Kaur and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2661
•14 December 2017
Kaur and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2661 (14 December 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5522
Re:Gurmeet Kaur
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:14 December 2017
Place:Melbourne
The Tribunal sets aside the decision under review and finds that the Applicant satisfies all of the requirements set out in s. 22 (9) of the Australian Citizenship Act 2007. This matter is remitted to the original decision-maker for the purpose of determining the Applicant's eligibility for conferral of Australian citizenship.
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Egon Fice, Senior Member
CITIZENSHIP – application for Australia citizenship by conferral – where Applicant does not meet the general or special residence requirements – exercise of Ministerial discretion under s. 22(9) – periods of absence treated as periods when the person was present in Australia as a resident – likely to reside in or maintain a close and continuing association with Australia – set aside, substituted and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Secondary Materials
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Revised Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Egon Fice, Senior Member
14 December 2017
1. Ms Kaur is a Malaysian citizen presently residing in the United Arab Emirates (UAE). Ms Kaur first arrived in Australia in 1991 on a Temporary Student Visa. She was granted a permanent Partner (subclass 100) Visa on 12 June 1999. Ms Kaur has held four subsequent permanent Resident Return (subclass 155) Visas, her current visa having been granted on 10 June 2016 while she was in Dubai. She is married to an Australian citizen and both of her children are Australian citizens.
2. On 4 May 2015 Ms Kaur lodged an application for Australian citizenship by conferral pursuant to s. 21 of the Australian Citizenship Act 2007 (the Citizenship Act). In a letter dated 19 September 2016 the Department of Immigration and Border Protection (DIBP) informed Ms Kaur that her Australian citizenship application had been refused. The reason for refusal was that Ms Kaur did not, at the time she made her application, meet the general eligibility requirement set out in s. 21(2)(c) of the Citizenship Act which requires an applicant to satisfy either the general residence requirement in s. 22 or the special residence requirement in s. 22A or 22B. The defence service requirement does not apply to her. In addition to meeting the eligibility requirements, an applicant for citizenship must satisfy the Minister that they are 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)).
3. On 14 October 2016 Ms Kaur lodged an application with the Tribunal seeking review of the DIBP decision to refuse her citizenship application. The issues I am required to determine are:
(a)whether Ms Kaur meets the general residence requirement in s. 22 for the grant of an Australian citizenship;
(b)if the answer to (a) is in the negative, whether the Ministerial discretion found in s. 22(9) should be exercised such that periods of absence are treated as periods when the person was present in Australia as a permanent resident; and
(c)if the answer to (b) is in the affirmative, whether Ms Kaur is likely to reside or to continue to reside in Australia, or to maintain a close and continuing association with Australia if her application were approved.
GENERAL RESIDENCE REQUIREMENT FOR CITIZENSHIP
4. Section 22(1) of the Citizenship Act sets out the general residence requirement. It provides:
(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.
5. The general requirement is ameliorated to some extent by an allowance for overseas absences. Section 22(1A) and (1B) provide:
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person may be 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.
6. Ms Kaur first came to Australia on a student visa, having been awarded a scholarship by the Australian Government in 1990. She studied at Monash University between 1991 and 1996, completing Bachelor of Economics and Bachelor of Laws (Hons) degrees. She returned to Malaysia between 1996 and 1997. Ms Kaur came back to Australia in March 1997 for a short holiday and the conferral of her degrees. She returned to live permanently in Australia at the end of 1997. Ms Kaur was granted a permanent visa in June 1999.
Ms Kaur and her husband, who she married in 1997, resided and worked in Australia until both were offered employment in Dubai in 2007. They moved to Dubai in August 2007, planning to be there until 2015 and then to return to Melbourne when their eldest child commenced Year 9 schooling. Both children were enrolled at Xavier College in Melbourne. However, rather than return to Australia and disrupt their eldest child’s studies, they decided to remain in Dubai until the eldest child was to commence tertiary education. They then plan to move back to Australia, which should be in 2020.
8. While Ms Kaur has spent considerable time residing and working in Australia, for the purposes of her citizenship application, it is the four years immediately before the date her application for citizenship was made that counts for the purposes of the general residence requirement. Her application for citizenship was made on 4 May 2015. DIBP calculated that in the four-year period immediately preceding her application date, Ms Kaur was absent from Australia for 1429 days, being present in Australia for a total of 32 days. Clearly, she had exceeded the 12 month allowable absence. In the 12 month period prior to lodgement of her application for citizenship, Ms Kaur was absent from Australia for 357 days, being present in Australia for a total of 8 days.
MINISTERIAL DISCRETION REGARDING SPOUSE OF AUSTRALIAN CITIZEN
9.
Plainly, Ms Kaur does not meet the general residence requirement set out in s. 22(1) of the Citizenship Act. That is why Ms Kaur now seeks to rely on the Ministerial discretion which may be applied to a spouse of an Australian citizen. That discretion is found in
s. 22(9) of the Citizenship Act which provides:
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.
10. There was no issue that the requirements in subsections (a), (b) and (c) were satisfied at the relevant time. The only question remaining is whether Ms Kaur had a close and continuing association with Australia during that period.
11. For the purposes of guidance in determining this question, DIBP has developed a Citizenship Policy which covers citizenship by conferral (Chapter 7). It has now long been accepted that, providing policy is consistent with the relevant statute, it can and probably should provide guidance to decision-makers, particularly in circumstances where the decision-maker must exercise discretion. This was articulated by Brennan J (in his role as President of the Tribunal) in Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 where his Honour said, at 639 – 640:
The Minister and each presidential member may perceive Australia’s interest differently and may differ in their perception of the way in which offending conduct adversely affects those interests. Such differences will lead to inconsistency in making decisions.
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.
…
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy…
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created… His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.
12. According to the Citizenship Policy, factors which may demonstrate a 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 relationshp with Australian citizen spouse or de facto partner;
·extended family in Australia;
·regular return visits to Australia;
·regular periods of residence 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-years; and
·evidence of active participation in Australian community based activities or organisations.
13. Following the above factors, set out in the Citizenship Policy is the following statement:
In assessing whether a person has a close and continuing association with Australia for the purposes of s. 22(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.
14. There is, understandably, a significant emphasis placed on physical presence in Australia in order for a person to be eligible for Australian citizenship. This was explained in the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) under Clause 22 Residence requirement, which states:
The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.
In addition, it is important to note that Australian citizenship is a privilege not a right.
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.
15. Ms Kaur lodged with the Tribunal a Statutory Declaration which was taken into evidence. It sets out, in significant detail, her and her family’s relationship with Australia. She also attended the hearing and gave oral evidence.
16. The first point of some importance is that Ms Kaur has resided in Australia for a substantial period of time, even though that residence period falls outside the four years assessed under s. 22 of the Citizenship Act. She first came to Australia in 1991 to complete tertiary studies. She completed those studies in 1996, having spent some six years residing in Australia. She then went to Malaysia for a period of less than 12 months, returning to Australia in March 1997 for a short stay. Ms Kaur’s evidence was that she lived in the halls of residence at Monash University and was a tutor for a number of years. That involved mentoring, guiding students and helping with the administration of the halls of residence and its activities. She said she was a member of the Law Student Society, the bushwalking club and actively participated in university life with friends from Australia and overseas. Towards the end of her studies, Ms Kaur completed summer clerkships with the legal firms Arthur Robinson & Hedderwicks and Freehill Hollingdale & Page. She was an active member of the Victorian Sikh Association and played netball and hockey for that organisation including various interstate games. She also participated in the cultural activities of the Association.
17. Following graduation, when Ms Kaur had conferred on her the degree of Bachelor of Economics and the Honours Degree of Bachelor of Laws, she was admitted to practice as a Barrister and Solicitor in the Supreme Court of Victoria on 7 April 1999 and the High Court of Australia on 18 August 2000.
18. Ms Kaur was employed by Arthur Robinson & Hedderwicks in early 1998 where she completed articles and then continued to be employed as a solicitor, leaving that firm at the end of 2004 as a Senior Associate. She was then employed by the legal practice Mallesons Stephen Jacques as a Senior Associate where she remained until 2007. Ms Kaur also completed post-graduate studies and was admitted to the degree of Master of Construction Law in August 2008. Therefore, allowing for a break of approximately 12 months after Ms Kaur completed her undergraduate studies, she has resided in Australia for a continuous period of approximately 14 years. For a period of about eight years, she held a permanent resident visa.
19. Obviously, as an employee of several legal firms, she paid tax and contributed to the Australian economy.
20. Ms Kaur’s husband is an Australian citizen and they have been married since 1997. Their two children were born in Australia and are Australian citizens. Ms Kaur has parents and an older sister in Malaysia. She has significant extended family in Australia, most of them being Australian citizens and some permanent residents. She annexed to her Statutory Declaration a list of 61 such persons. Ms Kaur’s husband, her husband’s parents, brothers and sister and their children are all Australian citizens. Her younger sister came to Australia in 2004 and married an Australian citizen.
21. Since moving to Dubai in 2007, Ms Kaur pointed out that she has had limited opportunity to return to Australia and her visits, necessarily, have been short. Since lodging her application in May 2015, she has returned to Australia on three occasions. Her work commitments prevent her from taking an extended holiday to meet the residence requirements in Australia. She explained that in Dubai, the school and education Department has strict policies on attendance where children are only able to take holidays during the school holiday periods. She said she and her husband attempt to arrange holidays over the school holiday periods where possible. A further restriction is imposed by her employment and she has an arrangement with a colleague whereby they take turns to take leave over the Christmas period. Christmas is not a holiday period in Dubai and otherwise, she would be expected to be at work. Ms Kaur also pointed out that her employer provides her with an airline ticket on an annual basis to return to her home country. Her home country, for the purposes of obtaining that air ticket from her employer, is Australia and not Malaysia or elsewhere. In fact, Ms Kaur testified that since leaving Malaysia in 1991, she has not returned to that country for any significant period of time other than short visits, particularly to see her elderly parents. She said she did not have strong ties with Malaysia or Dubai. In fact, she noted that she had spent less time in Malaysia than she had in Australia since she and her family have resided in Dubai.
22. Ms Kaur and her husband purchased what they describe as their family home in Blackburn in 2001. In fact the title is in her name. They also purchased a block of land at Rye in 1998 where they intend to build a holiday home. That has not yet commenced although they have arranged credit from the Westpac bank and engaged a designer, starting the planning application process in 2016. In 2002 Ms Kaur and her husband carried out significant renovations to their Blackburn home, effectively doubling the size of that dwelling. The renovations were completed in July 2007 prior to their departure for Dubai. That home is currently being rented out; the rental being managed by an agent. They do not own property in Dubai.
23. Ms Kaur has maintained financial connections with Australia, having a superannuation account, Australian shares and bank accounts with significant sums of money invested. Ms Kaur said that she left the money in the Australian superannuation account because she intended to return to reside in Australia. She does not have superannuation in Malaysia which she took when she left Malaysia in 1997. She has no superannuation in Dubai. She continues to pay Australian tax as a result of receiving income from the rental property. She is also required to pay land tax in relation to that property.
24. Ms Kaur testified that she has maintained a close and continuing association with family and friends in Melbourne since moving to Dubai. A large number of her colleagues, also lawyers, had moved from Australia and were working with DLA Piper, an international law firm with a presence in Dubai. She had previously been employed by DLA Piper. Ms Kaur and her husband are active members of the Australian Business Council in Dubai. They organise a number of events, including a function for the Melbourne Cup which she has attended. She has no such association with any entity in Malaysia. Her children and husband have never lived in Malaysia, only visiting for short holidays. Ms Kaur said she remained in touch with family and friends by phone, email, Skype and Whatsapp. On her return to Australia she has participated in events over Christmas and New Year, or gone to see the fireworks display in the city with her children and relatives. She has also caught up with ex-colleagues in Melbourne when possible.
25. Ms Kaur explained that Dubai is a transient place and they never intended to stay there permanently. They rent accommodation in Dubai and the lease is renewed from year to year. While it would have been more economical to purchase property rather than to pay rent, they have chosen not to do so because of their intention to return to Australia. Her work visa in Dubai is valid for a period of two years and requires regular renewal. It is not possible to obtain permanent residency or citizenship status in Dubai.
26. Ms Kaur and her husband are particularly concerned with the education of their two children. That is the principal reason why they intend to return to reside in Australia. When their eldest child is ready to attend university, because there are no well-regarded universities in Dubai and they believe the quality of education is not up to Australian standards, they must return to Australia. Furthermore, children over the age of 18 years cannot continue to be sponsored by their parents and therefore will need to leave Dubai unless sponsored by an employee or they continue to study in Dubai. Ms Kaur said those are not options which they find attractive. She currently sponsors both of her children to live in Dubai. The youngest child will then attend the Xavier College in Melbourne for years 10, 11 and 12. Both children are apparently excellent sportsmen and keen cricketers. There are no equivalent opportunities for them in that field should they remain in Dubai.
27. Ms Kaur also explained and provided evidence that she had maintained her Victorian Practising Certificate as an Australian lawyer while in Dubai. That has involved some expense and compliance with professional development obligations each year. She has not renewed her Malaysia practising certificate.
28. I also had in evidence a Statutory Declaration made by Mr James Forrest, currently a partner in the legal firm King & Wood Mallesons. Mr Forrest testified that he had been a partner with that firm since 1998. Ms Kaur was a senior member of his workgroup and was the lead lawyer on a number of major transactions while at the firm. Mr Forrest said he had remained in contact with Ms Kaur during her regular visits to Australia. Mr Forrest had maintained contact with Ms Kaur as he has always held the view that her time in Dubai would not be permanent and she would return to Australia. He said that he had discussions with Ms Kaur regarding her return to the legal firm on her return to Melbourne. Although, in the course of cross-examination, Mr Forrest indicated that nothing had yet been determined as there was some time before that decision would be taken. Mr Forrest said he was aware that Ms Kaur is very close to her Australia based family and that he and Ms Kaur have regularly discussed her return to Australia, both for her family and to continue her career.
29. I also had in evidence Statutory Declarations made by various family members and, while I do not wish to be seen to be simply disregarding that evidence, it does not add anything further than what I have already exposed above.
30. While it is undoubtedly correct to say that Ms Kaur has not spent anywhere near the requisite residence time in Australia in the four years immediately preceding her application for citizenship, I find the reasons why that is the case and the evidence regarding her intention to return to Australia provide a compelling case for the exercise of the Ministerial discretion in s. 22(9) of the Citizenship Act. If the intention of meeting the residence requirement is so that persons become familiar with the Australian way of life and to appreciate the commitment they are required to make to become citizens, the 14 years of residence in Australia have equipped Ms Kaur well.
31. As far as the factors set out in the Citizenship Policy are concerned, it is fair to say that Ms Kaur has addressed each of those factors in a positive and relatively understated way. In fact it appears to me to be entirely desirable that she and her family return to Australia given her strong legal qualifications, including her post-graduate qualification in Construction Law. Along with her undoubted experience obtained while in Dubai, I can understand why a top-tier legal firm in Australia would be keen to re-engage her services. Furthermore, Ms Kaur has maintained strong connections, not only with her Australian family, but also work colleagues.
32. I find that the evidence strongly supports Ms Kaur’s claim that the Minister should treat the period which she has been outside of Australia as one in which she was present in Australia as a permanent resident.
LIKELY TO RESIDE OR TO CONTINUE TO RESIDE IN AUSTRALIA IF APPLICATION APPROVED
33. The evidence to which I have referred above points strongly to the contention made by Ms Kaur that she is likely to reside in Australia if her application were approved. It also points to the fact that she is likely to maintain a close and continuing association with Australia until such time as she and her family return in 2020, as is currently their plan.
34. The evidence which supports this contention is that her two children will need to return to Australia if they wish to pursue tertiary education. That is certainly the evidence regarding the eldest child. In addition, Ms Kaur has not only retained connections with Australia and her extended family in Australia, she has also maintained a place to live and financial support by way of bank accounts, superannuation account and investments to enable a return at relatively short notice. Ms Kaur has also retained a practising certificate enabling her to practice as a lawyer in Victoria upon return and she has maintained contact with a former employer who has testified that the possibility of her returning to that firm would be a desirable outcome from the firm’s perspective. She has no such support mechanisms in her home country of Malaysia and has expressed no desire to return to reside in that country.
CONCLUSION
35. There was no dispute that Ms Kaur did not meet the general residence requirement set out in s. 22 of the Citizenship Act. In fact she accepted that she fell far short of the statutory requirements to reside in Australia in the four-year period prior to making her application for citizenship. However, Ms Kaur claimed that the Ministerial discretion applicable to a spouse of an Australian citizen provided for in s. 22(9) should be applied to her.
36. I have found that Ms Kaur meets all of the requirements for the exercise of the Ministerial discretion. In the relevant period she was a spouse of an Australian citizen; she was not present in Australia; she was a permanent resident of Australia; and I have found that she had a close and continuing association with Australia. Furthermore, given the circumstances in which Ms Kaur was outside of Australia, where she was able to gain valuable experience in large-scale construction projects thus utilising her post-graduate Construction Law qualification, her experience and legal training would be a valuable asset to Australia in the future. I have accepted her explanation of the reason she has not been able to return to Australia to meet the general residence requirement.
37. I also find that the evidence that Ms Kaur and her family are likely to reside in Australia and, in the interim, maintain a close and continuing association with Australia, is compelling.
38. It follows I find that the decision made by a delegate of the Minister on 19 September 2016 refusing Ms Kaur’s application for Australian citizenship by conferral was not the preferable decision. I set aside that decision and in substitution determine that in exercising the Ministerial discretion in s. 22(9) of the Citizenship Act, Ms Kaur is deemed to have been present in Australia as a permanent resident for the period she has spent outside Australia working in Dubai.
39. While I am aware that there are restrictions regarding the approval of persons becoming an Australian citizen at a time when the person is not present in Australia (s. 24(5)), that provision does not apply to Ms Kaur as I have found that s. 22 (9) applies to her.
40. Because there are a number of other eligibility requirements which have not yet been assessed (ss. 21(2A), 21(2)(g), 24(3), 24(4), 24(4A)(a), 24(4A)(b), 24(6) and 24(7)), I remit this matter to the Department for further determination of the eligibility requirements for the grant of Australian citizenship, taking into account the findings I have made herein.
41.
42. I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
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Associate
Dated: 14 December 2017
Date of hearing: 2 August 2017 Counsel for the Applicant: Mr G. Gilbert Solicitors for the Applicant: Carina Ford Immigration Lawyers Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore Lawyers
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