Damsaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 735
•24 March 2020
Damsaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 735 (24 March 2020)
Division:General Division
File Number(s): 2019/1693
Re:Vida Damsaz
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 March 2020
Place:Sydney
The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – general eligibility – whether the applicant was a permanent resident at the time of a decision is made – permanent resident visa expired – whether the applicant has a close and personal connection with Australia – consideration of the totality of ties with Australia – marriage to Australian citizen alone insufficient – no meaningful or substantial ties to Australia – decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 sections 21, 22
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Marcus Herrman and Minister for Immigration and Border Protection [2014] AATA 105
Shi v Migration Agents Registration Authority [2008] HCA 31Taher v Minister for Immigration and Border Protection [2013] AATA 917
SECONDARY MATERIALS
Australian Citizenship Policy
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 March 2020
Vida Damsaz (the Applicant) is an Iranian citizen, married to an Australian citizen who made an application for citizenship by conferral on 21 May 2018 under the provisions of the Australian Citizenship Act 2007 (the Act). That application was refused by a delegate of the Minister (the Respondent) on 26 March 2019.
The Applicant then sought a review of that refusal decision in this Tribunal by application of 28 March 2019 and the matter was heard by the Tribunal on 24 February 2020 with the Applicant and her husband (Sharam Malekkhouyan) appearing by telephone from Isfahan (Iran).
LEGISLATIVE PROVISIONS
Applications for citizenship are determined in accordance with the provisions of sections 21 and 22 of the Act. The relevant provisions are:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
(emphasis added)
22 General residence requirement
…
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.
…
Ministerial discretion—person in an interdependent relationship
(11) If, at the time the person made the application, the person:
(a) holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and
(b) is in that interdependent relationship;
then, for the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(c) the person held that visa during that period and the person was in that interdependent relationship during that period; and
(d) the person was not present in Australia during that period; and
(e) the person was a permanent resident during that period; and
(f) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
In order to qualify for citizenship by conferral any applicant is required to meet all of the conditions set out in section 21(2). In this instance the critical elements under consideration are sections 21(2)(b) and section 22(g). Also brought into consideration are the exemption provisions of sections 22 (9) and (11).
FACTUAL MATTERS
·On 12 July 2012 the Applicant and Shahram Malekkhouyan were married in Iran.[1]
·On 14 March 2013 the Applicant arrived in Australia holding a subclass 309 (Prospective Marriage) visa.[2]
·That visa was converted to a subclass 100 (Spouse) visa on 28 October 2014, her husband having been approved for a grant of citizenship. This visa was valid for a period of five years.
·On 23 December 2014 the Applicant and her husband departed Australia to return to Iran and she has not returned to Australia since that date.
·Her husband returned to Australia to attend his citizenship ceremony, that citizenship being granted formally on 16 July 2015.[3]
·On 28 October 2019 the Applicant’s subclass 100 visa expired and since that date she has not been a permanent resident of Australia.
[1] Section 37 Tribunal Documents at 60.
[2] Respondent’s Statement of Facts, Issues and Contentions at [4].
[3] Section 37 Tribunal Documents at 72.
The Applicant has stated in several documents that her failure to apply for a renewal of the Spouse visa was financial – the couple were not able to afford the renewal fee[4] which is $360 if lodged electronically and $80 if lodged by post.[5]
[4] Applicant’s Evidence at Tab 2 page 3 and Tab 3.
[5] Respondent’s Statement of Facts, Issues and Contentions at 23, footnote 1.
Calculation of these dates of arrival and departure for the Applicant indicate that:
(a)Her total number of days spent in Australia was 598 since 14 March 2013,
(b)In the last four years prior to submitting her application for citizenship the Applicant spent 167 days in Australia,
(c)The Applicant was present in Australia with the status of a permanent resident for a period of 56 days.[6]
[6] Section 37 Tribunal Documents at 22.
The Australian Citizenship Policy, issued by the Minister as a guide to decision-makers specifies that in relation to considerations of claims under section 22(9) less weight should be given to an application if the Applicant has not been present for at least 365 days in the 4 years preceding the application, including at least 90 days as a permanent resident.
CONSIDERATIONS
Section 21(2)(b) specifies that an Applicant for citizenship by conferral must be a “permanent resident” both at the time they make such an application and at the time the Minister (or the decision-maker, in this case, the Tribunal[7]) makes the decision on the application.
[7] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J describing the role of the Tribunal “in the shoes of” the original decision-maker. Also Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Unfortunately for the Applicant while she was thus qualified as a permanent resident to make the application on 28 March 2019 she was no longer qualified as a permanent resident at the time of the decision-making, 24 February 2020.
The Tribunal uses the term “unfortunately” advisedly. In evidence the Applicant’s husband told the Tribunal that they had received advice from some authority that once an application was submitted they did not need to take further steps in its pursuit – such a step would have been to renew the spouse visa before its expiry on 28 October 2019 while the application was still pending.
In the Applicant’s own statement she writes:
“According to the information provided on sources mentioned above, my husband and I were convinced that we could go overseas for employment purposes without any risk to my Citizenship application. We would never left (sic) Australia for employment if we knew there was a slight chance of facing legal problem for my citizenship eligibility.”[8]
[8] Applicant’s Evidence at Tab 2 page 3.
Reference here is to a visit the couple made to speak to departmental officers at the Department of Home Affairs Sydney offices in Lee Street.
While the Tribunal sympathises with the couple and accepts that this was their understanding of the legal positon, there is no basis for the Tribunal being able to ignore these express provisions of the Act. They render the Applicant’s case without standing for further consideration.
Nevertheless, should the Tribunal be in error on this point, consideration will be given to the claims of the Applicant to have a “close and continuing association with Australia” as required by section 22(g) of the Act.
The evidence for this is not substantial.
The Applicant and her husband left Australia because they were in positions of financial stress, being unable to find suitable employment which matched their qualifications or capacities.[9] They had employment and further study opportunities in Iran, the cost of living there was manageable and they had family responsibilities there. The Tribunal accepts that they had then, and have now, every intention of returning to Australia once they had saved some money and furthered their educational qualifications.[10]
[9] Ibid at Tab 1a
[10] Ibid at 1f.
The Applicant has been absent from Australia since 23 December 2014. While in Australia she did not have any period of continuous employment; she acquired and owns no property here; she has no family in Australia and while she has continuing friendship with people in Australia (including those submitting testimonials on her behalf[11]) her current and recent ties to Iran are far more substantial than those to Australia. It is the totality of an Applicant’s relationships with Australia which must be considered.[12] At present they do not reveal themselves as substantial or meaningful.
[11] Ibid at Tabs 4 and 5.
[12] Taher v Minister for Immigration and Border Protection [2013] AATA 917.
Her marriage to an Australian citizen is not, in and of itself, sufficient to constitute close and continuing ties to Australia[13] although what it does mean is that, prima facie, the Applicant would be able to return to Australia with her husband once granted a renewed visa, regardless of her citizenship status.
[13] Marcus Herrman and Minister for Immigration and Border Protection [2014] AATA 105.
The availability of Ministerial discretion in relation to spousal or inter-dependent relationships as provided by sections 22(9) and 22(11) of the Act do not assist the Applicant as both require the elements of “close and continuing association with Australia” to be present (sections 22(9)(d) and 22(11)(f)).
However, regardless of all this, the provisions of section 21(2)(b) are inescapable. The Applicant is not entitled to have her claim considered because she is not, at the time of the decision-making qualified to bring it.
This decision does not prevent the Applicant from returning to Australia as the wife of an Australian citizen with a renewed visa, nor from making any future application for citizenship by conferral.[14]
[14] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
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 Chris Puplick AM, Senior Member
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Associate
Dated: 24 March 2020
Date(s) of hearing: 24 February 2020 Advocate for the Applicant: S Malekkhouyan Solicitors for the Respondent: Australian Government Solicitor
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