Giuricich and Minister for Home Affairs
[2019] AATA 2039
•22 July 2019
Giuricich and Minister for Home Affairs (Citizenship) [2019] AATA 2039 (22 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7272
Re:Julian Giuricich
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member S Evans
Date:22 July 2019
Place:Sydney
The decision under review is affirmed.
.........................[SGD]...............................................
Member S Evans
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – general residence requirement – where applicant spouse of Australian citizen – where applicant has Australian citizen children – where applicant had extended periods of absence from Australia in four years immediately before the citizenship application – ministerial discretion to treat periods overseas as a period in which the applicant was present in Australia as a permanent resident – whether close and continuing association with Australia during period of absence – where no intention to reside in Australia – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22
CASES
Al-Hadethi and Minister for Immigration and Border Protection [2016] AATA 447
Khan and Minister for Immigration and Border Protection [2016] AATA 284
Li and Minister for Immigration and Border Protection [2015] AATA 270
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tan and Minister for Immigration and Citizenship [2014] AATA 877
Yang and Minister for Immigration and Border Protection [2017] AATA 364SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Member S Evans
22 July 2019
INTRODUCTION
Mr Julian Joseph Giuricich (‘the Applicant’) was born in 1951 in South Africa. He is a dual national of South Africa and Italy and holds passports for both countries.
The Applicant is also a Permanent Resident of Australia and holds a subclass 155 (permanent) visa and wishes to become an Australian citizen.
Mr Giuricich lodged an application for Australian citizenship by conferral on 8 June 2018.
The application was refused on 14 November 2018 on the grounds that he did not meet the general residence requirements.
Mr Giuricich appealed to the Tribunal on 11 December 2018 for a review of the decision of the delegate of the Minister for Home Affairs.
He is appealing on the basis that he had a close and continuing association with Australia during the relevant period.
The matter was heard on 14 June 2019 in Sydney and Mr Giuricich attended the hearing in person.
THE LEGISLATIVE FRAMEWORK AND KEY ISSUES
To be granted citizenship, Mr Giuricich must satisfy the criteria set out in the Australian Citizenship Act 2007 (Cth) (“the Act”). Different criteria apply to different types of applicants.
The provisions of the Act tightly control the circumstances for conferral of Australian citizenship. The legislation is clear that marriage to an Australian citizen, or being the parent of Australian citizens, does not confer an automatic entitlement to citizenship.
The general eligibility requirements for citizenship are set out in s 21(2) of the Act.
2A 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.
The requirement that the Applicant must satisfy at s 21(2)(c) is known as the general residence requirement and it is defined in s 22(1)
General residence requirement
1Subject 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.
The general residence requirement contemplates the Applicant being physically present in Australia for a minimum period before the application. Mr Giuricich was absent for long periods in the four years prior to his citizenship application and it is not in contention he that does not satisfy the general residency requirements in s 22(1)(a).
Applicants that do not meet the general residency requirement may ask the Minister for Home Affairs to exercise discretion under s22(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.
Mr Giuricich has asked the Minister for Home Affairs to exercise the discretion in s 22(9) to effectively deem him present in Australia during those periods of absence.
In considering if an Applicant has a close and continuing relationship with Australia so that he may satisfy the general residency requirement, the Australian Citizen Instructions (ACI) provides guidance. Relevantly:
Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10))
…Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
the applicant was the spouse or de facto partner of a person who was an Australian citizen and
the applicant was a permanent resident and
the applicant had a close and continuing association with Australia.
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.
The Tribunal examined the evidence presented with reference to the relevant factors listed in the ACIs in order to determine whether Mr Giuricich maintains a “close and continuing relationship with Australia”.
BACKGROUND
Mr Giuricich was born in South Africa in 1951, to parents who had migrated from Italy and settled in South Africa.
In 1984 he met his wife, an Australian citizen who was also born to parents of Italian descent. They married the following year.
Mrs Giuricich had moved to South Africa via Italy and lived there from when she was 16 years of age.
Mrs Giuricich lived in South Africa but visited Australia regularly after 1974 and maintains extensive connection with Australia including with her extended family.
Mrs Giuricich and the Applicant had three children together; two sons and a daughter, who are all Australian citizens.
Mrs Giuricich also has family in Australia which includes her ‘entire direct family – brother, cousins on both sides – about 40 to 50 relatives are in Australia’.
Whilst Mrs Giuricich’s circumstances are relevant, it is Mr Giuricich’s application under review and it is he that must demonstrate he had a close and continuing relationship with Australia during the relevant period.
Mr Giuricich’s circumstances
After marrying Mrs Giuricich, the Applicant first travelled to Australia in 1990. In 1994 the Applicant was granted a permanent Partner visa subclass 100.
In the intervening period the Applicant has travelled to Australia on 28 occasions, usually staying for short periods of less than a week and occasionally longer.
Mr Giuricich’s three children were born in South Africa. All are Australian citizens having been registered at the Australian embassy in South Africa within months of their birth.
Mr Giuricich’s children have also established their own connections with Australia, having variously lived in the country during periods of study or work. One son lived in Australia for three and a half years. The Applicant’s daughter lived in Sydney for the duration of a six month work contract.
With the exception of one son who currently resides in Brisbane, Mr Giuricich’s children, who are all adults, currently live in South Africa.
CONSIDERATION
The statement of Facts, Issues and Contentions lodged by the Respondent states that Mr Giuricich resided for 20 days in Australia in the four years immediately before lodging the application for Australian citizenship. Mr Giuricich faces the difficulty that he cannot meet the primary indicator used in the legislation to demonstrate a connection with Australia. Clearly he needs to rely on other evidence to establish this connection.
Intention to reside in Australia
In a statement from June 2018 Mr Giuricich states that he and his wife discussed moving to Australia between 1986 and 1990 when they were starting a family and he identifies the ‘economic, political and security issues being faced by South Africa’ as a consideration and part of the reason he applied for permanent residence in Australia.
Nonetheless the family stayed in South Africa. Mr Giuricich states that when his wife’s elder brother returned to Australia with his family in 1993, the Applicant and his family ‘also wanted to exit South Africa and join [her brother] in Australia’. Once again they chose to remain in South Africa.
In her testimony Mrs Giuricich stated the importance of staying in South Africa to care for her elderly father. After his passing in 1996, Mr Giuricich writes that with no family left in South Africa, ‘our thoughts turned to Australia’[1].
[1] T-documents, p.72.
Mr Giuricich states that his wife has been ‘pining for Australia for several decades now as she misses her family. Given our international family and business ties, we are torn between two countries. Obtaining Australian citizenship will give me the ability to manage my businesses in both countries whilst making a transition to Australia.’
The evidence regarding Mr Giuricich’s intention to reside in Australia is mixed. I accept that he and his wife hold that intention, but I am not persuaded that they are likely to reside in Australia in the near future.
I find that whilst their reasons for remaining in South Africa are understandable, rational and at times admirable, it is a fact that they have chosen to remain in South Africa for over three decades during which they have vacillated between ‘discussing moving to Australia’ and ‘pining for Australia’.
Consequently, in considering this application I cannot place much weight on the possibility that the Applicant intends to reside in Australia.
Extended family in Australia
I accept that Mr Giuricich has extended family in Australia, notably his son and Mrs Giuricich’s large extended family.
I also accept that Mr Giuricich and his wife prioritise their family obligations and demonstrated a genuine sense of responsibility and commitment to both immediate and extended family members.
This was notably exemplified by the care provided to their parents, the support Mrs Giuricich provided to her dying cousin and the couple’s deep commitment to their children and family businesses.
However, the Tribunal can only place limited weight on this as a consideration given little evidence of Mr Giuricich having a strong or meaningful relationship with extended family in Australia was presented.
Australian citizen spouse and children
Mr Giuricich’s wife of 34 years and three children are Australian citizens.
Mr Giuricich emphasised to the Tribunal that he was the only member of his immediate family who was not an Australian citizen.
In considering the Applicant’s contention that he maintained a close and continuing association with Australia I note the comments of Senior Member Fice in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47] – [48]:
[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.
Mr Giuricich was present in Australia for significantly less time in the relevant period than the 168 days at issue in Taher.
Similarly in Tan and Minister for Immigration and Citizenship [2014] AATA 877 Deputy President Handley observed at ([27]):
The major stumbling block for Ms Tan is the very limited time she has spent in Australia. It is not unreasonable to expect that a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by at least residing here for an extended period, even if the period falls short of the general residence requirement in s 22(1), and provided there are other factors indicating a close and continuing association. The Instructions suggest, not unreasonably, that a period of less than 365 days should be considered less favourably. In Ms Tan’s case, the time she has spent in Australia – 60 days in the relevant four year period - falls far short of this.
The factors demonstrating a close and continuing association with Australia must be very strong if they are to offset a relatively short period of residence in Australia. As in Taher, the Tribunal finds that whilst Mr Giuricich demonstrated a strong connection and deep ongoing association with his Australian citizen family, this is a connection to family rather than Australia.
Return visits to Australia
Mr Giuricich has travelled to Australia extensively over many years. Since his first recorded entry in 1990 he has arrived in the country on at least 29 occasions according to the Respondent’s Statement of Facts, Issues and Contentions.
Overwhelmingly, the visits have been as brief as they have been frequent. In June last year Mr Giuricich visited for just three nights. During the relevant period, multiple visits to the country amounted to a total of 20 days. From the Decision Record of 8 June 2018:
Departmental records indicated that you have been lawfully and physically present in Australia for 20 days in the 4 years immediately before making your application and for 10 days as a permanent resident in the 12 months immediately prior. Departmental records further indicates that since you were granted your first permanent Partner visa subclass 100 on 29 September 1994 you have been physically present in Australia for less than a year in total.
The Tribunal finds that the Applicant’s return visits to Australia do weigh in favour of Mr Giuricich’s having a strong association with Australia, but that their influence is tempered significantly by the brevity of the visits.
Ownership of property in Australia
Mr Giuricich also owns real estate in Australia which includes both commercial and residential properties. Notably he owns two adjoining properties in Sydney which he identified as a future family home. For the time being the properties are rental investments which the applicant has never resided in.
The Tribunal places weight on the ownership of residential property in Australia.
Evidence of income tax payment in Australia
Mr Giuricich provided copies of his Australian Taxation Office Notice of assessment as evidence that he had filed an Australian tax return in the financial years 2013/14, 2014/15, 2015/16 and 2016/17 – the four years prior to his application for citizenship.
Each assessment notice states that Mr Giuricich has no taxable income.
The Tribunal places minimal weight to the filing of tax returns during the relevant period.
Australian business interests
Mr Giuricich and his wife have extensive business interests which on the evidence provided are growing and have an increasing focus on Australia and the Tribunal particularly notes the production, processing and marketing of nuts.
Mr Giuricich’s son is living in Brisbane where he works for a marketing entity associated closely with their nut production and processing businesses Whilst acknowledging the ongoing and substantial business and commercial investment in Australia, Mr Giuricich and his family also have extensive business interests, including part ownership of a construction and property development company and other investments, in South Africa.
Beyond this it is not necessary for the Tribunal to examine Mr Giuricich and his family’s financial affairs and business holdings in detail for the purposes of this application. I note that they have been forthcoming and open about their financial and business interests.
I give weight to the fact that Mr Giuricich’s family business interests are increasingly oriented towards Australia.
DECISION
Whilst I accept that Mr Giuricich satisfies some of the relevant factors identified in the Policy which may indicate a close and continuing association with Australia, most notably Australian citizen children, Australian citizen spouse, regular return visits, property ownership and extended family in Australia, ultimately they must be considered in the context of all the relevant factors.
In considering if the Applicant meets the criteria I am grateful to Senior Member Cotter who in Yang and Minister for Immigration and Border Protection [2017] AATA 364 wrote:
Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy.[2]
The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”,[3] or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied.[4]
What is required is:
… a qualitative assessment of the ultimate significance (of) an applicant’s circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant’s periods of Australian presence were highly relevant considerations.[5]
[2] See, e.g. Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton); Al-Hadethi and Minister for Immigration and Border Protection [2016] AATA 447, [36] (DP Deutsch).
[3] Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton).
[4] Taher and Minister for Immigration and Border Protection [2013] AATA 917, [47] (SM Fice).
[5] Li and Minister for Immigration and Border Protection [2015] AATA 270, [27] (SM Taylor SC).
There are also parallels in the Tribunal’s decision in Sie and Minister for Immigration and Border Protection [2014] AATA 60 which involved a Chinese national who had immediate family living in Australia, a spouse and children who were Australian citizens, owned residential real estate which was being rented but was intended to be lived in by the applicant and had registered a company in Australia with an intention to develop business relationships. He lived in Hong Kong, with his wife and two daughters, and had been in Australia for only 102 days in the four years preceding his application. He aspired to migrate to Australia. The Tribunal said:
35. Nothing points to the applicant having made any level of contribution to Australia, whether it be economic, social, academic, recreational, humanitarian, community, charitable or philanthropic. Although he regularly returned to Australia in 2009 and 2010, he remained here for very short periods. He did not return at all in 2011. His visits became more regular again in late 2012/early 2013 with a duration of five to ten days. The applicant remained in Australia for an aggregate of 53 days in 2010 when his wife and eldest daughter lived here. Except for 2010, I am satisfied that he has not resided here after 2009 as opposed to being a visitor.
As noted in [60] forming an opinion that an Applicant has a ‘close and continuing association with Australia’ it is not a case of ‘simply tallying the relevant factors’. A ‘qualitative assessment’ of these factors leads the Tribunal to determine that they do not merit characterisation as evidence of a ‘close and continuing association with Australia’.
In addition, the Applicant has a full life and a strong family network in South Africa which is closely enmeshed with his business interests. Whilst I accept that Mr Giuricich has an aspiration to reside in Australia, there is no firm indication that it will happen in the foreseeable future.
For these reasons, I am not satisfied that the Minister’s discretion under s 22(9) should be exercised in favour of the Applicant and therefore affirm the decision of the Minister.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Member S Evans
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Associate
Dated: 22 July 2019
Date(s) of hearing: 14 June 2019 Advocate for the Applicant: S Gillis, Aspire Australia Solicitors for the Respondent: C O'Sullivan, Australian Government Solicitor
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