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Obscure Provision Enables Talented Footballer to Get Citizenship!

Would you like to read about a citizenship case that had a positive conclusion for the applicant?

How about one where the applicant was able to rely on an “obscure” exception to the “general residence” requirement of section 22(1) of the Australian Citizenship Act  in order to persuade the Tribunal to set aside a decision by the Department to refuse his citizenship application?

How about a citizenship case with a compassionate outcome?

Well, a case that was handed down by the Tribunal about a week ago, Oldfield and Minister for Immigration and Border Protection (Citizenship) AATA 1919 (4 October 2017) fits the description!

Here’s the story:

The applicant, Chris Oldfield, was born in the UK, and had trained to be a professional soccer player, as a goal keeper, from a very early age.  Unfortunately, when he reached the age of 18 ½, his contract was not renewed by the Liverpool Football Club.  But he was spotted by an Australian sports agent, who encouraged him to come to Australia to continue his career. 

So, in 2012, Mr Oldfield came to Australia on a Working Holiday visa. Then, in November 2016, he was granted a Subclass 801 Partner visa. And in March 2017, he applied for Australian citizenship, even though at the time of his application he had not been a permanent resident for 12 months.

Was his application for Australian citizenship therefore “dead on arrival”?

Not necessarily!

Mr Oldfield sought to invoke an exception to the general residency requirement that is available under section 22(6) of the Citizenship Act.

This section of the Act provides that the Minister has discretion to treat a period as one in which an applicant was present in Australia as a permanent resident if the applicant would  “suffer significant hardship or disadvantage if that period was not treated as one during which the person was present in Australia as a permanent resident”.

In other words, this section  of the Act  enables the Department to exercise discretion to “deem” that a person was in Australia as a permanent resident, so that the person can satisfy the general residency requirement, even if, as a matter of fact, the person hasn’t actually been in Australia as a permanent resident during that period.

Here, Mr Oldfield sought to have 8 months of the 12 month period prior to his application as a period during which he was deemed to be in Australia as a permanent resident.

Mr Oldfield claimed that he would suffer significant disadvantage or hardship if discretion were not exercised to deem the 8 month period as one in which he was present in Australia as a permanent resident, so that he could “accelerate” his citizenship application.

The reason that Mr Oldfield sought to have Ministerial discretion exercised in his favour had to do with the difficulties that his status as a non-citizen were presenting for his soccer career.

Evidently, Mr Oldfield is a highly skilled goal keeper. He was voted as the best goal-keeper playing outside the “A-League” for 3 years in a row. 

However, he was unable to secure a contract with an A-League team because of rules that limited the number of “visa players” (i.e. non-citizens) who could play in the A-League.  Apparently, the teams in the A-League have a practice of only signing visa players who have gained some degree of fame and recognition while playing outside of Australia, in order to attract people who want to watch these known international “stars” play at the A-League matches.

So Mr Oldfield’s status as a non-citizen was directly limiting the growth and development of his career as a soccer player, and consequently, it was harming the economic well-being of his family.

Because Mr Oldfield has apparently spent most of his life working to develop his soccer abilities, he apparently didn’t have other strong educational or employment skills. He had been able to find work in Australia as an unskilled builder’s labourer working at construction sites. His wife’s capacity to work was also limited, as she had twin infant sons and was able to be at her job as a teacher only 2 days a week. Further, the parents of Mr Oldfield’s wife was only to provide limited care assistance with the infant children, as they already had responsibilities as carers for a daughter who suffers from a significant disability.

The Tribunal concluded that in these particular circumstances, Mr Oldfield was indeed suffering a significant disadvantage with regard to his inability to use his skills and talent as a soccer player, the only field of work for which he had trained.  And this disadvantage was directly attributable to the fact that he did not have Australian citizenship, and to the reluctance of A-League teams to give contracts to players who do not have citizenship.

So the Tribunal saw fit to exercise discretion, to treat the entire p12 month  period prior to the citizenship application as a period when Mr Oldfield had been present in Australia as a permanent resident (even though as a matter of fact he had only been a permanent resident for 4 months before the application), and thus to find that he satisfied the residency requirement and was eligible for the grant of Australian citizenship.

A happy story, indeed!

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