Maali and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 927
•22 November 2016
Maali and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 927 (22 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1084
Re
Ashraf L F Maali
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr W. Evans, Member
Date 22 November 2016 Place Perth The decision under review is affirmed.
...................[Sgd].....................................................
Mr W. Evans, Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – Applicant living outside Australia for extended period – whether the Applicant meets the eligibility requirement – whether the Applicant meets the residence requirement - whether the Applicant is likely to reside or continue to reside, in Australia or to maintain a close and continuing association with Australia – whether the Applicant was a spouse of an Australian Citizen during the time of absence from Australia – decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2) – s 22(1) – s 22(1A) – s 21(1B) – s 22(9)
CASES
Taher and Minister for Immigration and Border Protection [2013] AATA 917
XQMD and Minister for Immigration and Border Protection [2014] AATA 633
SECONDARY MATERIALS
Australian Citizenship Policy 1 June 2016
REASONS FOR DECISION
Mr W. Evans, Member
NATURE OF APPLICATION
On 1 March 2016, the Applicant lodged an application to the Administrative Appeals Tribunal (Tribunal) for review of a decision of a delegate of the Minister for Immigration and Border Protection (Minister) dated 2 February 2016, refusing to grant the Applicant Australian citizenship by conferral.
The refusal to grant Australian citizenship by conferral centred on two periods of absence from Australia by the Applicant, being the periods from 10 November 2012 to 15 January 2013 (67 days) and from 14 August 2015 to 26 December 2015 (133 days).
In his application, the Applicant seeks that the abovementioned absences from Australia be treated as time spent in Australia pursuant to section 22(9) of the Australian Citizenship Act 2007 (Act).
FACTS
The Applicant is a citizen of Jordan. He first arrived in Australia on 3 August 2009 as the holder of a BN-136 permanent residency visa. He remained in Australia for only 23 days, returning to the Middle East on 25 August 2009. Despite holding a permanent residency visa, the Applicant did not return to Australia for three years.
The Applicant married Wedian Shaker Attia Abou Galala on 29 October 2003 (T6, p 135). They have three children, born in 2004, 2006 and 2010 (Exhibit A1).
Mr Maali made a short trip to Australia from 19 to 23 September 2012 (Exhibit A1), presumably to secure employment in Australia prior to his family moving here permanently.
The Applicant and his family moved to Australia permanently on 11 October 2012 as Mr Maali had been accepted for employment by IBM Australia in Perth, to commence on 17 January 2013.
The Applicant signed a property lease on 26 October 2016 (T6, p 118) and enrolled his two eldest children in a school in Rossmoyne on 8 November 2012. The family’s furniture and effects were delivered to the residence from Dubai prior to 8 November 2012.
On 10 November 2012, Mr Maali departed Australia, leaving his family in Perth. He returned to Dubai to effect his resignation from his job there, which required a one month contractual notice period.
Mr Maali returned to Australia two months later, on 15 January 2013 and commenced working with IBM Australia for the next two years and seven months, ceasing employment in Australia on 14 August 2015.
On 2 July 2015, Mr Maali was offered a position at IBM Global in Dubai, which he accepted. He departed Australia on 14 August 2015 to undertake the process of employment. IBM Australia and IBM Global are two separate employment entities with strict employment rules. Mr Maali was required to resign from the IBM Australia job and return to Jordan, the place of his birth as shown on his passport, to meet Saudi Arabian visa and work permit conditions.
On 10 August 2015, prior to his departure on 14 August, Mr Maali was granted a visa class BB 155 permitting him unrestricted resident return access to Australia, valid to 10 August 2020.
Whilst in Jordan and Dubai, from 14 August to 26 December 2015, a period of 133 days, Mr Maali undertook the extended IBM employment procedures driven by Saudi Arabian law and company policies. He started working with IBM Middle East Saudi Branch on 15 October 2015 and continues to do so under a 2 year contract – a similar situation to his pervious employment by IBM Australia.
Mr Maali returned to Australia on 26 December 2015 until 16 January 2016 (22 days) to join his family during the Western Australian school holidays.
On 8 December 2015, the Applicant’s wife and children acquired Australian citizenship (T5, p 104). Mr Maali was still overseas at that time.
On 31 December 2015, the Applicant lodged an application for citizenship by conferral (T5, p 93).
On 2 February 2016, a delegate of the Minister refused to grant the Applicant citizenship by conferral on the basis that the Applicant failed to meet the general residence requirement. The delegate found that the Applicant had been outside of Australia for 133 days in the past year and for 478 days in the 4 years immediately before he lodged his application (T2, p 10).
On 1 March 2016, the Applicant lodged an application for review of the delegate’s decision (T1, p 1).
LEGISLATION
Section 21(2) of the Act addresses the general eligibility requirements for Australian citizenship:
(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.
Section 22(1), (1A) and (1B) of the Act sets out other relevant considerations required of the Tribunal:
(1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Section 22(9) of the Act sets out the relevant considerations required of the Tribunal in regard to Ministerial Discretion relating to the spouse of an Australian Citizen:
(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.
ISSUES
The issues before the Tribunal are:
(a)Whether Mr Maali meets the eligibility requirements of section 21(2)(g) of the Act;
(b)Whether Mr Maali meets the residence requirements of section 22 of the Act;
(c)Whether Mr Maali was the spouse of an Australian citizen during the periods in question; and
(d)Whether Mr Maali’s circumstances enliven the option of Ministerial discretion in section 22(9)(d) of the Act.
Respondent’s Contentions
In verbal evidence, the Respondent referred to the Respondent’s Statement of Facts Issues and Contentions (SOFIC). The SOFIC at paragraph 14 deals with the eligibility criteria for Australian Citizenship:
Subsection 21(2) provides that the applicant is eligible to become an Australian citizen if he:
…
14.7is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
The Respondent then referred to the SOFIC at paragraph 15 which states:
The residence requirement is contained in section 22 of the Act. The general effect of sections 22(1), (1A) and (1B) is that to meet the general residence requirement, a person:
15.1will need to have been present in Australia for at least 3 of the 4 years immediately prior to the person making the application; and
15.2will need to have been a permanent resident in Australia for at least the 12 months immediately prior to the application, with no more than 90 days overseas; and
15.3cannot have been an unlawful non-citizen in Australia at any time in the last 4 years.
The Respondent submitted that Mr Maali failed to meet sections 21(2)(g) and 22(1)(a)(c) of the Act through his absence of 133 days in the 12 months immediately prior to his application for citizenship, and his absence from Australia for 478 days in the four years prior. The fact that Mr Maali also failed to meet the requirements of section 22(1A) and (1B) added weight to the Respondent’s argument that Mr Maali did not meet the resident requirement and was therefore ineligible for Australian citizenship.
The Respondent then addressed the issue of whether Mr Maali was the spouse of an Australian citizen at the time he made his application and whether this would enliven the Minister’s discretion provisions under section 22(9) of the Act.
The Respondent acknowledged that Mr Maali was the spouse of Ms Wedian Shaker Attia Abou Galala whom he married overseas on 29 October 2003 and with whom he had three children. However, Ms Galala and her children did not become Australian citizens until 8 December 2015, well after the periods of Mr Maali’s absence from Australia.
Mr Maali did not return from Dubai until 26 December 2015 and was therefore not in Australia at the time his wife and children became Australian citizens.
Mr Maali applied for Australian citizenship on 31 December 2015.
The Respondent then contended that section 22(9) of the Act cannot be enlivened as Mr Maali was not the spouse of an Australian citizen during the periods he was absent from Australia in the previous 4 years.
The Respondent contended at paragraph 10 of the SOFIC that:
The issue for consideration by the Tribunal is whether the Ministerial discretion in section 22(9) of the Act should be exercised in the Applicant’s favour. In considering whether the discretion in s 22(9) is enlivened, it will be relevant for the Tribunal to consider with respect to the periods from 10 November 2012 to 15 January 2013 and from 14 August 2015 to 15 October 2015 (sic):
10.1whether the Applicant was the spouse or de facto partner of his wife during each period;
10.2 whether the Applicant was not present in Australia during each period;
10.3 whether the Applicant was a permanent resident during each period; and
10.4whether the Applicant had a close and continuing association with Australia during each period.
The Respondent then emphasised paragraph 34 of the SOFIC which states:
“34. The respondent makes the following observations in relation to the non-exhaustive considerations listed in the Citizenship Policy:
34.1Evidence that the person migrated to and established a home in Australia prior to the period overseas: The Applicant lived and worked in Australia for 21/2 years prior to this absence.
34.2 Australian citizenship children: The Applicant’s children were not Australian citizens during this period.
34.3Long term relationship with Australian citizen spouse: The Applicant’s wife was not an Australian citizen during this period.
34.4Extended family in Australia: There is no evidence that the Applicant had extended family in Australia during this period.
34.5Regular return visits to Australia: This was the Applicant’s first absence since he established a home and commenced working in Australia.
34.6Regular periods of residence in Australia: The Applicant had spent 2.25 years in Australia prior to this absence.
34.7Intention to reside in Australia: Although the Applicant may have had some intention to reside in Australia at some future point, his immediate intention was to work in the Middle East. Although the Employment Agreement appears to be open-ended, the Applicant indicated in his application to the Tribunal that he would be working in Saudi Arabia for 2 years, which is almost as long as he previously resided in Australia.
34.8The person has been on leave from employment in Australia while accompanying their spouse or Australia overseas: The Applicant’s employment in Australia was terminated prior to this period. The Applicant was not accompanying his spouse overseas. Rather, he was pursuing his own employment opportunities overseas while his spouse remained in Australia.
34.9Ownership of property in Australia: The Applicant did not own any real property in Australia during this period.
34.10Evidence of income tax paid in Australia over the past four years: The Applicant paid income tax in Australia for the financial years ended 30 June 2014 and 30 June 2015.
34.11Evidence of active participation in Australian community based activities or organisations: There is no evidence provided of any active participation by the Applicant in Australian community based activities or organisations.
34.12Other considerations: The Applicant has had shares in Australia since at least the financial year ended 30 June 2014 and continued to trade shares during the period of his absence from Australia. The Applicant also maintained an Australian bank account, which he held jointly with his wife who continued to reside in Australia.
Applicant’s Evidence
Mr Maali was self-represented and he provided a well-presented detailed synopsis of his employment and other interactions in Australia since 2012, including the activity regarding his employment in Dubai from 14 October 2015 to the present. That synopsis included a “Movement Check” document purportedly from the Department of Immigration and Border Protection showing his arrival and departure dates into and from Australia for the period 3 August 2009 to 17 April 2016. The synopsis was entered into evidence as Exhibit A1.
In his verbal evidence, Mr Maali stated that he was granted a permanent residency visa in 2007 but did not visit Australia until 2009 and then only for a 30 day evaluation of whether it was the country they wished to reside in for the rest of their lives. His wife was pregnant at the time and this was a factor in their not moving to Australia until 2012 when Mr Maali left his job with IBM in the Middle East and gained similar employment in Perth, commencing 17 January 2013.
He and his family resided together in Australia from 11 October 2012 until his departure on 14 October 2015 for his new job with IBM Global in Dubai. His wife and children continued to reside in Perth.
Mr Maali stated that he does have extended family here in Australia, comprising two brothers-in-law, one a doctor and the other a chemical engineer. He offered no documentary evidence in support of the statement. His parents reside in Jordan.
Mr Maali then described the circumstances of his undertaking the IBM job in Dubai on 15 October 2015, whereby he was absent from Perth for 62 days waiting for his visa and work permits from the Saudi Embassy in Dubai. He was required to visit Jordan to apply for the Saudi visa from the country of birth as it appeared on his passport. He then stayed in Dubai during the remaining months awaiting document approvals. After appointment to the position, Mr Maali rented a flat and a car in Dubai and continues to do so.
Mr Maali then apprised the Tribunal of the documents within his synopsis pack, each supporting his verbal explanations.
Mr Maali spoke of his frequent visits to his family in Perth, approximately every three months, as much as his job permits. He also reiterated that he has a joint bank account with his wife and all his pay goes into that account. The latter was evidenced through bank account statements provided to the Tribunal in the synopsis pack.
The Applicant then spoke of his investments in the Australian Stock Exchange (ASX), where he demonstrated considerable transactions through 2013 to the present.
Mr Maali went on to say that he and his family were committed to a life in Australia and had been since arriving in October 2012. He confirmed that he had chosen Perth as the place to bring up his children and his wife was very comfortable here.
He was very keen for citizenship to be granted as it would ease his entry back into Australia at the completion of overseas employment.
The Tribunal asked Mr Maali of his intentions to return to Perth. The Applicant responded by saying that he checks monthly for openings within IBM Australia, but with the Perth office subject of recent downsizing and redundancies, there is little hope for an early resolution. He advised that even his old Perth boss had just been made redundant.
The Tribunal then asked if other employment opportunities in Australia were being explored by him and he replied that he was using all resources available to identify openings.
Whilst his intention is to seek employment in Perth, the reality is that his job at IBM is a significant one and he could see no early return to Perth.
DISCUSSION
The Tribunal is cognizant of the various aspects of the Act and the Citizenship Policy affecting this case.
The Tribunal respects Mr Maali’s commitment to his family remaining in Australia and to have his children enjoy the education facilities, safe housing and future security that he is providing for them.
This case is focussed on Mr Maali’s application for citizenship by conferral and that entails his meeting a number of factors.
The first factor is his eligibility for citizenship. Section 21(2)(g) is clear in stating the Applicant must be:
Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were approved.
Unfortunately, Mr Maali cannot guarantee that he will meet the residential aspects or the continuing association with Australia as at this stage of his life, his work ethic and commitment to meeting the needs of his family, define his future. Nothing was put into evidence to imply that Mr Maali will not find work in his chosen expertise somewhere else in the world attractive enough for him to relocate his family and sever his ties with Australia.
The Tribunal recognises that Mr Maali would feel that his having a family residing in Australia, for whom he supplies all daily needs, demonstrates a continuing association with Australia. That unfortunately is not the case. It is apparent that Mr Maali’s employment is the key factor to his family’s survival. Were the circumstances to change and he moved his family to Dubai or elsewhere, the close and continuing association with Australia would cease, despite his wife and children now being Australian citizens. Currently, Mr Maali is committed to remain in Dubai until 15 October 2017.
The second factor is the residency requirement of section 22 of the Act. It is evident that Mr Maali fails to meet the residency requirements due to his absence from Australia for substantial periods over the last 4 years and significantly, in the last 12 months, by his own admission, little prospect of an early return from his overseas employment. Again, the Act is clear and Mr Maali fails to meet sections 22(1), (1A) and (1B).
The third factor relates to whether Mr Maali had an Australian citizen spouse during the periods in review and whether Ministerial discretion may be applied. Section 22(9) applies:
(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.
Mr Maali was not the spouse of an Australian citizen during the periods of absence from Australia, they being from 10 November 2012 to 15 January 2013 (67 days) and from 14 August to 26 December 2015 (133 days). Ms Galala and her children were not granted citizenship until 15 December 2015.
The tribunal notes the findings of Senior Member Fice in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [36]
If I am correct in my understanding of the object or purpose of s 22(9) of the Citizenship Act, then, simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a precondition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and reasons why the Applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an Applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.
The findings in Taher were questioned by Senior Member Isenberg in XQMD and Minister for Immigration and Border Protection [2014] AATA 633 at [34]:
With respect, I am of the view that, the limitation expressed in Taher, should not be applied to preclude the exercise of the discretion absolutely, if a person is absent from Australia due to reasons that are not directly related to that person’s spouse. I find that s 22(9) provides only the context in which the consideration of the discretion is enlivened; it is not limited to circumstances where an applicant for citizenship is precluded from being in Australia for the relevant period because of the commitments of their spouse. While that may prove to be a very strong factor in favour of the exercise of the discretion, the inclusion of other considerations in the ACIs militate against the limited interpretation applied in Taher.
It is clear that Mr Maali is a sought-after professional in the IT development arena and he is prepared to take advantage of the greatest opportunities to earn higher salary as they materialise. He cannot be criticised for that.
In Mr Maali’s case, the Tribunal is satisfied that the interpretation expressed in Taher is of particular relevance. Mr Maali has demonstrated by his employment actions and his stated intention to remain in Dubai until at least 15 October 2017, that the enlivenment of the Ministerial discretion is not possible.
The findings expressed in XQMD are noted by the Tribunal but in Mr Maali’s case, the spouse’s commitments are immaterial and the fact that the spouse was not an Australian citizen at the times under review, only serves to support non-enlivenment of the Ministerial discretion.
The Tribunal therefore finds that Mr Maali has:
(a)failed to meet the eligibility for citizenship;
(b)failed to meet the residency requirement: and
(c)failed to meet the criteria for enlivenment of Ministerial discretion.
DECISION
The decision under review is affirmed.
I certify that the preceding 61
(sixty-one) paragraphs are a true
copy of the reasons for the decision
Herein of Mr W. Evans, Member
…………[Sgd]………………………………
Administrative Assistant
Dated: November 2016
Date of hearing: 27 October 2016
Representative for the Applicant self-represented
Applicant:
Representative for the Ms Alison Ladhams
Respondent:
Solicitors for the Respondent: Australian Government Solicitor
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