Klaus Gade and Minister for Immigration and Citizenship

[2013] AATA 409

[2013] AATA 409

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5485
Re	Klaus Gade
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	19 June 2013
Place	Brisbane

The decision under review is affirmed.

........................................................................

Senior Member Bernard J McCabe

CATCHWORDS

CITIZENSHIP - Residency requirements - Special residence requirement - 'Ordinarily resident' - Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 3, 21, 22, and 22B

CASES

Lee (by his next friend Lee) v Minister for Immigration and Citizenship [2011] FCA 1458

Ng and Migration Agents Registration Authority [2003] AATA 1192

SECONDARY MATERIALS

IMMI 09/095

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. Mr Klaus Gade wishes to become an Australian citizen. He applied for citizenship on 24 August 2012, but his application was rejected.

2. The Australian Citizenship Act 2007 provides that a person applying for citizenship must meet a number of criteria referred to in s 21. The Minister said Mr Gade is unable to satisfy the residency requirement referred to in s 21(2)(c).

3. Sub-section (2)(c) actually refers to a number of different residency requirements. It will ordinarily be enough if an applicant is able to satisfy any one of them. There are two that might be relevant in this case: the general residence requirement set out in s 22, and the special residence requirement in s 22B.

4. I will say at once I am satisfied Mr Gade is unable to satisfy the general residence requirement in s 22. He was absent from Australia for work on many days throughout the years preceding his application. Those absences are not fatal provided he can comply with the deeming provisions in ss 22(1A) or (1B). Unfortunately for Mr Gade, movement records confirm he was only in Australia for 485 days over the last four years, so he cannot satisfy sub-section (1A), and only 149 days in the last 12 months (see exhibit two at paragraph 3), which means he cannot satisfy sub-section (1B).

5. That leaves s 22B. Section 22B is designed to deal with the special circumstances of individuals whose work regularly takes them outside Australia. Mr Gade is potentially covered by the section because he works as a member of the crew of an aircraft, which is a kind of work specified in a legislative instrument published pursuant to s 22C (IMMI 09/095).

6. The Minister conceded Mr Gade satisfies most of the requirements of s 22B(1) apart from sub-section (1)(e). That provision requires that the person “was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application…”.

7. The expression “ordinarily resident” is defined broadly in s 3, which says:

   a person is taken to be ordinarily resident in a country if and only if:

   (a) he or she has his or her home in that country; or

   (b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

   However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

8. The location of a person’s home or place of abode is a question of fact. Deciding the question can be difficult in circumstances like those under consideration in this case, where the person travels extensively for their work and has links with a number of places, including his country of birth. One must look to where the person was physically present in a place, but also to other indicia of residence suggesting the place is ultimately the applicant’s home: see, for example, Lee (by his next friend Lee) v Minister for Immigration and Citizenship [2011] FCA 1458 at [97]-[99]; see also Ng and Migration Agents Registration Authority [2003] AATA 1192.

9. Mr Gade gave evidence at the hearing. I accept he gave his evidence truthfully and I have no reason to doubt what he told me.

10. Mr Gade referred to a number of factors that count in his favour. He has family connections in Australia: the applicant is particularly close to his cousin, with whom he lives when he is in this country. He said his cousin is like a brother, and they do everything together when Mr Gade is in Australia. He explained he has a dedicated room at his cousin’s rented home on the Sunshine Coast. Mr Gade keeps his clothes and personal effects there. He has a Queensland drivers’ licence, an Australian bank account and a pilots’ licence issued by CASA. He conducts his social life here and identifies strongly with Australian people. I accept the applicant wants to live here and be a part of the Australian community, and I note he has travelled extensively in this country.

11. There are a number of factors that count against a finding that Australia was Mr Gade’s home in the period under review. Some of those things are not necessarily significant indicators in the circumstances. For example:

    (a)his employer is Canadian, and he is based in Vancouver;

    (b)he holds a Canadian driver’s licence and pilot’s licence;

    (c)he pays income tax in Canada and his wages are paid into a Canadian banking account;

    (d)his financial assets (most obviously, his savings) are kept in a Canadian financial institution;

    (e)he has family in Canada, but they do not live in British Columbia where he is based. (He said he saw his parents, who live in Toronto, perhaps twice a year.)

12. Other matters indicate a stronger connection with Canada. I note Mr Gade owns an apartment in Vancouver. He bought it five or six years ago. It is mortgaged, but that does not matter. He lives there when he is in Vancouver. It houses the bulk of his personal effects and clothing (those items he does not keep in Australia, at any rate). But there is more: Mr Gade entered into a long term relationship with a Canadian woman who also works for his employer. He says it is becoming serious. She moved into the property in Vancouver within the last year or so. When they are both in Vancouver, they behave as a couple.

13. On balance, I think the evidence establishes Mr Gade has more links to Canada for the moment than he does to Australia. In the circumstances, I think it is clear enough his home and place of abode are in Vancouver, rather than Australia. That may change, of course – but I must have regard to the situation in the period leading up to the application. For now, I must conclude Mr Gade was not ordinarily resident in Australia during the period under review. That means he cannot satisfy the requirements in s 21, and his application for citizenship must be declined.

    CONCLUSION

14. The decision under review is affirmed. 

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

........................................................................

Associate

Dated  19 June 2013

Date of hearing	2 May 2013
Applicant	In person
Advocate for the Respondent	Sean Kikkert