Bassam Zaher and Minister for Immigration and Border Protection

[2014] AATA 54

[2014] AATA 54  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2863
Re	Bassam Zaher
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	4 February 2014
Place	Sydney

The decision under review is affirmed.

.......................[sgd].................................................

Deputy President RP Handley

Catchwords

CITIZENSHIP – Citizenship by conferral – Residence requirements – Ministerial discretion – Whether the applicant had a close and continuing association with Australia – Decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 22, 24

Cases

Taher and Minister for Immigration and Border Protection [2013] AATA 917

Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Zaher has applied to the Tribunal for the review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse his application for Australian citizenship.

   BACKGROUND

2. Mr Zaher was born in Lebanon in 1956 and is aged 57. He is married with three children. Mr Zaher first travelled to Australia in 2003 and was granted permanent residency on 5 April 2008. His wife and three children became Australian citizens in 2008. He applied for Australian citizenship on 1 May 2013.

3. From the time of his first visit to Australia in July 2003, Mr Zaher has made a number of trips to and from Australia. Details of his time spent in Australia are shown in the following table.

Arrival Date	Departure Date	Total Days in Australia
13 July 2003	23 July 2003	10
25 December 2004	8 January 2005	14
5 July 2005	9 August 2005	35
31 December 2005	12 January 2006	12
22 April 2006	4 May 2006	12
15 October 2006	16 November 2006	22
3 March 2007	6 April 2007	34
27 October 2007	22 November 2007	26
31 March 2008	15 April 2008	15
25 December 2011	18 January 2012	24
25 April 2013	19 May 2013	24

1. In a decision dated 29 May 2013, a delegate of the Minister refused Mr Zaher’s application for citizenship on the ground that Mr Zaher failed the residence requirements for eligibility to become an Australia citizen under the Australian Citizenship Act 2007 (the Citizenship Act). The delegate found that Mr Zaher was not in Australia for the requisite period required by the Act to be eligible for citizenship. Moreover, the delegate emphasised the limited amount of time that Mr Zaher had spent in Australia in concluding that he did not have a close or continuing relationship with Australia.

2. Mr Zaher has applied to the Tribunal for a review of this decision to refuse his application for citizenship.

   LEGISLATION AND ISSUES

3. Applications for Australian Citizenship are governed by the Citizenship Act. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility criteria which apply in the current matter:

   (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.

4. Mr Zaher’s application for citizenship was refused because he did not fulfil the residence requirement referred to in s 21(2)(c). Section 22(1) establishes that the general residence requirement will be satisfied where:

   (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.

5. There is no dispute that Mr Zaher does not fulfil s 22(1) as he was not present in Australia for the required period, and nor does he satisfy the relaxed requirements accounting for overseas absence contained in section 22(1A) and section 22(1B).

6. In light of this, the principal issue for the Tribunal to decide is whether the Ministerial discretion contained in section 22(9) of the Citizenship Act should be exercised to treat Mr Zaher as being present in Australia during the required period. Section 22(9) provides:

   (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.

7. Mr Zaher’s wife has been an Australian citizen since 2008 (subsection (9)(a)). Mr Zaher was not present in Australia for the 12 months immediately before his application and for a total of 1429 days in the 4 years prior to his application for citizenship (subsection (9)(b)). He has been a permanent resident since 2008 (subsection (9)(c)). Thus, Mr Zaher satisfies the first 3 elements of s 22(9). The question for the Tribunal is whether Mr Zaher had a close and continuing relationship with Australia during this period (subsection (9)(d)) and, if so, whether the Ministerial discretion should be exercised to enable Mr Zaher to satisfy the residence requirement.

8. The Australian Citizenship Instructions (the Citizenship Instructions) provide guidance on the exercise of the discretion in s 22(9). Paragraph 5.18 of the Instructions provides that:

   … Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.

   In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:

   § Australian citizen children

   § long term relationship with Australian citizen spouse or de facto partner

   § extended family in Australia

   § regular return visits to Australia

   § regular periods of residence in Australia

   § intention to reside in Australia

   § employment in Australia where the person has been on leave to accompany their spouse or partner overseas

   § ownership of property in Australia

   § evidence of income tax paid in Australia over the past four year and

   § evidence of active participation in Australian community based activities or organisations

   In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 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.

9. In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal stated that decision-makers should apply Government policy unless that policy is unlawful, or produces an unjust result in the circumstances of the particular case. Nonetheless, as I noted in Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315 at [43], with respect to the application of the Citizenship Instructions to section 22(9)

   … the Tribunal, while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.

10. If the Tribunal decides to exercise the discretion in s 22(9), a further question remains as to whether Mr Zaher is ‘likely to reside in Australia… or maintain a close and continuing association with Australia’. This is a criteria of eligibility under s 21(2)(g) and was a basis of the reviewable decision to refuse Mr Zaher’s application for citizenship.

    EVIDENCE

11. Mr Zaher, who is an engineer, provided a statement dated 25 September 2013 and gave evidence at the hearing by conference telephone from Cairo where he is presently with his wife. Mr Zaher’s wife and three children also provided statements. His sons gave evidence in person at the hearing. Mr Zaher’s wife and children are all Australian citizens. Mrs Zaher, in her statement dated 25 September 2013, stated that the delay in all their family settling in Australia was because of financial commitments. She and her husband plan to return to Sydney once he has completed his current assignment.

12. Mr and Mrs Zaher’s two sons both spoke of their tertiary study, their work, being established in Sydney and their commitment to life in Australia. Their oldest son graduated with a Masters degree in 2010 and is now a Logistics Account Manager with Woolworths. He married an Australian citizen in 2012. Mr and Mrs Zaher’s younger son has completed a degree in Construction Management in Sydney and will graduate in April 2014. He has been working full-time as a building inspector. He spoke of his plans to go into business with his father in Australia. His qualification and the experience he is gaining will complement his father’s experience as a civil engineer. Initially, their plan is to set up a building consultancy business with a view to establishing a development company in the future.

13. Mr and Mrs Zaher’s daughter, having spent a year at Manchester University in the UK, studied at the American University of Beirut. Having graduated, she is now working in Beirut on an assignment in order to gain working experience before embarking on a one year Masters program in London later this year. She stated that she intended to return to Sydney once she has completed this program.

14. Mr Zaher has a Bachelor of Engineering degree with a major in Civil Engineering from the American University of Beirut, Lebanon, and has spent his professional life working as an engineer in North Africa and the Middle East. Since graduating in 1979, he has been employed by the same construction company which is based in Athens but undertakes work in North Africa and the Middle East. Since 1995, Mr Zaher has been Area General Manager for Egypt, Libya and Sudan based in Cairo. He said he has been involved in many very large construction projects including, currently, projects to the value of in excess of US$1 billion. Many of the top managerial positions in his company are filled by Australians, whom he has been instrumental in recruiting and for whom he has a high regard.

15. Mr and Mrs Zaher decided they would like to migrate to Australia primarily because of the high living standards and safe environment. Mr Zaher applied for and was granted a skilled visa based on his engineering credentials and experience (He was granted permanent residence in 2008). Having been granted a visa and on his second visit to Australia in 2005, Mr Zaher “realised then that I would need to keep working at my present employment in order to be able to fund the living expenses of our family in Australia”. He and his wife enrolled their daughter, then aged 15, and their younger son, then aged 16, at the American International School in Sydney, and their older son, then aged 18, at Macquarie University.

16. Mr Zaher said that initially they rented an apartment but then, in January 2007, purchased a house in Stanhope Gardens. Mr Zaher said that as their children have become older and more independent, his wife has spent more time with him in Cairo while still making numerous trips to Australia. His trips to Australia have been fewer and shorter because of his ongoing employment responsibilities in Cairo. Currently, his older son and his son’s wife are living in the Stanhope Gardens house with Mr Zaher’s younger son.

17. Mr Zaher said his plans for the immediate future are to continue his work in Cairo overseeing, in particular, the construction of the St Regis Hotel. This is to be a seven star hotel involving two buildings – a hotel tower and an apartment tower. The project has been delayed as a result of the political unrest in Egypt but Mr Zaher said he hoped that it would be completed by December 2015. As he has worked for the same company for the past 35 years, he feels part of the family of the company and that he has a responsibility to at least finish this project. He said he does not feel the same responsibility in respect of other projects being undertaken, such as the construction of the new Tripoli International Airport which is also currently on hold because of political unrest.

18. Mr Zaher said he and his wife hope to return to Australia permanently at the end of 2015. He plans to set up his own engineering business which he will need to finance from his current earnings. He hopes his younger son will join him in the business.

19. Mr Zaher said he has been progressively establishing his finances in Australia: he has paid for the house in Stanhope Gardens, for which he pays all the expenses, he has a day-to-day account with the Commonwealth Bank and an investment account with Colonial First State (balance of over $41,000 in September 2013). Two of his nephews, being his sister’s sons, are at university in Sydney, and a third nephew, his deceased brother’s son, who is a permanent resident, is living in Brisbane where he has been working as an IT specialist for at least two years. Mr Zaher is particularly close to his brother’s son, having assumed more of a parental relationship with him following his brother’s death. Mr Zaher said he speaks with his nephews by phone or Skype on a fairly regular basis – perhaps every three or four weeks – but his wife maintains greater contact because she has more time. He also has some acquaintances in Sydney through Australians with whom he works in his company.

20. Mr Zaher said that he owns the townhouse in Cairo where he and his wife live. In Egypt, he also owns a small farm and a holiday unit on the Red Sea both of which are for sale. In Lebanon, he owns an apartment where his parents are living currently and where he stays when he is there.

    SUBMISSIONS

    Applicant

21. Mr Poynder, for the Applicant, acknowledged that Mr Zaher does not meet the residence requirements in s 22(1)(a) and (c) of the Citizenship Act. He said Mr Zaher had spent a total of 31 days in Australia in the four years immediately before making his application for citizenship and six days in the 12 months immediately before making the application. Since first entering Australia in 2003, he has made 12 trips to Australia totalling 224 days. During this period, he has established his family in Australia by purchasing a house in Sydney, sending his children to a private school and universities, and ensuring that they have a secure and promising future in Australia. To fund this required that he maintain his senior executive position in Egypt, meaning that he could only visit Australia for short periods to spend time with his family.

22. Referring to the factors listed in paragraph 5.18 of the Citizenship Instructions, Mr Poynder said that Mr Zaher satisfies six factors: he has three Australian citizen children, an Australian citizen spouse with whom he has had a long term relationship, extended family in Australia (three nephews and a daughter-in-law), he has made regular return visits to Australia, he intends to reside here, and owns property here. He also associates with other Australian citizen employees of his company in Cairo.

23. Mr Poynder submitted that a close and continuing association with Australia is not just a relationship with the physical landmass of Australia but includes a person’s family, other citizens, and the community and culture. Thus, in Mr Zaher’s case, his Australian citizen family relationships, his employment of Australians in the company in which he works in Egypt, and his financial interests in Australia must all be taken into account. Mr Poynder said, moreover, Mr Zaher has provided a reasonable explanation for the limited time he has spent in Australia. In relation to s 21(2)(g) of the Citizenship Act, Mr Poynder noted that the test is one of residence or maintaining a close and continuing relationship with Australia.

    Respondent

24. Ms Graham, for the Minister, noted that Mr Zaher had only visited Australia twice in the four years prior to lodging his citizenship application, on each occasion staying for less than a month. In the past five years, he has spent only 45 days in Australia. While not determinative, physical presence in Australia is a relevant matter and, in accordance with the Citizenship Instructions, less weight should be given to the factors listed in paragraph 5.18 because of the very limited time Mr Zaher has spent in Australia. Of the other factors not referred to by Mr Poynder, Mr Zaher has not had employment in Australia, he has not paid income tax, and he has not participated in the Australian community. While he has property in Australia, he also has property in Egypt and Lebanon.

25. Ms Graham submitted that in the light of Mr Zaher’s past conduct, there is insufficient evidence that he is likely to reside in Australia in the immediate future. She noted that he remains a permanent resident of Australia, he can exercise his right to reside in Australia, and the refusal of his application for citizenship on this occasion does not prevent him from re-applying in the future.

    DISCUSSION

26. The first issue for the Tribunal is whether the discretion in s 22(9) of the Citizenship Act should be exercised in Mr Zaher’s favour by treating him as having been present in Australia for the required period of residence. Essentially, this turns on whether s 22(9)(d) is satisfied, namely whether Mr Zaher “had a close and continuing association with Australia during that period”. As stated above, the Citizenship Instructions provide guidance on the exercise of the discretion listing factors that may demonstrate a close and continuing association.

27. Mr Poynder referred me to the decision in Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher) where, at [47], the Tribunal said, referring to paragraph 5.18:

    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. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.

1. Ms Graham referred to the decision in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (Ul Haque) where, at [50], the Tribunal said that “While physical presence is not determinative, it is nonetheless, highly relevant to the nature of a person’s association with Australia”. At [52], the Tribunal noted that “although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia”.

2. I agree with the Tribunal in Taher that the whole of a person’s association with Australia must be considered including the factors listed in paragraph 5.18 of the Citizenship Instructions. I also agree with the Tribunal in Ul Haque that a close and continuing relationship with family in Australia is not the same thing as having a close and continuing relationship with Australia, although it is obviously an important factor. Moreover, inevitably, the nature of the association will be affected by the extent of the time the person has spent in Australia.

3. I note the rider to the list of factors in paragraph 5.18 stating that less weight should be given to the listed factors if the person has not been present for at least 365 days in the four years immediately before making an application for citizenship. According to Mr Poynder, Mr Zaher was only present for a total of 31 days in Australia in the four years immediately before making his application for citizenship and six days in the 12 months immediately before making the application.

4. While I understand the reasons for Mr Zaher not having been present in Australia for a longer period, which are not unreasonable in the context of needing to maintain a senior executive position in order to support his family and establish them in a new country, his evidence indicates an ongoing commitment to his employment and an intention not to make Australia his place of residence until December 2015, nearly two years hence.

5. I accept that Mr Zaher’s intention is to settle permanently in Australia in the future and that he has taken various steps towards achieving this objective. However, he has spent very little time in Australia in the four years immediately before making his citizenship application: only 31 days - significantly less than the 365 days referred to in the rider to paragraph 5.18 of the Citizenship Instructions. While his immediate family are all Australian citizens and he has some extended family here, and while he has established a home for his family and has bank accounts and money here, his links with the Australian community are otherwise limited. He has not been employed here, has not paid Income Tax here and has not contributed to the community except through his family. He has, by contrast, maintained his employment in Egypt and his property interests in Egypt and Lebanon.

6. While I accept that Mr Zaher’s actions are perfectly understandable and reasonable in his particular circumstances, I am not satisfied that the circumstances justify exercising the Minister’s discretion in s 22(9) of the Citizenship Act. Thus, in my view the Minister’s decision was correct and should be affirmed. I note that Mr Zaher is a permanent resident and therefore has a right to reside in Australia. Moreover, as Ms Graham stated, the rejection of his current application for citizenship does not prevent him reapplying at a future date.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley

......................[sgd]..................................................

Associate

Dated   4 February 2014

Date(s) of hearing	31 January 2014
Date final submissions received	31 January 2014
Counsel for the Applicant	N Poynder
Solicitor for the Respondent	A Graham, Clayton Utz Lawyers