Hammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2249

Hammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2249 (13 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3815

Re:Alaa Hammad

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:13 July 2021  

Place:Sydney

The decision under review is affirmed.

...............................[SGD].........................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – issue to be determined: whether the Applicant had a close and continuing association with Australia such that the discretion in subsection 22(9) of the Australian Citizenship Act 2007 may be exercised – legislation and relevant policy considered – Applicant’s background and relevant circumstances considered – relevant cases considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Paula and Minister for Immigration and Citizenship [2012] AATA 543

Taher and Minister for Immigration and Border Protection [2013] AATA 917

SECONDARY MATERIALS

CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia

REASONS FOR DECISION

Mr S Evans, Member

13 July 2021

1. The applicant, Alaa Hammad, lodged an application for Australian citizenship by conferral on 2 April 2020. On 23 June 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused Ms Hammad’s application having determined that Ms Hammad did not meet the residence requirement for a grant of citizenship. Ms Hammad seeks review of the decision. She contends that she has a close and continuing association with Australia such that the discretion to treat a period of absence as one in which she was present in Australia should be exercised.   

   BACKGROUND

2. Ms Hammad is a Jordanian national who was born in September 1983 in Kuwait and currently resides in Qatar. In January 2013 Ms Hammad married an Australian citizen, Salem Yousef Salem Hussein Abou Qamar, and they have two Australian citizen children. 

3. Ms Hammad and Mr Abou Qamar intended to settle permanently in Australia. In February 2013 an application was made for a partner visa for Ms Hammad on the basis of her relationship with Mr Abou Qamar. Ms Hammad was granted a temporary partner visa in July 2014. 

4. Ms Hammad first arrived in Australia on 25 September 2014 and departed on 5 October 2014. On 1 May 2015 she was granted a permanent Partner (subclass 100) visa and on 14 November 2015 she again travelled to Australia, departing one week later on 21 November 2015. In total she has been in Australia for 17 days.

   LEGISLATION AND POLICY

5. Subsection 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) sets out the criteria for general eligibility for the conferral of Australian citizenship. Relevantly, subsection 21(2) of the Citizenship Act provides:

   (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 satisfies the defence service requirement (see section 23), at the time the person made the application; 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;

6. There is no suggestion nor evidence to support Ms Hammad satisfying the special residence requirement or the defence service requirement. 

7. The general residence requirement is set out in section 22 and relevantly states:

   (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.

8. Ms Hammad was not present in Australia at any time in the 4 year period immediately before making her application for Australian citizenship.  Nor was she present in Australia during the 12 months prior to making her application. Therefore she does not meet the general residence requirements in subsection 22(1).  

9. Section 22 of the Citizenship Act also allows for the following overseas absences:

   (1A)     If:

   (a)       the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

   (b)       the total period of the absence or absences was not more than 12 months;

   then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

   (1B)     If:

   (a)       the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

   (b)       the total period of the absence or absences was not more than 90 days; and

   (c)       the person was a permanent resident during each period of absence;

   then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

10. Ms Hammad does not meet the exception for overseas absences provided by subsections 22(1A) or 22(1B) as she has been overseas for more than 12 months and 90 days respectively. 

11. The Citizenship Act provides the Minister discretion to treat a period of absence from Australia as a period in which the person was present for the purposes of satisfying the general residence requirement. Subsection 22(9) provides:

    (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.

12. Ms Hammad is the spouse of an Australian citizen, and was so at the time she made her application for citizenship. She has been a permanent resident since 14 November 2015 and she was not present in Australia for the periods set out in paragraphs 22(1)(a) and 22(1)(c). She contends that she had a “close and continuing association with Australia” such that the discretion afforded by subsection 22(9) should be exercised to deem her present in Australia so that she might satisfy the eligibility criteria for Australian citizenship.

    ISSUE TO BE DETERMINED

13. The issues for the Tribunal to determine are: 

    (a)whether Ms Hammad had a close and continuing association with Australia during the period of four years immediately prior to applying for Australian citizenship for the purposes of the exercise of the discretion in paragraph 22(9)(d) of the Act; and if so

    (b)whether the discretion in subsection 22(9) of the Citizenship Act should be exercised to treat the period in which Ms Hammad was absent from Australia as a period in which she was “present in Australia as a permanent resident”.

    RELEVANT FACTS AND EVIDENCE

14. Consistent with the Citizenship Act, I am required to consider if Ms Hammad had a close and continuing association with Australia during the period prior to her making her application. I will refer to the four year period prior to Ms Hammad making her application as the “relevant period”.

15. When considering if a person meets the requirements in subsection 22(9), the Department provides guidance to decision makers including the Tribunal. The Tribunal is not bound by departmental policy but will take it into account unless there are cogent reasons not to do so.

16. CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (“the Instruction”) is applicable to Ms Hammad’s application. The Instruction provides factors which may be relevant when assessing whether an applicant had a close and continuing association with Australia. 

17. The Instruction states that the words comprising the phrase “likely to maintain a close and continuing association” should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary provides the following definitions: 

    ·‘maintain’ as to keep in existence or continuance; preserve; retain;

    ·‘close’ as near, or near together, in space, time, or relation;

    ·‘continuing’ as to last or endure;

    ·‘association’ as the act of associating … connection or combination.

18. It is further noted in the Instruction that the requirement to maintain a close and continuing association refers to an association with Australia, not Australians, meaning that association with immediate family or other social relationships or networks in Australia may not be sufficient to meet the requirement. 

19. The Instruction states that a person’s living arrangements and migration status in their country of residence may be indicators of their association with Australia. Ms Hammad, Mr Abou Qamar, and their children currently reside in Qatar with Mr Abou Qamar’s mother.  

20. Mr Abou Qamar’s 73 year-old mother is a Jordanian citizen who resides in Qatar. On 27 October 2013 Mr Abou Qamar’s brother passed away in Qatar. Until his passing, Mr Abou Qamar’s brother had cared for their mother. As his mother suffers from chronic health conditions which require pain management, Mr Abou Qamar needed to return to Qatar in order to care for her. 

21. Mr Abou Qamar was living in Brisbane until he returned to Qatar in late 2013. Due to the circumstances he was required to leave his employment in Brisbane and negotiate an early release from the lease on his rented accommodation in Australia. 

22. Ms Hammad and her family reside in rented accommodation in Qatar. Ms Hammad’s ability to remain in Qatar is dependent on Mr Abou Qamar’s sponsorship of her through his work visa. Should Mr Abou Qamar return to Australia, Ms Hammad would be required to leave Qatar. 

23. Ms Hammad submits that she does not have any substantial ties or significant assets in Qatar. 

24. Ms Hammad has completed a course in human resources that has enabled her to seek membership with the Australian HR Institute. She has also undertaken an advanced English course in anticipation of securing work in Australia. 

25. Ms Hammad has ongoing employment in Qatar where she works as a recruitment specialist. Her terms of employment are ongoing under a self-renewing annual contract.

26. Whilst she has not paid income tax in Australia, Ms Hammad notes that her husband has done so and she herself has made other tax contributions. 

27. Ms Hammad and Mr Abou Qamar currently own a commercial property in regional NSW which they are seeking to develop in the future. The couple have a joint back account in Australia and a stock portfolio. Mr Abou Qamar has a mobile phone contract and a PO Box in Australia. He also maintains his membership of Engineers Australia. 

28. Ms Hammad gave birth to her daughter in April 2015 and her son in May 2018. She says that her ability to travel over the last five years has been limited by her responsibilities to her children, the lack of a carer to look after her mother-in-law during the times her husband was able to travel overseas and other commitments. 

29. Ms Hammad contends that she has offered donations of cultural significance to Australia dating back to the 19^th century. She submits that she has friends in Australia that she regularly visits while she is in Australia.

30. Ms Hammad and her family had planned to visit Australia and had booked flights departing 5 March 2020 and returning to Doha on 13 March 2020, however these plans had to be abandoned due to the COVID-19 pandemic.

31. She maintains that it is inevitable that she will reside in Australia with her Australian citizen spouse and children, and notes that a visa application has been made for her mother-in-law. 

32. In relation to her intention to reside in Australia Ms Hammad indicates that it is her intention to live with her family in Australia once the Australian Embassy in Qatar resumes normal services following the disruption caused by COVID-19. Specifically she told the Tribunal that her return is dependent on the easing of travel restrictions between Australia and Qatar and most people being vaccinated. 

    CONSIDERATION

33. Ms Hammad was not present in Australia at all in the four years prior to her application.  Physical presence in Australia is an important element for developing a close and continuing association with Australia. In a written submission she notes the observation of the Tribunal in Paula and Minister for Immigration and Citizenship [2012] AATA 543 (“Paula”): 

    The Instructions say that “more weight” should be given if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship. According to the Instructions “less weight” should be given if the person has not been present for at least 365 days…

    The Instructions do not raise a failure to be present for 365 days in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally.

34. Whilst the specific Instructions referred to in Paula have since changed, I accept that Ms Hammad’s absence does not preclude her having a close and continuing association with Australia. I note also, however, that in Paula the Tribunal indicated that a sliding scale of weight be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia during the relevant period.

35. In regard to the factors that may indicate a close and continuing association with Australia, Ms Hammad’s involvement with the Australian community is limited, as would be expected given she has been in the country for a total of 17 days. She has offered donations to a museum in Australia which may benefit the community, but I note that this is distinct from participating in the community. 

36. There is no question that she has a close and continuing association with her Australian citizen spouse and children, but the close and continuing association being considered is with Australia, rather than Australians. 

37. Whilst she contends that she has friends in Australia the evidence presented to the Tribunal indicates that beyond Ms Hammad’s Australian citizen family members, her connection with Australia is primarily centred around the assets that she and her husband hold. They have a property, shares and bank accounts in Australia. The assets are significant and I consider they indicate that Ms Hammad and her husband are committed to a future in Australia, albeit one that is secondary or subject to their commitment to caring for Mr Abou Qamar’s mother and the easing of the global pandemic.    

38. Ms Hammad has ongoing employment in Qatar. Whilst she is readying herself for future employment in Australia by gaining qualifications which will assist in that regard, during the relevant period she was working in Qatar. She continues to do so on a contract which effectively has no end date.

39. The Respondent argues that whilst the COVID-19 pandemic may have impacted her planned travels to Australia in March 2020, there is no evidence that Ms Hammad sought to travel to Australia in the four years prior to the pandemic. Ms Hammad attributes this to the demands of having children, obligations to her mother-in-law, other practical considerations and the impact of COVID-19. 

40. In summary Ms Hammad’s argument is that she would have preferred to spend more time in Australia but was prevented from doing so by circumstances beyond her control.

41. In a written statement Ms Hammad submits that a lack of active participation in the Australian community should not prevent her from being granted Australian citizenship.  She argues that should she be granted citizenship, it will help her maintain friendships in Australia and contribute to the community.

42. I do not accept this argument supports Ms Hammad’s application as to meet the requirements in subsection 22(9) she is required to have had a close and continuing association with Australia in the period preceding the application.

43. In Taher and Minister for Immigration and Border Protection [2013] AATA 917, the Tribunal observed that simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion afforded by subsection 22(9) of the Act, but a precondition. Should it be demonstrated that an applicant has a close and continuing relationship with Australia, it would be open for the Tribunal to then look at the circumstances and reasons why the applicant is unable to meet the general residence requirements. In other words, Ms Hammad would need to first demonstrate the close and continuing association exists and if so, the Tribunal would then consider the reasons that the she did not meet the residence requirement.

44. I agree with Taher that the close and continuing association with Australia serves as a requirement for the discretion afforded by subsection 22(9) to be exercised. It is inescapable that physical presence synonymous with having a close and continuing relationship with Australia.

45. I acknowledge that Ms Hammad’s migration status in Qatar is not permanent, but it is where she resides and has done so over many years. It is also where she raises her family and is employed full-time. 

46. Ms Hammad and her husband have demonstrated they have assets in Australia. These are investments which they have demonstrated can be managed from outside Australia. I do not consider they indicate a close connection to Australia. 

47. Conversely, Ms Hammad’s personal obligations to her family, including Mr Abou Qamar’s mother, preclude her from living in Australia as she and her husband originally planned. The fact that Ms Hammad has spent so little time in Australia means there was very little evidence of her having similar such connections to Australia.

48. These are significant considerations which weigh heavily against a finding that Ms Hammad meets the requirement in paragraph 22(9)(d). In considering the evidence presented and the Instructions, I find that Ms Hammad did not have a close and continuing association with Australia during the relevant period.

49. During the hearing Ms Hammed indicated that unless her application is successful, she expects she would be separated from her husband and children should they return to Australia. I am required to make a decision based on the Citizenship Act with reference to the Instruction and this is not a legitimate consideration for the exercise of the discretion in subsection 22(9). Consequently, this concern does not advance Ms Hammad’s application. However, I note that Ms Hammad has been issued a Resident Return visa which would allow her to accompany her family to Australia should she wish to do so.

    CONCLUSION

50. In considering the totality of the evidence regarding Ms Hammad’s connection with Australia during the relevant period, I am satisfied that Ms Hammad did not have a close and continuing association with Australia in the 4 years prior to her application. For that reason she does not meet the prerequisite to exercise the discretion in subsection 22(9) of the Act.

    DECISION

1. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 13 July 2021

Date(s) of hearing:	4 May 2021
Advocate for the Applicant:	Mr S Abou Qamar
Solicitor for the Respondent:	Mr I Duldig, Clayton Utz