Tomecek and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2520

Tomecek and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2520 (11 August 2023)

Division:GENERAL DIVISION 

File Number(s):      2022/7031

Re:Miroslav Tomecek

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:11 August 2023

Place:Adelaide

The Tribunal affirms the decision under review to refuse the Applicant to become an Australian citizen by conferral.

...................[Sgnd]..................................

Senior Member George

CATCHWORDS

CITIZENSHIP – applicant’s application for citizenship by conferral refused – whether applicant satisfied the residency requirement – applicant outside Australia for the period of 4 years immediately before the day of application for citizenship – consideration of ministerial discretion under s 22(11) – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Bae and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1865

FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231

Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 624

SECONDARY MATERIALS

Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021

REASONS FOR DECISION

Senior Member George

11 August 2023

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural affairs, to refuse Mr Miroslav Tomecek’s (“the Applicant”) application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. On 12 June 2022, the Applicant submitted an Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement).[1] On 29 August 2022, a delegate of the Respondent refused the Applicant’s application because the Applicant did not satisfy the residence requirements under s 22 of the Act.[2]

   [1] Exhibit R2, T-Documents, T7, Application for Australian Citizenship by Conferral.

   [2] Exhibit R2, T-Documents, T9, Notification of Refusal of Citizenship Application.

3. Section 21(2)(c) of the Act provides that a person is eligible to become an Australian citizen if, at the time of application, they satisfy either the general residence requirement, the special residence requirement, or the defence service requirement. The general residence requirement is most relevant in these proceedings. This Tribunal concurs with Senior Member Pola in FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231, at [30], that the statutory requirement in s 22(1)(c) of the Act is strict. It cannot be waived by compelling or compassionate circumstances.

4. Section 22(1) of the Act provides that the general resident requirement is met 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.

5. Section 22(1A) of the Act explains that if a person is absent from Australia for a part of the period required under s 22(1)(a) of the Act, and the total period of absence was 12 months or less, then that person is taken to have been in Australia during each period of absence.

6. It is uncontentious that the Applicant was not present in Australia for more than 12 months in the period of 4 years immediately before the day he made his application on 12 June 2022.

7. In his application for Australian citizenship, the Applicant applied for consideration under s 22(11) of the Act.[3] Section 22(11) of the Act provides for Ministerial discretion in certain circumstances if the person is in an interdependent relationship with an Australian citizen at the time of application. Materially, under s 22(11)(e) of the Act the Applicant must have been a permanent visa holder during their period of absence from Australia.

   [3] Exhibit R2, T-Documents, T7, Application for Australian Citizenship by Conferral.

8. The hearing proceeded on 20 July 2023 through audio-visual means. The Applicant was self-represented and gave oral evidence and submissions with the assistance of an interpreter. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore.

   BACKGROUND

9. The Respondent’s Statement of Facts, Issues and Contentions set out the background facts of this matter in chronological form.[4] Having regard to that chronology, and the documents upon which it relies, the Tribunal is satisfied of the following facts:

   [4] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 2 [5]-[13]

   (a)The Applicant is a citizen of the Slovak Republic and was born in April 1985;

   (b)The Applicant first arrived in Australia on 20 November 2008 as the holder of a Partner (Provisional) (subclass 309) visa.

   (c)On 19 February 2015, the Applicant was granted a Resident Return (subclass 155) visa whilst offshore;

   (d)The Applicant departed Australia on 2 October 2016 for a period of 949 days having returned on 9 May 2019, his Resident Return visa ceased on 2 October 2016;

   (e)On 4 March 2019, the Applicant applied for a Resident Return visa;

   (f)The Applicant currently holds a Resident Return (subclass 155) visa which was granted on 30 April 2019. Accordingly, he reacquired permanent residency on 30 April 2019;

   (g)The Applicant departed Australia on 16 January 2020 for a period of 10 days;

   (h)On 12 June 2022, the Applicant applied for Australian citizenship by conferral under s 21 of the Act. He sought a residence exemption under s 22(11) of the Act;

   (i)On 29 August 2022, a delegate of the Respondent refused the Applicant’s application for Australian citizenship by conferral on the basis that the Applicant was not present in Australia on the day four years immediately prior to lodging his application, and that he did not hold an Australian visa; and

   (j)The delegate was not satisfied that the Applicant was eligible to benefit from the partial exemptions in s 22(2) of the Act or that he satisfied the special residence requirements in ss 22A, 22B or 23 of the Act.

10. For the following reasons, the Tribunal has decided to affirm the decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the Applicant meets the general residence requirement under s 22(1)(a) of the Act. Specifically, whether the Applicant was present in Australia for the period of four years immediately before the day he applied for Australian citizenship by conferral.

    General residence requirement: s 22(1)(a) of the Act

12. Section 22(1)(a) of the Act requires the Applicant to be present in Australia for a period of four years immediately prior to his application for citizenship on 12 June 2022. The delegate was not satisfied that the Applicant had been present in Australia for four years immediately prior to lodging his application for citizenship and that he did not hold a valid visa that was granted in Australia.

13. The four-year period immediately before the Applicant lodged his application for citizenship is the period from 12 June 2018 to 12 June 2022. The Department’s records show the following chronology:[5]

    (a)the Applicant was offshore from 12 June 2018 to 9 May 2019, a total of 10 months and 28 days;

    (b)the Applicant was offshore from 16 January 2020 to 26 January 2020, a total of 10 days;

    (c)the Applicant did not hold a visa during the period of absence from 2 October 2016 to 29 April 2019;

    (d)the Applicant reacquired permanent residency on 30 April 2019.

    [5] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 5 [27], Annexure A; Exhibit R2, T-Documents, T11, Applicant’s interval calculator and visa history.

14. As the Applicant was overseas during the four-year period, the Tribunal must be satisfied that the Applicant meets the requirements under s 22(1A) of the Act. Section 22(1A) of the Act provides that 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 of absences was not more than 12 months;

    then, for the purposes of paragraph (1)(a), the person is taken to have been in Australia during each period of absence.  

15. The phrase “absent from Australia” was considered by Member Webb in Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 64 (“Neoh Weng Fei”). At [51] the Tribunal found:

    It is quite clear that the ‘absence’ from a place has a temporal or periodic character in reference to prior presence in the particular place. Thus, properly understood, ‘absent from Australia’ means more than simply not present in Australia.[6]

    [6] Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 64, [51].

16. In Neoh Weng Fei the Tribunal found that the question of “absent from Australia” involved a consideration of two elements:

    (a)whether the time spent outside Australia was expected to be finite, with an end point able to be identified or an arrangement made; and

    (b)whether the person had a clear intention to return to Australia.

17. Consistent with Senior Member Kirk in Bae and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1865, at [38],[7] this Tribunal approves of Member Webb’s reasoning.

    [7] Bae and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1865, [38].

18. The Respondent accepts that:

    …the Applicant’s absences are less than 12 months in duration within the relevant period and follow a period in which the Applicant was previously present in Australia.[8]

    [8] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 7 [35].

19. The Respondent also accepts that:

    … For the period 16 January 2020 to 26 January, a period of 10 days, the applicant was ‘absent’ from Australia. This is because during that time, the applicant was a permanent resident of Australia with a continuing connection to, and right to reside in Australia and his travel out of Australia could be said to be a short, temporary absence.[9]

    [9] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 7 [36].

20. However, the Respondent submits that the Applicant’s absence between 2 October 2016 to 9 May 2019 (a total of 949 days) could not be considered as a ‘temporary absence’ from Australia. The Tribunal places weight on the following submissions made by the Respondent:[10]

    (a)The Applicant applied for a resident return visa on 4 March 2019. However, he did not have any residence rights in Australia until he reacquired permanent residency on 30 April 2019. Indeed, the Applicant did not hold any Australian visa between 2 October 2016 to 29 April 2019.

    (b)The applicant was not present in Australia for 949 days. He departed Australia in 2016 due to unemployment before finding full-time employment at the Academy of Sciences of the Czech Republic.

    (c)The Applicant undertook postgraduate studies at Palacky University in Olomouc, Czech Republic from 10 September 2012 to 16 February 2021.

    (d)The Applicant relies on his relationship with his mother, Dagmar Savka, an Australian citizen, in support his connection to Australia. However, the issue for the Tribunal is ‘a continuing connection with Australia’ not Australians.

    [10] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, pages 7-9 [37].

21. The Applicant submits that he left Australia for the last time before 2019. He said:

    I always left only for the purpose of university studies, later employment in the Slovak Republic, later in the Czech Republic, because I had no job opportunities in Australia at that time.

    I declare on my honor that I have been on Australian soil the entire time since entering Australia in 2019, except for 11 days in Bali in 2020, which I duly stated in the application. I honestly declare that I was also on the territory of Australia on June 12, 2022. I can prove my claims. My passport was not used.[11]

    [11] Exhibit A1, Declaration of Honor of Reason for Your Last Departure from Australia, page 1.

22. While under cross-examination, the Applicant was asked by the Respondent why he stated on his passenger card, dated 2 October 2016, that he was leaving Australia permanently. The Applicant explained that he copied this passenger card from ones he had done previously because of his limited English proficiency.

23. In his oral evidence to the Tribunal, the Applicant submitted that he lived abroad in Slovakia because he was unable to find employment in Australia. In his written statement provided to the Tribunal, he said the following about his departure from Australia:

    For my last departure from Australia was that despite best efforts I could not find a job in Australia. That was one of the reasons for leaving Europe and accepting a job offer in Europe.

    … In my master’s thesis at the University of Paval Jozef Safarik, at the Faculty of Arts in the Department of Political Science in Kosice in the Slovak Republic, I wrote a thesis entitle ANALYSIS OF THE CAUSES OF EMIGRATION AND MIGRATION OF CZECHO-SLOVAK CITIZENS TO AUSTRALIA.

    The annotation is in English, the other over 200 pages are of course in Slovak. This work was carried out on an empirical-historical-fractographical basis. At that time, it was the only work of this kind in Slovakia and the Czech Republic. The work also includes interviews with all former prime ministers of the Slovak Republic since 1993 on this topic.

    So, since 2012, when I wore my diploma thesis, and later at Palacky University until 2021, I worked with a lot of people from exile who emigrated from the former Czechoslovakia to Australia, in person or online. As part of my research, I visited many Slovak and Czech expatriate clubs and organizations in Australia, specifically in Perth as well as in Melbourne.

    … So all this time I was directly or indirectly connected – connected with Australia and spread Australia’s good name abroad. I believe that the above evidence proves my permanent contact and connection with Australia in the years 2008 to 2019. This connection with Australia was and is through my family or studies.[12]

    [12] Exhibit A3, Proof of Connection with Australia, page 2.

24. In both his oral and written evidence to the Tribunal, the Applicant contends that the topic of his thesis shows his connection with Australia. Although the thesis was in the Slovak language, the annotation was provided in English. The Applicant’s thesis concerned the history of Slovak and Czech exile in Australia from 1948 to 1989.[13]

    [13] Exhibit A3, Diploma Thesis, Annotation, page 5.

25. The Applicant’s mother provided a written statement to the Tribunal outlining the Applicant’s connection with Australia:

    The work, because he couldn’t find a job here in Australia. The proof of this is that in time before his last departure from Australia, he was in the job search system – Centrelink – for a long time. They refused to hire him because Australian companies said he was overqualified.

    … I believe that the connection with me is automatically a connection with Australia, because I have lived here continuously for 14 years. After his last arrival in Australia in 2019, my son successfully graduated from the Project Management subject at South Metropolitan Tafe in Perth.

    I think that if my son did not feel comfortable on Australian soil, he would not stay here.

    … For example, he could be an asset for the Australian army, which was interested in cooperation, but with whom he could not establish cooperation, because he is not an Australian citizen.[14]

    [14] Exhibit A3, Declaration of Dagmar Savka, pages 1-2.

26. The Tribunal is sympathetic to this evidence. However, this is not a matter where the Tribunal has been conferred discretions based on compelling or compassionate circumstances. On the evidence before it, the Tribunal is not satisfied that the Applicant meets the strict general residence requirement under s 22(1)(c) of the Act.

    Ministerial discretion – person in an interdependent relationship: s 22(11) of the Act

27. The Applicant applied for exemption under s 22(11) of the Act. In refusing the Applicant’s application for citizenship, the delegate of the Respondent was not satisfied that the Applicant met the requirements permitting the exercise of Ministerial discretion under s 22(11) of the Act.

28. The Ministerial discretion in s 22(11) of the Act applies for the purposes of subsection 22(1)(c) of the Act. The issue in this matter is whether the Applicant satisfies s 22(1)(a) of the Act. The Respondent submits, and the Tribunal accepts, that the Ministerial discretion under s 22(11) of the Act is not applicable to the Applicant’s case. Furthermore, the evidence is that the Applicant was not a permanent visa holder during a substantial period of his absence from Australia.[15] He therefore does not meet s 22(11)(e) of the Act.

    [15] Exhibit R2, T-Documents, T11, Applicant’s interval calculator and visa history.

    Other considerations

29. The Tribunal has considered whether the Applicant satisfies any of the special residence requirements under the Act.

30. To satisfy the special residence requirement under s 22A of the Act, the Applicant must be seeking to engage in an activity that is of benefit to Australia. To satisfy the special residence requirement under s 22B(1)(a) of the Act, the Applicant must be engaged in a particular kind of work requiring regular travel outside of Australia specified in s 22C(3) of the Act by way of operation of the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021. Having regard to the evidence before it, the Tribunal is not satisfied that the Applicant meets the special residence requirements.

31. For completeness, the Tribunal is also satisfied that the Applicant does not meet the defence service requirement.

    Conclusion

32. Based on the findings above, the Tribunal is not satisfied that the Applicant meets the general residence requirements under s 22(1) of the Act. The Applicant is therefore ineligible for conferral of Australian citizenship as he does not satisfy s 21(2)(c) of the Act.

33. Furthermore, the Tribunal is not satisfied that the Applicant satisfies the special residence requirements under ss 22A and 22B under the Act. He also does not meet the requirements for Ministerial discretion under s 22(11) of the Act.

34. Consistent with the findings above, it may nevertheless be open to the Applicant to submit a subsequent application for the conferral of citizenship. Due to the effluxion of time, a subsequent application may now meet the general residence requirement under s 22(1) of the Act.

    DECISION

35. The Tribunal affirms the decision under review to refuse the Applicant to become an Australian citizen by conferral.

I certify that the preceding 35 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[sgnd]..................................

Associate  

Date of Decision:

11 August 2023

Date of Hearing:

20 July 2023

Representation for the Applicant:

Self-represented

Solicitor for the Respondent:

Ms Daphne Jones-Bolla
Sparke Helmore

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
R1	Respondent’s Statement of Facts, Issues and Contentions	R	25/1/2023	25/1/2023	20 July 2023
R2	T-documents	R	Various	29/9/2022
EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
A1	Bundle of Evidence ·     Visa Entitlement Verification check (29/8/2022) ·     Statement of Employment (8/8/2022) ·     Report Employment Income 4-17 June 2022 ·     Declaration of Honor of Reason for Your Last Departure from Australia (29/82022)	A	Various	29/8/2022	20 July 2023
A2	Bundle of Evidence ·     Application for Australian Citizenship by Conferral (12/6/2023) ·     Australian Driver Licence of Miroslav Tomecek ·     Electronic Ticket Receipt (3/5/2019) ·     Flight Itinerary to Bali (21/12/2019) ·     IMMI Grant Notification (Resident Return Visa) (30/4/2019) ·     Slovak ID of Miroslav Tomecek	A	Various	31/8/2022
A3	Bundle of Evidence ·     Proof of Connection with Australia (11/11/2022) ·     TAFE Education ·     Diploma of Project Management ·     Worksheet from Institute of Molecular Genet ·     Worksheet from Soliarity ·     Worksheet from Astraa Forwarding ·     Confirmation of Studies of Palacky University ·     Declaration of Dagmar Savka (Applicant’s Mother) (11/11/2022) ·     Diploma Thesis ·     Certificate of State Examination (Slovakia)	A	Various	13/11/2022
A4	Job Application to Opal Aged Care Including Covering Letter (15/1/2019)	A	15/1/2019	18/11/2022
A5	Current Slovak Passport of Miroslav Tomecek Including Covering Letter (17/4/2023)	A	17/4/2023	18/4/2023