Mansi Patel and Minister for Immigration and Border Protection
[2015] AATA 108
•27 February 2015
[2015] AATA 108
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2511
Re
Mansi Patel
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 27 February 2015 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
CITIZENSHIP - close and continuing association with Australia - intention to reside in Australia - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2004 ss 21, 24, 25
CASES
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 684
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
27 February 2015
This is an application for the review of a decision made by a delegate of the respondent under s 25 of the Australian Citizenship Act 2007 (the Act) to cancel the applicant’s approval for conferral of citizenship which had been granted under s 24 of the Act, because the applicant no longer meets the requirements for the approval of citizenship.
BACKGROUND
The applicant is an Indian national. She first arrived in Australia on 30 July 2006 having been granted a student visa. On 6 February 2012 the applicant was granted a permanent visa and on 18 September 2012 the applicant applied for conferral of Australian citizenship.
The applicant was approved for conferral of Australian citizenship on 1 October 2013 on the basis that she met the requirements of s 21 of the Act.
On 1 April 2014 the Department received a letter from the applicant dated 18 March 2014 which informed the Department that the applicant was married on 23 December 2013 in the United States and was residing with her husband in that country. She stated that she would be unable to travel to Australia any time soon and requested that she be allowed to attend an Australian citizenship ceremony in the United States.
After considering this letter the Department notified the applicant that she may no longer satisfy the eligibility criteria for Australian citizenship by conferral because it appeared that she was not likely to reside or continue to reside in Australia or to maintain a close or continuing association with Australia.
In its letter the Department noted that the applicant had contacted the Department and stated that she was currently residing in the United States and may not return to Australia within 12 months and that she had requested a citizenship ceremony in the United States. It also noted that the applicant had been outside Australia since 2 October 2013 without revisiting the country. The Department noted that if it was found that the applicant was not likely to reside or continue to reside in Australia or to maintain a close and continuing association within Australia the approval of her citizenship may be denied. The applicant was invited to respond or comment on the Department’s position within 28 days. On 16 April 2014 the applicant responded by email stating she was awaiting US travel authorisation and that she intended to travel to Australia to attend her ceremony in Australia and that she had extended family in Australia.
After considering the material including the above correspondence the delegate cancelled the applicant’s citizenship approval on 23 April 2014 pursuant to s 25 of the Act.
Under s 25 of the Act, the Minister may cancel approval if the person has not become an Australian citizen and, either that at the time it is proposed to the cancel the approval the person is not a permanent resident or the person is not likely to reside or continue to reside in Australia or to maintain a close and continuing association with Australia.
The Minister has issued the Australian Citizenship Instructions (ACI) in order to provide guidance on policy in relation to the interpretation and the exercise of powers under the Act.
Under Chapter 5.7 of the instructions, a declaration that the person has an intention to reside or continuing to reside in Australia or to maintain a close and continuing association would generally be sufficient evidence unless there is information to the contrary. The instructions further state that intention to reside should be investigated further in situations where the applicant has spent significant periods outside of Australia since becoming a permanent resident or has requested a citizenship ceremony to be conducted overseas. Where a person states they intend to leave Australia or remain overseas for an indeterminate period officers of the Department must consider whether they have a close a continuing relationship with Australia.
Under the instructions, factors that may contribute to a close and continuing relationship in Australia include:
·Australian citizen spouse or defacto partner,
·Australian citizen children,
·Length of relationship with Australian citizen, spouse or defacto partner,
·Extended family in Australia,
·Return visits to Australia,
·Periods of residence in Australia,
·Intention to reside in Australia,
·Employment in Australia,
·Ownership of property in Australia; and
·Evidence of income tax payment in Australia.
It has been said by Deputy President Breen in Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931:
8. The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. ... It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive [an applicant] of any rights he currently holds, ... (emphasis added)
In support of her application Ms Patel has furnished from her present residence in Virginia, USA a statement that she legally resided in Australia from August 2006 to October 2013 and she currently holds a permanent residence visa. As of 30 September 2013 she has been qualified to gain citizenship in Australia but due to personal and family reasons she has been out of the country. However, she says she wants to come back and claim the citizenship that she is entitled to and wants to sponsor her husband who is a US citizen to relocate to Australia with her. During her presence in Australia she held a student visa from 2006 to 2010. She said she had a temporary residence visa from 2010 to 2012 and was granted a permanent residency permit in February 2012. She applied for Australian citizenship in September 2013 and passed the test and interview in September 2013. She said she still has her superannuation fund in Australia.
In further support of her application the applicant provided a statutory declaration from her husband that he wants to relocate to Australia in the near future following the legal immigration procedure filed by his Australian resident wife. There is a further statutory declaration dated 12 August 2014 by a Mr Dhwanil Patel of Nyngan, New South Wales which states the applicant is his “cousin’s sister” and that his father and the applicant’s mother are a “real brother and sister” he states that the applicant has been in Australia for more than seven years with him and that she may come back to Australia for better life and that right now she is temporarily residing in the USA with her husband.
There is also evidence in the form of a letter from the Australian Taxation Office issued on 21 July 2014, which shows a balance at 3 April 2014 of zero for the applicant’s Income Tax Account.
INTENTION TO RESIDE IN AUSTRALIA
The evidence is that the applicant is presently residing with her husband in the United States and that she could not return to Australia any time soon. She states that she wants to come back and claim citizenship and sponsor her husband, and that her husband is willing to relocate to Australia in the future, subject to legal immigration procedure.
In oral testimony before the Tribunal the applicant could not identify any specific period when she might come back to Australia. She expressed her intention but gave no details as to any firm commitment to reside in the near future. Nor did she give any specific details as to when she might take up residence in Australia in the future either in the next few months or years. Her husband also gave evidence but did not commit to the statement that he would reside in Australia with his wife at particular period either in the near future or in the coming months or years. He has a job in the United States with an international company but there is no indication of any present intention to relocate in Australia.
As pointed out in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 684 it is stated that the expression “likely to reside in Australia” cannot mean likely to take up residence or possibly to take up residence in 18 months or two years’ time or reside at some time in the indefinite future if a decision is made to relocate and if a suitable job can be found. The applicant or her husband could not demonstrate any intention to reside in Australia, for example, immediately or soon after being granted a certificate of citizenship.
Having regard to the documentary evidence and the oral testimony I am not satisfied that the applicant is likely to reside in Australia within the meaning of s 25 of the Act.
CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA
I am satisfied on the evidence the applicant has in the past, had a close association with Australia. However, since she last left Australia I do not think that her association with Australia could be described as close or continuing.
I note that the ACI provides guidance to decision-makers by setting out a non‑exhaustive list of factors that may demonstrate a close and continuing association with Australia. These include 10 considerations and I will summarise my finding in relation to those matters.
The applicant does not have any Australian citizen children, nor does she have an Australian spouse or extended family in Australia. There is no evidence of regular return visits to Australia, although since coming to Australia as a student in 2006 she has engaged in studies and residence in Australia. However, these connections with Australia ceased when she left for the United States after her marriage. She states she intends to reside in Australia and that she has a very close sentimental and emotional association with Australia. She is not presently employed in Australia but in the United States. She does not own any significant property in Australia, except for an interest in a superannuation fund. There is no evidence of any continuing income tax payment in Australia, nor is there any evidence of any act of participation in Australian community based activities or organisations.
As mentioned earlier the Applicant has a cousin in Australia with whom she regularly remains in contact. I note there is no residence in Australia at the present time, and that there is no indication of any plans or job applications in relation to activities should she return to Australia. Rather the evidence is that she has a general intention at some time in the future to come to Australia as a permanent resident with her husband. Nor is there any evidence of the maintenance of contacts or friendships with colleagues and community groups or with the Australian community generally.
Accordingly, having regard to the above factors and in particular the absence of any specific proposal or firm commitment to reside in Australia I find that there is no close or continuing association with Australia.
For the above reasons I affirm the decision under review.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President ...............................[sgd]........................................
Associate
Dated 27 February 2015
Date(s) of hearing 30 January 2015 Applicant In person Solicitors for the Respondent Brooke Griffin, Australian Government Solicitor
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