Hamshari and Minister for Immigration and Border Protection (Citizenship) - [2017] AATA 2160

Hamshari and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2160 (9 November 2017)
Division:GENERAL DIVISION
File Number: 2016/5820
Re:Osama Hamshari
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:9 November 2017
Place:Sydney

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the directions that the Applicant satisfies s 21(2)(c) and s 21(2)(g) of the Australian Citizenship Act 2007 (Cth).
............................[sgd]............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – failure to meet residence requirement – whether the Applicant meets the residency requirement - whether the Applicant is likely to reside in Australia or maintain a close and continuing association with Australia if the application were approved – application of citizenship policy - decision set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C
CASES
Ann Nee Chang and Minister for Immigration and Citizenship [2009] AATA 14
Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Saba and Minister for Immigration and Border Protection [2014] AATA 579
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
9 November 2017
The reviewable decision

The Applicant, Mr Hamshari, has asked the Tribunal to review the decision dated 7 October 2016 refusing his application for conferral of Australian citizenship.
The relevant legislation
The relevant legislation is the Australian Citizenship Act 2007 (the Act). The Citizenship Policy is also relevant.
The issues for determination
On 15 October 2015, the Applicant applied for citizenship by conferral pursuant to s 21(1) of the Act. On 7 October 2016, a delegate of the Minister for Immigration and Border Protection refused the application because he/she found that the Applicant did not satisfy the residence requirement (s 21(2)(c) of the Act) and was not likely to reside in Australia or maintain a close and continuing association with Australia if the application were to be approved (s 21(2)(g) of the Act).
The issues are therefore whether the Tribunal finds in favour of the Applicant in respect of the residency requirement and the requirement of being likely to reside in Australia or maintain a close and continuing association with Australia if the application were to be approved.
The evidence
The evidence before the Tribunal included the documents that were before the delegate who made the decision, additional documentation provided by the Applicant including a statement by his wife, and the oral evidence given by the Applicant and his wife by telephone. The Respondent provided a Statement of Facts, Issues and Contentions, as well as oral submissions. The Applicant also made oral submissions.
Background
The following findings are not contentious.
The Applicant is an electrical engineer. He lives and works in the United Arab Emirates (UAE). He first arrived in Australia on 21 July 2004 holding a permanent Skilled Independent subclass 136 visa. He became a permanent resident on arrival. Subsequently, he has held four permanent Resident Return subclass 155 visas. The Applicant applied for citizenship by conferral on 15 October 2015. When the delegate made the reviewable decision on 7 October 2016, the Applicant held a visa that had been granted on 2 February 2016 while he was offshore. He has spent 303 days in Australia in the twelve years from his first arrival in 2004 until the date of the delegate’s decision, 7 October 2016.
The Applicant married his wife in 1992. She and their four sons are Australian citizens. Their sons were born in 1994, 1996, 1999 and 2004. The Tribunal refers to the sons as the first, second, third and fourth son respectively.
Does the Applicant satisfy the residence requirement?
Section 21(2)(c) of the Act provides that a person must satisfy one of the following residence requirements:
·General residence requirement in s 22; or
·The special residence requirements set out in ss 22A or 22B, or
·Defence service requirements set out in s 23.
Section 22A of the Act provides for a special residence requirement in relation to persons engaging in activities that are of benefit to Australia. Section 22B of the Act provides for a special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia and s 22C provides for a special residence requirement pursuant to legislative instruments.
The evidence does not suggest that the Applicant satisfies the residence requirements in ss 22A, 22B or 23. He has not made any claims that he does satisfy any of those requirements.
Does the Applicant satisfy the general residence requirements set out in s 22? Section 22(1) of the Act provides that the general residence requirement referred to in s 21(2)(c) is satisfied 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.
If the person was absent from Australia for a part of the four year period specified in s 22(1)(a), and the total period of absence/s was not more than 12 months, the person is taken to have been present in Australia during each period of absence[1].
[1] s 22(1A) of the Act
Departmental records show that in the four years immediately before making the application on 15 October 2015, the Applicant was absent from Australia for 1343 days and physically present in Australia for a total of 118 days. His total period of absence/s was more than 12 months. Therefore he cannot be taken to have been present in Australia during the four years immediately before making the application.
If a person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application, and the total period of absence/s was not more than 90 days, and the person was a permanent resident during each period of absence, then the person is taken to have been present in Australia as a permanent resident during each period of absence.[2]
[2] s 22(1B) of the Act
While the Applicant was relevantly a permanent resident, departmental records show that in the 12 months before making the application, he was absent from Australia for 337 days and physically present in Australia for 28 days. Because he was absent from Australia more than 90 days, he cannot be taken to have been present in Australia as a permanent resident during each period of absence.
The Applicant does not satisfy ss 22(1A) or 22(1B) of the Act.
The next question is whether one or more of the Ministerial discretions available in ss 22(4A) to 22(11) assist the Applicant. On the evidence, the only discretion which the Applicant may seek to rely on is that provided in s 22(9). That provision states that, if the person is the 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
The Applicant was the spouse of an Australian citizen and a permanent resident and was not present in Australia during the four year and twelve month periods set out in s 22 of the Act. He satisfies ss 22(9)(a), (b) and (c) of the Act.
Is the Tribunal satisfied that the Applicant had a close and continuing association with Australia during the four year and twelve month periods as required by 22(9)(d)?
Chapter 7 of the Citizenship Policy sets out eleven factors that may demonstrate that a person has had a close and continuing association with Australia in the context of s 22(9)(d) of the Act.[3] It is not an exhaustive list. The Citizenship Policy provides that more weight should be given to the factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making the application, including at least 90 days as a permanent resident, and less weight if the person has not.[4] In this case, less weight is to be given because the Applicant was in Australia for 118 days in the four year period, less than one third of the specified 365 days.
[3] Citizenship Policy, p 95-96.
[4] Ibid, p 96.
Of the eleven listed factors, it is not in dispute that the Applicant satisfies three: he has Australian citizen children, a long term relationship with Australian citizen spouse and has made regular visits to Australia.
It is also not in dispute that the Applicant does not satisfy the following factors set out in the Citizenship Policy:
·Extended family in Australia
·He has been on leave from employment in Australia while accompanying his spouse or partner overseas
·Ownership of property in Australia
·Evidence of income tax paid in Australia over the past four years
·Active participation in Australian community based activities or organisations
It is necessary to consider whether the Applicant satisfies any of the other listed factors and whether there are other relevant factors the Tribunal should take into account.
The Applicant gave evidence that he migrated to and established a home in Australia in 2009, that is, prior to the four year period. The Tribunal accepts that evidence. The Applicant and his family came to Australia in 2009. They rented and furnished a flat and enrolled their sons in school. The Applicant was committed to moving to Australia. He tried to find a job but was unsuccessful. When the Applicant and his family first landed, he received a letter that stated he had to stay for two years before he could obtain government assistance. He had to support his family. It was too expensive. After about six weeks here, he returned to the UAE. His wife and their four children remained in Australia until 2013 when his wife and family returned to the UAE. The two older sons returned to Australia to continue their studies. The Tribunal accepts that those four years from 2009 until 2013 were very difficult for the Applicant, being separated from his wife and family for most of the time.
The oldest son began studying at university in Australia at the beginning of 2012. He completed his degree in 2016 and is currently working as an engineer in the UAE. The Tribunal accepts that engineering jobs in Australia were hard to find and that contemporaries of the Applicant’s oldest son could not find work and continued to study.
The Applicant’s second son commenced studying at university in Australia at the beginning of 2015 and is still studying.
Both of those sons attended high school for some time in Australia from 2009 until beginning to study at university.
The third and fourth sons went to school in Australia from 2009 until 2013. After returning to the UAE in 2013, the third son attended an Australian International School in the UAE to enable him to attend an Australian university. He came to Australia to begin university in 2016.
The fourth son is studying Year 8 in a high school in the UAE which provides a curriculum that satisfies Australian requirements. His mother said that they want the fourth son to study in Australia and that she might bring him to Australia in two years to begin school.
The Tribunal does not have departmental records in relation to the Applicant’s movements into and out of Australia before 2013. The Applicant provided electronic ticket receipts from Singapore Airlines and a statement from Emirates Airline for the period 1 June 2010 to 22 November 2016 on which he had written the identity of passengers on flights between Australia and the UAE.
Taking into account that airline records, his departmental movement records for 2013 to date, and the Applicant’s oral evidence, the Tribunal finds that he can only visit Australia for about two weeks at a time because of his work commitment in the UAE. The last time he visited Australia was in November-December 2015 when he stayed for 13 days. The longest he has stayed was about six weeks in 2009 when he moved his family to Australia.
The Tribunal accepts that the Applicant has travelled regularly to Australia but does not accept that has had periods of residence in Australia since 2009.
The Tribunal accepts that the Applicant has, and continues to fund, the rental and furnishing of a three bedroom flat in Australia from 2009 to date which he and his immediate family use and regard as their Australian home. The Tribunal accepts that the current lease is for one year and that the Applicant has rented a couple of different apartments. The Applicant and his family live in a three bedroom residential flat in the UAE. That their homes in Australia and the UAE have comparable accommodation reflects that both are homes for the whole family. The residence in Australia is not just to provide accommodation for the sons who are studying here.
The Applicant has and continues to fund the many journeys undertaken by himself and the members of his family between the UAE and Australia. The Tribunal notes that the Applicant’s wife has made many trips between the two countries. She told the Tribunal that she brings the fourth son to Australia in the summer holidays. They stay in their flat.
The Applicant has funded and continues to fund the living and educational expenses of his immediate family members in Australia, to the extent that the latter are incurred bearing in mind that his sons are Australian citizens and entitled to educational opportunities accordingly. He has funded and continues to fund a motor vehicle for the family’s use in Australia.
The Tribunal accepts the Applicant’s estimate that he has spent about $500,000 for those expenses since 2009. He estimates that he is spending about $60,000 a year supporting two sons to live and study in Australia. He provided copies of bank statements with Australian financial institutions to support that claim. The Tribunal accepts that those statements mostly show expenditure in relation to the expenses of the sons who live/have lived in Australia and that accounts may be accessed in the UAE.
The Tribunal accepts that the Applicant has funded the schooling of the third and fourth sons in the UAE in an expensive school which teaches a curriculum that has/will enable them to study at an Australian university.
The Tribunal accepts that the Applicant has and continues to try to find work in Australia. The Applicant told the Tribunal that engineers were in demand in 2004 when he was granted the skilled independent visa. When he arrived in Australia in 2004 he stayed with his brother-in-law for a month but found that it was not easy to get a job as an electrical engineer. He has a large family and could not stay without a job. He decided to return to the Middle East and look for a job on-line. He was offered a position with an engineering company in Australia at the end of 2007 but he said that the offer was withdrawn because of the international financial crisis that occurred at that time. He also wrote that it was hard for him to find a job in Australia because he did not have local experience which employers required. He tried to find a job when the family moved here in 2009. He told the Tribunal that he had contacted a company while he was in Australia in 2016 with a view to undertaking some business but nothing came of that contact.
The Tribunal accepts that the Applicant has wanted to come and work and live in Australia since 2004 but has not been able to find a job here. He has had to return to the UAE to work in order to support his family, which he continues to do.
Based on the evidence of the Applicant and his wife, The Tribunal finds that the reality of having to earn money to support his family means that while he is supporting his family, unless he gets a job in Australia, he cannot reside here. Over a period of 13 years, he has been unsuccessful in finding and taking up a job in Australia.
The Tribunal finds that the reason the Applicant applied for citizenship when he did was that the requirement to renew his visa had changed when he reapplied in 2014, from every five years to an annual renewal which requires obtaining various documents, having them interpreted and authorised, as well as paying the visa fee.[5] It is inconvenient, time consuming, and expensive. As the Applicant wrote in the covering letter he sent with his application:
I am applying for Australian citizenship in order to make it easy for me to keep I touch with my family in Australia and be able to visit my sons as and when I need.
[5] Migration Legislation Amendment Regulations 2012 (No.3) which came into effect on 1 July 2012
A further reason for applying for citizenship was that the Applicant and his wife are concerned that the law may change with the consequence that while his wife and sons may come to Australia at any time, he may be prevented from doing so.
While the Tribunal accepts the Respondent’s submission that the inconvenience, expense and ease of entering and exiting Australia with his family is not a sufficient basis for the grant of citizenship, it accepts that that change has caused the Applicant and his family concern that there may be changes to the law in the future that may make it more difficult for the Applicant to join his family in Australia. That is a real concern for the family given that two sons are currently studying in Australia, will continue to do so and will possibly work in Australia, and the fourth son is likely to come to Australia to study in a couple of years’ time and it is almost certain that the Applicant’s wife will be travelling to and fro and staying with the sons in Australia at certain times, based on her past travel record.
The Tribunal finds that the Applicant will continue to look for suitable work in Australia as he has in the past. He has a long-standing intention to reside in Australia as demonstrated by trying to find a job here from 2004 until today, moving his whole family here in 2009 and establishing and maintaining a home here to the present time.
Taking into account all the above factors, and the weight to be given to the factors, the Tribunal finds that the Applicant had a close and continuing association with Australia during the periods he spent overseas during the four year period before he applied for citizenship. That includes the periods he was overseas during the 12 month period before he applied.
In making that finding, the Tribunal has taken into account the distinction to be drawn between a close and continuing relationship with Australia as opposed to Australians.[6]
[6] Saba and Minister for Immigration and Border Protection [2014] AATA 579 at [45].
For those reasons, the Applicant satisfies s 22(9) of the Act and therefore satisfies s 22(1) and satisfied the general residence requirement in s 21(2)(c) of the Act at the time he made the application.
Is the Applicant likely to reside, or continue to reside, in Australia or maintain a close and continuing association with Australia if the application were to be approved?

The second issue to consider is whether the Applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved (s 21(2)(g) of the Act).
The Applicant has not been able to find a suitable job in Australia in 13 years. Although the Tribunal accepts that the Applicant has had a long-standing intention to reside in Australia, it has found that it is conditional on his finding a job, as discussed above. An intention to reside in Australia at some unspecified future time is insufficient to satisfy s 21(2)(g) of the Act.[7] That the intention is conditional reinforces the finding that the Applicant does not satisfy that criterion in s 21(2)(g).
[7] Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at [31], Ann Nee Chang and Minister for Immigration and Citizenship [2009] AATA 14 at [59], Saba (supra) at [50].
The wording of s 21(2)(g) of the Act is prospective as opposed to the requirements in s 22(9) which are retrospective. That is, the Tribunal is required to decide whether the Applicant is likely to maintain a close and continuing association with Australia if the application were approved. As the Respondent submitted, the considerations in the Citizenship Policy for s 21(2)(g) substantially overlap with those for s 22(9).
In summary, the Tribunal is satisfied that the Applicant is likely to maintain a close and continuing association with Australia if the application were to be approved because:
·The Applicant has four Australian citizen children.
·The Applicant has a long term relationship with an Australian citizen spouse, since their marriage in 1992.
·The Applicant’s second and third sons are currently studying at university in Australia and will continue to study here until they complete their degrees and may work in Australia thereafter.
·The Applicant is funding his fourth son to attend a school in the UAE which offers a curriculum which satisfies the requirements for entry to an Australian university. The fourth son will come to study in Australia within the next few years, possibly for the last couple of years of high school and almost certainly to attend university, and may work in Australia thereafter.
·The Applicant will regularly visit Australia while his sons are studying or working in Australia, as he has in the past.
·The Applicant will continue to fund the family’s Australian home and a car for the family’s use while any member of his family is studying in Australia.
·He will fund the living and study expenses of his sons who are in Australia while they are studying.
·While the Tribunal gives little weight to it, it is relevant that the Applicant has had since 2004, and continues to have, an intention to live in Australia, which is conditional on getting a job here.
The Applicant satisfies s 21(2)(g) of the Act.
Decision
For the above reasons, the Tribunal sets aside the decision under review and remits that matter for reconsideration in accordance with the directions that the Applicant satisfies s 21(2)(c) and s 21(2)(g) of the Act.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................
Associate
Dated: 9 November 2017

Date of hearing: 16 June 2017

Applicant: In person

Solicitors for the Respondent: Mr D Eberl, Australian Government Solicitor

Date of hearing:	16 June 2017
Applicant:	In person
Solicitors for the Respondent:	Mr D Eberl, Australian Government Solicitor