Al-Khalidi and Minister for Home Affairs (Citizenship)
[2019] AATA 700
•12 April 2019
Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700 (12 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1428
Re:Hanaa Abdulmajeed Saleem Al-Khalidi
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 April 2019
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
Citizenship – citizenship by conferral – general residence requirement – spouse of Australian citizen – spousal discretion – whether applicant had close and continuing association with Australia during periods of absence from Australia in relevant period – decision under review affirmed
LEGISLATION
Citizenship Act 2007 (Cth)
CASES
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Ho v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 664
Ji v Minister for Immigration and Border Protection [2016] AATA 887
Khan v Minister for Immigration and Border Protection [2016] AATA 284
McCoy v Minister for Immigration and Border Protection [2014] AATA 771
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Rasiah v Minister for Immigration & Border Protection[2015] AATA 630
Saba v Minister for Immigration and Border Protection [2014] AATA 579
Sabumei v Minister for Immigration and Border Protection [2014] AATA 648
Sie v Minister for Immigration and Border Protection [2014] AATA 60
Ul Haque v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 118
Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943
SECONDARY MATERIALS
Australian Citizenship Policy, effective 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 April 2019
The Applicant, Mrs Hanna Abdulmajeed Saleem Al-Khalidi (the Applicant) appeals to this tribunal against a decision made by the delegate of the Minister (the Respondent) to refuse her application for citizenship by conferral.
That decision was made on 23 February 2018 and was appealed to this Tribunal on 20 March 2018. The matter was heard on 2 April 2019.
The grounds given by the delegate for the initial refusal were that the Applicant failed to satisfy the general residency requirements of the Citizenship Act 2007 (the Act) having not spent the requisite time physically present in Australia and that she did not have a close and continuing association with Australia during the relevant time for consideration of her application.
NARRATIVE
The Applicant was born in Iraq in 1945 and is currently an Iraqi citizen. For many years she has lived in the United Arab Emirates (UAE) and while there, in 2002, met and married Dr Omar Jaffar, an Australian citizen. Both partners had children from previous marriages. All Dr Jaffar’s children are Australian citizens, living in Australia and it appears that the Applicant’s adult children live in Canada.
The Applicant first arrived in Australia in March 2010 as the holder of a Partner Visa and is now the holder off a Return Resident Visa. She has made several trips to Australia since 2010, usually for relatively short periods of time.
On 7 April 2017 she applied for Australian citizenship by conferral and. As noted above, this application was refused on 23 February 2018.
THE LEGISLATIVE SCHEME
Citizenship by conferral is applied for under s 21 of the Act and provided for under section 22.
Where an application for citizenship by conferral is made the Minister must either approve or refuse the application, it cannot be left undetermined. Where a person satisfies the necessary criteria, the Minister must approve the application. These criteria are set out in section 21(2) as follows:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
These qualifications are conjunctive, that is, each of them must be satisfied before the Minister is required to approve the application.
The general residency requirement which appears in s 21(2) (c) is given clearer definition in s 22(1):
(1) Subject to this section, for the purposes of section 21 a person satisfies the 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 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.
If however, an applicant is absent from Australia for part of the periods, as specified, before their application is made then a calculation is made according to the provisions of parts of s 22:
(1A) 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 or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Further under section 22, some discretion or latitude is given to the Minister in dealing with applications made by the spouse, de facto partner or surviving spouse of an Australian citizen in the following terms:
(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.
For the purposes of determining this application the key sections of the legislation are sections 21(2)(c) and 22(9)(d) highlighted above. In other words:
1.Does the Applicant meet the residency requirements; and
2.In the event that she does not, are there sufficient reasons for the Minister to exercise his discretion and nevertheless grant the application?
THE GENERAL RESIDENCY REQUIREMENT
The determination of this matter is an issue of fact not opinion.
Travel records for the Applicant have been provided to the Tribunal[1] and they establish, as a fact that:
·In the four year period immediately prior to the making of the citizenship application, the Applicant was physically present tin Australia for 106 days and absent from Australia for 1355 days;
·In the 12 months immediately prior to the making of the citizenship application, the Applicant was present in Australia for 35 days and absent from Australia for 330 days.
[1] Affidavit of Ms Monica Perotti dated 13 July 2018.
The Applicant clearly fails to meet the residency requirements of sections 22 (1A) and 22 (1B) and thus cannot meet the general residency requirement of section 21(2)(c).
SHOULD THE MINISTER EXERCISE HIS DISCRETION?
As explained above, where the general residency requirement is not met, an application may nevertheless be considered by the Minister if he is satisfied that, the Applicant is the spouse of of an Australian citizen (as the Applicant is) and there are sufficient reasons to do so. In order for that power to be enlivened, the applicant must satisfy the four requirements set out in section 22(9).
The Minister is satisfied that the requirements of sections 22(9)(a),(b) and (c) are met.
The question then arises as to whether or not the Applicant satisfies the requirement of section 22(9)(d), that is, does she have “a close and continuing association with Australia”?
Before considering that matter, the Tribunal must take note of the Citizenship Policy.[2] This policy provides guidance to decision makers in exercising powers under the Act . The relevant section of that Policy are to be found at pages 95 and 96:
[2] Australian Citizenship Policy, effective 1 June 2016.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
§ 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 partner
§ 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 and
§ evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
THE APPLICANT’S PERSONAL HISTORY
This must commence with a discussion of the establishment of the Australian International School (AIS) in Sharjah, one of the constituent states of the United Arab Emirates.
This was an initiative of Dr Omar Jaffar. Dr Jaffar was born in Iraq in 1936. He studied economics and obtained his Doctorate in Baghdad. There he established a chartered accountancy practice which apparently was quite an extensive one, involving multiple companies. He apparently left Iraq at the time of the initial Ba’athist Revolution in 1958 (when the King and members of the Royal Family were murdered) but returned at some later stage. On his return he appears to have either established or re-established a successful business and was also a member of the Ba’ath Party – generally a requirement for preferment under the regime. However, in 1979 he appears to have fled Iraq as a result of having discovered (through his accountancy work) evidence of corruption in places where such information was not welcome by the government. He moved to Kuwait and then fled from there after the Iraqi invasion of 1991.
He apparently arrived in Australia in February 1972 and in 1995 became a permanent resident, and subsequently a citizen. He was married (details of his first marriage are not before the Tribunal) but his wife died in 2001 and there are several children of that marriage, all Australian citizens.
He gave evidence to the Tribunal to the effect that he had developed an idea of establishing an “Australian” school somewhere in the Middle East with the idea of conducting classes in both English and Arabic, basing its curriculum upon one of those recognised by at least one Australian State authority and hence graduating students who were qualified for tertiary education with an Australian-equivalent qualification.
He says that he offered this concept to a number of Australian State education authorities but that the only interest expressed was from the State of Queensland. As a result a development company (the Al Sharif Investment Trading Group) entered into a partnership with the Queensland Department of Education whereby the Al Sharif Group built and operated the AIS where they delivered the Queensland State curriculum.
Dr Jaffa was employed by the Al Sharif Group but he is not a share or equity holder in the Group. He is employed to run the school and is remunerated to do so and also apparently has some profit-sharing arrangement in place.
The AIS was established in 2005 in Sharjah and is formally recognised as an “Australian school” operating abroad by the Queensland Department of Education and Training. It is the first such school in the Middle East. It takes students from pre-school to Year 12 and at Year 12 students graduate with either a Queensland Certificate of Education or an International Baccalaureate Diploma. The Department also provides an Annual audit of the academic standards of the School which also participates in the NAPLAN evaluations.
The school, which is a private school and receives no funding from the Queensland State Government, has an enrolment of up to 1,500 students and it appears that, given its fee structure, it would have gross revenue in the order of, at least, $A27million per annum.
The Applicant put material before the Tribunal indicating that the School had, at various times, played host to Her Excellency Ms Quentin Bryce AC, Governor General of Australia; Queensland State Premiers Peter Beattie and Anna Bligh and State Education Minister John-Paul Langbroek. In addition letters of support were provided from senior officers of the State Education Department.[3]
[3] Relevant letters are in Tribunal Documents at [A3].
Plans are well underway for the opening of a further branch of the AIS in Dubai in the latter part of 2019.
This narrative is relevant because the Applicant also plays a significant role in the management and operation of the School. The Applicant is highly educated (as an archaeologist) and at some stage had a role teaching at the School. Her current role is to oversee the induction of new teachers of whom there are some 110 employed. Her role, attested to in her evidence, that of Dr Jaffa and that of several of her step-children, is to help new teachers to find accommodation, settle into life in Sharjah (with explanations of local customs, requirements and Islamic legal strictures) and to act as a liaison between the teachers, their families and the school administration.
In addition to this, the Applicant plays a role as the principal carer for her husband who attests to having a number of problematic health conditions and having undergone major heart surgery. He apparently relies upon his wife to help manage his medication and his general wellbeing.
Evidence was also presented to the Tribunal that the Applicant frequently accompanies her husband to business meetings, especially when they return to Australia and have continuing meetings with the Queensland Education Department.
In this respect the Applicant drew the attention of the Tribunal to the difficulties she faced as the holder of an Iraqi passport. This precludes her from travelling to a number of countries, especially those in the Middle East, into which, Dr Jaffar indicated the school was seeking to expand.
WHAT IS A “CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA”?
This question has vexed the Tribunal over many years and there is no absolutely clear consensus on its meaning. What is evident however is that the legislation refers to the association being with “Australia” and not specifically with an “Australian” or with “Australians” generally.
I considered this question at length in Vasiunina in the following terms[4]:
[4] Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943.
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
•does it mean merely a physical place on the face of the plant, a continent ‘girt by sea’; or
•does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
[31] There is nothing to be gained by searching elsewhere for a useful definition of what is meant by “Australia” in this context. The Acts Interpretation Act 1901 (Cth) for example merely states:
“Australia” means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.”
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[33] Equally, the question “what is Australia” must include more than, in the words of US Supreme Court Justice Potter Stewart (in admittedly an entirely different context), reaching the conclusion that it is hard to define, “[b]ut I know it when I see it.” If, as I have suggested, there is no judicial or legislative answer to this question, is it to be taken that some sort of mystical or metaphysical answer is expected to emerge, although from sources unknown? To date, the public/political debate about what Australia is or what its defining values might be, has been less than edifying.
[34] This leaves me with nothing but a physical/geographical definition under which all that is needed in order to satisfy a “close and continuing association”, is, as I have said, a physical presence in a geographic space at a particular time. So, is it enough simply to be present in the country for a specified period of time without having any personal or emotional involvement in the community or the life of the nation?
[35] If so, does it mean that a person held indefinitely in some form of immigration detention inside the migration zone (either at Villawood, NSW or on Christmas Island) for a number of years qualifies as having a “close and continuing relationship with Australia”? Would a member of a foreign airline crew who lay-over in Australia for several days each month for several years qualify? That surely cannot be the case. I believe the Parliament must have intended something more substantial and less ethereal than that.
[36] Equally, it seems to me that words such as “close” and “continuing” import some degree of emotional commitment or attachment. They require involvement, participation, commitment or investment.
In other cases, the Tribunal has taken a much more restrictive and narrow view focused primarily upon an applicant’s physical presence in Australia as being “highly relevant to the nature of a person’s association with Australia.” [5]
[5] Re Ul Haque v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 118 at [50].
The Respondent urges the Tribunal to focus on the set of criteria laid out in the Citizenship Policy with its eleven points for consideration. It does so on the basis that the authority in Drake[6] is to the effect that any decision-maker (including this Tribunal) is obliged to give due regard and significant weight to policy instructions such as these.
[6] Re Drake and minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at [640].
However a Policy is just that – policy. It is not law although it rightly commends great respect from decision-makers. In Gboujeh, the Federal Court stated:[7]
(39) At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly. In Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 506-7 Hely J summarised the position as follows:
“The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will ‘normally’ be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”
[7] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883.
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[8]
[8] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[9]
[9] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[10]
[10] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
Similarly, in addressing the whole range of the 11 criteria, Senior Member Taylor in Saba said:
[48] Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors … are essentially concerned with personal relationships. Three of them are concerned with the [sic] either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership or tax obligations. Only one factor, the last one listed, refers to participation in ‘Australian community based activities and organisations”.[11]
[11] Saba v Minister for Immigration and Border Protection [2014] AATA 579.
The Tribunal now turns to consider the 11 criteria set out in the Policy. It agrees with the submissions of the Respondent that the Applicant does not qualify in relation to 5 of those, namely:
1.She had not migrated to and established a home in Australia
2.There have been no periods of regular residence in Australia
3.She has not been on leave from employment in Australia
4.She does not own property in Australia
5.She has not paid income tax in Australia.
On the other hand she clearly qualifies in relation to 4 others:
1.She has Australian step-children and grandchildren
2.She has a long term relationship with an Australian citizen
3.She has an extended family network (through her step-children) in Australia
4.She makes regular return visits to Australia.
There is some dispute about the other two matters which need consideration.
Does the Applicant intend to reside in Australia?
In his evidence, Dr Jaffar indicated that it was his intention at some time in the future to return to Australia to live. However this was qualified by his stated intention to continue to work to expand the reach and operation of the AIS in the Middle East and, despite being some 82 years of age, he happily contemplated working on this project for “up to another ten years.” He originally had a house in Annandale (Sydney) but apparently was forced to sell that and it appears that this might be the home in which his daughter now resides. He has evidenced no plans to acquire any property in Australia as a possible home to which he might retire.
In her evidence the Applicant made it clear that she would remain with Dr Jaffa wherever he was and had no intention of living separately from him, either in Australia or anywhere else.
The Respondent relied upon what Deputy President McMahon said in Ho to the effect that:
“(30) I am satisfied that he would maintain a close and continuing association with Australia through his family. I am not, however, satisfied that he is “likely to reside” within the meaning of the terms of the paragraph.
(31) It can not mean “likely to take up residence in 18 months or two years time” or “likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found”. The juxtaposition of the phrase within the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship.”[12]
[12] Ho v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 664. This case was decided under the Australian Citizenship Act 1948 where s. 13(1) was expressed in terms identical to those of s 22(9) in the current Act.
Similarly in Sie the Tribunal opined:
“I am satisfied the expression intention to reside in Australia must mean, if not an immediate intention, an intention at least to reside with some reasonable proximity to the grant of citizenship.”[13]
[13] Sie v Minister for Immigration and Border Protection [2014] AATA 60 at [32].
By contrast, the Tribunal in Rasiah took an entirely contrary view:
[49 ]Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration & Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration & Border Protection and Sie v Minister for Immigration & Border Protection , that the intention must be “immediate or with some reasonable proximity”. If that were so, the phrase in the ACI’s would state “immediate or reasonably proximate intention to reside in Australia.[14]
[14] Rasiah v Minister for Immigration & Border Protection[2015] AATA 630.
In the case cited by the Tribunal in Rasiah¸ Senior Member Toohey considered the previous tribunal decision in Ho but noted that each case before the Tribunal needed to be determined on the facts pertinent to it. In distinguishing Ho, he said:
[41] The decision in Ho has been cited in other Tribunal decisions……. With respect, I do not agree with the application of the test in Ho in this case.
[42] In Ho, the Tribunal considered the relevant provisions in the Australian Citizenship Act 1948, s 13(1) of which made it a criterion for eligibility that a person be likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application was approved.
[43] A requirement in identical terms is one of the criteria for eligibility in s 21(2) of the current Act. Importantly, in both cases the requirements are stated in the alternative. As I read the current Act, it is not necessary to find both a likelihood of residence or continuing residence and a close and continuing association to satisfy s 21(2)(g). Moreover, the ACIs state only that a factor to be considered in determining whether a person has a close and continuing association with Australia for the purposes of s 22(9) is whether they have an “intention to reside in Australia”. [15]
[15] McCoy v Minister for Immigration and Border Protection [2014] AATA 771.
There is thus no settled position on whether or not the intention to reside in Australia should be taken simply on the face value of the words – namely that the applicant intends, at some future time to reside in Australia or whether the intention must be more immediately manifest.
The Tribunal also notes the evidence of members of the family (discussed below) which suggests strongly that there are genuine family ties present and that, it is not unreasonable to assume that maintaining and strengthening these would be an additional motivation for Mr Jaffa and the Applicant to return to reside in Australia in the latter years of their lives.
The Tribunal believes that the correct approach is to consider the evidence as it presents in each individual case. It needs however to have more than just the expressed words or intentions of the applicant, there needs to be some reality-testing of such an expression.
In this case the Tribunal is however, on balance, unpersuaded that Dr Jaffa is genuinely committed to return to Australia to reside. Given his age it might have been reasonable to expect that he would have taken some steps to commence some degree of preparation for that eventuality, but none was evident. He has not sought to acquire an Australian home or make any investments here. He did not reflect on matters such as any need for health care which, in any case, is of a high standard where he is now living and his level of care from the Applicant would be available and rendered regardless of where they might be living.
As the Applicant will not return without him, it must follow that her intention to reside in Australia must be evaluated in the same fashion.
Active participation in Australian community based activities or organisations
The Act provides no guidance as to what activities or organisations might qualify in this regard. Moreover, the reference is ambiguous to the extent that it might be read as referring to activities or organisations which are “Australian based”, but in the alternate the reference may be to organisations that are “community based” but of Australian origin or provenance.
The Applicant, of course, has had no involvement with any community based activities or organisations taking place in Australia. Her involvement has been with the AIS in the Middle East and, while this is undoubtedly an organisation which has string links to Australia, it is not in any sense community based. It is a business, conducted for profit and hence outside the scope of anything which might be contemplated by this section of the Policy.
CONSIDERATIONS
It thus appears to the Tribunal that any consideration of the 11 criteria identified in the Policy as providing guidance to decision-makers would lead to the conclusion that the Applicant fails to meet the clear majority of them.
A close and continuing association with Australia cannot be based on purely economic or financial ties, although these may be important,[16] and there is no doubting the significant contribution which the AIS makes to Australia in terms of the nation’s “soft diplomacy” impact in the Middle East.
[16] Ji v Minister for Immigration and Border Protection [2016] AATA 887 at [38].
The Respondent made the point to the Tribunal that this application appeared to be motivated primarily by the desire of the Applicant to obtain an Australian passport for the purposes of being more easily able to travel with her husband both to provide care and to facilitate his business dealings. This may well be the case, but the motivation for any citizenship application (unless it can be shown to involve some sinister or criminal intent) is not a relevant matter for consideration.
It is also the case that having a close and continuing association with a place other than Australia is not necessarily fatal to an application. In Sabumei the Tribunal held that:
“…. the fact that Mr Samubei has a close and continuing association with Dubai does not in any way preclude him from also having a close and continuing association with Australia for the purposes of the Citizenship Act.”[17]
[17] Sabumei v Minister for Immigration and Border Protection [2014] AATA 648 at [48].
In that case however, the Tribunal gave weight to the fact that the Dubai association was in “stark contrast” to the Australian association in terms of time and depth.
Increasingly the Tribunal is taken back to the factor of time spent in Australia in line with the Tribunal’s general approach that “the longer the absence, the stronger those indicia of connection with Australia will need to be to satisfy a decision-maker of the applicant’s close and continuing association.”[18]
[18] Khan v Minister for Immigration and Border Protection [2016] AATA 284 at [30].
The Applicant called several family members as witnesses on her behalf. They were her husband, Dr Omar Jaffar; two of her step-sons (Mohammed Jaffar and Hyder Jaffa); her step-daughter (Hela Jaffar) and her step-granddaughter (Jasmine Jaffa).
Each of the witnesses (all Australian citizens) gave evidence to the effect that the Applicant was a fully accepted, much valued and loved member of their extended families. They spoke of her acceptance after the death of Mr Jaffa’s first wife and of her participation in family affairs while she was in Australia. Each had had the opportunity to visit her in Sharjah and were able to speak positively of her role at the AIS providing liaison services for new teachers. Each expressed an appreciation of her role as carer for their father/grandfather. The Tribunal accepts this evidence and found each of the witnesses to be impressive in their evidence and in the genuine feelings of respect and affection which they had for the Applicant.
The Tribunal is brought to the stage where these competing factors need to be assessed and appropriate weight assigned to each of the relevant indicia.
The Tribunal is satisfied that the Applicant has a close and continuing association with a number of Australians in terms of family members who are permanently resident in Australia. It is satisfied that the work which the Applicant undertakes overseas, while primarily aimed at commercial profit, has a significant, albeit it, indirect benefit for Australia.
On the other hand the temporal dimensions of this case cannot be ignored. The Applicant simply has no substantial record of residence in Australia and to that extent her close and continuing association with the place that is Australia is limited.
While, as discussed in Vasiunina, this Tribunal does not regard that as the sole manifestation of “Australia” it does, in this instance, accept the rather felicitous submission by the Respondent’s counsel that, “Australia is where Australia happens”.
On balance, marginally, the Tribunal cannot find that there are sufficiently compelling reasons for it to enliven the ministerial discretion provisions of s 22(9).
Such a decision in no way precludes the Applicant from re-apply at a later stage for the reconsideration of any future application,[19] perhaps at a time when issues such as the intention to return to reside in Australia are more clearly manifest.
[19] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 12 April 2019
Date(s) of hearing: 2 April 2019 Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers Solicitors for the Respondent: Mr A Keevers, Sparke Helmore
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