Khazzam and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1269

Khazzam and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1269 (14 May 2018)

Division:GENERAL DIVISION

File Number(s):2017/4940      

Re:Rachid KHAZZAM

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION              

Tribunal:Senior Member Antoinette Younes

Date:14 May 2018

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – refusal of citizenship – applicant does not satisfy general residence requirement – consideration of discretion in section 22(9) of the Australian Citizenship Act 2007 – whether applicant has a close and continuing association with Australia – consideration of Citizenship Policy – factors weigh against the exercise of the discretion – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 22, 22(9), 22(1A), 22(1B), 24(1), 24(1A)

Australian Citizenship Bill 2005 (Cth)

CASES

Judd v Minister for Immigration and Border Protection [2017] FCA 827

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

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

SECONDARY MATERIALS

Australian Citizenship Bill 2005, Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (John Cobb MP, Minister for Citizenship and Multicultural Affairs)

Department of Immigration and Border Protection, Australian Citizenship Instructions
Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7A

Department of Immigration and Border Protection, Procedures Advice Manual 3: Sch2 RRV – Resident return visas

REASONS FOR DECISION

Senior Member Antoinette Younes

14 May 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 15 August 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 10 May 2016.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (Cth) (the Act). Specifically, the delegate found that the applicant did not meet the requirements of s 21(2)(c) relating to residence.

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

RELEVANT LEGISLATION

1. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with s 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act, provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of the ss 21(2), (3), (4), (5), (6), (7) or (8).

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

   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.

1. Section 22 of the Act refers to the general residence requirement. It provides, amongst other things that 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.

2. Section 22(1A) provides that if the person was absent from Australia for a period of four years immediately before the day the person made the application and the total period of the absence was not more than 12 months, the person is taken to have been present in Australia during each period of absence.

3. Section 22(1B) refers to a person who was absent from Australia for part of the 12 months immediately before the day the application was made, the total period of absence was not more than 90 days, and the person was a permanent resident during each period of absence. In those circumstances, the person is taken to have been present in Australia as a permanent resident during each period of absence.

4. Section 22(9) provides for Ministerial discretion in the case of a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen. Specifically, 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.

Policy & Instructions

1. The Citizenship Policy (the Policy) is supplemented by the Australian Citizenship Instructions (the ACIs). They provide guidance to decision-makers in regards to interpretation, exercise of power, and operational instructions relating to the Act.  As a decision-maker, the Tribunal is required to give regard to, and apply policy and instructions in the ACIs unless there are cogent reasons not to do so[1].

   [1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 640.

2. Chapter 7A of the Policy provides that:

   Under s22(9), periods 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 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.

BACKGROUND

1. The applicant is a citizen of Lebanon who is currently residing in Kuwait. On 13 January 1994, he married an Australian citizen, Ms Zeina Sabbabh in Lebanon. On 29 April 2012, he was granted a subclass 100 Partner visa. The applicant has two sons, born on 30 May 1996 and 7 March 2003, both of whom became Australian citizens by descent on 25 June 1996 and 21 April 2003 respectively. The family continued to live in Kuwait where both the applicant and his wife had worked. The applicant has visited Australia on various occasions. The older son moved to Australia in February 2013 to undertake tertiary studies. The younger son came to Australia with his mother in September 2016. In total, in the four-year period preceding the application, the applicant has spent 59 days in Australia.

2. The applicant has claimed that he meets the requirements of s 22(9) of the Act and that discretion should be exercised in his favour because he has a close and continuing association with Australia.

FINDINGS AND REASONS

·     Does the applicant meet the requirements of s 22(9)?

1. The applicant is relying on a number of circumstances to argue that the Tribunal ought to exercise discretion, including his marriage to, and long-term relationship with an Australian citizen, being the father of two Australian citizens, the family’s purchase of property in Australia, having bank accounts in Australia and his regular returns to Australia.

2. In order to enliven consideration to exercise the power in s 22(9), a number of factors are to be considered. Section 22(9) provides that the Minister may treat a period as one in which the person was present in Australia as a permanent resident “if” a number of requirements are met. The Tribunal is satisfied that “if” suggests a precondition, a threshold that needs to be met in order to enliven consideration to exercise discretion. The Tribunal accepts that the applicant is a spouse of an Australian citizen, that he was not present in Australia during the relevant period, and that he was a permanent resident during that period. The central issue of contention is whether the applicant had a close and continuing association with Australia during that period, as required by s 22(9)(d).

3. There is no definition in the Act of “close and continuing association”.  Consistent with previous Tribunal decisions and Judd v Minister for Immigration and Border Protection[2], the Tribunal is satisfied that although the expression close and continuing is a broad one, it does require an objective assessment giving regard to “a qualitative assessment of the ultimate significance of an applicant’s circumstances”. Although a qualitative assessment is appropriate, that does not mean that the assessment need not consider the factors contemplated by the Policy.

   [2] Judd v Minister for Immigration and Border Protection [2017] FCA 827.

4. The Policy stipulates that 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 relevant 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.

5. During the relevant four-year period (10 May 2012 to 10 May 2016), the applicant was present in Australia for 17 days in June-July 2012, for 13 days in August 2013, for 21 days in July-August 2014 and for 8 days in April 2016. The total period of the applicant being in Australia is therefore 59 days out of 1460, which is 16.17% of the policy target (59 days out of 365).

6. The applicant’s representative has submitted that although the 59 days the applicant has been in Australia during the relevant four-year period is detrimental under Policy, “in other contexts the number of days a person spends in Australia is irrelevant under immigration law. A person may hold for instance a subclass 457 temporary working visa for several years, and indeed decades, but this of itself does not lead to the grant of either permanent residence and certainly not Australian citizenship simply not on the simple basis of time spent in Australia, on the basis of simply presence in the country…the days “criteria” in s 22(9) are found in policy only.  Policy does not need to be slavishly followed although it does offer general guidance as to how administrative tasks are to be done. The 11 factors found in policy must be considered to be of prime import even if an applicant is outside of the days requirement.[3]”. The representative submitted that the 11 factors found in Policy must be considered to be of prime importance even if the applicant is outside of the days’ requirement.

   [3] Applicant’s Statement of Facts, Issues and Contentions, dated 22 November 2017, at page 7.

7. The Tribunal is of the view that although it is correct that in a number of provisions, the Act posits temporal requirements (but not specifically in s 22(9)), that does not mean that the Policy is undermined because it refers to the 365 day period, or that it should not be followed.

8. The Tribunal accepts the submissions that not meeting the 365 day Policy guidance is not strict. The Policy is not a directive that must be followed but rather it provides guidance for decision-makers to consider a number of factors. The wording of the Policy refers to “weight” to be given to the 11 factors indicating that failure to meet the 365 days does not mean that no further consideration is required or that the application fails simply on this basis.

9. The Tribunal is of the view that even in a case where an applicant does not meet the 365 day policy, a decision-maker would still need to consider and give proportionate weight to the 11 factors. This does not mean that a mechanical approach is to be adopted but an assessment of the applicant’s circumstances objectively and in totality, giving regard to the 11 factors or any other relevant circumstances.

10. Evidence that the person migrated to and established a home in Australia prior to the period overseas

11. Between July 2001 and the grant (offshore) of the Partner subclass 100 visa on 29 April 2012, the applicant entered Australia on various occasions as the holder of visitor visas. The applicant first entered Australia on the subclass 100 visa on 19 June 2012 and he departed on 5 July 2012. The subclass 100 was valid until 29 April 2017. As noted earlier, the applicant visited Australia on this visa on four more occasions, for 17 days in June-July 2012, for 13 days in August 2013, for 21 days in July-August 2014 and for 8 days in April 2016. He was offshore when he was granted the Resident Return Visa (RRV) subclass 155 on 10 April 2017, valid until 10 April 2018.

12. The applicant explained and provided evidence that he has a senior role with AMEX based in Kuwait and that it would be difficult to find a similar position and a commensurate salary package in Australia. The applicant gave evidence and the Tribunal accepts that the applicant has tried to find work in Australia, including a position with AMEX in Australia but has faced difficulties. The applicant’s spouse gave evidence which the Tribunal accepts that she went to live and work in Kuwait because there were family issues in Australia.

13. The Tribunal accepts her evidence that Ms Sabbabh made a decision to remain in Kuwait because she did not want her to children to be exposed to the family issues in Australia. The Tribunal further accepts the evidence that the applicant’s spouse has a responsible position in Kuwait and that in September 2016, she returned to Australia to be with the couple’s children.

14. The Tribunal acknowledges that those have been important considerations for the family. The Tribunal gives considerable weight to the applicant’s circumstances.

15. The applicant has held Australian visas with work and permanent residence rights. The Tribunal has given considerable weight to the applicant’s explanations and reasons. However on the evidence, the Tribunal is satisfied the applicant’s home is in Kuwait and that he has not established a home in Australia. The Tribunal gives significant weight to this factor in deciding not to exercise discretion.

16. Australian citizen children

17. The applicant has two Australian citizen children who are now in Australia. Both children were born in Kuwait. The first son entered Australia in February 2013 to undertake tertiary studies. The second son entered Australia with his mother in September 2016. The Tribunal acknowledges that although the children are Australian citizens, they were born and essentially raised in Kuwait. The applicant has claimed that the children have been raised as Australians with Australian values, including sports’ aspirations. The Tribunal is not satisfied that having Australian children in these circumstances means that the applicant has had a close and continuing association with Australia during the relevant period. However, the Tribunal has decided to give this aspect some weight in favour of the applicant.

18. Long term relationship with Australian citizen spouse or de facto partner

19. The applicant has been in a spousal relationship with Ms Sabbabh since 1994. The respondent’s representative contends that given that Ms Sabbabh has spent most of her adult life in Kuwait, “does not significantly increase association with Australia… During the majority of the relevant periods of absence, Mr Khazzam’s trips to Australia in the relevant four year period have been short and therefore cannot be considered to have been regular periods of absence in Australia as his home and work remained in Kuwait…”[4].  The Tribunal is persuaded by those submissions and although the Tribunal is satisfied that the relationship is long, genuine and continuing, the Tribunal gives this aspect limited weight.

    [4] Respondent’s Statement of Facts, Issues and Contentions, dated 8 December 2017, at paragraph 24.

20. Extended family in Australia

21. The applicant has an extended family in Australia, including his and Ms Sabbabh’s relatives. The respondent submitted that consistent with the decision of Taher[5], it is well established that an individual’s ties with their Australian family does not equate to a close and continuing association with Australia. The Tribunal has noted those submissions but the Tribunal is of the view that having connections with Australian families is part of having a close and continuing association with Australia. The Tribunal is of the view that creating a distinction between Australians and Australia is narrow, artificial, and inconsistent with the Policy which is intended to be flexible. The Tribunal gives this aspect weight in favour of the applicant.

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

22. Regular return visits to Australia

23. The Tribunal is satisfied that the applicant regularly returns to Australia to visit and that during the relevant period, he returned on four occasions. The Tribunal observes that those visits are brief, the longest being for 21 days. The applicant has explained that he comes to Australia during his holiday leave from his work. He indicated that holding a senior role in a commercial environment means that he has limited leave. The Tribunal acknowledges the applicant’s reasons, however the Tribunal is of the view that although the applicant has visited Australia during the relevant period, those visits have been brief and accordingly the Tribunal gives this aspect limited weight in favour of the applicant.

1. Regular periods of residence in Australia

2. The evidence before the Tribunal is that the applicant has visited Australia annually, albeit for short periods of time. The evidence before the Tribunal indicates that the applicant has not resided in Australia; and up until Ms Sabbabh returned to Australia in September 2016, that is after the relevant four year period, the family’s home was in Kuwait. During the relevant period, the Tribunal has noted that the applicant’s older son came to Australia in February 2013 to undertake tertiary studies. However, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has a close and continuing association with Australia by virtue of his son’s return to Australia in February 2013. For those reasons, the Tribunal is not satisfied that the regular returns to Australia during the relevant period and the son’s presence in Australia since 2013 mean that the applicant has a close association with Australia or that those visits amount to residence in Australia.

3. The applicant’s representative referred to the fact that the applicant has been granted a RRV (albeit for one year) and submitted that the applicant would have demonstrated to the decision-maker in relation to the RRV application that he had substantial ties with Australia. In this regard, the Tribunal agrees with the decision of Taher[6] that the threshold for the residency requirements as far as the grant of citizenship is concerned is a higher threshold.

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

4. In relation to RRV policy, the Tribunal refers to the Procedures Advice Manual III(PAM3):

   The substantial ties of benefit to Australia provision recognises that people’s lives change over time. In a mobile world, the provision recognises that people do spend time in other parts of the world for both personal and business reasons. Assessments should take into account the time spent in Australia compared with the time spent overseas since commencement of permanent residence. However, factors such as the experience, skills and international contacts and reputation that people are developing while overseas and will bring back when they resettle in Australia, and the benefit this will bring into the future are also relevant considerations.

   The benefits that accrue from Australia’s migration program vary depending on the visa stream. When assessing substantial ties of benefit to Australia for the purpose of an RRV application, it is important to consider some of these differences…

   In general, it becomes increasingly difficult to demonstrate substantial ties of benefit over extended periods of absence. This is in part because the longer the period of absence the more difficult it is to continue to maintain ties of sufficient import to be considered ‘substantial’.

5. The Tribunal is not determining any review in relation to the RRV but the Tribunal observes that PAM3 refers to benefits being variable depending on the visa program and that it is more difficult for an applicant to demonstrate substantial ties of benefit over extended periods of absence from Australia. The Tribunal is not satisfied that the mere fact that the applicant has been granted the RRV means that he has substantial ties with Australia, or more relevantly that this is indicative of a close and continuing relationship with Australia. In any event under s 22(9), there are different considerations and although having substantial ties with Australia could be relevant to assessing whether the applicant has close and continuing association with Australia and/or the exercise of discretion, it is not a requirement in s 22(9). The fact is, the applicant’s returns to Australia have been relatively brief and there have been extended periods of absence from Australia.

6. The Tribunal is satisfied that on balance, the applicant’s visits to Australia are in the nature of a visitor rather than a resident who has established a home in Australia. The Tribunal gives weight to this factor in deciding not to exercise discretion.

7. Intention to reside in Australia

8. The applicant and his Australian citizen spouse explained that they have wanted and intended to reside in Australia but have not done so due to work commitments and family issues relating to Ms Sabbabh. The applicant has maintained that he has always had an intention to live in Australia with his family but he has not done so due to employment. The Tribunal appreciates that both the applicant and Ms Sabbabh are senior skilled persons who attempted to find employment in Australia and open a business but those attempts were unfruitful. The Tribunal notes that despite indicating that he intends to return to Australia in or after November 2017[7] and despite the fact that his wife and two adult children are now in Australia, the applicant has decided to accept another two-year contract with AMEX. The Tribunal appreciates those matters are not within the relevant period however that conduct raises some doubts in the Tribunal’s mind about the weight to give to the applicant’s claimed intention of wishing to return to Australia. The Tribunal is persuaded by the respondent’s submissions that it would appear that the applicant’s primary connections are with Kuwait where he had worked since 1992 and lived with his family for over two decades. The Tribunal is satisfied that a fair assessment of the evidence indicates that, although it is plausible that the applicant has had an intention to reside in Australia, this has not eventuated and has been conditional.  The Tribunal therefore gives that intention less weight. 

   [7] Submissions of Mr Paul Hense dated for May 2016, at page 5.

9. The applicant has provided evidence of bank accounts in Australia and that he has continued to make regular deposits in those accounts. The Tribunal gives these aspects some weight but on balance, the Tribunal is satisfied that the applicant’s intention to reside in Australia has been conditional and accordingly the Tribunal gives it weight in deciding not to exercise discretion.

10. The person has been on leave from employment in Australia while accompanying their spouse or partner overseas

11. In oral submissions, the applicant’s representative referred to the second reading of the Australian Citizenship Bill 2005[8] namely[9]:

    [8] House of Representatives – 9 November 2005.

    [9] Last three paragraphs at page 10.

    There will be only two circumstances in which a person would be exempt from the requirement to spend at least 12 months as a permanent resident.

    The first circumstance involves the spouse of an Australian citizen. Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas – for example, in association with their spouse’s employment...

    The second situation already exists in the legislation and allows for periods for lawful temporary stay in Australia to be treated as permanent residence where a person would suffer significant hardship or disadvantage if not allowed to become a citizen.                   

12. The Tribunal is of the view that the intention of the Policy is to be flexible but that does not mean arbitrary. 

13. The evidence before the Tribunal is that the applicant and his Australian citizen spouse have been living in Kuwait for over two decades – since 1994. It is not the case that the applicant had to accompany his wife for employment purposes or other purposes. The applicant has been working for AMEX in the Middle East since 1992, prior to his marriage. Ms Sabbabh left Australia to be with the applicant. Both of their children were born in Kuwait and the family’s home and lives were in Kuwait not Australia.

14. Ownership of property in Australia

15. Since 2013, the applicant and his wife have purchased three properties in Australia, two during the relevant period. The respondent’s representative challenged both the applicant and Ms Sabbabh about the purpose of purchasing those properties and for placing them in Ms Sabbabh’s name. The applicant stated that the properties were bought in his wife’s name because that makes him feel more secure. The applicant talked about the region of the Middle East being unstable.

16. The respondent’s representative suggested that the applicant has entered into those arrangements for tax purposes, namely to reduce stamp duty payable and/or capital gains tax.  The Tribunal considers tax avoidance to be a serious allegation and although the Tribunal has some concerns, it is unreasonable on the evidence before it, for the Tribunal to conclude that the applicant has purchased those properties in a manner that has avoided and/or unlawfully reduced tax. It appears to the Tribunal that a fair assessment of the evidence suggests that the purchases of the properties were for commercial/investment purposes rather than being indicative of intention to establish a home in Australia.

17. The Tribunal notes that although the family bought the first two properties claiming that they were close to Ms Sabbabh’s mother, the third property is in a different suburb raising some doubts about the real purpose for the purchase of those properties. The family has never lived in those properties. The Tribunal is satisfied on the evidence before it that the purchase of the properties does not mean that the applicant has established a home in Australia or that the applicant has close and continuing associations with Australia on this basis. Accordingly, the Tribunal gives no weight to the fact that the applicant has purchased properties in Australia.

10.Evidence of income tax paid in Australia over the past four year

1. During the relevant period, the applicant confirmed that he has not paid tax in Australia. The Tribunal gives weight to this factor in deciding not to exercise discretion.

11.Evidence of active participation in Australian community based activities or organisations

1. The applicant gave evidence that he knows all about Australia and that he is proud to have Australian children.  The Tribunal is satisfied that there is limited evidence of active participation in Australian community based activities or organisations. The Tribunal gives weight to this factor in deciding not to exercise discretion.

Cumulative consideration

1. The Tribunal has considered the Policy factors independently and the Tribunal recognises that a cumulative approach is required in assessing whether the applicant has a close and continuing association with Australia. In terms of the 11 factors, on the Tribunal’s assessment, four of those factors are in his favour. The fact that during the relevant period, the applicant was in Australia for 59 days out of 365 means that the Tribunal gives less weight to those favourable factors. 

2. The Tribunal acknowledges that the application of the Policy needs to be flexible but not to the point of weakening Policy guidance or making a decision arbitrarily. Policy is important because amongst other things, it aims to provide consistency in decision-making but that does not mean that policy ought to be applied inflexibly and mechanically. The Tribunal gives regard to statements in Drake No 2 (1979) that: “The Minister’s discretion cannot be so truncated by policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even if it were adopted by the Minister on his own initiative[10]”.

   [10] Re Drake andMinister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 640.

3. Looking at the evidence cumulatively, the Tribunal is satisfied that arguably the applicant has had a continuing association with Australia, but a fair appraisal of the evidence indicates that it is not close. Despite having a permanent visa, the applicant has never established a home in Australia, or resided, or worked, or engaged with Australia in a way to support his claim that he has a close and continuing association. The applicant expressed his views that he has a right to Australian citizenship. The respondent’s representative challenged those views and submitted that it is not a right but a privilege. The Tribunal is satisfied that there is no unconditional right to Australian citizenship; an applicant has to satisfy relevant criteria for their application to be approved. As to the respondent’s submissions that those views expressed by the applicant reflect poorly on the applicant, the Tribunal has not drawn adverse conclusions about the applicant on this basis.

4. The Tribunal is satisfied that overall the evidence assessed independently and cumulatively indicates that the applicant does not have a close and continuing association with Australia. The Tribunal is satisfied that his connection with Australia is more of a visitor rather than a resident. 

Should the Tribunal exercise discretion?

1. In a case where an applicant does not meet the residence requirements, it is important to look at the circumstances as a whole and consider whether the applicant’s reasons for not meeting those requirements warrant the exercise of discretion. The applicant currently has an Australian visa which enables him, amongst other things, to enter and reside in Australia and to work.

2. As outlined above the Tribunal has concluded that there are only four factors in the Policy which are favourable to the applicant.  Moreover, the applicant is substantially short of the Policy target of 365 days. So even if the Tribunal had reached different conclusions in relation to the factors, the Tribunal would give less weight to those favourable factors because the applicant falls short of that target.

3. The Tribunal is satisfied that looking at the applicant’s circumstances individually and cumulatively, the applicant did not have a close and continuing association with Australia during the relevant period and consequently the Tribunal finds that the applicant does not meet s 22(9)(d).

4. The Tribunal has carefully considered the applicant’s circumstances and is satisfied that the totality of the evidence means that the Tribunal does not exercise discretion in the applicant’s favour. It is open to the applicant to lodge another application in the future which would be considered in accordance with established legal and policy principles.

5. In light of those conclusions, in consideration of the evidence as a whole and for the stated reasons, the Tribunal affirms the decision to refuse the application of Australian citizenship by conferral.

DECISION

1. The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

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

Associate

Dated: 14 May 2018

Date(s) of hearing:	26 April 2018
Solicitors for the Applicant:	Paul Hense Migration Lawyers Pty Ltd
Solicitors for the Respondent:	Clayton Utz