Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 662
•28 March 2022
Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 662 (28 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/3535
Re:Sanjay Chimnani
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member Dr Linda Kirk
Date:28 March 2022
Place:Sydney
The Tribunal affirms the Reviewable Decision dated 18 May 2020.
........................[sgd]................................................
Senior Member Dr Linda Kirk
CATCHWORDS
CITIZENSHIP – citizenship by conferral – general residence requirements – where applicant overseas for period preceding application - 35 days of four year period spent in Australia – where applicant has a de facto spouse who is an Australian citizen – whether the applicant has a close and continuing association with Australia during that period – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Li and Minister for Immigration and Border Protection [2015] AATA 270
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Australian Citizenship [Policy Statement]
Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth)
Revised Citizenship Procedural Instruction (CPI) 8 – Residence Requirements and Discretions
Revised Citizenship Procedural Instruction 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Senior Member Dr Linda Kirk
28 March 2022
Sanjay Chimnani (‘the Applicant’) is a citizen of India who first arrived in Australia on 1 May 2009.[1] On 1 October 2014 the Applicant was granted an Employer Nomination (subclass 186) permanent visa.[2] On 14 November 2019 he was granted a subclass BB-155 (Resident Return Visa). On 16 May 2019, the Applicant applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3]
[1] T2, 11.
[2] T2, 12.
[3] T3, 19.
On 18 May 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused the application because the Applicant did not satisfy the general residence requirement in section 21(2)(c) of the Act, and decided not to exercise the Ministerial discretion in section 22(9) of the Act in respect of his overseas absences.[4]
[4] T2, 10-17.
On 11 June 2020, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal.[5]
[5] T1, 1-6
The matter was heard by the Tribunal on 27 August 2021. The following witnesses attended the hearing by video conference and gave oral evidence and were cross-examined:
·the Applicant;
·Shine Sunny;
·Jane Mascarenhas;
·Angus Raine;
·Paul Hickman; and
·Marcel Moodly.
The exhibits before the Tribunal consists of:
- T-Documents (T1 – T10, pages 1 – 280) filed 24 July 2020. – Exhibit R1
- Letter of support from Jane Shanthy Mascarenhas dated 16 May 2021 – Exhibit A1
- Letter of support from Angus Raine dated 17 May 2021 – Exhibit A2
- Letter of support from Paul Hickman dated 18 May 2021 – Exhibit A3
- Letter of support from Marcel Moodly dated 20 May 2021 – Exhibit A4
- Letter of support from Shine Sunny, undated but filed 19 May 2021 – Exhibit A5
- Letter of support from His Excellency Arthur Spyrou, dated 4 June 2021
The Tribunal also notes that there were other materials put forward by the parties, including various other letters of support for the Applicant. The Tribunal has reviewed and considered the evidence and other documents before it and refers to the relevant materials below.
LEGISLATIVE FRAMEWORK
Australian Citizenship Act
Section 20 of the Act relevantly states that a person becomes an Australian citizen if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen.
Section 24(1) of the Act provides that if a person makes an application to become an Australian citizen, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Pursuant to section 24(1A) of the Act, the Minister must not approve an application to become an Australian citizen unless, among other things, the person is eligible to become an Australian citizen under subsection 21(2) of the Act.
Section 21(2) of the Act provides:
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
Section 22 of the Act sets out the general residence requirement. It provides:
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 - spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(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.
Citizenship Policy
The Australian Citizenship Policy Statement (‘Policy Statement’) and the Revised Australian Citizenship Procedural Instructions (‘CPI’) provide policy guidance to decision-makers on the interpretation and exercise of powers under the Act. The Tribunal is not bound to strictly apply policy as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry, ‘Policy is not law. A statement of policy is not a prescription of binding criteria’.[6] However, policy should be given due and proper consideration and weight by the Tribunal unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[7] There are no cogent reasons why the Tribunal should not apply policy in this application.
[6] (1985) 8 ALD 366 (6 November 1985) at 376.
[7] (1979) 2 ALD 634 at 645 per Brennan J.
Revised Citizenship Procedural Instruction (CPI) 8 – Residence Requirements and Discretions states that the discretion under subsection 22(9) of the Act:
… allows periods of time spent outside Australia as a permanent resident to be counted as time spent in Australia for the purposes of meeting the requirements in paragraph 22(1)(a) and paragraph 22(1)(c) of the Act in circumstances where the applicant has exceeded the allowable absences set out in subsection 22(1A).
The discretion can only be applied to periods where:
othe applicant was a spouse, de facto partner of the Australian citizen during that period; and
othe applicant was not present in Australia during that period; and
othe applicant was a permanent resident during that period; and
othe applicant had a close and continuing association with Australia during that period. Refer to CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.
CPI - 8 further notes that applicants seeking the application of the ministerial discretion under subsection 22(9) of the Act will need to provide evidence of their relationship with their spouse or de facto partner and that person’s Australian citizenship.
The purpose of Revised Citizenship Procedural Instruction 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (‘CPI 11’)is to:
…set out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were to be approved’.
It provides assistance in considering whether a person had a ‘close and continuing association’ with Australia during a relevant period of time, which is necessarily ‘a time that has already passed’. It states, relevantly, that:
Under subsection 22(9) of the Act 'Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen', an applicant must have had, amongst other things, a close and continuing association with Australia during the period to which the discretion is to be applied (refer to Citizenship Instruction 8 - Residence Requirements and Discretions). This means that the consideration of ‘close and continuing association with Australia’ for the purpose of the discretion concerns a time that has already passed, rather than a time in the future, as in paragraphs 21(2)(g), 21(3)(e) and 21(4)(e) of the Act.
…
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association’ 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.
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.
Paragraph 3.3 sets out a list of factors that may be relevant:
3.3. Factors that may be relevant
Following are examples of factors that may be relevant when assessing whether an applicant is likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia should their application be approved. These may be explored in an interview or through a request for further information. Decision makers must be mindful that the following factors are a guide only and that each case must be assessed on its facts.
Living arrangements and citizenship/migration status in their current country of residence
A person’s living arrangements and citizenship/migration status in their country of residence (whether that is Australia or elsewhere) may be indicators of their intention to reside in that country and whether they could act on that intent.
Authority to reside in a particular place could be derived from the citizenship of that country, or by a visa or other form of permission that allows the person to reside and work in the country long-term (that may be extended if for a fixed period) or indefinitely.
Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include but are not limited to:
·Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;
·Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
·Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country. For example:
oWhat is the person’s source of income? Are they subject to an employment contract and what arrangements do they have in relation to that contract? If the contract is for a defined period of time, do they have an option of extending the contract? Have they indicated they would they do so? Do they operate a business that requires their physical presence or could they run that business remotely? Do grandparents or other relatives provide childcare so the parent/s can work?
oIf the person has been caring for an elderly or sick relative, what arrangements would be made for the care of that relative if the person becomes an Australian citizen? Does the relative still need care or are they recovered or have they died?
oWhat are the schooling arrangements for their children and what are the implications of or plans to change those arrangements? For example, if the child is enrolled in a school that had a long waiting list and requires prepayment of fees, is there an intention to leave the child in that school and what would be the care arrangements for the child? Is the child at a stage of their education where relocation would have an adverse impact and so the parent claims any relocation will occur after the child has completed that stage (for example, if the child has entered a program equivalent to year 11 and 12)?
·Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?
·Frequency and reasons for absences from Australia if the person resides in Australia. For example:
oA person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was:
§undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;
§accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;
§participating in Australian cultural activities;
§promoting Australia overseas; or
§enrolled at an overseas university where equivalent studies are not available in Australia;
oA person’s absence/s from Australia because they have continued to work in the same overseas position or for the same employer they had prior to obtaining permanent residence may be an indicator that they have not been residing in Australia and are unlikely to do so;
oWhat has been the person’s motivation for international relocations? Is the person motivated to pursue life opportunities, career or financial advancement regardless of location or are they primarily motivated to pursue those opportunities in Australia?
oAn intention to remain temporarily overseas for work related reasons is not fatal to the application if the decisionmaker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;
oDepartmental movement records may be used to establish periods of residence. Passenger cards, where available, may assist in identifying reasons for being outside Australia.
·Participation in the Australian community. For example:
oParticipation in a community group that provides services or engages in activities of benefit to the community;
oMembership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.
oNote: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes. For example, distinction could be made between activities to improve the facilities of a golf club for the benefit of the community, and playing golf at that club.
·The applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.
Paragraph 3.4 gives examples of the evidence a person may provide to support their claims against the requirements:
3.4. Evidence
Evidence to support a person’s claims against these requirements could include, but is not limited to, certified copies of:
·passports and other documents showing the person’s status in their country of overseas residence;
·employment contracts and pay slips in relation to current and proposed employment;
· share certificates, partnership agreements or business registration documents;
·title deeds and leases;
·letters or statutory declarations from community organisations and schools;
·receipts for payments associated with planned relocation; for example, air fares, removalist charges or enrolment with an educational institution at the intended destination. Less weight may be given to quotations or unpaid invoices for such services.
ISSUES FOR DETERMINATION
It is agreed by both parties that the Applicant did not meet the general residence requirement on the basis that he was not in Australia for the four years immediately prior to applying for Australian citizenship (‘the relevant period’): s 22 of the Act.
The sole issue for determination by the Tribunal in this matter is whether the Tribunal is satisfied that the Applicant had a close and continuing association with Australia during the relevant period for the purposes of s 22(9)(d) of the Act.
APPLICANT’S EVIDENCE
The Applicant moved from India to Dubai and lived there from 2003 until 2009, and worked in the real estate business. He stated that ‘the global financial crisis impacted Dubai more than it impacted any other part of the world in the real estate business because most investors were from outside’.[8] The Applicant tendered his resignation as director of a leading real estate company and took a couple of months off to visit his family in 2009. He also travelled to Melbourne to visit his now partner, Shine Sunny, who is an Australian citizen. The Applicant and his partner commenced a relationship and he moved to Melbourne to live with his partner and run his restaurant business, Bob’s Steak and Chop House.[9]
[8] Transcript, 22.
[9] Transcript, 23.
In early 2015, the Applicant was offered an opportunity to represent an Australian real estate company, Raine & Horne in the Middle East.[10] Relocating to Dubai was a difficult decision for him and his partner to make as his restaurant was doing well and she had recently established her own business. The Applicant and his partner moved to Dubai in April 2015 and the Applicant commenced employment with Raine & Horne. His employment contract is for a fixed term. The Applicant is also involved in a joint venture with Globe Williams, also an Australian established company with an international presence.[11] The intention was that the Applicant would live and work in Dubai for a four-year temporary period.[12] The Applicant’s contract with Raine & Horne was extended until 2021, and again until 2023 due to COVID-19 and the subsequent difficulties faced by the business.
[10] Transcript, 28.
[11] Applicant’s submissions, dated 25 February 2021.
[12] Transcript, 58.
The Applicant holds a temporary residence permit for the United Arab Emirates (‘UAE’) which is renewable every three years.[13] He and his partner have an annual lease on their house and must give 60 days’ notice or pay a penalty to end the lease. They have not purchased residential property in Dubai.[14]
[13] Transcript, 59.
[14] Transcript, 27.
The Applicant claims that his motivation for relocating to Dubai was not because he wished to pursue opportunities in Dubai. His motivation for international relocation to Dubai is to ‘ultimately return to Australia with more experience that would bring about career progression in Australia’.[15] In Dubai he has maintained associations with various Australian related entities, including the Australian Embassy in Abu Dhabi, the Consulate of Australia in Dubai, Australian Trade and Investment Commission (‘Austrade’) Dubai, and the Victorian Government Trade and Investment office in Dubai. He has assisted various Australians in Dubai and Abu Dhabi, to build his credentials and a positive reputation, so that it could help with his career advancement when he returns to Australia.[16]
[15] Applicant’s submissions, dated 25 February 2021.
[16] Applicant’s submissions, dated 25 February 2021.
The Applicant is very active in the Australian community in Dubai. He personally supports events hosted by the Australian ambassadors in Dubai. In addition, he arranges for Raine & Horne to professionally sponsor events hosted by the Australian ambassadors or other Australian events where possible. In his personal capacity, he often assists Australian businesses in Dubai. For example:
·Astra Apartments in Dubai (Corporate short let apartments in Australia)
·Two franchises Retail Foods Group and Quick Service Restaurants
·Langoor (Australian Digital Branding and creative technology company)
·HOF Hospitality Group (Hospitality)
·PHD Retail (Designers & Architects)
·Modus International Furniture (Furniture designers and manufacturers for Hospitality Projects)
·Barnes Capital (Funding for Hotel Portfolio in Victoria)
·Schiavello Furniture (Furniture designers)
·Future Food – (Food, Restaurant & Hospitality Consultancy)
·The Pancake Parlour (hospitality)
·Groove Train (hospitality)
·Meat & Livestock Australia – MENA region
·Raine & Horne, Avoca (introduction to investors)
·WA Sandalwood Plantations (Introduction to Sandalwood plantations in WA).[17]
[17] Applicant’s submissions, dated 25 February 2021
The Applicant has maintained an active business in Australia, ASA Hospitality Pty Ltd. He has engaged Pitcher Partners as his accountants for this business since its inception in 2010. Even though he lives in Dubai, the Applicant runs the business remotely. The business is active as evidenced by the monthly lodgements of its business activity statements.
The Applicant is ‘devoted to Australia and care(s) deeply about its welfare.’ When Australia was first affected by COVID-19 in early 2020, he assisted with the supply of over 3.5 million face masks and PPEs to Australia for no profit, and subsequently supplied another 5 million masks on a marginal profit margin only to cover business risks. He had no intention of making a profit out of this arrangement.[18]
[18] Applicant’s submissions, dated 25 February 2021.
All three of the Applicant’s children are Australian permanent residents. His eldest son and daughter live with him and his partner in Dubai, and his youngest son is studying at the University of Pennsylvania. Two of his first cousins’ children and their family are Australian citizens living in Melbourne. One of his first cousins is an Australian permanent resident.[19] Their plan as a family is to return to Australia and to buy a property and settle down in South Gippsland.[20]
[19] Applicant’s submissions 25 February 2021; Transcript, 57.
[20] Transcript, 63.
The Applicant’s evidence is that he visits Australia as frequently as possible, but this is limited due to his work in Dubai and travelling to visit his youngest son when he lived with his mother in India. During the period 2015 to 2019 the Applicant made a return visit to Australia every year except one year when they visited Europe.[21] These visits were a fortnight in duration, four days of which would be attendance at a Raine & Horne conference, one day in Sydney for a strategy session, and the remainder of the time he would spend in Melbourne where he met with family and friends.[22] The Applicant also hosts gatherings to meet with friends and social network and he makes an effort to maintain a professional network in anticipation of his return to Australia.[23] His optometrist is located in Melbourne.[24]
WITNESS EVIDENCE
[21] Transcript, 59.
[22] Transcript, 59.
[23] Applicant’s submissions. dated 25 February 2021.
[24] Applicant’s submissions, dated 25 February 2021.
Ms Shine Sunny, Applicant’s partner
Ms Sunny provided a statement and gave oral evidence at the hearing.[25] In her statement she described the decision she and the Applicant made to relocate to Dubai:
We decided to move to Dubai in 2015 as Sanjay had a great offer from Raine & Home to establish a significant office in Dubai, due to his experience in the field of real estate in Dubai. I did agree to move, reluctantly as it was my understanding that it was a short-term assignment, and we would move back to Melbourne in 2021. The unexpected Covid situation has now pushed this out further to 2023.
[25] Exhibit A5.
Ms Sunny outlined her involvement with the Australian ex-patriate community in Dubai:
During our time in Dubai, I have been involved with the Australian expatriate community and have attended every Australia day event in Abu Dhabi at the Ambassadors invitation, besides getting to know both Ambassador Kang's and Ambassador Spyrou's wives. I have attended events hosted by Counsel General Gerard Seeber and his wife in Dubai.
She told the Tribunal that she made it abundantly clear to the Applicant that at the end of the period they would return to Australia as it is her home.[26] In her statement she wrote:
I was happy to play the role of a trailing partner for a limited time with no career prospects here in Dubai in my area of expertise. I want to get back to my business of writing and running my successful business of hyper local newspapers in Melbourne. I had to sell this when we moved to Dubai but wanting to get back to what I know best - journalism in Australia. I have made it clear to Sanjay that the current situation is untenable, and steps need to be taken to go back to Australia by 2023 permanently.
[26] Transcript, 68.
Ms Sunny is currently working in the business of short-term rentals and is helping the Australian pavilion that is being set up for Expo 2021 to find short-term accommodation.[27]
[27] Transcript, 69.
Jane Mascarenhas
Ms Mascarenhas provided a statement dated 16 May 2021 and gave oral evidence at the hearing.[28] She knows the Applicant in a professional capacity. She worked at Austrade as a senior business development manager from 2006 to 2019. The objective of Austrade is to assess Australian companies in trade and investments activities in the UAE and the Middle East region. Her role with Austrade was to support Australian food and beverage franchises and the hospitality companies that were looking at export opportunities in the UAE. They gave expert coaching advice and would sometimes rely on a number of their contacts for that advice. The Applicant had a very good knowledge of the market and the property and hospitality sector, and he could provide expert advice in relation to market trends, and he would share his business insights.[29] In her statement, she described the assistance the Applicant provided:
Mr Sanjay Chimnani was instrumental in supporting a number of small to large Australian businesses in the UAE. His business acumen and connections across key sectors including Food & Beverage, Retail, Hospitality and Services, in addition to generosity with his time and information, helped a number of Australian companies in their international plans of setting up in the UAE. He was considered a trade professional and ally of the Australian Consulate General and the Australian Embassy in the UAE.
[28] Exhibit A1.
[29] Transcript, 12.
Ms Mascarenhas told the Tribunal that every time she and the Applicant connected, and she told him about a potential Australian company that was seeking information, he was always very helpful, and made time to assist. At times he went over and above and would refer her to a business contact if he did not have the information she needed.[30]
[30] Transcript, 12.
She stated that she can recollect that the Applicant was also involved with networking events. Austrade would host many Australian delegations who would network with customers and their key stakeholders. The Applicant was always a part of that networking. Austrade was very business focused and concerned with more than trade and investment. She also remembers seeing the Applicant at a number of the annual Australian Day functions.[31]
[31] Transcript, 12.
Ms Mascarenhas was asked whether the Applicant went out of his way to maintain close and continuing connections with Australia. She agreed that he did and reiterated that Austrade relied on the Applicant for business and cultural advice. The Applicant also did a lot for Raine & Horne to develop their business relations in the UAE. Having reputable Australian companies doing well in the region helps to solidify bilateral trade and investment and promote business between Australia and the region.[32]
[32] Transcript, 13.
She was asked whether the Applicant talked to her about his plans to return to Australia. She said she got the impression that returning to Australia was an ‘endgame’ for him. He would attend receptions with his partner who was an Australian citizen, and they would fondly talk about Australia.[33]
[33] Transcript, 15.
Angus Raine
Mr Raine provided a letter of support dated 17 May 2021 and gave oral evidence at the hearing.[34] He is the Executive Chairman of Raine & Horne, which is a 138 years’ old Australian real estate broking franchising network. It has offices all around Australia and it also operates in Fiji, Malaysia, the UAE and India.[35] The Applicant has two offices with Raine & Horne in UAE, and he also has a significant involvement with its operations in India where, pre-COVID, there were 14 offices which they planned to double.[36]
[34] Exhibit A2.
[35] Transcript, 31.
[36] Transcript, 31.
Mr Raine told the Tribunal that he was introduced to the Applicant via their Victorian managing director in 2014, and they struck up a commercial relationship which has gone from strength to strength. He has come to know the Applicant very well over the years, and has found he has significant commercial acumen.He has had experience in the franchising sector with his previous employment, particularly in India and the UAE.[37] The Applicant ‘knows how we think’ and understands the direct approach to business favoured by Australians. He can ‘pick the phone up and just talk to him like a fellow countryman.’[38] He also has a personal relationship with the Applicant and has been to his house in Dubai several times, and the Applicant has been to his house and met his children.[39]
[37] Transcript, 32.
[38] Transcript, 32.
[39] Transcript, 33.
Mr Raine confirmed that the Applicant was appointed for a four-year term from 2015 to 2019 which was extended for a further two years to 2021. A second extension to his contract to 2023 was agreed to in early 2021 due to issues with the management in India. If this extension had not occurred, the Applicant would have returned to Australia and taken on the international coordinator role which is currently vacant.[40]
[40] Transcript, 33.
Mr Raine confirmed that this is the Applicant’s last extension based out of Dubai and he and his partner ‘have for long, wanted to return and settle down in Australia a country they both call home.’ When he returns to Australia in 2023 the Applicant will be appointed head of international operations and either based in Sydney or Melbourne.[41]
[41] Transcript, 33.
Paul Hickman
Mr Hickman provided a letter of support dated 18 May 2021 and gave oral evidence at the hearing.[42] He is the principal of Paul Hickman Design Pty Ltd whose specialty is design of cinemas and food and beverage outlets. He first met the Applicant in 2009 and his company provided interior design services for the fit-out of the Applicant’s Melbourne restaurant. Following the Applicant’s move to Dubai, they maintained an ongoing business relationship, and the Applicant facilitated the company’s interior design services into Dubai. This led to the company doing two office fit-outs and they met a number of cinema operators. He told the Tribunal that the Applicant’s understanding of the Australian business psyche and Australian society and culture was essential in trying to enter a foreign market like Dubai, and helping Australian businesses expand and grow there.[43] The Applicant had a number of major events when they were launching property projects in Dubai. The Applicant would invite him to Dubai so he could attend these events and also accommodated him. He used these as a platform to make other business contacts in Dubai.[44]
[42] Exhibit A3.
[43] Transcript, 40.
[44] Transcript, 40.
Mr Hickman told the Tribunal that what started as a business and commercial relationship, grew into a personal relationship. Recently they have been looking for rural properties in Victoria for the Applicant where he has intentions of retiring down the track once he has completed his business in Dubai. He confirmed that it has been his impression that the Applicant has made a firm commitment to return to Australia.[45]
[45] Transcript, 40.
Marcel Moodly
Mr Moodly gave oral evidence at the hearing and provided a written letter of support dated 20 May 2021. He told the Tribunal he has been in the retail industry for almost 30 years. He is originally from South Africa, and he spent six years in New Zealand. For the last 15 years he has been in Australia. He worked for Gloria Jeans Coffee for two years, and for the last almost 12 years he was assistant general merchandise manager overseeing the buying function for Costco. In July 2020 he moved on to his own trading business.[46]
[46] Transcript, 43,
Mr Moodly met the Applicant in Melbourne in 2009 when he was working for Costco and the Applicant was at the warehouse looking for advice with regards to a particular meat cut. Mr Moodly suggested that the Applicant trial Costco meat in his restaurant. He was pleased with the quality and price, and Costco then began to supply product to the Applicant.[47]
[47] Transcript, 43.
When COVID-19 hit, Costco was looking for three ply masks for their 3000 staff as their existing supplier increased the price for these masks. He knew the Applicant had a wide range of networks and he contacted him in Dubai, and through his networks he introduced them to a company called VTech. They then air-freighted a fair amount of product at a considerably reduced price compared to other sellers. The Applicant was a key part of bringing three million PPE into Australia for Costco staff and the public through this period. This has continued and a lot of the PPE is supplied to other government sectors through another company. Recently some 70,000 or 80,000 face shields were sold to government agencies through the Applicant’s influence.[48] In his opinion, the Applicant has made a valuable contribution to Australia’s response to the COVID pandemic.[49]
[48] Transcript, 44.
[49] Transcript, 44.
Mr Moodly told the Tribunal that prior to COVID there was a lot of beef coming out of a company called Nippon Meat, which was one of their beef suppliers in Queensland that went into the Middle East. The Applicant played a ‘pivotal role’ in organising for this to occur. In his opinion, since the Applicant has moved to Dubai, he has maintained in a business and economic sense a close and continuing association with Australia.[50]
CONSIDERATION AND REASONS
1. Does the Applicant satisfy the general residence requirement in section 21(2)(c) and section 22 of the Act?
[50] Transcript, 45.
General residence requirement
The Applicant does not dispute, and the Tribunal finds for the reasons that follow, that he does not meet the general residence requirement in section 21(2)(c) and section 22 of the Act.
As the Applicant applied for citizenship on 16 May 2019, the relevant period for calculation of the residence requirement in section 22(1)(a) is from 16 May 2015 to 1 May 2019.
Departmental records indicate that the Applicant was absent from Australia for a total of 1,426 days out of a possible 1,461 days in the four-year period immediately before applying for citizenship.[51] Therefore, the Applicant has not met the requirement under section 22(1)(c).
[51] T2, 12.
Additionally, in the 12 months immediately prior to the Applicant applying for Australian citizenship he was a permanent resident, he was absent from Australia for 365 days.[52]
[52] T2, 12.
Accordingly, the Tribunal finds that the Applicant does not meet the general residence requirement in section 21(2)(c) of the Act as he does not satisfy section 22(1)(a) and section 22(1)(c) of the Act.
The Tribunal has considered whether the Applicant can rely on the deeming provisions in sections 22(1A) or 22(1B) to satisfy the criteria in section 22(1) of the Act.
The Tribunal finds that he does not meet the criteria in section 22(1A) of the Act because in the four years prior to lodging his citizenship application, he was absent from Australia for 1,426 days being more than a total of 12 months. The Applicant cannot therefore rely on section 22(1A) of the Act.
The Applicant also does not meet the criteria in section 22(1B) of the Act because in the 12 months prior to lodging his citizenship application, he was absent from Australia for 365 days being more than 90 days. Accordingly, the Tribunal finds that the Applicant cannot rely on section 22(1B) of the Act.
2. Should the discretion in section 22(9) of the Act be exercised?
As the Applicant does not meet the general residence requirement in section 21(2)(c) of the Act it has considered whether the discretion in section 22(9) should be exercised such that he can be deemed to have been present in Australia during the periods he was absent overseas.
In Minister for Immigration and Border Protection v Han,[53] the Full Court of the Federal Court reviewed the legislative history of section 22(9) of the Act.[54] The Court referred to the Explanatory Memorandum in relation to clause 22(9) of the Australian Citizenship Bill 2005,[55] which stated:
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.[56]
(emphasis added)
[53] [2015] FCAFC 79.
[54] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [48]-[56]. The relevant passages of the Court’s judgment are extracted in Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 929 at [20] - [22].
[55] This was in the same form as s 22(9) Australian Citizenship Act 2007 (Cth).
[56] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 29.
The Court also noted the changes identified in the Explanatory Memorandum which referred to changes announced by the Government on 7 July 2004, which included:
… requiring a spouse of an Australian citizen to meet the same requirements for Australian citizenship by conferral as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia.[57]
[57] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 2.
The Court considered the purpose of section 22(9) to be as follows:
Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.[58]
…
…It is equally evident, however, that it was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.[59]
[58] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [51].
[59] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [54]; See also Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14].
The intention of section 22(9) of the Act was also recognised by the Tribunal in Taher and Minister for Immigration and Border Protection (‘Taher’):[60]
It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.[61]
(emphasis added)
[60] [2013] AATA 917.
[61] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [31].
The importance of physical presence in Australia to establish a close and continuing association was emphasised in Taher as follows:
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.
I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.[62]
(emphasis added)
[62] at [47]-[48].
The above decisions, and the references to the intention of Parliament as expressed in the Explanatory Memorandum, indicate that the intended purpose of the spousal discretion in section 22(9) of the Act is to ameliorate the strictness of the general residence requirement for non-citizens who accompany their Australian citizen spouse overseas so they can maintain their cohabitation when the spouse is working in the host country. The circumstances of the Applicant are the inverse of the situation contemplated by the Explanatory Memorandum. That is, the Applicant (the non-citizen) relocated to the UAE so he could undertake a lucrative employment opportunity and he was accompanied by his Australian citizen spouse so that they could continue to cohabit. The Tribunal therefore finds that the Applicant’s circumstances are not within the intended scope of the spousal discretion.
The Tribunal has nevertheless considered whether the four criteria set out in section 22(9)(a) – (d) which must be satisfied for the exercise of spousal discretion are met in the Applicant’s circumstances.
Are the criteria in section 22(9)(a)-(d) of the Act satisfied?
The Respondent accepts that the Applicant satisfies the criteria in section 22(9)(a)-(c) of the Act because:
(a)he was a de-facto relationship with an Australian citizen during his periods of absence from Australia;[63] and
(b)he was not present in Australia for the majority of the relevant period;[64] and
(c)he was a permanent resident visa during that period.[65]
[63] T2, 14.
[64] T3, 12..
[65] T2, 12.
The Tribunal is satisfied that the Applicant was the spouse of an Australian citizen,[66] and that he was not present in Australia during the relevant period. It is also satisfied that during his period overseas he was an Australia permanent resident, having been granted permanent residency on 1 October 2014.[67]
[66] T3, 149.
[67] T2, 12.
The Applicant argues that he also satisfies section 22(9)(d) of the Act, specifically that he had a ‘close and continuing association with Australia’ during his periods of absence from Australia.
‘Close and continuing association with Australia’
There is no definition of ‘close and continuing association’ in the Act. Consistent with previous Federal Court and Tribunal decisions, the Tribunal considers that although the concept ‘close and continuing’ is a ‘broad one’,[68] it does require an objective assessment giving regard to ‘a qualitative assessment of the ultimate significance of an applicant’s circumstances’.[69]
[68] Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14].
[69] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [27].
In Judd v Minister for Immigration and Border Protection,[70] Perry J stated:
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 & 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”.’
[70] [2017] FCA 827 at [14].
Further guidance in understanding the ordinary meaning of the words ‘close and continuing’ can be found in the Shorter Oxford English Dictionary (5th ed.) which defines these words as follows:
a)‘close’ means ‘very near in relation or connection; intimate, confidential’;
b)‘continuing’ means ‘remain in existence or in its present condition; last, endure’; and
c)‘association’ means ‘the action of joining or uniting for a common purpose’.
These definitions broadly correspond with the definitions included in the Macquarie Dictionary Online, which are referred to in CPI 11.
In Yang and Minister for Immigration and Border Protection,[71] Senior Member Cotter described the Tribunal’s approach to determining the question of whether a person had a ‘close and continuing association’ with Australia for the purposes of section 22(9) of the Act:
Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy. The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”, or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied. What is required is:
... a qualitative assessment of the ultimate significance (of) an applicant's circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant's periods of Australian presence were highly relevant considerations.[72]
The factors in CPI 11 listed in [16] above are relevant considerations when undertaking a qualitative assessment of whether the Applicant’s circumstances demonstrate a ‘close and continuing association with Australia.’ The CPI makes it clear that the factors listed may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also emphasise the need for each case to be assessed on its individual merits.
[71] [2017] AATA 364.
[72] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26]; Li and Minister for Immigration and Border Protection [2015] AATA 270 at [27].
A number of Tribunal decisions have emphasised the importance of a physical presence in Australia in determining whether the general residency requirement can be satisfied by an applicant.[73] However, the Tribunal also has recognised that each decision must be made on the basis of the evidence before it considered as a whole.[74]
[73] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31]; Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33]; Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47]; Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[74] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
Other decisions have adopted a more holistic approach to the assessment of the ‘close and continuing association’ requirement. In Saba and Minister for Immigration and Border Protection,[75] the Tribunal said in relation to the previous Australian Citizenship Instructions, s 5.18:
I have already addressed the “more weight” guidance offered by the Australian Citizenship Instructions. That guidance neither says nor implies that a 365 day period of recent residence is a pre-condition to the statutory satisfaction contemplated by s 22(9)(d) of the 2007 Act. It is simply one factor that may inform the process of taking into account all relevant considerations.
Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors (in which I would include the first factor relating to migration) are essentially concerned with personal relationships. Three of them are concerned with the either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership and tax obligations. Only one factor, the last one listed, refers to participation in “Australian community based activities and organisations”. I do not mean to suggest by this categorisation of the examples described in the Instructions that any ordering of priority can be discerned from mere numerical comparisons. [76]
[75] [2014] AATA 579.
[76] At [47]-[48].
In Paula and Minister for Immigration and Citizenship,[77] the Tribunal stated:
The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.[78]
[77] [2012] AATA 543.
[78] At [31].
In Mishra and Minister for Immigration and Border Protection (Citizenship),[79] the Tribunal recognised that it is open to it to have regard to a broad range factors in assessing the ‘close and continuing association’ requirement:
The discretion cast upon the decision-maker, in this case the Tribunal, under section 22(9)(d) of the Act is an open one; or, as submitted by the Applicant in his Statement of Facts, Issues and Contentions, “at large”. It has been observed that it is a discretion designed to afford latitude to such a decision-maker in the case of, amongst other things, the spouses of Australian citizens. If admitting such a person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in the Applicant’s favour.
The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous, and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.’[80]
[79] [2019] AATA 2479.
[80] At [51]-[53]. Footnote omitted.
Guided by the authorities cited above, the Tribunal respectfully adopts an approach to the assessment of whether the Applicant maintained a ‘close and continuing association to Australia’ during his periods of absence from Australia which involves an evaluative judgement not constrained by a narrow construction of the language of section 22(9)(d) of the Act. The Tribunal also has had regard to the following factors listed in paragraph 3.3 of CPI 11 in so far as they are relevant to the Applicant’s circumstances.
Living Arrangements
The Applicant has not resided in Australia since March 2015 and, in the four years immediately preceding his citizenship application, he has spent a total of 35 days in Australia.[81] During this period, the Applicant’s place of residence was located within the UAE where he leases a rental property.[82] The Applicant listed a UAE residential address in his application for review to the Tribunal, indicating that it is his current address.[83] He does not currently reside in Australia, nor has Australia been his primary place of residence for any period of time within the four years immediately preceding his citizenship application.
[81] T2, 12.
[82] T3, 24 & 38 and Applicant's submissions, dated 25 February 2021..
[83] T1, 2.
In the Applicant’s submissions dated 25 February 2021, he states that, although he is currently residing in Dubai, his lease agreement is renewed on a yearly basis and it is possible to break the lease by paying a penalty. Although this indicates that the Applicant’s accommodation in Dubai is not permanent and ongoing, it does not evidence a close and continuing association with Australia during the relevant period.
Employment
During the relevant period, the Applicant was employed as Managing Director of Raine & Horne Dubai.[84] The fact that the company has Australian ownership does not demonstrate that the Applicant has a close and continuing association with Australia. The evidence before the Tribunal is that the business conducted by Raine & Horne Dubai office is focused on commercial and residential sales, leasing and development within Dubai. It does not operate in Australia or facilitate the sale or lease of Australian real estate. The Applicant’s employment relationship is with a private Australian company registered and operating in Dubai, whose business is concerned with the sale of real estate in the UAE. The Applicant's position with Raine & Horne Dubai has not required him to travel to Australia to carry out business. The Applicant’s employment with Raine & Horne Dubai does not demonstrate he had a close and continuing association with Australia during the relevant period.
[84] T3, 46-48; 147-148.
The Applicant intends to return to Australia in April 2023 when his current contract with Raine & Horne Dubai ends. However, his intention to return to Australia is not relevant to the spousal discretion in section 22(9) of the Act which is concerned with whether the Applicant had a close and continuing association with Australia during the relevant period.
Assets
The Applicant has provided evidence that he has an active business interest in Australia, namely ASA Hospitality Pty Ltd. While the Applicant has an Australian company, he does not work in his company and he operates it remotely from Dubai and is assisted by his accountants. Whilst the Applicant has business interests in Australia, this does not demonstrate that he personally had a close and continuing association with Australia during the relevant period.
The Applicant’s evidence is that he does not own any residential or other property in Australia. He is seeking to purchase a rural property in Victoria where he and his family will reside when they return to Australia in 2023. During the relevant period the Applicant did not own any real estate in Australia, and his intention to buy a property in the future is not relevant to whether he had a close and continuing association with Australia during the relevant period.
Involvement in Australian community
The Applicant provided evidence that he personally, and in his capacity as Managing Director of Raine & Horne Dubai, actively participated in diplomatic and networking events in Dubai during the relevant period and he formed professional relationships with Australian officials based in Dubai. He did not however actively engage in the Australian community during the relevant period as contemplated by CPI 11, which refers to membership of a board or committee of club, charity or other entity that provides services, recreational or educational opportunities in Australia. The evidence provided by the Applicant, and those who provided letters and oral evidence in support, demonstrates that he was active in assisting both directly, and indirectly through Austrade, Australian businesses who wished to access business and development opportunities in Dubai and the UAE. He was not a member of a board or committee of an organisation in the UAE that provided services, recreational or educational opportunities for members of the Australian community.
The Applicant’s evidence is that he assisted in the supply of facemasks and PPEs to Australia following the onset of COVID-19 in early 2020. This evidence is not relevant to whether he had a close and continuing relationship with Australia during the relevant period which preceded the onset of the pandemic.
Frequency of visits
The Applicant’s movements into and out of Australia during the relevant period are short in duration and sporadic. His visits to Australia were a fortnight in duration, five days of which were to attend work events. The remainder of the time he would spend in Melbourne where he met with family and friends and visited his optometrist. These short business and personal visits to Australia do not evidence a close and continuing association with Australia during the relevant period, particularly in circumstances where the Applicant only spent a total of 35 days in Australia in the four years preceding his citizenship application. Clause 3.2 of CPI 11 further states that a close and continuing association refers to an association with Australia, not Australians, and that family or other social relationships in Australia may not be sufficient to meet the requirements. On the basis of the evidence before it, the Tribunal finds that the Applicant’s visits to Australia during the relevant period do not indicate a close and continuing association with Australia.
Reasons for absence
The Applicant submits that his absence from Australia is due to his employment with Raine & Horne Dubai located in the UAE and that this is a temporary arrangement. He relies on clause 3.3 of CPI 11 that states:
…an intention to remain temporarily overseas for work related reasons is not fatal to the application if the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period.[85]
[85] Applicant’s submissions, dated 25 February 2021.
The evidence before the Tribunal is that the Applicant did not reside in Australia for the entirety of the relevant period, and only visited Australia for 35 days during this period. The Applicant was therefore absent from Australia for 1,426 days out of a possible 1,461 days for the purposes of performing his employment duties as Managing Director of Raine & Horne Dubai. This extensive period of absence is well in excess of what may be regarded as a temporary assignment, particularly in circumstances where it coincides almost exactly with the entire four-year period prior to the Applicant’s application for citizenship. The Tribunal accepts that the Applicant’s firm intention is to return to Australia when his contract ends in 2023, however he has not taken any concrete steps to facilitate his return, for example purchasing a property where he and his family will reside.
Close family members
The Applicant’s de-facto partner is an Australian citizen, and although she currently resides with him in Dubai, she intends to return to Australia to reside here long term. The Applicant’s children are Australian permanent residents, however none of them currently reside in Australia. The Applicant’s evidence is that they intend to reside in Australia as a family following his return from Dubai in 2023. The Tribunal is not satisfied that during the relevant period the Applicant had a close and continuing association with Australia by virtue of his familial relationships with Australian citizens and permanent residents, none of whom currently reside in Australia.
The Tribunal has undertaken a holistic and evaluative assessment which has included consideration of the factors listed in CPI 11 in determining whether the Applicant had a ‘close and continuing association’ with Australia during the relevant period. It finds that during this period the Applicant did not own a home or other property in Australia, nor did he maintain an active involvement in his business or maintain employment links or ongoing associations with community or other cultural organisations in Australia.
The Tribunal cannot therefore be satisfied that the Applicant’s association with Australia during the relevant period was ‘close and continuing’, and accordingly it finds that the Applicant does not satisfy section 22(9)(d) of the Act and the discretion it contains should not be exercised in his favour.
The finding that the Applicant does not satisfy the general residence requirement makes it unnecessary for the Tribunal to consider whether the Applicant meets section 21(2)(g) as every sub-clause of section 21(2) must be met for him to be eligible for the conferral of Australian citizenship.
CONCLUSION
For the reasons set out above, the Tribunal is not satisfied that it should exercise the discretion under subsection 22(9) of the Act to treat the relevant period as one during which the Applicant was present in Australia for the purpose of the general residence requirement under the Act. The Applicant is therefore not eligible at this time to be conferred Australian citizenship because he does not meet the eligibility requirements in subsection 21(2) of the Act.
While the Tribunal’s decision will be disappointing for the Applicant and his family and friends, it in no way detracts from the obvious connection and affection he has for Australia, nor his desire to reside here in future and make a positive contribution to the Australian community. The Tribunal encourages the Applicant to make a further application for Australian citizenship at a time when he is eligible for its conferral under the Act.
DECISION
The Tribunal affirms the Reviewable Decision dated 18 May 2020.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk.
......................[sgd]..................................................
Associate
Dated: 28 March 2022
Date(s) of hearing: 27 August 2020 Solicitors for the Applicant: Mr K. Bone, Macpherson Kelley Solicitors for the Respondent: Mr A. Booth, Clayton Utz
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