Richard Saunders and Minister for Immigration and Citizenship

[2012] AATA 666

[2012] AATA 666  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0803
Re	Richard Saunders
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	29 August 2012
Date of written reasons	2 October 2012
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

CITIZENSHIP – general residency test – relevant defence service – decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22 and 23.

REASONS FOR DECISION

Senior Member Bernard J McCabe

2 October 2012

INTRODUCTION

1. The hearing in this matter occurred over two days. At the conclusion of the first day, I was able to indicate my decision (and my reasons for that decision) in relation to the bulk of the applicant’s claim. One matter was left for the respondent to investigate. Once those investigations were concluded, I was able to give my decision and offer reasons at the end of the second day of the hearing. The respondent subsequently asked for written reasons. Those reasons follow. They are based on the note I made at the hearing and on the transcript.

2. Captain Richard Saunders wants to become an Australian citizen. He arrived in this country, as a permanent resident, on 25 August 1983. He says he has been paying tax for some 32 years and contributed to the overall wellbeing of the Australian economy. He says on this basis he should be allowed to become a citizen of this country. The Minister for Immigration and Citizenship disagrees and contends Captain Saunders fails to satisfy the general residency test contained in the Australian Citizenship Act 2007.

   THE RESIDENCY TEST

3. The general rules as to eligibility for citizenship by application are set out in s 21 of the Act. Section 21(2)(c) establishes a residency requirement that is applicable in cases like this. The general residence requirement is set out in s 22. There are also two special residence requirements in ss 22A and 22B that offer an alternative way of meeting the requirement in s 21, but neither of those provisions are applicable in this case. One may also refer to defence service under s 23, but I will have more to say that about shortly.

4. The respondent summarised the effect of the general residence requirement in s 22 as follows: a person wishing to obtain citizenship must have been lawfully present in Australia for at least 1095 days during the four years immediately prior to lodging an application for citizenship. Applicants must also be lawfully present in Australia, as a permanent resident, for at least 275 days during the 12 months immediately prior to the day on which the application was lodged.

5. Ms Darcy, who appeared for the Minister, said Captain Saunders had spent only 954 days in Australia during the relevant period. Captain Saunders did not dispute this figure, but suggested the only reason he left the country during the relevant periods was to take holidays in his retirement. Unfortunately, this is not a relevant consideration for the purposes of these proceedings. I am left with no alternative but to conclude he was present in Australia for 141 days less than the Act requires.  He therefore does not satisfy the residency test because he does not satisfy s 22(1)(a).

   THE “RELEVANT DEFENCE SERVICE” EXCEPTION

6. Captain Saunders raised one final point on which he suggests he should be allowed to become a citizen.

7. Captain Saunders suggests he may have undertaken relevant defence service pursuant to section 21(4)(d) of the Act. He says for a period of around 2 years he was employed by the Commonwealth Lighthouse Service (CLS). On the first day of the hearing I asked the respondent if they would put on submissions in respect of this contention. I had the benefit of those submissions before the resumed hearing in this matter on 24 August 2012.

8. Section 23 of the Act provides the definition of relevant defence service:

   For the purposes of section 21, a person has completed relevant defence service if the person:

   (a)  has completed:

   (i) at least 90 days 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.

9. Evidence provided by the Minister suggests the work Captain Saunders undertook with the CLS does meet the definition of relevant defence service. The CLS when created formed part of the Department of Shipping and Transport and later the Department of Transport and Communications. At no point during the relevant time did the service form part of the navy, army or air force. It was merely one arm of a larger commonwealth agency which regulated one aspect of shipping and transport in Australia. I do not think the applicant can satisfy s 23.

   CONCLUSION

10. Captain Saunders was unable to meet the residency test set out in s 22 of the Act. He was also unable to the meet the relevant defence service exception contained in section 23. Section 24 of the Act says in no uncertain terms that I must not approve an application unless the eligibility criteria in s 21 are met. For these reasons the decision under review is affirmed.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 2 October 2012

Date(s) of hearing	9 August 2012 28 August 2012
Applicant	Self-represented
Solicitors for the Respondent	Cate Darcy