Martindale and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2554
•5 December 2017
Martindale and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2554 (5 December 2017)
Division:GENERAL DIVISION
File Number: 2017/2955
Re:David Martindale
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:5 December 2017
Place:Brisbane
The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
CITIZENSHIP – general residency requirements – whether discretion in section 22(6) of the Australian Citizenship Act applies – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Chirenda v Minister for Immigration and Border Protection [2015] AATA 64
Oldfield and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1619
Park and Minister for Immigration and Citizenship [2010] AATA 886
Re Dainty and Minister for Immigration & Ethnic Affairs [1987] AATA 7
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498
Re Neumueller and Minister for Immigration and Citizenship (2010) 118 ALD 631
SECONDARY MATERIALS
Australian Citizenship Instructions Citizenship Policy (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
5 December 2017
BACKGROUND
Mr Martindale was born in Dublin, Ireland in 1978.[1] He was first granted a visa to enter Australia in 2003 and later became a permanent resident of Australia on 10 November 2011.[2] Mr Martindale currently holds a subclass BB-155 (resident return) visa which was granted on 5 September 2016.[3]
[1] Exhibit 1, T Documents, T4, page 17, Application for Australian Citizenship dated 25 November 2016.
[2] Exhibit 1, T Documents, T4, page 14, Application for Australian Citizenship dated 25 November 2016.
[3] Exhibit 1, T Documents, T8, page 53, Visa Records.
On 25 November 2016 Mr Martindale applied for Australian citizenship by conferral (“Citizenship Application”).[4] However, on 29 November 2016 the Department of Immigration and Border Protection (“DIBP”) advised Mr Martindale that he did not meet the general residence requirement under section 22(1)(c) of the Australian Citizenship Act 2007 (“the Act”) (“DIBP Decision”).[5]
[4] Exhibit 1, T Documents, T4, pages 14-32, Application for Australian Citizenship dated 25 November 2016.
[5] Exhibit 1, T Documents, T6, pages 37-38, Notification of Refusal of Application for Citizenship from DIBP to Mr Martindale dated 29 November 2017.
Mr Martindale has sought a review of the DIBP Decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T2, pages 3-12, Application for Review of Decision dated 19 May 2017.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are whether:
(a)Mr Martindale satisfies the residence criteria at section 21(2)(c) of the Act; or, alternatively
(b)the discretion in section 22(6) of the Act should be exercised.
The Tribunal has jurisdiction to review the DIBP Decision pursuant to section 52(1)(b) of the Act.
LEGISLATIVE REQUIREMENTS
A person may apply to the Minister to become an Australian citizen.[7] However, pursuant to section 24(1A) of the Act, the Minister “must not approve” a person’s application to become an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)” of the Act.
[7] Section 21(1), Act.
Section 21(2)(c) of the Act relevantly provides that:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(c) satisfies the general residence requirement (see section 22) … at the time the person made the application…
In order for Mr Martindale to be eligible to become an Australian citizen, Mr Martindale needs to meet the requirements of section 22 of the Act.
Section 22 of the Act sets out the general residency requirements. It provides:
General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4-year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…
(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.
(My emphasis)
DOES MR MARTINDALE SATISFY THE GENERAL RESIDENCY REQUIREMENTS IN SECTION 22?
Was Mr Martindale Present in Australia for the Period of 4 Years Immediately Before the Day He Made the Application for Citizenship: Section 22(1)(a)?
There is no dispute that Mr Martindale was present in Australia for the four years prior to lodging his Citizenship Application and therefore satisfies the criteria in section 22(1)(a) of the Act.
Was Mr Martindale Present In Australia As An Unlawful Non-Citizen At Any Time During The Period Of 4 Years Immediately Before The Day He Made The Application For Citizenship: Section 22(1)(b)?
Mr Martindale was not present in Australia at any time during the four years prior to lodging his Citizenship Application as an unlawful non-citizen and therefore satisfies the criteria in section 22(1)(b) of the Act.
Was Mr Martindale Present In Australia As A Permanent Resident For The Period Of 12 Months Immediately Before The Day He Made The Application For Citizenship: Section 22(1)(c)?
On 5 August 2011 Mr Martindale had been granted a Skilled (Migrant)(class VE) subclass 176 (Skilled-Sponsored) Visa (“Skilled Visa”). The Skilled Visa was granted for a term of 5 years and expired on 5 August 2016.[8]
[8] Exhibit 2, Minister’s Statement of Facts, Issues and Contentions dated 27 October 2017, Annexure 1, Visa Grant Notice.
Mr Martindale did not apply for a renewal of his Skilled Visa before 5 August 2016.
On 4 August 2016 Mr Martindale departed Australia for Ireland and returned to Australia on 25 August 2016. As at 25 August 2016 Mr Martindale’s Skilled Visa had ceased so he was granted a Border (Temporary) (Class TA) subclass 773 visa so that he could re-enter the country.[9] On the same day Mr Martindale applied for a new return residency visa which was granted on 5 September 2016.[10]
[9] Exhibit 1, T Documents, T8, page 52.
[10] Exhibit 1, T Documents, T8, page 52
As a result of the cessation of the Skilled Visa, Mr Martindale was not the holder of a permanent resident visa between 25 August 2016 and 4 September 2016.[11]
[11] Exhibit 1, T Documents, T8, pages 51, 52
Therefore, because Mr Martindale was not present in Australia as a permanent resident for the period of 12 months immediately before the day he made the application for citizenship, he does not satisfy section 22(1)(c) of the Act.
The issue becomes whether the discretion under section 22(6) of the Act should be exercised so as to treat the period between 25 August 2016 and 5 September 2016 as one in which Mr Martindale was present in Australia as a permanent resident.
Ministerial Discretion: Section 22(6)
Pursuant to section 22(6) of the Act, for the purposes of section 22(1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident. However, before the Minister can exercise the discretion provided for in section 22(6), it must be found that:
(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.
There is no dispute that Mr Martindale was present in Australia between 25 August 2016 and 4 September 2016 but not as a permanent resident and not as an unlawful non‑citizen. The issue is whether Mr Martindale would suffer “significant hardship or disadvantage” if that period were not treated as one during which he was present in Australia as a permanent resident.
What is meant by “significant hardship or disadvantage”?
“Significant hardship or disadvantage” is not defined in the Act.
However, the Minister referred the Tribunal to the Australian Citizenship Instructions (“ACI”) which provides guidance to the DIBP in relation to the exercise of the discretion under section 22(6) of the Act. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The ACI states:[13]
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
§significant - important; of consequence
§hardship - a condition that bears hard upon one; severe toil, trial, oppression, or need
§disadvantage - absence or deprivation of advantage; any unfavourable circumstance or condition
§detriment - loss, damage, or injury
§economic - relating to the production, distribution, and use of income and wealth.
[13] Citizenship Policy, page 33.
Personal needs and personal wants
There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.
Personal needs
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
For conferral
People would normally be required to demonstrate some or all of the following circumstances:
§inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
§difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
§academic (for example, research, academic scholarship) or other (sporting, etc.) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
§significant hardship
or
§disadvantage or detriment.
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
In Oldfield and Minister For Immigration and Border Protection (Citizenship) [2017] AATA 1619, DP S A Forgie referred to the decision of Davies J as President of the Tribunal in Re Dainty and Minister for Immigration & Ethnic Affairs [1987] AATA 7 where he said at [16]:
If significant hardship or disadvantage is established, that is a matter that ought to be considered whether or not it would be a disadvantage or hardship of the type set out in paragraphs (a), (b) or (c) of clause 2 of the guideline...His relevant circumstances ought to be considered and given weight.
Therefore, the circumstances set out in the ACI are helpful but not an exhaustive list of what may constitute circumstances which would demonstrate that a significant hardship or disadvantage would be caused by not exercising the discretion provided for in section 22(6) of the Act.
Mr Martindale’s Evidence and Submissions
Mr Martindale submits that a refusal of citizenship will cause significant disadvantage to both himself and his family. Mr Martindale gave the following evidence and provided written submissions to the Tribunal in support of his application:[14]
[14] Exhibit 3, Submissions of Mr Martindale dated 5 September 2017; Exhibit 4, Submissions of Mr Martindale dated 9 November 2017.
·Before leaving for Ireland he had planned to apply for citizenship but there was no urgent need.
·The reason he had to leave for Ireland suddenly was because his father died.
·Since moving to Australia in November 2011 his family’s life choices have been based on his Australian Defence Force (“ADF”) career plan. Those choices include:
omoving to Townsville to be close to one of the largest ADF bases in Australia; and
onot purchasing a house to allow him to relocate easily for training and posting.
·Mr Martindale has been in full time employment in Townsville since January 2013 working for Volvo Commercial Vehicles (VCV Townsville) who are contractors for the ADF. Mr Martindale says he services heavy goods vehicles for the RAAF and the Army which has allowed him to gain experience on the ADF’s fleet of heavy goods vehicles as a civilian.
·In 2014 Mr Martindale attended and completed a first stage assessment by the ADF.[15] This assessment is known as a “YOU” session with the ADF which stands for “your opportunities unlimited”. As part of that session Mr Martindale undertook an aptitude test and spoke to a careers counsellor about the service and roles that would be available to him in the ADF. The next stage was for Mr Martindale to attend an assessment session. In July 2014 Mr Martindale was then given information regarding current job opportunities specifically selected for him based on his tested performance. The ADF informed Mr Martindale that in order to continue with the recruitment/selection process he would need to have his high school education to be the equivalent of an Australian high school education and he had to be an Australian citizen. Mr Martindale was advised to return to the ADF in approximately 12 to 16 months time.[16]
[15] Exhibit 1, T Documents, T2, page 10, Letter from Defence Force Recruiting.
[16] Exhibit 1, T Documents, T2, pages 11 – 12, ADF Recruiting Job Opportunities report dated 17 July 2014.
·Mr Martindale says his ADF career plan is not an aspiration because he has taken part in a YOU session (Aptitude test / Interview), has been given a list of suitable jobs from the ADF and a letter stating that he would only have to obtain Citizenship before he can progress with an ADF career.
·Mr Martindale says he now meets all the criteria for Citizenship by conferral and can move forward with an ADF career as soon as he becomes a Citizen.
·Mr Martindale concedes that as an auto electrician he could find alternative job roles outside the ADF but says “I have been preparing for an ADF career since 2013”.
·Mr Martindale says his family would not have made the choices “but for the belief [he] would be a citizen by April 2017 and would have started [his] career with the ADF this year, providing my family with a solid and secure future”.
·Mr Martindale says his partner's career choices have also been based on his “ADF career”, however he did not elaborate on what those choices were and his partner did not give evidence.
·Mr Martindale told the Tribunal his citizenship could now be deferred to 2020, due to the proposed changes in eligibility as of April 2017.
·Mr Martindale says there are opportunities available in the ADF today that he has been selected for, having being successful in the YOU session process. He says these roles may not be available to him in 2020. However, there is no corroborative evidence of this. Further, the opportunities that were indicated to him as being available were available in July 2014. There is no evidence to suggest those opportunities were available 2.5 years later, in November 2016, when he applied for citizenship in any event.
·Mr Martindale says that because he would then be 43 or 44 in 2020 he would not be as attractive to the ADF. However, again, there is no corroborating evidence of this.
·Mr Martindale says that since his arrival in Australia he has been a lawful and respectful resident contributing to his community in many ways.
·Mr Martindale says being an Australian citizen is important to him because:
My Partner and my son are citizens. Citizenship will provide stability and security for my family. I want the Right to vote and help shape the country we now are proud to call home. I would be able to provide a safe and secure future for my family through my ADF career. We want to be secure and free of any further changes to citizenship that may occur. It is unconscionable to think that a period of 11 days due to tragic and unforeseen circumstance could lead to me and my young family being disadvantaged to this level by way of refusal of citizenship by conferral.
Mr Martindale’s argument is essentially that it is unfair not to grant him citizenship given that if he had not travelled to Ireland to attend his father’s funeral he would not be in this situation.
The sole basis of Mr Martindale’s arguments regarding why he would suffer a significant disadvantage or hardship is that his potential ability to join the ADF will be delayed. However, there is no guarantee that Mr Martindale would ultimately be accepted by the ADF. There is no letter of support from the ADF that the only barrier he has to entry is citizenship. The ADF requires that Mr Martindale must also have an education level equivalent to that of an Australian high school education. Mr Martindale told the Tribunal this related to a mathematics requirement which was different to that in Ireland. Mr Martindale said he had been working studiously on this and will be sitting an exam in December 2017. However, there is no guarantee that he would pass this examination and therefore meet that education equivalent requirement.
The Tribunal also notes that traditionally there would need to be a further interview by the ADF, he would need to pass a fitness test and possibly further psychological assessments and interviews.[17] These are more hurdles that Mr Martindale would need to overcome to obtain employment as an enlisted person with the ADF. The Tribunal wonders why he had not applied for citizenship prior to November 2016. At the hearing Mr Martindale acknowledged that he could have applied for citizenship in November 2015 when he first became eligible. Mr Martindale says that the reason he did not do so at that time was because he was very busy moving house and because his son was born in December 2015. These are regular events of life, and it is understandable that they may have been a distraction. The Tribunal believes, however, that while Mr Martindale wants to obtain a position in the ADF, it is not urgent and is certainly not a personal need.
[17] >
In other cases the Tribunal has found there was no “significant hardship or disadvantage” where:
(a)alternative employment was available;[18]
(b)an applicant’s desires were personal wants and work aspirations, rather than a personal need;[19]
(c)there was no financial hardship;[20] and
(d)it would simply be financially advantageous to acquire citizenship;[21]
[18] Chirenda v Minister for Immigration and Border Protection [2015] AATA 64; Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498.
[19] Chirenda v Minister for Immigration and Border Protection [2015] AATA 64; Re Gamal MIKHAIL and Minister for Immigration and Citizenship [2008] AATA 498.
[20] Park and Minister for Immigration and Citizenship [2010] AATA 886.
[21] Park and Minister for Immigration and Citizenship [2010] AATA 886.
Consistency with comparable cases and decisions is “[o]ne of the factors to be considered [by the Tribunal] in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy”.[22]
[22] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
There is no evidence before the Tribunal that Mr Martindale is experiencing financial hardship or is unable to gain employment. In fact, he is employed full-time. There is also no indication of any potential impacts in relation to Mr Martindale’s safety or his ability to travel, in the event that he was not eligible for citizenship at this time.
None of the examples provided for in the ACI as to what may constitute significant hardship or disadvantage are present in Mr Martindale’s case.
While the Tribunal acknowledges that Mr Martindale wants to become an Australian citizen, is admirably desirous of becoming a member of the ADF, has never acted unlawfully and is a contributing member of his community as someone who is employed full time, is a volunteer worker,[23] and is a father, there is simply no evidence that he will suffer significant hardship or disadvantage if he is not granted citizenship.
[23]Mr Martindale says he volunteered with the Coast guard for 18 months until his son was born.
In Re Neumueller and Minister for Immigration and Citizenship (2010) 118 ALD 631 Senior Member J L Redfern, as she then was, noted that:
[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 s 21.
In the circumstances, the Tribunal finds that Mr Martindale will not suffer significant hardship or disadvantage if the period between 25 August 2016 and 4 September 2016 were not treated as one during which he was present in Australia as a permanent resident and therefore the discretion in section 22(6) of the Act is not enlivened.
DECISION
Mr Martindale does not satisfy the general residence requirement in section 22 of the Act and therefore is not eligible for citizenship under section 21(2)(c) of the Act.
Mr Martindale’s application therefore must be refused.
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
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Associate
Dated: 5 December 2017
Date of hearing:
13 November 2017
The Applicant:
By telephone
Solicitors for the Respondent:
Mr Jake Kyranis
Sparke Helmore:
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