Hammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1997
•30 June 2021
Hammad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1997 (30 June 2021)
Division:GENERAL DIVISION
File Number: 2020/4652
Re:Bashir Hammad
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:30 June 2021
Place:Melbourne
The Tribunal affirms the decision under review.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
CITIZENSHIP – application for citizenship by conferral – general residence requirement – spouse of Australian citizen – whether close and continuing association with Australia during periods of absence – decision affirmed
Legislation
Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007Migration Act 1958
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Judd v Minister of Immigration and Border Protection [2017] FCA 827
Kanis and Minister for Immigration and Border Protection, Re [2018] AATA 3222
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Minister for Home Affairs v G [2019] FCAFC 79
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Shams v Minister for Immigration and Citizenship [2011] FCA 1505
Singh v the Minister for Immigration and Citizenship [2012] FCAFC 12Taher and the Minister for Immigration and Border Protection, Re [2013] AATA 917
Secondary Materials
Rubenstein, Kim, Australian Citizenship Law (Lawbook Co, 2nd ed, 2017)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
30 June 2021
BACKGROUND
Mr Hammad applied on 3 August 2020 for review of a decision by a delegate of the Respondent on 8 July 2020 not to grant him citizenship on the basis that he did not satisfy the general residence requirement under s 22 of the Australian Citizenship Act 2007 (the Act).
The Applicant is a citizen of Lebanon and he applied for citizenship by conferral on 12 June 2020. He first travelled to Australia in 2002 on a tourist visa and was first granted a Permanent Resident visa in 2014. His most recent visa was granted in 2020.
Mr Hammad married his Australian citizen wife in 2012 and has two children who are also citizens, born in 2013 and 2017. The Applicant’s wife and children are ordinarily resident in Australia, and the children are educated here. Upon the application of Mr Hammad, an order under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) was made making the identity of his wife and children confidential.
Essentially at issue here is the strength of Mr Hammad’s ties to Australia given the fact he has spent the vast majority of his time living and working in Liberia in the years prior to lodging his application for citizenship, and from where he gave evidence. There is also a question as to whether there were periods of marital separation.
The Applicant was represented and both parties lodged Statements of Facts, Issues and Contentions (SFICs) and the Respondent lodged T documents (under s 37 of the AAT Act). The further material lodged on the Applicant’s behalf comprises:
(a)statements dated 10 June 2020 (T10) and 17 November 2020 (Exhibit A1);
(b)a statement from his wife dated 17 November 2020 (Exhibit A2);
(c)a large bundle of material, not formally tendered at the hearing, comprising various documents and records concerning real estate, investment plans, schooling, material addressing the relationship status of the couple, and immigration related material including movement records, much of which material is also found in the T documents; and
(d)pages 198–200 from Australian Citizenship Law (Professor Kim Rubenstein, Lawbook Co, 2nd ed, 2017).
LEGISLATION
Under s 24 of the Act the Minister must approve or refuse an application for citizenship. Eligibility for citizenship is established in s 21 and includes, relevantly, that a person satisfies the general residence requirement in s 22.
The general residence requirement may be satisfied (s 22(1)) 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
Under ss 22(1A) and (1B) of the Act, a person who was absent overseas is to be taken to have been present in Australia if the total period of absence was no more than 12 months during the four year period prior to their application, or no more than 90 days in the 12 months immediately prior to their application.
Relevantly, s 22(9) of the Act provides as follows with respect to persons applying for citizenship:
If the person is the spouse, de facto partner or surviving spouse or de fact 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.
The Citizenship Procedural Instructions (CPIs) contain policy guidance on aspects of citizenship law. CPI 8, ‘Residence Requirements and Discretions’, refers to CPI 11, ‘Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia’ in respect of that specific criterion. CPI 11 states, at 3.2, that the requirement to maintain a close and continuing association ‘refers to an association with Australia, not with Australians’. It states further, at 3.3, that the discretion in s 22(9)(a) of the Act can only apply during periods when the applicant was a spouse or de facto partner ‘during that period’.
CPI 11 further sets out, at 3.3, factors for decision makers to take into account when assessing the close and continuing relationship, with various examples provided to illustrate certain of the following:
(a)Whether the person is currently renting a home;
(b)Whether the person has purchased property;
(c)Whether the person has any assets or commitments including, eg, employment contract, business obligations, caring arrangements, and schooling;
(d)Frequency and purpose of visits to Australia;
(e)Frequency and reasons for absences from Australia;
(f)Participation in the Australian community, including, eg, providing services of benefit to the community, and membership of a board of a club or charity; and
(g)Whether the person has close family member(s) who are Australian permanent residents or citizens and that person intends on residing in Australia.
EVIDENCE
Applicant
In his oral evidence Mr Hammad acknowledged that his children carry a different surname to himself. He explained this was ‘to make them children of the universe’, and stated that he also planned to change his name. He described his marriage as a ‘love marriage’, stated that he first met his wife when younger, later connecting via Facebook, and then spent time together in Liberia prior to deciding to get married.
When asked about his marriage Mr Hammad stated that he could not recall any breakup or separation. Asked why Centrelink recorded a period of separation between May 2015 and February 2016, he responded that his wife visited him during this period, and also called Centrelink to explain it was not a separation.
Mr Hammad described in evidence growing up in a family where his father was away most of the time for work. He stated that he travelled to Liberia with his brother and in 2005 engaged in construction work, then in 2008 camp and office supplies, and in 2011 moved into agriculture.
With respect to his business activity, Mr Hammad stated that on becoming married he decided to leave the business, but financial commitments required him to continue to manage it. He had also hoped to be able to operate his business remotely from Australia.
Mr Hammad explained that his business had been affected by a financial crisis in Lebanon since 2019. Banking transactions had been blocked for the past two years, although the situation was getting better now. He stated that he had asked his wife to look for business opportunities in which to invest in Australia.
Mr Hammad stated that his family connections in Australia comprised his wife, two children, as well as cousins and second cousins, and three uncles. He has daily contact with his wife and that they travel three to four times a year. His wife has never travelled to Liberia since their marriage, and they meet in Lebanon, but have also travelled to America and Europe.
When asked about this support to his wife and children, Mr Hammad stated that he transfers money to Australia and they make joint decisions, such as the development of a YouTube channel involving his children.
When in Australia, Mr Hammad stated that he attends his children’s sports, and also community events, adding that his clothes are in the family home. Mr Hammad described Australia as a great country, ‘undoubtedly the best country’, identifying the health system and equality of opportunity in particular.
Mr Hammad stated that he wanted Australian citizenship because of his children and wife, and ‘I feel I belong there’. He decided to keep his family in Australia when they could be anywhere.
In cross examination, Mr Hammad acknowledged that official movement records (T21) reflected his travel history. He accepted that he had spent 1,311 days out of Australia in the four years prior to his citizenship application. He also accepted that he had spent over 300 days out of Australia in the 12 months prior to that application.
Mr Hammad agreed that he first obtained a permanent visa in 2014, and stated that he continued to work in Liberia to secure his finances before returning to Australia.
When taken to references to marital breakup in his written statements, Mr Hammad explained that, in his opinion, it was not a breakup. He stated that he remained in touch with his wife ‘like now’, explaining ‘maybe she did it to get my attention’.
When asked to explain the ‘ultimatum’ given to him by his wife in late 2018 described in his written statement, Mr Hammad responded ‘she was using it to get me back … if you don’t come back she’ll do this and this …’. He was unable to remember any specific consequences associated with the ultimatum.
Mr Hammad stated that he has continually provided financial support to his family in Australia. He does not transfer regular amounts, but rather provides funds sufficient for a month, or two to three months.
With respect to his living and business arrangements, Mr Hammad stated that since 2017 he has leased a compound in Liberia which is on a 20-year lease. The property is shared with his brother and two nephews, and a second brother also recently returned to work in Liberia.
During re-examination Mr Hammad acknowledged repaying a Centrelink debt which arose due to the payment made to his wife during their periods of separation. He stated that they had never discussed divorce.
Applicant’s wife
In her oral evidence, the Applicant’s wife (AW) stated there were initially ‘teething issues’ with their living arrangements when she would visit Lebanon or Mr Hammad travelled to Australia. She stated they Facetime ‘more than any couple’.
When asked to explain changes to her marital status, AW stated that she was advised by either the Embassy in Lebanon or Centrelink to register as single while she was waiting for Mr Hammad’s partner visa to be approved. It was ‘stock standard’, and they had other friends in a similar situation.
AW described her behaviour at this time (2015–2016) as ‘acting out’ and ‘upset’, stating that she was angry. AW agreed that she had asked for a ‘break’, as described in her statement. However, she stated there were never any real changes in their relationship, and she later spent four months with Mr Hammad, and became pregnant a second time, in May 2016.
AW acknowledged a second period of separation which occurred because she had hopes and dreams that Mr Hammad could finally come to Australia. When he asked for more time, she ‘became rebellious and went to Centrelink’. AW stated that she was ‘embarrassed to say’ that nothing changed during the second separation, despite trying to be independent.
When asked further about the relationship, AW stated that she and Mr Hammad continued to make joint decisions, and that she ‘runs everything by him’. Mr Hammad had also insisted that the children attend the best private school.
AW confirmed that she had collaborated with Mr Hammad on researching business opportunities, and the creation of their YouTube channel, and stated that the children ‘can’t wait’ for him to obtain citizenship.
In cross examination, AW stated that she first engaged with Centrelink over the baby bonus, possibly in late 2012. AW also confirmed that she had incurred a Centrelink debt (T11, in the sum of $13,343.20) and accepted a debt had been raised in 2019, stating there was a further debt in the amount of $9,000.
AW stated that she sought Centrelink payments between May 2015 and February 2016 to prove she could be self-sufficient, and that she had worked her whole life as a career woman. Mr Hammad had, however, never stopped providing money and supporting the children.
In relation to her living arrangements, AW confirmed that she had lived in the house purchased by Mr Hammad for two years, but that it had also been rented out, and that it had now been sold. She stated that they now wish to buy a property in the inner city.
AW was unable to confirm the value of funds transferred by Mr Hammad and stated that he paid school fees and that she had paid for things in 2019, having taken money out of superannuation.
AW stated further that Mr Hammad did not return to Australia, despite having a permanent visa, because ‘if he comes, the money would stop’. She stated that it was his goal that they be ‘set for life’.
In re-examination, AW stated that Mr Hammad transfers money and she uses this to pay of a credit card. With respect to the separations, AW stated that it was never her intention to get divorced and, rather, she sought to elicit a ‘passionate response’ from Mr Hammad.
SUBMISSIONS
On Mr Hammad’s behalf, it was submitted at the hearing that the Applicant satisfied the requirements of s 22(9) of the Act which is an enabling provision that allows families to hold the same citizenship.
It was submitted that while policy is not binding, the previous policy referred to the issue of absences from Australia, but this had been removed in the policy which came into effect in November 2020. Furthermore, the emphasis on time spent in Australia does not accord with the legislative framework which has a ‘communal’ narrative.
The periods of emotional difficulty in the relationship were acknowledged, but ‘spouse’ is interpreted in the context of the Act and the Acts Interpretation Act 1901 (the AI Act), that is, being ‘legally married’. If not for the Centrelink records, it was unlikely that any aspect of the relationship would have been relevant.
The Tribunal was also referred to Judd v Minister of Immigration and Border Protection [2017] FCA 827 (Judd) for the propositions that ‘close and continuing’ relationship should be given its ordinary meaning, and that a ‘multi-factorial approach’ should be taken to its interpretation. In particular:
(a)the family values expressed in Mr Hammad’s choice to provide an income for his family from an international location do not undermine the notion of a close and continuing association, and this was also a financial decision made as a family;
(b)each of the points identified in the CPI were fulfilled in this case and the direction of travel (largely outbound from Australia) reflected a choice as to where it was best to make the most of the time available; and
(c)the general residence requirement was not strictly required in the case of spouses. While the Act emphasises a connection with ‘Australia’, this should be read as also encompassing ‘Australians’, and that it was just as significant to have a communal relationship with Australia, and this was the nature of a family relationship.
The Applicant’s representative also made relevant, substantive, submissions at the opening of the hearing:
(a)despite the absence of an object section in the Act, the preamble assists in its reference to the concept of ‘community’. The discretion should be exercised, it was argued, so as to enable the fulfilment of the familial aspect of community;
(b)the preamble refers both to formal and non-formal levels of membership of the Commonwealth of Australia, and the concept had been addressed in Shams v minister for Immigration and Citizenship [2011] FCA 1505, and Singh v Minister for Immigration and Citizenship [2012] FCAFC 12 (Singh); and
(c)the history of the Act demonstrated that there had always been a spousal exception, and showed an emphasis on Ministerial power to be inclusive when considering applications for citizenship. Accordingly, as a matter of policy, the Tribunal should err on the side of inclusion.
On the Respondent’s behalf it was submitted at the hearing that the former Policy and Instructions (CPI) were now reissued in one set of materials and, following Minister for Home Affairs v G [2019] FCAFC 79, there is no power under the Act to issue guidance and they exist as an exercise of executive power.
It was submitted that the first period of separation was outside the time limits referred to in s 22(9) of the Act, but it should inform the interpretation of the second period of separation. Mr Hammad’s written evidence stood in contrast to his oral evidence in which he denied breaks in the marriage. It was therefore submitted that the couple did not have a continuing relationship, and it was appropriate to draw on the definition of spouse in s 5F of the Migration Act 1958 in this respect, in which case the Applicant did not satisfy s 22(9)(a) of the Act.
The Respondent’s representative submitted that physical presence in Australia is a feature of the Act, and the Applicant had spent only 150 days in Australia in the four years prior to his application for citizenship, and 24 days in Australia in the 12 months prior. This dramatic discrepancy, it was argued, was highly indicative that Mr Hammad’s life is elsewhere. It was further submitted that:
(a)AW had spent more time out of Australia (247 days) in visits than the Applicant had spent in Australia;
(b)Mr Hammad’s visits to Australia were not indicative of returning to a residence and he had chosen to remain overseas, including in the face of an ultimatum from his wife, and resulting in two ruptures in their marriage;
(c)the evidence supports a view that Mr Hammad has a relationship with three Australians, but not with Australia. Should the connection with Australians be considered sufficient, the evidence did not establish that the condition was met; and
(d)there was limited evidence of an attempt to be involved in Australian-based activities and the plan to return to Australia remained a long held aspiration, despite Mr Hammad having had the opportunity and ability to locate here.
It was submitted that exercise of the legislative discretion should be informed by the objects and purpose of the Act, following Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [20] (Kumar). Kumar demonstrates the importance that can be attributed to presence in Australia. Decisions of the Tribunal in ReTaher and the Minister for Immigration and Border Protection [2013] AATA 917 (particularly at [39]), and ReKanis and Minister for Immigration and Border Protection [2018] AATA 3222 (particularly the reference to the Explanatory Memorandum of the Act, at [50]) were cited in relation to the exercise of the discretion in the context of the objects and purpose of the Act.
In reply, it was submitted on Mr Hammad’s behalf that, following Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20, government policy may be a consideration, but it is not the starting point, as the exercise of executive power must be lawful. Further, the reference made by the original decision maker (T2, p 16) to the Migration Act1958 for the definition of ‘spouse’ was inappropriate, as it refers to a different context, being the defence service requirement.
I note, briefly, that a submission was made on the Respondent’s behalf in relation to the extracts from a legal text submitted by Mr Hammad’s representative. I do not consider that the material itself, the Respondent’s submission, nor the reply from the Applicant’s representative raise matters requiring attention in the considerations.
CONSIDERATION
Two issues fall for consideration from s 22(9) of the Act in this matter. Firstly, whether, during his periods of absence, Mr Hammad continued to be the spouse of his Australian citizen wife. Secondly, whether he had a close and continuing association with Australia during those periods. Subject to consideration of and findings on these issues, a further and final issue is the exercise of the discretion in s 22(9) to treat a period as one in which Mr Hammad was present in Australia.
Spouse is not defined in the Act. Having considered the submissions of the parties, I consider the correct approach is to understand the term in its ordinary meaning, which is to say a couple that is married. This is reinforced by reference to s 2CA of the AI Act.
I accept that some effort was made in the course of evidence to explore the nature of the relationship between Mr Hammad and his wife. I was invited by the Respondent’s representative to view Mr Hammad’s oral evidence as lacking a degree of sincerity. This was particularly due to the Applicant’s prior acknowledgement of breaks in the marriage in his written evidence.
Only the second of the two periods, that is August 2018 to December 2018, is relevant given that the earlier period, between 2015 and 2016, is outside the time frames specified in the general residence requirement. I note that it was said on the Respondent’s behalf that this earlier period might inform the interpretation of the second. Nonetheless, I am satisfied that the evidence overall does not demonstrate any reason why Mr Hammad and his wife should not be determined to have been in a spousal relationship at all relevant times.
I am supported in this finding by the evidence, including: the oral evidence which indicates that neither party appeared to act as if the marriage was over; AW did not consider dissolving the marriage; the monies owing to Centrelink arising from the self-reported separations were repaid; and, the irregular but continuous provision of financial support by Mr Hammad to his wife and children.
The starting point in determining whether Mr Hammad had a ‘close and continuing association’ is to give the expression its ordinary meaning but approach it as a ‘multi-factorial’ inquiry (following Judd at [14]). The expression is not defined in the Act.
It is well established that in the context of decisions involving the exercise of a wide discretion, as this is, the Tribunal should use as guidance the lawful policy statements made by the executive, unless there are cogent reasons to the contrary, if it assists in arriving at the correct or preferable decision, in the circumstances of the case (ReDrake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645).
The relevant policy elaborating s 22(9) of the Act is CPI 8, which in turn references CPI 11 in relation to the expression ‘close and continuing association’. It was accepted by both parties that there had been a change in the policy since the time of the decision under review. That is, the policy no longer places a weighting on the factors identified in the policy dependent upon whether or not the person met the specified minimum time periods in Australia (which are the particular allowances made for absences overseas in ss 22(1A) and (1B) of the Act).
Importantly, CPI 11 notes that the inquiry about close and continuing association, contrary to the title of the document, in the case of s 22(9) of the Act, is focused on the past, and not on future intentions. That is, this instruction also serves to inform inquiries about the general eligibility requirement in s 21, specifically residence in s 21(2)(g).
The first several factors in section 3.3 of CPI 11 address, broadly, the circumstances of a person’s life outside of Australia. Mr Hammad has resided and conducted business in Liberia for some considerable period of time. It is clear from the evidence that this is a matter of choice. Indeed, I was urged by the Applicant’s representative to understand this as reflecting Mr Hammad’s personal family experience, understood, to an extent, in a cultural context. I note the Applicant’s association with Liberia commenced well before marrying his wife.
There was quite limited evidence adduced as to the precise nature, range, and scale of Mr Hammad’s business interests. While I do have some documentation in the bundle lodged by the Applicant, it was not elaborated upon in evidence. I accept the submission made on the Respondent’s behalf, which was uncontested, that Mr Hammad had sufficient access to capital to transfer a cash amount sufficient to purchase a property in Australia.
More importantly, there was limited evidence adduced as to any specific efforts made to substantively alter his business arrangements. I accept the evidence given that, as I understand it, his financial, or at least banking, arrangements have been constrained due to issues in Lebanon over recent years. I was not left with a clear impression as to whether Mr Hammad had in fact been somehow prevented from realising any specific objective.
Indeed, while I am happy to accept the evidence given that the Applicant wishes to establish himself financially in some way, this was not quantified, or put in the context of any particular strategy. Mr Hammad did, however, give evidence that he had hoped to get the business to a position that would allow him to manage it remotely from Australia. Once again, this evidence was not articulated in terms of a timeframe or circumstances influencing its realisation. However, in his written statement Mr Hammad indicates that he will be able to do this, and explore business opportunities, following the pandemic.
Mr Hammad’s financial engagement with Australia is relatively modest. The evidence does not disclose any connection between his business activities and Australia. He has owned real estate in the past but does not at present. This property was rented for a time, and therefore was not a family residence for the whole period of ownership. Mr Hammad intends to lodge a tax return for the first time for the 2020–2021 financial year. The house purchase and, I infer, the retention of the proceeds of its sale, represent the totality of Mr Hammad’s financial commitments here.
Subsequent factors in CPI 11 address the nature of travel to and/or from Australia and the periods of absence overall have been addressed already in these reasons. It is appropriate however to set out what Mr Hammad’s movement to and from Australia have been, particularly in the four years leading up to his application for citizenship (T21).
Arrival
Departure
10 December 2019
15 December 2019
21 July 2019
7 August 2019
24 December 2018
24 January 2019
14 January 2018
2 March 2018
29 January 2017
23 February 2017
12 November 2016
1 December 2016
Mr Hammad’s absence from Australia during the course of the pandemic is, according to his written statement, explained by the difficulty in securing flights, which I consider an entirely reasonable explanation.
I note the Respondent submitted that Mr Hammad’s wife spent 247 days outside of Australia since 2016 (RSFIC [27], and her own movement records are included in the bundle of documents lodged by the Applicant). This reinforces the oral evidence at the hearing about the family’s interaction on international holidays.
There are, I consider, useful distinctions highlighted in the text of the CPI. Thus, for example, while Mr Hammad may have been ‘holidaying’ during his trips to Australia, albeit no specific evidence was adduced about the entirety of his activities while here, the best reading of the evidence is that he came to Australia to spend time with his immediate family. These connections extend to a number of other family members.
There is some evidence of Mr Hammad’s engagement with the community beyond his familial connections. The evidence does not point to any particularly strong engagement with the community, read in terms of the capacity in which it occurred or its duration, whether understood as taking place onshore, or while living and working in Liberia.
The final, and perhaps critical, factor in the CPI is the nature of close family relationships. The language of this factor is not entirely apposite to the circumstances of this matter due to the fact, as noted, the policy statement is also phrased around a future-focused test. As I have already indicated, it is clear from the evidence that Mr Hammad’s life partner and children are Australian citizens who habitually reside in Australia. I am satisfied that the evidence shows that, despite the routine physical separation, he maintains an intimate and regular involvement in the affairs of his Australian citizen wife and children.
In summary, the evidence demonstrates unequivocally that Mr Hammad’s close and continuing association with Australia is founded almost entirely on his relationship with his wife and children. He himself has never been a resident in Australia. He has not and does not currently conduct business in Australia. There is no evidence of any other form of enduring link with Australia, other than the presence of other family members here. I accept that the evidence indicates Mr Hammad’s intentions may have been frustrated by the pandemic. However, I do not consider it to represent a significant change from the pattern that existed previously.
I do not consider that it is appropriate to maintain a complete distinction between an association with Australia and Australians. Indeed, the policy statement itself includes as a factor the existence of close family members in Australia.
Nonetheless, I am not persuaded by the submission put on the Applicant’s behalf that this personal bond is sufficient to overcome the obvious limitations to Mr Hammad’s association with Australia overall. The period of the pandemic aside, Mr Hammad has resolutely maintained a presence offshore despite his intimate personal connections.
I understand, following Minister for Immigration and Border Protection v Han [2015] FCAFC 79 (at [54]) (Han), that s 22(9) of the Act is intended to mitigate the difficulty that some persons may have in meeting the general residence requirement. However, I note that it was also said in Han (at [54]) that the introduction of the provision was intended to ensure an applicant be able to rely merely on a spousal relationship in a citizenship application.
It was submitted on the Applicant’s behalf that Mr Hammad’s relationships might serve to satisfy what was said to be a communal dimension to citizenship, drawing on the preamble to the Act. In this context the decision of Singh was cited. The Full Court (at [67]) found that the preamble informed the context of the Act as a whole and, with reference to s 21(5), involved consideration of an applicant’s relationship with Australia understood geographically, and as a society.
In the context of the evidence in this matter, these decisions reinforce my considerations as to Mr Hammad’s inability to meet the requirement to have had a close and continuing relationship with Australia. While his immediate, familiar connections are a factor that may be properly taken into consideration, he is yet to build the more comprehensive connection with Australia that is, I consider, inherent in the expression.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 30 June 2021
Date of hearing: 13 April 2021 Date final submissions received: 10 May 2021 Counsel for the Applicant: Professor Kim Rubenstein Solicitors for the Applicant: Clothier Anderson Immigration Lawyers Advocate for the Respondent: Mr Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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