Kamran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 7

Kamran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 7 (6 January 2020)

Division:GENERAL DIVISION

File Number:          2019/1250

Re:Kehkashan Kamran

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Anna Burke AO, Member

Date:6 January 2020  

Place:Melbourne

The reviewable decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 7 February 2019 to refuse Ms Kamran’s application for Australian citizenship is affirmed.

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

Anna Burke AO, Member

Catchwords

CITIZENSHIP – whether applicant met the general residence requirement at the time she applied for Australian citizenship – Australian spouse and children – close and continuing relationship with Australia - should ministerial discretion be exercised – decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975

Australian Citizenship Act 2007

Cases

Taher and Minister for Immigration and Border Protection [2013] AATA 917

UI Haque and Minister Immigration and Citizenship (2013) 139 ALD 376

Secondary Materials

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

REASONS FOR DECISION

Anna Burke AO, Member

6 January 2020

INTRODUCTION

1. Ms Kamran is a Pakistani citizen who first arrived in Australia on 3 January 2011, following her marriage to a dual Australian/Pakistani citizen.

2. On 20 August 2018, Ms Kamran was granted a subclass 155 (Resident Return) Visa.

3. As at 17 May 2019, the Department of Home Affairs’ Movement History record (provided to the Tribunal) stated Ms Kamran’s travel movements as follows:

   3 January 2011          arrived in Australia

   24 August 2011          departed Australia

   16 August 2013          arrived in Australia

   22 August 2013          departed Australia

   28 February 2015       arrived in Australia

   11 March 2015           departed Australia

   4 October 2016          arrived in Australia

   23 August 2017          departed Australia

   20 October 2018        arrived in Australia

   25 October 2018        departed Australia

   On 4 August 2019, Ms Kamran arrived in Australia and has remained since.

4. On 16 August 2017, Ms Kamran lodged an Application for Australian Citizenship by Conferral and sought to engage the Minister’s discretion in respect of the general resident requirement as the spouse of an Australian citizen.

5. On 7 February 2019, a delegate of the Minister for Home Affairs (as he was then known) (the Minister) refused to grant Ms Kamran Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (the Citizenship Act), on the basis that Ms Kamran did not satisfy the "general residence requirement" in s 22 of the Citizenship Act as required by s 21(2)(c). Specifically, during the four-year period immediately prior to Ms Kamran’s application she was offshore for 1,126 days, which exceeds the 365 days allowed in s 22(1A). Additionally the delegate found it did not appear that Ms Kamran met the requirements for the exercise of discretions in sub-ss 22(4A), (5), (5A), (6) and (11).

6. At the hearing of this application on 15 November 2019, Ms Kamran was represented by her husband. Mr Keith Sypott, solicitor advocate from the Australian Government Solicitor, appeared for the Minister. Evidence before the Tribunal included: a set of documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Act 1975 (the AAT Act), referred to as the “T documents”; and numerous statements and records provided by Ms Kamran.

   ISSUES FOR THE TRIBUNAL

7. The issues for the Tribunal are:

   ·Did Ms Kamran meet the "general residence requirement" in s 21(2)(c) of the Citizenship Act, at the time of the application for Australian citizenship; and

   ·If not, can Ms Kamran receive Ministerial discretion under s 22 of the Act?

   LEGISLATIVE AND POLICY BACKGROUND

8. Section 24 of the Citizenship Act states:

   Minister's decision

   (1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   ...

   (1A) 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).

9. Subsection 21(2) of the Citizenship Act provides:

   General eligibility

   (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.

10. Section 22 of the Citizenship Act outlines when a person satisfies the general residence requirement:

    (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.

11. Subsection 22(9) of the Act provides for Ministerial discretion in the case of a person who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen in the following circumstances:

    [T]he 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.

12. The Department of Immigration and Border Protection (as it was then known) has developed the Citizenship Policy (the Policy) to support the Citizenship Act.[1] The introduction to the Policy provides the following guidance regarding its role:

    The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.

    [1] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016.

13. Chapter 7A of the Policy provides that:

    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 listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four 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.

    RESIDENCE REQUIREMENTS NOT SATISFIED

14. The Minister’s delegate in their decision record of 7 February 2019 noted that:

    The evidence you have provided in relation to how you maintained a close and continuing association with Australia during the period spent offshore all correspond to a period during which you were residing in Australia. You have therefore not provided any evidence that demonstrates that you maintained a close and continuing association with Australia during the periods of time spent offshore from 22 August 2013 to 28 February 2015 and 11 March 2015 to October 2016.

15. Ms Kamran in her submission to the Tribunal dated 11 April 2019 noted that:

    I was granted the permanent residency on 16^th August 2013. I applied for the Australian citizenship, with Ministerial discretion, due to my absence from Australia, on 16^th August 2017, when my lawful 4 years were completed. I maintained a close contact with my Australian citizen spouse and with Australia itself but declined on 7^th February 2019, due to lack of evidences to show continue relationship with Australia.

16. The Minister’s representative argued, and Ms Kamran has conceded, that Ms Kamran did not meet the residency requirements under s 22(1)(c) of the Act when she applied for citizenship. Instead Ms Kamran has sought Ministerial discretion as provided under s 22(9) of the Act.

    MINISTERIAL DISCRETION

17. The delegate of the Minister accepted that Ms Kamran had a close and ongoing relationship with her Australian citizen family, however, noted that the Act required her to have a close and continuing association with Australia, not just Australians. The Minister’s delegate found that Ms Kamran provided no substantial evidence that she had a continuing association with Australia over the relevant four-year period. The delegate in his decision stated:

    I acknowledge that you are in a longterm relationship with an Australian citizen spouse, however, personal relationships alone are not necessarily sufficient to demonstrate a close and continuing association with Australia. During this period you briefly returned to Australia on one occasion between 28 February 2015 and 11 March 2015. You have not provided any evidence of property ownership, income tax payments, participation in Australian community based activities or organisations, ongoing business interest or leave from employment in Australia during the periods of time spent offshore.

    On the basis of the information I have at hand I am not satisfied that you had a close and continuing association with Australia during the periods of time spent offshore from 22 August 2013 to 28 February 2015 and 11 March 2015 to October 2016 as required by paragraph 22(9)(d) of the Act. This time cannot therefore be treated as time during which you were present in Australia.

18. Mr Sypott on behalf of the Minister accepted that Ms Kamran satisfied ss 22(9)(a)–(c) of the Act as her spouse was an Australian citizen, she was not present in Australia and was a permanent resident when she applied for Australian citizenship.

19. Ms Kamran’s submission to the Tribunal dated 11 April 2019 states:

    I like to explain a brief overview of my background situation. My spouse … is an Australian citizen and I got married to him on 14^th July 2010 overseas. I landed Australia on 3^rd January 2011 on a visit visa, as my application for spouse visa was under process. I started my beautiful family life with him from then onwards. On 18^th May 2011, I was granted the temporary residence of Australia. In July 2011, my spouse was offered employment in Saudi Arabia, which he accepted. My spouse wanted me to accompany him while he was starting his job overseas and we had to move from Australia. I accompany him throughout these years which was the period I was absent from Australia. Being Australia a new home to me always close to me. I tried all my efforts to maintain a close and continuous relationship with Australia, all this time. I became parents of two beautiful daughters too in this time, … both are also Australian citizens by descent. I also tried to have regular visits to Australia to maintain our bond with our homeland. I also tried to file income tax returns but as I was never employed, tax agents advised me not to file any Tax returns. We return to Australia on 4^th October 2016 after completion of my spouse employment contract.

20. Ms Kamran advised the Tribunal that:

    ·she arrived in Australia on a Visitor’s Visa in January 2011 to join her husband Mr Khali. Whilst her application for a spousal visa was being processed, they established a home together and she started to establish a life in Australia, exploring the process of having her overseas qualifications as a pharmacist recognised. Her husband lost his job in March 2011 and was unemployed for four months;

    ·in September 2011 her husband was offered contract work in Saudi Arabia, she was pregnant with their first child and they moved as a family to Saudi Arabia for the period of the contract;

    ·in February 2012 her first child, an Australian citizen, was born in Pakistan;

    ·in November 2013 her second child, an Australian citizen, was born in Saudi Arabia;

    ·during this period it was always her intention to return to Australia for visits to connect with her new home and for the family to establish a connection with Australia;

    ·in November 2014 her mother-in-law became gravely ill and they travelled to Pakistan to farewell her, this prohibited a trip to Australia;

    ·on 19 March 2016 she made her first application for Australian citizenship;

    ·in October 2016, at the end of her husband’s contract in Saudi Arabia, the family returned to Australia and established a home here: she received a bachelor’s equivalent for overseas qualifications so that she could pursue work in Australia; she opened and managed a bank account; she obtained a Victorian driver’s license; her children were enrolled in school and at an early learning centre; she volunteered at her child’s primary school; she commenced an association with a charity; and she participated in numerous chat groups on Facebook;

    ·in late 2016 she returned to Pakistan to visit her ill father and at this time her husband was offered a job in Qatar in the airline industry. She emphasised that this was his dream job and he did not want to lose it, so he accepted the new opportunity and the family moved to Qatar in August 2017;

    ·in May 2017 her first citizenship application was rejected. The delegate refused the application as Ms Kamran had not been lawfully present in Australia for four years prior to making her claim as her subclass 100 visa could not be counted towards this requirement as she was offshore, additionally she did not meet the general residency requirements; and

    ·in August 2019 the family returned to Australia a year and a half into her husband’s appointment in Qatar as she was so distressed by the second refusal of her Australian citizenship and she wanted to demonstrate that she had always intended to reside in Australia.

21. Ms Kamran stressed to the Tribunal that the Department’s defective administration in respect of information provided to her prior to her making her second application for citizenship added to her confusion and compounded her situation. Following the refusal of her first citizenship application, Ms Kamran sought clarification and advice in respect of her next claim. Ms Kamran provided a copy of an email exchange from an officer of the Department of Immigration and Border Protection (as it was then known) dated 28 April 2017, which states in part:

    As the period of 4 years of my permanent residency after I entered in Australia on BC 100 spouse visa, would be completed by August 2017, is it possible for you to hold my application till then and make the decision after that? Unfortunately, I need to make a decision on time of lodgement, so the decision will remain the same on this application.

    If it is not possible, then do I have to apply again in August 2017 with a new application and all the required documents, or my previous application will be resumed? You will need to complete a new form and the new changes will apply but you will have 4 years permanent residency, so it will be ok.

    If I have to apply again with new application then do I have to pay fee again? As far as I am aware, you do not need to pay again as long as you apply within 3 months from eligibility.

    Also, after I make my new application for citizenship in August 2017, should I expect a waiting period for an year or so, as in the case my previous application, or could it be processed sooner? If you send me an email about 4 weeks after you submit your application, I will see what I can do.

22. Ms Kamran stressed to the Tribunal that the rejection of her second citizenship application had caused so much stress between herself and her husband that she had become quite disturbed, claiming she would never have agreed to move to Qatar with her husband if she had realised it would impact her citizenship application so greatly. She stressed that she relied upon the advice given by the Department in lodging her second application and was completely shocked when her second application was rejected. As a result of the second rejection she and her husband had returned to Australia permanently as she was determined to make a life for a family in Australia.

1. Mr Sypott indicated that in accordance with the Act the Minister must not approve a person for Australian citizenship unless they are eligible and meet all the requirements, including the general residency requirement in s 22 of the Act. Part of the requirement for residency is that a person must be in Australia for four years immediately before making an application and that they cannot be absent for a period in excess of 12 months. In other words, an applicant for citizenship must be present in Australia for three out of four years prior to making an application. Mr Sypott explained that, in respect of Ms Kamran’s second application, the relevant period for general residency requirements was from 15 August 2013 to 16 August 2017. Subsequently, Mr Sypott argued that, based on Ms Kamran’s travel movement records for that period, she did not meet the general residency requirements as she was absent from Australia for 1,126 days in the four-year period — slightly over three years.

2. Mr Sypott indicated that as Ms Kamran did not meet the general residency requirements, she must demonstrate a close and continuing association with Australia during this period. He further indicated that even if the Tribunal was satisfied Ms Kamran could demonstrate a close and continuing association with Australia during this period, the Tribunal must be satisfied that it was appropriate to exercise the discretion. Mr Sypott contended that Ms Kamran did not have a close and continuing association with Australia during this relevant period and it was not appropriate for the Tribunal to exercise its discretion.

3. Mr Sypott indicated that Ms Kamran was absent from Australia for approximately three out of four years prior to her application for Australian citizenship, and that she had spent less than one year in Australia when she made her application for citizenship. He indicated that the Tribunal needed to assess her actions in the relevant period and could not base an assessment on her subsequent actions. Mr Sypott indicated that the Tribunal’s determination would not prevent Ms Kamran from making any future application for citizenship.

4. Mr Sypott indicated that the fact that Ms Kamran’s husband and children are Australian citizens weighed in favour of Ms Kamran demonstrating a close and continuous relationship with Australia, and Mr Sypott conceded that the Tribunal should place some weight on this factor. However he contended that the Tribunal could not be satisfied that overall she had a close and continuing relationship with Australia as she did not demonstrate any other factors which may indicate such a relationship. He contended that Ms Kamran:

   ·had not presented any evidence that she had established a home in Australia where she had spent just eight months in 2011, prior to the relevant period;

   ·did not own a home in Australia;

   ·failed to demonstrate that she had migrated to Australia and established a home prior to travelling overseas with her husband, as her evidence in this regard related to the period for October 2016 to 23 August 2017 only;

   ·had no extended family in Australia;

   ·did not have regular return visits to Australia during the relevant period — Ms Kamran only returned to Australia for: two brief periods in August 2013 and February to March 2015, and then for several months between October 2016 and August 2017;

   ·had not demonstrated an intention to reside in Australia as she had left Australia shortly after lodging her application for Australian citizenship and had not returned until after the relevant period;

   ·did not have regular periods of residence in Australia;

   ·had never been employed in Australia and could not meet the requirement for leave from employment;

   ·had never paid income tax in Australia; and

   ·had demonstrated little involvement within the Australian community, beyond her brief period of return in October 2016 — Mr Sypott accepted that Ms Kamran had donated to an Australian charity and volunteered at her child’s school.

5. In response to the Minister’s claims that she did not have a close and continuing association with Australia, Ms Kamran indicated to the Tribunal that she had at all times maintained a close and continuing relationship to Australia through her husband and children who are all Australian citizens. Ms Kamran told the Tribunal that she misunderstood the general residence requirement:

   I thought if I stay with my spouse, that’s period living in Australia. The law that time you spend with Australian spouse outside Australia is considered time in Australia. My misunderstanding, tried to spend time with Australia because I considered that time would be time in Australia wherever I go is with my spouse.

6. Ms Kamran explained that during the qualifying period she had been unable to visit Australia on more occasions because of family and health reasons, including the birth of her children, her father’s illness and the death of her mother-in-law. Ms Kamran further explained that she had been unable to participate in the Australian community whilst overseas as there was no Australian presence in Saudi Arabia. She also contended that it was more difficult to spend time in Australia as it was only a two hour trip to Pakistan from Saud Arabia, which she could manage alone with her two small children, but she could not undertake the 12–14-hour flight to Australia on her own. In this regard, Ms Kamran explained that she had returned to Australia when she could travel with her husband and this was limited owing to his contract and family obligations. Ms Kamran further contended that while she was overseas she had undertaken study and had hoped her overseas qualifications would be recognised in Australia, as again it was always her intention to reside in Australia to raise her children and find work in her profession of pharmacy.

7. Mr Sypott argued Ms Kamran would be unable to demonstrate a relationship with Australia as, at the time of application, she had spent more time with her Australian spouse outside of the country than inside it. He emphasised that while physical presence is not determinative, it is none the less highly relevant to the nature of person’s association with Australia.[2] Mr Sypott argued that while Ms Kamran did have a close and continuing relationship with Australians, her husband and children, she could not demonstrate a close and continuing relationship with Australia. Mr Sypott drew the Tribunal’s attention to the matter of Taher and Minister for Immigration and Border Protection,[3] in which Senior Member Fice stated:

   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.

   I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.[4]

   [2] Ul Haque and Minister Immigration and Citizenship (2013) 139 ALD 376 at [50].

   [3] [2013] AATA 917.

   [4] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47]–[48].

8. Ms Kamran indicated to the Tribunal that it was always her intention to reside in Australia, having arrived here in 2011 to maintain a home and start a family in Australia. She explained that her absences from Australia had been necessitated by her husband’s overseas employment and her desire to maintain the family unit at all times. And that at the end of her husband’s first overseas assignment in Saudi Arabia they had returned to Australia and commenced their lives here. She contended that this had only ceased because her husband had received his dream job in Qatar, and subsequently, the family’s return to Australia is a demonstration that she intends to make Australia her home.

9. Mr Sypott contended that two matters weighed in favour of Ms Kamran’s application, that of her husband and children being Australian citizens, but it was important to look at the substance of the application rather than weighing the matters numerically. He argued that primarily, although her husband and children were citizens, she had not established any close and continuing relationship with Australia — she had not established a home in Australia prior to her absence and had showed no intention of residing in Australia until October 2016 — and that the Tribunal should accord little weight to Ms Kamran’s efforts in October 2016 considering that she left the country shortly after making her second application for citizenship. Mr Sypott further argued that the length of the period outside of Australia was not simply a case of missing two days but an extended period for over three years, and specifically, that Ms Kamran had spent less than one year in Australia and that this was not sufficient for the Tribunal to exercise its discretion in this matter.

   CONCLUSION

10. Having considered all the information before it, the Tribunal finds that Ms Kamran did not have a close and continuing association with Australia, although she did have a close and continuing relationship with Australians (being her husband and children). Ms Kamran’s limited time in Australia during the qualifying period indicated that she had not created a connection to Australia.

11. The Tribunal considers that Ms Kamran has demonstrated an intention to reside in Australia since her return in August 2019 but this could not be considered by the Tribunal in respect of this claim as it was outside the qualification period.

12. In coming to this conclusion the Tribunal considered factors including that: Ms Kamran had no extended family, friends or community ties in Australia; she had not undertaken employment, paid income taxes or owned property in Australia; outside the brief period in Australia between her husband’s overseas employment contracts, she had spent little time residing in Australia; and during the relevant period, she had returned to Pakistan on nine occasions — demonstrating a greater connection to her place of birth rather than a close and continuing association with Australia.

13. The Tribunal was sympathetic to Ms Kamran’s plight of needing to follow her husband while he undertook his employment overseas and her desire to become an Australian citizen, particularly in light of her need to travel back to Pakistan. She expressed to the Tribunal her fear of returning to Pakistan with her children and being unable to readily return to Australia, as it often takes considerable time to be granted a Resident Return Visa. Ms Kamran advised the Tribunal:

    if heart is here in Australia, brain always thinking about sick parents, old-age people have to go there is something happens to say goodbye. If this doesn’t come what will happen, stressed, I have applied twice.

14. The Tribunal was concerned with the misinformation that Ms Kamran had been provided by the Department and the confusion and distress it had caused Ms Kamran. However it is not open to the Tribunal to consider the administrative actions of the Department and, while the email was misleading, it did not mitigate the legislative requirement.

15. The Tribunal finds that Ms Kamran’s short period of residency in Australia did not meet the requirements of s 22 of the Act; nor did her circumstances give rise to the Tribunal finding the she has a close and continuous relationship with Australia, which would warrant the Minister exercising his discretion in accordance with s 22(9)(d) of the Act.

    DECISION

16. The reviewable decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 7 February 2019 to refuse Ms Kamran’s application for Australian citizenship is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

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

Dated: 6 January 2020          

Date of hearing:	15 November 2019
Representative for the Applicant:	Mr Kamran Khalil
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor