Alavian and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 421
•11 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 421
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/316-317
GENERAL ADMINISTRATIVE DIVISION ) Re VAHDAT AND PARAVNEH ALAVIAN Applicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date11 May 2005
PlacePerth
Decision The Tribunal affirms the decisions under review.
..........(sgd L Savage Davis)...........
Member
CATCHWORDS
CITIZENSHIP – applications for Australian citizenship under s 13 of the Act – applications refused on the basis of applicants’ failure to satisfy residence requirements – whether discretion should be exercised on grounds that applicants were engaged in activities beneficial to the interests of Australia – whether applicants “likely to reside or continue to reside in Australia” or “maintain a close and continuing association”
Australian Citizenship Act 1948 s 13(1)(d), 13(1)(e), 13(4)(b)(4i), 13(9)(c)
Australian Citizenship Instructions, chapter 4(5)
Minister for Immigration, Local Government and Ethnic Affairs and Roberts (1993) 29 ALD 656
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ADL 664
Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Re Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329
Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349
Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs (1991) 34 ALD 236
Re Pai and Minister for Immigration and Ethnic Affairs (1994) 20 AAR 342
Re Page and department of Immigration and Ethnic Affairs (1995) AATA 481
REASONS FOR DECISION
10 May 2005 Ms L Savage Davis, Member 1. The decisions under review were the decisions of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 9 August 2004 refusing to grant Australian citizenship to Mr Vahdat Alavian and Mrs Paravneh Alavian (the applicants).
2. At the hearing the applicants were represented by Mr A Goldfinch of Goldfinch & Co, Barristers and Solicitors. The respondent was represented by Mr A Gerrard, solicitor with the Australian Government Solicitor. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). In addition the following documents were tendered – the applicants’ Statement of Facts and Contentions (Exhibit A1); the respondent’s Statement of Facts and Contentions (Exhibit R1); Witness Statement of Mr Vahdat Alavian dated 22 February 2005 (Exhibit A2) and the Witness Statement of Mrs Paravneh Alavian dated 22 February 2005 (Exhibit A3).
Background
3. Mr Alavian was born in Iran on 9 May 1954. Mrs Alavian was born in Iran on 25 March 1957. The applicants arrived in Zambia in 1979, married in 1981 and were granted refugee status in Zambia in 1985. On 5 October 2001 the applicants were granted subclass 126 Australian visas. The applicants first arrived in Australia on 9 December 2001 and have been Australian permanent residents from that date. On 5 March 2004 the applicants applied for grants of Australian citizenship. They were refused on 9 August 2004 on the basis that they had failed to meet the criteria set out in subsections 13(1)(d) and (e) and 13(4) of the Australian Citizenship Act 1948 (the Act). These subsections require an applicant for Australian citizenship to have resided in Australia for a period of one year during the preceding two years before application for citizenship and a period of two years during the preceding five years. At the date of application Mr Alavian had spent fifty one days in Australia in the two years prior to the date of application, and seventy nine days in Australia in the five years prior to the date of application. Mrs Alavian had spent sixty days in Australia in the two years prior to the date of application, and eighty eight days in Australia in the five years prior to the date of application.
4. It is not in dispute that the applicants failed to comply with the residency requirements. The applicants’ contended however that the discretion under s 13(4) (b) (i) of the Act should be excised in their favour to grant them citizenship. That is that a period of absence from Australia should be treated as a period during which an applicant was present in Australia provided that the applicant was engaged in activities beneficial to the interests of Australia. In assessing this issue the delegate of the respondent noted that in the case of both applicants there was evidence that their business activities did result in some benefit to Australia in terms of export revenue (T2/7). However, the delegate found that the sheer lack of time spent in Australia by both applicants was a major factor against them and stated “rather than living in Australia and travelling overseas for business related purposes, Mr Alavian (Mrs Alavian) chooses to continue to live overseas in order to operate his (her) overseas business… in this case the relatively small financial return to Australia, when weighed against the time spent overseas does not enable me to make an assessment in favour of Mr Alavian (Mrs Alavian)” (T2/7). Therefore the delegate stated he did not believe the discretion in subsection 13(4)(b)(1) of the Act should be exercised in favour of either applicant.
Mr Vahadat Alavian’s Evidence
5. Mr Alavian confirmed that his Witness Statement (Exhibit A2) outlined his case. In response to questions from Mr Goldfinch, cross examination from Mr Gerrard and questions from the Member of the Tribunal Mr Alavian gave the following evidence.
6. Mr Alavian told the Tribunal that he had been involved with the Australian company Snowy Mountains Engineering Corporation (SMEC) since 1994. Until 2000, this had been on an informal basis and the majority of his work had been with Rankin Engineering Consultants (Rankin), a company which he had established in 1989. After a number of years working on an informal basis with SMEC it had been formalised in an agreement in 2000. SMEC was interested in work that was financed by donor agencies and the World Bank in Zambia. It needed someone in Zambia who was able to convince the client that SMEC had the necessary expertise. This was often the first step in the process. If this was successful Mr Vahadat helped prepare the tender. Once SMEC was short listed, his role could involve visiting the proposed site and identifying personnel. Mr Alavian said that it was only possible to convince clients such as the World Bank that you had the expertise if you were on the ground. It was necessary to have someone who was able to convince the client that you understood the project and that SMEC had a base or a presence in Zambia. Mr Alavian said he was paid a commission of 5% by SMEC for securing jobs and he also received $10,000 per month when he was working on their projects.
7. Mr Alavian described the two projects that he had been involved in on behalf of SMEC that had come to fruition. He said 5 experts from SMEC provided expertise in the tailings dam project and the data monitoring of water resources for the Kafu basin in Zambia (Exhibit A2/paragraph 20). In total they spent approximately 6-9 months in Zambia. Mr Alavian said the work he provided was to inform those involved in these projects that Australian expertise was available and request that SMEC be allowed to submit a proposal. Mr Alavian explained the arrangement between himself, SMEC and Rankin as follows. Rankin provided the local base. SMEC prepared the documentation with Mr Alavian’s assistance. SMEC paid Mr Alavian directly for his involvement. SMEC paid Rankin directly for any staff it provided. In respect of the tailings dam project Mr Alavian said he spent in total approximately 6 weeks and received about $7000 being 5% of the $38,000 project estimation and half of the monthly retainer of $10,000. Mr Alavian estimated that in the 4 years since signing the contract with SMEC two projects had come to fruition and in total he had earnt approximately $35-$40,000. He said there were 2 other projects in the pipeline. A proposal had been recently submitted for one in the road sector valued at $700,000. He had spent 4-6 weeks on this project. When it was put to Mr Alavian that this represented perhaps 4-5 months on SMEC business in the last 4 years he said there were other projects that had not come to fruition. Mr Alavian agreed however that his work for SMEC did not take up the majority of his time.
8. Mr Alavian told the Tribunal he owned a house in Zambia which he bought in 1992. It is worth approximately $100,000. He said the rental market in Zambia is lucrative and he may not sell it, but rent it out once he has left Zambia. He has no other investments in Zambia. He has shares through an international broker which he said were worth approximately $100,000. He has a home in Subiaco valued at approximately $460,000, an investment property in Victoria valued at $160,000 and approximately $620,000 in the bank in Australia.
9. Mr Alavian said it was his intention to reside in Australia, he has no other country to return to and he only has refugee status in Zambia. His children have recently commenced studying in Perth at local universities. His wife’s family lives here and he is close to them. He agreed that his refugee status in Zambia places no restrictions on where he can live and work in Zambia. Mr Alavian said he still has a 10% share in Rankin.
10. Mr Alavian said when they applied to migrate to Australia they did not realise it would take so long to get permanent residency. With his two children at university he needs to be able to pay for their upkeep and their university education. He was worried about whether he could get a job here although he said he had never applied for any jobs in Australia because he feared rejection. He knew however that given his expertise he could work in his chosen field in Zambia. The choice to come to Perth followed a round trip to Melbourne, Sydney, Brisbane and Perth and they felt that this was the right place for them.
11. Mr Alavian agreed that he was already engaged by SMEC when he was given residency. In response to questions that he already had assets over one million dollars and that should be enough to secure the family’s financial future Mr Alavian said that he did not believe the $600,000 he had in liquid assets was enough to live on, given that he was uncertain of his employment prospects. He felt that now that he had moved into a management role he was not sure that he would be that marketable. In any event he was not familiar with engineering in Australia. He said he saw no reason to give up his position in Zambia where he was marketable. He said there would be no sense in SMEC having him in Australia and then sending him back and forward to Zambia. Currently he could work in his chosen field and promote SMEC and Australian expertise. Ultimately the decision not to come to Australia is because he can work in Zambia and because he is worried about his ability to maintain his earning capacity if he came here. Mr Alavian agreed he had spent a very limited time in Australia and paid no Australian tax. The foundation that he has been involved in since establishment in 1983 is based in Zambia. He attends meetings approximately four times a year and there have been one to two Australians come over on programs related to the foundation each year for the last ten years.
12. Mr Alavian said that he intended to settle in Australia in three to five years and he thought that his reduced shareholding in Rankin was indicative of this intention. Mr Alavian said he wanted to be an Australian citizen because he was concerned that their permanent residency visas which expire in May 2006 will not be extended. He felt this because it was difficult for them to get permanent residency in the first place.
mrs alavian’s evidence
13. Mrs Alavian confirmed that the evidence contained in her witness statement (Exhibit A3) outlined her case. Mrs Alavian told the Tribunal that she was the agent for Edwards Energy in Botswana. Her responsibilities were marketing and ordering and she described her position as administrator/sales manager. Mrs Alavian was referred to the distribution agreement (T6/46) and in particular page 69 which indicated that the agreement between Synergy (of which she is a 49% shareholder) and Edwards was for a five year term and had expired on 1 January 2003. Mrs Alavian said that they still have verbal arrangement or what she described as a verbal contract with Michelle McKay, Sales Manager at Edwards. She said they were continuing to import solar units from Edwards Energy as evidenced by bank statements of August and December 2004. Mrs Alavian agreed that although Edwards is based in Perth she had never visited the company and that all contact was via the internet. She said that she and her brother who are the only shareholders in Synergy (her brother is the managing director of Synergy) provide solar units for houses and recently a hospital. They do this by approaching companies that have a job and supplying them with units. Sometimes they subcontract directly.
14. Mrs Alavian said she has been involved in Synergy since it was formed. Her brother who is a mechanical engineer and installs the units lives in Botswana where the company was incorporated. She does the selling and promoting from Zambia and communicates with her brother by internet. She said it was not necessary for her to go to Botswana often because her brother is there. She helps to draft proposals and brochures. Her brother had lived in Australia a number of years and therefore had contacts which enabled him to set up the company in Botswana and import units. Both of them had been involved in the approach to Edwards by way of writing. They also order some parts from Turbu Flow in Tasmania at times although they did not represent this company. She estimated that she spent five to six hours a day on work connected with Synergy and is paid approximately $90,000 per year. This money is transferred to Australia via Metec Consultants which is a banking facility which they have established in Victoria. She pays no tax in Australia. Mrs Alavian agreed that Synergy had the agency agreement with Edwards prior to the grant of her visa. She said there is one Australian working for Synergy in Botswana although he was hired in Botswana where he was working for another company, not Australia.
15. Mrs Alavian told the Tribunal that she wanted to be an Australian citizen because she has family here and that it is a clean environment. She does not want to work in Australia now because she wants to be with her husband. She has not given much thought to what she would do if she came to Australia. There is no office of Synergy in Australia.
Applicants’ Submissions
16. Submissions were made on behalf of the applicants’ and can be summarised as follows:
·It was submitted that the two issues in question were firstly whether the activities of the applicants were beneficial to Australia, and secondly whether the applicants have an intention or a desire to reside in Australia and make it their home.
Whether activities of applicants were beneficial to Australia
·Mr Alavian’s activities as an agent for SMEC and Mrs Alavian’s involvement in Synergy have been accepted, it was submitted as resulting in some benefit to Australia in terms of export revenue. The fact that each of the applicants’ gain personally from these activities does not negate the benefit Australia receives. The Tribunal was referred to Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 at 660, in support of the proposition that commercial matters can amount to activities beneficial to the interests of Australia even if of a general and non-specific character. There was nothing, it was submitted, in the statute or in the word “beneficial” that limited the activities to activities having an immediate benefit to Australia.
·The Tribunal was referred to Re Pai and Minister for Immigration and Ethnic Affairs (1994) 20 AAR 342 at 345 in support of the proposition that it was not mutually exclusive for activities to be beneficial to both the individual and Australia. The Tribunal was also referred to Re Chai and Department of Immigration and Ethnic Affairs (1994) 36 ALD 751 at 755 in support of the proposition that it is compatible to have an intention to live in Australia but reside in another, based on sound commercial considerations rather than personal considerations. It was submitted Mr Alavian resided in Zambia for business reasons. Re Page and Department of Immigration and Ethnic Affairs (1995) AATA 481 it was submitted supported the applicants’ position as it also involved a case where the applicant worked overseas to the benefit of the public interest of Australia as a whole but had assets and properties in Australia.
·It was submitted that the applicants have engaged in activities beneficial to Australia and this has already been accepted by the respondent (T2/7).
Applicants’ intention or desire to reside in Australia
·It was submitted that the applicants’ intention to reside in Australia was evidenced by the fact that they have a home, investments and cash in Australia. Their children have recently commenced university education in Australia. Mrs Alavian’s family reside here and they have chosen Australia rather than Canada or North America where Mr Alavian’s family live to establish themselves. It was submitted that the applicants’ intend to come to Australia but are not in a position to do so at present.
Respondent’s Submission
17. The respondent relied on its Statement of Facts and Contentions filed on 31 January 2005 and in addition made the following submissions that can be summarised as follows:
·The applicants had failed to meet the residency requirements to obtain citizenship.
·It was conceded by the respondent that the applicants’ activities in Zambia and Botswana had resulted in some benefit to Australia, however, it was submitted that these activities had benefited the applicants predominantly. In addition these activities predated their original visa applications and had not changed significantly since the grant of their permanent residency visas.
·The Tribunal was referred to the decisions of Roberts (supra), Re Chai (supra) and Re Page (supra). It was submitted that these decisions could be distinguished from the applicants’ cases as in all of them the applicant had lived in Australia for a number of years prior to leaving Australia and then seeking citizenship.
·In regard to s 13(1)(j) of the Act it was submitted that the applicants could not satisfy this requirement. The property they had purchased in Subiaco had been used solely by their children and was not their place of residence, rather somewhere they stayed when they occasionally visited Australia. Despite having substantial assets in Australia totalling $1,000,000 (Australian) Mr Alavian maintained he needed to live in Zambia to provide for his family’s financial security. This it was submitted was untenable and it was in fact their 26 year residence in Zambia, and their close connection to that country, which explained why they had chosen to live there and not Australia. In addition their plans as to when they would move to Australia, that is in 3 to 5 years, and what they would do when they did come, were vague.
·In conclusion it was submitted that since the grant of their permanent residence visas they had never spent more than 2 to 3 weeks in Australia yet now they were seeking to be granted citizenship. This was despite having no definite plans or time frame as to when they would move to Australia. Therefore it was submitted that the appeal should not succeed.
Consideration of the Issues
18. In reaching its decision the Tribunal took into consideration the documented and oral evidence, the relevant legislation and case law. Section 13 of the Australian Citizenship Act 1948 (the Act), as amended provides in part as follows::
13(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;”.
19. Where an applicant fails to meet the criteria in s 13(1)(d) and (e) of the Act as the applicants do, he or she may be assessed under s 13(4) of the Act.
“(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
…
(b)subject to paragraph (a), the Minister may, in the Minister’s discretion:
(i)treat a period during which the applicant:
(A) was a permanent resident;
(B) was not present in Australia; and
(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;
(ii) treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
(iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant - treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or
(v) if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia - treat the period as a period during which the applicant was present in Australia as a permanent resident.”.
20. Chapter 4 of the Australian Citizenship Instructions (the Instructions) sets out the Policy guidelines which are applied by the respondent’s delegates in assessing applications for the grant of a certificate of Australian citizenship under s 13 of the Act. The relevant Instructions are at 4.3.17 to 4.3.20 (subsequently renumbered since 2/4/05) :
“Residence discretion: Residence outside Australia (s 13(4)(b)(i))
4.3.17 Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This discretion applies to both residence requirements (ie, both “2 years in the last 5” and “1 year in the last 2”).”
4.3.18 The legislation is interpreted as requiring the following:
•the applicant must have been a permanent resident (see 1.4) during any of the periods counted;
•the periods spent outside Australia to be counted must be:
–within the last 5 years for the 2 years in the last 5 years requirement; and
–within the last 2 years for the 1 year in the last 2 years requirement;
• the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked;
•the applicant must have been engaged in a series of activities, not just a one-off transaction;
•the activities must also be during the relevant period/s under consideration;
•the activities must have been “beneficial to the interests of Australia” during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.
4.3.19Under Ministerial policy, the discretion will usually only be exercised if the applicant is in Australia and was either:
•required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or
•self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis; or
•engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and re widely recognised as such either by:
–the Australian community generally; or
–prominent persons associated with the applicant’s field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).
4.3.20 If the applicant is overseas, the discretion will normally not be exercised.”.
21. It is not in dispute that the applicants do not satisfy the residency requirements of the Act but it was submitted on their behalf that the Tribunal should exercise the discretion provided for in s. 13(4)(b)(i)(C) of the Act in the applicants favour. In reaching its decision the Tribunal notes and concurs with Deputy President McMahon in Re Ho (supra) (at page 671):
"The discretion contained in s 13(4) is not intended to offer an alternative method of complying with s 13(1)(d) and (e). It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant's substantial activities during specific periods, can be demonstrated. The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship. It is not an optional requirement interchangeable with certain activities outside Australia."
22. The Tribunal was referred to a number of decisions including Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 in which Einfeld J said at 660:
“It seems to me that the term “activities beneficial to the interests of Australia” means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent [person applying for citizenship]. The section requires some objective benefit to Australia”.
Einfeld J went on to say “… all factors that are relevant should be taken into account and their considerations should not be denied because they fall outside the guidelines that have been prepared …”.
23. In relation to activities beneficial to the interests of Australia the Tribunal has weighed up whether the applicants’ activities primarily were for their private benefit or achieved recognition for Australia and were beneficial to the public interests of Australia. The Tribunal also notes and takes into account the comments of Deputy President McMahon in Re McCarthy (supra) at 448:
“… that the applicant’s employer has enhanced the reputation of its Australian parent company, and Australian companies in general, must be regarded as falling short of demonstrating activities in which the applicant was engaged that were beneficial to the interests of Australia. Furthermore, having regard to the observations of Senior Member Gibbs in Re Tsui (1991) 24 ALD 236, it must also be considered whether the activities are so remote, indirect and speculative in relation to the beneficial interests of Australia that they could not be taken into account.”.
24. The Tribunal accepts Mr Alavian’s evidence that he has assisted SMEC in the process of obtaining contracts in two projects in Zambia and has had a long term association with SMEC (Mr Alavian’s T-documents T10/85-88). The Tribunal accepts also that activities that result in private benefit are not mutually exclusive with activities beneficial to Australia. The evidence before the Tribunal is that Mr Alavian has had an association with SMEC through his company Rankin since 1994 and it is only since 2000 that he has promoted it, a job which he conceded did not take up the majority of his time. Mr Alavian does not pay tax in Australia and has lived and worked exclusively in Zambia for 25 years with only brief visits to Australia since being granted a sub-class 126 visa in December 2001 (Mr Alavian’s T-documents T15/166-167).
25. Similarly, Mrs Alavian pays no tax in Australia and has never lived in Australia. She has spent only brief periods in Australia. (Mrs Alavian’s T-documents T11/282-285). The importing of solar units by a company incorporated in Botswana (see the document T6 – re HM) currently on the basis of a verbal agreement, to Botswana is not in the Tribunal’s opinion of sufficient benefit to Australia to satisfy the intention of the legislation. It is, in the Tribunal’s view, an activity predominantly in the furtherance of the private interests of Mrs Alavian and her brother who established Synergy in Botswana a number of years ago.
26. Therefore the Tribunal accepts the submission by the respondent that there is no evidence that the applicants’ activities have brought objective benefit to Australia or have enhanced Australia’s international respect or goodwill, as opposed to the private interests of the applicants.
Would the applicants be likely to reside or continue to reside in Australia, or maintain a close and continued asscoiation with Australia, if granted citizenship?
27. Even if the Tribunal has erred in reaching the conclusion that the discretion in s 13(4)(b)(i)(C) of the Act should not be exercised in the applicants’ favour, the Tribunal finds that the applicants do not meet the requirements in s 13(1)(j) of the Act. This requires the Minister (and therefore the Tribunal) to be satisfied that if either Mr or Mrs Alavian were granted a certificate of citizenship, they are likely to reside, or to continue to reside, in Australia, or maintain a close and continuing association with Australia. Mr Alavian has told the Tribunal that although owning property in Zambia, having lived there for 25 years albeit with refugee status, believing he can best pursue his career and provide financially for his family by remaining in Zambia he does intend to settle in Australia in 3 to 5 years. His primary reason for staying in Zambia was because of his concern about his ability to obtain employment in Australia, although he has never applied for work in Australia. Although he agreed he had assets of over $1,000,000, this was not he told the Tribunal adequate to secure future financial security for himself and family. Mrs Alavian said she wanted to be with her husband which the Tribunal accepts is understandable. She had not given much thought to what she would do in Australia, Synergy does not have an office in Australia and she has never had any contacts with Synergy’s suppliers on her visits to Australia. Mr and Mrs Alavian’s children recently moved to Perth to study and they live in a home purchased by their parents. The evidence before the Tribunal is that neither Mr or Mrs Alavian have spent any significant periods in Australia despite their desire to make it their home sometime in the future. The children’s recent move to Perth is to study. Mrs Alavian has family members in Australia.
28. In Re Ho and Minister for Immigration and Ethnic Affairs, the Deputy President wrote at para 31 in regard to the phrase “likely to reside”:
“… It cannot 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 with 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.”
29. The Tribunal concurs with this understanding of the phrase. It cannot in the Tribunal’s view mean “likely to settle in 3 to 5 years” as Mr Alavian has said in evidence. Mrs Alavian’s evidence is that she will remain with her husband and so the Tribunal concludes she will not be considering a move to Australia any earlier than her husband.
30. Similarly a close and continuing association with Australia has not been demonstrated by either applicant given the limited time they have spent in Australia since being granted permanent residency in 2001. It is true their children have settled here recently and commenced University and a house for them has also been bought. Mrs Alavian has family in Australia. Although no evidence was given as to exactly which members of her family lived here, the limited time spent in Australia and therefore possibly with them does not support as yet a picture of a continuing association. No doubt now their children are living in Australia Mr and Mrs Alavian may spend more time in Australia which, in the Tribunal’s view, may in future equate with what it understands the Act envisages under s 13(1)(j).
Decision
31. The Tribunal therefore affirms the decisions under review.
.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis
Signed: .............(sgd EM Jordan)...................
AssociateDate/s of Hearing 1 March 2005
Date of Decision 10 May 2005
Solicitor for the Applicant Tony Goldfinch, Goldfinch & Co
Solicitor for the Respondent Arran Gerrard, Australian Government Solicitor
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