Kanis and Minister for Immigration and Border Protection (Citizenship)

Case [2018] AATA 3222

Kanis and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3222 (5 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3473

Re:Mathias Kanis

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:5 September 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – permanent resident – unable to satisfy general residency requirement or special residency requirement – ministerial discretion sought to consider applicant the de facto partner of an Australian citizen – applicant’s absences did not relate to de facto relationship – special residence requirement –  whether Applicant is the member of crew of an aircraft – whether Applicant is required to travel outside Australian because of work – flight simulation instructor – not satisfied –  decision affirmed

LEGISLATION

Interpretation Act 1901 (Cth)

Australian Citizenship Act 2007 (Cth)               

Australian Citizenship Act 1948 (Cth)

CASES

HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771

Kumar and Minister for Immigration and Border Protection [2014] AATA 944

Kumar v Minister for Immigration and Border Protection [2015] FCA 446

Minister for Immigration and Border Protection v Han [2015] FCAFC 79

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Taher v Minister for Immigration and Border Protection [2013] AATA 917

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Yang and Minister for Immigration and Border Protection [2017] AATA 364

SECONDARY MATERIALS

Department or Home Affairs Citizenship Policy (1 June 2016)

Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)

Minister for Immigration and Citizenship, Australian Citizenship Act 2007 - Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013

REASONS FOR DECISION

Senior Member Linda Kirk

5 September 2018

BACKGROUND

  1. Mr Mathias Kanis (‘the Applicant’) was born in 1977 and is a citizen of Germany.

  2. He first arrived in Australia on 13 December 2003 as the holder of an Electronic Travel Authority Visitor Visa, subclass 976.  On 15 July 2010 he was granted a subclass 310 Interdependency visa and subsequently a subclass 100 Partner (Migrant) visa on 9 November 2012.[1]  These visas were granted on the basis of the Applicant’s relationship with his partner, Mr Pedro Virgil (‘the Applicant’s partner’) which commenced on 6 March 2008.[2]

    [1] Tribunal Documents at p.15.

    [2] Tribunal Documents at pp.79. 81.

  3. On 9 May 2016 the Applicant lodged an application for Australian citizenship by conferral under s21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3]  In his application he sought an exemption under the special residence provisions in s22B of the Act and on 28 April 2017 he made further submissions requesting the exercise of the Ministerial discretion in s22(9) of the Act.

    [3] Tribunal Documents at p.180.

  4. Movement records held by the Minister’s Department show that the Applicant was present in Australia for 605 days (and absent for 856 days) in the four years before his citizenship application was made,…

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Details
AGLC
Kanis and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3222
Case
[2018] AATA 3222
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr. Kanis for citizenship by conferral. Mr. Kanis, a permanent resident, sought to have his application considered under special provisions due to his inability to satisfy the general or special residency requirements. The core of the dispute revolved around whether Mr. Kanis could be considered the de facto partner of an Australian citizen during periods of his absence from Australia, and if so, whether the Minister's discretion to grant citizenship should be exercised in his favour.

The Tribunal was required to determine several legal issues. Firstly, it had to ascertain whether Mr. Kanis met the requirement under section 22(9)(a) of the relevant Act, which pertains to being the de facto partner of an Australian citizen during periods of absence. Secondly, if this condition was met, the Tribunal needed to decide if the discretion under section 22(9) was enlivened. Thirdly, if the discretion was enlivened, the Tribunal had to consider whether it should be exercised in Mr. Kanis's favour. Finally, the Tribunal was tasked with assessing whether Mr. Kanis met the special residence requirement under section 22B of the Act.

In its reasoning, the Tribunal first examined the definition of "de facto partner" as it applies under the Act, noting that the Act itself does not provide a definition. It referred to the definition of "de facto relationship" in section 2F of the Acts Interpretation Act 1901 (Cth), which requires persons to be not legally married, not related by family, and to have a genuine domestic relationship as a couple. The Tribunal also considered the guidance provided by the Citizenship Policy, acknowledging that while not binding law, it must be given due and proper consideration. The Tribunal ultimately found that Mr. Kanis's absences from Australia were not related to a de facto relationship, nor did he satisfy the criteria for being a member of an aircraft crew required to travel outside Australia due to work.

The decision under review was affirmed. Mr. Kanis, as a permanent resident, remains eligible to re-apply for citizenship in the future. If he subsequently meets the general or special residence requirements and other criteria for citizenship, he will be welcomed as a full member of the Australian community.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the holder of a permanent resident visa the Applicant will be eligible to re-apply for citizenship again, and if at this time he satisfies the general or special residence requirements under the Act and the other criteria for the grant of citizenship, he will be welcomed as a full member of the Australian community.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The issues for the Tribunal’s consideration are:(a)whether the Applicant meets the requirement in s 22(9)(a), that during the periods of his absence he was the de facto partner of an Australian citizen;(b)if so, whether the discretion under s 22(9) is enlivened; and(c)if the discretion is enlivened, whether it should be exercised by the Tribunal inthe Applicant’s favour; or(d)whether the Applicant meets the special residence requirement in s22B.CONSIDERATIONWas the Applicant the de facto partner of an Australian citizen during the periods of absence? Before considering whether the Applicant was the de facto partner of an Australian citizen it is necessary to consider the meaning of this phrase for the purposes of the Act.Definition of ‘de facto partner’ for the purposes of the Citizenship Act The Act does not include a definition of ‘de facto partner’. The Acts Interpretation Act 1901 (Cth) (‘Interpretation Act’) provides the following definition of ‘de facto relationship’ in section 2F:De facto relationships For the purposes of paragraph 2D(b), a person is in a de facto relationship with another person if the persons: (a) are not legally married to each other; and (b) are not related by family (see subsection (6)); and (c) have a relationship as a couple living together on a genuine domestic basis. (2) In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the reputation and public aspects of the relationship. (3) No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c). (4) For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of: (a) a temporary absence from each other; or (b) illness or infirmity of either or both of them. The Citizenship Policy (‘Policy’) provides guidance to decision-makers on the interpretation and exercise of the powers under the Act. The Tribunal is not bound to strictly apply the Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 Re (6 November 1985) at [21]: Policy is not law. A statement of policy is not a prescription of binding criteria. However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.