Mukerji and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 542

Mukerji and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 542 (28 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2910
Re	Rajiv Mukerji
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	28 July 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Egon Fice, Senior Member

CITIZENSHIP – residence requirement - no close and continuing association with Australia - decision affirmed

Legislation

Australian Citizenship Act 2007

Cases

Minister for Immigration and Border Protection v Vinh Quang Han and the Administrative Appeals Tribunal [2015] FCAFC 79
Re Taher and Minister for Immigration and Border Protection [2013] AATA 917
Re Drake and Minister for Immigration and Affairs(No 2) (1979) 2 ALD 634

Secondary Materials

Department of Immigration and Citizenship (Cth), Australian Citizenship Instructions, 1 July 2014

Revised Explanatory Memorandum, Australian Citizenship Bill 2005

REASONS FOR DECISION

Egon Fice, Senior Member

1. Mr Rajiv Mukerji lodged an application for Australian citizenship with the Department of Immigration and Border Protection (the Department) on 3 October 2014. On 3 June 2015 the Department notified Mr Mukerji that his application had been refused under the Australian Citizenship Act 2007 (the Citizenship Act). The reason stated by the Minister’s delegate for refusing Mr Mukerji’s citizenship application was that he did not meet the general eligibility requirement set out in s 21(2)(c) of the Citizenship Act. The Minister’s delegate also based the refusal to grant citizenship on s 21(2)(g), which deals with future residence or close and continuing association with Australia and on s 24(5) which deals with presence in Australia at the time of the decision.

2. On 15 June 2015 Mr Mukerji lodged an application with the Tribunal seeking review of the Department’s decision, pursuant to s 52(1)(b) of the Citizenship Act.

3. The general eligibility requirement which Mr Mukerji did not meet was the general residence requirement which is set out in s 22 of the Citizenship Act. It appears that the Minister’s delegate did not consider the discretion in s 22(9) dealing with Ministerial discretion regarding a spouse or de facto partner of an Australian citizen.

4. Mr Mukerji accepted that he did not meet the residency requirements as described in s 22(1) of the Citizenship Act. The Department’s records disclose that in the four year period immediately before making his application for citizenship, Mr Mukerji was absent from Australia for 1309 days and present in Australia for 152 days In the 12 months immediately prior to lodging his application for citizenship, Mr Mukerji was only present in Australia for 41 days. These numbers are far short of the legislative requirement regarding residency.

5. For those reasons, the only means by which Mr Mukerji can satisfy the general residence requirement is if the ministerial discretion in s 22(9) is exercised to deem the period which he was outside of Australia to be treated as if he were present in Australia.

6. Section 22 (9) of the Citizenship Act provides:

   (9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen 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.

   CONSTRUCTION OF S 22(9) OF THE CITIZENSHIP ACT

7. The first point to make is that all of the matters set out in subsections (a) – (d) must be satisfied before the Minister’s discretion may be exercised.  Even if that were the case, the Minister is not bound to exercise his discretion but rather, he may do so.  If he does, then the period during which the person was not present in Australia may be treated as a period in which he was in fact present in Australia.  The person seeking the benefit of the discretion must have been a permanent resident of Australia during the period which that person wishes to have counted as having been present in Australia.

8. The correct construction of s 22(9) of the Citizenship Act has been the subject of considerable comment both in the Tribunal and the Courts. The Full Court of the Federal Court (Flick, Murphy and Griffith JJ) dealt with its construction comprehensively in the unreported decision Minister for Immigration and Border Protection v Vinh Quang Han and the Administrative Appeals Tribunal [2015] FCAFC 79. The Court referred to the Explanatory Memorandum which accompanied the Australian Citizenship Bill 2005 which was introduced into the Parliament on 9 November 2005.  Essentially, the proposed

   
   

   s 22(9) in that Bill was in the same form as s 22(9) finally enacted in 2007. Relevantly, it said:

   This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship.  This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.

   However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations).  As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.

9. It should be understood that prior to the introduction of s 22(9), spouses of Australian citizens were granted citizenship more or less as of right. There was no residency requirement.

10. The Full Court in Vinh, referring to the second paragraph which I have quoted above from the Explanatory Memorandum, said it did not establish it was intended that s 22(9) could only be relied upon where the applicant was overseas in the company of his or her spouse who was an Australian citizen for the entirety of that period. The Court said, at [56], that what was set out in the Explanatory Memorandum was simply an example of a situation where the spouse of an Australian citizen may have difficulty meeting the residence requirements. It did not suggest that s 22(9) could have no application unless a spouse who was an Australian citizen accompanied the applicant overseas for the entire time and was an Australian citizen for all of that time.

11. Be that as it may, and accepting that the example given in the Explanatory Memorandum does not set out the only situation in which s 22(9) may be applied, in my opinion, it is not incorrect to link the exercise of discretion with spousal considerations being the reason why the non-citizen spouse was unable to meet the residency requirements. It need not necessarily fall within the example given in the Explanatory Memorandum. However, it is the spousal relationship which is a prerequisite for the application of the discretion. The Explanatory Memorandum explains that spouses of Australian citizens would now be required to meet the same criteria as other adult applicants for citizenship. To understand the operation of the proposed new s 22(9), it is necessary to briefly look at the history leading up to the change. I have set that out in my previous decision in Re Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [33] – [36]. I remain of the view which I have previously expressed. It is not, in my opinion, contrary to the construction adopted by the Full Court in Vinh.

    CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA DURING THE RELEVANT PERIOD

12. The only issue raised in respect of s 22(9) by the Minister is whether Mr Mukerji had a close and continuing association with Australia during the period he was absent from Australia. The Minister referred to the Australian Citizenship Instructions (ACIs), stating they provided policy guidance to decision makers undertaking decision-making functions under the Citizenship Act. Mr Hornsby, a solicitor with Sparke Helmore who appeared on behalf of the Minister, referred me to the decision of Brennan J in Re Drake and Minister for Immigration and Affairs(No 2) (1979) 2 ALD 634 where his Honour said, at 640:

    There are powerful considerations in favour of a Minister adopting a guiding policy.  It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by adopted policy, and the integrity of decision-making in particular cases is better to should if decisions can be tested against such a policy.  By diminishing the importance of individual predeliction, and adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

    Of course, policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it does not serve a purpose foreign to the purpose for which the discretionary power was created.

    However, his Honour cautioned that policy must be consistent with the statute.  He said:

    His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases.  A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.

    His Honour continued, at 642:

    It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it.  In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy chooses, or no policy at all, in fulfilling its statutory function.

13. The relevant ACI is at clause 5.18 which states:

    In all cases, applicants must provide evidence that they maintained a 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 an 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 s 22(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.

14. The main criticism levied at use of the ACIs by Mr Gilbert, a solicitor who appeared on behalf of Mr Mukerji, was that the selection of 365 and 90 days was entirely arbitrary without any identifiable rationale.  He submitted that it paid no regard to the facts of the individual case or the reason why an applicant has not been able to be present in Australia for the required period.

15. As I have previously indicated when dealing with the ACIs, the factors listed should not be treated in isolation nor ticked off individually as having been satisfied.  It is a combination of the factors listed above and their association with each other which may demonstrate a close and continuing association with Australia.  It should not simply be treated as a shopping list. As to the time in fact spent in Australia in the four-year and 12 month period prior to making an application for the grant of citizenship, the periods of 365 days and 90 days respectively simply go to the weight given to the list of relevant considerations. The significance of being present in Australia for a period of time cannot simply be disregarded. The emphasis on residency and its paramount importance when determining whether to grant citizenship to an applicant is clear from the statute itself. Section 24 (1A) of the Citizenship Act provides:

    (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under sub section 21 (2), (3), (4), (5), (6), (7) or (8).

16. A cursory glance of the general eligibility criteria set out in s 21 of the Citizenship Act makes it clear that an applicant must satisfy the general residence requirement and also demonstrate that they are 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. Furthermore, the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 states:

    The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration program over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.

    In addition, it is important to note that Australian citizenship is a privilege not a right.  The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.

17. The Preamble to the Citizenship Act underscores the importance of community involvement. It states:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

18. As I have previously said in citizenship claim cases, any dispensation from the residency requirements is not something which is granted lightly.  Significant periods of physical presence in Australia are important.

19. Mr Mukerji set out a number of grounds which he claimed supported his claim to have a close and continuing association with Australia despite being resident overseas.  While mindful that they should not be treated in a shopping list fashion, I need to address each of those grounds.

    Establishing a home in Australia prior to the period overseas

20. Mr Mukerji first visited Australia in December 2000.  The Department’s records indicate that was a very brief stay of about nine days.  His next visit to Australia was in August 2005 when Mr Mukerji said he migrated to Australia.  However, his movement records with the Department indicate that he departed Australia less than a week after that arrival.  Respectfully, it does not appear that he migrated to Australia in 2005.  There was no dispute that Mr Mukerji was granted permanent residency in Australia in August 2005.  He returned to Australia in April 2006 and on that occasion, remained for about three weeks.  That was followed by a number of short visits during that year, not one of those visits exceeding 10 days.  A similar pattern appears in 2007.

21. Mr Mukerji said that he and his wife purchased a block of land in Berwick in 2008 and constructed what he described as the family home in 2009.  That was prior to the four-year period immediately preceding his application for citizenship which commenced on 3 October 2010.  In his witness statement Mr Mukerji said that he and his wife moved into their home in Berwick in April 2009.  His evidence was that the property has never been rented and that his daughter lived there until her marriage in February 2012.  The home is currently occupied by his mother-in-law.  As will become apparent presently, it does not appear that Mr Mukerji or his wife, Ms Daunt, spent a great deal of time residing at that property in the four-year period before his application for citizenship.  I had in evidence documents detailing the importation of unaccompanied personal effects of Ms Daunt in February 2014.  That statement indicates Ms Daunt had been absent from Australia for a period of three years.  She was, and remains, an Australian citizen, her citizenship being granted on 11 November 2010.

22. The movement records provided by the Department disclose Mr Mukerji returned from overseas to Australia on a number of occasions in 2008, but no single stay during that year exceeded 10 days.  Although Mr Mukerji said that he and his wife moved into their home at Berwick on 9 April 2009, the movement records disclose Mr Mukerji only remaining in Australia for 11 days.  He departed on 20 April 2009.  He had a number of returns to Australia in 2009 but once again, they were essentially very short periods being 2 to 3 days.  His longest period in Australia was a 23 day period between 21 December 2009 and 13 January 2010.

23. The same pattern of previous years is repeated in 2010. That is, despite the fact that Mr Mukerji said that they moved into their home in April 2009, Ms Daunt’s movement records indicate that essentially, from November 2010 through to May 2014, she travelled with her husband and therefore spent most of the time overseas.  She spent a little more time in Australia than her husband during that period.  It is difficult to come to the conclusion that Mr Mukerji or Ms Daunt in fact resided in Australia during the four-year period.  Rather, they appear to be regular itinerant visitors.

24. I also had in evidence a tenancy agreement between a landlord of premises in Singapore and Mr Mukerji’s employer, Tata NYK Shipping Pty Ltd.  The agreement was for a two-year tenancy between 14 June 2013 and 13 June 2015.  The occupants of the premises are stated to be Mr Mukerji and Ms Daunt.  Mr Mukerji said that he had been in a relationship with Ms Daunt for a number of decades, marrying her on 30 June 2007 in India.

    Australian citizen children

25. As to the Australian citizen children, Mukerji said that he and his wife had two daughters, Sasha and Nicola.  They are aged 29 years and 37 years respectively.  Sasha is an Australian citizen (since 26 January 2010) while Nicola has permanent residency and resides in Australia.  There are two grandchildren, both Australian citizens.  In the Applicant’s Statement of Facts and Contentions it is stated that Sasha is a step-child.  Nicola is not mentioned.  It is not clear why that statement is different to the statement made by Mr Mukerji in evidence.

    Long-term relationship with the Australian citizen spouse

1. Although Mr Mukerji in his written statement said he had been in a relationship with Ms Daunt from number of decades, in his Statement of Facts and Contentions he states that he has been in a relationship with his wife since 2000.  As I have already mentioned, Ms Daunt was granted Australian citizenship on 11 November 2010.

   Extended family in Australia

2. Mr Mukerji described his extended family as including his mother-in-law; Ms Daunt’s two brothers and their respective wives children and grandchildren; Ms Daunt’s sister and her husband, children and grandchildren; and his second cousin, his wife and children.  According to the Minister, it appears that the only extended family of Mr Mukerji is his second cousin. The remainder of his so-called extended family are in fact Ms Daunt’s relations.

   Regular return visits to Australia

3. I have already explained that Mr Mukerji made numerous return trips to Australia, although he remained here for only very short periods of time on each return.  According to the Minister, there were 20 short intermittent visits to Australia during the four-year period between 3 October 2010 and the lodgement of his application on 3 October 2014.  He said those visits ranged from 3 to 23 days, averaging 7.8 days per visit.  Mr Mukerji said in his statement that he returned to Australia between five and six times a year spending three days to 3 weeks in Australia.  He also said he intended to continue to spend regular periods of residence in Australia until coming to reside here permanently.  He did not give any indication when that might be.  Mr Mukerji also pointed out that his home in Berwick was not tenanted and was available for him (and presumably Ms Daunt) whenever he returned.

   Regular periods of residence in Australia

4. This factor has already been covered above where I have dealt with Mr Mukerji’s travel movements.  There is no question that he has had regular periods of residence in Australia.  However, as the Minister submitted, their duration was brief and intermittent in nature.  It is something of a stretch to describe those visits as periods of residence.  Furthermore, there can be no question that Mr Mukerji and Ms Daunt resided, principally, in either Singapore or Amsterdam in the four years immediately preceding Mr Mukerji’s application for citizenship.  Those two cities are named in his application for Australian citizenship as being his residential addresses for the preceding five years.

   Intention to reside in Australia

5. In his written statement of evidence, Mr Mukerji simply said he intended to settle permanently in Australia as soon as his work permits.  He said that apart from an elderly mother, he had no immediate family in India and as far as property was concerned, he had inherited an apartment in India shared with his sister and sister-in-law.  He said he had no property investments outside Australia.  In his Statement of Facts and Contentions, Mr Mukerji repeated that his current work commitments required his presence offshore for much of the year.  He said that nevertheless, he had done everything possible to establish a life in Australia.  He maintained it was clear that he intended to make this country his permanent home.

6. However, the Minister disagreed and said Mr Mukerji had demonstrated no firm intention of residing in Australia.  He said that a declaration of intent without any indication of a timeframe carried little weight.

   Ownership of property in Australia

7. In addition to the Berwick property, Mr Mukerji and Ms Daunt have acquired two further investment properties, one in Hawthorn and the other in South Yarra.  Those properties have substantial mortgages.

8. Mr Mukerji also provided evidence of a substantial bank account in Australia and said he also had bank accounts or investments in India and Singapore.  The monies in Singapore are the result of him residing in that city and working there for some time although he intended to transfer that money to Australia.  There was no dispute about the ownership of property in Australia by Mr Mukerji.

   Income tax paid in Australia over the past four years

9. I had in evidence income tax returns lodged on behalf of Mr Mukerji for the 2014 and 2015 income years.  They disclose no income tax was payable and that was due essentially to the fact that the two investment properties which he and Ms Daunt owned were negatively geared.  There was no evidence that Mr Mukerji had earned any taxable income in Australia during the four-year period.  He did pay land tax in respect of the two investment properties.

   Active participation in Australian community-based activities or organisation

10. Mr Mukerji explained that he and his wife were actively involved with their local church in Berwick.  He also claimed to have been a member of the Melbourne Rangers Club, an Indian/Australian social, sporting and community organisation.  Mr Mukerji did not indicate his level of participation in that organisation’s events.

    Other relevant matters

11. Mr Mukerji explained that currently he was the Group Director, Strategic Procurement for a corporate entity called Tata Steel Ltd.  In his role with the company, he said he was responsible for the importation of 7,000,000 tonnes of coal and iron ore from Australia.  Mr Mukerji also said he was responsible for the development and deployment of the sourcing strategy for raw materials and shipping.  He described himself as being part of a group wide initiative to develop cross-border trade and investment with Australian companies.  He claimed this would result in economic benefit and positively impact on partnerships with Australian industry.  These claims were supported by a statutory declaration from Mr Bryan Granzien, who described himself as the Chief Executive Officer of Kalimati Coal Co Pty Ltd in Australia.  In the course of his oral evidence, Mr Granzien said he was no longer the Chief Executive Officer, his role having changed due to a downturn in the steel industry.  He was still responsible for procurement.

12. Mr Mukerji you also stated he had been nominated to the India-Australia CEO Roundtable by the High Commission of India.  He explained that to be a business forum whose purpose was to facilitate trade and investment between Australia and India.  He said that his nomination was currently under active consideration but did not indicate his appointment.

    OVERVIEW

13. As I have already stated, the above list of matters which are derived from the ACIs is not simply a shopping list.  The matters need to be looked at in combination with an eye to seeing how they demonstrate a close and continuing association with Australia.

14. The problem for Mr Mukerji in establishing the requisite association is the very limited time he has spent physically present in Australia.  Without a significant presence in this country it is difficult to see how a foreign national can establish a close and continuing association even where that person has significant assets and extended family here.  It is plain from the travel movements of Mr Mukerji and his wife that in the four-year period prior to his application for Australian citizenship, he was simply an itinerant visitor to this country.  Given the very brief stays over that period of time, it is simply not possible to come to a conclusion that he has developed a close and continuing association with this country.  He has, realistically, had very little contact with or involvement with the Australian community.

15. Nor is there any evidence of contribution to the Australian community.  While he holds investment properties in this country, no tax is paid by Mr Mukerji.  He does not have an income which is derived from this country and hence that is not taxed.  In fact, looked at clinically, Mr Mukerji has been able to obtain a significant advantage by being able to acquire property in Australia from which he is able to earn a tax-free rental income by offsetting the expenses associated with those investments against the income.  He has also accumulated tax losses which, if he should ever earn Australian income, should be available to be set off against that income.

16. Importantly, the evidence before me indicates that Mr Mukerji has no firm plans to reside in Australia at any time in the near future.  When asked about this in cross-examination, Mr Mukerji simply said he could not give a specific date and suggested something like 2 to 3 years when he would look for a permanent job in Australia.  When asked whether he had previously investigated that possibility, Mr Mukerji said he did but that he found himself to be over-qualified for what was on offer.  It seems to me that this is essentially the reason why Mr Mukerji does not reside in Australia.  He plainly has a senior position with an international company and he is required to reside overseas in order to fulfil that role.  He is clearly not prepared to give that up at this point in time.

17. While Mr Mukerji placed significant emphasis on the benefits which accrued to Australia through his efforts on behalf of Tata Steel, the context in which those benefits are derived, if that is the case, have little if anything to do with a close and continuing association with Australia.  Rather, they are part of his role in acquiring and stimulating business for his employer.

18. In my opinion, the evidence put forward by Mr Mukerji does not establish that he had a close and continuing association with Australia during the four-year period prior to lodging his application for Australian citizenship. That being the case, the discretion provided for in s 22(9) of the Citizenship Act is not enlivened.

19. Even if I am wrong about my assessment of whether Mr Mukerji had a close and continuing association with Australia in the four-year period demanded by the statute, I would nevertheless decline to exercise discretion. That is because Mr Mukerji’s inability to meet the general residence requirements set out in s 22 of the Citizenship Act arise because he has chosen to work outside Australia for an international company, undoubtedly for significant financial gain. Furthermore, his wife appears to have resided with him outside Australia for most of those four years. There has been no disruption to their spousal relationship as a consequence of Mr Mukerji choosing to reside in Singapore or Amsterdam. Spouses of Australian citizens are now required to meet the same criteria as other adult applicants for citizenship. The discretion should only be exercised where as a result of that relationship, difficulties have arisen in meeting the residency requirement. That is plainly not the reason why Mr Mukerji has not met the statutory residency requirement.

20. In the event that I have completely misunderstood the operation of s 22(9) of the Citizenship Act, there remains the problem raised by . 21(2)(g). Because Mr Mukerji currently resides in Amsterdam, to meet the eligibility criteria to become an Australian citizen, he is required to establish that he is likely to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved. Given that I have found that the evidence does not demonstrate that Mr Mukerji has a close and continuing relationship with Australia, he is required to satisfy the Minister that he is likely to reside in this country. The problem here is that the evidence of intent to reside in Australia is vague at best. Mr Mukerji did not express a positive intent to do so at some particular point in time but rather indicated that possibly, in two or three years, and if he is able find suitable employment in Australia, he may do so. In that regard, he admitted that he believed he was over-qualified for any employment positions similar to those in which he was currently engaged. At best, Mr Mukerji disclosed a vague and indeterminate intention to reside in Australia at some future time. In my opinion, that does not satisfy the statutory eligibility requirement.

    CONCLUSION

21. I have found that the evidence before me does not establish that Mr Mukerji had a close and continuing association with Australia during the four-year period preceding the lodgement of his claim for citizenship. Therefore, I have found that the discretion provided for in s 22(9) is not enlivened.

22. Even if I wrong about the close and continuing association with Australia requirement, I would nevertheless not exercise the discretion to deem Mr Mukerji’s lengthy periods of time spent outside Australia in the four-year period preceding his claim to be periods in which he was present in Australia.  That is because the grounds on which the exercise of discretion was sought by Mr Mukerji do not accord with the intention of having that discretion available in the statute.  It was not because of some difficulty to do with his spousal relationship with Ms Daunt that caused him to be unable to meet the residency requirement.  Rather, he chose to live outside of Australia because of the availability of employment which, undoubtedly, is attractive.

23. Finally, regardless of the discretionary provision set out in s 22(9) of the Citizenship Act, I have found that Mr Mukerji does not satisfy the general eligibility requirements set out in
    s 21(2)(g). That is because the evidence on hearing this matter does not satisfy me that Mr Mukerji is likely to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved.

24. I find the decision made by a delegate of the Minister on 3 June 2015 refusing Mr Mukerji’s application for Australian citizenship was correct.  I affirm that decision.

50.      

51.      

52.     I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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

Associate

Dated   28 July 2016

Date of hearing

4 April 2016

Counsel for the Applicant

Guy Gilbert

Solicitors for the Applicant

Erskine Rodan & Associates

Solicitors for the Respondent

Solicitors for the Respondent

Bromley Hornsby

Sparke Helmore