Khan and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 284
•4 May 2016
Khan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 284 (4 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3332
Re
Benazir KHAN
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 4 May 2016 Place Canberra The decision under review is affirmed.
........................[sgd]...............................................................
Deputy President Gary Humphries
CATCHWORDS
CITIZENSHIP – citizenship by conferral – residence requirement – consideration of discretion in section 22(9) – whether Applicant had a close and continuing association with Australia during periods of absence – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
Nguyen and Minister for Immigration and Border Protection [2014] AATA 945
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tan and Minister for Immigration and Citizenship [2011] AATA 877Torres and Minister for Immigration and Border Protection [2015] AATA 729
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
4 May 2016
Mrs Benazir Khan is a Pakistani citizen who is married to Mr Adnan Khan, an Australian citizen. They have been married for 12 years and have two children, both Australian citizens. Mrs Khan is pregnant with their third child. Mr Khan holds a position with a subsidiary of Emirates Airlines, as a result of which the family lives in Dubai in the United Arab Emirates (UAE).
On 5 January 2015 Mrs Khan, during a visit to Australia, lodged an application for conferral of Australian citizenship. She returned to the UAE shortly thereafter. On 17 June 2015 the Minister’s delegate refused her application for citizenship on the basis that she did not satisfy paragraphs 21(2)(c) and (g) of the Australian Citizenship Act 2007 (the Act). On 6 July 2015 Mrs Khan applied to the Tribunal for review of this decision of the Minister’s delegate.
Mrs Khan appeared via teleconference at the hearing on 11 March 2016. She and her husband gave evidence.
The applicable statutory law
The provisions of the Act tightly control the circumstances for conferral of Australian citizenship. It is evident from the scheme of the legislation, for example, that marriage to an Australian citizen, or being the parent of Australian citizens, does not confer an automatic entitlement to citizenship. Indeed, the legislation is structured such that it does not confer on the Minister a discretion to grant citizenship but rather forbids him or her to approve citizenship unless an applicant meets key criteria in the legislation. Thus s 24(5) provides:
Person not present in Australia
If:
(a) 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
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) 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.
The general requirements for establishing eligibility for a grant of Australian citizenship are set out in s 21. Section 21(2) 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.
The general residence requirement referred to in s 21(2)(c) is defined in s 22(1):
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.
The requirement in this section for an applicant to have been present in Australia for four years, and a permanent resident for 12 months, prior to the making of the application, is ameliorated by subsections (1A) and (1B); these provisions deem a person to have been present in Australia during certain periods of absence. However, these provisions do not apply in Mrs Khan’s case because her absences exceed the periods referred to in the subsections.
Section 22(9) confers a discretion on the Minister which is available to spouses and de facto partners of Australian citizens:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
The requirement to satisfy the Minister (or in this case, the Tribunal) of a close and continuing association with Australia during a period of absence is a pre-requisite for the exercise of the discretion in s 22(9); it is also an alternative ground for the grant of citizenship in general, pursuant to s 21(2)(g).
Guidance in the exercise of the discretion in s 22(9) is provided by the Australian Citizenship Instructions, to which the Tribunal should have regard: Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645. Paragraph 5.18 of the Instructions provides:
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), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
The issues before the Tribunal
Mrs Khan conceded that she did not satisfy the general residence requirement in s 21(2)(c); she argued however that she qualified under the provisions of s 22(9). Accordingly, the issue before the Tribunal is whether Mrs Khan can establish that she had a close and continuing association with Australia in the four years prior to her application for citizenship. If she does not meet this test, her application for citizenship must be refused, as she is not presently in Australia: s 24(5). None of the other exemptions to the general residence requirement under s 22 appear to be available to Mrs Khan.
The Minister submitted that Mrs Khan did not meet the test in s 21(2)(g), in that she does not satisfy the requirement that she is likely to reside in Australia or maintain a close and continuing association with Australia if granted citizenship. The Tribunal only need consider that argument if it finds that she had the requisite close and continuing association with Australia during the relevant period under s 22(9).
Mrs Khan’s circumstances
Since marrying Mr Khan in Pakistan in July 2003, Mrs Khan has made eight visits to Australia, the longest for 184 days in 2005 and the shortest for nine days in 2004. In the relevant four-year period immediately before she made her application for citizenship (see s 22(1)), Mrs Khan was absent from Australia for a total of 1403 days and present for 58 days.
Mrs Khan emphasised that she is married to an Australian and has two Australian citizens as children. She told the Tribunal that she was now pregnant with her third child, but that the pregnancy to date had been complicated. Her connections with Pakistan, where she was born, were now minimal after the death of her parents and it was the strong intention of her family to move back to Australia. In her application for citizenship she indicated that the timeframe for this move could be in a few years; before the Tribunal, she gave evidence that she expected that period to be in the order of about a year, possibly less.
Mrs Khan pointed to a number of facts which she says support the contention that she has maintained a close and continuing association with Australia during the relevant four-year period. They include:
(a)Prior to the relevant four-year period, Mrs Khan lived in Australia, established a home in Canberra, and was employed and paid taxes in Australia. She also registered her then pregnancy with a hospital and enrolled her daughter in a nursery for the forthcoming term.
(b)Her 12 year marriage to her Australian husband.
(c)A network of friends in Australia, some of whom provided statements to the Tribunal in support of her application.
(d)Regular return visits to Australia since 2004.
(e)Coursework she had undertaken to convert her UK legal qualifications so as to practice as a solicitor in Australia.
(f)The purchase of an apartment in Brisbane, as either an investment or possibly a family home.
(g)The making of superannuation contributions and the payment of income tax in Australia.
(h)The transfer of funds to her bank account in Australia.
(i)Participation in the activities of the Australian Business Council in the UAE, and contact with Australian expatriates living there.
Mrs Khan submitted to the Tribunal that the depositing of funds in Australia and the purchasing of a property in Brisbane was in accordance with our plan to gradually shift all our assets to Australia and establish Australia as a permanent home.
Mrs Khan has not lived in Australia since July 2006. In the intervening decade she and her family have lived in the United Kingdom and in Dubai. In the four-year period prior to her application for citizenship, she has twice returned to Australia. On the first occasion, in April 2011, she told the Tribunal she came with the intention of living here permanently. Her husband was applying for positions in Australia at that time. However, she and her family left Australia the following month after her husband was offered a position in Dubai. Before departing, she obtained a resident return visa. Her second visit was from December 2014 to January 2015, for a holiday during which she lodged her application for conferral of Australian citizenship. She cited cost, and the age of her children, as reasons for not making any other visits to Australia during this period. She has visited Pakistan annually or biennially in the last 10 years.
Mrs Khan and her family have purchased three properties in Dubai between 2011 and 2015, two investment properties and a family home worth approximately AU$3 million. She told the Tribunal that such investments were sometimes more financially attractive than in Australia; both her and her husband’s incomes in Dubai were free of income tax.
Consideration
Having visited Australia only twice in the last four years, amounting to just 64 days, Mrs Khan immediately faces the difficulty that she cannot meet the chief indicator used in the legislation to demonstrate a connection with Australia. Clearly, she needs to rely on other evidence to establish this connection.
The Tribunal accepts that some of the factors referred to in paragraph 5.18 of the Australian Citizenship Instructions assist her contention. Those include that she has children who are Australian citizens, that she is in a long-term relationship with an Australian citizen spouse and that she owns property in Australia. Her involvement with the Australian Business Council in the UAE and her commencing (but not completing) of the necessary steps to be legally qualified to practice in Australia add some weight to those factors. The Tribunal considers, however, that most of the factors referred to in paragraph 5.18 do not assist her. With respect to the first criterion, there is some evidence that she migrated to an established home in Australia prior to the period overseas, but the period in which she resided in her Australian home in Canberra was very short – a matter of a few weeks – and this home was only a rental property. Likewise, taxes paid and superannuation contributions made during the last four years appear to have been quite minimal.
Evidence was submitted of Mrs Khan’s ongoing friendship with a number of Australian citizens in Australia. The Tribunal accepts that these relationships have been maintained in the relevant period but notes that an association with Australians is not necessarily to be equated to an association with Australia: Nguyen and Minister for Immigration and Border Protection [2014] AATA 945 at [57].
The evidence regarding her intention to reside in Australia appears somewhat mixed. The Tribunal accepts that she (and her husband) do hold that intention, but the Tribunal is not persuaded that she is likely to reside in Australia in the near future. Emphasis was placed by her and her husband on the financial advantages for the family to be obtained by living overseas; the Tribunal does not discern that these advantages have receded in significance in the circumstances where Mrs Khan wishes to demonstrate an intention to reside in Australia as a ground of obtaining citizenship.
In Torres and Minister for Immigration and Border Protection [2015] AATA 729 Deputy President Tamberlin considered whether an applicant for citizenship satisfied the requirements in s 21(2)(g). In finding that the applicant was not likely to reside in Australia, the Tribunal commented at [18] – [19]:
The applicant has not committed himself to any specific or definite plan to return to Australia. In particular the applicant does not have a citizen spouse or de facto partner nor are his children Australian citizens. He does not have any extended family in Australia and has not made any significant return visits to Australia since leaving although he had previously resided in Australia with his family for approximately four years. I am satisfied that subjectively both he and his wife would like to reside in Australia and that at some indefinite time in the future they intend to return to Australia from the United States where they presently residing. However this general intention is not backed up by any significant or substantial present plan of employment or his ownership of significant assets or property in Australia. He has some bank accounts and superannuation assets here. He and his wife have left Australia and remained overseas for a considerable time. They have no doubt established contacts and attachments to the United States since their departure. There is no employment arrangement in place in Australia or proposal to acquire property or to reside in any particular part of Australia. When they completed their outgoing passenger cards for the United States they indicated an intention to remain outside Australia for three years which is a significant period outside Australia.
The evidence provided by the applicant is not sufficient to establish a sufficiently specific or close connection, intention or likelihood of residence is in Australia to satisfy the requirements of the Act and the Instructions. A generalised wish or desire to reside in Australia because it is an agreeable place to live which might materialise over the next year or so, is not in my view enough to establish the required degree of connection. Over the next year it is reasonably foreseeable that there is a prospect of the applicant remaining in the United States and obtaining further expertise and training. The applicant is currently residing in the United States on a 12 month contract and a temporary worker visa. The applicant sees this is a great opportunity and his intention is to learn everything you can from his work in “Silicon Valley”. Although the applicant states that he has a general intention to use his United States experience to establish an enterprise in Australia, there are no specific plans, financial arrangements or proposals presently on foot to implement this intention.
The Tribunal notes the evidentiary requirements of ss 21(2)(g) and 22(9) overlap considerably.
The Tribunal also notes that most of the activity said to demonstrate a close and continuing association with Australia has occurred only in the last year of the relevant four-year period. In the preceding three years, Mrs Khan visited Australia only once, owned no property here, paid no income tax here and had little money in any Australian bank accounts. The steps taken in the last year of the relevant period – including purchasing an Australian property, contributing minor amounts to her superannuation fund and attending some expatriate events in Dubai – bear the hallmarks of actions designed to prime her application for citizenship.
She placed great weight on being married to an Australian citizen and having two Australian citizen children (and being pregnant with a third). Notwithstanding that such relationships are referred to in paragraph 5.18 as being relevant, the Tribunal notes the comments of Senior Member Fice in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47] - [48]:
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.
The Tribunal as presently constituted notes that the period Mrs Khan was present in Australia out of the last four years is considerably shorter than the 168-day period in issue in Taher.
Similarly in Tan and Minister for Immigration and Citizenship [2011] AATA 877 Deputy President Handley observed (at [27]):
The major stumbling block for Ms Tan is the very limited time she has spent in Australia. It is not unreasonable to expect that a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by at least residing here for an extended period, even if the period falls short of the general residence requirement in s 22(1), and provided there are other factors indicating a close and continuing association. The Instructions suggest, not unreasonably, that a period of less than 365 days should be considered less favourably. In Ms Tan’s case, the time she has spent in Australia – 60 days in the relevant four‑year period – falls far short of this.
This and other cases previously considered by the Tribunal make it abundantly clear that the factors demonstrating a close and continuing association with Australia must be very strong if they are to offset a relatively short period of residence in Australia. It seems in the present instance that the factors cited by Mrs Khan do not meet that high threshold.
Mrs Khan contends that she and her family have been absent from Australia for almost all of the last four years for sound and defensible financial reasons. She further suggested that the intent of the legislation must be that an applicant married to an Australian citizen, and with children who are Australian citizens, is entitled to citizenship, and that the ministerial discretions conferred by ss 21(2)(g) and 22(9) must be intended to envisage a person such as herself who does not meet the objective requirements of ss 21 and 22 but whose close integration into a family of Australian citizens creates (at the risk of putting words in her mouth) a presumption in favour of citizenship.
With respect, I do not think this is the schema of the relevant sections of the Act. If the legislation had intended that a person integrated into a family of Australian citizens should have to meet a lower threshold than others accessing citizenship via ss 21 and 22, it would have said so expressly.
The fact remains that Mrs Khan and her family made a choice some years ago to pursue greater financial security by remaining overseas with Mr Khan as he pursued well remunerated work in Britain and the UAE. By making that choice, Mrs Khan necessarily made it more difficult for herself to satisfy the requirements of the Act for Australian citizenship. There is no indication, in my opinion, that the Act is designed to create an exception to the usual criteria for citizenship in the case of a person in Mrs Khan’s position. Evidently, even the spouses of Australian citizens need to show a close personal connection with Australia to qualify for citizenship; that connection is most commonly demonstrated by residing here, but can also be demonstrated by other acts by an applicant which exhibit a close and continuing association with the country during an extended absence. That connection is not demonstrated by the mere fact of marriage to an Australian. The Act clearly places considerable weight on the time that an applicant spends in Australia. Accordingly, the longer the absence, the stronger those indicia of connection with Australia will need to be to satisfy a decision-maker of the applicant’s close and continuing association.
The acts which Mrs Khan points to in this case do not meet that high evidentiary threshold. They demonstrate that Mrs Khan has a general intention to return to Australia with her family in the short to medium term, and has made some financial arrangements consistent with that intention. That predisposition and preparation to return is not the equivalent to her showing a close and continuing association with Australia during her lengthy absence. The bar is a high one, and intentionally so.
Mrs Khan observed several times during the hearing that her family’s decision to remain overseas, and to invest surplus funds in places other than Australia, were sound decisions from the point of view of her family’s financial security. The Tribunal would not demur from that conclusion. She went on to suggest that such decisions constituted a good reason why she was unable to meet the residency requirements in the Act, and why therefore the discretion in the Act should be exercised in her favour. The Tribunal does not agree that seeking financial advantage constitutes a ground for the exercise of the discretion. It can see nothing in the Act to support such a contention.
Mrs Khan has highlighted her fear that, without a grant of citizenship, she may be placed in a position where she may be unable to travel with her Australian family to Australia and then returned to Dubai (or go elsewhere) if her resident return visa expires and is not renewed. From evidence led by the Minister’s representative it appears that there are options open to Mrs Khan to obtain a subclass 155 or 157 visa allowing her to return to Australia with her family and leave again. It appears to the Tribunal that it is more likely than not that she would be able to obtain the benefit of such a visa if her family returned to live here. But even if it could be demonstrated that she was unlikely to obtain a suitable visa in these circumstances, nothing in the relevant provisions dealing with citizenship allows the Tribunal to take such considerations into account. In any event, as a permanent resident she has the right to reside in Australia.
Mr Khan, in his evidence, referred to the political instability of the region in which his family lived, and the need to be able to return quickly to Australia with his family in the event of a deterioration in the political environment there. He suggested this was a reason his wife should be able to obtain citizenship, to facilitate such a move. Again, while noting these concerns, the Tribunal is not aware of any discretion in the Act relating to the future safety or security of an applicant for citizenship which would allow such considerations to be taken into account.
Accordingly, the Tribunal is not satisfied that Mrs Khan meets the test required for exercise of the discretion under s 22(9), and it therefore affirms the decision of the Minister’s delegate of 17 June 2015.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of ...................[sgd]...........................................................
Associate
Dated 4 May 2016
Date of hearing 11 March 2016 Date final submissions received 17 March 2016 Applicant In person Solicitors for the Respondent Clayton Utz
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