Meeting the General Residence Requirement for Australian Citizenship

In Gorbunkova and Minister for Home Affairs (Citizenship) [2019] AATA 853, the application for Australian citizenship by conferral under s 24(1) of the Citizenship Act was refused on 20 July 2018 on the basis that the Applicant did not satisfy general residence requirements under s 22 of the Act at the time of decision.

Background

The Applicant is a 32-year-old citizen of Azerbaijan who arrived in Australia on 18 March 2008 and was granted a Partner (Permanent) (subclass 100) Visa on 01 June 2013.  The Applicant currently holds a Residence Return BB155 (Permanent) Visa

On 07 February 2018, the Applicant applied for conferral of Australian citizenship.

General Residence Requirement (s 22 Citizenship Act)

To satisfy the general residence requirement an applicant must meet all of the following three requirements set out in the Act:

1.       the applicant was present in Australia for the period of 4 years immediately before applying for citizenship – paragraph 22(1)(a)); and

2.       the applicant must not have been present in Australia as an unlawful non-citizen at any time during that 4 year period – paragraph 22(1)(b); and

3.       the applicant was present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship -paragraph 22(1)(c).

Department records indicated that the Applicant was absent from Australia for a total of 321 days in the 12-month period immediately before applying for citizenship.  As she was absent for more than 90 days, she exceeded the allowable absence and could not satisfy paragraph 22(1)(c) of the Act.

The Applicant requested to be considered under the Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

The Applicant claimed that the Delegate’s decision was incorrect in choosing not to apply the discretion despite being married to an Australian citizen and having two minor children who are Australian citizens.  The Applicant’s spouse is employed outside Australia and, to keep the family together, the Applicant and her children reside with her husband outside of Australia.

AAT Considerations

In considering whether s 22(1) of the Act was met, the Tribunal noted that the Applicant failed to be present in Australia for the period of 4 years immediately before the day the person made the application as she was only present for a total of 89 days during that period.  The residence requirement also requires that an Applicant be present in Australia as a PR for the period of 12 months immediately before the day of application.  However, the Applicant was only present in Australia for 44 days of the required period.

In considering whether a person has a ‘close and continuing association with Australia’ for the purposes of s 22(1)(9) of the Act, the AAT noted that the Applicant:

·         had been living outside Australia with an Australian citizen partner; and

·         has been living overseas with her family unit, including Australian citizen minor children, and she provides evidence of imminent plans to return to Australia with her family to live; and

·         has close family members who have substantial residence in Australia and are Australian citizens or PR.

 

However, the Tribunal decided that there was insufficient evidence to support a conclusion that she had close and continuing association in Australia as there was no evidence that the Applicant:

·         Migrated to and established a home in Australia prior to the period overseas;

·         Regularly returned to Australia;

·         Regularly resided in Australia;

·         Has been on leave from employment in Australia while accompanying their spouse or partner overseas;

·         Owns property in Australia;

·         Paid income tax in Australia over the past four years; and

·         Participated in any Australian community-based activities or organisations.

 

Decision

The only relevant evidence before the Tribunal is the Applicant’s connection to family.  However, a close and continuing association to Australia is broader than just having family connection.  It requires embracing the values, culture and the institutions of the country, which can only be obtained through long-term presence in Australia.  The Tribunal affirmed the decision of the Delegate

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