Incze and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 577

Incze and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 577 (7 August 2015)

Division	GENERAL DIVISION
File Number	2014/3563
Re	Tibor Incze
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	7 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

............................[sgd]......................................

Regina Perton, Member

CATCHWORDS

Citizenship – application for citizenship by conferral – permanent resident did not meet required time in Australia in the year prior to application due to overseas study and work commitments – Australian citizen spouse – extended family in Australia  – whether close and continuing association with Australia - intention to reside in Australia – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 ss 21, 22(1), 22(1B), 22(6), 22(9), 22A(1), 22B, 22C, 24(1A)

CASES

Drake and the Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

REASONS FOR DECISION

Regina Perton, Member

7 August 2015

1. Dr Tibor Incze is a 33 year old medical practitioner.  He holds Romanian and Hungarian citizenship.  Dr Incze first arrived in Australia as a visitor in December 2006 staying for three months.  His next visit was in October 2008 when he stayed for four weeks.  In July 2009 Dr Incze arrived in Australia as a prospective spouse.  He married an Australian citizen in Melbourne on 30 July 2009 and was subsequently granted a temporary partner visa.  He was granted a permanent partner visa on 14 December 2011 while he was outside Australia.  Dr Incze has been an Australian permanent resident since 6 February 2012. 

2. On 28 March 2014 Dr Incze applied for citizenship by conferral.   Dr Incze did not meet the general residence requirements for citizenship on the date of his application.  On 16 June 2014 a delegate of the Minister for Immigration and Border Protection (the Minister) refused Dr Incze’s application for citizenship on the basis that the delegate did not believe that the limited discretions available to a decision maker, when residence requirements are not met, should be exercised.

3. On 11 July 2014 Dr Incze lodged an application with this Tribunal.  Dr Incze acknowledges that he does not meet the residence requirements for the grant of citizenship but believes his circumstances are such that the discretions available when a person does not meet residence requirements should be exercised in his favour.  The Minister’s representative disagrees.

   RELEVANT LEGISLATION

4. Section 21(2) of the Australian Citizenship Act 2007 (the Act) sets out the eligibility criteria for citizenship:

   (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 has completed relevant defence service (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.

5. Section 22(1) of the Act provides that:

   (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;

   (b) the person was not present in Australia as an unlawful non-citizen at any time during that four 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.

6. Section 22(1B) of the Act provides for some overseas absences:

   (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.

7. Section 22(6) of the Act provides for Ministerial discretion if the person in Australia would suffer significant hardship or disadvantage:

   (6)  For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

   (b)  the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

8. Section 22(9) of the Act provides:

   Ministerial discretion--spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

   (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.

9. Section 22A of the Act provides:

   22A  Special residence requirement - persons engaging in activities that are of benefit to Australia

   (1)  Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

   (a)  the following apply:

   (i)  the applicant is seeking to engage in an activity specified under subsection 22C(1);

   (ii)  the applicant's engagement in that activity would be of benefit to Australia;

   (iii)  the applicant needs to be an Australian citizen in order to engage in that activity;

   (iv)  in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and

   (b)  the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and

   (c)  the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and

   (d)  the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and

   (e)  the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and

   (f)  the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and

   (g)  the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

   …

10. Section 22B of the Act provides:

    22B  Special residence requirement-persons engaged in particular kinds of work requiring regular travel outside Australia

    (1)  Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

    (a)  at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and

    (b)  the following apply:

    (i)  the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;

    (ii)  for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and

    (c)  the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and

    (d)  the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and

    (e)  the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and

    (f)  the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and

    (g)  the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

    …

11. Section 22C of the Act provides:

    22C  Special residence requirement-legislative instruments

    (1)  The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).

    (2)  The Minister may, by legislative instrument, specify organisations for the purposes of paragraph 22A(1)(b).

    (3)  The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).

12. On 22 September 2009, the Minister issued a legislative instrument: 

    SCHEDULE A - ACTIVITIES SPECIFIED FOR THE PURPOSES OF SUBPARAGRAPH 22A(1)(a)(i) OF THE ACT

    1.  Employment in a position which requires a high-level security clearance in a Department, an Executive Agency, or a Statutory Agency of the Commonwealth.

    2.  Participation in an Australian team in the following competitions:

    (a)         the Olympic Winter Games, including qualifying events for the Games;

    (b)         the Paralympic Winter Games, including qualifying events for the Games;

    (c)         the Olympic Summer Games; including qualifying events for the Games;

    (d)         the Paralympic Summer Games; including qualifying events for the Games;

    (e)         the Davis Cup Competition, including qualifying events for the Competition; and

    (f)          the Fed Cup Competition, including qualifying events for the Competition.

    SCHEDULE B - ORGANISATIONS SPECIFIED FOR THE PURPOSES OF PARAGRAPH 22A(1)(b) OF THE ACT

    1.  A Department, an Executive Agency, or a Statutory Agency of the Commonwealth;

    2.  Australian Olympic Committee (AOC);

    3.  Australian Paralympic Committee (APC); and

    4.  Tennis Australia.

    SCHEDULE C - KINDS OF WORK SPECIFIED FOR THE PURPOSES OF PARAGRAPH 22B(1)(a) OF THE ACT

    1.  The kinds of work are those undertaken as part of their duties in which a person is:

    (a)         a member of the crew of a ship; or

    (b)         a member of the crew of an aircraft; or

    (c)         engaged in work on a resources installation or a sea installation

13. Section 24(1A) of the Act provides that the Minister must not approve an application for citizenship unless the person meets the criteria set out in sections 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

    DID DR INCZE SATISFY THE RESIDENCY REQUIREMENT AT THE TIME OF HIS APPLICATION FOR CITIZENSHIP?

14. Departmental records indicate that in the four years prior to lodging his application for citizenship, Dr Incze was present in Australia for 482 days.  In the twelve months immediately prior to the application, Dr Incze was present in Australia for 42 days.

15. It is agreed by both parties, and the Tribunal concurs, that Dr Incze did not meet the residential requirements for the grant of citizenship that are set out in sections 22(1)(a), 22(1)(c) or 22(1B) of the Act at the time he lodged his application. 

    SHOULD AVAILABLE DISCRETION BE EXERCISED?

16. The Act provides some discretion for a person in Dr Incze's situation where he does not meet the residential requirements for citizenship. 

17. Section 22(9) of the Act allows for limited discretion where a person was the spouse or surviving spouse of an Australian citizen at the time of the application.  Dr Incze was the spouse of an Australian citizen when he lodged his application for citizenship on 28 March 2014.  He married Helene Berdnikova, an Australian citizen, on 30 July 2009. Section 22(9) allows the Tribunal to treat a period when Dr Incze was not in Australia as one in which he was here as a permanent resident if it is satisfied that he had a close and continuing association with Australia during that period.

18. Dr Incze was granted permanent residency on 14 December 2011 at which time he was outside Australia.  According to Departmental movement records, Dr Incze returned to Australia on 6 February 2012 and stayed until 25 March 2012 (49 days).  He then remained overseas for almost a year until 9 March 2013 when he returned to Australia, leaving again on 13 April 2013 (36 days).  He next returned to Australia on 15 October 2013 and stayed until 2 November 2013 (18 days).  Dr Incze returned to Australia on 22 March 2014, applying for citizenship six days later.  Between 14 December 2011 when he was granted permanent residence and the date of his application for citizenship on 28 March 2014, Dr Incze was in Australia for 109 days out of a total of 729 days.

19. Dr Incze stated that the reason he has been outside Australia for so long is to obtain further specialist medical qualifications which he anticipates will be recognised here and will allow him to be registered as a medical practitioner in Australia.  Dr Incze qualified in Romania as a doctor in February 2010.  He made an unsuccessful application for registration as a medical practitioner in Australia in late 2010.  On 20 November 2010, he passed a written test set by the Australian Medical Council Limited (AMC).  On 18 January 2011 the AMC informed Dr Incze that he had not been selected for the subsequent AMC clinical examinations, stating:

    …

    The total number of applicants for Series 4 2010/2011 clinical examination has exceeded the number of positions available in both the first attempt and repeat attempt categories.  Waiting list positions have been offered, however the list has been capped at a maximum of 300 candidates.  Unfortunately this list is full, and no further candidates will be added to the waiting list.

    …

    It is necessary to submit an application for the next series of examinations at which you wish to present.  The new application form is required because it is not possible to transfer your current application to a future series….

20. Dr Incze also applied to be a resident medical officer in the WA Country Health Service based in its south west region.  On 2 February 2011 the Medical Recruitment Officer for the health service  advised Dr Incze that he would not be interviewed for the positions:

    We mainly employ senior medical practitioners and have limited opportunities for the employment of junior doctors (Resident Medical Officers and Registrars) in the South West of WA based at Bunbury Hospital.  There is a great deal of competition for these vacancies.  We have had an extremely large amount of interest from International Medical Graduates applying for the Resident Medical Officer/junior doctor positions.  Whilst all applications are considered, applications that do not demonstrate work experience as a Medical Practitioner in the United Kingdom, Ireland, Canada, United States or Australia will not be shortlisted for interview.

21. Dr Incze was not given the opportunity to be registered as a medical practitioner under the AMC procedures as they were at that time despite meeting relevant standards in relation to his written knowledge of medicine and meeting English language requirements.  He was not able to take the clinical tests for general registration nor was he interviewed for a position in a WA hospital as he had not had work experience in specified English language locations.  Dr Incze demonstrated a strong command of English during the hearing.  He also speaks German, Hungarian and Romanian. 

22. Dr Incze told the Tribunal that registration procedures for specialist doctors are different to those set out for general practitioners.  He is currently studying and working towards qualification as an emergency and internal medicine specialist in Germany.  He believes his chances of registration in Australia are maximised by taking that route. Dr Incze provided an information booklet prepared by the Royal Australasian College of Physicians which was revised in July 2014 describing pathways for overseas training physicians to be admitted to practice in Australia

23. Dr Incze presented the Tribunal with a report entitled Lost in the Labyrinth following an inquiry into registration processes and support for overseas trained doctors, handed down by the House of Representatives Standing Committee on Health and Ageing in March 2012.  At Page 41 of the 200 plus page report, there is a description of the different pathways to registration for someone who is an overseas trained specialist.  The report made 41 recommendations on enhanced administration, further research and consultation and the need for provision of better information to international medical graduates and their families.    Dr Incze provided a copy of a media release dated 31 July 2013 in which the AMC announced a new state of the art examination test centre for medical graduates which would enable more candidates to undertake clinical examination so that the situation in which Dr Incze found himself with being unable to sit the test should not recur.

24. Dr Incze presented reports from the hospitals where he has been training and working in Germany.  Specialists with whom he was working at Asklepios Schlossberg Clinic, a Specialist Clinic for Neurological Early Rehabilitation in Bad Konig provided a comprehensive reference dated 31 August 2012 describing the work and training undertaken by Dr Incze between 1 June 2011 and 31 August 2012.  In a reference dated 6 June 2014, specialists from the Internal Medicine Unit described Dr Incze’s work as a specialist registrar in that field from 1 September 2012.  Also provided was a certificate from the State Chamber of Physicians of Hessen certifying that Dr Incze was able to bear the designation as qualified in Emergency Medicine.  

25. Other documents provided by Dr Incze included the identity page of his brother’s Australian passport and proof of his mother’s permanent residence.  She holds Romanian citizenship and spends some of her time in Australia and some in Europe where she was at the time of the hearing.

26. Dr Incze’s brother, Zsolt Incze, accompanied his brother to the hearing and gave oral evidence.  There are no other siblings.  Zsolt Incze originally came to Australia for the world wrestling championship and remained.  He has been an Australian wrestling champion seven times.  He hopes to represent Australia in the 2016 Olympic Games in Brazil.  His brother told the Tribunal that Dr Incze provides advice to the Wrestling Foundation on nutrition and injury.  Dr Incze’s does not hold a formal position but provides support to others.    

27. Mr David Zemlinsky, Club President of the SPARTA Wrestling Academy, based in Moorabbin, provided a reference for Dr Incze which the Tribunal received on 20 October 2014.  He stated that Dr Incze had joined their club in 2009:   

    …Our club is one of the leading wrestling clubs in Victoria, we regularly take part at national and international events.  We have young school age members as well as senior wrestlers, who regularly take part at national events.

    Mr Incze took over from the beginning a lot of administrative responsibilities on voluntary basis…  He elaborated the nutritional programme for each age group and provided counselling to parents or wrestlers regarding nutrition, development, sport related injuries and means of prevention, recovery and physio therapy.

    He moved to Germany in 2011 but continues to provide support to us whenever is possible.  We are in regular contact with him and his advices and support are valuable to us.  He continues to provide support to us from overseas and when he visits Australia.

    Mr. Incze and his wife take part on a regularly basis, when he visits Australia, at social events organised by our club.  Throughout these years he built real friendships with a lot of members of our club.

    …

1. Dr Incze purchased a property, in his name only, in Perth in 2013.  He obtained an investment home loan in July 2013.  He told the Tribunal that the house is presently undergoing renovation and is unoccupied.  Asked why he had bought in Perth when his wife is in Melbourne, he said that he likes Perth. He and his wife may eventually move there. 

2. Dr Incze’s wife lives in Melbourne where she is working.  After their marriage, Dr Incze and his wife lived in her unit but later rented that out and moved to an apartment because it was better financially to do so.  Dr Incze’s wife supported both of them financially while he undertook studies for several months to enhance his knowledge of professional English.  Dr Incze told the Tribunal that he had met his wife in 2006 at a Christmas party in Australia.  He told the Tribunal that his wife has visited him in Germany on one occasion since 2011.  She works in the pathology area after obtaining a degree in nursing.  Dr Incze said his wife is working in a job she likes and is not fluent in German so it was not practical for her to come and live there while he worked and studied.  The Tribunal notes that there is no statement from Dr Incze’s wife nor did she give oral evidence. 

3. Dr Incze said that as he has citizenship of an EU state, he could live and work anywhere in Europe but that he wants to live in Australia.  Having studied for so many years for his medical degree, he does not want to work in some other field.  He said that was why he took up the option to study overseas for his specialisation.  Asked why he had not tried sitting for the AMC test again, he said that he had started his specialist training and noted that there is a shortage of specialists in his chosen field in Australia and worldwide. 

4. Dr Incze said that he intends to resume residence in Australia once he qualifies as a specialist in Germany in October 2015. 

5. The Australian Citizenship Instructions (ACI) provide guidance to decision makers in relation to applications for citizenship by conferral under the Act.  The Tribunal is not bound by the ACIs but as was stated in Drake and the Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634, the Tribunal will usually apply such policies unless there are cogent reasons not to do so in a particular case.

6. Paragraph 5.18 provides the following guidance in relation to the statutory discretion in section 22(9) of the Act. 

   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 relationship with Australia include but are not limited to:

   evidence that the person migrated to and established a home in Australia prior to the period overseas

   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

   the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

   ownership of property in Australia

   evidence of income tax paid in Australia over the past four year [sic] 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 to the above factors 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.

7. In determining whether to exercise the discretion available to Dr Incze the Tribunal will consider the factors cited above as well as some other matters. 

8. Dr Incze first came to Australia as a visitor on two occasions in December 2006 and October 2008.  He said that he met his future wife when here as a visitor at a Christmas party.  She subsequently sponsored him from overseas as a prospective spouse and they married not long after his arrival.  Dr Incze then became the holder of a temporary spousal visa as is the legislative requirement and then later became the holder of a permanent visa based on his marriage to an Australian citizen.  He and his wife first lived in a unit that his wife owned and then moved to an apartment in another suburb while she rented out the unit. 

9. The Tribunal does not have any contemporary evidence from Dr Incze’s spouse about the current state of their marriage.  Dr Incze stated that their marriage is ongoing and that his wife did not travel overseas with him as she is working here in Australia and would have found it difficult to obtain employment overseas.  He said that she did visit him once in Germany and that they spend time together when he comes back to Australia on vacation from his employment in Germany.  There is no evidence to suggest the relationship has broken down.  The couple do not have any children nor are there any Australian citizen children from another relationship.

10. Dr Incze’s only sibling, his brother, lives in Australia and is an Australian citizen.  He is divorced.  He represents Australia as a wrestler.  Dr Incze’s mother is an Australian permanent resident who spends some of her time here and some overseas.  She stays with Dr Incze’s brother when in Australia.  Dr Incze’s father comes to Australia as a long term visitor from time to time.  Dr Incze’s parents-in-law live in Australia.

11. Dr Incze has returned to Australia from time to time since commencing work in Germany on 1 June 2011.  He returned for seven weeks on 6 February 2012.  His next return was almost a year later on 9 March 2013 when he stayed five weeks.  He came back 10 months later on 16 October 2013 staying for two and a half weeks.  He next returned to Australia on 22 March 2014 applying for citizenship six days after his return.  He stayed in Australia for just over three weeks before returning overseas on 14 April 2014.  Since commencing work in Germany, Dr Incze has spent relatively little time in Australia.  Dr Incze said that he could only take limited leave as he was training and working in Germany.  He said he kept in contact with those in Australia via Facetime, email and phone.

12. Dr Incze has had only limited residence in Australia between 14 April 2011 when he departed Australia shortly before commencing his German employment on 1 June 2011 and 28 March 2014 when he applied for citizenship.  He was in Australia for just over 17 weeks in the three years before the citizenship application.  In the year prior to his application, he was here for six weeks.  If one takes the four years prior to the application into account, then Dr Incze was in Australia for 482 days of that time having remained in Australia for the whole period between 26 March 2010 and 27 February 2011.   

13. Dr Incze has stated that it is his intention to reside in Australia once he obtains his specialist qualification which he anticipates will be recognised in Australia although it is not absolutely certain.  He pointed to his connections with Australia particularly his wife, his brother and his ownership of property.  He stated his decision to obtain advanced medical qualifications partly arose due to his failure to obtain AMC registration or a junior doctor position in south west WA a few months prior to his long term departure for Germany.  The respondent disagrees with his assertions, stating in its Statement of Facts and Contentions dated 10 November 2014: 

    …

    28.  The applicant’s claim appears to be that he had decided to undertake his current employment in Germany as a means to more readily obtain registration to practice medicine in Australia and that this demonstrates that the Applicant had an intention to reside in Australia in the relevant period.

    29.  The Minister accepts that the Applicant did experience a delay with the completion of an AMC examination.  However, the Minister contends that the Tribunal should not accept that the Applicant’s decision to commence employment in Germany showed an intention to reside in Australia.  Rather, the Minister submits that the Tribunal should conclude that the Applicant’s employment in Germany is evidence that the Applicant has continued to prioritise the pursuit of a career in medicine, including for extended periods outside of Australia when that was the most advantageous for the purposes of his career.  In particular:

    (a)  The Minister notes that the Applicant has only provided evidence of having made one application for a position as a resident medical officer and one attempt to sit the clinical examination.  The Minister contends that if the Applicant had a genuine intention to reside in Australia, the Applicant would have made more than one attempt to seek employment or to sit the clinical examination before deciding to relocate to Germany.  The Minister contends that the absence of more sustained efforts by the Applicant to secure employment in Australia before commencing employment overseas highlights that he did not have a close and continuing association with Australia during the relevant period.

    …

    (c)…The Minister contends that the Applicant’s decision to commence a lengthy period of employment in Germany from 2012 until 2015 is evidence that the Applicant does not have a close and continuing association with Australia during the relevant period.

14. The Tribunal notes, in relation to point (c) above, that Dr Incze commenced working in Germany in June 2011 and will stay until at least October 2015 which is a period of nearly four and a half years.

15. As indicated earlier, Dr Incze purchased a property in Perth in mid-2013.  The respondent contends that the Tribunal should not accept that Dr Incze has established a home in Australia as he has never resided in the property and the loan documentation indicates that the loan is for an investment property.  However Dr Incze appears to live in his wife’s property, either owned or rented, when he returns to Australia.

16. The only evidence of Dr Incze’s active participation in Australian community based activities or organisations is the reference from the Club President of the SPARTA Wrestling Academy and oral evidence from Dr Incze’s brother.  Dr Incze told the Tribunal that he did not hold a formal position with the Wrestling Academy but prior to leaving for Germany, he often assisted unofficially in terms of counselling participants on relevant matters.  Since he has been overseas, he has occasional contact with wrestlers to provide advice or has occasionally attended the academy or competitions if they are held when he is in Australia.   

17. As to other factors cited in the ACI, the Tribunal notes that Dr Incze has not been on leave from employment in Australia during the relevant periods nor has he accompanied his spouse overseas during the relevant periods.  Dr Incze has not paid income tax in Australia.  He told the Tribunal that his earnings since mid-2011 have been in Germany.

18. The Tribunal notes that there are a number of factors that weigh in favour of Dr Incze having a close and continuing association with Australia.  He migrated to Australia and established a home with his Australian citizen wife some two years before leaving for his extended time overseas.  He owns a property in Australia which he purchased about two years after leaving Australia for his overseas work and training.  Dr Incze has extended family in Australia, namely his Australian citizen wife and her immediate family and his Australian citizen brother.  His mother, an Australian permanent resident, shares her time between Australia and Europe.  The Tribunal also accepts that he intends to return to Australia once he is accredited as a specialist in Germany.

19. On the other hand, his periods of residence in Australia since mid-2011 have been relatively short and quite far apart.  Dr Incze spent approximately 17 weeks in Australia in the three years prior to applying for citizenship and six weeks in the year preceding the application.  He has paid no income tax in Australia.  His participation in the Australian community, apart from time spent with his immediate family, has been limited to informally assisting the wrestling association from time to time.   

20. The citizenship laws require most applicants for citizenship by conferral to have four years of permanent residence before applying for citizenship.  Dr Incze had been a permanent resident for only two years and four months when he lodged his application for citizenship.  The legislation also specifies that in the year preceding the application for citizenship, that a person would be expected to be absent from Australia for not more than 90 days.  Dr Incze was absent for more than 300 days in that year. 

21. There are special exemptions to the usual citizenship requirements for spouses of Australian citizens provided the decision maker is satisfied that the applicant had a close and continuing association with Australia during that period.  The ACIs set out some of the relevant factors in determining that close and continuing association. 

22. The respondent submitted that the length of Dr Incze’s absence makes it hard for him to demonstrate a close and continuing association with Australia beyond that with his family.    The Tribunal accepts that Dr Incze communicates regularly by phone and over the internet with his family but is not convinced that his involvement with the wrestling association is sufficient to meet the criterion of an association with Australia. He has not paid Australian taxes during that period although he has presumably paid interest to an Australian bank through which he obtained a mortgage.  He has not worked in Australia.

23. Both Dr Incze and the respondent provided the Tribunal with copies of decisions made by other Tribunal members that concerned the exercise of the spousal discretion.  However each of those was based on their own particular fact situations and are not precedents that the Tribunal is required to follow.

24. While there are a number of factors that weigh in favour of granting an exemption from the usual citizenship requirements based on Dr Incze being the spouse of an Australian citizen, there are others that are weighted against him.   The Tribunal gives greater weight to the length of his absences from Australia during the qualifying period, his limited attempts to obtain employment in Australia before taking up the German employment and his limited ongoing interaction with the Australian community.  The Tribunal is not satisfied that it should exercise the discretion available pursuant to section 22(9) of the Act.

25. Both parties and the Tribunal concur that Dr Incze does not meet any of the other discretionary provisions of the Act which allow shorter periods of residence than the standard requirements.

26. Dr Incze retains his permanent residency and is entitled to return to Australia on completion of his studies and to practise medicine here if he gains registration.  He is able to lodge a fresh application for citizenship at a more appropriate time.

    DECISION

27. The Tribunal affirms the decision under review.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member

.............................[sgd].....................................

Associate

Dated 7 August 2015

Date of hearing	11 February 2015
Applicant	In person
Advocate for the Respondent	Mr M Bock
Solicitors for the Respondent	Clayton Utz