Gibson Sirengo and Minister for Immigration and Citizenship

[2012] AATA 897

[2012] AATA  897

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1944
Re	Gibson Sirengo
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President D G Jarvis
Date	19 December 2012
Place	Adelaide

The decision under review is affirmed.

......................[Sgd]..................................................

Deputy President D G Jarvis

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - Permanent resident - application for citizenship - applicant married to an Australian citizen - applicant does not meet general residence requirement - application of Australian Citizenship Instructions - consideration of various factors to determine whether applicant had a close and continuing association with Australia - decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 22(9)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions, Chapter 5

REASONS FOR DECISION

Deputy President D G Jarvis

19 December 2012

1. The applicant, Gibson Sirengo, applied for Australian citizenship by conferral on 6 December 2011.[1]  A delegate of the respondent refused his application on the grounds that he did not satisfy the general residence requirement of the Australian Citizenship Act 2007 (Cth) (the Act).[2]  Mr Sirengo has applied to this tribunal for review of the delegate’s decision.  The proceedings were conducted by telephone.

   [1] Exhibit R1, T4, page 50.

   [2] Exhibit R1, T8, page 92.

2. Mr Sirengo last departed from Australia on 15 January 2004 so that he and his wife, who is an Australian citizen, could seek employment overseas, and also so that they could adopt a Kenyan orphan.[3]  As at the time of the hearing of this matter on 30 October 2012, Mr Sirengo had not returned to Australia, and so he does not satisfy the general residence requirement in s 22(1) of the Act.  However, where a person is the spouse of an Australian citizen at the time when he or she made the application for citizenship, there is a discretion under s 22(9), subject to certain criteria, to treat a period as one in which the person was present in Australia as a permanent resident.  The discretion includes (relevantly) that the Minister is satisfied that the person had a close and continuing association with Australia during that period.  In the present proceedings this tribunal stands in the shoes of the Minister, and may exercise all of the powers of the person who made the reviewable decision, including the power to exercise the discretion conferred by s 29(9).

   [3] Exhibit R1, T1, page 3.

   ISSUES BEFORE THE TRIBUNAL

3. The issue before the tribunal is whether it is satisfied that Mr Sirengo had a close and continuing association with Australia during the period immediately before the day when he made his application for citizenship, and if so, whether the discretion conferred by s 22(9) should be exercised.

   BACKGROUND FACTS

4. The following facts are based on the evidence of Mr Sirengo, which I accept, and on the documents before me.

5. Mr Sirengo is 39 years of age.  He was married to his wife, Suzanne Mary Knapp, in April 1998.  They have two adopted children, and one biological child.

6. Mr Sirengo first arrived in Australia in June 1999 and was later granted a BC-100 Spouse Permanent Visa in March 2001.  As mentioned above, he and his wife left Australia on 15 January 2004 to seek employment opportunities overseas.  He had found it difficult to obtain regular employment in Australia as he did not have sufficient Australian qualifications at the time.  His wife is a teacher, but after she returned to Australia after spending years teaching in Kenya she had found it difficult to obtain regular employment in Australia.  They did not want to rely on the Australian welfare system to support themselves as they had both come from well-paying jobs in Kenya.  In addition, as I said above, they also planned at that stage to adopt another child from Kenya, and it was a requirement to be a resident in Kenya for a year during the fostering and legal process.  After leaving Australia Mr Sirengo and his wife both obtained employment in Qatar, and have continued to live there with their children, including a child who was adopted after they left Australia.

7. Mr Sirengo has an extended family in Australia. His parents-in-law and his wife’s brother, grandparent and aunt live in Adelaide.  He and his wife are in constant touch with them, and some of them have visited Mr Sirengo and his wife in Qatar over the years they have been there.

8. Due to work and family commitments, Mr Sirengo has been unable to visit Australia since he left in 2004.  His mother was diagnosed with cervical cancer in Kenya in 2005.  After that and until last year, he spent most of his leave periods shuttling between Kenya and Qatar to assist her, as she required regular hospitalisation as she underwent treatment including chemotherapy.  Unfortunately she died in January 2011.[4]  However, Mr Sirengo’s wife and children have visited Australia at least every other year, the last visit being in August 2010.  They are all planning to visit Australia this month for Christmas.

   [4] Exhibit A3.

9. Mr Sirengo completed a University Bachelor’s Degree in Accounting with the University of South Australia in 2007 through the Distance Learning Program.[5]  He also completed the Certified Practising Accountant (CPA) Program with CPA Australia in July 2011.[6]  He is currently involved in mentoring other Australians studying for their CPA through CPA Australia.  In cross-examination he said that the mentoring occurs through the CPA Australia portal, and if people post a question he provides comments or guidance on issues arising out of the course content, or questions as to career prospects for CPAs in the Middle East.  He is currently mentoring two people, one in Brisbane and one in Melbourne.

   [5] Exhibit R1, T5, page 71.

   [6] Exhibit R1, T5, page 75.

10. Mr Sirengo and his wife are working in Qatar on work visas which are subject to renewal every year.  They intend that their children should receive their higher education in Australia as they believe in the great quality of Australian education.  Their present intention is to move back to Australia in the second half of 2014, after their eldest daughter has completed her high school; they do not want to disrupt her studies as she is presently doing the British GCSE curriculum.

11. Before he left Australia, Mr Sirengo was the treasurer for a period of three years of the African Heritage Association of South Australia (AHASA), which he described as a social organisation started in the 1990s to assist new African migrants to settle in Australia.  It also arranges social events and commemorates significant celebrations.  After he left Australia he kept in touch with the organisation.  He said that he still discusses issues about once a month via the AHASA’s web page.  He does this on an informal basis, and is not now an official of the organisation.

12. Mr Sirengo’s wife owns two investment properties in Adelaide, which were acquired in 2006 and 2007.  He and his wife both contributed towards the deposit on the houses.  The properties are negatively geared, and they both continue to contribute to the mortgage repayments.

13. Since 1999, Mr Sirengo has been a signatory to his wife’s savings account with the Adelaide Bank.  He had also maintained a personal account with the ANZ Bank from 1999, but closed the account in 2010 to save bank fees on an associated credit card which he rarely used.  He is also a trustee of a discretionary family trust that was established in 2009 in Western Australia.

    LEGISLATIVE AND POLICY PROVISIONS

14. The provisions of the Act that relate to citizenship by conferral and are relevant to the present matter are as follows:

    21       Application and eligibility for citizenship

    (1)A person may make an application to the Minister to become an Australian citizen.

    Note 1:   Subsections (2) to (8) deal with eligibility.

    Note 2:Section 46 sets out application requirements (which may include the payment of a fee).

    General eligibility

    (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    ...

    (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application;

    ...

    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.

    ...

    Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

    (9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

    (a)the person was a spouse or de facto partner of that Australian citizen during that period; and

    (b)the person was not present in Australia during that period; and

    (c)the person was a permanent resident during that period; and

    (d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.

15. Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.  However, s 24(1A) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.  Section 21(2) is the relevant provision in the present matter.

16. The Australian Citizenship Instructions (ACIs) have been issued pursuant to the Act.  The introduction to the ACIs states that their role is:

    … to support the Australian Citizenship Act 2007.  The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.  Decision makers should be mindful that policy must not be applied inflexibly.  Policy cannot constrain the exercise of delegated powers under the Act.

17. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2),[7] the then President of this tribunal, Justice Brennan as he then was, referred to the importance of Ministerial policy in guiding the exercise of discretion by decision-makers, including matters that come before this tribunal.  In that case, the matter in issue was whether a deportation order should be made.  Brennan J pointed out that Ministerial policy can be an aid to consistency among tribunal decisions, and to consistency between decisions of the tribunal and those of the Minister, thus enhancing “the sense of satisfaction with the fairness and continuity of the administrative process.”[8]  His Honour considered that the tribunal should adopt the following practice in respect of the part which ministerial policy plays in the making of tribunal decisions.

    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.[9]

    [7] (1979) 2 ALD 634

    [8] (1979) 2 ALD 634 at 641.

    [9] (1979) 2 ALD 634 at 645.

18. There are no cogent reasons in the present case not to apply the ACIs, and I propose to be guided by them in accordance with the practice formulated in Drake.  The ACIs provide that under s 22(9), periods spent overseas by a permanent resident who is the spouse of an Australian citizen at the time of making an application can be counted as periods of permanent residence in Australia.[10]

    [10] Exhibit R1, T3, page 42.

19. In relation to determining whether a person had a ‘close and continuing association with Australia’ for the purposes of s 22(9)(d) of the Act, the ACIs state that factors that may contribute to a close and continuing association with Australia include relevantly:

    ·Australian citizen children

    ·length of relationship with Australian citizen spouse

    ·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

    ·evidence of income tax payment in Australia and

    ·current bank accounts in Australia.[11]

    [11] Exhibit R1, T3, pages 42 – 43.

20. The ACIs go on to provide:

    In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have 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 if they have not been present in Australia for at least this period.[12]

    [12] Exhibit R1, T3, page 43.

    CONSIDERATION

21. It is clear that Mr Sirengo does not meet the general residence requirement provided for in ss 22(1)(a) and (c) of the Act, because he was not present in Australia for the period of four years immediately before he made his application for citizenship,[13] and in addition, he was not present in Australia as a permanent resident for the period of 12 months immediately before the day he made the application for citizenship.[14]

    [13] s 22(1)(a).

    [14] s 22(1)(c) of the Act.

22. However, under s 22(9) of the Act, the Minister has a discretion (which may be exercised by this tribunal on reviewing decisions of the Minister or his delegate) to treat a period as one in which the non-citizen was present in Australia as a permanent resident if the conditions referred to in ss 22(9)(a) to (d) are met.  It is common ground that Mr Sirengo meets the requirements of s 22(9)(a) to (c).

23. I referred in paragraph 19 above to the non-exhaustive list of factors which, according to the ACIs, may contribute to a close and continuing association with Australia.  Mr Sirengo satisfies a number of the factors; he has Australian citizen children, a long relationship with an Australian citizen spouse, extended family in Australia, and an intention to reside in Australia (although not imminently), and for part of the relevant period he had a bank account in Australia.  A number of other factors to which he has referred in his evidence also point to a close and continuing association with Australia; his wife owns properties in Australia, he contributed to the deposit on the properties, he jointly contributes to the mortgage repayments, and he contributes to local government rates and may have contributed to land tax on the second property owned by his wife, depending on how her interest is held.  He is also a signatory to his wife’s Australian bank account, and he established an Australian discretionary trust.  In addition, he has completed the CPA Program with CPA Australia, and has also maintained a connection with Australian students studying for their CPA through CPA Australia and some continuing association with the AHASA.

24. However, Mr Sirengo does not meet other factors referred to in the ACIs, namely he has made no return visits to Australia, has no periods of residence or employment in Australia, and he has not paid income tax in Australia.  His participation as a student to obtain a Bachelor of Accounting degree with the University of South Australia appears to have occurred more than four years ago, and therefore does not assist to establish a close and continuing association with Australia during the relevant period.

25. In weighing the various factors to which I have referred, I am required by the ACIs to give less weight to the factors that may contribute to a close and continuing association with Australia if an applicant for citizenship has not been lawfully and physically present in Australia for at least 365 days in the four years immediately before making the application.  This aspect of the ACI does not in terms provide for a sliding scale, so that the weight to be given to the positive factors would diminish as the period of presence in Australia reduces below the 365 days referred to in the ACIs.  However, in the exercise of the broad discretion conferred by s 22(9), and as a matter of common sense, I think that such a “graduated” approach to the period of residence in Australia in order to determine the weight to attach to other relevant factors, would be appropriate.  In the present matter, Mr Sirengo was not resident in Australia at all during the period of four years prior to lodging his application for citizenship.  I have taken into account that he was unable to return to Australia because of his mother’s serious illness, but the fact remains that he was not physically present in Australia at all during the four-year period, and I consider that this is a significant factor pointing against a finding that the required association with Australia existed.

26. After weighing all of the evidence before me, I am not satisfied that Mr Sirengo had a close and continuing association with Australia during the period when he was not present in Australia.  In view of this conclusion, the discretion under s 22(9) of the Act (that is, to treat any part of the period prior to when Mr Sirengo lodged his application for citizenship as a period in which he was present in Australia as a permanent resident) is not enlivened.

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis

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Administrative Assistant

Dated 19 December 2012 

Date of hearing	30 October 2012
Applicant	In person
Counsel for the Respondent	Mr S Kikkert
Solicitors for the Respondent	In-house Litigation Section Department of Immigration and Citizenship