FATIMA NUR and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2009] AATA 531
•17 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 531
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0057
GENERAL ADMINISTRATIVE DIVISION ) Re FATIMA NUR Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr D M Connolly AM, Member Date17 July 2009
PlaceSydney
Decision The Tribunal affirms the reviewable decision dated 31 December 2008.
...................[Sgd]...................
Mr D M Connolly AM
Member
CATCHWORDS
CITIZENSHIP – application for Australian Citizenship by conferral – applicant born in Somalia – spouse of Australian citizen – applicant fails to meet residence requirement under section 22 of the Act – no close and continuing association with Australia – significant hardship or disadvantage discretion not applicable – reviewable decision to refuse citizenship affirmed.
Australian Citizenship Act 2007 ss 21, 22, 52
Australian Citizenship (Transitionals and Consequentials) Act 2007 Item 5B of Schedule 3
Australian Citizenship Instructions Chapter 5
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Re Shen and Minister for Immigration and Citizenship [2008] AATA 906
REASONS FOR DECISION
17 July 2009 Mr D M Connolly AM, Member introduction
1. In her application for review to the Tribunal, the Applicant, Mrs Fatima Sharif Nur (‘Mrs Nur’), stated she did not require the assistance of an interpreter. At the hearing, Mrs Nur demonstrated to the Tribunal that she had limited English comprehension and speaking ability but she agreed that her husband could assist her by giving evidence in English in support of her claims.
2. Mrs Nur married her husband, Mr Nordin Salad Qassin (‘Mr Qassin’), in Somalia on 1 January 1995. Mr Qassin entered Australia as a refugee in 1996 via Ethiopia. Mrs Nur remained in Somalia for about 8 months before leaving for Kenya. Later, she travelled to the United Kingdom (‘UK’) and sought refugee status, which she was granted.
3. Mrs Nur rejoined her husband in Australia on 29 October 2001 on a subclass 100 Spouse visa. In the interim, her husband had been granted Australian citizenship on 10 August 1998.
4. On 2 June 2002, Mrs Nur returned to the UK and her husband joined her a few days later. Mrs Nur claimed that they had to return to the UK because of the limits on her visa and also she and her husband wished to start a family. She said her husband was in low paying employment at that time and she was unable to work.
5. The couple remained in the UK until 11 November 2007 when they returned to Australia with their five children on a subclass 155 Resident Return visa.
6. On 6 March 2008, Mrs Nur sat and passed the Australian citizenship test and on 13 March 2008, she lodged an application for citizenship by conferral. Her application was refused on 31 December 2008 by a delegate of the Minister for Immigration and Citizenship on the grounds that she did not meet the residence requirement. It is this decision which is the subject of the Tribunal’s review.
7. Mrs Nur claims that she has had a close and continuing association with Australia during the period that she was overseas, and that the time she spent overseas should be counted as periods of permanent residence in Australia. Her reason for seeking expedited citizenship is because she wants to visit her ill grandmother in Somalia, and feels that her inability to do so is a significant hardship and disadvantage.
legislation
8. The relevant legislation is contained in the Australian Citizenship Act 2007 (‘the Act’) and the accompanying Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Transitional Act’). Section 22 of the Act, as amended by item 5B of Schedule 3 to the Transitional Act, sets out the residence requirement for the purposes of section 21. The Tribunal has jurisdiction to review the decision of the Minister’s delegate by virtue of section 52 of the Act.
9. Subsection 21(2) of the Act states:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(c)satisfies the residence requirement (see section 22), …; and
…
10. Item 5B of Schedule 3 to the Transitional Act provides:
(1) This item applies if:
(a) a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and
(b) the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.
(2) In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1) For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total period of at least 2 years in the period of 5 years before that day.
11. Pursuant to subsection 22(9) of the Act:
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 has a close and continuing association with Australia during that period.
12. Subsection 22(6) of the Act provides:
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:
(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b)The Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
13. The Tribunal must also be mindful of the Australian Citizenship Instructions (‘ACIs’), which have been issued to provide guidance on the exercise of the Minister’s discretion under the Act. The ACIs set out the following factors which may contribute to a close and continuing association with Australia:
Australian citizen spouse; Australian citizen children; length of relationship with citizen spouse; extended family in Australia; return visits to Australia; periods of residence in Australia; intention to reside in Australia; employment in Australia; ownership of property in Australia; evidence of income tax payment in Australia; and current bank accounts, if any, in Australia.
14. Whilst the Tribunal is not bound by Departmental guidelines/policy, the Tribunal should follow the guidelines/policy unless there is some good reason not to. See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In that decision, Brennan J stated:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in a particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
consideration and findings
15. The respondent contends that Mrs Nur does not qualify for citizenship because she fails to satisfy the residence requirement in section 22 of the Act as amended by item 5B of Schedule 3 to the Transitional Act, namely:
·she had not been present in Australia as a permanent resident for at least one year in the two year period prior to lodging her application; and
·she had not been present in Australia as a permanent resident for at least two years in the five year period prior to lodging her application.
16. The respondent further contends that the discretionary provisions contained in subsections 22(6) and 22(9) of the Act should not be exercised in Mrs Nur's favour, with the result that the decision of the Minister’s delegate to refuse Mrs Nur's application for Australian citizenship should be affirmed.
Residence Requirement
17. Mrs Nur was a permanent resident at the time the Act commenced on 1 July 2007 and she lodged her application for Australian citizenship on 13 March 2008, which was within 3 years of the commencement date of the Act. Accordingly, Mrs Nur is required to meet the residence requirements set out in item 5B of Schedule 3 to the Transitional Act.
18. In her supporting letter to the Minister on 10 June 2008, Mrs Nur acknowledged that as at the date of her application for citizenship, she failed to meet the residence requirement of the Act as she had only spent 123 days in Australia in the 2 years prior to her application, and 123 days in Australia in the 5 years prior to her application. Nevertheless, Ms Nur argued that the spouse discretion and the significant hardship discretion pursuant to subsections 22(9) and 22(6) of the Act should be exercised in her favour.
19. The Tribunal is satisfied that Mrs Nur failed to meet the residence requirement under section 22 of the Act as amended by item 5B of Schedule 3 to the Transitional Act, having only spent a total of 123 days as a permanent resident in Australia in the five years leading up to her application for citizenship.
Ministerial Discretion – subsection 22(9)
20. Mr Qassin told the Tribunal that he had been advised by the Department of
Immigration that provided he could prove that he was legally married to the applicant and that he and the applicant had a continuous relationship during the time they were living in the UK, they would both qualify for citizenship under subsection 22(9) of the Act.21. The respondent acknowledged and the Tribunal accepts that, during the period which Mrs Nur seeks the exercise of the discretion, that is, the period she was not present in Australia, she was the spouse of an Australian citizen and a permanent resident. The Minister is not satisfied, however, that Mrs Nur meets the requirement of “a close and continuing association with Australia” during that period as required under subparagraph 22(9)(d) of the Act.
22. The Tribunal accepts that whether Mrs Nur satisfies the requirements of subparagraph 22(9)(d) is limited to a consideration of whether she had a close and continuing association with Australia during the time she was overseas in the 5 years immediately prior to her application. That is, the relevant period for the Tribunal’s consideration is from 13 March 2003 to 11 November 2007. Senior Member Penglis, in Re Shen and Minister for Immigration and Citizenship [2008] AATA 906 at [35] (‘Shen’), stated:
The starting point is to note that satisfaction of 29(9)(d) requires satisfaction that the person "had a close and continuing association with Australia during that period". The concluding words are clearly a reference to the period when the permanent resident was not present in Australia which needs to be added to the period in which the applicant was in Australia to satisfy “the resident requirement” …
Consideration of ACI factors
23. The Tribunal has taken into consideration the ACI factors which will help determine whether Mrs Nur has satisfied the requirement of a close and continuing association with Australia during the relevant period between 13 March 2003 and 11 November 2007.
Extended Family in Australia
24. Mrs Nur submitted that apart from a distant cousin, Mr Abdulkadir M. Jimale, she had no relatives in Australia. Mr Jimale made a statutory declaration on 23 March 2009 confirming that he was a distant relative of Mrs Nur’s in Australia and that he had provided an assurance of support so she could join her husband in Australia. He also stated that he maintained constant contact with Mrs Nur during her absence from Australia. However, as Mr Jimale did not appear before the Tribunal these claims could not be tested. While the Tribunal is satisfied that Mr Jimale acted as a conduit for the repayment of a Centrelink debt of $5,736.90 owing when the family left Australia for the UK, and Centrelink records received by the Tribunal on 14 May 2009 confirm that between 2 March 2004 and 30 July 2005 $4,500 was repaid, it has no evidence of letters or telephone records to support that “constant” contacts were maintained with Mr Jimale, or whether Mr Qassin has relatives in Australia. Consequently, the Tribunal has not given this evidence significant weight.
Return visits to Australia
25. During the relevant period, Mrs Nur was overseas for 1704 days, or
approximately 5 years and 4 months. She did not return to Australia at any time during that period. The Tribunal has given this weight.Periods of residence in Australia
26. Mrs Nur first arrived in Australia on 29 October 2001 and remained here for a period of 216 days (approximately 7 months) before departing for the UK on 2 June 2002. She returned to Australia on 11 November 2007 and was present for 123 days (approximately 4 months) before applying for Australian citizenship on 13 March 2008. The Tribunal accepts that prior to her citizenship application Mrs Nur had been a permanent resident of Australia for approximately 6 years and 4 months but, during that period, she only resided in Australia for a total of 339 days or approximately 11 months.
Intention to reside in Australia
27. The respondent contended that within the meaning of the ACIs, Mrs Nur would have to establish that she intended, during the relevant period, to reside in Australia, not just at some point in the future. Mr Qassin told the Tribunal that it had been the family’s intention to reside in the UK for two years, which had been extended to five years and four months, and that the repayment of most of the Centrelink debt while the family were residing in the UK, is evidence that the applicant intended returning to Australia some time in the future. While this is not in dispute,.the family made a collective decision to relocate to the UK and reside there. Consequently, the Tribunal is satisfied that Mrs Nur did not have the intention to reside in Australia during the relevant period within the meaning of the ACIs (See Shen at [36]).
Previous Employment
28. The Tribunal accepts that Mrs Nur was not previously employed in Australia and her sole source of income was Centrelink family payments.
Property ownership in Australia
29. Mrs Nur stated that she and her husband did not own property in Australia. As they were former refugees, the Tribunal has not given this weight.
Income tax Payment
30. Mrs Nur has provided no evidence of income tax payment in Australia. Accordingly, the Tribunal has not given this weight.
Current bank accounts
31. Mrs Nur has provided evidence of a number of bank accounts in Australia. The Tribunal accepts that a Streamline e-Access account was opened in approximately September 2008 to replace an Ezy Action account held with the Commonwealth Bank at Auburn, NSW. Bank statements were also furnished in respect of a Woolworths Ezybanking account for the following periods: 1 November 2007 to 31 January 2008; 1 February 2008 to 30 April 2008; and 1 August 2008 to 31 October 2008 which are outside the relevant period.
32. The Tribunal notes that there was an overlap of 11 days between the date of the first Ezybanking statement and Mrs Nur's return to Australia. Following the Tribunal hearing, Mrs Nur furnished a letter from the Commonwealth Bank dated 13 May 2009 stating that she had been a customer for the previous 7 years and 7 months. However, the Bank's disclaimer that it “accepts no responsibility whatsoever to any person for the results of any reliance by any person on this letter” significantly lessens its evidentiary value.
33. While the Tribunal has given Mrs Nur the benefit of the doubt that she was a customer of the Commonwealth Bank over this period, there is negligible evidence that she used the account to the extent that the Tribunal would expect of a person with continuing interests in Australia. This was supported by Mr Qassin’s evidence confirming that no repayments were made through their Ezybank account during the relevant period. He claimed that while the family was in the UK they had used an Ezy card for general living expenses and he estimated that the account contained approximately £670. No additional evidence was provided to the Tribunal and Mr Qassin stated that this account had been closed. The Tribunal finds that the account in Australia was not in use and effectively dormant when the family was residing in the UK.
34. The Tribunal accepts that, during the five years preceding the date of application for citizenship, Mrs Nur satisfied three of the ACI factors; namely she had an Australian citizen spouse, three Australian citizen children during the relevant period, and she had a significant length of relationship with her Australian citizen spouse. The Tribunal notes that the applicant had her spouse and children with her for the entire period she was residing in the UK.
35. The Tribunal finds, on balance, that satisfaction of the three ACI factors is not sufficient to establish a close and continuing association with Australia during that period. See Shen at [37]. Accordingly, the Tribunal finds that there are no circumstances warranting the exercise of the discretion under subsection 22(9) of the Act.
Ministerial Discretion – subsection 22(6)
36. Under this subsection of the Act, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
·the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
·the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the peprson was present in Australia as a permanent resident.
37. Mrs Nur contended that as she had now been in Australia with her family for 18 months since returning from the UK in November 2007 and there was only a shortfall of some 6 months before she qualified for Australian citizenship, the Tribunal should take into account the entire period when she was living in the UK with her family and exercise the discretionary provisions in her favour, as without an Australian passport she was precluded from travelling to Somalia where an official Australian travel document other than a passport would not be accepted.
38. While the respondent acknowledged that there were issues regarding travel, these matters were not examined because the discretion could not be exercised in Mrs Nur’s favour because of the wording of subsection 22(6). The Minister's view of subsection 22(6) of the Act precludes assisting Mrs Nur because it is designed to help person's lawfully present in Australia who are not permanent residents and operates differently to a spousal discretion. The Tribunal is satisfied on the evidence before it that Mrs Nur was a permanent resident at all times while present in Australia.
39. Consequently, the Tribunal agrees with the respondent’s contention that the ministerial discretion in subsection 22(6) cannot be applied in Mrs Nur’s case.
40. The Tribunal finds that there is no basis for Mrs Nur’s citizenship to be processed other than in accordance with the normal residence requirements. The Tribunal notes that Mrs Nur will be able to reapply for citizenship in November 2009 when she meets the residence requirements. But for the time being, she fails to qualify for grant of Australian citizenship.
decision
41. The Tribunal affirms the reviewable decision dated 31 December 2008.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D M Connolly AM, Member
Signed: ........................[Sgd]..........................
Associate: Jennifer WongDate of Hearing 8 May 2009
Date of Decision 17 July 2009
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Clayton Utz
0
1
0