Ismail and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 852

Ismail and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 852 (10 April 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0598

Re:Saifi Ismail

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:10 April 2018

Place:Sydney

The decision under review is set aside and in substitution find that the applicant meets the general residency requirement in section 22 of the Act and is therefore eligible for citizenship under s 21(2)(c) of the Act. Additionally, the applicant satisfies the requirement in s 21(2)(g) of the Act. Subject to all other eligibility requirements being met, the applicant’s Australian citizenship application should be granted.

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

Senior Member A Poljak

Catchwords

CITIZENSHIP – citizenship by conferral – general residence requirement – consideration of discretion in section 22(9) – whether the Applicant had a close and continuing association with Australia during periods of absence – whether the Applicant is likely to, or will continue to, reside in Australia or maintain a close and continuing association – decision set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 52

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection (Published 1 June 2016)

REASONS FOR DECISION

Senior Member A Poljak

10 April 2018

1. Mr Ismail, the applicant, was born in Abu Dhabi, United Arab Emirates (“UAE”). He became a permanent resident of Australia when he first entered the country on a BN-136 visa on 11 April 2009. He was subsequently granted a BB-155 visa on 11 October 2013.

2. He lodged an application for Australian Citizenship on 9 December 2015 (“Citizenship application”) under section 21 of the Australian Citizenship Act (2007) (Cth) (“the Act”). On 3 January 2017, the applicant’s Citizenship application was refused (“the decision”). This is the decision under review in these proceedings.

3. The issues before the Tribunal in these proceedings are whether:

   (a)the applicant satisfies the general residence requirements in s 22 of the Act;

   (b)whether the applicant meets the legislative criteria for the exercise of the residence discretion under s 22(9) of the Act because he had a close and continuing association with Australia during periods of absence in the four year period preceding his citizenship application (9 December 2011 to 9 December 2015) (“relevant period”); and

   (c)the applicant is likely to reside in Australia or maintain a close and continuing association with Australia if his citizenship application is approved.

   RELEVANT LEGISLATIVE PROVISIONS

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

5. Subsection 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming a Australian citizen. Subsection 24(1A) of the Act provides “the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)”.

6. Subsections 21(2)(c) and (g) of the Act relevantly provide that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the general residence requirement pursuant to section 22 (s 21(2)(c)), and 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 (s 21(2)(g)).

7. Subsection 22(1) of the Act sets out the general residence requirements as follows:

   (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; 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.

   Overseas absences

   (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.

8. Subsection 22(9) of the Act 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. [Emphasis added]

9. Section 52 of the Act permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.

   BACKGROUND AND CONSIDERATION

10. The applicant’s wife and children are Australian citizens.

11. From January 2010 to 15 March 2014, the applicant was employed by NetComm Wireless Limited (“NetComm”), an Australian telecommunications company, first as Product Manager 3G and then as Manager/Business Development Director of MEA (Middle East and Africa) and South East Asia. During his employment with NetComm the applicant was required to travel overseas frequently while his wife and children remained in Australia.

12. In November 2013, the applicant relocated to the UAE with his family. On 18 November 2013, the applicant signed an employment contract with Emirates Telecommunications Corporation (“Etisalat”), a UAE based company, which provided that the contract’s duration would be “for a period of two years and shall thereafter [be] an unlimited employment contract”.

13. During the relevant period, the applicant’s absences from Australia are recorded in his Movement Details which record as follows:

Arrival in Australia	Departure from Australia	Number of Days
04/11/2014	14/11/2014	10
09/10/2013	14/11/2013	36
27/06/2013	27/08/2013	61
20/04/2013	23/05/2013	33
03/03/2013	24/03/2013	21
29/11/2012	01/01/2013	33
13/06/2012	20/08/2012	68
03/03/2012	28/05/2012	86
02/01/2012	24/02/2012	53
Total number of days	401

General residence requirement: ss 21(2)(c) & 22

1. As set out above, s 22(1)(a) of the Act requires that an applicant be present in Australia for the period of four years immediately before applying for citizenship. During the relevant period, the applicant was in Australia for 401 days. He therefore does not meet the requirement in s 22(1)(a). The applicant also does not meet s 22(1)(c) of the Act as he was not “present in Australia for a period of 12 months immediately before the day [he] made the application [for Australian citizenship].”

2. The applicant is not assisted by s 22(1A) because he was absent from Australia for more than 12 months in the four years prior to applying for citizenship. The applicant is also not assisted by s 22(1B) of the Act as he was absent from Australia for a total period of more than 90 days in the 12 months preceding his application for citizenship. Accordingly, the applicant does not satisfy s 21(2)(c) of the Act unless one of the residence discretions is exercised in the applicant’s favour.

3. As the applicant’s wife is an Australian citizen the applicable provision is s 22(9) of the Act.

4. The applicant satisfies the criteria in s 22(9)(a), (b) and (c).

5. In considering whether the applicant satisfies the criteria contained in s 22(9)(d), I must be satisfied that the applicant had a close and continuing association with Australia during the relevant period. Factors relevant to this consideration are contained in chapter 7A of the Citizenship Policy, dated 1 June 2016, which relevantly provides:

   Under s22(9), period spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.

   The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:

   ·the applicant was the spouse or de facto partner of a person who was an Australian citizen and

   ·the applicant was a permanent resident and

   ·the applicant had a close and continuing association with Australia.

   …

   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:

   ·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 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) 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.

6. While I accept that the applicant and his family relocated to the UAE in November 2013 and that the applicant only returned to Australia once for a 10 day period in 2014, I am satisfied that the following factors demonstrate that the applicant had a “close and continuing association” with Australia during the relevant period:

   (a)The applicant’s wife is an Australian citizen;

   (b)The applicant’s two children were born in Australia and are Australian citizens;

   (c)The applicant paid income tax in Australia for the 2010/2011, 2011/2012, 2012/2013 and 2013/2014 financial years;

   (d)The applicant leased a property in Australia from January 2010 to November 2013. This is evidenced by the Residential Tenancy Agreement dated 7 January 2010;  the Residential Tenancy Agreement dated 18 June 2010; monthly rental fees debited from the applicant’s Westpac bank account; an email from the applicant to Ms Rush, property investment manager, dated 14 October 2013; AGL Gas accounts for the period 4 December 2012 to 4 March 2013 and 5 March 2013 to 3 June 2013; and an AGL Electricity account for the period 18 April 2012 to 16 July 2012;

   (e)From January 2010 to 15 March 2014, the applicant was employed by an Australian company (NetComm);

   (f)The applicant was awarded a Postgraduate Certificate in Management from Macquarie University on 16 April 2014;

   (g)The applicant had a registered business in Australia called Ledcom Lights Pty Ltd from 19 June 2012 to 15 November 2015;

   (h)The applicant holds a superannuation account in Australia with Suncorp;

   (i)The applicant has accounts with HSBC and Westpac Banking Corporation; and

   (j)The applicant commenced a Westpac Life Insurance Policy on 28 October 2010 and made monthly payments throughout the relevant period, as evidenced from Westpac bank statements.

7. It is plain on the evidence that the applicant established a home in Australia prior to relocating his family to the UAE in November 2013. Despite the applicant’s frequent overseas travel in the years preceding his application for Australian citizenship, the applicant’s wife and children remained in Australia during his periods of travel. 

8. For all of the above reasons, I am satisfied that the applicant meets the requirement set out in section 22(9) of the Act and therefore satisfies section 21(2)(c) of the Act.

   Likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia: s 21(2)(g)

9. The applicant and his family travelled to Australia and attended the hearing in person. At hearing, the applicant expressed his desire to return to Australia to raise his children. He said that he wants stability for his family and that his children are Australian. This was confirmed by his wife, who also gave evidence orally at hearing. She said that it wasn’t safe in the Middle East and that their relocation to the UAE was only intended to be for a short period of time.

10. The applicant advised that they were intending to purchase a property in Australia in the near future. I note that the applicant’s residential lease in the UAE expires in June 2018.

11. In regards to employment, the applicant advised at hearing that he is actively looking for a role in Australia. Mr David Stewart, a prospective employer, gave evidence at hearing and confirmed that he had been in negotiations with the applicant and that he had a standing offer to re-join NetComm. However, he stated that they were yet unable to agree on remuneration. In any event, the applicant advised at hearing that he was actively seeking other roles in Australia.

12. For the above reasons, I am convinced that the applicant will likely reside in Australia should his citizenship application be granted and as such he satisfies s 21(2)(g) of the Act.

    DECISION

13. The decision under review is set aside and in substitution find that the applicant meets the general residency requirement in section 22 of the Act and is therefore eligible for citizenship under s 21(2)(c) of the Act. Additionally, the applicant satisfies the requirement in s 21(2)(g) of the Act.

14. Subject to all other eligibility requirements being met, the applicant’s Australian citizenship application should be granted.

I certify that the preceding 27 (twenty-seven)paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 10 April 2018

Date(s) of hearing:	10 November 2017
Applicant:	In person
Solicitors for the Respondent:	L Gell, Clayton Utz