Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 65
•28 January 2020
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 (28 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0079
Re:Mohamad Al Salim
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:28 January 2020
Place:Sydney
The Reviewable Decision is set aside and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of subsection 21(2)(g) of the Australian Citizenship Act 2007 (Cth).
....................[sgd]................................................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – Australian citizenship by conferral – application refused – whether Applicant likely to reside in Australia or continue to reside in Australia – multiple absences from Australia not inconsistent with intention to continue to reside in Australia – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(g)
CASES
G v Minister for Immigration and Border Protection [2018] FCA 1229
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Home Affairs (Cth), Citizenship Policy, 1 June 2016
Department of Home Affairs (Cth), Revised Citizenship Procedural Instructions
REASONS FOR DECISION
Senior Member Linda Kirk
28 January 2020
INTRODUCTION AND BACKGROUND
Mr Mohamad Al Salim (‘the Applicant’) seeks a review of a decision made by a delegate of the Minister (‘the Respondent’) to refuse his application for citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The Applicant was born in July 1981 in Lebanon.[1] He first arrived in Australia on 11 June 2004, as the holder of a Prospective Marriage (subclass 300) visa granted on 19 April 2004.[2] The Applicant was granted a Former Resident (subclass 151) permanent visa on 26 June 2012. He is currently the holder of a Resident Return (subclass 155) visa granted on 12 September 2017.
[1] Applicant’s statement dated 27 July 2019 (part of Exhibit A1), [1].
[2] T2, 11.
On 11 December 2015, the Applicant lodged an application for citizenship by conferral.[3]
[3] T3, 17-47.
On 19 December 2016, the Applicant visited his family in Lebanon and remained there for six months. On 16 September 2017, he returned to Lebanon again to provide care to his ill father.
On 11 March 2018, the Applicant married his wife Diana Hussein, a Syrian citizen, in Lebanon.[4] In May 2019 the Applicant’s wife gave birth to their first child in Lebanon.[5] On 11 May 2019, the Applicant returned to Australia leaving his wife and child in Lebanon.[6] He is now residing in Australia and plans to bring his wife and daughter to Australia.
[4] Applicant’s SFIC at [15].
[5] Applicant’s SFIC at [16].
[6] Applicant’s SFIC at [17] and [19].
On 6 December 2018, a delegate of the Respondent refused the Applicant’s citizenship application on the basis of not being satisfied that he was likely to reside in Australia or maintain a close and continuing association with Australia under section 21(2)(g) of the Act (‘the Reviewable Decision’).
On 4 January 2019, the Applicant lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’).
The matter was heard by the Tribunal in Sydney on 31 October 2019. The Applicant attended the hearing in person and was represented by his solicitor.
The material before the Tribunal consists of:
·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 30 July 2019;
·Annexures A – V to the Applicant’s SFIC – Exhibit A1;
·Bundle of documents filed by the Applicant – Exhibit A2:
oSupplementary statement from the Applicant dated 28 October 2019;
oApplicant's tax return for year ended 30 June 2019;
oApplicant’s current payslips for period 16 October 2019 - 22 October 2019;
oTranslated letter from Dr Ahmad Ali Karam dated 1 April 2019;
oApplicant's itinerary for trip to Lebanon dated 4 May 2019;
oApplicant's itinerary for trip to Lebanon dated 14 September 2017;
oWedding photo;
·Respondent’s Written Outline of Submissions dated 13 August 2019; and
·T-documents (T1 to T15, pages 1 – 91) – Exhibit R1.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATIVE FRAMEWORK
Applications for citizenship by conferral are made under section 21 of the Act which provides, that after making the application a person is eligible for citizenship if they meet all the requirements set out in section 21(2) which are 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.
ISSUE FOR DETERMINATION
The issue to be determined by the Tribunal is whether the Applicant meets the requirement of section 21(2)(g) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s living arrangements
In his oral evidence at the hearing, the Applicant confirmed that he returned to Australia on 11 May 2019. He is currently living in a granny flat attached to his cousin’s house. It has two bedrooms, a living room, a kitchen and a pergola and a small backyard.[7] There is no formal tenancy agreement between him and his cousin; it is an informal private agreement. He pays $400 per week in rent. It is not for a fixed term and he is able to stay there for as long as he likes.[8] He has no intentions of leaving the flat, and when his wife and child arrive they will live there together as a family.[9]
[7] Transcript, p6-7.
[8] Transcript, p7.
[9] Transcript, p7.
Employment
The Applicant confirmed that he is currently employed at Rest Interior as a spray painter.[10] He commenced working there in July 2004. In February 2009, he left and worked with other employers until January 2013.[11] He then returned to Rest Interior and worked there until he returned to Lebanon for the first time in December 2016.[12] When he returned to Australia in May 2019 he recommenced working at Rest Interior.[13] The Applicant told the Tribunal that his employer always has a job available for him because of his skill and experience.[14]
[10] Transcript, p8.
[11] Transcript, p9.
[12] Transcript, p9.
[13] Transcript, p10.
[14] Transcript, p10.
Return to Lebanon
The Applicant confirmed that when he returned to Lebanon in December 2016 he remained there for a period of six months.[15] He told the Tribunal that he returned at this time because he had been living in Australia for 14 years and had not seen his family at all during this time. His father was ill and he had been admitted to hospital and was in a coma and he stayed in hospital for three months. His father was unable to get out of bed because the infection had spread all over his body and there was a risk that his heart was going to be affected. The Applicant paid all of his father’s medical and hospital expenses which were very expensive as he was in the intensive care unit. One of the side effects of the treatment was that his father was unable to move his left hand or leg and he required physiotherapy for which the Applicant also paid.[16]
[15] Transcript, p10.
[16] Transcript, p12-13.
The Applicant told the Tribunal that he returned to Australia in June 2017 because his visa was about to expire. He remained here for three months and then returned again to Lebanon in September 2017 and stayed there until May 2019.[17] During this period he provided care to his father. He took his father to physiotherapy sessions and assisted him around the home. He helped his father go to the bathroom and with his other daily needs, including feeding him meals.[18] His father is now much better and is able to care for himself. If his father’s health were to worsen again he would return to care for him but only for a short period of time.[19]
[17] Transcript, p13-14.
[18] Transcript, p14.
[19] Transcript, p16.
Marriage and child
The Applicant told the Tribunal that he met his wife in February 2017. He knows his wife’s family and they met at their house. They married on 11 March 2018 and she gave birth to their daughter in May 2019.[20] She is currently living in his family’s household and his family, including his brother and his wife, provide her with a lot of support. He returned to Australia only four days after the birth of his daughter because he wanted to take the steps necessary to establish a life for his family in Australia.[21] He has made inquiries about bringing his wife and child to Australia, but she cannot apply for a partner visa until she turns 18 years, which is in March 2020. He does not plan to return to Lebanon while they are waiting for her visa to be processed, and if he does so it will only be for a week or two. He is trying to save money for the visa application and to bring his family to Australia and establish their life here.[22] He agreed it will not be easy living apart from his wife and daughter but he wants them to live in Australia as he believes that they ‘will not have a better life in any other country in the world than … here in Australia’.[23]
CONSIDERATION AND REASONS
[20] Transcript, p16-17.
[21] Transcript, p18.
[22] Transcript, p19-20.
[23] Transcript, p20.
1) Does the Applicant meet the requirement of section 21(2)(g) of the Act?
Section 21(2)(g) contains two distinct elements:
(i) Is the Applicant likely to reside, or to continue to reside, in Australia, or
(ii)Is the Applicant likely to maintain a close and continuing association with Australia.
If one of the two elements is satisfied, then the Applicant will satisfy the requirements of the subsection.
The parties drew the Tribunal’s attention to the Australian Citizenship Policy (‘the Citizenship Policy’) and the Revised Citizenship Procedural Instructions (‘CPIs’) with respect to subsection 21(2)(g) of the Act.
The stated role of the Citizenship Policy (effective 1 June 2016) 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 under the Act or the Regulations.[24]
[24] Citizenship Policy (1 June 2016) at [1].
The parties urged the Tribunal to have regard to the Citizenship Policy Chapter 7 and Chapter 11 of the CPIs, both of which list various factors relevant to establishing the requirements in section 21(2)(g) of ‘likely to reside, or continue to reside in Australia’ and ‘maintain a close and continuing association with Australia’.
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy or the CPIs as they are not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
Most recently, in G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210], Mortimer J, after a comprehensive review of the authorities, 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.
However, policy should be given due and proper consideration and weight 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 [645] per Brennan J.
i) Is the Applicant likely to reside, or to continue to reside, in Australia?
The Citizenship Policy provides guidance in relation to this as follows:
Likely to reside, or continue to reside in Australia
Intention to reside should be investigated further in situations where:
·the applicant has spent significant periods outside of Australia since becoming a permanent resident or
·has requested a citizenship test or citizenship ceremony be conducted overseas.
If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet the requirements of this provision.
The Respondent questions the Applicant’s intention to reside in Australia, based upon the following factors:
·Since lodging his application for citizenship on 11 December 2015, the Applicant has been absent from Australia for more than two years, in circumstances where his recent return was for the purpose of participating in his application for review to the Tribunal;[25]
·The Applicant's wife, a Syrian citizen[26] with no current right of entry to Australia, continues to reside in Lebanon with their newborn child. There is no evidence of steps taken by the Applicant to arrange for their relocation to Australia, nor is there any indication of when this could realistically occur;[27]
·The Applicant's parents and 11 siblings continue to reside in Lebanon;[28]
·The Applicant has provided medical evidence dated 12 February 2019, confirming that his father continues to suffer from a physical disability requiring his care;[29] and
·Whilst the Applicant has provided evidence of accommodation in Australia, this should be given limited weight in circumstances where it involves an informal and ongoing oral arrangement with his cousin. There is no evidence of the Applicant having entered into a formal tenancy agreement or any other contract such that his physical presence would be required in Australia on an ongoing basis.[30]
[25] Respondent’s Written Outline of Submissions, [15(a)].
[26] Transcript, p31.
[27] Respondent’s Written Outline of Submissions, [15(b)].
[28] Respondent’s Written Outline of Submissions, [15(c)].
[29] Respondent’s Written Outline of Submissions, [15(d)].
[30] Respondent’s Written Outline of Submissions, [15(e)].
The Applicant arrived in Australia in June 2004 and became a permanent resident in June 2012. He has therefore resided in Australia for more than 15 years, including seven years as a permanent resident. During these 15 years of residence in Australia the Applicant has only travelled outside Australia on two occasions. The first was his trip to Lebanon for six months from 19 December 2016 to 19 June 2017. The second trip was his return visit to Lebanon from 16 September 2017 until 11 May 2019.
The Applicant contends that having spent 13 years of the 15 years of his total residence in Australia and five of his seven years as a permanent resident, his intention to reside in Australia on a permanent basis is apparent.[31] The Applicant has been absent from Australia for 26 of the 80 months he has been a permanent resident.[32] The reasons for his absences were to visit family members in Lebanon, particularly his ill father, and this should not raise any concerns about his intention to continue to reside in Australia.[33]
[31] Applicant’s SFIC, [29].
[32] Transcript, p27.
[33] Transcript, p27.
The evidence before the Tribunal is that since his arrival to Australia more than 15 years ago in June 2004 the Applicant has effectively been a full-time resident of Australia. After living permanently in Australia and being engaged in continuous employment for a period of 12½ years, the Applicant left Australia for the first time and returned to Lebanon to visit his family for six months. His second trip to Lebanon from September 2017 to May 2019 was for a period of 20 months in order to care for his very ill father. During this second visit, he met and married his wife and their daughter was born.
The Tribunal is satisfied that the Applicant’s periods of absence from December 2016 are fully explained by his commitment to provide care for his ill father, and by his development of a relationship with a woman who is now his wife and the mother of his daughter. The Tribunal accepts the Applicant’s evidence that he has returned to Australia with the full intention of taking the steps necessary to sponsor his wife and child to join him here so that they can build a life together in this country. The Tribunal further accepts his evidence that he intends to remain in his current accommodation and employment and continue to work and save money to pay for the application for his wife’s visa and to prepare for her and their daughter’s arrival to Australia. It accepts that the Applicant is likely to make one or more short visits to Lebanon to see his wife, daughter, father and other family members, but finds that this is in no way inconsistent with his intention to continue to reside in Australia. The period of separation between the Applicant and his wife and child is likely to be lengthy due to the long processing times associated with partner visa applications. However, the Tribunal accepts the Applicant’s evidence that his wife is receiving considerable support from his family members in Lebanon in caring for and raising their daughter, and that he is prepared to wait the time it will take for their visas to be approved so they can join him in Australia and they can live together as a family. The separation of his family due to the long processing times applicable to the grant of a partner visa is a factor beyond the Applicant’s control, and does not indicate a lack of intention on his part to continue to reside in Australia. The Applicant has lived for more than 15 years in Australia without his family members, who include his parents and 11 siblings, and the Tribunal is satisfied that he will continue to do so until and after his wife and daughter arrive in Australia.
The Tribunal is therefore satisfied that the Applicant has an intention to permanently reside in Australia and accordingly finds that the Applicant meets the first limb of section 21(2)(g).
As the Applicant is required only to satisfy one of the two criteria in section 21(2)(g), it is unnecessary for the Tribunal to consider the second criterion.
DECISION
The Reviewable Decision is set aside and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of subsection 21(2)(g) of the Act.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.........................[sgd]...........................................
Associate
Dated: 28 January 2020
Date of hearing: 31 October 2019 Solicitors for the Applicant: Mr A Kalouche, CK Migration Solicitors for the Respondent: Ms C Campbell, Minter Ellison
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