Gurdeep Randhay and Minister for Immigration and Citizenship
[2012] AATA 323
•31 May 2012
[2012] AATA 323
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4095
Re
Gurdeep Randhay
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 31 May 2012 Place Sydney The decision under review is affirmed.
........[sgd]................................................................
Senior Member J F Toohey
CATCHWORDS
CITIZENSHIP – application for citizenship – applicant a permanent resident – wife an Australian citizen – applicant did not satisfy general residence requirement – discretion where applicant has a close and continuing association with Australia – whether applicant has a close and continuing association with Australia – applicant’s employment, family and other connections to Australia considered – applicant had continuing association with Australia but not a close and continuing association – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 21 and 22(9)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Lin v Minister for Immigration and Citizenship [2009] FCA 494
SECONDARY MATERIALS
Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012
REASONS FOR DECISION
Senior Member J F Toohey
31 May 2012
BACKGROUND
Mr Gurdeep Randhay seeks review of a decision by the Minister for Immigration and Citizenship (the Minister) to refuse his application for citizenship.
Mr Randhay is a citizen of Singapore. His wife was born in Singapore and became an Australian citizen in 1993. They married in 1980. Their sons, now aged twenty-two and twenty, are Australian citizens.
Mr Randhay and his wife came to Australia in 1989. He left in 1991 to take up employment overseas. His wife left Australia and joined him in 1993. He spent a further seven months here in 2005. Otherwise, he and his family have lived overseas.
On 23 February 2011, Mr Randhay applied for Australian citizenship. The Minister refused his application on the ground that he failed to satisfy the general residence requirement in the Australian Citizenship Act 2007 (the Act). The Minister further decided that the discretion by which Mr Randhay might be taken to satisfy the general residence requirement should not be exercised.
THE GENERAL RESIDENCE REQUIREMENT
Applications for citizenship are made under s 21 of the Act. The Minister must, in writing, approve or refuse to approve an application: s 24(1).
The general criteria for eligibility for conferral of citizenship are set out in s 21. Only the general residence requirement in s 21(2)(c) is in issue in these proceedings.
By s 22(1), a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of four 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 four 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), a person may be taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day he or she made the application was not more than 12 months.
By s 22(1B), a person may be taken to satisfy s 22(1)(c) if the total period of any absence in the period of 12 months immediately before the day he or she made the application was not more than 90 days and he or she was permanent resident during each period of absence.
Mr Randhay was present in Australia for a total of nine days in the four years immediately before the day he made his application, and he was not present at all in the twelve months immediately preceding his application.
Mr Randhay concedes he does not satisfy the general residence requirement, and he concedes he cannot be taken to satisfy it by reason of s 22(1A) or (1B). However, he says the discretion in s 22(9) of the Act should be exercised in his favour.
IS THERE DISCRETION TO GRANT THE APPLICATION
Section 22 contains a number of exceptions, exemptions and discretions. Mr Randhay relies on the discretion in s 22(9). I am satisfied that none of the other discretions applies in his case.
Section 22(9) provides:
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.
Section 22(9) allows the Minister to treat “a period” as one in which a person was present in Australia as a permanent resident if he or she satisfies the relevant criteria “during that period”.
There is no definition of “a period” in the Act and its meaning is not readily discerned from s 22(9) itself. The Australian Citizenship Instructions (ACIs), which provide decision-makers with “guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations” (Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012 at 1) state (at 51):
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 had not been present in Australia for at least this period (my emphasis).
It is not clear why “a period” in s 22(9) should be read as “four years”. The only reference to four years in s 22(1) is in paragraph (a) which concerns presence in Australia. For reasons which are not clear, the discretion in s 22(11) available to persons in an interdependent relationship, which effectively mirrors that in s 22(9) is specifically “for the purpose of paragraph (1)(c)”.
The requirement to be present in Australia as a permanent resident is in s 22(9)(c). It may be that the relevant period is the time during which the citizenship applicant could be taken to meet each and every one of the conditions (see Lin v Minister for Immigration and Citizenship [2009] FCA 494 at [76]). Otherwise, Mr Randhay’s application must fail because he cannot satisfy s 22(1)(a) because he was not present for the four years immediately preceding his application and the discretion in s 22(1A) is not available to him.
The ACIs are government policy and should be followed unless there are cogent reasons otherwise: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. I am satisfied that the relevant period in this case is from February 2007 to February 2011. However, events before and since then may throw some light on Mr Randhay’s association with Australia during the relevant period.
HAD MR RANDHAY A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA IN THE FOUR YEARS IMMEDIATELY PRIOR TO MAKING HIS APPLICATION?
Mr Randhay claims a close and continuing association with Australia over the relevant period on grounds which can be broadly classed as: employment; time spent in Australia; family connections; and financial connections including ownership of property, bank accounts and payment of taxation.
Employment
Mr Randhay and his wife came to Australia in 1989 from London, where they had been living. They held permanent visas and intended to make Australia their home.
Mr Randhay came to take up a senior position as a taxation specialist with a leading international accounting firm in Sydney. Unfortunately for him, in 1991 the firm, including its taxation practice, was taken over. He was recommended for a senior position in a firm in the United Kingdom. He accepted the position and returned there in 1991. His wife and their first son joined him in 1993. Their second son was born in London.
After he returned to the United Kingdom, Mr Randhay says his career “catapulted”. He has since held senior positions with international accounting firms in several countries. In 2005, he returned to Sydney hoping to find a senior position here. He accepted a position at a considerable drop in salary so as to reacquaint himself with Australian taxation law and practice, hoping he would secure a suitable position in time. His wife, and their sons who were then aged twelve and ten, stayed in Singapore where they had lived since the boys started school.
After seven months, when he had been unable to find a position commensurate with his skills and experience, Mr Randhay left Australia for a position in Hong Kong as head of an international taxation practice. Since then, he has worked in senior positions in the Middle East and Asia. Since October 2010, he has lived and worked in Singapore.
Mr Randhay says his absence from Australia has been due solely to the specialised nature of his work as an international taxation specialist and, had he been able to secure suitable employment here, he would have remained. Against that, however, he conceded before the Tribunal that it is fair to say he had no intention of residing in Australia during the relevant period and nor had he looked for employment in Australia during that period. In 2006, he signed a three-year contract with his then employer. He currently has a permanent employment contract in Singapore. It was apparent from his oral evidence that he takes his commitment to his employer seriously.
Time spent in Australia
Records of the Department of Immigration and Citizenship, which are not in dispute, show that, since leaving Australia in July 1991, Mr Randhay has spent the following periods in Australia:
September 1994:
approximately one week
October 2003:
approximately three weeks
April-October 2005:
seven months
June 2006:
approximately two weeks
August 2008:
three days
January 2010:
six days
May 2011:
approximately nine days
In April 2012, Mr Randhay returned for the hearing of this matter. In all, he has spent a total of approximately nine months in Australia in nearly 20 years. Until returning for the hearing, he had spent a total of nine days in the past six years here.
During the relevant period, Mr Randhay has generally spent his holidays in the Middle East, Singapore, or the United Kingdom. His brief trips to Australia have been to renew his permanent residence visa as well as to visit family and friends.
Since she left in 1993, Mr Randhay’s wife has visited Australia once, in May 2011, to visit their older son who is at university here.
Family
Mr Randhay’s wife has lived in Singapore with their sons since they started school. When Mr Randhay was working overseas, they would spend extended periods together, either where he was based or in Singapore. Most of his wife’s family live in the United Kingdom.
Mr Randhay’s sons are both obliged, as permanent residents, to undertake military service in Singapore. He says the family would have left sooner had they not had this obligation. His older son left Singapore after completing his service and came to Australia in 2011, where he remains and is attending university. His younger son has yet to complete his service.
Mr Randhay gave evidence, which I accept, that failing to perform military service is a crime that attracts imprisonment and a hefty fine; if his sons had wanted to leave, the family would have been required to put up bonds of around $200,000 which they were not in a position to do. His younger son plans to study here once he completes compulsory military service in Singapore.
Mr Randhay’s parents and brother have lived in Australia since 1987. His mother is an Australian citizen and his father a permanent resident. His brother is a permanent resident, and his brother’s wife and two daughters are Australian citizens. His sister, who lives in Malaysia, is an Australian citizen. Many of his extended family are Australian citizens. They maintain regular contact and his parents generally visit him once a year, usually in Singapore
Financial matters
Mr Randhay maintains that his family home, according to the Hindu law of Joint Family, is his brother’s home in Sydney. I understand that law to concern an extended family arrangement by which many members of a family live under one roof, and all money is pooled and property held jointly.
Mr Randhay’s parents, and his brother and his family, live in the joint property. The title is in his brother’s name but Mr Randhay says that, according to the Hindu law, he is a joint owner and has a legal right to live there. He stays there when he visits Sydney. He says, and I accept, that he can produce his Hindu title to the property.
When he was in Sydney in 2005, Mr Randhay bought a unit here with a view to his wife and sons joining him and living there with him once he had secured suitable employment. He sold the unit in 2009 or 2010 after there were problems with the tenants. In 2005 or 2006, he and two others bought an apartment in Melbourne “off the plan” as an investment. They sold it after a dispute arose with the developer that they did not want to become involved in. He and his wife still have a joint one-third share, with four others, in an investment property in Melbourne. He is contemplating buying a property for his son to live in here and has transferred funds into an Australian bank account for that purpose.
Mr Randhay paid tax in Australia as an employee between 1989 and 1991 and again in 2005. He believes he also paid tax in 2008 and 2009 in connection with the investment property.
Bank accounts
Mr Randhay has held a St George bank account since 2005. His salary was paid into it in 2005 and uses it when he is here and to receive rent and pay the mortgage on the investment properties. Since 2011, when his older son started studying here, Mr Randhay has used it to support him. He has recently transferred substantial funds from his Bank of Scotland account to an account in Australia with a view to living here eventually.
CONSIDERATION
It is not in dispute that Mr Randhay satisfies three of the four criteria for the exercise of the discretion in s 22(9) to be triggered: he has been a permanent resident since October 1989; he was not present in Australia during the relevant period; and he has been the spouse of an Australian citizen since January 1993 when his wife acquired Australian citizenship. The only question is whether he had a “close and continuing association with Australia” during the relevant period.
The words “close and continuing association” are ordinary words and should be given their ordinary meaning. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, and “continuing” as meaning “to remain in existence or unchanged”.
It is plain that Mr Randhay has had a continuing association with Australia over many years: his wife and sons are citizens; one of his sons now lives here; his parents and many of his extended family are here; and he sees himself as living here permanently, suitable employment permitting. However, I am not satisfied that his association has been “close and continuing” for the purposes of the Act.
I accept that Mr Randhay’s wish is to settle permanently in Australia if and when his employment permits. I accept that, had his original plan worked out in 1989, that most likely he and his family would have remained here. However, that was not how things turned out.
I accept that Mr Randhay has had good reasons for living overseas and not in Australia. His impressive resume shows the kinds of opportunities available to him overseas which are apparently not available here. I accept that there have been good reasons for his wife and sons to live in Singapore and, more recently, that they had little choice but to remain while the boys undertake their military service. However, good reasons alone cannot convert an association that is not close and continuing into one that is.
Mr Randhay is now aged 51. Apart from two years from 1991, and seven months in 2005, he has made only occasional visits to Australia, of never more than several days’ duration. That would not necessarily be fatal to his application if other factors showed that he had a close and continuing relationship during the relevant period but I am not satisfied that they do.
Despite being Australian citizens, Mr Randhay’s wife has lived overseas since 1993 and their sons have lived overseas most of their lives. His wife appears to have little, if any association with Australia until recently when their son started studying here. Mr Randhay’s parents generally visit him overseas, rather than him coming here. When he has been here since 2005, it has been for only a few days at a time. He hopes, in time, to find suitable employment and settle here but, for now, that is, at best, his strong wish.
Taking all of these factors into account, I find that Mr Randhay’s association with Australia lacks the strength or immediacy that would make it “close”. As I am not satisfied that he had a close and continuing relationship with Australia during the relevant period, the discretion in s 22(9) cannot be exercised.
CONCLUSION
Mr Randhay was frank in his oral evidence. It is apparent that his application for citizenship is motivated in large part by his concern that his permanent residence visa may not be renewed when it expires in October 2013. Assuming his younger son comes here to study after he completes his military service, Mr Randhay’s wife will likely move here as well. If his permanent residence visa is not renewed, he fears he will be, in his words, stranded overseas. There is no reason to think that will happen but, even if there were, it is not a matter I can take into account in determining this application.
Nothing about this decision will preclude Mr Randhay from applying for citizenship again in the future.
I affirm the decision under review
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ......[sgd]..................................................................
Associate
Dated 31 May 2012
Date(s) of hearing 2 May 2012 Applicant In person Solicitors for the Respondent Ms H Dejean, Australian Government Solicitor
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