for example, persons engaged in aid programs, artists and entertainers of world standing).
Activities beneficial to the interests of Australia
In assessing whether activities are ‘beneficial to the interests of Australia’, consider the following:
·It requires ‘something in the nature of activities providing some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia … and means more than the private interests of the (applicant). This section requires some objective benefit to Australia.’ (Federal Court in Roberts.)
·It requires ‘something in the nature of activities which achieve recognition of Australia or Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia … (it) refers to the public interests of Australia.’ (AAT in Fraser.)
·‘the claim that the applicant’s employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicant’s activities were beneficial to the interests of Australia.’ (AAT in McCarthy.)
·‘There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion.’ (AAT in Tsui.) The benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative. (For example, AAT in McCarthy.)”
9. Item 7(9) of Schedule 3 of the Transitionals Act provides:
“(9)In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(5), (6) and (11) of the new Act have effect as if the reference in those subsections to “paragraph (1)(c)” were a reference to “subsection (1)” (as applied by subitem (8) of this item).”
As a result, the Transitionals Act allows for discretions, now provided for in ss 22(5), 22(6) and 22(11) of the 2007 Act. Those provisions read:
“(5)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 the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
…
(6)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:
(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
…
(11) 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.”
10. The Instructions also provide useful guidance in relation to the exercise of the discretions in s 22(6) and s 22(11) of the 2007 Act. In relation to s 22(6), the relevant paragraph of the Instructions in Chapter 5 reads:
“People who are permanent residents before commencement of the Act are also subject to the policy that applied immediately prior to commencement of the Act. That means that for people who are permanent residents before commencement of the Act, who are only required to meet residence requirements for two in five and one in two, this discretion would normally be exercised only if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.”
In relation to s 22(11), the relevant paragraphs of the Instructions in Chapter 5 read:
“Periods spent overseas by a permanent resident who was granted their permanent visa because they were in interdependent relationship with an Australian citizen and is in that interdependent relationship, can be counted as periods of permanent residence in Australia if the person had a close and continuing association with Australia during those periods. Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen interdependent partner.
Factors that may contribute to a close and continuing association with Australia include: Australian citizen children, if any; length of relationship with Australian citizen interdependent partner; extended family in Australia, if any; return visits to Australia; periods of residence in Australia; intention to reside in Australia; employment in Australia (e.g. public or private sector); ownership of property in Australia; evidence of income tax payment in Australia; and current bank accounts, if any, in Australia.”
background and evidence of applicant
11. Following her arrival in Australia, Ms Poehlmann attended high school in Adelaide and matriculated in 1984. She commenced work in the insurance industry, was married in 1986 and her daughter (who is an Australian citizen) was born in 1991. She later divorced. In 1996, after finding she was unable to study medicine in Australia, she planned to travel overseas to upgrade her education as a naturopath. Her daughter turned five and started school, but was found to have a problem with her hearing. Ms Poehlmann commenced a Bachelor of Health Sciences degree and, during the course of her study, was offered the opportunity to study medicine at a German university. She left Australia for Germany and her daughter accompanied her. She intended to return to Australia once her studies were completed, and the majority of her possessions remained in storage in Adelaide. Her daughter started school again, but Ms Poehlmann found that the hearing problem needed constant attention. As a result, she was forced to give up her university studies in 1998. For her daughter’s wellbeing and education, she remained in Germany and worked as a contract translator for ABC International. Between January 2001 and December 2007, she worked for International Business English (“IBE”) as a trainer for Business, English and Inter-cultural Communications. She also did work for a charity called “Trees for the World”, which was involved in re-forestation in Namibia.
12. In giving her evidence, Ms Poehlmann said that she had been a permanent resident of Australia since 1981, apart from periods overseas, largely spent in Germany. She had been raised in Australia as an Australian and acquired real estate here. Her permanent resident visa had been extended twice on the basis that she was accompanying an Australian minor overseas. She had strong ties to Australia, conducted business as a contractor and was an RRT-accredited translator. During her work as a translator and as a trainer for Business, English and Inter-cultural Communications with IBE, she promoted Australia and Australian tourism. In those capacities, she said she described herself as an informal ambassador for Australia. On one occasion, she had assisted in arranging for the recruitment of a scientist, who had worked with her professor at the University of Heidelberg, to come to work at the University of Adelaide. She said she had also been involved in negotiating an arrangement between German and Swedish companies to set up a business in Australia in regenerative energies. However, she said that, in promoting the benefits of Australia, she felt “like a fraud” and that was one of the reasons why she had applied for Australian citizenship.
13. In cross-examination, Ms Poehlmann accepted that, at the time of the lodgement of her citizenship application, she had not satisfied the residence requirement of two in five years and one in two years in Australia. Because of her daughter’s education in Germany, her time in returning to Australia had been limited to school holidays and by her own financial constraints. She would normally bring her daughter with her when she returned to Australia to visit family and friends. In her work with IBE, her students were scientists, as a rule. They came to Australia as tourists, based upon the information given to them by the applicant. IBE had sent her to a pharmaceutical company to train staff and the company had several branches in Australia. When the staff came to Australia, she said they spent money as tourists. In relation to the venture between the German and Swedish companies (Pelletswaerme GMBH and Janfire AB), Ms Poehlmann acknowledged that the benefit from the business in Australia would only arise in the future.
consideration
Were the applicant’s activities outside Australia beneficial to Australia?
14. Section 24(1A) of the 2007 Act provides that the Minister (or, in the present case, the Tribunal) must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen, amongst other provisions, under s 21(2) of the 2007 Act. Thus, unless the eligibility criteria are satisfied, or there is some discretion available, the application cannot be approved. Item 7(8)(4) of Schedule 3 of the Transitionals Act allows the Tribunal to exercise the discretion to treat the period in which Ms Poehlmann claims she was engaged overseas in activities beneficial to Australia as a period in which she was present in Australia as a permanent resident. The favourable exercise of that discretion would enable Ms Poehlmann to use that period overseas as meeting the “one-in-two year” and the “two-in-five year” residence requirement. As was said by Senior Member Kelly in Re Mautner and Minister for Immigration and Citizenship (2008) 105 ALD 645 (at paragraph 6) the overseas activities are those in the specified time periods of two and five years before Ms Poehlmann made her application for citizenship on 22 March 2007, that is from 22 March 2002 to 22 March 2007.
15. Ms Poehlmann’s evidence was that she started working with IBE in January 2001, primarily as a trainer. When asked to elaborate, she said:
“No. Trainer for Business, English and International Communication. So that is what I do in the industry when I go into companies and teach them about Australians, and how Australians do business, essentially. Or how – how business is done in the English-speaking world, and I’m basically – my main task is to assist people who want to do business in the English-speaking world, to overcome cultural problems. So for example, generally when somebody – when a company employs a native German speaker, they always find them really, really abrupt and very, very bossy and all these traits and it makes it very, very difficult to slot into a company, and my job is to train people to become aware of – for example, that we don’t say, “Well, you have to do that.” We say, “Wouldn’t it be better to do this?” But we talk differently to each other.” (Transcript, page 27)
She said that she was a trainer in both English and cultural skills, to prepare people to do business in various countries, not limited to Australia. When asked whether encouraging people to visit Australia was incidental to her trainer role and not her primary function, she said:
“It was not my primary function. That was something I did as an honorary ambassador for this country, yes.” (Transcript, page 28)
16. In relation to her involvement with the project, “Trees for the World” Ms Poehlmann said that her role was as liaison officer employed for her English language skills and her inter-cultural communication. The project led to delegates from Australia visiting Namibia with the view to adopting the science that was developed there for use in re-forestation in Australia.
17. In considering whether activities outside Australia are beneficial to Australia, Senior Member Carstairs in Re Gu and Minister for Immigration and Citizenship [2008] 104 ALD 129 said (at paragraph 14):
“In relation to whether a person has engaged in activities outside Australia that are beneficial to the interests of Australia, there must be some objective public benefit to Australia, rather than the private interest of the person (Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87). In addition, the benefit should be largely as a result of the person’s activities at the time they were undertaken, rather than a time in the future and should not be remote, indirect or speculative (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447). In Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT S92/205, 15 October 1991) the tribunal held that ‘activities beneficial to the interests of Australia’ refers to the public interests of Australia such as activities that will achieve recognition of Australia or increase international respect and goodwill for Australia.”
18. Ms Poehlmann put forward matters she said were beneficial to Australia during the period 22 March 2002 to 22 March 2007. She said she had raised her daughter as an Australian and she had made valuable contacts and gained knowledge that was ultimately intended to benefit Australia. She also made introductions, in the context of her work as a translator and her inter-cultural expertise, which were of benefit to Australia. Through her work in the “Trees for the World”, she was involved in assisting the implementation of methods for improving Australia’s energy and water crisis that she believed would make a difference in energy policy in this country. Finally, she saw herself as an informal ambassador in encouraging tourists to come to, and spend money, in Australia.
19. Ms Poehlmann argued that, having spent 15 years living in Australia as a permanent resident, it was ironic that she could not come back to Australia on her own accord, but would have to be sponsored by her own daughter. Similar sentiments were expressed by Einfield J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86 when he said:
“I agree with the Tribunal that it is quite anomalous, even a trifle absurd, that a person who has lived legally in Australia for more than 20 years and is to all intents and purposes an Australian has to pass arbitrary tests for citizenship. It seems at least odd for example that an Australian in all but law who leaves the country for temporary work, say because of economic downturn and shortage of work here, loses the benefit of his loyalty and connection to Australia over a lifetime in counting towards citizenship. By comparison, a complete newcomer can be here for two years and qualify even though intending to leave the country immediately after.
Nonetheless, that is what the guidelines in effect prescribe…”
20. The Tribunal has had regard to the Instructions and notes that the discretion in Item 7(8)(4) of Schedule 3 will usually only be exercised if the applicant (amongst other things) was
“engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:
·the Australian community generally; or
·prominent persons associated with the applicant’s field and endeavour…”
21. Ms Poehlmann has referred to her work overseas in promoting Australia to her students at IBE and in encouraging tourism. She has also referred to her work in training staff in companies overseas in how to do business in the English-speaking world, including Australia. In the Tribunal’s opinion, there was no objective, identifiable benefit to Australia which the applicant was able to point to as a result of her activities outside Australia. Ms Forrester’s submission (which the Tribunal accepts) was that any such benefit was so remote, indirect and speculative that it should not be taken into account in considering the exercise of the discretion under Item 7(8)(4) of Schedule 3 of the Transitionals Act.
Did the applicant hold a permanent visa granted to her because she was in an interdependent relationship with an Australian citizen?
22. The “interdependent relationship” discretion, through the operation of Item 7(9) of Schedule 3 of the Transitionals Act, is contained in s 22(11) of the 2007 Act. Ms Poehlmann contended that the discretion should be exercised in her favour because the Resident Return Visa granted to her in March 2007, before she applied for Australian citizenship, was granted on the basis that she was accompanying her daughter (an Australian citizen) and was in an interdependent relationship with her at the time. In supplementary submissions made by the applicant and the respondent following the hearing, the respondent contended that the applicant was not granted the relevant Resident Return Visa because she was in an interdependent relationship with her daughter, nor was being in an interdependent relationship a criterion for a Resident Return Visa. It appears that, rather than being granted a Resident Return Visa on the basis of an interdependent relationship, Ms Poehlmann’s Resident Return Visa was granted because she met sub-criterion 155.212(3A) in Schedule 2 of the Migration Regulations 1994. Notwithstanding the respondent’s contention, the Tribunal notes that, although not defined in the 2007 Act, the expression “interdependent relationship” is, through the application of Regulation 1.03 of the Migration Regulations 1994, defined in Regulation 1.09A and relevantly reads:
“(1) In this regulation:
ancestor includes a parent
(2)For the purposes of these Regulations, a person is in an interdependent relationship with another person if:
(a) they are not within a prohibited degree of relationship; and
(b) they have both turned 18; and
(c) the Minister is satisfied that:
(i)they have a mutual commitment to a shared life to the exclusion of any spouse relationships or any other interdependent relationships; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A) live together; or
(B)do not live separately and apart on a permanent basis; and
(d)subject to subregulation (2A), where either of them is an applicant for a Partner (Migrant) (Class BC), Partner (Provisional) (Class UF), Partner (Residence) (Class BS), Partner (Temporary) (Class UK) visa or a General Skilled Migration visa — the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i)they had a mutual commitment to a shared life to the exclusion of any spouse relationships or any other interdependent relationships; and
(ii)the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B)not been living separately and apart on a permanent basis.
(2A)Paragraph 2 (d) does not apply if the applicant can establish compelling and compassionate circumstances for the grant of the visa.
(3)For the purposes of this regulation, persons are within a prohibited degree of relationship if either of them is:
(a) an ancestor or descendant of the other person; or
(b)a brother or sister of the other person (whether or not they have both parents in common).”
It is clear that, when Regulation 1.09A(1) is read with Regulation 1.09A(2)(a) and Regulation 1.09A(3)(a) of the Migration Regulations 1994, the applicant’s relationship with her daughter is not an interdependent relationship as contemplated by the 2007 Act. Ms Poehlmann and her daughter are “within a prohibited degree of relationship”. The term interdependent relationship is primarily intended to refer to non-spousal relationships (that is, where the parties are not married or are not in a de facto relationship) or same-sex relationships. This approach is supported by the relevant paragraph of the Instructions set out in Chapter 5 which reads:
“Periods spent overseas by a permanent resident who was granted their permanent visa because they were in an interdependent relationship with an Australian citizen and is in that interdependent relationship, can be counted as periods of permanent residence in Australia if the person had a close and continuing association with Australia during those periods. Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen interdependent partner.” (emphasis added)
23. Having regard to the respondent’s submissions, but in the absence of relevant evidence before the Tribunal, it would appear that Ms Poehlmann does not satisfy the pre-conditions to the exercise of the interdependent relationship discretion in s 22(11) of the 2007 Act. Even if the discretion were available, it could not be exercised because Ms Poehlmann’s relationship with her daughter is not an interdependent relationship, such that she is able to satisfy the residence requirement in s 21(2)(c) of the 2007 Act. The same applies to Ms Poehlmann’s contention that she was in an interdependent relationship with her father. As was the case with her daughter, Ms Poehlmann is within a prohibited degree of relationship with her father.
24. During the hearing, Ms Poehlmann also sought to rely (although only in passing) on the exercise of the “significant hardship or disadvantage” discretion in s 22(6) of the 2007 Act (through the operation of Item 7(9) of Schedule 3 of the Transitionals Act). In relation to s 22(6), Ms Poehlmann’s argument was that, if her application for citizenship failed, significant hardship would be caused to her daughter in Germany. Ms Poehlmann said she that she would be forced to stay in Australia until 31 January 2010, with the consequence that her daughter would then have no-one to represent her interest in the current difficulties she was having at her school. Section 22(6) provides a discretion to waive the requirement of permanent residency “if the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.” Thus, the period must still be one in which the applicant “was present in Australia”. The discretion goes to the nature of the applicant’s presence in Australia (that is, whether or not the applicant is a permanent resident), rather than the duration of the period that the applicant has been present in Australia. There is still the requirement to meet the “one-in-two year” and “two-in-five year” time periods prescribed by Item 7(8)(1) of Schedule 3 of the Transitionals Act. As Ms Poehlmann does not satisfy this requirement, the “significant hardship or disadvantage” discretion is not available to her. Once again, the Tribunal notes the relevant paragraphs of the Instructions, set out in Chapter 5, relating to the exercise of the discretion in s 22(6), when read with Item 7(9) of Schedule 3. The Instructions relevantly read:
“People who are permanent residents before commencement of the Act are also subject to the policy that applied immediately prior to commencement of the Act. That means that for people who are permanent residents before commencement of the Act, who are only required to meet residents’ requirements of two-in-five and one-in-two, this discretion would normally be exercised only if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.” (emphasis added)
25. As Ms Poehlmann has not spent the requisite time in Australia, being two years out of five and one year out of two preceding her application, and has not satisfied the requirements for the exercise (or the favourable exercise) of the discretions conferred by Item 7(8)(4) of Schedule of the Transitionals Act and in ss 22(6) and (11) of the 2007 Act (as conferred by Item 7(9) of Schedule 3 of the Transitionals Act), she is unable to be granted Australian citizenship.
Decision
26. The decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true
copy of the reasons for the decision herein
of Senior Member R W DunneSigned: .....................................................................................
B Bills Admin AssistantDate/s of Hearing 26 February 2009
Date of Decision 7 August 2009
Applicant In PersonSolicitor for the Respondent Ms D Forrester
Australian Government Solicitor's Office
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