NRHM and Minister for Home Affairs (Citizenship) - [2019] AATA 639

NRHM and Minister for Home Affairs (Citizenship) [2019] AATA 639 (4 April 2019)
Division:GENERAL DIVISION
File Number: 2018/1685
Re:NRHM
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:4 April 2019
Place:Melbourne

The Tribunal affirms the decision under review.
....[sgd]....................................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – whether applicant met the general residence requirement at the time she applied for Australian citizenship – Australian spouse and child – whether the applicant is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing relation with Australia if citizenship application were to be approved – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Cases
Kaur and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2661
Hamshari and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2160
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION

NRHM is a Bangladeshi citizen who first arrived in Australia on 3 June 2010, with her husband and son, as the holder of a student (subclass 574) Visa.
On 7 August 2014, NRHM was granted a Skilled Nominated (subclass 190) visa which remains in effect until 7 August 2019.
On 19 December 2014, NRHM departed Australia and returned on 8 October 2015.
On 11 November 2015, NRHM’s spouse and child became Australian citizens.
On 28 February 2016, NRHM departed Australia and has not returned since.
On 24 February 2017, NRHM lodged an Application for Australian Citizenship by Conferral and sought to engage the Minister’s discretion in respect of the general resident requirement as the spouse of an Australian citizen.
On 1 March 2018, a delegate of the Minister for Home Affairs (the Minister) refused to grant NRHM Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (the Citizenship Act), on the basis that NRHM did not satisfy the "general residence requirement" in s 22 of Citizenship Act as required by s 21(2)(c) of the Citizenship Act.
On 28 March 2018, NRHM applied to the Administrative Appeals Tribunal (AAT) for a review of the Decision. The applicant was granted a s 35 order under the Administrative Appeals Tribunal Act 1975 (the AAT Act) and will be referred to as NRHM in the decision.
At the original hearing, NRHM was self-represented and appeared by phone. Mr David Brown, solicitor advocate from the Australian Government Solicitor, appeared on behalf of the respondent Minister. After numerous telephone difficulties, as NRHM is still resident overseas, the parties agreed to conclude the hearing on the papers.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
·Did NRHM meet the "general residence requirement" in s 21(2)(c) of the Citizenship Act; at the time of the application for Australian citizenship; and
·If not, can NRHM receive Ministerial discretion under s 22 of the Act; most particularly s 22(9)(d) that the Minister is satisfied that NRHM had a close and continuing relationship with Australia.
LEGISLATIVE AND POLICY BACKGROUND
Section 24 of the Citizenship Act states:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
...
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Citizenship Act provides:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 22 of the Citizenship Act refers to the 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.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Subsection 22(9) of the Act provides for Ministerial discretion in the case of a person who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen.
, 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.
The Department of Immigration and Border Protection has developed the Citizenship Policy (the Policy) to support the Citizenship Act. The introduction to the Policy provides the following guidance regarding its role:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
Chapter 7A of the Policy provides that:
Under s22(9), period spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
the applicant was the spouse or de facto partner of a person who was an Australian citizen and
the applicant was a permanent resident and
the applicant had a close and continuing association with Australia.
...
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.
EVIDENCE
Evidence before the Tribunal included a set of documents lodged by the respondent pursuant to s 37 of the AAT Act, referred to as the “T documents”, and NRHM provided numerous statements and records of purchase of a property.
Residence requirements not satisfied:
The Minister’s delegate in their decision record of 1 March 2018 noted that:
Departmental records indicate that you were absent from Australia for a total of 663 days in the 4 years immediately before applying for citizenship. As you were absent for more than 12 months you have exceeded the allowable absences provided in subsection 22(1A) and cannot be considered to have been present in Australia for the period of 4 years immediately before making your application. Therefore, you do not meet the requirement of paragraph 22(1)(a) of the Act.
Departmental records indicate you were absent from Australia for a total of 361 days in the 12 month period immediately before applying for citizenship. As you were absent for more than 90 days you have exceeded the allowable absences provided in subsection 22(1B) and cannot be considered to have been present in Australia for the period of 12 months immediately before making your application. Therefore, you do not meet the requirements of paragraph 22(1)(c) of the Act.
NRHM in her submission to the AAT dated 27 March 2018 notes:
I applied for Australian citizenship by conferral on 24 February 2017 on the basis of meeting the General Residency Requirements under section 21(2) of the Citizenship Act 2007 (the “Act”). Having maintained a close and continuing association with Australia during the periods of my absence from Australia while holding a permanent Visa I requested the Minister to exercise his discretion under s. 22(9) of the Act to disregard the periods that I (the Applicant) was absent from Australia as a permanent resident who is the spouse of an Australian citizen.
The Minister’s representative argued and NRHM has conceded she did not meet the residency requirements under section 22(1)(c) when she applied for citizenship. Instead NRHM has sought Ministerial discretion as provided under s 22(9) of the Act be applied.
Ministerial discretion
The delegate of the Minister accepted that NRHM had a close and ongoing relationship with her Australian citizen family, however, noted the Act required NRHM to have a close and continuing association with Australia not just Australians. The Minister’s delegate found NRHM provided no substantial evidence that she had a continuing association with Australia over the relevant four-year period.
The Minister’s representative, on the papers, accepted that NRHM satisfied sections 22(9)(a) to (c) as her spouse was an Australian citizen, she was not present in Australia and was a permanent resident when she applied for Australian citizenship.
The delegate of the Minister in their decision record of 1 March 2018 noted that:
After considering the evidence, you have provided with your application and the information held in departmental systems I have given less weight to this evidence for Ministerial discretion consideration. I find that this evidence is insufficient when it is taken into consideration with your lack of continual associations and ties with Australia, your presence in the relevant four-year period, and throughout your lifetime. Since becoming a permanent resident you have spent 229 (days) in Australia. I do acknowledge that you met the discretionary benchmark of 365 days in Australia as outlined in Citizenship Policy. I note that you are currently residing in your home country and this has been your main country of residence throughout your lifetime I also note that you provided no evidence or intent to return and take up responsibilities of Australian citizenship. Therefore I am unable to justify the use of the Ministerial discretion.
NRHM, in her submission to the AAT dated 27 March 2018 and in the hearing which was adjourned due to the quality of the phone line, put forward the following evidence to demonstrate her close and continuing association with Australia:
·That she had resided in Australia for a substantial period of time, establishing a home here, undertaking her PhD research degree at an Australian University, was employed by Monash University as a sessional teaching and research associate in the Department of Economics; which involved mentoring, guiding students and helping with administration.
·That both she and her husband had applied for numerous positions in Australia but had been unable to find permanent full-time work. That as her husband still had his substantive position in Bangladesh he had returned to this role after completing his PhD in Australia, as he was unable to find work in Australia. As she did not wish to be separated from her husband both financially and emotionally she returned to Bangladesh and commenced employment with her previous employer. She argued that this was the wisest course as she did not want to rely upon Centrelink income and be a burden in Australia.
·That both she and her husband continued to look for work in Australia and provided many job applications for which she had unsuccessfully applied. That she continues to collaborate with colleagues at Monash University and has co-authored a number of research papers in top-ranked academic journals. That she was prohibited from applying for numerous positions for which she was ably qualified as she was not an Australian citizen.
·That her husband and son are Australian citizens and their ultimate plan is to settle permanently in Australia. That she had not been able to apply for citizenship herself when her husband and son had, as she had had to return to Bangladesh to look after her sick mother and had missed out on the qualifying period.
·She emphasised that both she and her husband are particularly concerned with the education of their son and that is why they wish to reside in Australia long-term, to give him the best education they can. That her son had undertaken his primary education in Australia and they wish him to be able to continue his education here, to do this they have placed their son in an international school in Bangladesh which undertakes an internationally recognised academic curriculum. That their ultimate aspiration is for their son to be tertiary educated in Australia as the education standard in Australia is far greater and therefore more widely recognised than that of Bangladesh.
·The majority of their financial assets are in Australia where they have purchased a home, maintain bank accounts and have superannuation savings. This is in stark contrast to their situation in Bangladesh where they have no permanent residency and are currently renting. That NRHM has contributed to the Australian economy by paying taxes in the years 2010 to 2016.
·Since moving to Bangladesh in 2016 she has had limited opportunities to return to Australia because of her work commitments and the education of their child. In Bangladesh employees only receive two weeks annual leave every three years and it is impossible to remove her son from school as they have quite strict attendance requirements.
·She argued strenuously that it was obvious that she had maintained a close and continuing association with Australia since moving to Bangladesh, most particularly, the recent purchase of the property in Australia which clearly demonstrated a close and continuing tie with Australia.
The Minister’s representative argued that NHRM:
·Did not have any family in Australia.
·Had only resided in Australia for just over half of the four-year period immediately prior to applying for Australian citizenship and this made it more difficult for NHRM to establish a close and continuing association with Australia as she had not been physically present in Australia for significant periods of time.
·At present remains in Bangladesh, where she has lived the majority of their life.
·That the applicant had provided evidence that she had purchased a property in Australia and the property is tenanted at present.
·There is no evidence that NRHM participates in Australian community based activities or organisations.
·The main reason for wishing to return to Australia was for her son’s education, noting she intends to return to reside in Australia when her son was ready to attend university, because of the quality of Australian education standards.
·That there was no evidence before the Tribunal as to when NHRM intended to return to Australia permanently.
NRHM provided the Tribunal with two case references in support of her application citing Kaur and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2661 and Hamshari and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2160, which she attested were analogous with her situation.
In the case of Kaur Senior Member Fice found:
Therefore, allowing for a break of approximately 12 months after Ms Kaur completed her undergraduate studies, she has resided in Australia for a continuous period of approximately 14 years. For a period of about eight years, she held a permanent resident visa.
Obviously, as an employee of several legal firms, she paid tax and contributed to the Australian economy.
Ms Kaur's husband is an Australian citizen and they have been married since 1997. Their two children were born in Australia and are Australian citizens. Ms Kaur has parents and an older sister in Malaysia. She has significant extended family in Australia, most of them being Australian citizens and some permanent residents. She annexed to her Statutory Declaration a list of 61 such persons. Ms Kaur's husband, her husband's parents, brothers and sister and their children are all Australian citizens. Her younger sister came to Australia in 2004 and married an Australian citizen.
Since moving to Dubai in 2007, Ms Kaur pointed out that she has had limited opportunity to return to Australia and her visits, necessarily, have been short. Since lodging her application in May 2015, she has returned to Australia on three occasions.
…
Ms Kaur explained that Dubai is a transient place and they never intended to stay there permanently. They rent accommodation in Dubai and the lease is renewed from year to year. While it would have been more economical to purchase property rather than to pay rent, they have chosen not to do so because of their intention to return to Australia. Her work visa in Dubai is valid for a period of two years and requires regular renewal. It is not possible to obtain permanent residency or citizenship status in Dubai.
…
The evidence to which I have referred above points strongly to the contention made by Ms Kaur that she is likely to reside in Australia if her application were approved. It also points to the fact that she is likely to maintain a close and continuing association with Australia until such time as she and her family return in 2020, as is currently their plan.
The evidence which supports this contention is that her two children will need to return to Australia if they wish to pursue tertiary education. That is certainly the evidence regarding the eldest child. In addition, Ms Kaur has not only retained connections with Australia and her extended family in Australia, she has also maintained a place to live and financial support by way of bank accounts, superannuation account and investments to enable a return at relatively short notice. Ms Kaur has also retained a practising certificate enabling her to practice as a lawyer in Victoria upon return and she has maintained contact with a former employer who has testified that the possibility of her returning to that firm would be a desirable outcome from the firm’s perspective. She has no such support mechanisms in her home country of Malaysia and has expressed no desire to return to reside in that country.

In the case of Hamshari Senior Member Kelly found:
In summary, the Tribunal is satisfied that the Applicant is likely to maintain a close and continuing association with Australia if the application were to be approved because:
The Applicant has four Australian citizen children.
The Applicant has a long term relationship with an Australian citizen spouse, since their marriage in 1992.
The Applicant’s second and third sons are currently studying at university in Australia and will continue to study here until they complete their degrees and may work in Australia thereafter.
The Applicant is funding his fourth son to attend a school in the UAE which offers a curriculum which satisfies the requirements for entry to an Australian university. The fourth son will come to study in Australia within the next few years, possibly for the last couple of years of high school and almost certainly to attend university, and may work in Australia thereafter.
The Applicant will regularly visit Australia while his sons are studying or working in Australia, as he has in the past.
The Applicant will continue to fund the family’s Australian home and a car for the family’s use while any member of his family is studying in Australia.
He will fund the living and study expenses of his sons who are in Australia while they are studying.
While the Tribunal gives little weight to it, it is relevant that the Applicant has had since 2004, and continues to have, an intention to live in Australia, which is conditional on getting a job here.
The Minister’s representative cited several cases in their submission including Saba and Minister for Immigration and Border Protection [2014] AATA 579 in which Senior Member PW Taylor found:
Ms Saba’s limited period of Australian residence does cast doubt on the justification for a conclusion that she has a “close and continuing association with Australia”. But there is also no doubt that she migrated here in 1998 and established her matrimonial home here, with her new husband and his family. Her first two children were born here, before her departure. The family’s departure in 2001 was a fortuity, to pursue challenges and success in her husband’s field of expertise. It has resulted in a prolonged absence because of the success he has enjoyed. But Ms Saba has maintained the ties with her husband’s Australian family, maintained Australia as the only place where she owns significant assets, aspires to return to Australia with the family in the near future, and has set about obtaining high level educational qualifications that she hopes will facilitate her future employment in Australia. My conclusion is that these particular considerations, against the totality of the matters I have taken into account, sufficiently evidence the reality of the “close and continuing association with Australia” that Ms Saba professes to have.
At this point I want to return to the passage I set out in paragraph 16 above and, in particular, to the suggestion that there is a relatively informative distinction to be made between close association with “Australia” and close association with “Australians” – the former being required and not substantiated merely by proof of the latter. The distinction is inherently problematic. It is particularly problematic when the “Australians” with whom a person is associated, are Australian residents whose families and lives are simply part of the pattern of social interaction, connectedness and diversity that is involved in the concept of “Australia”. If the suggested distinction is intended to highlight that a merely personal connection between individuals, where some of them are Australian citizens, may not suffice to demonstrate the required closeness and probable continuity of association, it is potentially useful, though perhaps somewhat banal. But the suggested distinction should not be allowed to obscure a full appreciation of the extent and ramifications of the relationship between a citizenship applicant and “Australians”. In the present case Ms Saba’s association with Australians is that of close familial bonds, and established home, substantial property ownership, the pursuit of qualifications appropriate to future employment in Australia and a desire to have her young children, as well as herself, return to live with that family as part of the Australian community.
In contrast to the view I have formed, the Minister’s submissions made four main points. First of all the Minister’s submissions set out numerous examples from previous decisions which emphasised the importance of recent Australian residence, particularly in the light of the “more weight” guidance offered in the passage from the Australian Citizenship Instructions to which I have referred above. Secondly, the submissions pointed to various passages in those decisions which drew attention to a suggested distinction between association with “Australia” and mere association with family members. In particular, a number of those previous decisions placed some emphasis on the proposition that the particular citizenship applicant has displayed little involvement with the Australian community other than their family members. Thirdly, the submissions contended that no significant weight should be attached to the circumstance of Ms Saba’s 1998 migration, and subsequent residence in Australia until April 2001. The submission was made in the context that Ms Saba’s more recent absence from Australia, and specifically during the period immediately preceding her application, effectively deprived her earlier migration of any real significance. Finally, and perhaps more specifically in relation to the additional requirement in s 21(2)(g) of the 2007 Act, the Minister’s submission was that a general intention to reside in Australia at some unspecified future time was insufficient.
CONSIDERATION
The Tribunal having considered all information before it found that NHRM did not have a close and continuing association with Australia, although she did have a close and continuing relationship with Australians, being her husband and son. NHRM’s limited time in Australia, outside of her period of study, and her return to her country of birth and former employer indicated she had a greater connection with her country of birth than with Australia.
The Tribunal did consider the fact NHRM had purchased a property, as well as maintained banking and superannuation accounts in Australia. Additionally, NRHM continued a research association with Monash University; however these did not demonstrate a close and continuing association with Australia during her long periods of absence.
The Tribunal found NHRM had no extended family, friends or community ties in Australia and that, whilst she had a desire to return to ensure her son could undertake his tertiary studies in Australia, there was no specific time that she intended to return to Australia. The Tribunal noted the NHRM’s son will not be precluded from undertaking his studies at any stage as he is an Australian citizen.
The Tribunal found no distinguishable parallel with the various cases cited by NRHM; finding these cases had demonstrated a long continuous tie to Australia, strong extended family networks within Australia, as well as strong friendship and community ties. In both cases the family had moved to a third country on a temporary basis and Visa to pursue work opportunities, appearing to no longer have strong ties back to their country of birth, instead in both cases their life seemed to be anchored to Australia. Whilst NRHM’s strongest ties were with her country of birth and not Australia.
Additionally, the case referred to by the Minister’s representative used to demonstrate the notion of ties to Australia, not simply Australians, had found the applicant in question had numerous associations with extended family in Australia, had migrated to Australia to marry her Australian husband and then followed him to a third country for employment opportunities, always intending to return to Australia at some stage where her life was anchored and not her country of birth.
The Tribunal was sympathetic to NHRM’s plight of being unable to gain work in Australia as she was excluded from many positions as she was not a citizen, but this did not give rise to a close and continuing relationship with Australia; noting her husband who is an Australian citizen has also not been able to find employment in Australia.
The Tribunal found that NHRM’s continual absence from Australia, her short period of time residing in Australia and her unspecified date of return to Australia, did not demonstrate she had a close and continuing association with Australia which would warrant the Minister exercising his discretion under s 22(9) of the Act.
DECISION
For the reasons I have given, I affirm the decision of the Minister.

I certify that the preceding 37(thirty-seven) paragraphs are a true copy of the reasons for the decision herein of

..[sgd]....................................................................
Associate
Dated: 4 April 2019

Dates of hearing: 14 March 2019 on the papers

Advocate for the Applicant: Self-Represented

Advocate for the Respondent: Mr David Brown

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	14 March 2019 on the papers
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor