Herrmann and Minister for Immigration and Border Protection
[2014] AATA 105
•17 February 2014
[2014] AATA 105
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1791
Re
Markus Herrmann
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 17 February 2014 Place Sydney The decision under review is affirmed
....................[sgd]....................................................
Deputy President RP Handley
Catchwords
CITIZENSHIP – citizenship by conferral – residence requirement – spousal discretion –spouse must be an Australian citizen – discretion only applies to periods where spouse was an Australian citizen – exercise of discretion would not satisfy the residence requirement – decision affirmed
CITIZENSHIP – citizenship by conferral – close and continuing association – professional and community connections – requirement of a close and continuing association with Australia satisfied
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hingorani and Minister for Immigration and Citizenship [2011] AATA 266
Sapronov and Minister for Immigration and Citizenship [2011] AATA 126
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315Secondary Materials
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President RP Handley
Dr Herrmann has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse his application for Australian Citizenship on the grounds that he does not meet the residence requirements.
BACKGROUND
Dr Herrmann was born in Leipzig, Germany in September 1973. He married Dr Silvia Zearo, who was born in Italy, in August 2001. He first entered Australia on a temporary visa in June 2007 and, on 29 January 2011, was granted a permanent visa. His wife and three children, now aged seven, eight and ten, acquired Australian citizenship by conferral on 25 June 2012.
On 19 November 2012, Dr Herrmann applied for Australian Citizenship. In the four years prior to this date, he had been in Australia for a total of 1065 days. During his time in Australia, he engaged in clinical research into Diabetes and Cardiovascular Disease, supported by a two year scholarship from the German Government. After his scholarship funding ended, he worked for Laverty Pathology, and undertook research in association with Professor David Sullivan of the Royal Prince Alfred Hospital in association with the University of Sydney, and Nepean Hospital Clinical School. Dr Herrmann was also appointed a Clinical Associate Professor at the University of Sydney, and became a Fellow of the Royal Australian College of Pathologists, having undertaken a year of supervised work, under Professor Sullivan, and passed further professional examinations. Dr Herrmann is a member of the Australian Association of Clinical Biochemists, his
Dr Herrmann left Australia with his family in January 2012 to take up a position in Italy. He is employed on a five year contract, running until 31 January 2017, as the Director of the Central Laboratory of Clinical Pathology at the Bolzano Hospital. He and his family currently reside in Italy.
On 22 March 2013, a delegate of the Minister refused Dr Herrmann’s application for Australian Citizenship. This was on the ground that he failed to meet the residence requirements for the conferral of citizenship. On 22 April 2013, Dr Herrmann applied to the Tribunal for the review of this decision.
LEGISLATION AND DISCUSSION OF ISSUES
Applications for Australian Citizenship are governed by the Australian Citizenship Act 2007 (the Act). Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility criteria which apply in the current matter:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(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
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; 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; and
(h) is of good character at the time of the Minister's decision on the application.
Dr Herrmann’s application for citizenship was refused because he did not fulfil the residence requirement referred to in s 21(2)(c). Section 22(1) establishes that the general residence requirement will be satisfied where:
(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.
There is no dispute that Dr Herrmann does not fulfil s 22(1) as he was not present in Australia for all of the required period. Nonetheless, the Act, in sections 22(1A) and 22(1B) relaxes the requirements for residence to allow for overseas absences. They state relevantly:
(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.
Dr Herrmann was present in Australia for 1065 days in the 4 years prior to his application for citizenship. Thus, the time he was absent from Australia in the four years exceeds the permitted absence of 12 months. Furthermore, in the 12 months prior to his application, he was present in Australia for 92 days. He therefore does not satisfy the relaxed requirements permitting a limited overseas absence contained in section 22(1A) and section 22(1B) of the Act.
In light of this, the principal issue for the Tribunal to decide is whether the Ministerial discretion contained in section 22(9) of the Act should be exercised to treat Dr Herrmann as being present in Australia during the required period. Section 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.
Dr Herrmann was not present in Australia for 274 days in the year prior to lodging his application for citizenship (s (9)(b)). He has been a permanent resident since 2011 (s (9)(c)). The first question for the Tribunal to consider is the interpretation of s 22(9). Dr Herrmann’s wife, Dr Zearo, was granted Australian citizenship on 25 June 2012. This was within the year immediately prior to Dr Herrmann applying for citizenship. The question for the Tribunal is whether section 22(9) can apply to periods before Dr Zearo became an Australian citizen.
There is contrasting case law on the interpretation of section 22(9). In Sapronov and Minister for Immigration and Citizenship [2011] AATA 126, Senior Member Fice held that the section did not impose a requirement that the Applicant’s spouse be an Australian citizen during the entire period the Applicant was overseas. All that was necessary was that the Applicant’s spouse be an Australian citizen at the time of the application for citizenship.
I respectively disagreed with Senior Member Fice’s reasoning in my decision in Hingorani and Minister for Immigration and Citizenship [2011] AATA 266. In that matter, and having considered the Explanatory Memorandum for the Australian Citizenship Bill 2005, I came to the conclusion that s 22(9)(a) was directed only to those periods spent outside of Australia during which the individual’s spouse was also an Australian citizen. This means the discretion can only be exercised with respect to those periods when the Applicant’s wife was also an Australian citizen. The effect of this in Dr Herrmann’s case is that only the period from 25 June 2012 to 19 November 2012 can be counted towards the relaxed residence requirements in section 22. This would be insufficient to satisfy the requirements in section 22(1B). Thus, I regret that Dr Herrmann’s application for the discretion to be exercised in his case would not result in him satisfying the residence requirements in s 22(1)(c) of the Act, and, in turn, the requirement in section 21(2)(c) is not satisfied. This means that Dr Herrmann’s application for Australian citizenship cannot succeed.
CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA
However, for completeness, I will proceed to also consider the other requirement which must be satisfied for the discretion in s 22(9) to be enlivened, s 22(9)(d), requiring that Dr Herrmann have had a close and continuing relationship with Australia during the relevant period.
The Australian Citizenship Instructions (the ACIs) provide guidance on the exercise of the discretion in s 22(9). Paragraph 5.18 provides that:
… Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
§ Australian citizen children
§ long term relationship with Australian citizen spouse or de facto partner
§ extended family in Australia
§ regular return visits to Australia
§ regular periods of residence in Australia
§ intention to reside in Australia
§ employment in Australia where the person has been on leave to accompany their spouse or partner overseas
§ ownership of property in Australia
§ evidence of income tax paid in Australia over the past four year and
§ evidence of active participation in Australian community based activities or organisations
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d), it is policy that more weight should be given if the person has 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 to these factors if they have not been present in Australia for at least this period.
In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal stated that decision-makers should apply Government policy unless that policy is unlawful, or produces an unjust result in the circumstances of the particular case. Nonetheless, as I noted in Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315 at [43], with respect to the application of the Citizenship Instructions to section 22(9)
… the Tribunal, while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.
If the Tribunal were to decide to exercise the discretion in s 22(9), a further question remains as to whether Dr Herrmann is ‘likely to reside in Australia… or maintain a close and continuing association with Australia’. This is a criteria of eligibility under s 21(2)(g) and was a basis of the reviewable decision to refuse Dr Herrmann’s application for citizenship.
EVIDENCE AS TO CLOSE AND CONTINUING ASSOCIATION
Dr Herrmann, who was in Australia for a conference and attended the hearing, gave evidence about his continuing association with Australia. He said that in about September or October 2011, he was informed by Laverty Pathology, his principal employer at that time, that it could not guarantee his ongoing employment. Although his wife, who is a research scientist, was working part-time for the Kolling Institute in Sydney, her earnings were insufficient to support their family, and Dr Herrmann had to find alternative employment. Dr Herrmann said, at that time, there were no suitable opportunities in Australia, where there are only about 80 chemical pathologists.
Dr Herrmann was also, understandably, keen to progress his career, and when offered the position of Director of the Central Laboratory of Clinical Pathology at Bolzano Hospital in Northern Italy, he accepted the offer. There was some urgency for him to take up the position and so he left Australia on 28 January 2012, sooner than he would have preferred.
Dr Zearo and their children initially remained in Australia where they were granted citizenship on 25 June 2012. They joined him in Italy in August 2012, having found the separation very difficult. Dr Herrmann said the position at Bolzano Hospital is a challenging one. He is responsible for managing a staff of 70 and providing pathology services not only for the Hospital itself, but more widely across Italy.
The Hospital is located in the Dolomites in the far North of Italy, not far from the Austrian border. His wife’s family are located about a four hour drive away. His family in Germany are a seven to eight hour drive away. His wife has not been able to find suitable employment, but the children have integrated into their school.
Dr Herrmann, Dr Zearo, and the children, live in a rented apartment. They do not own property in Australia or Germany. They took their household goods with them to Italy but left larger possessions with friends in Sydney. Dr Herrmann and Dr Zearo do not have family in Australia, but have established a network of friends, both through their professional work and the community in which they lived in Mortlake. Their intention is to return to Australia at the conclusion of Dr Herrmann’s contract in 2017 or before. His wife is eager to return – she feels at home here – and stands a much better chance of obtaining suitable employment in Australia.
Dr Herrmann is currently considering applying for two positions in Australia, one of which is in Queensland as a Director of Chemical Pathology. However, Dr Herrmann would prefer to honour is commitment to Bolzano Hospital to, at least, complete the work he is currently doing to transform the pathology services there, before accepting another position. Nevertheless, the relatively small number of suitable positions likely to become available in Australia means that he may need to act sooner rather than later.
Dr Herrmann described how he has maintained contact with his professional colleagues in Australia, attending conferences here, collaboration on research, and promoting the exchange of younger professionals between the two countries. Dr D Sullivan, of the RPA Hospital, spoke warmly in oral evidence of the significant contribution being made by Dr Herrmann, of whom he obviously thinks highly. Dr Sullivan spoke of their regular ongoing contact and Dr Herrmann’s work on Vitamin D and the metabolism, in which, Dr Sullivan said, Dr Herrmann is a world expert. This work has significance to the treatment of diabetes, which is particularly prevalent in the Aboriginal community.
Dr Sullivan spoke of Dr Herrmann’s contribution to the wider community through his professional work. Dr Sullivan also spoke of Dr Herrmann as a friend and of his interaction on his own account, and through his family, in the community in Sydney. Apart from ongoing professional exchanges, Dr Herrmann said he has also organised two international conferences in which Australian speakers have been invited to participate. Dr Herrmann said he is currently in Australia for 8 days, during which he is speaking at the Australian Association of Chemical Biochemists Conference.
Since moving to Italy, Dr Herrmann has maintained his registration as a medical practitioner specialist in Australia and his membership of the Royal Australian College of Pathologists. This has required additional expenses and his meeting further professional development requirements annually. In 2013, while he was in Italy, Dr Herrmann was also reappointed as a Clinical Associate Professor at the University of Sydney for a period of three years. While this is an honorary position, it permits him access to the academic research environment at Sydney University, including participation in research activities, involvement in grant applications and, if asked, providing instruction to students. I note from the University of Sydney website entry for Dr Herrmann that he has an impressive list of professional publications.
Dr Herrmann said his children’s first language is English, and while they are also fluent in German and, now, Italian, Dr Herrmann and his wife have sought to maintain the children’s links to Australia culture. The family spend at least four weeks in Australia each year. Last year, Dr Zearo and the children were here for two months while Dr Herrmann was here for one month. He was also here separately for a conference. While they were here together as a family, they spent time staying with their friends in Mortlake and travelling around the country.
Dr Herrmann and his wife also maintain a supply of DVDs, CDs, audio books, and other materials of Australian origin to maintain a cultural connection. They celebrate Australia day with a barbeque in Italy.
Dr Herrmann and Dr Zearo maintain two bank accounts in Australia – an everyday savings account, and a savings deposit account into which they deposit savings from Italy. They use the everyday account when in Australia. Dr Herrmann also has a superannuation account here.
DISCUSSION ON CLOSE AND CONTINUING ASSOCIATION
In terms of s 22(9)(d) and whether Dr Herrmann “had a close and continuing association with Australia during that period”, as stated above, the Citizenship Instructions provide guidance on the exercise of the discretion listing factors that may demonstrate a close and continuing association.
In Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher), at [47], the Tribunal said, referring to paragraph 5.18 of the Citizenship Instructions:
In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
Ms Wende referred to the decision in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (Ul Haque) where, at [50], the Tribunal said that “While physical presence is not determinative, it is nonetheless, highly relevant to the nature of a person’s association with Australia”. At [52], the Tribunal noted that “although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia”.
I agree with the Tribunal in Taher that the whole of a person’s association with Australia must be considered including the factors listed in paragraph 5.18 of the Citizenship Instructions. I also agree with the Tribunal in Ul Haque that a close and continuing relationship with family in Australia is not the same thing as having a close and continuing relationship with Australia, although it is obviously an important factor. Moreover, inevitably, the nature of the association will be affected by the extent of the time the person has spent in Australia.
I note the rider to the list of factors in paragraph 5.18 stating that less weight should be given to the listed factors if the person has not been present for at least 365 days in the four years immediately before making an application for citizenship. That is not the case for Dr Herrmann, who was in Australia for 1065 days in the 4 years prior to his application for citizenship.
I am satisfied from the evidence presented by Dr Herrmann that he does have a close and continuing association with Australia. Since he has been working in Italy in late January 2012, he has maintained his professional connections with his colleagues in Australia. He, and his family, who are all Australian citizens, have maintained their links with the community in which they were engaged in Sydney, including spending time here every year, and maintaining bank accounts, and with some larger household items stored with friends. I accept that they intend to return to Australia to live, notwithstanding that they do not own property here. They also do not own property elsewhere, and I accept that on arrival here in 2007 and in the next few years, Dr Herrmann was not assured of a secure income needed to support a purchase of property. I also accept that employment opportunities for Dr Herrmann’s specialisation are limited and he needs to identify a suitable opportunity which will assist in progressing his career.
Thus, were it only s 22(9)(d) in contention, or, indeed, s 21(2)(g), I would have no hesitation in finding that these requirements were satisfied. Regrettably for Dr Herrmann, however, as I have said, he does not satisfy the residency requirement which would enable exercise of the discretion in this case. Thus, his application to the Tribunal cannot succeed and the decision under review must be affirmed.
I note, however, that Dr Herrmann is a permanent resident and therefore has a right to reside in Australia. Moreover, the rejection of his current application for citizenship does not prevent him reapplying at a future date, and it may be open to him to seek to rely on his wife’s Australian citizenship in seeking the exercise of the Minister’s discretion under s 22(9).
Decision
The decision under review is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ...................... [sgd]..................................................
Associate
Dated 27 February 2014
Date(s) of hearing 17 February 2014 Date final submissions received 17 February 2014 Applicant In person Solicitors for the Respondent S Wende, Sparke Helmore
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