KATHARINA NEUMUELLER and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 908
•16 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2083
GENERAL ADMINSTRATIVE DIVISION ) Re KATHARINA NEUMUELLER Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member J L Redfern Date16 November 2010
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
J L Redfern
Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – citizenship by conferral - failure to satisfy general residence requirement in Australian Citizenship Act 2007 (Cth) section 21(2)(c) - no statutory discretion available to overcome failure to satisfy general residence requirement based on considerations of fairness or administrative error – unable to invoke discretion under section 22(11) as no evidence that visa granted because of interdependent relationship – meaning of “interdependent relationship” – decision under review affirmed - citizenship refused
Australian Citizenship Act 2007 (Cth) ss 20, 21(1), 21(2)-(8), 22, 22(4A)-(11), 24(1), 24(1A)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) item 5B, Sch 3
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) reg 1.09A
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth)
REASONS FOR DECISION
16 November 2010 Senior Member J L Redfern background
1. Katharina Neumueller is a 41 year old woman who is a citizen of Germany but has lived in Australia since 1995, with two extended absences overseas in 2008 and 2009 to attend to family matters in Germany.
2. She arrived in Australia on 17 February 1995 on a subclass 686 (Tourist) (Long-stay) visa after an earlier visit in November 1994. On 23 March 2000 Ms Neumueller applied for a subclass 801 (Spouse) visa which was granted on 27 March 2002.
3. Ms Neumueller applied for Australian citizenship on 2 December 2009 after passing a citizenship test on 23 October 2009. Her application was refused by a delegate of the Minister on 18 May 2010 because she did not meet the residence requirements for citizenship, falling short of the relevant period of residence required to satisfy the criteria for eligibility by 45 days.
4. Ms Neumueller seeks a review of the decision.
Legislative and policy framework and the issues
5. The Australian Citizenship Act 2007 (Cth) (the Citizenship Act) and the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Transitionals Act) came into effect on 1 July 2007 and govern Ms Neumueller’s application for citizenship. The Transitionals Act provides that certain criteria adopted from the former legislation are to be applied when considering applications for citizenship by conferral made before 1 July 2010 by persons who are permanent residents. The Transitionals Act is relevant to this case as Ms Neumueller was a permanent resident before the commencement of the Citizenship Act, and her application for citizenship by conferral was made before 1 July 2010.
6. Section 20 of the Citizenship Act provides that a person will become an Australian citizen if the Minister decides to approve an application under section 24(1) of the Citizenship Act. This is known as citizenship by conferral.
7. An application for citizenship by conferral may be made where a person meets the eligibility requirements under s 21 of the Citizenship Act.
8. The Minister must not approve an application unless the person is eligible to become an Australian citizen under subsections (2) to (8) (section 24 (1A) of the Citizenship Act).
9. Relevantly, section 21(2) of the Citizenship Act provides
General Eligibility
(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 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.
10. It is agreed Ms Neumueller does not satisfy the special residence requirements under sections 22A or 22B nor has she completed the relevant defence service to qualify under section 23 of the Citizenship Act. The relevant provisions to assess eligibility are therefore the “general residence requirements” under section 22 of the Citizenship Act but as amended by item 5B, Schedule 3 of the Transitionals Act.
11. Under item 5B (2), sections 22(1) to (2), (4A) and (5A) of the Citizenship Act do not apply. Instead, an applicant will satisfy the general residence requirement for the purposes of section 21 if,
“.. the person has been present in Australia as a permanent resident for:
(a)a total of at least 1 year in the period of 2 years before the day the person made the application; and
(b)a total of at least 2 years in the period of 5 years before that day.”
12. If an applicant does not meet the eligibility criteria in respect of the residence requirement, the Minister has certain discretions under sections 22(4A) to (11) of the Citizenship Act.
13. Ms Neumueller did not meet the residence requirements of section 21(2)(c) at the time of her application because she did not satisfy the general residence requirements. At the time of her application, Ms Neumueller had spent 1081 days (nearly 3 years) in Australia in the 5 years prior to her application, but only 320 days in the 2 years prior to her application, falling 45 days short of the statutory requirement. This is not disputed by Ms Neumeuller.
14. The issue for the Tribunal is whether there is any statutory discretion available to overcome the failure of Ms Neumueller to meet the “general residence requirements” of the Citizenship Act and, if so, how that discretion should be exercised.
IS THERE ANY STATUTORY DISCRETION AVAILABLE?
15. There are three possible statutory discretions which have been identified as being relevant to Ms Neumueller’s case; subsections 22(4A) and (5) administrative error, section 22(6) significant hardship or disadvantage and section 22(11) interdependent relationship.
16. Ms Neumueller contends it is harsh and unfair her application was refused in the circumstances of her case. She returned to Germany in 2008 after the death of her father to assist her mother to resolve her father’s affairs. She returned a second time in 2009 to comfort her mother and resolve a property dispute. While in Germany Ms Neumueller continued to work for the only German language newspaper published in Australia and maintained her bank accounts, residence and contacts with Australian friends. In 2009 she obtained approval for dual citizenship from the German government which she says will expire in September 2011. Ms Neumueller contends she would have returned earlier if she had realised she would not meet the residence requirements.
17. Ms Neumueller also complains about the letter from the Department of Immigration and Citizenship (the Department) which notified her of the refusal. The letter advised Ms Neumueller she would comply with the residence requirement on 16 August 2012. This was an error and seems to be based on the criteria for ”general residence requirements” under the Citizenship Act rather than the Transitionals Act, which would still have applied to any application made by Ms Neumueller before 1 July 2010. If Ms Neumueller had realised she could have applied earlier and by so doing would have complied with the “general residence requirement”. She says she would have done so.
18. Ms Neumueller contends the Minister should exercise discretion to approve her application because it would be unfair to do otherwise in her case or, in the alternative, because of administrative error by the Department. The Minister contends there is no statutory discretion available to cover these circumstances.
19. There is no general discretion for the Minister to approve an application based on considerations of fairness if the applicant does not meet the eligibility criteria in section 21. However, section 22(6) of the Citizenship Act gives the Minister discretion to treat a period as one in which a person was present in Australia as a permanent resident if they can demonstrate “significant hardship or disadvantage” would otherwise result. While this section was identified by the delegate as a possible basis for the Minister to exercise discretion, the lawyers for the Minister contend this section cannot apply. I agree with this contention. Section 22(6) does not apply when the applicant is a permanent resident. Ms Neumueller was a permanent citizen during the relevant period and this discretion is not available.
20. The Minister has discretion in certain circumstances where there has been “administrative error”. The lawyers for the Minister contend there has been no administrative error as applicants must make their own enquiries about eligibility and should not expect the Department to provide an advisory service.
21. I agree that applicants should make their own enquiries but where the Department has taken on the role of providing advice to an applicant, it must ensure the advice is accurate. In this case, it appears that the letter of 18 May 2010 from the Department was incorrect or, at best, misleading. Assuming Ms Neumueller had not been overseas on any extended absences since her original application (and there was no evidence that this was the case), she would have been eligible to reapply for citizenship immediately. Provided she applied before 1 July 2010, Ms Neumueller would have satisfied the “general residence requirement”, having fallen only 45 days short on her previous application. This is unfortunate for Ms Neumueller who has now lost this opportunity. The opportunity was significant because, according to Ms Neumueller, the German government had given permission for dual citizenship until September 2011. If Ms Neumueller reapplies for citizenship, the new rules will apply and she will not be eligible until August 2012.
22. However, the Minister contends there is no general discretion for the Minister to approve applications for citizenship by conferral where there is administrative error by the Department, other than the discretions allowed in subsections 22(4A) and (5A) of the Citizenship Act. Both provisions are narrow in scope and the Minister contends they do not assist Ms Neumueller. I accept this contention.
23. Section 22(4A) allows discretion to the Minister where a person is present in Australia as an “unlawful non citizen” because of an administrative error. This is not the case as Ms Neumueller was a lawful non citizen at the relevant time. In any event this discretion does not apply to applications governed by the Transitionals Act. Subsection 22(5) allows discretion where a person is present in Australia but not as a “permanent resident” because of an administrative error. Similarly, this is not the case here as Ms Neumueller was a permanent resident at the relevant time.
24. Ms Neumueller also contends the Minister has discretion to treat her time in Germany as presence in Australia for the purpose of assessing whether she satisfies the criteria for general residence requirements because of her “interdependent relationship” with her former partner.
25. Section 22 (11) provides that if, at the time of applying for citizenship by conferral, a 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 the general residency requirement, 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.
26. Ms Neumueller was granted a permanent Subclass 801 (Spouse) visa on 27 March 2002 pursuant to the Migration Act 1958 (Cth) ( the Migration Act). It is Ms Neumueller’s evidence that she met Mr Richard Birch in 1998. They started a relationship soon after and were together for about 6 years, when they separated. Ms Neumueller gave evidence that she was granted her permanent visa on the basis of this relationship. Mr Birch moved to Melbourne but Ms Neumueller stayed in Sydney.
27. After the separation, they remained close. Mr Birch and Ms Neumueller speak regularly to each other and have holidayed together. Ms Neumueller says they love each other but as close friends. She agreed Mr Birch was not her defacto partner. This was the position during the period Ms Neumueller was in Germany in 2008 and 2009 and at the time of her application on 2 December 2009. Mr Birch did not give evidence but provided a letter in support of Ms Neumueller’s application confirming he and Ms Neumueller were close, that Ms Neumueller had maintained her ties with Australia when she was in Germany and that they had separated in 2004.
28. There is no definition of “interdependent relationship” in the Citizenship Act but this term was previously defined in regulation 1.09A of the Migration Regulations 1994 (Cth) (the Migration Regulations). This regulation is no longer in force since the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth) (the Same-Sex Relationships Act), which came into effect on 15 March 2009. Regulation 1.09A provided that a person was in an “interdependent relationship” with another if the Minister was satisfied that, amongst other things,
“they have a mutual commitment to a shared life to the exclusion of any spouse relationships or any other interdependent relationships”
29. The Minister contends that the term “interdependent relationship” was originally intended to apply to same sex couples and the operation of section 22(11) of the Citizenship Act is limited to applicants who hold a permanent visa because the applicant was in an “interdependent relationship” with an Australian citizen within the meaning of the Migration Regulations as they applied prior to March 2009. Before the Same-Sex Relationship Act and consequential amendments to the Migration Act and Regulations, a person could make an application for a Subclass 110 (Interdependency) visa. If the applicant had a defacto or spouse relationship, an application would need to be under another subclass as the definition for ”interdependent relationship” specifically excludes “any spouse relationship”.
30. In this case, Ms Neumueller’s permanent visa was granted on the basis of a “spouse relationship”. This is a different category of visa. To enliven the discretion under section 22(11), the person must hold a permanent visa because of an interdependent relationship (see Goveskar and Minister for Immigration and Citizenship [2010] AATA 301 and Foster J in Goveskar v Minister for Immigration and Citizenship [2010] FCA 1101).
31. Ms Neumueller’s permanent visa was not granted because of an ”interdependent relationship” as required by subparagraph (a) of section 22 (11) and, as such, this discretion is not available.
CONCLUSION
32. Ms Neumueller does not satisfy the general residence requirement of section 21(2)(c) of the Citizenship Act and is therefore not eligible to become an Australian citizen. There is no discretion available to treat her absence from Australia as complying with the relevant criteria and her application must be refused.
33. I am satisfied that the decision under review is correct and should be affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern
Signed: .....................................................................................
AssociateDate/s of Hearing 12 and 27 October 2010
Date of Decision 16 November 2010
Applicant in Person
Solicitor for the Respondent Mr G Johnson, DLA Phillips Fox
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