FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 4231
•21 October 2020
FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231 (21 October 2020)
Division:GENERAL DIVISION
File Number(s):2020/1138
Re:FXYV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:B. Pola, Senior Member
Date:21 October 2020
Place:Brisbane
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of 7 February 2020, having decided to refuse the application for Australian citizenship by conferral.
.............................[SGD]...........................................
Senior Member B. Pola
CATCHWORDS
CITIZENSHIP – application forcitizenship by conferral – whether the applicant meets the general residence requirement – whether the applicant meets the special residence requirements – application of ministerial discretions – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Family Law Act 1975 (Cth)CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Kumar v Minister for Immigration and Border Protection [2014] AATA 944
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Taher v Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque v Minister for Immigration & Citizenship [2013] AATA 118SECONDARY MATERIALS
Australian Citizenship Policy, 1 June 2016
Procedural Instructions, 1 July 2019
REASONS FOR DECISION
Senior Member B. Pola
21 October 2020
BACKGROUND
The Applicant, FXYV, is a 40 year old citizen of Iraq, who originally arrived in Australia on 19 May 2012, on a Partner (Subclass 309) visa[1]. On 19 March 2013, the Applicant was granted a Partner (Subclass 100) visa[2], with both visas having been granted to the Applicant on the basis of marriage[3]. The Applicant has a child who is an Australian citizen, born in 2015[4].
[1] Exhibit 1, T10, page 50.
[2] Exhibit 1, T10, page 50.
[3] Exhibit 10 (Translated marriage certificate).
[4] Exhibit 23.
On 27 April 2017[5], the Applicant applied for Australian citizenship by conferral under s24(1) of the Australian Citizenship Act 2007 (Cth) (or the ‘Citizenship Act’).
[5] Exhibit 1, T4, pages 10 to 29.
On 5 July 2018[6], the Department of Home Affairs (herein these reasons referred to as ‘Department’) sought further information from the Applicant to support their application for citizenship by conferral. This letter was returned to sender (the Department)[7].
[6] Exhibit 1, T8, pages 47 and 48.
[7] Exhibit 2, page 2, paragraph 5.
On 18 July 2018, the Department spoke with the Applicant confirming their address, and the request for additional information from the Department was resent on the same day. Again, no response was received by the Department after the information was resent. On 16 September 2019, the request for information was again sent by the Department, and no response was received[8].
[8] Ibid.
On 7 February 2020[9], a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent, or ‘Minister’) wrote to the Applicant, having decided to refuse the application for Australian citizenship made in the name of the Applicant, on the grounds that the Applicant did not satisfy s22(1)(c) of the Citizenship Act.
[9] Exhibit 1, T11, pages 51 and 52.
Additionally, the delegate was not satisfied that any of the Ministerial discretions in s22(4A), (5), (5A), (6), (9), (10) or (11), s22A, or s22B of the Citizenship Act applied to the Applicant’s circumstances.
On 24 February 2020[10], the Applicant applied to the General Division of the Administrative Appeals Tribunal (or the ‘Tribunal’) for review of the decision of the delegate of the Minister made on 7 February 2020, to refuse the application for Australian citizenship made in the name of the Applicant.
[10] Exhibit 1, T2, pages 3 to 8.
The application was heard in Brisbane on 29 September 2020 via video conference. The Applicant was self-represented and assisted by a support person at the hearing. The Respondent was represented by Ms Cody Allen of Sparke Helmore Lawyers. The Tribunal heard oral submissions made by the Applicant, and on behalf of the Respondent, in addition to submitted written evidence, agreed to in the Exhibit Register (Annexure 1). The Applicant was assisted by an Interpreter arranged by the Tribunal.
JURISDICTION
Section 52(1)(b) of the Citizenship Act provides:
“52 Review of decisions
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
…”
In accordance with s52(1)(b) of the Citizenship Act, the Tribunal has jurisdiction to review the decision of the Minister’s delegate (or the Respondent) relating to the application for Australian citizenship made by the Applicant on 27 April 2017 (noting that the application by the Applicant was made to this Tribunal within the 28 day time period following the decision made by the delegate of the Minister on 7 February 2020).
ISSUE FOR DETERMINATION
The issue before the Tribunal for review is whether the Tribunal is satisfied that the Applicant meets the following requirements:
(a)Whether the Applicant satisfies the general residency requirement in s22 of the Citizenship Act?
(b)Whether the Applicant satisfies any of the Ministerial discretions in s22(4A), (5), (5A), (6), (9), (10) or (11) of the Citizenship Act?
(c)Whether the Applicant satisfies any of the special residence requirements under s22A of the Act? and
(d)Whether the Applicant satisfies the special residence requirements under s22B of the Act?
THE LEGISLATIVE FRAMEWORK
Part 2, Division 2 of the Citizenship Act deals with acquisition of Australian citizenship by application, with s21(1) of the Citizenship Act providing that a person may make an application to the Minister to become an Australian citizen, and pursuant to s24(1) of the Citizenship Act:
“24 Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.”
Relevant to the present application, s24(1A) of the Citizenship Act provides “the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)”. Relevantly, s21 of the Citizenship Act provides:
“21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
(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.”
Subsections 21(2)(c) and (g) of the Citizenship Act relevantly provide that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the requirements regarding general residence, pursuant to s22 (with reference to s21(2)(c) of the Citizenship Act), and 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 (with reference to s21(2)(g) of the Citizenship Act).
Subsection 22(1) of the Citizenship Act sets out the general residence requirements as follows:
“22 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.”
Additionally, s22A and s22B of the Citizenship Act provide for exemptions from the general residency requirement where an applicant’s case involves:
· Special residence requirement--persons engaging in activities that are of benefit to Australia (s22A of the Citizenship Act).
· Special residence requirement--persons engaged in particular kinds of work requiring regular travel outside Australia (s22B of the Citizenship Act).
Further requirements of the Citizenship Act in relation to a spouse or de facto partner of an Australian citizen, can be found in s22(9) which provides:
“22(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 Tribunal notes the Department has issued a “Citizenship Policy” document with effect from 1 June 2016, and “Procedural Instructions” with effect from 1 July 2019, both of which seek to provide additional guidance for decision makers in exercising discretion in making determinations under the Citizenship Act.
Whilst the Tribunal is not bound to strictly apply the Citizenship Policy document or Citizenship Instructions issued by the Department, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[11], where he stated the following practice in relation to the Tribunal applying Ministerial policy:
“In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
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 the 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.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy‑maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.”
[Tribunal emphasis]
[11] [1979] AATA 179; (1979) 2 ALD 634.
In determining whether or not the Applicant had a “close and continuing association with Australia”, the Citizenship Policy document states[12]:
[12] Australian Citizenship Policy (1 June 2016), pages 70 and 71.
“Factors that may contribute to a close and continuing association with Australia include:
· Australian citizen spouse or de facto partner;
· Australian citizen children;
· length of relationship with Australian citizen spouse or de facto partner;
· extended family in Australia;
· return visits to Australia;
· periods of residence in Australia;
· intention to reside in Australia;
· employment in Australia (for example, public or private sector);
· ownership of property in Australia; and
· evidence of income tax payment in Australia.”
In cases such as the application before the Tribunal, when discretionary provisions of s22(9) of the Citizenship Act are being assessed in relation to applications by “spouse and de factor partners”, the Citizenship Policy document provides[13]:
[13] Ibid at pages 95 and 96.
“In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
·evidence that the person migrated to and established a home in Australia prior to the period overseas
·Australian citizen children
·long term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four year and
·evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
Evidence to be provided for s22(9)
Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) - spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to provide:
§evidence of their spouse’s, or de facto partner’s, Australian citizenship. For example, a full Australian birth certificate or citizenship certificate
§their marriage certificate or, if a de facto partner, evidence of their de facto relationship. The definition of ‘de facto partner’ provided in the Acts Interpretation Act 1901 lists circumstances that can be taken into account when determining whether two people are in a de facto relationship. These include:
othe duration of the relationship
othe nature and extent of their common residence
owhether a sexual relationship exists
othe degree of financial dependence or interdependence, and any arrangements for financial support, between them
othe ownership, use and acquisition of their property
othe degree of mutual commitment to a shared life
othe care and support of children
othe reputation and public aspects of the relationship.
§evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained a close and continuing association with Australia during that period
§evidence of their spouse’s, or de facto partner’s, death, if applicable.”
The Tribunal refers to the comments of Senior Member McCabe (as he was then) in the matter of Kumar and Minister for Immigration and Border Protection [2014] AATA 944, in relation to the Citizenship Policy and Citizenship Instructions documents issued by the Department, where at paragraph seven of the decision he stated the following:
“…I do not accept the Australian Citizenship Instructions are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[14]
[14] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
CONSIDERATION
General Residence Requirements (s22(1)(c) of the Citizenship Act)
Movement records indicate that after the Applicant arrived in Australia on 19 May 2012, the Applicant departed Australia for 143 days on 13 September 2016, and returning on 3 February 2017[15]. The Applicant lodged their application for Australian citizenship by conferral on 27 April 2017.
[15] Exhibit 1, T9, page 49.
Section 22(1)(a) of the Citizenship Act requires that an applicant be present in Australia for the period of four years immediately before applying for citizenship. Section 22(1A) of the Citizenship Act states that if an applicant was absent from Australia for part of the period of four years immediately before the day the person made the application and the total period of the absence or absences was not more than 12 months, then, the person is taken to have been present in Australia during each period of absence.
Records indicate the Applicant was absent from Australia for 143 days in the four years immediately prior to lodging their application for citizenship by conferral. As 143 days is less than 12 months in total over a four year period, the Applicant is taken to have been present in Australia for the purposes of meeting the requirement in s22(1)(a) of the Citizenship Act.
However, s22(1)(c) of the Citizenship Act states that an applicant must be present in Australia for a period of 12 months immediately prior to the day their application for citizenship by conferral is made. Records before the Tribunal indicate the Applicant was absent from Australia for 143 days in the 12 months prior to the date their application for citizenship by conferral was made on 27 April 2017.
The effect of s22(1B)(a), (b) and (c) of the Citizenship Act is that if an applicant is absent from Australia for part of the period of 12 months immediately prior to the day they made their application for citizenship by conferral, the total period of the absence or absences can’t be more than 90 days, in addition to being a permanent resident during each period of absence.
The Tribunal notes that the Applicant accepted that they were not present in Australia for 143 days in the 12 month period prior to making their application for citizenship by conferral, as they had departed Australia on 13 September 2016, and returned on 3 February 2017, and lodged their application on 27 April 2017[16]. The Tribunal further notes that it is not contested that the Applicant was a permanent resident during their period of absence[17].
[16] Transcript, 29 September 2020, page 12, lines 44 to 47; page 13, lines 1 to 5.
[17] Exhibit 2, page 10, paragraph 31.
The Tribunal has had regard to the circumstances put forward by the Applicant regarding the serious domestic violence which she was subjected to during her marriage, her mental health condition, and the reason for her absence from Australia (relating to her mother’s critical illness).
However, the statutory requirement in s22(1)(c) and s22(1B) of the Citizenship Act are explicit; there are no waiver provisions regarding compassionate circumstances. It is clear on the evidence before the Tribunal that the Applicant did not meet these requirements of the Citizenship Act as part of their application for citizenship by conferral.
Ministerial discretions
In the absence of meeting the strict statutory requirements regarding presence in Australia pursuant to s22(1)(c) and s22(1B), as outlined in the reasons above, circumstances exist within the Citizenship Act to apply Ministerial discretions in accordance with s22(4A), (5), (5A), (6), (9), (10), (11); s22A; or s22B.
Administrative error and confinement in prison or psychiatric institution (s22(4A), (5), (5A), or (6) of the Citizenship Act)
Based on the evidence before the Tribunal and in the absence of any contentions from the Applicant, the Tribunal is satisfied that there was no administrative error in the circumstances of this application before the Tribunal, and in light of this s22(4A) and s22(5) of the Citizenship Act do not apply to the factual circumstances of the Applicant.
There is evidence before the Tribunal that the Applicant was admitted as an involuntary patient to Logan hospital mental health service on 26 November 2017 due to her mental state and concerns about her safety, and was discharged on 28 November 2017[18]. However, there is no evidence to suggest this was done so in connection with proceedings for an offence against an Australian law in relation to the Applicant, and on this basis the Tribunal finds that s22(5A) and s22(6) of the Citizenship Act does not apply to the factual circumstances of the Applicant.
Spouse, de facto partner or surviving spouse or de facto partner of Australian citizen (s22(9) of the Citizenship Act)
[18] Exhibit 4.
Section 22(9) of the Citizenship Act provides that if an applicant 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.”
In light of the qualification to the chapeau in s22(9) of the Citizenship Act, the Tribunal refers to the decision of the Federal Court in Kumar v Minister for Immigration and Border Protection [2015] FCA 446, where at paragraph 22 the following was stated:
“…the word “may” permits the Minister to consider any matters, either in favour of or against “treat[ing] a period as one in which the person was present in Australia as a permanent resident”, provided those matters are not “definitely extraneous to any objects the legislature could have had in view”.
With the above in mind, the Tribunal will now examine each of the requirements in s22(9) of the Citizenship Act.
During the course of the hearing the Tribunal heard evidence from the Applicant that they suffered an extremely abusive and violent relationship with their former partner. Evidence was submitted by the Applicant from Australian Government agencies and domestic violence organisations stating the Applicant was receiving support and assistance as a result of their exposure to domestic violence during her relationship with her former husband[19].
[19] Exhibit 11, Exhibit 12, Exhibit 13, Exhibit 14, and Exhibit 17.
The Applicant gave evidence to the Tribunal that she separated from her husband on 2 May 2017, five days after filing her application for citizenship by conferral on 27 April 2017[20]. The Applicant’s evidence was that she was served the divorce papers when she was at home one day, and, given her inability to speak and read English she did not understand the papers being served on her and just signed them[21].
[20] Transcript 29 September 2020, page 13, lines 35 to 38.
[21] Transcript 29 September 2020, page 13, lines 44 to 47; page 14, lines 1 to 4.
Evidence before the Tribunal confirms that the Applicant’s divorce order took effect from 11 November 2017[22].
[22] Exhibit 15.
Part VI, s48(2) of the Family Law Act 1975 (Cth) stipulates that an application for a divorce order is only granted “if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order”. Accordingly, parties need to satisfy the Court that they and their spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. However, it is possible for the parties to live together in the same home and still be separated.
The Respondent contended in closing submissions to the Tribunal that the timing of the dissolution of the Applicant’s marriage is brought into question and casts doubt upon the Applicant’s evidence that she separated from her former spouse only on her return to Australia given the effect of the divorce order, and the requirement that separation occurs 12 months prior to the filing of the application for divorce[23]. Practically, this brings into question the Applicant’s contention that she separated from her husband on 2 May 2017, as the requirements of the Family Law Act 1975 (Cth) would mean that separation should have occurred sometime around October or November 2016. The Tribunal acknowledges the Respondent’s contention but observes that the Applicant was legally married prior to and as at the date her application for citizenship by conferral was made on 27 April 2017.
[23] Transcript 29 September 2020, page 13, lines 40 to 43; page 19, paragraph 6.
In the absence of any definitive evidence regarding the timing of the dissolution of the Applicant’s marriage and on the basis that the Applicant was legally married to an Australian citizen in the period prior to and as of the date the application was made for citizenship by conferral, the Tribunal is satisfied on the evidence before it that the Applicant meets the requirement of s22(9)(a) of the Citizenship Act, that, “the person was a spouse or de facto partner of that Australian citizen during that period”[24]. The Tribunal notes this point was accepted by the Respondent in their submissions to the Tribunal[25].
[24] Exhibit 9, Exhibit 10 and Exhibit 15.
[25] Exhibit 2, page 10, paragraph 31.
As outlined earlier in these reasons, the Applicant was absent from Australia for a period of 143 days prior to the lodgement of her citizenship by conferral. On the basis that the Applicant meets s22(9)(a) of the Citizenship Act, as they were not present in Australia during the period, the Applicant also satisfies s22(9)(b) of the Citizenship Act. The Tribunal notes this point was accepted by the Respondent in their submissions to the Tribunal[26].
[26] Exhibit 2, page 10, paragraph 31.
The Respondent accepts that the Applicant was a permanent resident during the period she was absent from Australia[27]. On the basis of the evidence before the Tribunal, the Tribunal is satisfied the Applicant was a permanent resident during their absence from Australia and therefore meets the requirements of s22(9)(c) of the Citizenship Act.
[27] Exhibit 2, page 10, paragraph 31.
Therefore, the Tribunal must now turn its attention to whether or not the Applicant had a close and continuing association with Australia whilst overseas during the four year period immediately prior to the Applicant applying for their citizenship by conferral, as required by s22(9)(d) of the Citizenship Act. The Respondent has contended that there is insufficient evidence before the Tribunal, for the Tribunal to be satisfied that the Applicant had a close and continuing association with Australia during this period[28].
[28] Exhibit 2, page 10, paragraph 33.
The Tribunal has already detailed relevant precedent to which it should have regard in applying relevant policy considerations in its earlier reasons. In applying the meaning of “close and continuing association with Australia”, the Tribunal refers to the reasons of Senior Member Fice in Taher at paragraphs 47 and 48[29]:
“[47] …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.
[48] 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.”
[29] Taher v Minister for Immigration and Border Protection [2013] AATA 917.
Evidence before the Tribunal shows that the Applicant was present in Australia for the entire four year period prior to their application for citizenship by conferral, aside from a 143 day absence from Australia in the 12 month period immediately prior to applying for citizenship by conferral.
When referring to the criteria set out in the Citizenship Policy document as it applies to the Applicant’s absence from Australia and whether they have a “close and continuing association with Australia” (s22(9)(d) of the Citizenship Act), the Tribunal ought to give more weight to the listed factors, on the basis that the Applicant has been present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident) [30]. These factors have been outlined in the Tribunal’s earlier reasons.
[30] Australian Citizenship Policy (1 June 2016), pages 95 and 96.
With regard to written evidence before the Tribunal and oral submissions from the Applicant, the Tribunal refers to the following relevant facts as they apply to the Applicant:
(a)The Applicant married her former husband on 14 October 2010, with a divorce order coming into effect on 11 November 2017[31].
[31] Exhibit 9, Exhibit 10 and Exhibit 15.
(b)The Applicant claimed that she separated from her spouse on 2 May 2017[32].
[32] Transcript, 29 September 2020, page 13, lines 35 to 38.
(c)The Applicant applied for citizenship for conferral on 27 April 2017.
(d)The Applicant gave birth to her child (who is an Australian citizen) in September 2015[33].
(e)During the course of the Applicant’s marriage she was subjected to domestic violence[34].
(f)The Applicant gave evidence that her child spends time with their father on weekends[35].
(g)Evidence before the Tribunal from the Applicant’s treating Psychiatrist, Dr Yaser Baqir, confirms that the Applicant suffers from Schizoaffective disorder and has had a partial response to treatment and has remained chronically impaired as a result of her illness[36].
(h)The Applicant gave evidence to the Tribunal that they were in receipt of the Disability Support Pension and had not been employed since arriving in Australia in 2012. Additionally, the Applicant confirmed that she had not paid taxes, and was living in public housing[37].
(i)When the Applicant departed Australia on 13 September 2016, it was to visit her mother who was critically ill, who later passed away when she returned to Australia on 3 February 2017. The Applicant took her child with her when she travelled back to Iraq who would have been around 12 months of age at the time[38].
(j)A letter from the Applicant’s General Practitioner dated 3 October 2019, states that the Applicant has been a patient of their practice since, “…October 2014”, and that the Applicant, “… left Australia in September 2016 to escape domestic violence and also remained in Iraq as her mother was ill…”[39]. The Applicant stated that her doctor at the time was aware that she was in a violent relationship and felt that was a relevant matter to put in this letter, but the main purpose for the travel was to visit her critically ill mother[40].
(k)The Applicant stated that she has “absolutely no one” in Australia, and that all her family were in Iraq, and that she was not in a relationship[41]. Despite this, the Applicant stated that she wanted to live in Australia for a better life and felt supported and cared for[42].
(l)The Applicant stated that she has no property or assets in Australia[43].
(m)The Applicant confirmed that they have not participated or engaged in any community-based activities or organisations[44].
[33] Exhibit 23.
[34] Exhibit 11, Exhibit 12, Exhibit 13, Exhibit 14, and Exhibit 17.
[35] Transcript, 29 September 2020, page 14, line 47; page 15, lines 1 to 2.
[36] Exhibit 6.
[37] Transcript, 29 September 2020, page 22, lines 39 to 40.
[38] Transcript, 29 September 2020, page 15, lines 5 to 8.
[39] Exhibit 7.
[40] Transcript, 29 September 2020, page 22, lines 6 to 20.
[41] Transcript, 29 September 2020, page 15, lines 16 to 17.
[42] Transcript, 29 September 2020, page 21, lines 36 to 47; page 22, lines 1 to 2.
[43] Transcript, 29 September 2020, page 15, lines 26 to 28.
[44] Transcript, 29 September 2020, page 15, lines 37 to 47; page 16, lines 5 to 14.
On review of the factual circumstances of the Applicant, as her circumstances apply to the factors outlined in the Citizenship Policy document referred to in the earlier reasons of this decision[45], the Tribunal is of the view that the Applicant has not established “a close and continuing association with Australia” for the purposes of s22(9)(d) of the Citizenship Act.
[45] Australian Citizenship Policy (1 June 2016), pages 95 and 96.
The Tribunal acknowledges the significant challenges which the Applicant has faced in respect of their health, and domestic violence experienced during their marriage to their former husband.
But the evidence before the Tribunal does not support a finding that the Applicant had “a close and continuing association with Australia” in the period she was absent from Australia, which is required for the discretion to be enlivened in s22(9)(d) of the Citizenship Act.
Section 22(10) of the Citizenship Act does not apply to the factual circumstances of the Applicant, as it relates to the surviving spouse or de factor partner of a person who has died.
Section 22(11) of the Citizenship Act, applies to certain people who hold a permanent visa which was granted to them because the person was in an interdependent relationship with an Australian citizen. The Tribunal has had regard to the factual circumstances of the Applicant as they would apply to s22(11) of the Citizenship Act, and is of the view that there is no evidence before the Tribunal that the Applicant meets these requirements.
Special residence requirements in s22A and s22B of the Citizenship Act
Section 22A of the Citizenship Act provides that a person may satisfy special residence requirements in s21(2)(c) of the Citizenship Act in circumstances where the person is seeking to engage in a specified activity, which engagement would be of benefit to Australia, with the person required to be an Australian citizen in order to engage in that activity and in order for the person to engage in that activity, there is insufficient time for the person to satisfy the general residence requirement.
The Tribunal has had regard to the factual circumstances of the Applicant as they would apply to s22A of the Citizenship Act, and is of the view that there is no evidence before the Tribunal that the Applicant meets these requirements.
Section 22B of the Citizenship Act provides that a person may satisfy special residence requirements in s21 of the Citizenship Act, if at the time the person made the application, the person is engaged in work of a kind specified under s22C(3) of the Citizenship Act, in addition to a range of other stipulations.
The Tribunal has had regard to the factual circumstances of the Applicant as they would apply to s22B of the Citizenship Act, and is of the view that there is no evidence before the Tribunal that the Applicant meets these requirements.
CONCLUSION
The Tribunal has found that the Applicant does not satisfy the requirements in s22; s22(4A), (5), (5A), (6), (9), (10) or (11); s22A; or s22B of the Citizenship Act, and is therefore not eligible for citizenship by conferral, pursuant to s21(2)(c) of the Citizenship Act.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of 7 February 2020, having decided to refuse the application for Australian citizenship by conferral.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
……………[SGD]….……………
Associate
Dated: 21 October 2020
Date of hearing: 29 September 2020
Applicant: FXYV by video-link (self-represented)
Solicitor for Respondent: Ms Cody Allen by video-link (Sparke Helmore)
ANNEXURE 1 – EXHIBIT REGISTER
| Exhibit Number | Description of Exhibit |
| 1 | Section 37 T Documents (pages 1 to 90) |
| 2 | Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15) Attachments: · Movement records of the Applicant’s child |
| 3 | Bundle of letters from Ms Abdulla of Kuraby Wellness Centre (three pages) |
| 4 | Bundle of letters from Dr Yasir Baqir: · Addressed to Assessor, dated 29 January 2018 (one page) · Addressed to Dr Zohra Ismail, dated 5 March 2018 (one page) · Addressed to Dr Zohra Ismail, dated 10 December 2018 (one page) · Addressed to Assessor, dated 10 December 2018 (one page) · Addressed to Dr Zohra Ismail, dated 5 February 2019 (one page) · Addressed to Assessor, dated 12 August 2019 (one page) · Addressed to Assessor, dated 14 October 2019 (one page) |
| 5 | Extracts of a Transfer of care form for Applicant (three pages) |
| 6 | Letter of Dr Yaser Baqir (one page) |
| 7 | Letter of Dr Zohra Ismail (one page) |
| 8 | Mental Health Services Transfer of Care (one page) |
| 9 | Original Marriage Certificate (one page) |
| 10 | Translated Marriage Certificate (one page) |
| 11 | Letter of Lydia Chau, Specialist Domestic Violence Counsellor (WAVSS) (one page) |
| 12 | Letter of Eileen Ramirez, DFV Specialist Crisis Worker (one page) |
| 13 | Letter from Anna Gwacki, Department of Human Services (WAVSS) (one page) |
| 14 | Letter of Liana McGeary, Support & Advocacy Worker (Home for Good) (two pages) |
| 15 | Divorce Certificate (page 2 of 2) |
| 16 | Letter of Dr Zohra Ismail (one page) |
| 17 | Letter of support of Caroline Fitzpatrick (Manager and Domestic and Family Violence Practitioner, 99 Steps DFV Service) (one page) |
| 18 | Letter of Verica Lovric (Support Coordinator, Harmony Place Multicultural Mental Health and Wellbeing) (two pages) |
| 19 | Letter from Department of Home Affairs: Request for additional documents (two pages) |
| 20 | Letter from Department of Home Affairs: Request for further information relating to consideration of Ministerial Discretion – Spouse (two pages) |
| 21 | Letter from Department of Home Affairs: Citizenship applications received on and after 20 April 2017 (one page) |
| 22 | Letter from Department of Home Affairs: Acknowledgement of receipt of an application for Australian citizenship (one page) |
| 23 | Certified copy of the birth certificate of Applicant’s child (one page) |
| 24 | Translated death certificate of the Applicant’s mother |
| 25 | Application for Australian Citizenship form |
| 26 | Letter of Dr Yaser Baqir (two pages) |
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