Gentile and Minister for Immigration and Border Protection
[2013] AATA 814
•15 November 2013
[2013] AATA 814
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2700
Re
Luca Gentile
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 15 November 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
CITIZENSHIP – Application for Citizenship by Conferral – Whether the Applicant has a close and continuing association with Australia – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
15 November 2013
Mr Luca Gentile (“the applicant”) was born in Italy and is also a citizen of Italy. His wife and child are Australian citizens. In June 2012 the applicant made an application for Australian citizenship by conferral. A delegate of the Minister declined that application because the applicant did not satisfy the “residence requirement” in s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (“the Act”). While the applicant accepts that he did not meet the residence requirement, he seeks the exercise of a discretion under s 22(9) of the Act to treat the residence requirement as having been met. I have to determine whether the applicant had “a close and continuing association with Australia” in those periods that he was absent from Australia, being the four years prior to him making his application for Australian citizenship.
INTENTION TO RESIDE IN AUSTRALIA
One of the reasons why the delegate declined the application for citizenship by conferral was because the delegate was not satisfied that the applicant “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” in the terms of s 21(2)(g) of the Act.
In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon considered the meaning of the term "likely to reside in Australia" at [31]:
It cannot mean "likely to take up residence in 18 months or 2 years time" or “likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found”. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the Minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of citizenship. … or within a reasonable time thereafter.
On the state of the evidence before me I cannot be satisfied of the intention of the applicant to reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.
In his statement that he lodged with his application for citizenship by conferral,[1] the applicant indicated that once he finished his 20 years of service in the Italian Army in October 2011 he would resign from the Italian Army and move to reside in Australia with his wife and family. While I accept that he may have had that intention, events transpired whereby he was offered remunerative employment with the Italian Army in Germany. He expects that the German engagement will expire in September 2014. If his application was now successful I cannot be satisfied that he would reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.
[1] Exhibit A, p. 71.
RESIDENCE REQUIREMENT
To be eligible for the conferral of Australian citizenship the applicant has to satisfy the general residence requirement (s 22 of the Act), the special residence requirement
(ss 22A or 22B of the Act), or the defence service requirement (s 23 of the Act).
The applicant did not satisfy any of these requirements on 14 June 2012 when he made his application for Australian citizenship. There is no evidence before me or contention that the applicant has met either the special residence requirement or the defence service requirement.
Section 22(1) of the Act provides the general residence requirement will be satisfied if:
(a) the person was present in Australia for the period of 4 years immediately before the day he or she 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 he or she made the application.
By s 22(1A) of the Act, the applicant will be taken to satisfy s 22(1)(a) of the Act if the total period of any absence in the four years immediately before 14 June 2012 which is the day on which he made an application for Australian citizenship was not more than
12 months. By s 22(1B) of the Act, a person is taken to satisfy s 22(1)(c) of the Act if the total period of any absence during the 12-month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.
The applicant cannot be assisted by these provisions. In the four years immediately before making his application for Australian citizenship on 14 June 2012 (the statutory period), he was present in Australia for a total of 192 days.[2]
[2] See exhibit A, p. 123.
MINISTERIAL DISCRETION
The Minister has a discretion to treat the residence requirement as having been met in certain circumstances: this discretion is conferred by s 22(9) of the Act which provides:
Ministerial discretion — spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9) If the person is the spouse ... 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 Minister quite properly conceded that the applicant satisfies paragraphs (a), (b) and (c) of s 22(9) of the Act. It remains for me to consider whether the applicant meets the requirements of paragraph (d) of s 22(9) of the Act.
The Australian Citizenship Instructions (“the Instructions”) have been issued to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. During the hearing I asked the representative of the Minister whether the Minister had issued the Instructions. I was advised that the Instructions had not been approved by the Minister but by the Citizenship branch of the Department. Policy documents such as the Instructions will generally be followed by this Tribunal unless this would cause injustice in a particular case or where there are compelling reasons to disregard the policy: see Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634. The decision of the delegate was given on 27 May 2013. It was not suggested that there was any material difference between the Instructions that were then in force and the present version of the Instructions that were issued on 1 July 2013.
The following extract from the Instructions (at [5.18]) provides:
5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))
…
Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
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:
· 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
· employment in Australia where the person has been on leave to
accompany their spouse or partner overseas
· ownership of property in Australia
· evidence of income tax paid in Australia over the past four years 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 s 22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 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 Australian for at least this period.
The applicant has not been present in Australia for at least 365 days in the 4 years immediately before making the application. I will examine the factors that are set out in the Instruction to examine the nature of the association of the applicant with Australia.
Australian citizen children: The applicant has one child who was born in Australia in 2007 and who has Australian citizenship.
Long term relationship with Australian citizenship spouse: The applicant and his wife married in Brisbane in 2005. Their relationship began sometime in 2000. I accept that the applicant has a close relationship with his wife.
Extended family in Australia: The applicant does not have any relatives in Australia. The mother of his wife lives in Australia, her father is deceased. His wife also has a number of other relatives in Australia.
Regular return visits to Australia: The applicant has made a number of visits to Australia. The applicant in evidence initially stated that he has visited Australia 12 times. However during the hearing I stated that on my review of the evidence, the applicant has visited Australia 17 times.
Regular periods of residence in Australia: The applicant visits Australia when he has leave from the Italian Army.
Intention to reside in Australia: The applicant gave evidence, which I accept, that he and his family intend to move to Australia. The applicant believes that Australia is a better environment to bring up his son than Europe. The applicant states that his current plans are to move to Australia after his current engagement in Germany concludes in 2014. However, on the evidence before me I cannot be satisfied that this is a firm arrangement. The applicant informed the Department that he had planned to resign from the Italian Army in October 2011,[3] but his plans changed when he was offered his present engagement in Germany.[4]
[3] Exhibit B, p. 71.
[4] Exhibit E, p. 3.
I accept that the applicant would need to find employment if he was to move to Australia. The applicant has put forward evidence of his applications to join the Australian Army. There are three letters from the Australian Army that are in evidence. The most recent letter dated 19 August 2010[5] contains an invitation to the applicant to contact the writer to discuss available preferences, as well as an invitation to resit an aptitude test when he was eligible after 1 January 2011. The applicant did not contact the writer of the letter to discuss available preferences, nor did he resit the aptitude test.
[5] Exhibit B.
Employment in Australia
: The applicant has never been employed in Australia.
In evidence he stated that he was unable to be employed unless he had the permission of the Italian Army.
Ownership of property in Australia: The applicant does not own any real property in Australia, although he owns a home in Italy. The applicant has maintained bank accounts in Australia.[6] The applicant has also purchased a vehicle in Australia since he made his application.
[6] See exhibit A, p. 86.
Evidence of income tax paid in Australia over the past four years: The Minister accepts that the applicant has paid withholding tax on the interest derived from his investments in Australian bank accounts.[7]
[7] See exhibit A, pp. 88-89.
Evidence of active participation in Australian community based activities or organisations: The applicant confirmed in his evidence that he does not participate in any Australian community based activities or organisations.
The terms of the Instruction do not restrict my consideration to the factors that are mentioned in the Instructions. It has not been suggested that there are any other factors which are relevant to my consideration of the application.
After my review of the evidence before me I cannot be satisfied that the applicant had
“a close and continuing association with Australia” in those periods that he was absent from Australia in the four years prior to him making his application for Australian citizenship.
CONCLUSION
I am not satisfied that the applicant “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” in terms of s 21(2)(g) of the Act. I am also not satisfied that the applicant had “a close and continuing association with Australia” for the purposes of s 22(9)(d) of the Act in those periods that he was absent from Australia in the four years prior to him making his application for Australian citizenship.
DECISION
I affirm the decision under review.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .......................[Sgd].................................................
Associate
Dated 15 November 2013
Date of hearing 5 November 2013 Advocate for the Applicant Ms Penelope Saunders Solicitor for the Respondent Ms Catherine Hayes, Clayton Utz
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