Keenan and Minister for Immigration and Citizenship
[2008] AATA 860
•25 September 2008
CATCHWORDS – CITIZENSHIP – eligibility to become Australian citizen - relevant defence service – 6 months service in Army Reserve – meaning of “service” – decision set aside.
Veterans’ Entitlements Act 1986 ss 35 and 5C
Defence Act 1903 ss 3, 30, 31, 32A, 45, 50, 50D, 51A, 51AA, 51AB, 51B, 51C, 51CA, 59, 61A, 61B, 117B and 124
Defence (Personnel) Regulations 2002 rr 4, 5, 6, 25, 63, 69, 70, 95, 100 and 118
Australian Citizenship Act 2007 ss 21, 22 and 23
Defence Reserve Service (Protection) Act 2001 ss 7, 8, 11, 23 and 26
Dugina v Repatriation Commission (1999) 56 ALD 493
Lennon v Gibson and Howes Ltd [1919] AC 709; 26 CLR 285
Truchlik v Repatriation Commission (1989) 25 FCR 414; 87 ALR 263
DECISION AND REASONS FOR DECISION [2008] AATA 860
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/1668
GENERAL ADMINISTRATIVE DIVISION )Re:THOMAS KEENAN
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 25 September 2008
Place: Melbourne
Decision: The Tribunal decides to:
1.set aside the decision of the respondent dated 5 April 2008; and
2.substitute a decision that the applicant has completed relevant defence service for the purposes of s 21(2)(c) as he has completed at least 6 months service in the Army Reserve within the meaning of s 23(a)(ii) of the Australian Citizenship Act 2007.
S A Forgie
Deputy President
REASONS FOR DECISION
When Mr Thomas Keenan, applied to become an Australian citizen on 25 January 2008,[1] he had been in Australia as a permanent resident for 453 days in the preceding two years and for 469 days in the preceding five years. He had also held the rank of Staff Cadet in the Australian Army Reserve (Reserve) on a probationary basis and had been posted to the Melbourne University Regiment with effect from 1 June 2007.[2] On 22 November 2007,[3] he applied to resign with effect from 1 December 2007 and his application was accepted with effect from 22 February 2008.[4] The issue in the case was whether Mr Keenan had “completed relevant defence service” for the purposes of s 21(2)(c) of the Australian Citizenship Act 2007 (Act). On 5 April 2008, a delegate of the Minister for Immigration and Citizenship (Minister) decided that he had not and refused Mr Keenan’s application. I have decided that he had.
LEGISLATIVE FRAMEWORK
[1] T documents at 23-48
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 43
[3] T documents at 41-42
[4] T documents at 47
As both parties referred not only to the relevant provisions of the Act but also to provisions of legislation such as the Defence Act 1903 (Defence Act), the Defence (Personnel) Regulations 2002 (DP Regulations) and the Defence Reserve Service (Protection) Act 2001 (DRSP Act).
Australian Citizenship Act 2007
Part 2 of the Act provides for various situations in which a person may become an Australian citizen. Those situation are grouped into various categories and sub-categories identified in Part 2. The sub-category with which I am concerned is found in Subdivision B of Part 2 and the particular situation with which I am concerned is found in s 21. Section 21(1) provides that “A person may make an application to the Minister to become an Australian citizen.” The remaining seven sub-sections of s 21 specify particular situations in which a person may become an Australian citizen. Of relevance in this case is that specified in s 21(2) and described as the situation of “general eligibility”. Of the eight criteria that a person must meet under s 21(2), only that in s 21(2)(c) is relevant. It provides:
“A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(c)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; …
…”
A reading of the sub-section in its entirety makes it clear that the reference to “at that time” is a reference to the time at which the person made the application to become an Australian citizen.
In summary, the residence requirements in s 22 are to the effect that the person was present in Australia for four years immediately before making the application and was a permanent resident for the last 12 months of that period. Those requirements are ameliorated but there is no suggestion in this case that the ameliorations apply to Mr Keenan.
Section 23 is concerned with relevant defence service and it provides:
“For the purposes of section 21, a person has completed relevant defence service if the person:
(a)has completed:
(i)at least 3 months service in the permanent forces of the Commonwealth; or
(ii)at least 6 months service in the Naval Reserve, the Army Reserve or Air Force Reserve; or
(b)was discharged from that service as medically unfit for that service and who became so unfit because of that service.”
Defence Act 1903
The Defence Force consists of the Australian Navy, Australian Army and the Australian Air Force.[5] Taking only the Army, it consists of two parts: the Regular Army and the Army Reserve.[6] The Army Reserve consists of officers appointed to, and soldiers enlisted in, the Army Reserve and officers and soldiers transferred to the Army Reserve from the Regular Army, the Australian Navy or the Australian Air Force.[7]
[5] Defence Act, s 30
[6] Defence Act, s 31
[7] Defence Act, s 32A
“Members of the Regular Army are bound to render continuous full time military service”[8] but a “… member of the Army Reserve is not bound to render continuous full time service”[9] otherwise than provided for in ss 50(1)(a) or (b). That is to say otherwise than as provided in s 50[10] or as a result of a call out order under
ss 50D, 51A, 51AA, 51AB, 51B, 51C or 51CA.[11] The Regulations must either set or provide for the setting of training periods for the Army Reserve.[12] Section 50(2A) provides that:
“A member of the Army Reserve is bound to render, in each training period, military service (other than continuous full time military service) for such periods as are set by or under the regulations. However, a member may be exempted by or under the regulations from the obligation to render all, or a specified part, of that service.”
A member of the Army Reserve may, at any time, “voluntarily undertake to render continuous full time military service for a period” that he or she specifies. If the member’s undertaking is accepted, he or she is “bound to render that form of service for that specified period or for such period or periods within that specified period as the Chief of Army directs.” That is the effect of s 50(3). A member of the Army Reserve may voluntarily undertake to render military service other than continuous full time military service on the same basis and, if the undertaking is accepted, the member is bound to render it for the period or periods as the Chief of Army directs.[13]
[8] Defence Act, s 45
[9] Defence Act, s 50(1)
[10] Defence Act, s 50(1)(a)
[11] Defence Act, s 50(1)(b)
[12] Defence Act, s 50(2)
[13] Defence Act, s 50(4)
In time of war, all persons who have resided in Australia for six months and who are aged between 18 and 60 years of age “are liable, when called upon under section 60, to serve in the Defence Force.”[14] Section 61A sets out those persons who are “exempt from service in the Defence Force in time of war”. Section
61B(1) provides:“(1) A person who, in accordance with the regulations, is allotted for service in a part of the Navy, the Army or the Air Force shall, as from the time at which he presents himself for service in that part, be deemed to have been enlisted in that part and to have been engaged to serve in that part for the duration of the time of war.”
[14] Defence Act, s 59
Section 117B provides that:
“A person who is or has been a member of the Defence Force may recover from the Commonwealth, by action in a court of competent jurisdiction, money due to the person by the Commonwealth in respect of the person’s service as a member of the Defence Force.”[15]
[15] Defence Act, s 117B
Under s 124, the Governor-General may make regulations that are necessary or convenient to be prescribed for securing good government of the Defence Force. The DP Regulations have been made under authority of that section. Regulation 6(2) provides, in part, that:
“An enlisted member serves in the Defence Force in accordance with the following requirements:
(a)the enlisted member’s enlistment may be accepted provisionally;
(b)the enlisted member is expected to serve for a period specified as part of the acceptance of the enlistment;
(c)…
(d)the enlisted member’s service in the Defence Force ends if the enlisted member reaches compulsory retirement age, unless special arrangements are made in accordance with these Regulations;
(e)the enlisted member’s service in the Defence Force ends at the end of the enlisted member’s period of service, unless special arrangements are made, in accordance with these Regulations, that affect the enlisted member’s service;
(f)the enlisted members’ service may be terminated;
(g)…”
Part 2 of Chapter 4 of the DP Regulations is concerned with enlistment. Regulation 25(1) provides that a person is enlisted in a Service by taking the appropriate oath or making the appropriate affirmation. The Chief of the Service concerned must specify the person’s period of service either as an indefinite or fixed period or in terms of the person’s reaching a particular age.[16] The period of service may include a period of service in the Standby Reserve.[17]
[16] DP Regulations, r 25(4)
[17] DP Regulations, r 25(5)
Part 2 of Chapter 8 of the DP Regulations is concerned with the compulsory alteration of the service obligation. A Chief, in this case the Chief of the Army, may transfer a member from one part of the Regular Army to another part.[18] The Army Reserves has a number of categories in accordance with r 5 and the Chief of Army may transfer a person from one category to another.[19] Regulation 69 is concerned with transfer from one category to another when a member fails to carry out obligations. Regulation 69(1) provides:
[18] DP Regulations, r 63(a)
[19] DP Regulations, r 63(b) and (c)
“If a member who is serving in a category of the Reserves has failed to carry out the member’s training or other obligations, the Chief of the member’s Service may transfer the member to another category of the Reserves with a lesser level of training obligations.”
If a member is transferred to Standby Reserve under r 69(1):
“(a) the member’s period of service in the Standby Reserve ends at the earliest of the following events:
(i)when the member reaches his or her compulsory retirement age for service in the Standby Reserve;
(ii)if the member is allowed to resign from the Defence Force – when the resignation is accepted;
(iii)if the member’s service in the Defence Force is terminated – when the service is terminated; and
(b)for a member who has completed 5 years service in the Standby Reserve – the Chief of the member’s Service must accept an application from the member to resign from the Standby Reserve unless the application:
(i)is made in time of war or in time of defence emergency; or
(ii)would be granted at a time at which the member has been called out for continuous full-time service.”
If a member is serving in the Standby Reserve, the Chief of Army “may terminate the member’s service in the Defence Force at any time for a reason that relates to the interests of the …” Army.[20]
[20] DP Regulations, r 70
Regulations 100(1) and (2) of the DP Regulations provide for the Chief of Army to determine a training period for each category of Reserves and may determine the requirements for the training that is to be carried out during that training period. Regulation 100(4) provides that “A member is bound to render, in each training period, service for the required period.”
Regulation 118 applies if a member:
“(a) serves in a category of the Reserves; and
(b)is not rendering continuous full-time service; and
(c)renders service for a period of less than 1 day.”[21]
Regulation 118(2) goes on to make specific provision for “the purposes of calculating the period of service rendered by the member”.
[21] DP Regulations, r 118(1)
Mr Rogers, who appeared for the Minister, also referred to the Defence Reserve Service (Protection) Act 2001 (DRSP Act). Among other purposes, it is intended to protect members of the Reserves in their employment and education and to facilitate their return to civilian life.[22] Section 3 sets out a simplified overview of the legislation. The general thrust of the legislation is set out in s 3(2) when it provides that:
“This Act sets out entitlements and prohibitions that apply in relation to people who are rendering, or have rendered, defence service as members of the Reserves. In some cases, the entitlements extend to their dependants.”
In recognition of the fact that the word “Reserves” has the same meaning as in the Defence Act,[23] s 3(3) provides that:
“The kind of defence service rendered by a particular member determines the scope of the prohibitions and entitlements available in relation to him or her: see Part 3.”
[22] DRSP Act, Long Title
[23] DRSP Act, s 7
“Defence service” means “service (including training) in a part of the Reserves.”[24] Various Parts of the DRSP Act provide for various protections but not all protections apply to all Reservists. Section 11 summaries the various protections and sets out those to whom it applies. It does so by categorising defence service. So, for example, Part 4 providing for protection against discrimination applies to “All kinds of defence service”[25] and Part 5 providing for employment protection applies to “All kinds of service except for certain kinds of voluntary continuous full time service”.[26] Financial liability protection provided for in Part 8 applies to “Continuous full time service following a call out”.[27]
[24] DRSP Act, s 7
[25] DRSP Act, s 11, Table, Item 1
[26] DRSP Act, s 11, Table, Item 2
[27] DRSP Act, s 11, Table, Item 5
Mr Rogers referred particularly to ss 23 and 26 of the DRSP Act. Section 23 provides, in part:
(1) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do, or threaten to do, either of the following:
(a) discriminate against a contractor in relation to the terms and conditions of the contract for services that the person has entered into with the contractor;
(b) terminate the contract for services.
(2) Conduct mentioned in subsection (1) is for a prohibited reason if it is engaged in because the contractor, or an officer or employee of the contractor:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d)has previously rendered defence service.
(3) …”
Section 26 provides in part:
“(1) If a member was employed before starting to render defence service, the contract of employment is not terminated (or taken to be terminated) because of the member’s failure to perform his or her duties under the contract while absent on defence service.
(2) Instead, the contract is suspended while the member is absent on defence service, unless terminated earlier in accordance with law.
(3) A period during which a contract of employment is suspended is taken not to be a period of employment under the contract unless this Part provides otherwise.
(4) Subsection (1) does not prevent the termination of the contract if the member does not apply to resume employment under the contract within 30 days after ceasing to render defence service.”
The expression “absent on defence service” is defined by s 8[28] to mean:
“A member is absent on defence service during:
(a)any period during which the member is travelling from his or her residence to the place at which he or she is required to report for defence service; and
(b) any period while he or she is rendering defence service; and
(c) the period (if any) after he or she has ceased to render that service until he or she resumes work, or is reinstated in employment, under Part 5.”
[28] DRSP Act, s 7
CONSIDERATION
The issue in this case centres on the meaning of the word “service” used in s 23(a)(ii), and so in 21(2)(c), of the Act. It is a word that has many shades of meaning as is clear from the definitions in the Macquarie Dictionary and the Shorter Oxford English Dictionary (SOED) to which Mr Rogers referred. They range from:
“… 1 the condition or occupation of being a servant or someone who serves. 2 work carried out for or on behalf of others do someone a service. 3 the act or manner of serving. …”[29]
to “… 11 an occasion of worship or other religious ceremony; the words, etc used on such an occasion the marriage service. …” and a “15 periodic check and sometimes repair of the workings of a vehicle or other machine. …”[30] Of relevance in this case is the following meaning of “service”:
“… 18 (often services) any of the armed forces. 19 the participation of their members in warfare. …”[31]
[29] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[30] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[31] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The meanings given in the SOED include “… The condition of being a public servant, esp. a soldier or sailor, in the employment of a ruler or the State …” and “The duty of a soldier, sailor, etc.; the performance of this duty; esp. actual participation in warfare …”. Those in the Macquarie Dictionary include “11. Military a. (plural) the armed forces: in the services. b. period or duration of active service. c. a branch of the armed forces, as the army or navy. …”.
When read without any context other than that of a person’s being a member of a defence force, the ordinary meanings of the word “service” are certainly broad enough to encompass that person’s simply being a member as well as performing duties as a member whether during warfare or not. The context in which I must read it is that of s 23. Mr Niall’s submission is to the effect that the context demands that the word “service” be read as referring to a person’s being a member of either the permanent forces of the Commonwealth or the Reserves and performing any duties as required of a member. If a member of the permanent forces, the person would be available and would perform duties on a full-time basis as required by the terms of his or her appointment or enlistment. If a member of the Reserves, that person would be available and would perform duties on a part-time basis as required by the terms of his or her appointment or enlistment. Were s 23(a) to be read as taking account only of the time that a member of the Reserves was actually on duty, there would be no proper basis for distinguishing between three months’ service in the former and six months in the latter. Three months would be performed by a member of the permanent forces in three months but six months’ service could take a member of the Reserves much longer than six months if account were to be taken only of a person’s attendance to carry out specific duties or functions. It would certainly take a member of the Reserves much longer than the four years in which he or she could otherwise meet the residency requirements under the Act. Section 23 would not provide the amelioration to the residency requirements that it was clearly intended to provide.
Mr Rogers drew support for his submission that none of the ordinary meanings of the word “service” include that of mere membership from the judgment of Davies J in Truchlik v Repatriation Commission[32] in which his Honour considered whether Mr Truchlik was an “allied veteran” within the meaning of s 35(1) of the Veterans’ Entitlements Act 1986 (VE Act). An “allied veteran” was defined in that section to mean a person:
“… who had been appointed or enlisted as a member of the defence force established by an allied country and has rendered continuous full-time service as such a member during a period of hostilities, other than such a person who has served at any time –
(a)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(b)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.”
[32] (1989) 25 FCR 414; 87 ALR 263
Davies J said that the word “served” and the words “served in” used in the definition:
“… are ordinary words of the English language and ought not to be given any special, technical meaning in s 35(1) of the Act. Of course, they must be applied appropriately to the factual circumstances. Service in the Armed Forces is not to be equated with service in employment. …”.
…
Service in the Armed Forces is service whether it be voluntary or pursuant to conscription. But to say that is not to say that the word ‘served’ has the technical meaning of ‘enrolled’. The word ‘served’ ordinarily denotes the performance of a duty. …
Service is not to be performed by mere enrolment to serve. It involves the carrying out of the duties of the office or function. Clearly, a member of the Armed Forces would not be said to be serving in the Armed Forces if he had defected therefrom, notwithstanding that he remained enrolled therein. It may also be doubted that a serviceman would have continuous full-time service in the Armed Forces if there were long periods when he was away without leave. …[33]
[33] (1989) 25 FCR 414; ; 87 ALR 263 at 418-419; 267-268;
The interpretation adopted by Davies J and also by Sheppard and Foster JJ in their joint judgment, meant that Mr Truchlik was regarded as an allied veteran even though he had joined the Slovak Army in October 1943. The Slovak Army was a force engaged in supporting or assisting the forces of a country at war with Australia. He trained as a radio operator with the Slovak Army and was then assigned to a unit where the only duties that he performed were clandestine duties of transmitting and receiving messages that had nothing to do with the unit or the Slovak Army. He had no involvement in military action against the Allied Forces and joined the Patriotic Czechoslovakian Army upon its formation in August 1944 and fought against the Germans for the remainder of the war.
Goldberg J considered a definition of “allied veteran” which was in substantively the same terms as that in s 35(1) but was recast and placed in s 5C(1) of the VE Act. He did so in Dugina v Repatriation Commission.[34] Mr Dugina had served in the Italian Army at a time when Italy was supporting or assisting forces of a country at war with Australia. He submitted that he had been conscripted against his will and that his service had not benefited the Italian Army. Goldberg J applied the reasoning in Truchlik and said that the Tribunal had correctly:
“… recognised and accepted that ‘service’ contemplated activity or action beyond mere enlistment, that is to say beyond the fact of joining the army. The tribunal proceeded on the basis that it was insufficient simply to find that the applicant was conscripted in order to determine that he did not qualify as an allied veteran. The tribunal recognised that it had to investigate and make a finding as to the nature of the activities in which the applicant was involved and the work he carried out before it could conclude that he had served in the Italian army.
It is incorrect to say that the tribunal took the view that it did not matter what type of service the applicant rendered. Nor is it correct to say that the tribunal did not take into account the peculiar circumstances of the applicant’s conscription and the work he carried out. The tribunal specifically addressed the issue of the activities in which the applicant was involved and the work he carried out … The tribunal made the finding that service in the army extends to a number of activities which it identified including the cleaning of the barracks. On the evidence before the tribunal it was open to the tribunal to find that the applicant had been involved in carrying out this activity while with the 18th Infantry Regiment and the 205 Workers Company.”[35]
[34] (1999) 56 ALD 493
[35] (1999) 56 ALD 493 at 497-498
I think that I should not apply the meaning given to the word “service” in these two cases without some thought. After all, each concerned the meaning of “allied veteran” in the VE Act and that meaning was couched in terms that distinguished service from appointment or enlistment. That is not the case in s 23 where reference is made only to service. What is interesting, though, is that, having distinguished between appointment and enrolment on the one hand and service on the other, neither case attempts to categorise the nature of the service that must be rendered. In Truchlik, for example, the reference to “service” is said to “… involve… the carrying out of the duties of the office or function.” In Dugina, Goldberg J accepted that “… service in the army extends to a number of activities which it identified including the cleaning of the barracks.” There is no suggestion in either case that duties had to be of a particular type or nature before they could be characterised as “service”; only that they had to be duties or a function of the office of a member of the relevant forces.
The ordinary meaning of the word “service”, when used in s 23 of the Act, encompasses not only membership of the permanent forces of the Commonwealth or of the Reserves for the prescribed periods but also to the person’s being available to perform the duties or functions of an officer, if appointed as such, or as an enlisted member, if an enlisted member. That, however, is not the same thing as saying that s 23 requires the addition of the hours spent on parade, training or other duties. It does not. What it requires is an assessment of the time that a person served in either the permanent forces or the Reserves. Therefore, it requires an assessment of the time that he or she carried out, or was available to carry out as required by the Defence Act or DP Regulations, the duties or performed the functions of the position to which he or she was appointed, if an officer, or in which he or she enlisted, if an enlisted member.
What are the duties and functions that they must carry out or be available to carry out? In order to identify them, I must first ascertain what is meant by the “permanent forces of the Commonwealth” and “Army Reserve”. They are not expressions defined in the Act but they are terms defined in the Defence Act. Given that matters relating to the Defence Force and the Reserves are dealt with in the Defence Act and associated legislation to which I have referred and which predate the enactment of the Act, it seems to me that I should have regard to that legislation in the interpretation of those expressions. As the Privy Council said in Lennon v Gibson and Howes Ltd:[36]
“In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.”[37]
Adopting that approach, the expression “permanent forces of the Commonwealth” when used in s 23(a)(i) of the Act should be read as the related expression “permanent forces” is defined in s 4(1) of the Defence Act i.e. to mean “the Permanent Navy, the Regular Army and the Permanent Air Force”.[38] The “Regular Army” consists of officers appointed to and soldiers enlisted in the Regular Army.[39]
[36] [1919] AC 709; 26 CLR 285
[37] [1919] AC 709; 26 CLR 285 at 711-712; 287 and see Statutory Interpretation in Australia, 6th edition, 2006 at [3.36]
[38] Defence Act, s 4(1)
[39] Defence Act, s 32
Their duties and functions are also dealt with in the Defence Act and in associated legislative provisions. Section 45 provides that “Members of the Regular Army are bound to render continuous full time military service” but s 50 makes it clear that members of the Australian Army Reserve are not bound to render continuous full time service.
Provision is made in the Regulations for training periods for members of the Reserve. Section 50(2A) of the Defence Act distinguishes between training periods and military service when it provides for members of the Australian Army Reserve to “render, in each training period, military service (other than continuous full time military service) for such periods as are set by or under the regulations …”. Regulation 69(1) of the DP Regulations makes it clear that training obligations are not the only obligations placed upon a member of the Reserves. It refers to a “member’s training or other obligations” and to a member’s failure to meet them rendering him or her liable to transfer to another category of the service. This suggests that “service” encompasses duties other than those coming within the description of “training service” and, in view of s 50(2A), wider than military service.
The wording of s 69(1) suggests that a person is “serving” even if he or she has failed to carry out training or other obligations. That does not equate with a suggestion that mere appointment to or enlistment in the Reserves is sufficient but it does suggest that regard must be had to a period of time in order to determine whether a person is serving in the Reserves. As Davies J surmised in Truchlik v Repatriation Commission, a member of the Reserves could not be said to be serving if he were absent from duty for long periods without leave.
The provisions of the DP Regulations relating to enlistment are reflected in those relating to the appointment of officers.[40] They are drafted on the basis that service extends over a period that, unless it is indefinite, is specified by reference to time or an event. When taken with the provisions relating to the nature of the service of a member of the permanent forces and that of a member of the Reserves, it seems to me that the word “service” encompasses the period of time during which a member performs his or her duties or obligations and to carry out his or her functions as a member. As a member of the Regular Army and so a member of the permanent forces is required to render continuous full time service, that period of time will encompass the whole of the time for which he or she remains a member. The answer is no different for a member of the Reserves. He or she is not required to serve on a continuous full time basis but on a part time basis. The part time nature of the duties does not detract from the fact that the person is serving as a member of the Reserves during any particular period.
[40] DP Regulations, Chapter 4, Part 1
In this case, Mr Keenan enlisted as a member of the Reserves with effect from 1 June 2007. His letter of resignation is dated 21 November 2007.[41] Lieutenant Colonel Melotte, the Commanding Officer of the Melbourne University Regiment, responded to a request for information from the Department of Immigration and Citizenship regarding Mr Keenan’s service. She noted that Mr Keenan had resigned his appointment with effect from 1 December 2007[42] but, as Mr Keenan’s discharge papers show, his application to resign was accepted under r 95(3) of the DP Regulations with effect from 22 February 2008.[43]
[41] T documents at 41-42
[42] T documents at 44
[43] T documents at 47
Lieutenant Colonel Melotte wrote that Mr Keenan, who was only required to render effective service on a part time basis, had rendered only three and a half days of service and that two of those involved compulsory induction training. The Melbourne University Regiment had attempted to place Mr Keenan on training courses on several occasions but he had failed to attend any training or advancement courses.[44] Mr Keenan strongly asserted that he had served the equivalent of seven days in that period and did so both in the course of giving evidence and in his letter to the Minister.[45]
[44] T documents at 41-42
[45] T documents at 45
I make no findings about the quality or otherwise and effectiveness or otherwise of Mr Keenan’s service. As I understand the way in which the word “service” is used in s 23 of the Act, it is not concerned with the quality or effectiveness of a person’s service but only with the fact of service. The quality or effectiveness is a matter for the Defence Force or the Reserves. As I understand the word “service”, it is not concerned with the reasons why a person chose to join the permanent forces or the Reserves. Again, it is concerned with the fact of service and not with the motives for it. In some cases, motives might be a matter relevant in deciding whether a person is of good character as required by, in the context of this case, s 21(2)(h). The decision was not made under that section and Mr Keenan’s character is not a matter I have to consider.
Although the period of his effective service was extremely short, I accept that he completed at least six months service in the Army Reserve. For that reason, I:
1.set aside the decision of the respondent dated 5 April 2008; and
2.substitute a decision that the applicant has completed relevant defence service for the purposes of s 21(2)(c) as he has completed at least 6 months service in the Army Reserve within the meaning of s 23(a)(ii) of the Australian Citizenship Act 2007.
I certify that the preceding thirty five paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Date of Hearing 12 September 2008
Date of Decision 25 September 2008
Representative for the Applicant Mr R. Niall
Representative for the Respondent Mr N. Rogers
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