Jemuel Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship
[2013] AATA 689
[2013] AATA 689
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0090
Re
Jemuel Surjanto
APPLICANT
And
Minister for Immigration, Multicultural Affairs and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 26 September 2013 Place Sydney The decision under review is set aside and remitted to the Minister for Immigration, Multicultural Affairs and Citizenship for reconsideration with the direction that the discretion under s 22(9) of the Australian Citizenship Act 2007 (Cth) should be exercised so as to treat Mr Surjanto’s period of absence from Australia in the four years immediately before making his application for citizenship, as a period in which he was present in Australia.
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
CITIZENSHIP — Citizenship by conferral — Residence requirement — Ministerial discretion — Whether there was a close and continuing association with Australia
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(2); 22(1); 22(1A); 22(1B); 22(9); 22A; 22B; 23;
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Jiang and Minister for Immigration and Citizenship [2011] AATA 68
Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388
Re Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Tanko v Minister for Immigration and Citizenship [2011] AATA 122
SECONDARY MATERIALS
Australian Citizenship Instructions as at 1 July 2013
REASONS FOR DECISION
Senior Member A K Britton
26 September 2013
Mr Jemuel Surjanto was born in and is a citizen of Indonesia. He has been married to Australian citizen, Ms Manda Munro, since 1999. In March 2008 Mr Surjanto and Ms Munro moved to Australia. In mid-2009 Ms Munro took a teaching position in China and was joined by Mr Surjanto in October 2009. They have lived in China since that time. The claim and I accept that the reason they left Australia was because despite their best efforts they were unable to find employment.
In June 2012 Mr Surjanto unsuccessfully applied for Australian citizenship by conferral. Mr Surjanto seeks review by the Administrative Appeals Tribunal of the decision made by a delegate of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse that application. The stated ground for that decision was that Mr Surjanto did not satisfy the “residence requirement”, one of the criteria for the grant of Australian citizenship. In addition the delegate decided not to exercise the discretion to count periods Mr Surjanto spent overseas as periods he was present in Australia (s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)).
The primary issue to be determined is whether the discretion conferred by s 22(9) can and should be exercised. That power can only be exercised if I am satisfied that Mr Surjanto had “a close and continuing association with Australia” throughout the period he was not present in Australia in the four years prior to making an application for citizenship, that is, 16 October 2009 to 6 June 2012 (the relevant period).
THE RESIDENCE REQUIREMENT
A person is eligible for conferral of Australian citizenship if, among other things, they satisfy the general residence requirement (s 22), the special residence requirement (ss 22A or 22B), or the defence service requirement (s 23), at the time the person made the application for citizenship (s 21(2)). There is no argument that Mr Surjanto did not satisfy these requirements when he lodged his application for citizenship on 6 June 2012.
By s 22(1) of the Citizenship Act, the general residence requirement will be satisfied if:
(a)the person was present in Australia for the period of four years immediately before the day he or she made the application; and
(b)the person was not present in Australia as an unlawful noncitizen 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 he or she made the application.
By s 22(1A), a person is taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day they made the application was not more than 12 months. By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the 12-month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.
These provisions do not assist Mr Surjanto because in the four years before making his application for citizenship he was absent from Australia for more than 12 months (he was absent from Australia for 962 days) and in the 12 months immediately before making that application, spent no time in Australia.
THE DISCRETION
The Act confers on the decision-maker the power to treat the residence requirement as having been met in certain circumstances. Section 22(9) provides:
(9)If the person is the spouse … 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.
There is no argument that Mr Surjanto satisfies paragraphs (a), (b) and (c).
The Minister has issued the Australian Citizenship Instructions (“the Instructions”) to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. Unless cogent reasons not to do so the Tribunal must take the Instructions into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In respect of the discretion under s 22(9), there is no material difference between the version of the Instructions used by the Minister’s delegate in assessing Mr Surjanto’s application for citizenship (issued on 1 January 2013) and the current version (issued on 1 July 2013). The Instructions state (at [5.18]):
5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))
….
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:
oAustralian citizen children
olong term relationship with Australian citizen spouse or de facto partner
oextended family in Australia
oregular return visits to Australia
oregular periods of residence in Australia
ointention to reside in Australia
oemployment in Australia where the person has been on leave to accompany their spouse or partner overseas
oownership of property in Australia
oevidence of income tax paid in Australia over the past four years and
oevidence 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 s 22(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 Australian for at least this period.
….
Factors listed in the Instructions as relevant to the nature of Mr Surjanto’s association to Australia
Australian citizen children: Mr Surjanto has no children.
Long term relationship with Australian citizenship spouse: As noted Mr Surjanto has been married to Ms Munro since October 1999. They enjoy a strong and close relationship.
Extended family in Australia: Mr Surjanto has an extended family in Australia both through his wife’s family and his Indonesian-born family. His parents-in-law, Anne and Ian Brown, are Australian citizens and reside in Australia. Each strongly support Mr Surjanto’s application for citizenship. They have been in close and regular contact with their daughter and Mr Surjanto since they left Australia in 2009 and have visited them in China on three occasions. According to Mrs Brown, Mr Surjanto is “very much a part of [their] family”. Mr Surjanto’s brother-in-law, Ryan Brown, also has regular contact with his sister and Mr Surjanto by telephone, and has visited them in China. Other members of Mr Surjanto’s extended Australian family include his wife’s aunts, uncles and cousins.
In addition to those on his wife’s side of the family, Mr Surjanto has several relatives living in Australia. His cousins, whom he was raised with and regards as his sisters, Ms Meti Mjoto and Ms Meni Mjoto, have resided in Australia for several years and have raised families in Australia. Ms Meti Mjoto, her husband and 16-year-old son are permanent residents of Australia. Ms Meni Mjoto is an Australian citizen with children in Australia. Ms Meni Mjoto’s son, Arif Setyahardja, and his wife, Selly Setyahardja, “always stay in touch” with Mr Surjanto while he is overseas and look forward to “the whole family [being] together again”. Ms Meni Mjoto’s daughter, Ratna Prawitasari Setyahardja, has a “very close family relationship with [her] uncle” and remains in regular contact with Mr Surjanto when he is outside Australia. Mr Surjanto’s nieces, Mira and Mia Santoso, are Australian citizens, and his nephew, Eko Santoso, is a permanent resident.
Regular periods of residence in, and return trips to, Australia: As noted Mr Surjanto was resident in Australia between 14 March 2008 and 16 October 2009. The only other time spent time in Australia was a fortnight in late 2000/early 2001. He has not visited Australia since October 2009.
Intention to reside in Australia: Mr Surjanto and his wife claim, and I accept, that they would have remained in Australia in 2009 had they been able to secure employment. Mr Surjanto holds a degree in English literature from an Indonesian University and found little demand for that qualification in Australia. When in Australia he could not find work despite his efforts to widen his skills base by obtaining qualifications in, among other things, computer technology, electrical engineering, training and assessment as well as an extensive job search.
Ms Munro holds qualifications in teaching English to adults. She was also unable to secure employment when she returned to Australia in 2008. After searching for employment for over 18 months she reluctantly accepted a teaching position in China.
With Mr Surjanto’s encouragement Ms Munro is currently undertaking a bachelor degree in criminal law with Open University in Australia. She is also undertaking a graduate certificate in Education Law through another Australian university. She will complete these courses around the end of this year. She is confident that with these qualifications she will be better placed to find employment in Australia. The couple plan to return to Australia when their respective contracts of employment with teaching institutions in China expire in October 2014.
Employment in Australia: Despite genuine efforts to obtain employment Mr Surjanto has never had paid employment in Australia.
While living in Australia in 2008 and 2009, Mr Surjanto taught at Sunday School and assisted in the youth program of his local Church on a voluntary basis.
Business interests in Australia and overseas: Mr Surjanto has no business interests in Australia or any other country.
Ownership of property in Australia: Neither Mr Surjanto nor Ms Munro own any real property, either in or outside Australia. The only asset held by Mr Surjanto in Australia is an extensive comic collection, which he understands to be of some value.
Money invested in Australia: Mr Surjanto and Ms Munro have held a joint Australian bank account since 2008 and use it for electronic banking and to pay for the costs of Ms Munro’s studies in Australia.
Evidence of income tax paid in Australia in respect of the relevant period: Reflecting the fact that he has not been employed in Australia Mr Surjanto has not paid income tax in Australia.
Evidence of active participation in Australian community-based activities or organisations: Mr Surjanto was actively involved in his local Church while in Australia. Mr Surjanto states that while in China he listens to sermons online and joins discussions with the Church community. A letter of support from the pastor of that Church attests to the continued involvement of Mr Surjanto in the Church community since leaving Australia in 2009.
Since residing in Australia Mr Surjanto has had a close interest in Australian public affairs. By way of example he cites his interest in the National 2020 Summit. Ms Munro attests to her husband’s keen interest in Australian public life, as do a number of relatives and friends who provided letters in support of his application for citizenship.
Mr Surjanto has a number of close friends in Australia with whom he maintains regular contact. A number have prepared letters in support of his application.
Did Mr Surjanto have a close and continuing association with Australia throughout the relevant period?
Whether Mr Surjanto had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.
The phrase “close and continuing association” is not defined in the Act. The words in that phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating … connection or combination”.
Mr Surjanto argues that he has a demonstrated close and continuing association with Australia as a consequence of his family and community ties and the not inconsiderable period he has spent in Australia. He argues that it is significant that since 2008 he and his wife have intended to reside in Australia and the only reason they did not act on that intention was their inability to find employment.
He argues that his association with Australia throughout the relevant period is closer than the applicants’ in the following cases where the Tribunal decided not to exercise the discretion in s 22(9):
·Re Jiang and Minister for Immigration and Citizenship [2011] AATA 68, where the applicant spent only 76 days in Australia in the four years prior to making an application for citizenship; lived apart from his wife, an Australian citizen; and had no friends in Australia.
·Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388, where during the relevant period the applicant had only visited Australia for limited periods; had never resided in Australia; and had applied for citizenship of Bahrain.
He also argues that his association with Australia is significantly stronger than the following cases where the Tribunal decided to exercise the discretion in s 22(9):
·Re Tanko v Minister for Immigration and Citizenship [2011] AATA 122, where, like Mr Surjanto, the applicant was unable to find work in Australia, was forced to live overseas and spent only school holidays in Australia. The Tribunal considered it relevant that the applicant had five Australian citizen children; owned property in Australia and throughout the relevant period had been studying at an Australian university and was a member of a number of professional associations.
·Re Paula and Minister for Immigration and Citizenship [2012] AATA 543, where the applicant resided in Australia for 253 days in the four years before making her application for citizenship.
As a consequence of holding qualifications of a type that are more likely to be in demand outside than within Australia, Mr Surjanto and his wife were forced to leave Australia to secure employment. They are not wealthy people and therefore it was not an option for them to remain in Australia for an extended period without income. There would appear to be reasonable grounds for their optimism that when Ms Munro completes the courses she is currently undertaking, she will be better placed to secure employment in Australia and, if necessary, support Mr Surjanto while he obtains further qualifications in Australia. I accept their claim that when they complete their respective contracts of employment with their current employers, they intend to return even if at that point, neither have secured employment in Australia.
Favouring a finding that Mr Surjanto has demonstrated the requisite association with Australia is his long-standing relationship with his Australian citizen wife and his relationship with members of his extended family in Australia. The strength of the latter is demonstrated by the visits to China made by his parents and brother-in-law and the regular contact he has maintained with them and other members of his extended family, throughout the relevant period. As Mr Surjanto points out, his extended family goes beyond his wife’s family and includes members of his Indonesian family now resident in Australia. This is not a case where the relationship with the extended family is in name only or one maintained through the applicant’s spouse but one where the relationship is genuine, close and continuing.
The Minister contends that the evidence does not support a finding that Mr Surjanto intended to reside in Australia in the relevant period, but at best it demonstrates a wish to reside in Australia. I do not agree with the proposition put for the Minister that the factor listed by the Instructions — intention to reside in Australia — should be read down to mean “an intention to reside in Australia in the relevant period”. I accept that evidence of firm plans of return to Australia would generally be necessary to demonstrate the requisite intention but do not agree that the planned return date must fall within the relevant period. I accept that since leaving Australia in 2009 he and his wife have intended to return to Australia at some point. This was more than a whim or wish but one acted upon, as demonstrated by the couple’s joint decision for Ms Munro to undertake further studies in the belief this will better equip her to compete in the Australian labour market and to facilitate their return to Australia.
Assessed against the indicia of employment, payment of income tax and ownership of property Mr Surjanto is unable to demonstrate any association with Australia. As he points out those indicia arguably favour persons whose financial position allow them to acquire property in and to finance regular return visits to Australia. Nonetheless they are indicia that the Instructions direct must be taken into account.
As noted by SM Bell in Re Jiang and Minister for Immigration and Citizenship, close ties with family of itself does not establish a close and continuing association with Australia and in those cases where the Tribunal has exercised the discretion under s 22(9) in favour of an applicant, additional aspects of association have been present (at [25], [26]). In this case Mr Surjanto has a demonstrated association with Australia in addition to that with his family. He has an on-going relationship with his Church and friends and in addition an intention to return to Australia.
Throughout the relevant period Mr Surjanto was overseas with his Australian citizen spouse. This is relevant because the Instructions direct that the discretion in s 22(9) “would usually only be exercised if the applicant was overseas with their Australian citizen spouse …” (at [5.18]). The Instructions also state that “more weight” should be given if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship (including 90 days as permanent resident). Mr Surjanto was lawfully present in Australia for 498 days. While not determinative this weighs in his favour.
While the considerations are finely balanced, these factors together with Mr Surjanto’s close ties to his Australian family, association with Australia through his Church and friends and firm plans to reside in Australia leads me to be satisfied that he has had a close and continuing association with Australia during the relevant period. In reaching that decision I have taken into account those factors which weigh against a finding that Mr Surjanto’s association with Australia was not close and continuing.
Decision
I have decided to exercise the discretion in s 22(9) in Mr Surjanto’s favour. I have no evidence of whether Mr Surjanto satisfies the remaining eligibility requirements for citizenship. I have decided that the preferable decision is to set aside the decision under review and remit the matter to the Minister for reconsideration with the direction that the discretion under s 22(9) of the Act should be exercised so as to treat Mr Surjanto’s period of absence from Australia in the four years immediately before making his application for citizenship as a period in which he was present in Australia.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..........................[SGD]..............................................
Associate
Dated 26 September 2013
Date(s) of hearing 16 September 2013 Date final submissions received 16 September 2013 Applicant In person Solicitors for the Respondent DLA Piper Australia
10
4
0