Eatezaz Taglesir Mahmod and Minister for Immigration and Border Protection
[2015] AATA 368
•28 May 2015
[2015] AATA 368
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4046
Re
Eatezaz Taglesir Mahmod
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr Gordon Hughes, Member
Date 28 May 2015 Place Melbourne The Tribunal affirms the decision under review.
…………..….[sgd]…………………
Dr Gordon Hughes, Member
Catchwords
Citizenship − eligibility − absence from Australia for more than 12 months during the four period immediately preceding citizenship application – applicant returned to Sudan for approximately 20 months to care for an incapacitated relative – whether applicant had close and continuing association with Australia during her period of absence – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 sections 21, 22Cases
Drake and Minister for Immigration and Ethic Affairs No 2 (1979) 2 ALD 634, 645
Taher v Minister for Immigration and Border Protection [2013] AATA 917
Trang Tran v Minister for Immigration and Border Protection [2014] AATA 957Secondary Materials
Australian Citizenship Instructions
REASONS FOR DECISION
The applicant was seeking the review of a decision by the respondent to refuse her application for Australian citizenship. The application had been made pursuant to section 21 of the Australian Citizenship Act 2007 (the Act) and had been refused on the grounds that the respondent did not consider the applicant satisfied the residence requirements set out in section 22 of the Act.
The principal issue before the Tribunal was whether the discretion contained in section 22(9) of the Act should be exercised in favour of the applicant so as to treat any of her periods of absence from Australia in the four years immediately prior to her application for citizenship as periods during which she was present in Australia.
Legislation
Section 21(2) of the Act provides:
(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.
Section 22 of the Act relevantly 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.
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.
…
(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
The Australian Citizenship Instructions (ACI), paragraph 5.19.1, provide that factors which may demonstrate a close and continuing association with Australia for the purposes of section 22(9) of the Act include but are not limited to:
· Australian citizen children;
· long term relationship with Australian citizen interdependent partner;
· extended family in Australia;
· regular return visits to Australia;
· regular periods of residence in Australia;
· intention to reside in Australia;
· employment in Australia where the person has been on leave to accompany their spouse overseas;
· ownership of property in Australia;
· evidence of income tax paid in Australia over the past four years.
Discussion
The applicant, a citizen of the Republic of Sudan (Sudan), arrived in Australia on 23 February 2007 on a subclass BC-100 (permanent) visa.
The applicant had married Mr Osman Ahmed in 2006. He had become an Australian citizen in 2005. The couple now have three children who are five years, four years and 16 months old respectively. The children were born in Australia and are Australian citizens.
The applicant was in Sudan for approximately 20 months between 22 October 2010 and 18 June 2012. She travelled there to care for her ailing mother-in-law. She was accompanied by her husband during that absence.
Before his departure to help care for his mother, Mr Ahmed had worked in Australia as a cleaner at a factory. His employment had been steady, but the company which employed him closed down. It was at that point that he decided to travel to Sudan with his wife to care for his mother. The couple had been renting accommodation in Australia and surrendered their lease before departing.
Mr Ahmed's mother had an arthritic knee condition which restricted her mobility. The applicant gave her physiotherapy and medication, and assisted with shopping and general care.
The applicant lodged an application for Australian citizenship with the respondent on 13 February 2014.
On 3 July 2014 the respondent refused to grant the applicant Australian citizenship on the basis that she did not meet the requirements of section 22(1)(a) which, when combined with section 22(1)(A), stipulate that an applicant not be absent from Australian for a period of more than 12 months in the four years immediately before lodging of a citizenship application.
There is a discretion under section 22(9) to treat a period of absence as one in which a person was in fact present in Australia as a permanent resident under certain circumstances. Paragraph (d) of section 22(9) requires that the Minister be satisfied that the individual has maintained a close and continuing association with Australia during the period of absence.
The ACI provide guidance as to which factors are regarded as demonstrating a close and continuing association with Australia during an absence overseas.
The ACI must be applied unless there are cogent reasons to the contrary. As stated in: Re Drake and Minister for Immigration and Ethic AffairsNo 2 (1979) 2 ALD 634, 645:
Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinised and approved that policy.
….
[I]n general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own.
At the same time, the list is not exhaustive and it is necessary to take a holistic view of the applicant's situation: Trang Tran v Minister for Immigration and Border Protection [2014] AATA 957. It can thus be said that the failure by an individual to satisfy some or all of the criteria should not necessarily negate the exercise of discretion in their favour. As stated by Senior Member Ettinger in Trang:
I am mindful that [the list of factors set out in the Australian Citizenship Instructions] is not exhaustive, and that it is not a matter of ticking boxes, but rather taking a holistic view of the Applicant's situation in considering whether she is able to demonstrate that she has a close and continuing association with Australia.
Similarly, Senior Member Fice stated in Taher and Minister for Immigration and Border Protection [2013] AATA 917:
In my opinion, the factors referred to [in the ACI] should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia.
In other words, the factors listed in the ACI are factors which can usefully be taken into account, but ultimately an objective evaluation has to be made as to whether a close and continuing association with Australia has been maintained by an individual who has spent a significant portion of the four year period preceding his or her application for citizenship overseas.
This is a proposition which can work in two contrasting ways, however. While it is possible for an applicant to be the beneficiary of the discretion contained in section 22(9) without satisfying all the criteria listed in the ACI, it is also possible for an applicant to satisfy a majority of those indicia and still fail to demonstrate a close and continuing association with Australia. Ultimately, it is necessary for the decision maker to undertake a broad, objective and considered evaluation of the circumstances in question.
In support of her citizenship application, the applicant emphasised that she had left her belongings, such as furniture and family car, in the care of a friend and family member in Australia. She also maintained Australian bank accounts into which family tax benefits were paid, and she maintained an Australian driver's licence and a valid Medicare card. These were, she said, indicative of an ongoing link with Australia and an intention to return from Sudan as soon as circumstances permitted.
The applicant further gave evidence that while abroad she remained in contact with a friend, and one of her husband's relatives, both members of the Sudanese community in Australia. The applicant's family lives in Sudan but her husband has relatives in Australia.
In reply, the respondent emphasised that the applicant's period of absence from Australia was significant and should be given appropriate weight. The respondent also contended that while the applicant had maintained an Australian bank account, this was primarily for the purpose of receiving Australian social security benefits. There was no other evidence, according to the respondent, of a close and continuing association with Australia during the applicant's period of absence.
In relation to the lengthy period of absence, the applicant and her husband explained that they had been unaware of its ramifications and that, had they understood, they may have returned to Australia earlier. The applicant's explanation for maintaining a bank account was that it was not for the specific purpose of receiving welfare benefits, but, rather, that it reflected the fact that she and her husband anticipated returning to Australia much sooner than they did.
The applicant and her husband stated that if Mr Ahmed's mother's condition further deteriorated, Mr Ahmed would return to care for her if necessary, but that the applicant's intention was to remain in Australia with her young children. The need to provide assistance to Mr Ahmed's mother was understandable. The only relative of the applicant's mother-in-law who lives nearby is a daughter who resides next door. This daughter assists her mother but has 10 children to care for and accordingly cannot provide constant attention.
Mr Ahmed told the Tribunal he did not work during his previous trip to Sudan. He also emphasised that it was his intention to live and work in Australia in the long term. Both the applicant and her husband emphasised that their intention was to make Australia their permanent home.
The respondent referred to Taher, in which the Tribunal emphasised that long-term relationships with an Australian spouse or extended family might be indicative not of a close and continuing relationship with Australia but with the family:
[C]itizenship is about the membership of a community with common interests and involving reciprocal rights and obligations…[I]t 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.
After considering the evidence advanced on behalf of the applicant in these proceedings, some of which was compelling, the Tribunal is not satisfied that she maintained a close and continuing association with Australia during the period of her absence between October 2010 and June 2012. The Tribunal is not of the view that she should be considered as having been present in Australia during that period in accordance with the discretion provided for in section 22(9) of the Act.
The Tribunal reaches this decision after taking account of the factors listed in paragraph 5.19 of the ACI and also after taking a broader view of the applicant's circumstances, in particular the length of her absence from Australia during the four year period leading up to her application for citizenship.
The applicant impressed the Tribunal as an intelligent and sincere individual who has an affection for Australia and who is well placed to make an ongoing contribution to the Australian community. Prior to leaving Sudan, she had been studying agriculture and she would like to resume her studies and ultimately find suitable work locally. She has not yet satisfied the criteria for a grant of citizenship, however.
The Tribunal is nevertheless mindful that a number of factors raised in evidence were supportive of her application.
The Tribunal considered it to be in the applicant's favour that her husband had an established job before he returned to Sudan. The Tribunal also noted the applicant's close association with her husband's family in Australia, and the Tribunal accepts, as contended by both the applicant and her husband, that it was always their intention to return to Australia.
The Tribunal also takes account of the fact that the applicant has three children who are Australian citizens.
Notwithstanding these factors favouring the application, the Tribunal considers that they are ultimately outweighed by the fact that the applicant remained outside Australia for nearly half of the four year period preceding the lodgement of her application for Australian citizenship. She has an Australian family, and friends within the Sudanese community in Australia, but there are insufficient indicators overall to warrant the conclusion that, during the period of her absence in Sudan, she maintained a close and continuing association with Australia.
The fact that the applicant at all times intended to return to Australia is not a sufficiently tangible connection to warrant exercising the Ministerial discretion to disregard the primary requirement of Section 22 of the Act, namely, that a person must be present in Australia for a period of four years immediately before the day their application for citizenship is made.
Decision
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member.
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Associate
Dated 28 May 2015
Date of hearing 11 May 2015 Advocate for the Applicant
In person
Advocate for the Respondent Ms J Lucas, Australian Government Solicitor
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