Anjum and Minister for Home Affairs (Citizenship) - [2019] AATA 2510

Anjum and Minister for Home Affairs (Citizenship) [2019] AATA 2510 (13 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3916
Re:Naeem Anjum
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:13 August 2019
Place:Sydney

The Tribunal sets aside the decision under review and remits the matter for reconsideration with the directions that the Applicant satisfies s 21(2)(c) and s 21(2)(g) of the Act.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – failure to meet residence requirement – whether the Applicant meets the residency requirement - whether the Applicant is likely to reside in Australia or maintain a close and continuing association with Australia – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Regulations 1994 (Cth)
CASES
Hamshari v Minister for Immigration and Border Protection [2017] AATA 2160
Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kanis and Minister for Immigration and Border Protection [2018] AATA 3222
Kassem v Minister for Home Affairs [2018] AATA 4383
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Kwun Kiu Lo v Minister for Immigration and Border Protection [2014] AATA 736
Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082
Singh and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2150
Taher and Minister for Immigration and Border Protection [2013] AATA
SECONDARY MATERIALS
Australian Citizenship Policy, effective 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
13 August 2019

Mr Naeem Anjum (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.
The Applicant is a citizen of Pakistan who first arrived in Australia in March 1994 and is the holder of a Five Year Resident Return visa (subclass 155) which was granted in July 2018. To be eligible to hold such a visa an applicant must satisfy the Minister that, (inter alia) he has “substantial …. personal ties with Australia which are of benefit to Australia” and that certain other qualifications have been met.[1]
[1] Migration Regulations1994 (Cth), Schedule 2, 155.212(3).
In July 2017 the Applicant applied for citizenship by conferral and this application was refused on 13 June 2018. On 13 July 2018 the Applicant sought a review of that decision by this tribunal which heard that application on 5 August 2019.
LEGISLATIVE FRAMEWORK
The granting of citizenship by conferral is provided by section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) which, relevantly, provides:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
(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.
Requirements relating to the general residency requirements are set out in section 22 (relevantly):
22 General residence requirement
(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.
Overseas absences
(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.
Ministerial discretion--person in Australia would suffer significant hardship or disadvantage
Additionally, sections 22A, 22B and 23 of the Act provide for exemptions from the general residency requirement where an applicant’s case involves:
22A: Special residence requirement--persons engaging in activities that are of benefit to Australia
22B: Special residence requirement--persons engaged in particular kinds of work requiring regular travel outside Australia
23: Defence service requirement.
There is a further qualification of the requirements of the Act provided for in relation to a spouse or de facto partner of an Australian citizen. Section 22(9) provides:
22(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.
In making determinations under the Act, the Tribunal also takes account of the Citizenship Policy promulgated by the Department as a guide to decision-makers and the Citizenship Instructions which further amplify this advice.
THE DELEGATE’S DECISION
The Minister’s delegate set out their reasons for the refusal of the application on 13 June 2018 and found that the Applicant did not satisfy the following requirements.
In the first instance the Delegate determined:
“I have found that you do not satisfy the good character requirement and I have refused your application to become an Australian citizen.”[2]
[2] Section 37 Tribunal Documents at [7].
Secondly, the Delegate determined that the Applicant had not satisfied the residency requirement of section 21(2)(c) of the Act[3] and that he did not satisfy the requirement in section 21(2)(g) providing that a person must be likely to reside in, or to continue to reside in, or maintain a close and continuing association with Australia were the grant of citizenship to be approved[4].
[3] Ibid at [14].
[4] Ibid at [18].
In relation to the first matter, namely that the Applicant is not a person of good character as required by section 21(2)(h) of the Act, the Tribunal can find no basis whatsoever for the Delegate coming to such a conclusion.
Failure of the good character test in most instances relates to situations where the Applicant has some sort of criminal record,[5] or where the Applicant has sought to deceive or mislead the authorities in relation to their application, either by the provision of false documentation[6] or by the concealing of material facts[7].
[5] For example Kassem v Minister for Home Affairs [2018] AATA 4383.
[6] For example Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082.
[7] For example Singh and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2150.
In Irving the Court set out the essentials of the statutory test as follows:
“Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.
….
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[8]
[8] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
There is not a scintilla of evidence before the Tribunal, neither, it appears was there any before the Delegate, which would have justified a finding that the Applicant was not a person of good character. If anything, the contrary is the case. The Applicant does not appear to have a criminal record;[9] all of his applications have been full, detailed and accurate in their presentation. He has an established family in Australia (see below), is a graduate of an Australian University[10] and has a long established employment record; he has qualifications awarded by the Australian Civil Aviation Safety Authority;[11] he is well respected in his community[12] and has never been refused a visa for his frequent travels to this country.[13]
[9] Applicant’s Submission attachment A1 – National Police Certificate and Pakistan Police Certificate. Also Section 37 Tribunal Documents at [50] and [52].
[10] Section 37 Tribunal Documents at [75].
[11] Applicant’s Submission attachment at B1.
[12] Ibid at Pages 1 to 4.
[13] Ibid at D1.
This statement by the Delegate is all the more surprising and unjustified in that the Tribunal notes that in the formal statement completed by the Delegate, the good character requirement of section 21(2)(h) is marked as “Not assessed”.[14]
[14] Section 37 Tribunal Documents at [18].
The Tribunal notes that the Respondent, very properly, in their Statement of Facts, Issues and Contentions[15] and in oral submissions resiled from this finding and did not seek to press the matter with the Tribunal.
[15] Respondent’s Statement of Facts, Issues and Contentions at [25].
However given that the Delegate has placed on the public record some sort of finding or determination that the Applicant is not a person of good character, he is, in the opinion of the Tribunal, entitled to the comfort of the Tribunal’s finding that this characterisation is entirely unjustified on the material currently before it.
That said however, the Tribunal must still consider the grounds for rejection of the application based on sections 21(2)(c) and 21(2)(g) of the Act. In essence the refusal of the application turned upon the Delegate’s assessment that the Applicant had failed to reside in Australia for the minimum period(s) provided for in the Policy and that he did not have a genuinely close and continuing association with Australia.
APPLICANT’S PERSONAL CIRCUMSTANCES
The Applicant is married[16] to an Australian citizen and has four children, aged between 23 and 15 years, each of whom is an Australian citizen.[17]
[16] Section 37 Tribunal Documents at [68].
[17] Ibid at [54]-[58].
Since at least April 2007 the family were tenants in a rental property in Mt Druitt (Sydney).[18] In oral evidence the Applicant indicated that approximately two months ago arrangements were made for the purchase of a property in Plumpton and that a mortgage is now held, in his wife’s name, over that property. All of the children have been enrolled as full-time students in schools or university in Sydney for many years.[19]
[18] Ibid at [48].
[19] Ibid at [64]-[67].
In 1995 the Applicant graduated in a Master of Engineering (Honours) from the University of Wollongong[20] and some time later obtained qualifications in aircraft maintenance engineering and Radio CTC (Category Technical Competency) from the Australian Civil Aviation Authority.[21] He is the holder of a current Australian bank account.[22]
[20] Ibid at [75].
[21] Applicant’s Submission attachment at B1 and B3.
[22] Section 37 Tribunal Documents at [72]-[73].
It appears that since at least 2008 the Applicant has been employed in Pakistan in various capacities with Pakistan International Airline (PIA).[23] This has involved working based in Pakistan but with regular employment at PIA bases in the United Kingdom and the Middle East. His principal responsibilities are in IT systems and engineering maintenance on aircraft. Evidence before the Tribunal establishes that the Applicant has also been offered alternative employment within the airline industry based outside Australia.[24]
[23] Ibid at [35].
[24] Exhibit A1.
He has applied for several positions in Australia working within the airline engineering sector but his applications have not been successful.[25] His lack of success has been, in part, the result of his not having approved Australian qualifications but he has taken steps (see above) to obtain these in more recent years. They have also been, in part, that the positions for which he has applied require the holding of Australian citizenship in order to secure Defence Security Clearance.[26]
[25] Applicant’s Submission attachment at [C1-C3-C5-C7].
[26] Exhibit A2.
The Applicant states:
“I am regularly visiting Australia to see my family since 2007. My family also visits overseas every year so as to maximize the time we spend together.[27] My children are quite attached with me and we spend hours on whatsapp/skype/viber/telephone talking daily with each other when I am overseas. I teach Math and science subjects online from overseas for my two daughters who are students of year 12 and 10 respectively on a regular basis.”[28]
[27] Records suggest that the Applicant’s wife spent 214 days during five separate trips with the Applicant overseas. [27] Respondent’s Statement of Facts, Issues and Contentions at [41].
[28] Section 37 Tribunal Documents at [40].
PERIODS OF RESIDENCY
The first limb of the rejection decision regarding residency matters relates to the length of time which the Applicant has spent in Australia. As noted above, sections 22(1A) and 22(1B) of the Act are specific in outlining these requirements.
Subsections 22(1A) and (1B) allow that a person may be overseas for part of the four year period referred to at s 22(1)(a) and part of the 12 month period referred to at s 22(1)(c). In the case of the requirement to have been in Australia for the four year period before the application, the total period of absence must not be more than 12 months. In the case of the requirement to have been in Australia as a permanent resident for the 12 months before the day the application, the total period of absence must not be more than 90 days.
It is clear that the Applicant does not meet those requirements because the applicant was only physically present in Australia for 156 day in the four year period prior to making his application for citizenship and only for 40 days in the preceding 12 months.[29]
[29] Section 37 Tribunal Documents at [78].
There are a series of circumstances set out in the legislation which allow for this failure to be set aside where there are cogent reasons to do so. These were considered by the Delegate who was not satisfied that any of the other discretions at s 22 could be applied in the applicant's case[30] or that the applicant satisfied either the special residence requirement in ss 22A or 22B and/or that he, or a member of his family, had completed relevant defence service.
[30] Being ss 22(2), 22(4A), 22(5), 22(5A), 22(6) or 22(11) none of which apply to the Applicant.
This being the case, the question then becomes one of whether the Minister should exercise his discretion under section 22(9) of the Act given the Applicant’s status as the spouse of an Australian citizen. That discretion is provided as follows:
22(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.
Each of the requirements of this section must be met if the discretion is to be enlivened. However, even if all four are met it does not automatically follow that the discretion must be exercised as the Act specifies only that the Minister “may” so act.[31]
[31] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [23].
The matters to be considered when determining whether or not a close and continuing association with Australia exist are set out in the Citizenship Policy which states:[32]
[32] Australian Citizenship Policy page [70-71].
Factors that may contribute to a close and continuing association with Australia include:
·Australian citizen spouse or de facto partner
·Australian citizen children
·length of relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·return visits to Australia
·periods of residence in Australia
·intention to reside in Australia
·employment in Australia (for example, public or private sector)
·ownership of property in Australia and
·evidence of income tax payment in Australia over the past four years and
·evidence of active participation in Australian community based activities or organisations.
In respect to these the Delegate does not contest that the Applicant is married to an Australian citizen and has been for many years nor that he has Australian citizen children; or that he has made numerous return trips to Australia.
The Applicant does not have “extended family” in Australia; does not own property and has not paid taxes in Australia. He has not been employed in Australia although he has sought such employment.
The evidence as to the Applicant’s active participation in Australian community based activities or organisations is slight to say the least.
The Delegate questions whether or not the Applicant has a bona fide intention to reside in Australia and asserts that the Applicant has not demonstrated a close and continuing association with the country.
RESPONDENT’S POSITION
The Respondent makes the issue of residency central to its refusal decision. In its Statement of Facts, Issues and Contentions it states:
26. In Taher and Minister for Immigration and Border Protection [2013] AATA 917, [1O] the Tribunal noted that:
...it is clear that residency is of paramount importance when determining whether to grant citizenship to an applicant.
27. The Tribunal also referred to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 and the preamble to the Act (see Taher, [11] - [13]), and said (at [14]):
...any dispensation from the residency requirement is not something which is granted lightly. Significant periods of physical presence in Australia are important.
28. The respondent contends that a substantial and continual period of residency is a central criterion with respect to meeting the eligibility requirements to become an Australian citizen, and a discretion allowing a shorter period of residency should not be easily exercised in circumstances where a person has spent little time in Australia in the relevant period.

The Respondent also relies upon the elucidation given to this criteria or requirement in the Citizenship Policy which states:
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.[33]
[33] Australian Citizenship Policy page [70-71].
The Respondent also calls into question the weight that should be given to the mere existence of a spousal relationship when there have been lengthy periods of separation. The Applicant has made it clear that his work with Pakistan International Airlines requires him to be based outside Australia but that he has been active in seeking appropriate and equivalent employment opportunities domestically.
Again the Respondent relies upon the comments by the Tribunal in Taher to the effect that:
... if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.[34]
[34] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [36]. Recently quoted in Kanis and Minister for Immigration and Border Protection [2018] AATA 3222 at [51].
Finally in this respect, the Respondent attacks the Applicant for including in his application the statement: “Being an Australian citizen, it would be much easier for me to find a job in the Aviation industry.”[35] The Tribunal does not accept that a desire for self-improvement or for access to better or better paid employment opportunities should be seen as counting against an applicant, although it accepts that it is not, in itself, a basis upon which such an application should be approved or granted.
[35] Section 37 Tribunal Documents at [40]. Respondent’s Statement of Facts Issues and Contentions at [57].
The second limb of the refusal decision is grounded in the Respondent’s assessment that the Applicant in not likely to reside in Australia as an automatic response to being granted citizenship. The Respondent’s assertion is that the Applicant’s intention to reside in Australia appears conditional upon his being able to obtain suitable employment and that the authorities suggest that having an “intention to reside in Australia at some unspecified future time is insufficient to satisfy section 21(2)(g) of the Act.”[36]
[36] Respondent’s Statement of Facts Issues and Contentions at [60].
The Respondent makes clear that while it accepts that the Applicant has a close and continuing association with an Australian, who is also his spouse, this does not satisfy the requirement to have a close and continuing association with Australia and that, on balance, the majority of the criteria set out in the Citizenship Policy for exercise of the Ministerial discretion have not been met. Hence, it should not be exercised.
THE APPLICANT’S POSITION
The Applicant and his wife were married in Pakistan in 1993 and shortly thereafter the Applicant came to Australia to study at and graduate from the University of Wollongong. His wife and their four children apparently first visited in Australia in 2004 and in 2007 they arrived here on a permanent basis. Since that date they have resided in Mount Druitt (moving recently to Plumpton) and the children have attended school or university.
The Applicant remained working overseas while attempting to find suitable employment in Australia but made at least annual visits to Australia.[37] He says that he has visited Australia on at least 15 occasions, requiring a visa on each occasion. These visas have imposed time limits on his stays and he has never overstayed or breached visa conditions. When in Australia he lives with his family. In turn,[38] the family members travel overseas on frequent occasions to spend time with him.
[37] Section 37 Tribunal Documents at [77]-[78] and [80].
[38] Ibid at [79].
The Applicant told the Tribunal that he earns, in Pakistan rupees, the equivalent of some AUD $5-6,000 per month of which he remits in the order of AUD $2,500-3,000 to his family in Australia by way of support.
The Applicant insists that it has always been his intention to reside in Australia with his family, who he misses considerably, but that he believes that he should have a job to come to in Australia in order to provide for their financial security rather than arriving here with no job and no secure income. As already noted, there is considerable evidence of the Applicant’s efforts to find suitable employment in Australia particularly in his field of aircraft engineering – a highly specialised profession in which he has been employed for some 28 years. He is now 55 years of age and indicates that finding employment outside his areas of expertise is somewhat difficult.
When in Australia the Applicant spends time with his family and with members of the local Pakistani (and Islamic) community with whom he participates in both personal and community events. The Applicant conceded that in terms of other local residential community activity his only participation has been as a member of various online associations or networks.
EVIDENCE IN SUPPORT OF THE APPLICANT
Seema Syed (the Applicant’s wife): gave evidence, the gravamen of which was that she and her family suffered considerably as a result of their separation from the Applicant. She and members of the family, especially her daughters, are regularly confronted by questions from members of their own community (Pakistan/Islamic) about the status and absence of their husband/father and this is particularly traumatic for them as members of that community. Ms Syed told the Tribunal that, although she was engaged in full-time employment assisting in the community care of people with disabilities, the family relied upon the financial support of her husband. She suffers from problems of ill-health and is worried that were anything to happen to her while her husband was overseas it would be threatening to the welfare of the whole family. She also indicated that the family was in touch with the Applicant by various electronic means on an almost daily basis and that the Applicant was able to help with the children’s education especially in the areas of school mathematics.
The Applicant called evidence by telephone, based upon written statements to the Tribunal from Mr Zahid Mushtaq, Mr Rana Hassan and Dr Gulshan Islam. Each of them testified to the Applicant’s good character, his commitment to his family, his high personal reputation and his provision of regular financial support to the family. Each of them indicated that they had physically seen the Applicant within the last few days before the hearing and that they were in contact with the Applicant on each of his regular visits to Australia. Each of them has known the Applicant for some 12 years or more and in some instances there was a closed relationship between their families with their wives supporting each other and their children being closely associated. Dr Islam, in her testimony particularly emphasised the impact of family separation on the children. She also referred to the fact that the Applicant’s return visits to Australia generally coincided with a month of Islamic community celebrations in which he was a regular participant.
DISCUSSION
The Tribunal turns its attention in the first instance to the issue of the Applicant’s intention to reside in Australia and how this is to be evaluated.
In Ho the Tribunal was very precise in stating that the section should be read in a way that
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.[39]
[39] Re Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 at [31] per Deputy President McMahon.
However in Kwun Kiu Lo a subsequent Tribunal took a quite contrary position.
“With respect to those Members of the tribunal who have made decisions adopting this interpretation (i.e. in Ho), I cannot agree that it is correct. Clearly the Act itself does not place any temporal imitation upon a finding that an applicant is likely to reside in Australia if the application for citizenship were to be approved. To decide otherwise is to unnecessarily add words to the subsection in a situation in which the wording of the subsection is unambiguous. Had Parliament intended to impose such a limitation it would have been a simple task to have expressly done so.”[40]
[40] Kwun Kiu Lo v Minister for Immigration and Border Protection [2014] AATA 736 at [21] per Deputy President Constance.
This Tribunal regards the latter decision as more persuasive of the position which it should adopt. It agrees that were there to be a temporal requirement to be satisfied it would have been given legislative status.
The Respondent draws attention to the Tribunal’s decision in Hamshari[41] as support for its view in relation to the impact of potential conditionality of future residency. The Tribunal notes that in that decision it held that this was a matter to which it should “give(s) little weight.” The Tribunal’s decision in that case is worth considering in more detail as it led the Tribunal to set aside a refusal decision in circumstances not altogether dissimilar to this instance. In its summary the Tribunal stated:
[41] Hamshari v Minister for Immigration and Border Protection [2017] AATA 2160.
[52] In summary, the Tribunal is satisfied that the Applicant is likely to maintain a close and continuing association with Australia if the application were to be approved because:
•The Applicant has four Australian citizen children.
•The Applicant has a long term relationship with an Australian citizen spouse, since their marriage in 1992.
•The Applicant’s second and third sons are currently studying at university in Australia and will continue to study here until they complete their degrees and may work in Australia thereafter.
•The Applicant is funding his fourth son to attend a school in the UAE which offers a curriculum which satisfies the requirements for entry to an Australian university. The fourth son will come to study in Australia within the next few years, possibly for the last couple of years of high school and almost certainly to attend university, and may work in Australia thereafter.
•The Applicant will regularly visit Australia while his sons are studying or working in Australia, as he has in the past.
•The Applicant will continue to fund the family’s Australian home and a car for the family’s use while any member of his family is studying in Australia.
•He will fund the living and study expenses of his sons who are in Australia while they are studying.
•While the Tribunal gives little weight to it, it is relevant that the Applicant has had since 2004, and continues to have, an intention to live in Australia, which is conditional on getting a job here.
The Tribunal is struck by the degree of synchronicity between the Applicant’s positions in Hamshari and this instance. The spousal relationship, the citizen children and their being supported in their studies, the provision of financial support from overseas and the intention to reside in Australia being partially contingent upon securing local employment.
Taking into account the recent decisions of the Tribunal and the express wording of the subsection of the Act, the Tribunal is not persuaded to attach any element of temporality to the test of the Applicant’s intention to reside in Australia.
Nor does it place any more than “little weight” on the assessment of the contingency of finding local employment. In his evidence the Applicant made it clear that his primary desire was to be able to reside on a full-time basis with his family in Australia but held that the responsible thing to do, from a financial point of view, was to secure employment prior to arriving in the country. Were he not to do so, it would, he says, be difficult to support his family in the way which is able to do currently and, apart from his own field of aviation specialisation it would not be easy to secure employment in any other equivalently paid job given his age and experience.
The Tribunal finds this to be persuasive and reasonable in all the circumstances.
The suggestion advanced by the Respondent that this constitutes a “personal choice” in the sense averted to in Taher and so should be counted negatively against the Applicant[42] is not persuasive given the basis upon which the Applicant defends his position. The fact that Taher refers to that choice as being related to the ability of that Applicant to ”earn substantially more income in another country” would not seem applicable here. The Applicant’s evidence of his earnings in Pakistan at the equivalent of AUD $5-6,000 per month would seem (admittedly without probative evidence) to indicate that employment at an equivalent level in Australia would generate greater not less income for him.[43]
[42] Respondent’s Statement of Facts, Issues and Contentions at [55].
[43] The Tribunal notes the view of Mr Hassan that this may not be the case but does not accept that view as being soundly based. Applicant’s Submissions at Attachment [P2].
The requirements in section 22(9)(d) has two elements: close and continuing.
This Tribunal in Bulrice[44] discussed the number of trips which an applicant made to and from Australia on a regular basis in relation to how to interpret the word “continuing”. It relied upon the Macquarie Dictionary definition:[45]
[20] “Continuing” is defined as
3. to last or endure.
6. to go on with or persist in: to continue an action.
[44] Bulrice v Minister for Home Affairs [2019] AATA 1871.
[45] Macquarie Dictionary (online at 5 July 2019) continuing’ (def 3 and 6).
It went on to say:
[48] …….. What is however undeniable, is that if the word “continuing” is given its ordinary meaning, the evidence of the Applicant making between 30 and 45 trips to Australia cannot be characterised as anything other than demonstrating a “continuing” association.
In this instance there are at least 15 trips involved and the Tribunal regards that as equally meeting the qualification of constituting a “continuing” association with Australia.
In Taher, relied upon by the Respondent, after considering the list of factors outlined in the subsection, and the stricture about the assigning of more weight to the physical presence factor, the Tribunal stated;
“In my opinion, the factors referred to above 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.”[46] (emphasis in original)
[46] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
The Applicant does not have an extended family network in Australia, just his immediate family. He does however have an extensive network of friends within the Pakistani/Islamic community and he evidences some participation in their community events. Although he has not paid taxes in Australia in the last four years, he is not legally obliged to.[47] On the other hand he does report his income to Centrelink for purposes related to family welfare payments. He is obliged to do this and complies.[48] He maintains an Australian bank account and now has the responsibility of a mortgage, with property held in the name of his wife.
[47] Applicant’s Submission letter from the Australian Taxation Office at [P11].
[48] Respondent’s Statement of Facts, Issues and Contentions at [49].
The Macquarie Dictionary,[49] among its many definitions of the word “close” refers to
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[49] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32).
If these elements are given their ordinary meaning it would be hard to deny that they apply to the Applicant in terms of his association with his family who are Australian citizens living permanently in Australia.
As noted above, the Applicant is the holder of a Five Year Resident Return Visa (subclass 155) which was granted in July 2018. To be eligible for such a visa an applicant must meet the requirements set out in section 155.212 of the Migration Regulations. They provide, relevantly:
(3) The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:
(a) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:
(i) holds a permanent visa; or
(ii) last departed Australia as an Australian permanent resident; or
(iii) last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or
(b) was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence. (emphasis added)
The Tribunal notes that the Minister must be satisfied of an applicant’s “substantial” ties “with Australia” not just, or indeed even, with “an Australian”. It is difficult for the Tribunal to accept that on the one hand the Minister was satisfied that the Applicant had substantial ties with Australia for the purposes of the issue of a subclass 155 visa (in July 2018) but that those “substantial ties with Australia” were not present at the time that the citizenship application was lodged just one year before (in July 2017).
The Tribunal is persuaded on the evidence before it that the Applicant satisfies the requirement to have a close and continuing association with Australia and that there is no basis upon which the potential exercise of ministerial discretion in his favour should be prevented from being enlivened by virtue of any prohibition here arising.
The Tribunal is thus satisfied that the enlivening grounds of sections 21(2)(c) and 21(2)(g) are satisfied.
The Delegate has determined already that the Applicant satisfies the requirements of 21(2)(a) and 21(2)(b).[50]
[50] Section 37 Tribunal Documents at [14].
The requirements in section 21(2)(d), (e) and (f) relate to the Applicant’s knowledge of the English language and the responsibilities and privileges of Australian citizenship. The Applicant speaks fluent English, is a graduate of both an Australian University and CASA approved courses and when he sat the Citizenship test he scored a full 100% result.[51] Although these requirements were not assessed by the Delegate, the evidence would suggest that it would be a perverse outcome were they not deemed to have been satisfied.
[51] Ibid at [49].
Having satisfied sections 21(2) (a), (b), (c) and (g), all that is required is formal satisfaction of sections 21(2)(d),(e) and (f) and 21(2)(h) – the good character requirement. Although the Tribunal has made some comment on this, it was neither authorised nor required, as part of this application, to make a formal finding on those issues.

The Tribunal is satisfied that the ministerial discretion at s 22(9) is warranted and that the Applicant satisfies the eligibility criterion at s 21(2)(g) of the Act.
DECISION
For the above reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration with the directions that the Applicant satisfies s 21(2)(c) and s 21(2)(g) of the Act.

I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...........................[sgd].............................................
Associate
Dated: 13 August 2019

Date(s) of hearing: 5 August 2019

Applicant: In person

Solicitors for the Respondent: Mr A Clarke, Minter Ellison

Date(s) of hearing:	5 August 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Clarke, Minter Ellison