Barlas and Minister for Immigration and Multicultural Affairs (Citizenship)
[2024] ARTA 219
•24 December 2024
Barlas and Minister for Immigration and Multicultural Affairs (Citizenship) [2024] ARTA 219 (24 December 2024)
Applicant/s: Uroob Mirza Barlas
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/1577
Tribunal:General Member S Evans
Place:Sydney
Date:24 December 2024
Decision:The Tribunal affirms the decision under review.
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General Member S Evans
CATCHWORDS
CITIZENSHIP – Applicant citizen of Pakistan – Section 21(2)(g) Australian Citizenship Act 2007 (Cth) – whether Applicant ‘likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association…’ – Tribunal not satisfied the circumstances establish that Applicant has or will maintain a close and continuing association – Section 24(5) prohibits decision-makers from approving an application for citizenship by conferral if the applicant is not present in Australia at the time of the decision – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634
Judd v Minister for Immigration and Border Protection [2017] FCA 827
SECONDARY MATERIALS
Citizenship Procedural Instruction (CPI) 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
STATEMENT OF REASONS
INTRODUCTION
The applicant, Uroob Barlas, is a citizen of Pakistan who first arrived in Australian on 27 March 2015 as the holder of a Partner (Provisional) (subclass 309) visa.[1] On 13 May 2019, Ms Barlas applied for Australian citizenship by conferral.[2] On 27 November 2023, a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) requested Ms Barlas provide information, including evidence of her intended return date to Australia.[3] On 19 February 2024, a delegate of the Respondent refused to approve her application for Australian citizenship. The delegate was not satisfied that Mr Barlas was likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application was approved.[4] Ms Barlas seeks review of the delegate’s decision at the Administrative Review Tribunal (ART).[5]
[1] T-Documents (‘T’) T17, p.134; T18, p.135.
[2] T3, p.37-72.
[3] T12, p.95-100.
[4] T2, p.23-36.
[5] T1, p.1-9.
RELEVANT LEGISLATION AND POLICY
The relevant legislation is provided in the Australian Citizenship Act 2007 (Cth) (the Act). Subsection 24(1) of the Act requires that if a person makes an application for Australian citizenship under section 21, the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. Paragraph 21(2)(g) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “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”.
Subsection 24(5) of the Act provides that the Minster must not approve the person becoming an Australian citizen at a time when the person is not present in Australia, subject to the special residence requirement in subsections 22A or 22B and the Ministerial discretion in subsections 22(9) and (11).
The citizenship policy
It is well established that the Tribunal is not bound by departmental policy, but it will generally be taken into consideration unless there are cogent reasons not to do so.[6]
[6] See Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634.
Departmental policy and procedures relevant to this application is found in Citizenship Procedural Instruction (CPI) 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.
CPI 11 provides that when considering if a person is “likely to reside or continue to reside” in Australia, the words comprising the phrase should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online respectively defines ‘likely’ and ‘reside’:
‘likely’ as probably or apparently going or destined (to do, be, etc.) – in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
‘reside’ as to dwell permanently or for a considerable time; have one's abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
The expression “maintain a close and continuing association” is not defined in the Act. CPI 11 provides that the words should be given their ordinary meaning in the context in which they appear.
The Macquarie Dictionary Online defines:
· ‘maintain’ as to keep in existence or continuance; preserve; retain; ‘close’ as near, or near together, in space, time, or relation;
· ‘continuing’ as to last or endure;
· ‘association’ as the act of associating … connection or combination.
Paragraph 3.5 of CPI 11 states:
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/ extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
CPI 11 states that the following factors may be relevant when assessing whether an application is likely to reside or continue to reside, or maintain a close and continuing association with Australia:
·Pre-existing connection with Australia;
·employment status;
·financial;
·overseas employment or business;
·family relationships;
·return travel to, and periods of residence in, Australia;
·intention to reside.
CPI 11 relevantly provides that only one arm of the requirement must be met by an applicant seeking to satisfy subsection 21(2) of the Act. That is, a person must be likely to reside or continue to reside in Australia, or to maintain a close and continuing association with Australia.
ISSUES TO BE DETERMINED
The issue to be determined by the Tribunal is whether Ms Barlas is likely to reside, or continue to reside in Australia or, maintain a close and continuing association with Australia if her application were approved, such that she meets the requirements of section 21(2)(g) of the Act.
EVIDENCE
Ms Barlas’s movement history records that she first arrived in Australia on 27 March 2015, after which she spent a total of 1832 days outside the country. She was outside of Australia between 4 June 2015 to 8 January 2016, 23 June 2017 to 22 July 2017, 29 March 2019 to 4 May 2019, 22 January 2020 to 11 March 2024 and 24 March 2024 to 2 November 2024.[7]
[7] T17, p.133-134.
At the time of the hearing Ms Barlas was in Australia having arrived on 2 November 2024. She told me the purpose of returning to Australia was to complete the Australian Medical Council (AMC) exam on 8 November 2024. She was also in Australia for the hearing at the Tribunal, and she planned to return to Pakistan on 30 November 2024.
Ms Barlas gave evidence that she is required to pass the AMC exams before she can practice as a medical doctor in Australia. If she passes the exam she sat on 8 November 2024, she will be required to sit a second exam. If she successfully completes the second exam and an English test, she will be issued a provisional medical license. To obtain a full license, she will need to have practiced for at least two years.
Ms Barlas intends to work in the public health system in Australia. She explained that it was challenging to find and secure placement opportunities in Australia with only the first exam complete, but it remained her intention to practice medicine in Australia. She expects to have completed the second AMC exam in six or seven months. As the exams are held regularly, she is confident she will have completed the second exam within this timeframe. If she does not pass either exam, she will be able to take it again.
In a reference dated 16 March 2024, Dr Tayyba Ali writes that he has known Ms Barlas for six years, and has been mentoring her in preparing her for the AMC exams. He writes that Ms Barlas is currently working as a physician in Pakistan and intends to work in a public-sector hospital and serve the community upon her qualifying to practice in Australia.[8]
[8] T1, p.11.
On 22 January 2020, Ms Barlas departed Australia and returned on 11 March 2024.[9] She initially departed the country to take a holiday with her family, but remained in Pakistan for much longer than planned because of the COVID-19 pandemic and to assist with the care of elderly family members.
[9] T17, p.133.
Ms Barlas’s mother passed in June 2021, her father-in-law died in August 2022 and her father passed in July 2024. In evidence are death certificates for Ms Barlas’s father-in-law and mother.[10]
[10] Applicant’s Bundle of documents filed 17 March 2024, Tab E and Tab I.
Ms Barlas is married to Fahmeed Kazi. The couple met in 2013 and married the following year. Mr Kazi is an Australian citizen and has two children with Ms Barlas – an 8-year-old son and a 6 year-old daughter. Both children currently attend school in Pakistan.
In an undated statement submitted to the Department on 29 December 2023, Ms Barlas wrote that she and her family will be moving back to Australia in “the near future”.[11] She says that Mr Kazi would not be able to travel to Australia for an extended period of time. She says that she will not be able to travel without him, but she is able to visit Australia for shorter periods of time.
[11] T13, p.105.
Mr Kazi is currently residing in Pakistan. He is not employed as he is occupied with administrative tasks including managing the family’s real estate. Ms Barlas said that Mr Kazi does not intend to return to work until their family returns to Australia. The family was managing financially by relying on a combination of her salary, their savings and asset derived income.
Ms Barlas currently has no definite plans to return to Australia, but she anticipates doing so for the second AMC exam. She will need to obtain employment and secure accommodation for she and her family before they can return to Australia to live.
Ms Barlas is certain she and her family will reside in Australia in the future, and she and her husband are planning to sell the real estate they own in Pakistan to buy property in Australia.
CONSIDERATION
Since departing Australia in January 2020, Ms Barlas and her family have been in Pakistan, returning to Australia briefly in March 2024 to renew Australian documents and most recently to sit the AMC exam. Ms Barlas has confirmed that her plan to reside in Australia is contingent on her qualifying to practice medicine in Australia.
Mr Kazi has provided a written statement that he intends to return to reside in Australia.[12] Similarly, Ms Barlas stated that her intention is to return to Australia in the near future. They have confirmed that Ms Barlas’s return to Australia is contingent on her passing her medical exams and Mr Kazi is required to sell real estate in Pakistan. There is no firm proposal or resolution date for either of these requirements.
[12] Statement of Fahmeed Kazi (titled ‘Spouse Discretion’) filed 4 November 2024.
Subsection 21(2)(g) does not require an applicant to show an intention to reside in Australia immediately after being granted citizenship. I consider Ms Barlas’s plans to reside in Australia to be indefinite and with a significant degree of uncertainty as to when they may be fulfilled. I am not satisfied that the evidence supports a finding that she has an intention to reside in Australia in the foreseeable future.
I accept that Ms Barlas’s return to Australia was initially impeded by pandemic related restrictions. However, Australia’s international border re-opened in late 2021. Ms Barlas said that other factors, specifically family commitments, were a significant impediment to her returning to Australia after the border had re-opened. She has provided evidence which supports her contention that close family members required care and had passed away after she returned to Pakistan in 2020, including her father in 2024.
CPI 11 provides that a person’s living arrangements and citizenship status in their country of residence may be an indicator of their intention to reside in that country and whether they could act on that intent. Ms Barlas and Mr Kazi are both citizens of Pakistan.
As for business and financial interests, Ms Barlas and Mr Kazi own property, including their home, in Pakistan. Regarding her financial ties to Australia, Ms Barlas has provided evidence she opened a Commonwealth Bank account on 15 March 2024 with a balance of over $66,000.[13] Ms Barlas has not worked or paid income tax in Australia, but has provided notice of assessment for Mr Kazi for the 2020-2021, 2021-2022 and 2022-2023 financial years.[14] As the bank account was opened relatively recently, and Ms Barlas has not worked or paid tax in Australia, I place little weight on the bank account or registering for an Australian tax file number. I consider the ownership of property in Pakistan weighs against her residing in Australia.
[13] Letter of the Commonwealth bank dated 14 April 2024.
[14] T15, p.121-123.
Mr Kazi acquired Australian citizenship on 29 April 2015.[15] Ms Barlas and Mr Kazi’s Australia citizen children were born in Australia. Both children currently reside in Pakistan and attend school. Ms Barlas has indicated that she intends to enrol the children in Australian schools but has yet to do so. Overall, I consider this arrangement weighs strongly in favour of Ms Barlas’s family remaining in their current country of residence.
[15] Respondent’s Statement of Facts, Issues and Contentions dated 8 November 2024 at [33].
Ms Barlas works as a doctor in Pakistan and has taken material steps towards becoming qualified in Australia. However, she has never worked in Australia and is currently not qualified to do so in her field. On balance, Ms Barlas’s employment status weighs neutrally.
I accept the Minister’s contention that Ms Barlas’s 13-day return to Australia in March 2024 does not alter the fact Ms Barlas has not resided in Australia for over four years. Taking into account the impact of pandemic related border restrictions on her ability to travel does not alter that it was open to her to return to Australia since 2021. It is not disputed that Ms Barlas had responsibility to close family members who were ill and passed away, but I do not accept that these considerations fully account for her residing in Pakistan since January 2020.
As to Ms Barlas’s participation in the Australian community, she has a friend in Australia who she met through prayer approximately a decade ago. She also performed some volunteer work at her children’s childcare centre.
In Judd v Minister for Immigration and Border Protection [2017], Perry J said at [14]:
While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.[16]
[16] [2017] FCA 827.
Ms Barlas’s husband and children reside in Pakistan, as do other members of her family including one of her brothers. Ms Barlas and Mr Kazi own the house they reside in and other investments in Pakistan. Ms Barlas does not own property in Australia but has opened a savings account this year. Ms Barlas is 39 years old and has spent approximately four years of her life in Australia and has limited connections in the Australian community.
In sum, I am not satisfied that the circumstances establish that Ms Barlas has or will maintain a close and continuing association with Australia should her application be granted.
Prohibition on approval
Section 24(5) of the Act prohibits decision-makers from approving an application for citizenship by conferral if the applicant is not present in Australia at the time of the decision. It is not possible for the Tribunal to set aside the mandatory requirement in section 24(5) that in order to acquire citizenship by conferral the applicant must be physically present in Australia at the relevant time. There is no evidence that Ms Barlas satisfies the special residence requirements in subsection 22A or 22B of the Act.
The practical effect of section 24(5) is that if Ms Barlas has returned to Pakistan on 30 November 2024 as anticipated, she will not be present in Australia at the time of this decision and her application cannot succeed.
CONCLUSION
I am satisfied that Ms Barlas does not meet the requirements for the conferral of citizenship in subsection 21(2) of the Act because she is not a person likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application was approved as per section 21(2)(g) of the act.
DECISION
For these reasons, the reviewable decision is affirmed.
Date(s) of hearing: 14 November 2024 Applicant: Self-Represented (by Audio-Visual Link) Solicitors for the Respondent: L Dennis, Mills Oakley (by Audio-Visual Link)
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