Hussain and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 235
•2 February 2024
Hussain and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 235 (2 February 2024)
Division: GENERAL DIVISION
File Number: 2023/2270
Re:Syed Nazim Hussain
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:2 February 2024
Date of written reasons: 22 February 2024
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter on 2 February 2024, the Tribunal decides that the reviewable decision dated 5 April 2023 is affirmed.
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Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the applicant is 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 – section 24(5) prohibition when applicant is not present in Australia – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
22 February 2024
Introduction
The Applicant, Mr Hussain, is a citizen of Pakistan and currently resides in Canada where he is a permanent resident.
He applied for citizenship by conferral pursuant to section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 29 May 2021 when he was in Canada. The decision refusing his application was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 5 April 2023 because he was not present in Australia and therefore the prohibition in section 24(5) of the Act applied. The delegate was also not satisfied that Mr Hussain satisfied paragraph 21(2)(g) of the Act. The delegate’s decision is the decision under review in this proceeding.
I am considering one criterion of the criteria for citizenship set out in section 21 of the Act, paragraph 21(2)(g) which is:
A person is eligible to become an Australia citizen if the Minister is satisfied that the person 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.
I stand in the shoes of the Minister in making this decision.
Consideration of the evidence
First of all, I note the timeline in terms of the time Mr Hussain spent in Australia and the extensive travel overseas that he undertook during the period he was in Australia from 2017 to 2021 as set out in paragraph 9 of the Respondent’s Statement of Facts, Issues and Contentions (SOFICS):
(a)he departed Australia on 22 July 2017;
(b)he arrived in Australia on 19 October 2017;
(c)he departed Australia on 14 February 2018;
(d)he arrived in Australia on 28 July 2018;
(e)he departed Australia on 27 May 2019;
(f)he arrived in Australia on 10 June 2019;
(g)he departed Australia on 15 February 2020;
(h)he arrived in Australia on 7 April 2020; and
(i)he departed Australia on 8 April 2021.
Since his departure on 8 April 2021, Mr Hussain has not returned to Australia.
Mr Hussain put forward the following evidence in support of his case.
He has friends and work colleagues in Australia. He has provided four letters from friends who attest to his continuing friendship or relationship with them, and his plans and discussion about returning to Australia, discussions about the job market here, and those sorts of things. I note that there is, as I recall, no reference in any of those letters to him bringing his wife to Australia. I also note that he has provided an email from his former boss in Australia, who obviously shows a high regard for the Applicant for his professional accomplishments.
Mr Hussain has a registered company in Australia, which I find, based on his evidence, is continuing to be registered. He has paid an accountant to file the corporate tax returns and do what is necessary in relation to that company. He has also continued to lodge his personal tax returns. He has asked a friend for help to lodge his tax return on one occasion, and he has been updating addresses with the department whenever that was necessary.
I note that his wife’s aunt lives in Sydney. I note that when he was in Australia, he started to look at buying a property. But, as I understand it, as a non-citizen the cost or the interest rate that would have been charged would have been higher than if he were a citizen. Apart from that he has no property or other interests, apart from the company in Australia.
Mr Hussain booked a flight to return to Australia after he had received the Respondent’s SOFICS which mentioned the fact that there was no evidence that he had booked a flight to Australia. He provided evidence that he had applied for a job in Australia on 11 January 2023 which he says is with Pfizer, after receiving that document, which had also pointed out that he had no employment prospects at that stage. So he now claims that he has a possibility of employment in Australia about which he states he is very confident and has the support of his managers in Pfizer.
He says he has plans to bring his wife to Australia. She currently resides in Pakistan. He is looking to buy a house and he will arrange accommodation through his friends. He has a number of friends around Australia, as indicated by their letters and by his evidence. Initially he and his wife will rent. At this stage he has not undertaken any research about a visa or made any application for his wife’s visa. She does have a permanent right to enter and remain in Canada, where she has visited him on one occasion.
It is of some significance in this case that Mr Hussain left Australia in 2021 during the COVID-19 incident. He said that he left Pakistan very quickly after he got married during a brief visit to Pakistan because of his concern about COVID-19 in that country. He went to Canada where he had a right to enter and remain as a permanent resident. He had to sign a document saying he would not return within three months of departure when he left Australia. Thereafter, it seems that for financial reasons, concern about COVID-19 and then getting a job in a global company, Pfizer, he remained in Canada and has not returned to Australia since he left in 2021.
I have formed the view that Mr Hussain’s priority is to work with a global company such as Pfizer, which ambition he has achieved in Canada. I accept that he would like to live in Australia when and if it is possible and he can pursue his ambition for his professional life. However, I am not satisfied that his plans are as firm as he says they are. Rather, I have come to the conclusion that it is likely that they are contingent upon him getting a job in Australia that falls within his plans for his future in his profession.
I am of the view, as set out in the Respondent’s SOFICS, that he does not satisfy section 21(2)(g) of the Act. He certainly does not fall into the category of ‘will continue to reside’ in Australia because he is not, and he has not done so for nearly three years. I am not of the view on the evidence that he would maintain a close and continuing association with Australia if the application were to be approved.
I am not persuaded that he satisfies that criterion of ‘likely to reside’. He may reside in Australia, but it depends on whether his plans for his profession coincide with this capacity to get a job that is in Australia.
For those reasons, I am not satisfied that Mr Hussain satisfies 21(2)(g) of the Act. I therefore affirm the reviewable decision, which means he has been unsuccessful.
It also means that it is unnecessary for the Respondent to provide submissions in relation to the other issue which arose in these proceedings, which was whether the prohibition in section 24(5) of the Act applied. I note that I did express my tentative view that it did not, because my role is not to approve the application, but rather to consider one criterion of the eligibility criteria. If Mr Hussain had been successful, I would have remitted the matter for reconsideration in accordance with the legislation which includes other criteria, as discussed during the hearing.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter on 2 February 2024, the Tribunal decides that the reviewable decision dated 5 April 2023 is affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 22 February 2024
Date of hearing:
2 February 2024
Applicant:
In person
Solicitors for the Respondent:
Ms S Hardie, HWL Ebsworth Lawyers
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