Nassif and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 677

Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 (29 March 2018)
Division:GENERAL DIVISION
File Number: 2017/5804
Re:Kamal Nassif
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:29 March 2018
Place:Sydney

The decision under review is affirmed.
........................[sgd]................................................
Dr L Bygrave, Member
Catchwords
CITIZENSHIP – citizenship by conferral – residence requirement – Ministerial discretion – whether there was a close and continuing association with Australia – property interests in Australia – extremely limited physical presence in Australia in relevant period prior to application – application of Citizenship Policy – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth), ss 21(2)(a), (c), (g), 22(1A), (1B), (9)
Cases
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Secondary Materials
Australian Oxford Dictionary
Citizenship Policy, Department of Immigration and Border Protection (Published 1 June 2016)
REASONS FOR DECISION
Dr L Bygrave, Member
29 March 2018

The applicant, Mr Kamal Nassif, is a citizen of Lebanon. Mr Nassif first entered Australia in 1992 on a subclass 105 (skilled Australian link) visa. He currently holds a subclass 155 (resident return) visa, which was issued on 21 October 2016.
On 22 September 2015, Mr Nassif applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
The application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) on 28 July 2017 because Mr Nassif did not satisfy:
·the residence requirements in paragraph 21(2)(c) of the Act and should not benefit from the discretion in subsection 22(9) of the Act; and
·the requirement in paragraph 21(2)(g) of the Act that he be likely to reside in, or maintain a close and continuing association with, Australia.[1]
[1] Exhibit T2, pages 10-18.
On 23 August 2017, Mr Nassif applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of that decision.
The matter was heard in Sydney on 16 March 2018. Mr Nassif had legal representation; he attended the hearing in person and gave oral evidence.
RELEVANT LEGISLATION AND ISSUE
The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act; the provisions relevant to the determination of this application are as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and…
The Tribunal is satisfied that Mr Nassif meets the requirements in paragraphs 21(2)(a) and (b) of the Act. Mr Nassif was aged over 18 years at the time he made the application, and was a permanent resident at the time he applied for citizenship and at the date of decision by the Minister’s delegate.
The general residence requirement is set out in section 22 of the Act. The relevant provisions are as follows:
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. [emphasis in original]
Pursuant to subsections 22(1A) and 22(1B) of the Act, a person may have some limited periods of overseas absences without impacting on their ability to satisfy the general residence requirement:
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
In the four years prior to his application for citizenship, between 22 September 2011 and 22 September 2015, Mr Nassif was present in Australia for a total of 37 days (and absent for 1424 days). He was present in Australia for nine days (and absent 356 days) in the 12 months immediately preceding his application for citizenship, between 22 September 2014 and 22 September 2015.[2]
[2] Exhibit T9, page 126.
The Tribunal finds that Mr Nassif does not satisfy the general residence requirement in subsection 22(1) of the Act. Further, as the total periods of absence are more than 12 months and 90 days respectively, subsections 22(1A) and 22(1B) of the Act do not apply.
Mr Nassif’s spouse, Ms Nathalie Nassib Massaad, became an Australian citizen on 9 February 2010.[3] As Mr Nassif is the spouse of an Australian citizen, the Act gives the Minister (and therefore this Tribunal) discretion to treat a period of absence from Australia as a period in which he was present for the purposes of satisfying the general residence requirement.
[3] Exhibit T8, page 120.
Subsection 22(9) of the Act provides:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period. [emphasis added]
The issue for determination by the Tribunal is whether Mr Nassif had ‘a close and continuing association with Australia’ during his periods of absence from Australia in the four years prior to his application for citizenship as required by paragraph 22(9)(d) of the Act.
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’.
Citizenship Policy
The Citizenship Policy offers guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[4]
[4] [1979]AATA 179; (1979) 2 ALD 634.
In relation to the exercise of the discretion under subsection 22(9), the Citizenship Policy relevantly provides:
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 years 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. [5] [emphasis added]
[5] Chapter 7A, pp 95-96.
As noted by the Tribunal in Taher and Minister for Immigration and Border Protection:
…the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. [6]
EVIDENCE
[6] [2013] AATA 917 at [47].
Mr Nassif’s family connections in Australia
Mr Nassif married Ms Massaad in 1993. Ms Massaad became an Australian citizen in 2010. Mr Nassif and Ms Massaad have three sons (born 1994, 1995 and 2004) who are Australian citizens.
In a written statement dated 12 December 2017, Mr Nassif noted that his ‘siblings, their families, Uncles [sic] and cousins are all Australian citizens and settled in Australia’.[7] He provided a list of 26 immediate family and relatives who are Australian citizens.[8]
[7] Exhibit A1, paragraph 20.
[8] Exhibit A3, attachment L.
At the Tribunal hearing, Mr Nassif said that his eldest son moved to Australia in 2011 to attend university. After completing secondary school in Dubai, his second son also moved to Australia and attended university. Mr Nassif said that he, his wife and their youngest son intend to move to Australia in December 2019 so that his youngest son is able to complete his secondary schooling and attend university in Australia.
Evidence Mr Nassif migrated to and established a home in Australia prior to period overseas
In his written statement dated 12 December 2017, Mr Nassif noted that he moved his family to Australia in December 1997 with the intention ‘of remaining in Australia for good’.[9] He purchased a home in Mortdale in December 1997, which he then sold in May 1999.
[9] Exhibit A1, paragraph 6.
Mr Nassif was employed with Greater Union in Australia from September 1998 to April 1999. He was selected by Greater Union/CineStar to assist with expanding its operations into the Middle East and he subsequently moved to Dubai in April 1999. Mr Nassif’s significant role in the expansion of CineStar into the Middle East region is confirmed in a letter by CineStar’s general manager dated 7 February 2001.[10]
[10] Exhibit A3, attachment F.
Mr Nassif explained to the Tribunal that he moved to Dubai to ensure his continued employment and financially provide for his family, their expenses and education. He stated that his income in Dubai has been substantially higher than the amount he would have earned if he had remained in Australia. He said that he has chosen to work in Dubai since 1999 in order to financially provide for his family on their return to Australia. Mr Nassif gave evidence that he holds a three-year residence visa for the United Arab Emirates, which enables him to enter and leave Dubai so long as he remains employed; his current visa expires in December 2019.
Regular return visits and/or regular periods of residence in Australia by Mr Nassif
Mr Nassif’s Australian immigration records show that, apart from the period from December 1997 to April 1999, he has only spent short periods of between one week and one month in Australia. In some years, these visits are during the Christmas and new year period; on some occasions, these visits coincide with Mr Nassif renewing his visa.[11]
[11] Exhibit T9, pages 126-130.
At the Tribunal hearing, the Minister’s delegate went through Mr Nassif’s immigration records with him and submitted that he has spent less than 10 per cent of his time in Australia since he first arrived in 1992. This was not disputed by either Mr Nassif or his legal representative at the hearing.
Mr Nassif’s evidence to the Tribunal is that, while he has resided in Dubai since 1999 due to employment opportunities, he has always intended to return to Australia to live with his family. He said that he returns to Australia primarily to visit his family members and stays at his apartment in Beverly Hills, where his sons reside.
Mr Nassif’s intention to reside in Australia
In the four years prior to his application for Australian citizenship, Mr Nassif worked in Dubai. In a statutory declaration dated 19 October 2015, Mr Nassif stated:
I will be residing in Australia permanently at the end of my employment in Dubai as my close ties are in Australia. My wife, our three children and I are determined to settle in Australia in the near future.[12]
[12] Exhibit T6, page 51.
At the Tribunal hearing, Mr Nassif said that when he applied for Australian citizenship on 22 September 2015, he intended to return to Australia to live in December 2016. He was then offered an extension of his employment contract in Dubai until December 2019 and there were financial incentives for him to accept the contract. His evidence to the Tribunal is that he now intends to return to Australia with his wife and youngest son in December 2019.
Ownership of property/payment of income tax by Mr Nassif
In his written statement dated 12 December 2017, Mr Nassif set out his ownership of property in Australia, which includes full ownership of three properties and part-ownership of a further four properties. He is also co-owner of a restaurant franchise.
Mr Nassif provided evidence of ownership of some of these properties, including certificates of title, council rates, water rates and land tax notices. The ownership of these properties was not disputed by the Minister’s legal representative at the hearing.
There is limited evidence before the Tribunal regarding Mr Nassif paying income tax. At the hearing, Mr Nassif submitted further documents including a notice of assessment by the Australian Taxation Office for the year ended 30 June 2016.[13] This notice set out Mr Nassif’s taxable income in Australia and his assessed tax payable to the Australian Government. There is no evidence before the Tribunal that Mr Nassif has paid income tax or completed a tax return in other income years, particularly in the four years prior to his application for Australian citizenship.
[13] Exhibit A4.
Mr Nassif’s participation in the community
There is minimal evidence before the Tribunal that shows Mr Nassif’s participation in the Australian community. In his statutory declaration on 19 October 2015, Mr Nassif stated that he ‘actively participate[s] and support[s] the Maronite Catholic Church in Sydney’.[14] He attached a letter from the Maronite Bishop of Australia dated 28 September 2015 supporting his application for Australian citizenship.[15]
[14] Exhibit T6, Page 51.
[15] Exhibit T6, pages 86-87.
CONSIDERATION
In view of the evidence, I must determine whether Mr Nassif had a close and continuing association with Australia during his periods of absence.
Mr Nassif was present in Australia for 37 days (and absent for 1424 days) in the four years prior to his application. He was present in Australia for nine days (and absent for 356 days) in the 12 months immediately before making his application for citizenship. The Citizenship Policy requires that less weight should therefore be given to the listed factors.
I also have regard to what the Tribunal said in Paula and Minister for Immigration and Citizenship:
The Instructions [Citizenship Policy] do not raise a failure to be present for 365 [days] 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.[16]
[16] [2012] AATA 543 at [31].
There is no doubt that physical presence in Australia is an important element to developing a close and continuing association with Australia. I regard Mr Nassif’s extremely limited physical presence in Australia in the four years, and the 12 months, prior to his application for citizenship as being of particular relevance.
Based on the evidence before the Tribunal, it is clear that Mr Nassif’s connection to Australia is primarily to his family. His connection to his family, particularly his brother and sons, is strong. His two eldest sons have resided in Australia since completing secondary school, and he has siblings and extended family members who live in Australia. Mr Nassif’s evidence suggests his brief times in Australia do not reflect recurring periods of residence in Australia but rather short visits to see family members. As stated by the Tribunal in Ul Haque and Minister for Immigration and Citizenship:
…although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia.[17]
[17] [2013] AATA 118 at [52].
I accept that Mr Nassif owns property and business interests in Australia, and his evidence to the Tribunal was that these interests are investments for his and his family’s future financial benefit. However, the weight I place on these interests is mitigated by the minimal evidence of Mr Nassif paying income tax in the four years prior to his application for Australian citizenship.
While there is some evidence that Mr Nassif engages with the Australian community through his property, business and personal interests, I place minimal weight on this factor due to the very limited periods of time Mr Nassif has been present in Australia over the past four years.
I also accept that Mr Nassif does have an intention to reside in Australia with his wife and youngest son at some time in the future. However, in view of his past decisions to continue accepting employment opportunities in Dubai, I cannot be convinced that he will definitely return to Australia in December 2019.
CONCLUSION
On the basis of all of the factors above, I am not satisfied that Mr Nassif had a close and continuing association with Australia during his periods of absence from the country in the four years prior to his application. For that reason, he does not meet the pre-requisite to the exercise of the discretion contained in paragraph 22(9)(d) of the Act.
DECISION

The decision of the delegate of the Minister dated 28 July 2017 to refuse Mr Nassif’s application for Australian citizenship is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[sgd].........................................
Associate
Dated: 29 March 2018

Date(s) of hearing: 16 March 2018

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab & Associates

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	16 March 2018
Counsel for the Applicant:	Mr J Young
Solicitors for the Applicant:	Simon Diab & Associates
Solicitors for the Respondent:	Sparke Helmore