Glasser and Minister for Immigration and Multicultural and Indige Nous Affairs

[2003] AATA 180

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/656

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHANIE GLASSER

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date25 February 2003

PlaceBrisbane

Decision The Tribunal allows the application to review and in lieu of the decision under review, directs that the applicant's application for a certificate of Australian citizenship be deferred for further consideration until 25 February 2004 or such earlier time as the applicant may request by letter delivered to the respondent.

[Sgd] The Hon C R Wright QC

Deputy President

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – is applicant “likely to reside or to continue to reside in Australia” – is applicant likely “to maintain a close and continuing association of Australia” – meaning of these requirements in s13(1)(j) of the Act – permanent resident of German origin with spouse living overseas – deferral of application for 12 months

Australian Citizenship Act 1948 – s13(1)(j) and s14

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Re Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425

REASONS FOR DECISION

25 February 2003 The Hon C R Wright QC., (Deputy President)  

1.      The applicant aged 34 years is seeking the grant of Australian citizenship pursuant to the provisions of the Australian Citizenship Act 1948, (“the Act”).   It is not disputed that she satisfies the preconditions prescribed in s13 with the exception only of s13(1)(j).

2.      The respondent contends that the applicant has failed to establish that she is, if granted a certificate, “likely to reside or to continue to reside, in Australia”..   It is also contended that she has not shown that she is likely “to maintain a close and continuing association with Australia”.

3.      On 9 July 2002 the Minister’s delegate took the view that the applicant had not met the requirements of s13(1)(j) and refused her citizenship application.  The applicant now asks that that decision be reviewed.

4.      The Tribunal hearing took place at Coolangatta on 31 January 2003.   The applicant was present with her legal adviser Ms Goh, and the respondent was represented by Mr Boyd.

5.      The applicant gave oral evidence and tendered a statutory declaration made by her on 29 July 2002 (Exhibit “A”).   In addition she called oral evidence from her husband, Nabil Arnaouty who spoke by telephone from the Sultanate of Oman where he is presently employed, and tendered the following documents:

(i)a written statement by her former employer Sandra Mason (Exhibit “B”).

(ii)a quotation from the Gulf Agency Company (Exhibit “C”).

(iii)a character reference from the proprietor of the Tally Park Riding Ranch (Exhibit “D”).

(iv)a character reference from Lorraine Newlyn (Exhibit “E”).

(v)details of Website design work undertaken by the applicant (Exhibit “F”); and

(vi)a written statement by Nabil Arnaouty dated 21 January 2003 (Exhibit “G”).

6.      A number of documents marked respectively Annexure 3, Annexure 4 and Annexure 5 were also taken into evidence, but by oversight were not given a specific Exhibit letter.

7.      The applicant first came to Australia in 1991 on work experience with Davies Collison Cave (Patent Attorneys) of Melbourne for a period of approximately 3 months.   This was to fulfil part of a degree course in Technical translation which the applicant was undertaking in her native Germany.

8.      She returned to Australia for a period of 5 months in 1993 to write her thesis on Australian patent law.    She also worked part-time for Davies Collison Cave as technical translator.  

9.      In 1996 the applicant was employed to work with Commerzbank, an international banking organisation, in Japan.   At about this time she commenced a de facto relationship with her husband which continued until they were formally married on 15 July 2002.   Whilst living in Japan, in 1998 the applicant applied for, and was granted, an Australian  permanent residency visa.

10.     In May 2000,  the applicant enrolled in the Master of Information Technology program at Bond University on the Gold Coast, and in January 2001, obtained her certificate of Masters Degree of Information Technology.  Upon her graduation she was employed by Compaq Computer Australia Pty Ltd as a consultant from 30 July 2001 to 26 July 2002.

11.     On or about 1 August 2002, the applicant and her husband left Australia to visit her aging parents and grandparents in Germany.   She also said (Exhibit A) that she intended  “to spend as much time as possible with my husband  who has been seconded by his employer, Commerzbank AG, Germany as Managing Director to manage their subsidiary in the Sultanate of Oman  before returning to Australia”..   She also said “I may be away intermittently travelling back and forth for up to two years to accompany my husband in Oman until his delegation to Oman ends which is likely to be in six to twelve months time”  (Exhibit A is dated 29 July 2002).   When cross-examined during the Tribunal hearing, the applicant said that she had been living with her husband in Oman for a period of six months until she returned to Australia a few days before the hearing.

12.     The applicant says that she has started a business in Australia designing web pages for clients.  She has only three clients at the moment and is likely to derive a fee of about $290 from each of them for the work she is doing.   She has also been engaged to promote horse products in Germany by a local Gold Coast company.   The financial prospects from this enterprise are not clear from the evidence.   The applicant also stated that she had been offered employment by Icon, an information technology organisation in November 2002, but had felt unable to accept that position as an immediate start was required.   Her only other source of income, apart from interest on investments with the ANZ Bank, is an allowance from her husband who is still working in Oman.

13.     She has about $30,000 on term deposit and $25,000 in an investment account with the ANZ Bank, $14,000 in a joint account with her husband and, she has title in her own name to an apartment unit at Main Beach on the Gold Coast with a value of about $255,000.   This property was purchased in July 2002 and both the applicant and her husband state that they intend to make it their new home when they settle in Australia.

14.     Mr Nabil Arnaouty, a German citizen of Egyptian origin is now aged 56 years.  He is not yet eligible for the superannuation entitlements provided by his employers, but is hopeful of negotiating a retirement package with them when he returns to Germany in June this year.   He says “I will be in a position then to negotiate either another position or early retirement”.   He told me that under the company’s retirement scheme he would be entitled to 80% of his salary at age 57 or 58.   He hopes to be able to secure the bank’s agreement to receive 75 - 80% of the income if he retires early.   He has no plans to work  after his retirement.   He says he has been looking for another position if the bank will not agree to a suitable retirement package.   Mr Arnaouty said that he was intending to send his furniture from Oman to Australia in March 2003 (vide the quotation for packaging and transportation, Exhibit “C”).    He also says that he intends to transfer about $500,000 to an Australian bank account with a “few days”.

15.     I have no reason to doubt the veracity of the applicant.   Much of what she told me was verified directly or indirectly by the T documents or the Exhibits which I have listed above.

16.     Her husband’s evidence was however somewhat less satisfactory.   Making all due allowances for the difficulties of taking his evidence in English over a telephone connection, I was left with a distinct impression that his retirement plans are by no means as definite as I was initially led to believe.   Wisely perhaps, I think he is keeping his options open.   If he were to be offered an attractive appointment or promotion requiring his relocation to some other country, I think that he would be likely to take it.   If this were to occur his plans to come to Australia and retire on the Gold Coast would probably be put on “hold” indefinitely.    This is not to say that I doubt the claim that they wish to settle in Australia.  The applicant has no present plans to rejoin him in Oman.   Her tenant at the Main Beach apartment has vacated the premises and she has taken up residence there herself.   She has plans and high hopes for the success of her business ventures.   However if her husband were to continue working overseas for an extended period, I consider it very likely that she would join him.  She is also likely to spend at least some time in Germany visiting her elderly relatives.   I should add that I see no significance whatsoever in her giving “relocation” as the answer to Question 44 in her citizenship application.   I simply mention this as the Minister’s delegate in the decision under review gave some prominence to this issue which therefore caused some concern to the applicant and her legal advisers.

17.     Against these findings and comments it is necessary to consider whether or not the applicant has met the requirements of s13(1)(j) of the Act which states the precondition to the grant of citizenship as being:

“If granted a certificate of Australian citizenship, the person is likely to reside or continue to reside in Australia, or to maintain a close and continuing association with Australia.”

18.     It will be seen that there are two alternative ways in which this requirement may be fulfilled.   In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon said of the phrase “likely to reside” (paragraph 31):

“It can not mean `likely to take up residence in 18 months or two 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 Australian citizenship.”

19.     This passage in Deputy President McMahon’s decision was quoted with approval by Senior Member Sassella in Re Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425. I too am of the opinion that Deputy President McMahon correctly stated the effect of the first limb of s13(1)(j).

20.     There can be little doubt that the applicant is presently residing in Australia and it might be contended that on that basis no further consideration of the first limb of s13(1)(j) need occur, but that is not how I interpret the requirement.   I think the phrase “likely to reside or continue to reside” is designed to meet just such a case as the present, i.e. a case where the applicant resides in a strict temporal sense within Australia, but there is some doubt as to whether or not he or she intends to continue doing so.   No minimum time limit is prescribed by the section during which continued residency must be shown to be likely.  However, following the reasoning of Deputy President McMahon I think that a significant period of residential continuity is contemplated and required by the section, something in the nature of a long term commitment to Australia as a principal place of residence though not necessarily to the exclusion of sojourns, perhaps even lengthy sojourns, in other places.  I must say that with the uncertainty hanging over the applicant’s husband’s career, I entertain some doubt as to whether the first limb of s13(1)(j) has been satisfied in the present case.

21.     The second limb of s13(1)(j) appears to be more hopeful.   In Taechaubol, Senior Member Sassella said (para.155):

“A close association might be demonstrated by an applicant having friends and family in Australia and through the acquisition of assets (Abraham (supra)). It might also be shown by "a strong financial commitment" by an applicant (Rosario (supra)). In Rosario there was a constellation of indicators: the applicant's children were well settled in Australia; a business associate described the applicant as just like a next door neighbour; there was the existence of Australian business associations; his wife and children were in Australia; he owned a house in Australia.”

22.     The applicant has several Australian friends; she described one in Melbourne as “very close”.   She has no children however, and her immediate family all reside overseas.    She obviously has business associates, but as Mr Boyd pointed out, the type of activities which she is pursuing could just as easily be carried out by computer link from many different places in the world and the representative job with the horse product organisation could involve travel to Germany.   She has funds on deposit with ANZ Bank.   These of course could be readily transferred overseas on short notice.   She does own the complete equity in the Main Beach apartment.   I accept that it was purchased as a future home with the concurrence of her husband.   Although it has been let for several months, I am satisfied that it was not purchased purely as a financial investment.   Her husband is, as already mentioned still overseas.  His furniture has not yet been shipped from Oman to Australia.  He has no financial interests in Australia at the present time and his future employment is still in a state of some uncertainty.   If the applicant’s hopes and aspirations are fulfilled she will be able to show that she is maintaining a close and continuing association with Australia at some time in the not-too-distant future.

23.     The statutory tests contained in s13(1)(j) are not necessarily satisfied by a finding that the citizenship applicant has a bona fide present intention of complying with either or both of the residential and “association” criteria.   Each test is based upon an objective likelihood that such intention will be achieved.   In some cases the  relevant intention will be found to be soundly based when assessed against surrounding facts and circumstances.   In others the intention may appear to be fanciful and unrealistic.   In yet a third class of case it may be apparent that realisation of the genuine intention is heavily dependent upon as yet unascertained circumstances or developments.   I think that this case falls into the latter category.

24.     By establishing and furnishing a permanent home in Australia a sufficiently close association will be demonstrated.   If it could then be inferred that that association will probably continue the second limb of s13(1)(j) would be established.   At the present time however, I have some residual doubts about this.   It is therefore with some satisfaction that I note the provisions of s14 of the Act which seem to have intended to cover just such a situation as the present.   Given an appropriate period of time, I think that the applicant is likely to be able to satisfy one or both of the limbs of s13(1)(j).    In such circumstances s14 invests the Minister with power to defer a decision whether or not to grant a certificate of citizenship for a period of up to 12 months.   This I think should be the course to be followed in the present case.   It means that the application does not fail, it is simply deferred in the expectation of a successful outcome in the near future.

25.     Accordingly, I allow the application to review and in lieu of the decision under review, I direct that the applicant's application for a certificate of citizenship be deferred for further consideration until 25 February 2004 or such earlier time as the applicant may request by letter delivered to the respondent.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date of Hearing  31 January 2003
Date of Decision  25 February 2003
Solicitor for the Applicant          Ms H Goh, H C Goh Solicitors
Solicitor for the Respondent     Mr T Boyd, Blake Dawson Waldron