Chaudhry and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 439
•2 June 2016
Chaudhry and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 439 (2 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4281
Re
Dr Junaid Chaudhry
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 2 June 2016 Date of written reasons 28 June 2016 Place Brisbane I affirm the decision under review.
................................[sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – application for citizenship by conferral – applicant did not satisfy residence requirement – applicant’s spouse is an Australian citizen – applicant does not have a continuing association with Australia – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22
CASES
Saba and Minister for Immigration and Border Protection (2014) 145 ALD 212
SECONDARY MATERIALS
Australian Citizenship Instructions (1 July 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 June 2016
INTRODUCTION
Dr Junaid Chaudhry (“the applicant”) seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) dated 30 January 2015. On that date the delegate found that the application did not meet the requirements of s 21(2)(c) and (g) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
BACKGROUND
In 1982 the applicant was born in Pakistan. The applicant has completed extensive studies in cyber security including a Doctor of Philosophy.
In May 2006 the applicant married Mrs Fushia Zahra. Mrs Zahra is an Australian citizen. They have had four children together who are also Australian citizens.
On 20 July 2007 the applicant first arrived in Australia. On 1 December 2009 the applicant was granted permanent residency. On 12 July 2014 the applicant lodged an application for Australian citizenship by conferral.[1]
[1] Exhibit A, T-Documents, T4.
On 30 January 2015 the delegate refused the application on the basis that the application did not satisfy any of the residence requirements under s 21(2)(c) of the Act. The delegate determined that it was not appropriate to exercise the Ministerial discretion available for a spouse of an Australian citizen set out under s 22(9) of the Act. The delegate was not satisfied that the applicant would be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application is approved as required under s 21(2)(g) of the Act.[2]
[2] Exhibit A, T-Documents, 8.
On 19 August 2015 the applicant lodged an application for review of the decision of the delegate. The applicant provided that the reason for the application was that he was required to be overseas for employment. He submitted that he requires security clearance in order to been employed in Australian positions, which he is unable to receive unless he is an Australian citizen.[3]
[3] Exhibit A, T-Documents, T2.
ISSUES
The core issue for consideration is whether the applicant is eligible to become an Australian citizen. More specifically, I am required to consider whether the applicant has satisfied the criterion for eligibility set out under s 21(2)(c) and (g) of the Act.
Section 21(2)(c) of the Act provides that in order to be eligible for citizenship the applicant must satisfy the general residence requirement or the special residence requirement, or satisfy the defence service requirement, at the time of making the application for citizenship.
I am required to determine whether the applicant satisfied the general residence requirement set out under s 22(1) of the Act at the time of making his application for citizenship, which provides:
(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.
The determination of whether the applicant satisfied the general residence requirement involves applying the allowances set out under s 22(1A) and (1B) of the Act, which provide:
(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.
In the event that the applicant has not satisfied the general residence requirement, I am required to consider any applicable exceptions set out under the Act. The relevant exception in this instance is set out under s 22(9) of the Act, which 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.
Section 21(2)(g) of the Act provides that in order to be eligible for citizenship the applicant must either be likely to reside in Australia or be likely to maintain a close and continuing association with Australia if the application were to be approved.
CONSIDERATION
General residence requirement
The applicant lodged an application for Australian citizenship by conferral on 12 July 2014.[4] Therefore, I am required to consider his eligibility for citizenship on that date.
[4] Exhibit A, T-Documents, T4.
Section 22(1)(a) of the Act provides that the first condition of the general residence requirement is that the person must be present in Australia for the four years immediately before the day of making the application. Section 22(1A) provides that a person will satisfy this condition despite being absent from Australia for a period of twelve months or less in the four years immediately before the day of making the application.
The four year period to be considered for the purposes of s 22(1)(a) of the Act is from 12 July 2010 to 12 July 2014. In evidence was a movement calculator which disclosed the applicant’s location during the four year period.[5] The applicant did not dispute the accuracy of the document. The document provided that the applicant had been absent from Australia for 1213 days in the four year period. Therefore, the condition set out under s 22(1)(a) of the Act clearly was not met even with allowance being made under s 22(1A) of the Act.
[5] Exhibit E, Movement calculator.
Section 22(1)(b) of the Act provides that the second condition of the general residence requirement is that the person must not be present in Australia as an unlawful citizen at any time during the four years. There was no dispute between the parties that the applicant was lawfully present in Australia.
Section 22(1)(c) of the Act provides that the third condition of the general residence requirement is that the person must be present in Australia as a permanent resident for the twelve months immediately before the day of making the application. Section 22(1B) provides that a person will satisfy this condition despite being absent from Australia for a period of 90 days or less in the twelve months immediately before the day of making the application. The movement calculator discloses that the applicant has been absent from Australia for 331 days in the twelve month period.[6] Therefore, the condition set out under s 22(1)(b) of the Act clearly was not met even with allowance being made under s 22(1B) of the Act.
[6] Ibid.
The applicant does not satisfy the general residence requirement.
Spouse exception
An exception to the general residence requirement is set out under s 22(9) of the Act. The exception may apply where the person applying for citizenship is the spouse of an Australian citizen at the time the application was made.
Section 22(9)(a) of the Act provides that the first condition of the spouse exception is that the person applying for citizenship was a spouse or de facto partner of that Australian citizen during that period. The applicant married Mrs Fushia Chaudhry in May 2006 and they have been married since then. Mrs Chaudhry is an Australian citizen. Therefore, s 22(9)(a) has been satisfied.
Section 22(9)(c) of the Act provides that the second condition of the spouse exception is that the person applying for citizenship was a permanent resident during that period. The applicant was granted permanent resident status on 1 December 2009 and satisfies s 22(9)(c).
Section 22(9)(d) of the Act provides that the third condition of the spouse exception is that the person had a close and continuing association with Australia during the period. In making this determination I have had regard to the guidance provided by the Australian Citizenship Instructions issued by the Department of Immigration and Border Protection National Office on 1 July 2014 (“the Instructions”). At the hearing, the respondent alerted me to the issuing of new instructions since the decision of the delegate. However, neither party contended that there were any material changes made in the updated instructions that were relevant to the current application.
Paragraph 5.7.2 of the Instructions provide that the following factors may contribute to a close and continuing association with Australia:
·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
·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
It was decided by this Tribunal in Saba and Minister for Immigration and Border Protection (2014) 145 ALD 212 at 215 that this is a non-exhaustive list of factors.
I will consider each of these factors in turn. Both the applicant and Mrs Zhara gave evidence about their relationship. They met in 2004 while they were both studying in South Korea. They married in May 2006. They were in a relationship for at least eight years prior to the applicant’s application for citizenship.
The applicant has four children. Each of these children are Australian citizens.[7]
[7] Exhibit A, T-Documents, T7-T8.
The family of Mrs Zhara consider the applicant to be a part of their extended family. Both Mrs Karen Albert[8] and Mr Martin Albert[9] made statutory declarations to this effect.
[8] Exhibit B, Statutory declaration of Karen Albert declared 26 February 2016.
[9] Exhibit B, Statutory declaration of Martin Albert declared 25 February 2016.
The applicant made only three visits to Australia during the four years prior to lodging his application. The applicant has resided in Australia for only 248 days of the four years prior to lodging his application. Moreover, the applicant has only resided in Australia for 34 days in the final year prior to lodging his application. It was the contention of the respondent that the lack of time that the applicant has resided in Australia should weigh heavily against a finding that the applicant has a close and continuing relationship with Australia.
The applicant contended that he was required to reside overseas to pursue employment opportunities. The applicant stated that his field of speciality is “cyber security”. He has applied for positions in Australia in this field but has been unsuccessful. He attributed this to the significant amount of competition for the positions that he was interested in and to the fact that he is not an Australian citizen. He stated that:[10]
…the greatest obstacle to my gaining a job was my lack of citizenship… I became locked in a cycle of needing citizenship to gain job eligibility but needing a job to have the financial means to reside in Australia.
[10] Exhibit B, Statement of Dr Junaid Chaudhry lodged 29 January 2016 at p. 1.
Mrs Zhara stated that the reason for the applicant being outside of Australia was because of his requirement to undertake work to support their family. She explained that she could not work because she was occupied caring for their children.
It was not apparent why the applicant did not seek employment outside of his field of speciality.
Another consideration is the applicant’s intention to reside in Australia. The applicant contended that he intends to reside in Australia stating that it was his “greatest desire”.[11] It is difficult to accept this assertion given the lack of time that the applicant has spent in Australia prior to lodging his application. Based on the evidence before the Tribunal it appears that the applicant does not intend to reside in Australia unless he is offered domestic employment that aligns with his field of specialty.
[11] Ibid at p. 2.
In relation to the applicant’s employment, I note that in 2010 he commenced employment with a local authority. He gave evidence that his employer did not extend his employment beyond the two month probation period.
In relation to the ownership of property, the applicant and his wife planned to purchase a property in Kandanga, Queensland in 2014. The applicant provided evidence that he had signed a contract of sale and paid a deposit on the property. The applicant and his wife sought finance from a sharia compliant financing body for debt financing because of their religious beliefs. The financer declined to provide a loan because it deemed the property valuation to be incorrect.
The respondent contends that the fact that the applicant attempted to purchase a property does not demonstrate a continuing relationship with Australia during the requisite period.
The applicant also stated that he and Mrs Zhara invested in a managed fund with ANZ but withdrew the investment in response to the global financial crisis. He stated that they have placed some of their funds into an account with the Muslim Community Cooperative Australia.
The applicant agreed under cross-examination that he did have funds in bank accounts in foreign countries. He stated that this was necessary for accessing funds when he resided in those countries.
The applicant stated that he completed income tax returns for the time that he held a position in Australia. There is no evidence of the applicant having paid income tax in Australia.
In consideration of factors set out above, I am not satisfied that the applicant has a close and continuing association with Australia. Therefore, the applicant does not satisfy the third condition of the spouse exception set out under s 22(9)(d) of the Act.
Likelihood of residing in Australia
In order to satisfy s 21(2)(g) of the Act the applicant must either establish that, if the application for citizenship were approved, he is likely to reside in Australia or that he is likely to maintain a close and continuing association with Australia. The applicant is required to satisfy at least one of these requirements.
I will first consider the likelihood that the applicant will reside in Australia if his application were approved. Paragraph 5.7.1 of the Instructions provides that an intention to reside should be investigated further where the applicant has spent significant periods outside of Australia since becoming a permanent resident. As stated above, the applicant has spent only a limited period of time in Australia since becoming a permanent resident.
The applicant contends that he would be likely to reside in Australia if the application for citizenship were approved. This contention is made on the basis that he is unable to obtain desired domestic employment positions within Australian citizenship. The corollary to this contention is that he has been based overseas to pursue desired employment positions that have not been available to him in Australia.
I am not satisfied that the applicant would reside in Australia unless he obtained a position that was within his field of interest. Some of the applications for employment that the applicant has made are for senior academic positions that would usually be filled by a person who is already in an academic post. As a permanent resident the applicant could have pursued employment in other areas that did not require citizenship or security clearance. However, he elected to complete work overseas that was in line with his specialty interest.
The applicant stated in evidence that there is significant competition for positions in the cyber security field with upwards of 200 candidates for Australian positions. There is no guarantee that the applicant will obtain a position in this field if his application for citizenship were approved. In the event that the applicant were unsuccessful, it appears more likely than not that he would relocate abroad to pursue a position in his field of speciality. His most recent employment has been in Dubai where he states that he was involved in protecting assets from cyber-attacks. Section 21(2)(g) has not been satisfied as the applicant is not likely to reside in Australia if the application were approved.
Likelihood of maintaining a close and continuing association with Australia
I do not find that the applicant is likely to reside in Australia if the application for citizenship were approved. Therefore, s 21(2)(g) will only be satisfied if the applicant is likely to maintain a close and continuing association with Australia if the application for citizenship were approved.
This test differs from that discussed under s 22(9)(d) of the Act which involves an assessment of the relevant period prior to the applicant’s application for citizenship test. The test under s 21(2)(g) involves speculating on what would occur if the applicant’s application for citizenship were approved. This involves a consideration of the past as well as the future.
For the reasons set out above I am not satisfied that the applicant would be likely to maintain a close and continuing association with Australia were his application for citizenship approved. He has only resided in Australia for a limited period of time and has resided abroad to pursue career opportunities in the cyber security field. I cannot find that it is likely that he will maintain a close and continuing association with Australia unless he obtains a domestic position that is within his sphere of interest.
CONCLUSION
The applicant has spent only a limited period of time in Australia between 12 July 2010 and 12 July 2014. Therefore, he cannot satisfy the general residence requirements set out under s 22(1) of the Act.
I am not satisfied on the evidence before me that the applicant had a close and continuing association with Australia during that period. Therefore, I cannot apply the spouse exception set out under s 22(9) of the Act.
The applicant has elected to reside overseas for the bulk of the relevant period to pursue employment in the cyber security field. The evidence before the Tribunal is that positions in this field are difficult to obtain in Australia. The applicant was not in Australia at the time he made his application for citizenship or at the time of the decision of the delegate. I am unable on the state of the evidence before me to determine that the applicant is likely to reside in Australia if the application were to be approved or that he would have a close and continuing relationship with Australia as is required under s 21(2)(g) of the Act.
Since the lodgement of the application the applicant has spent more time in Australia. If the applicant continues to reside in Australia this would certainly support any application made for Australian citizenship in the future.
DECISION
I affirm the decision under review.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ...........................[sgd].............................................
Associate
Dated 28 June 2016
Date(s) of hearing 2 June 2016 Applicant In person Solicitors for the Respondent Mr Ben Dube, Sparke Helmore
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
0
0
0