Al-Hadethi and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 447
•30 June 2016
Al-Hadethi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 447 (30 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3768
Re
Maki Al-Hadethi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R Deutsch Deputy President
Date 30 June 2016 Place Sydney The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Professor R Deutsch Deputy President
Catchwords
CITIZENSHIP – general residency requirement -– whether the applicant had a close and continuing association with Australia in the 4 years prior to citizenship application – discretion to treat periods of absence as periods of presence in Australia as a permanent resident – whether close and continuing association with family members in Australia is sufficient – tribunal does not find a close and continuing association with Australia – decision affirmed
Legislation
Australian Citizenship Act 1948 (Cth), s 13(9)
Australian Citizenship Act 2007 (Cth), ss 22(1), 22(9), s 24(1),
Cases
Herrmann and Minister for Immigration and Border Protection [2014] AATA 105
Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sapranov and Minister for Immigration and Citizenship [2011] AATA 126
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118Secondary Materials
Australian Citizenship Bill 2005 (Cth) Explanatory Memorandum
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967Macquarie Dictionary Publishers Pty Ltd Sydney Australia 6th edition (2013)
REASONS FOR DECISION
Professor R Deutsch Deputy President
30 June 2016
The decision under review is a decision made by a delegate of the Respondent, the Minister for Immigration and Border Protection (“Minister”) under s 24(1) of the Australian Citizenship Act 2007 (“Act” or “Citizenship Act”), to refuse to approve the Applicant's application for Australian citizenship.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (“Tribunal”) for review of a decision made under s 24 of the Act.
More specifically, the application concerns an issue as to whether the discretion in s 22(9) of the Act should be exercised so as to treat any of the Applicant’s periods of absence from Australia in the 4 years immediately before he applied for Australian citizenship as periods in which he was “present in Australia as a permanent resident”. If he were to be so treated he would satisfy the “general residency requirement” in s 22(1) of the Act and would be eligible to become an Australian citizen, by conferral, under s 21(2) of the Act.
This in turn depends on whether or not the Applicant had a “close and continuing association with Australia” in the 4 years immediately prior to his citizenship application.
If such an association is found not to exist, the Applicant must fail.
If such an association is found to exist, the Applicant will succeed if the Tribunal exercises its discretion in the Applicants favour: s 22(9) of the Act.
FACTS
The Applicant is a 66 year old citizen of Iraq and is a qualified cardiologist in Iraq. It is understood but unconfirmed that he is also a qualified cardiologist in the United Arab Emirates (“UAE”).
He and his wife were married in August 1976 in Iraq and his wife became an Australian citizen on 26 June 2014.
They have 4 sons born in 1977, 1980, 1982 and 1984. Two of the 4 sons live in Australia and have been Australian citizens since 2012 and 2013 respectively. The other 2 sons live in the UK.
He has continually resided in the UAE since 2006, with the exception of a period spent in Australia in 2010.
The Applicant first arrived in Australia on 3 April 2010 and was granted a protection (subclass 866) visa on 23 September 2010. He moved back to the UAE on 28 October 2010, and commenced employment at a hospital in Abu Dhabi two days later.
On 13 July 2015, the Applicant applied for Australian citizenship by conferral under s 21 of Act.
On 15 July 2015 the Applicant was granted a subclass 155 (permanent) visa which he still holds to this day.
The movement records held by the Minister’s department for the Applicant indicate that he was present in Australia:
·for 175 days (and absent for 1286 days) in the four years before his application for citizenship (that is, between 13 July 2011 and 13 July 2015); and
·for 10 days (and absent for 355 days) in the 12 months before his citizenship application (that is, between 13 July 2014 and 13 July 2015).
On 21 July 2015, a delegate of the Minister refused the application on the basis that the Applicant:
·did not satisfy the residence requirements in s 22(4)(d) of the Act; and
·could not benefit from any of the exemptions or discretions set out in s 22 of the Act.
On 27 July 2015, the Applicant applied to the Tribunal for review of the delegate’s decision.
ANALYSIS
Eligibility for citizenship based on general residency
In accordance with to s 21(2)(c) of the Citizenship Act, the Applicant is only eligible to become an Australian citizen, by conferral, if he satisfies one of the following:
·the “general resident requirement” (in s 22(1) of the Citizenship Act);
·the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act); or
·the “defence service requirement” (in s 23(1) of the Citizenship Act).
In this case, it is agreed that the Applicant is not relying on either the special resident or the defence service requirement. Thus, to be eligible for Australian citizenship by conferral, the Applicant must satisfy the “general residence requirement” in s 22(1) of the Citizenship Act.
Subsection 22(1) of the Citizenship Act provides that:
22 General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies that 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 a 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.
Since the Applicant was only present in Australia for 175 days in the four years immediately before the Citizenship Application, including only 10 days in the 12 months immediately before the Citizenship Application, he cannot satisfy the “general residence requirement”.
Ministerial (spousal) discretion
However, there are some ministerial discretions upon which the Applicant might be able to rely to secure such citizenship. The only ministerial discretion upon which the Applicant has sought to rely, is the discretion in s 22(9) of the Citizenship Act, which provides:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, 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 a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
It is not in dispute that the Applicant meets the requirements of s 22(9)(a), (b) and (c) of the Citizenship Act.
What is in dispute is whether the Applicant had a “close and continuing association with Australia” during any or all of the periods in which he was absent from Australia as a permanent resident in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act.
Objects or purpose of s 22(9) of the Citizenship Act
Under s 13(9) of the Australian Citizenship Act 1948 (“1948 Act”), the predecessor to s 22(9) of the Citizenship Act, the Minister had a discretion to grant a certificate of Australian citizenship to a person who was a permanent resident and the spouse, widow or widower of an Australian citizen. There was no requirement for the spouse to meet either the “residency” requirement or the “close and continuing association with Australia” requirement which applied to other applicants for Australian citizenship.
The Explanatory Memorandum (“EM”) to the Australian Citizenship Bill 2005 which ultimately introduced the Citizenship Act, including the spousal discretion in s 22(9) of the Citizenship Act, states (at p29):
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example, if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result, this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia. [Emphasis added]
It is clear from the EM that, unlike former s 13(9) of the 1948, s 22(9) of the Citizenship Act is intended to require spouses of Australian citizens to meet the same criteria as other adult applicants for Australian citizenship, including the “residence” and “close or continuing association with Australia” requirements. The EM acknowledges that, in some circumstances, the spouse of an Australian citizen may have difficulty meeting the residence requirements (for example, where they accompany their Australian citizen spouse overseas), hence the inclusion in s 22(9) of a discretion to waive all or part of the residence requirements for the spouse of an Australian citizen who can demonstrate a “close and continuing association with Australia”: see Sapranov and Minister for Immigration and Citizenship [2011] AATA 126 at [28] to [30] and Taher and Minister for Immigration and Border Protection [2013] AATA 917 (“Taher”) at [29] – [30].
As Senior Member Fice has observed in Taher at [31]:
It appears that the intention [of s 22(9) of the Citizenship Act] was to remove the presumption of cohabitation [which existed in s 13(9) of the 1948 Act] by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided that the person was a permanent resident throughout that time.
Close and continuing association with Australia
The phrase “close and continuing association” is not defined in the Citizenship Act. The words in the phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The latest version of the Macquarie Dictionary (6th edition (2013) Macquarie Dictionary Publishers Pty Ltd Sydney Australia) defines “close” (at 287) as meaning “near, or near together, in space, time or relation ”, “continuing” (at 327) as meaning “to cause to last or endure; maintain or retain, as in a position... to remain in a particular state or capacity ” and “association” (at 82) as “the act of associating....the state of being associated....connection or combination.”
The phrase “close and continuing association with Australia”, as it appears in s 22(9)(d) of the Citizenship Act, has been considered in a number of recent Tribunal decisions, including:
(a)Sie and Minister for Immigration and Border Protection [2014] AATA 60 at [37],
(b)Herrmann and Minister for Immigration and Border Protection [2014] AATA 105 at [33],
(c)Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (“Ul Haque”) at [52],
(d)Taher at [47] and [48] and
(e)Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [25].
Consistently, these decisions have concluded that whilst an applicant for Australian citizenship may have a close and continuing association with Australian family that is not the same as having a close and continuing association with Australia. This is self-evident from the words in the subsection, namely that a person must have had a “close and continuing association with Australia” in the relevant period. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had a “close and continuing relationship with Australia” in the four years immediately before his or her citizenship application for the purposes of s 22(9)(d) of the Citizenship Act.
Citizenship Policy
At the date of hearing and at the time of the final submissions of parties, the Australian Citizenship Instructions (“ACIs”) were in operation. From 1 June 2016 the Citizenship Policy replaced the ACIs. Those parts of the policy guidance which are relevant to this matter, namely Part 5 and 5.8 of the ACI and the equivalent Chapter 7 and Chapter 7A of the Citizenship Policy remain the same in substance. The Citizenship Policy states:
The role of the Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers.
It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Chapter 7 of the current policy is concerned with citizenship by conferral. Of particular relevance here, is Chapter 7A, under the heading Ministerial discretion – Spouses and de facto partners (s 22(9) and s22(10)),which sets out the following eleven non-exclusive factors that “may” demonstrate a “close and continuing association with Australia” for the purposes of the Ministerial discretion in s 22(9) of the Citizenship Act. These factors were previously located in paragraph 5.18 of the ACIs and for ease of reference will be referred to as such for the remainder of this decision recognising that the submissions of the parties to this matter were made in the context of that document. The factors are as follows
·evidence that the person migrated to and established a home in Australia prior to the period overseas;
·Australian citizen children;
·long term relationship with Australian citizen spouse or de facto spouse;
·extended family in Australia;
·regular return visits to Australia;
·regular periods of residence in Australia;
·intention to reside in Australia;
·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas;
·ownership of property in Australia;
·evidence of income tax paid in Australia over the past four year;
·evidence of active participation in Australian community based activities or organisations.
As already mentioned, the above eleven factors are not intended to be exclusive. As stated by Senior Member Fice in Taher at [47]:
…the factors referred to [in 5.18 of the ACIs] should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. [Emphasis added]
Paragraph 5.18 of Chapter 5 of the ACIs states that the factors listed are factors that “may” demonstrate a “close and continuing association with Australia” and that “they include but are not limited to” the factors listed.
Accordingly, whether the Applicant had a “close and continuing association with Australia” throughout the relevant period is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in paragraph 5.18 of the ACIs.
The factors as they apply to the Applicant
The list of factors in the ACIs will be dealt with in the order they appear in the ACI for ease of reference.
Applying the factors listed in paragraph 5.18 of the ACIs to the Applicant’s factual circumstances, the Tribunal makes the following observations:
(a)Evidence that the person migrated to and established a home in Australia prior to the period overseas
The applicant arrived in Australia on 3 April 2010 and was granted permanent residence in Australia on 23 September 2010. At that time, he and his wife and son were living in the same property in Merrylands, in the state of New South Wales. The family later moved to a property in South Wentworthville.
(b)Australian citizen children
The applicant has two Australian citizen children residing in Australia in born in 1977 and one in 1984.
(c)Long term relationship with Australian citizen spouse of de facto partner
The Applicant married Mrs Suad Shakir Noaman in August 1976 and they have remained in a permanent relationship ever since (ie a married relationship of almost 40 years). Mrs Noaman became an Australian citizen on 26 June 2014.
(d)Extended family in Australia
The Applicant also has a daughter-in-law who is an Australian citizen resident in Australia and two Australian grandchildren who are also resident in Australia.
(e)Regular return visits to Australia
The Applicant has made regular trips to Australia during his annual holidays.
(f)Regular periods of residence in Australia
The Applicant’s periods of residence have been limited as indicated previously.
(g)The person has been on leave from employment in Australia while accompanying their spouse or partner overseas
This factor does not apply in this case.
(h)Intention to reside in Australia
The Applicant has stated it is his intention to reside in Australia. From oral evidence given at the hearing the Applicant plans to move here when he retires but the timing very much depends on the family’s financial needs and the completion of the redevelopment of the Merrylands project. It may also depend on whether the Applicant will be able to sell his Iraqi properties which may be difficult given the current security situation in Iraq.
(i)Ownership of property in Australia
The records support the position that the Applicant provided the funds to purchase the property at Merrylands, and is funding the redevelopment of that property(T3 pages 64-76). Where the funds originated from was not conclusively established by the evidence.
That redevelopment appears to be at a very early stage with no builder having been identified as at March 2016.
(j)Evidence of income tax paid in Australia over the past four years
No clear or cogent evidence was provided on this aspect.
(k)Evidence of active participation in Australian community based activities or organisations
There is no other evidence of the Applicant’s participation in Australian community based activities or organisation.
Also of relevance to one or more of these factors are the following matters which emerged from the oral evidence given at the hearing it appears to be the case that the Applicant:
·sat 2 English tests in 2010 but has otherwise not made any specific attempts to improve his English or to obtain registration in Australia so as to enable him to practise his profession in Australia;
·does not hold an Australian drivers licence;
·has lived with his wife in the UAE throughout the relevant 4 year period with his wife spending some time in Australia to support their son and to attend to their property;
·has 2 properties in Iraq and about $200,000 in a bank account in the UAE;
·lives in rental accommodation in the UAE which he has leased on an annual basis since 2010;
·pays, with his wife, the rent on the South Wentworthville property where his son lives.
Clearly, these factors need not be the only ones to be considered. Indeed in this case, there are several other factors which the Applicant argues may be relevant to a consideration of whether there is a “close and continuing association with Australia” in the relevant period.
Financial investments in Australia and financial support of Australian citizens
First, the Applicant argues that the fact that he has transferred significant funds over the years to Australia for the purposes of investing in Australia and to support his wife and also his youngest son (T3 pages 52-59) is relevant. More specifically the Applicant claims to have transferred around $1 million to Australia since 2010 but the flow of those funds from offshore to Australia has not been fully substantiated.
Further, Mrs Noaman is totally financially dependent on her husband and his financial support for her is intended to make their future together in Australia one of financial independence.
No close and continuing association with any other country
Secondly, the Applicant argues that the fact that he has no close and continuing association with a country other than Australia is relevant.
In this context, whilst he has two sons in the UK, he has no other connections to the UK. He studied there over 30 years ago, but he has no work there, no investments, no extended family and has not spent much time there. He visits his sons, but he neither lives there nor does he intend to live there.
Thus, it is contended by the Applicant that the only country he has a close and continuing association with, is Australia.
Whilst this is not listed as a factor in the ACIs or the Citizenship Policy, it is nonetheless the contention of the Applicant that it is a relevant factor. If he had close connections with two or more countries, it may be argued that his connections to Australia are less because of his connections to another country. Whilst such a proposition is not conceded by the Applicant, it is contended that the fact there is no other country with which he has close and continuing connections is a relevant factor to consider.
Whilst it is not contended that the requirement is assessed by reference to other countries where the Applicant has a close and continuing association, the fact that the Applicant has no close and continuing associations with any other country is relevant. He is working in the UAE, because that is where he is able to get well-paid work. Without the work he would not remain in the UAE, and in fact would not be permitted to do so under UAE law.
Specifically, the decision of this Tribunal in Ul Haque at 49 would seem to support the view that the lack of any association with a foreign country may be relevant to an assessment made under s 22(9)(d).
Recognised refugee status in Australia
Thirdly, the Applicant contends that the nature of his special visa status is a factor that gives rise to the conclusion that the Applicant has a “close and continuing association with Australia”.
The Applicant is an Iraqi national. The war and conflict in Iraq meant that he had to flee his home country in 2006 and he has not returned to Iraq since then. He was assessed as meeting Australia's protection obligations and none of the cessation provisions apply. Therefore, he is still a refugee. The circumstances in Iraq have not improved since 2010 and in fact may be worse given the rise of the Islamic State.
The provisions for cessation of refugee status can be found in Article 1C of the Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol relating to the Status of Refugees (“Refugee Convention”). The relevant provision is Article 1C which deals with the cessation of the grant of refugee status. None of the six circumstances outlined in Article 1C apply in this case.
Even though his residence in Australia is now based upon his Resident Return visa subclass 155 the Applicant contends that the mere granting of another visa does not activate the cessation provisions of article 1C. This is because the only country in which he is able to live as a refugee is Australia.
It is the contention of the Applicant that the positive assessment of refugee status by Australia coupled with the fact that this assessment has not ceased in accordance with Article 1C, is itself a factor which supports the conclusion that there is a “close and continuing connection with Australia”. This is a novel argument that as far as can be ascertained has not been put before either in this Tribunal or before any court.
The concern under s 22(9) is with the concept of “a close and continuing association”. The mere fact that someone has been granted a protection visa or that he or she arrived as a refugee and his or her status continues to be such, does not speak to that person’s association with Australia.
Of itself the holding of a protection visa or an official acknowledgement of refugee status is not an act of associating with Australia or the Australian community. The grant of a protection visa while hugely important and beneficial to the recipient, which gives the recipient the right to reside in Australia, does not go further to establish an association with this country. It is the behaviour and actions of the Applicant that create that association and not merely the grant of a particular type of visa or the grant of refugee status.
In line with the object of the Act and the relevant policy, the association with Australia is governed by the 11 factors referred to earlier and other factors that may be relevant but that later category includes neither the specific nature of the visa the Applicant holds nor his refugee status.
CONCLUSIONS
It is contended by the Applicant that the above facts establish that at all relevant times he has or had a close and continuing association with Australia.
It is contended by the Respondent that he did not have such an association at all relevant times.
The Tribunal concludes that the Applicant did not have a close and continuing association with Australia at all relevant times because:
(a)Even if it could be said that the Applicant now has such an association he did not have such an association during all the Applicants periods of absence in the 4 year period immediately before he made his application. That is the period to which attention is drawn by s 22(1) and (9).
(b)Most of the associations that the Applicant refers to are associations between the Applicant’s Australian citizen family members (ie his wife and his children) and Australia. His links with such citizens are relevant but not sufficient.
(c)As indicated above, the Applicant’s visa status and his status as a refugee are not relevant in establishing the relevant association.
(d)The Applicant’s absences from Australia during the relevant 4 year period have been substantial.
The factors to be taken into account in exercising the discretion were properly considered by the Respondent and the correct and preferable decision is that those factors do not on balance give rise to a close and continuing association throughout the relevant 4 year period. The key factors in support are the presence of his wife and children in Australia, a long term ill-defined intention to reside here and his financial support for his family during the relevant period. These are important matters but are not sufficient to establish a basis for the exercise of the discretion in his favour.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch Deputy President
..........................[sgd]..............................................
Associate
Dated 30 June 2016
Date(s) of hearing 18 January 2016 Date final submissions received 4 March 2016 Solicitors for the Applicant Mr K Murphy, D'Ambra Murphy Lawyers Solicitors for the Respondent Mr K Eskerie, Sparke Helmore
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