Bhavesh Kumar and Minister for Immigration and Border Protection

[2014] AATA 944

[2014] AATA  944

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0782
Re	Bhavesh Kumar
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	18 December 2014
Place	Sydney

The decision under review is affirmed.

........................[SGD]................................................

Senior Member Bernard J McCabe

CATCHWORDS

AUSTRALIAN CITIZENSHIP – Applicant living in Fiji – Failure to meet general residence requirement – Discretion to treat periods of absence as time spent in Australia enlivened –
No compelling reason to exercise the discretion – Decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 22(1), (9)

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member Bernard J McCabe

18 December 2014

1. Mr Bhavesh Kumar (“the applicant”) wants to become an Australian citizen. To do that, he must satisfy the criteria set out in the Australian Citizenship Act 2007 (Cth)

   
   

   (“the Act”). Different criteria apply to different types of applicants. One of the criteria

   
   

   Mr Kumar must satisfy is referred to in s 21(2) of the Act. It is known as the general residence requirement and it is defined in s 22. The usual way of satisfying the general residence requirement is explained in s 22(1). It contemplates the applicant being physically present in Australia for a minimum period before the application.

   
   

   But Mr Kumar was absent for long periods, so he has asked the Minister for Immigration and Border Protection to exercise the discretion in s 22(9) to effectively deem him to be present in Australia during those periods of absence. The discretion is only available in limited circumstances, including where the Minister is satisfied “the person had a close and continuing association with Australia during that period”: s 22(9)(d).

2. The Minister denies Mr Kumar had a close and continuing association with Australia during the relevant period but says in any event that it would not be appropriate to exercise the discretion in s 22(9) in Mr Kumar’s favour. Mr Kumar has asked the Tribunal to review that decision.

   THE BACKGROUND TO THE APPLICATION

3. Mr Kumar lives and works in Fiji where he is a citizen. He is an executive in a family business that is carried on by a group of companies in which he has a significant shareholding. He came to Australia briefly for the first time in 1990 although he explained in his statement (exhibit 4) that he had become an Australian permanent resident in 1989. Immigration records show Mr Kumar did not visit this country in 1991 but he was here for 273 days in 1992 and 244 days in 1993 (see summary at exhibit 6).

4. Mr Kumar visited Australia on many occasions since 1993. Most of the visits were of shorter duration, although on at least four or five occasions Mr Kumar visited for longer periods of several months in order to provide relief for his brother, with whom he continues to be in business. Exhibit 6 sets out the total amount of time he spent in this country during each year since 1990. In the four years preceding the application, the respondent calculated Mr Kumar was present in Australia for between 215 to 218 days. That is not nearly long enough to meet the criterion in s 22(1).

5. Section 22(9) offers what amounts to an alternative way of satisfying the general residence requirement in s 21. It is potentially available in cases like the present where a permanent resident with an Australian spouse is absent overseas for long periods.
   The subsection provides the Minister with the discretion to treat absences from Australia as if the individual were physically present in this country. But there is a catch:
   the discretion is only enlivened if “the Minister is satisfied that the person had a close and continuing association with Australia during that period”: s 22(9)(d).

6. It follows I must first satisfy myself that Mr Kumar had a close and continuing association with Australia during the periods of absence from Australia. If I am satisfied he did, I must then consider whether the discretion should be exercised in his favour.

   DID THE APPLICANT HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA?

7. The statutory language uses ordinary English words. Everyone knows what those words mean. There is no point parsing or paraphrasing the expression, or parts of it; indeed, doing so would create the risk of error. I would add that I do not accept the Australian Citizenship Instructions are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation.
   My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.

8. I am satisfied there is a close and continuing association over the period of review – and for many years before that – on the basis of the following evidence that was given by
   Mr Kumar in particular.

9. Mr Kumar has had business interests in Australia since 1992 when he and his brother acquired a newsagency in Gymea. Mr Kumar managed the newsagency while he lived in Australia for a significant period during 1992 to 1993 before being called back to Fiji to participate in the family business there. Since 1993, he has remained an investor in Australian businesses managed by his brother. I am satisfied he has a track record of doing business in this country before the four-year period that preceded the visa application.

10. The evidence of Mr Kumar’s current interests is of particular relevance for the purposes of my inquiry. In his statement, he spoke of his substantial shareholding (with his brother and mother) in a franchised retail outlet in a large Sydney shopping centre that operated in the four years before the application. Mr Kumar did not pretend he was involved in day-to-day management of that business but he said in oral evidence that he speaks with his brother regularly (perhaps several times a week) to discuss how the business is going. He also said he participated in major operational and strategic decisions and was closely involved (albeit remotely) in negotiations with the landlord and the master franchisor.
    He is not a director of the company which conducts the business but his oral evidence suggests he is a shadow director. I have no reason to doubt this evidence, and I accept it. He is also a guarantor of the company’s obligations under the franchise agreement and he has guaranteed the company’s loans to the bank. The financial obligations have recently become more onerous as the company has borrowed more money to fund a refit and relocation of its store within the shopping centre. The company has not paid dividends and Mr Kumar has not drawn a salary (and therefore has not paid income tax in this country) but there is no reason to doubt the business is a substantial one, that it is a going concern, that the applicant is closely involved in its oversight if not day-to-day management, and that the applicant and his family will remain involved in that business for the foreseeable future.

11. Mr Kumar also owns real estate in this country. He purchased a house in Sylvania Waters in 1999 that housed members of his immediate family while they lived here until 2006. The applicant’s brother and his family and Mr Kumar’s mother currently reside in the house. They are all Australian citizens. There is no evidence that any of them plan to leave this country or the applicant’s house in Sylvania Waters.

12. The applicant is married to an Australian citizen, albeit that she resides in Fiji with the applicant. Both of the children of the marriage were born here and are Australian citizens. Mrs Kumar lived here from 1999 until she returned to Fiji in 2006 where she now lives with her husband. Mr Kumar’s son currently attends a Sydney boarding school and is likely to attend university in this country when he completes his secondary education. I was provided with evidence in Mr Kumar’s additional statement (exhibit 5) confirming that his daughter is also enrolled in a Sydney school, commencing next year.

13. I accept the applicant has not lived in this country for over 20 years and that most of his visits since then have been of shorter duration. (I accept he has spent longer periods here on four or five occasions to assist his brother.) Even so, he remains a frequent visitor for a variety of purposes.

14. I am satisfied these matters, taken together, suggest a close and continuing association with Australia. I note the applicant referred to a number of other facts and circumstances that he said constituted evidence of an association, but I was not persuaded they counted heavily in his favour, or at all. These included:

    ·Links fostered by the applicant between Australian firms and his business interests in Fiji. While welcome, there was no evidence he preferred Australian suppliers, and he had similar commercial arrangements with suppliers in other countries.

    ·His investment in a portfolio of Australian companies. Given these shares can be acquired remotely and provide – at most – a passive financial interest in the Australian companies concerned, I am satisfied they are of limited relevance to my task.

15. I do not think much turns on the fact the applicant has significant business interests in Fiji and that those interests may be relatively larger than his interests in Australia, although there was no clear evidence in relation to this issue.

16. In any event, I am satisfied the discretion in s 22(9) of the Act has been enlivened.
    The next question is whether it should be exercised in the applicant’s favour.

    SHOULD THE DISCRETION IN SECTION 22(9) OF THE ACT BE EXERCISED IN MR KUMAR’S FAVOUR?

17. The Act does not set out criteria that govern the exercise of the discretion. Mr Zipser, for the applicant, says the cases decided in this area suggest the discretion should be exercised in the applicant’s favour unless there is a good reason – like a national interest or national security consideration – not to do so.

18. I disagree. The Act does not create a residual discretion to withhold approval – or exercise a veto – once it is established there is a close and continuing association.
    One does not become entitled to the benefit of the discretion because an association has been established unless there is a good reason to suggest the discretion should not be exercised. If the parliament had wanted to achieve that result, it would have said so.
    This is, in reality, an exceptional power: a power to relieve someone of the consequences of failing to comply with the usual or general rule. The structure of the legislation suggests it is incumbent on the decision-maker to have a good reason to exercise the power, as opposed to creating a presumption in favour of the exercise of the power in the absence of a reason to the contrary.

19. This is where the applicant runs into difficulty. He already holds a permanent resident’s visa. He can come and go as he pleases, and he is entitled to stay. He must regularly reapply for that visa, and he must establish in the course of each application that he is able to satisfy the requirements that apply to that sub-class of visa – but I was not told of specific concerns that he would become unable to satisfy those requirements. Mr Zipser suggested there was a possibility those requirements might change capriciously. That is true, but there is no suggestion of imminent change – and if there were, there is nothing to suggest the applicant could not lodge a fresh application for citizenship at that point. Mr Zipser acknowledged that was so but warned that might impose administrative costs on the applicant who would have to keep abreast of potential changes. I do not see how those costs would be especially burdensome or unreasonable.

20. I asked the applicant in cross-examination why there was a need to achieve citizenship now when he did not anticipate moving back to this country for another four or five years. Why not wait? He was unable to identify a compelling reason. He initially suggested he had commenced an application and wanted to see it through. Upon reflection, he mentioned he was aware of rumours that some individuals had experienced difficulty leaving Fiji in the past as a consequence of political upheaval, but there was no suggestion Mr Kumar had reason to worry about any of that in the short term.

21. I am not satisfied there is a good reason to exercise the discretion in Mr Kumar’s favour at this point. He will not suffer any disadvantage if he is not immediately able to access the privilege of Australian citizenship. If something changes, he can reapply.

    CONCLUSION

22. The decision under review is affirmed.

    
    

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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

Associate

Dated 18 December 2014

Dates of hearing	19 June 2014; 12 November 2014
Counsel for the Applicant	Ben Zipser
Solicitors for the Applicant	Macquarie Partnership Lawyers
Solicitors for the Respondent	Clayton Utz