Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 4651
•19 November 2020
Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4651 (19 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3507
Re:Luna Musleh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:19 November 2020
Place:Sydney
The reviewable decision is set aside and the application is remitted to the Minister for reconsideration with the direction that the Applicant fulfils the necessary requirements of subsection 22(9) and hence paragraphs 21(2)(c) and 21(2)(g) of the Australian Citizenship Act 2007 (Cth).
....................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – Application for Australian citizenship – citizenship by conferral – discretion to waive or set aside the subsection 22(1) residency requirements under subsection 22(9) – Applicant’s time spent in Australia – whether close and continuing association with Australia – consideration of Citizenship Policy indicia – reviewable decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21-22
CASES
Gettings and Minister for Immigration and Border Protection [2014] AATA 357
Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516
Judd v Minister for Immigration [2017] FCA 827
Kilpi and Minister for Immigration and Citizenship [2012] AATA 605
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Li and Minister for Immigration and Border Protection [2015] AATA 270
Lin v Minister for Immigration and Citizenship [2009] FCA 494
McCoy and Minister for Immigration and Border Protection [2014] AATA 771
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2104] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
PMYL and Minister for Immigration and Border Protection [2014] AATA 148
Rasiah and Minister for Immigration and Border Protection [2015] AATA 630
Saba and Minister for Immigration and Border Protection [2014] AATA 579
See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1327
Sie v Minister for Immigration and Border Protection [2014] AATA 60
Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tran and Minister for Immigration and Border Protection [2014] AATA 957
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Yang and Minister for Immigration and Border Protection [2017] AATA 364SECONDARY MATERIALS
Citizenship Policy (1 June 2016)
Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth)REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 November 2020
Mrs Luna Musleh (the Applicant) has applied to this Tribunal for a review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refusing to approve her application for Australian citizenship by conferral made under subsection 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant is married to an Australian citizen and they have two Australian citizen sons. She is a citizen of Jordan who first arrived in Australia on 23 December 2005 holding a Tourist visa (subclass 676). On 15 February 2020 the Applicant obtained a Resident Return visa (subclass 155).
On 31 August 2019 the Applicant lodged an application for citizenship by conferral which was rejected by the delegate (the reviewable decision) on 18 May 2020. Thereafter, on 9 June 2020 the Applicant sought a review of the reviewable decision in this Tribunal, where the matter was heard on 5 November 2020.
At the time of the hearing the Applicant was resident in Saudi Arabia and so the proceedings were conducted by videoconference on the Microsoft Teams platform, at a time convenient to the Applicant.
Citizenship by conferral
Eligible applicants for Australian citizenship by conferral must meet the requirements set out in subsection 21(2) of the Act which provides:
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.
To be successful in an application for citizenship by conferral an applicant must satisfy all of the criteria set out in that subsection.
The basis of the delegate’s refusal of the application was their finding that the Applicant did not meet the requirements of paragraphs 21(2)(c) and 21(2)(g) of the Act. The delegate found that the Applicant failed to meet the criteria which require that an applicant meet “the general residence requirement” which is set out in section 22 of the Act. It provides:
22 General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Furthermore, the delegate found that the Applicant did not have “a close and continuing association with Australia” as required under paragraph 21(2)(g).
Applicant’s time spent in Australia
Evidence before this Tribunal demonstrates that the Applicant spent a period of only 118 days in Australia in the four year period prior to lodging her application, which is clearly less than the time required under the Act. During this time the Applicant was the lawful holder of a temporary or permanent partner visa.
The Applicant’s position
The Applicant does not contest the factual statement regarding the time she has spent in Australia.
However, she relies upon the provisions of subsection 22(9) of the Act which reposes in the Minister (or his delegate, or this instance, the Tribunal) a discretion to waive or set aside the subsection 22(1) residency requirements if certain conditions are met. These provisions relate to the position of the spouse or partner of an Australian citizen and are intended primarily to reflect the position where an applicant is unable to fulfil the residency requirements as they are primarily resident overseas with their Australian spouse or partner. The section provides:
(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.
In considering the Applicant’s request to have her application considered under the provisions of subsection 22(9), the delegate determined that she met the requirements of paragraphs 22(9)(a), (b) and (c) but failed to meet the requirements of paragraph 22(9)(d).[1]
[1] Respondent’s Statement of Facts, Issues and Contentions at [30]. Tribunal documents at 57-58.
Paragraph 22(9)(d) references the same matter as paragraph 21(2)(g), namely the extent to which an applicant has “a close and continuing association with Australia”.
It is upon that question that this appeal to the Tribunal turns.
A close and continuing association with Australia
In order to assess the Applicant’s claim, the Tribunal needs to establish both the meaning of the term “a close and continuing association with Australia” and the facts related to the Applicant’s personal situation.
Neither is entirely uncontested.
There are differing judicial and Tribunal definitions and interpretations of what may constitute “a close and continuing association with Australia”, although there is agreement that each case will present different facts and circumstances and each needs to be assessed upon its own individual merits.
Policy and authority
There is an interesting legislative history behind the introduction of subsection 22(9) into the Act which was discussed at length by the Full Federal Court in Han.[2] The Explanatory Memorandum for the original Bill stated, in relation to subsection 22(9):
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.[3]
[2] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [48]-[56].
[3] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 29. The 2005 Bill became the 2007 Act.
And further that the government had made changes:
requiring a spouse of an Australian citizen to meet the same requirements for Australian citizenship by conferral as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia.[4]
[4] Ibid at 2.
The Court went on to characterise this provision as an ameliorative one when it said:
[51] One of the obvious purposes of the Act, which is manifest in ss 21 and 22(1), is to specify the criteria which have to be met for a person to obtain Australian citizenship by conferral. Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.
…
[54] …It is equally evident, however, that it [s 22(9)] was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.[5]
[Emphasis added].
[5] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [51] and [54]. Emphasis added.
In making determinations under the Act, the Tribunal also takes account of the Citizenship Policy promulgated by the Department as a guide to decision-makers and the Citizenship Instructions which further amplify this advice.
As noted, this application turns primarily on the question of whether or not the Applicant had a “close and continuing association with Australia”. In this respect, the Australian Citizenship Policy seeks to provide guidance for decision-makers. It states:[6]
[6] Citizenship Policy (1 June 2016) at 65.
Factors that may contribute to a close and continuing association with Australia include:
·Australian citizen spouse or de facto partner
·Australian citizen children
·length of relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·return visits to Australia
·periods of residence in Australia
·intention to reside in Australia
·employment in Australia (for example, public or private sector)
·ownership of property in Australia and
·evidence of income tax payment in Australia.
When applications are being assessed under the discretionary provisions of subsection 22(9) related to applications by “spouse and de facto partners”, it is provided that:[7]
[7] Ibid at 88.
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 listed 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 (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.
In relation to both the Policy and the Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[8] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[9]
[8] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[9] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
The Policy itself states clearly: “Policy cannot constrain the exercise of delegated powers under the Act or the Regulations”[10] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the facts pertinent to each individual case.
[10] Citizenship Policy (1 June 2016) at page 1.
As stated above, this application turns upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement. There are two elements in this, the length of time which is a matter of fact and the degree to which she has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haque that “[w]hether Mr Ul Haque had ‘a close and continuing association’ … is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions.”[11]
[11] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
The Macquarie Dictionary,[12] among its many definitions of the word “close” refers to:
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[12] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32) and ‘continuing’ (def 3 and 6).
“Continuing” is defined as:
3. to last or endure.
…
6. to go on with or persist in: to continue an action.
In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
·‘close’ means ‘having a strong or immediate relation or connection’;
·‘continuing’ means ‘to remain in existence or unchanged’; and
·‘association’ means ‘the act or an instance of associating; fellowship or companionship’.[13]
[13] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
Both the Policy and the Instructions make it clear that the check-lists which they provide, list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process.
As the Tribunal has noted, with so many of the key concepts in the Act, the Act itself contains no precise definition of what this formulation means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately, there is no unanimity on that point and different decision-makers have come to different conclusions. What is clear however is that:
[30] Whether the applicant had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.[14]
[14] PMYL and Minister for Immigration and Border Protection [2014] AATA 148.
In both Li[15] and Vasiunina[16] the Tribunal discussed at some length the variety of opinions expressed regarding definitions of this key phrase.
[15] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]-[38].
[16] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]-[49].
The Respondent referred the Tribunal to a number of decisions, the gravamen of which are that “close and continuing” is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are “enough” to satisfy the requirement of a close and continuing association[17] – although what “enough” might be is itself unclear. These authorities also support the Respondent’s proposition that this requirement of physical presence should be given more weight or consideration than the other three elements of subsection 22(9), although there is no authority for that in the actual wording of the legislation itself, as distinct from the Policy. Paragraph 22(9)(d) is but one of four requirements, each of which must be met.
[17] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26].
In Nassif,[18] Kim[19], Taher[20] and Nicholls,[21] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[22]
[18] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[19] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[20] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[21] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[22] Ibid.
On the other hand, in Saba, the Tribunal said:
[47] I have already addressed the “more weight” guidance offered by the Australian Citizenship Instructions. That guidance neither says nor implies that a 365 day period of recent residence is a pre-condition to the statutory satisfaction contemplated by s 22(9)(d) of the 2007 Act. It is simply one factor that may inform the process of taking into account all relevant considerations.
[48] Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors (in which I would include the first factor relating to migration) are essentially concerned with personal relationships. Three of them are concerned with the either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership and tax obligations. Only one factor, the last one listed, refers to participation in “Australian community based activities and organisations”. I do not mean to suggest by this categorisation of the examples described in the Instructions that any ordering of priority can be discerned from mere numerical comparisons. [23]
[23] Saba and Minister for Immigration and Border Protection [2014] AATA 579.
In Paula the Tribunal stated:
[31] The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.[24]
[24] Paula and Minister for Immigration and Citizenship [2012] AATA 543.
In Judd v Minister for Immigration[25] Perry J determined:
[14] The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration & Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
[25] Judd v Minister for Immigration [2017] FCA 827.
The Applicant referred the Tribunal to my own determination in Vasiunina[26] where I said:
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
does it mean merely a physical place on the face of the planet, a continent girt by sea?; or
does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
…
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[26] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
In discussing the “close and continuing” aspects of paragraph 21(2)(g), Foster J in the Federal Court stated:
[108] … It is true, as Mr Potts submitted on behalf of the Minister, that the Tribunal did recite correctly the substance of the criteria laid down in s 21(2)(g) of the new Act (see [38] of the Tribunal’s reasons). But, in my view, the Tribunal did not go on to address the question of whether or not the applicant was likely to maintain a close and continuing association with Australia if his application for citizenship were to be approved. If, as Mr Potts submitted, the Tribunal confined itself to considering the question of residence as the only matter that could conceivably go to its assessment of the association limb contained in s 21(2)(g), then it failed to take into account a relevant consideration, namely, that two of the applicant’s children are citizens of Australia and are normally resident in Australia.
[109] Further, it probably also failed to pay due regard to the fact that the applicant owned a residential property in Australia and had done so since 2004.
[110] In my judgment, the association limb is directed to the future upon the basis that the hypothesis contained in the subsection (viz that the citizenship application is approved) comes to pass. Indeed, the same may be said of the first and second limbs of s 21(2)(g). For this reason, I do not think that the close association contemplated by s 21(2)(g) needs to be in existence at the time that the relevant citizenship application is made. Rather, the matter is to be tested upon the basis that the hypothesis comes to pass so that the word maintain, when used in the third limb of s 21(2)(g), is meant to be read as establish and keep.
[111] Although in s 21(2)(g) there may be some overlap between the first limb and the association limb and the second limb and the association limb, I am of the view that the association limb does not require that the applicant for citizenship maintain a personal presence in Australia. Indeed, in my view, the association limb is intended to cover at least the circumstance that the citizenship applicant is not likely to reside and not likely to continue to reside in Australia but is nonetheless likely to maintain a close and continuing association with Australia if the citizenship application were to be approved. That limb may also cover other circumstances.[27]
[27] Lin v Minister for Immigration and Citizenship [2009] FCA 494.
The approach open to the Tribunal to take in such matters was outlined by Senior Member Cameron in Mishra as follows:
[51] The discretion cast upon the decision-maker, in this case the Tribunal, under section 22(9)(d) of the Act is an open one; or, as submitted by the Applicant in his Statement of Facts, Issues and Contentions, “at large”. It has been observed that it is a discretion designed to afford latitude to such a decision-maker in the case of, amongst other things, the spouses of Australian citizens. If admitting such a person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in the Applicant’s favour.
[52] The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous, and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
[53] In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[28]
[28] Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479. Footnote omitted.
The Applicant’s circumstances
The Applicant draws to the attention of the Tribunal certain details of her personal circumstances which, she asserts, allow her to establish that she has a close and continuing association with Australia.
In the first instance she notes that she has been married to her husband, Hani Khoury since 2004. Her husband was born as a Lebanese citizen but became an Australian citizen in 1998. He has been a long-term employee of the international firm Deloitte Touche Tohmatsu Limited and has worked for them in Australia, Kuwait, Qatar, Jordan and now Saudi Arabia. They met in Jordan and since that time she has resided with him in the various locations in which he has worked. The couple have two sons (aged 15 and 13 years) who are Australian citizens. Neither the Applicant nor her sons have ever resided in Australia.
Her own parents are resident in Jordan as is at least one sibling. Another sibling lives in Canada. However, her husband’s parents, siblings, nephews and nieces are resident in Australia.
The Applicant states that during her frequent visits to Australia she has spent most of her time travelling in Victoria although she has also travelled to Queensland.[29] She told the Tribunal that the timing and duration of these visits coincided with the term-breaks for her student children and the vacation times of her husband’s employment.
[29] Applicant’s Submission (10 June 2020) – Tribunal documents at 17.
Between them, the Applicant and her husband own 4 properties in Australia, of which the one purchased most recently (January/February 2019) is the only one in their joint names, the others being in the name of Mr Khoury. It was in relation to this property that the Applicant first obtained registration as a taxpayer in Australia.[30]
[30] TFN application dated 18 August 2020.
As her eldest son is approaching his high school graduation, the Applicant has been active in contacting universities in Australia to ascertain the possibility of his enrolment with one of them. She has also been searching for details of schools for her other son where courses might align with the standards of the International Baccalaureate which has been the basis of their education to date. During her visits to Australia, she and her children have actually walked around the grounds of at least one of the universities in question.[31]
[31] Tribunal documents at 28.
It appears that these enquiries date back to at least July 2019[32] and pre-date the Applicant’s application for Australian citizenship.
[32] Tribunal documents at 37.
The projected date for the son’s graduation is around June 2023[33] and it was the testimony of both the Applicant and her husband that this was the date, at the very latest, that they intended to return to Australia to reside. It was made clear that, were the impact of the Coronavirus pandemic to worsen, there would be a possibility of the couple seeking an earlier return.
[33] Applicant’s Statement dated 28 August 2020.
Consideration of Citizenship Policy indicia
The Tribunal has outlined above the eleven indicia given in the Citizenship Policy in terms of matters to which the attention of decision-makers is directed. As has been noted these indicia are neither binding nor exhaustive. Nor are they in any way prioritised or weighted. Nevertheless, they are useful in assessing the issues of close and continuing association.
Clearly the Applicant has Australian citizen children and has a long term relationship with an Australian spouse. In this respect, the Tribunal notes the comments in Tran to the effect that:
Ms Tran worked for the Australian Embassy in Hanoi from 27 December 1995 to 12 March 1999 …
She met Mr Dooley there, and married him in 1999 which is some 15 years ago. I respectfully agree with Senior Member Handley that the mere fact of being married to an Australian for a significant time can be considered to [be] an association or connection to Australia (Re Kilpi and Minister for Immigration and Citizenship). I accept that the only reason why Ms Tran has not resided in Australia is that she has followed her husband all over the world to support and assist him with his life and their children. That weighs strongly in her favour.[34]
[34] Tran and Minister for Immigration and Border Protection [2014] AATA 957 at [74].
In Kilpi it was stated:
[56] Ms Rubenstein submitted that the most profound association with Australia is Mr Kilpi’s marriage to his Australian wife. Mrs Kilpi has been an Australian citizen since 1995 and Mr Kilpi has been her spouse during the four year period. I accept that his marriage to an Australian citizen does amount to an association or connection to Australia.[35]
[35] Kilpi and Minister for Immigration and Citizenship [2012] AATA 605. In this matter the Tribunal nevertheless found, on balance, that a close and continuing association with Australia had not been established.
In respect of this aspect of consideration, the Respondent sought to distinguish between a person who had lived in Australia, became the spouse/partner of an Australian citizen and followed them overseas, and the case where the partner had never lived overseas and the relationship commenced overseas. The Tribunal can find no grounding in the legislation or the policy for the establishment of this distinction, and in any event, would not regard it as significant or weighty within the context of this particular application.
The Tribunal also notes the Respondent’s observation that although the Applicant has citizen children, those children have never resided in Australia.[36] However, there is no statutory requirement that they do so.
[36] Respondent’s Statement of Facts, Issues and Contentions at [44].
The Applicant has made regular trips to Australia, and although the Respondent characterises these as no more than “visits”,[37] the Tribunal notes the extent to which they have also involved research for educational opportunities for the children.
[37] Respondent’s Statement of Facts, Issues and Contentions at [46].
The Tribunal accepts the bona fides of the Applicant and Mr Khoury that they intend to return to Australia to reside. It is the home of most of the Applicant’s husband’s family. To that extent, the Applicant has an extended family connection with Australia. There is extensive evidence of the ownership of property in Australia, and although no tax has been paid by the Applicant, this is because she has earned no Australian taxable income. Nevertheless, she is now a registered taxpayer.
The extent of the Applicant’s extended family and their commitment as members of a family is attested in a number of statements from family members which the Applicant has placed before the Tribunal.[38] These are accompanied by other statements of support from friends attesting to the Applicant’s desire to take up residence in Australia.[39]
[38] Tribunal documents at 28-32.
[39] Ibid at 31-34.
The question of how to weigh “intentions” to reside in Australia at some future date has been considered on many occasions by the Tribunal. In Ho, the Tribunal took a very limited approach to this matter, stating:
It can not mean “likely to take up residence in 18 months or 2 years time” or “likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found”. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the Minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship.[40]
[40] Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 at [31].
This approach has been both followed in other cases,[41] and expressly disagreed with in others.[42]
[41] Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103; Bhavani Gettings and Minister for Immigration and Border Protection [2014] AATA 357; Sie v Minister for Immigration and Border Protection [2014] AATA 60.
[42] Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [49]; McCoy and Minister for Immigration and Border Protection [2014] AATA 771 at [41].
In McCoy the Tribunal was persuaded that, although the Applicant did not intend to relocate to Australia in the immediate term, his commitments and plans for such relocation were sufficiently robust, albeit at some time in the future, to be supportive of his application.
This case is particularly apposite as the principal reason for this relocation was to secure the maximum educational opportunities for the Applicant’s children.[43] This was also a primary factor weighed in the Applicant’s favour in the recent case of See.[44]
[43] Ibid at [46].
[44] See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1327 at [64].
This Tribunal is persuaded of the logic and correctness of the decision in Rasiah where the Tribunal stated:
“Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The Tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration and Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration and Border Protection and Sie v Minister for Immigration and Border Protection, that the intention must be “immediate or with some reasonable proximity”. If that were so, the phrase in the ACI’s would state “immediate or reasonably proximate intention to reside in Australia”.[45]
[45] Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [49].
This is the view which I had previously expressed in Vasiunina.[46]
[46] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [65].
There is certainly no evidence of any active participation in Australian community based activities nor the establishment of an Australian home per se. The matter of taking leave to be overseas with a spouse does not arise, as discussed below.
The question of what constitutes “periods of residence” is another matter open to interpretation and judgement. For example, in McCoy the applicant had only been resident in Australia for 63 days in the previous 4 years and 21 days in the preceding 12 months.[47] In Rasiah the applicant’s residence had been “far less than 365 days in Australia in the last four years”.[48] In Vasiunina it was only 15 days in the preceding 4 year period.[49]
[47] McCoy and Minister for Immigration and Border Protection [2014] AATA 771 at [9].
[48] Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [48].
[49] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [19].
There is no mechanical formula which can be applied to determine this issue. It is clear that the Applicant has returned to Australia when it has been convenient to do so and that she is, understandably, constrained by issues of her husband’s leave and children’s school arrangements. There is considerable strength in the Applicant’s submission that:
The window of opportunity to travel to Australia and to spend time there is limited
to my husband’s annual leave and my kids’ school breaks. As you can quickly deduce from the table above and the dates of travel, my husband and I are taking every possible opportunity to travel to Australia and give our kids and myself included the opportunity to be associated and acquainted with our home country - Australia. Frankly, we do so not only for the sake of satisfying an Immigration Policy requirement around proving that I spent X number of days in Australia and to artificially tick a box, but it is deeply rooted in our conviction that this is important for the kids and myself to continue to be associated with the Australian systems, way of life, culture, my parents-in-law, and readying ourselves for gradually settling back into Australia.
The alternative for me to spend more time in Australia is simply to cause a break up of our family unit whereby I would leave my husband and the kids to spend more time in Australia, or to uproot the kids from their school and to shift base Australia leaving Hani behind. We would then see each other for few days a year once Hani or the kids have some days off work. I wish to also emphasize that Saudi Arabia and Australia are some 14-15 hours flight, so there are some logistical challenges due to distance between the 2 regions – even if one was to consider such options. Frankly, these options, of having the family unit split in this way is not an option which we believe is the right one at this point in time.
We truly believe having us all together and having the kids grow with their father
being around is the option we strongly prefer. As my eldest approach university in the next 3 years, which is a matter I will be tackling in my write up below, then I will be accompanying my sons to settle in Australia. The eldest would join Uni and the younger would have 3 years before completing high-school and joining Uni.[50]
[50] Tribunal documents at 18-19.
The Tribunal finds that the majority of the indicia outlined in the Policy have been met by the Applicant and that those which have been met carry far greater weight than the lesser number which have not.
Considerations
There is no doubt that the Applicant fails to meet the precise residency requirements of the Act in terms of days spent in Australia. However, this alone is not sufficient to reject her application. It is but one of the factors which the Tribunal must take into account and the weight which it assigns to this particular factor is one for it alone to determine.
The Tribunal also notes the reference by Senior Member Cameron in Mishra to there being a “public interest” component in such determinations. This Tribunal would certainly find that there is a public interest in allowing the Applicant to enjoy the same citizenship status as her husband and children and in facilitating the educational opportunities of those children to study in Australia and to do so with the support and presence of their mother.
Given that the purpose of subsection 22(9) was clearly intended by the Parliament to be ameliorative and to allow for a discretion to over-ride the otherwise formidable strictures of the general residency requirements, the Tribunal finds that this is an appropriate case in which those ameliorative provisions should be brought to the fore and exercised.
The Tribunal was impressed with the Applicant as a witness and with her understanding of the privileges and responsibilities of Australian citizenship which it has no doubt she would appreciate and use wisely. The Respondent conceded that, if this reviewable decision were upheld, the Applicant could still travel to Australia and thereafter apply for citizenship when the general residency requirements had been clearly met in times of days spent in Australia. There are however, no compelling reasons to make her wait that long given that she has satisfied so many of the other indicia set out in the Policy. If anything, the contrary is the case.
DECISION
The reviewable decision is set aside and the application remitted to the Minister for reconsideration with the instruction that the Applicant fulfils the necessary requirements of subsection 22(9) and hence paragraph 21(2)(c) and 21(2)(g) of the Act.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
....................................[sgd]....................................
Associate
Dated: 19 November 2020
Date(s) of hearing: 5 November 2020 Advocate for the Applicant: Mr H Khoury Solicitors for the Respondent: Mr M Palfrey
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