Kemmerich and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 2999

Kemmerich and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2999 (23 August 2024)

Division:GENERAL DIVISION

File Number(s):      2024/0483

Re:IBRAHIM OSMAR KEMMERICH   

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President A Younes

Date:23 August 2024

Place:Sydney

The Tribunal affirms the decision under review.

....................................[SGD]....................................

Deputy President A Younes

CATCHWORDS

CITIZENSHIP – Application for conferral of Australian citizenship — general residence requirements — close and continuing association with Australia — CPI 11 — overseas absences — Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Citizenship Procedural Instruction 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (VM-5288)

REASONS FOR DECISION

Deputy President A Younes

23 August 2024

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 15 January 2024 to refuse the approval of the Applicant’s application for Australian citizenship by conferral (the delegate’s decision).

2. The delegate refused the approval on the basis that the Applicant did not satisfy the eligibility criteria for Australian citizenship by conferral because the delegate was not satisfied that the Applicant is not likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia, as contemplated by section 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate also found that the prohibition on approval in section 24(5) of the Act was applicable in the circumstances.

3. On 28 January 2024, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

4. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   RELEVANT LEGISLATION

5. Section 21(2)(g) of the Act provides that:

   (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (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;

6. Section 24(5) of the Act provides that:

   Person not present in Australia

   (5)     If:

   the person is covered by subsection 21(2), (3) or (4); and

   (aa)   the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

   the Minister did not apply subsection 22(9) in relation to the person; and

   the Minister did not apply subsection 22(11) in relation to the person;

   the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

   Citizenship Policy

7. The Australian Citizenship Policy and the Citizenship Procedural Instructions provide guidance to decision-makers regarding interpretation and exercise of power under the Act. As a decision-maker, the Tribunal is required to give regard and apply policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no cogent reasons not to apply the policy.

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

8. Relevantly, the Citizenship Procedural Instruction 11 (CPI 11) provides guidance as follows:[2]

   [2] Ex 9, 205-210.

   Likely to reside or continue to reside in Australia

   The words comprising the phrase 'likely to reside or continue to reside' should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

   ·‘likely’ as probably or apparently going or destined (to do, be, etc.) - in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;

   ·'reside' as to dwell permanently or for a considerable time; have one’s abode for a time - in the context of the requirements of the Act, this means the person's home in which they ordinarily live is in Australia.

   The person's intention to reside in Australia should be investigated if the applicant has indicated they will:

   ·be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas; or

   ·reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.

   Past international movements may also indicate that a person's intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have the ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered in the light of evidence about the person's intended residence.

   If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.

   Likely to maintain a close and continuing association with Australia

   The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

   ·'maintain' as to keep in existence or continuance; preserve; retain;

   ·'close' as near, or near together, in space, time, or relation;

   ·'continuing' as to last or endure;

   ·'association' as the act of associating... connection or combination.

   ·It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.

   BACKGROUND

9. The Applicant is a citizen of Brazil. He first arrived in Australia on 23 March 2017 and left on 6 April 2017. On 10 February 2018, he returned to Australia with his family as the holder of a permanent Skilled Nominated (subclass 190) visa.[3] On 22 September 2021, he was granted a Resident Return (subclass 155/RRV) visa.[4] On 28 September 2021, the Applicant lodged an application for Australian citizenship by conferral.[5]

   [3] Ex 9, 17.

   [4] Ex 9, 17.

   [5] Ex 9, 24-52.

   ISSUE

10. The issue before the Tribunal is whether the Applicant 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.

    MATERIAL

11. The Tribunal has before it the following material:

    ·Submissions of the Applicant and his spouse dated 18 June 2024, (Exhibit 1);

    ·Respondent’s Statement of Facts, Issues and Contentions, filed on 7 August 2024, (Exhibit 2);

    ·Commonwealth Bank (CBA) Shares Statement for 1/7/22 to 30/6/23, filed on 9 August 2024, (Exhibit 3);

    ·Perth Mint Australia Account Statement, filed on 9 August 2024, (Exhibit 4);

    ·CBA Transaction Statement, filed on 9 August 2024, (Exhibit 5);

    ·Westpac Statement for 5/5/2023 to 6/11/2023, filed on 9 August 2024, (Exhibit 6);

    ·CBA Shares Statements for the Applicant’s daughters, for 1/7/22 to 30/6/23, filed on 9 August 2024, (Exhibits 7 and 8);

    ·T Documents, filed on 26 February 2024, (Exhibit 9).

12. On 14 August 2024, the Applicant attended the hearing from Canberra and gave evidence via Microsoft Teams.

    FINDINGS & REASONS

13. The Applicant contends that he is likely to reside in Australia and maintain a close and continuing association. The Respondent argues that the available information does not support the Applicant’s contentions.

14. In the course of the hearing, the Applicant explained that the family came to Australia to settle but his wife had difficulties in finding work in Australia so she left Australia in early 2020 for a significant role in the USA. He stated that she has a contract until May 2025 but she does not wish to extend that contract. He joined his wife and daughters in the USA at the end of November 2021. The wife’s parents live in the USA.

15. The Applicant gave evidence that the family intends to return to Australia around May 2025. He stated that their two daughters aged 10 and 17 who are American citizens intend to return to continue their studies in Australia.

16. The Tribunal discussed with the Applicant the documents provided in support of his application, namely Exhibits 3-8. The Applicant pointed out that the documents show that he has made regular payments to cover health insurance and storage for their furniture in Australia. Although and as pointed out, the CBA Statement[6] does not specifically show regular payments to health insurance and/or storage, the document shows that regular payments have been made to entities which the Applicant confirmed to be storage and health insurance providers. In this regard, the Tribunal accepts the Applicant’s evidence that the Applicant has continued to pay for furniture storage, and health insurance.

    [6] Ex 5.

17. The Applicant confirmed that apart from furniture, the family does not have any other property in Australia. The Applicant gave evidence that he considers Australia home and that he only went to the USA to support his wife.

18. The Tribunal accepts on the evidence that the Applicant has financial connections with Australia, including bank/shares accounts, but this needs to be considered on the basis of the cumulative evidence. Although the reasons for the Applicant’s departure from Australia to the USA have some basis, the fact is at the time of the delegate’s decision of 15 January 2024, the Applicant was outside of Australia for about 792 days, having departed on 10 November 2021. He has only returned to Australia recently but is intending to return to the USA.

19. It is also noteworthy that in the application for citizenship by conferral, the Applicant indicated that he is proposing to travel overseas to visit his family for six months departing on 15 October 2021.[7] However, he has only returned recently and temporarily. The Applicant departed Australia after lodging his citizenship application without attending a citizenship test appointment and passing the citizenship test.[8]

    [7] Ex 9, 41.

    [8] Ex 9, 19.

20. As mentioned in the delegate’s decision record, on 21 November 2023, the Department requested from the Applicant information about when he would be returning to Australia and evidence of his intention to reside in Australia. He was given 28 days to respond, but he did not respond within the required timeframe.[9]

    [9] Ex 9, 19.

21. The Tribunal has taken into account the fact that the Applicant has been granted the RRV, which is evidence that the Applicant may return to Australia, the grant does not demonstrate that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia.

22. The Applicant does not reside in Australia. Although he has maintained some connections with Australia, including financial, the Tribunal is not satisfied that the totality of the evidence demonstrates to the required level of satisfaction, that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. On the evidence, the Tribunal is satisfied that it is possible rather than probable that the Applicant would reside in Australia.

23. For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the application Australian for citizenship by conferral. In light of that finding, the Tribunal does not need to address whether section 24(5) of the Act is met.

24. On the cumulative evidence, the Tribunal finds that the correct and preferable decision is to refuse the approval of the application for Australian citizenship by conferral.

    DECISION

25. The Tribunal affirms the decision under review.

26.     I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes.

...................................[SGD].................................

Associate
Dated: 23 August 2024

Date(s) of hearing:	14 August 2024
For the Applicant:	By Video
Solicitors for the Respondent:	Ms L Taylor, Minter Ellison