Qureshi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 935

Qureshi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 935 (22 April 2021)

Division:GENERAL DIVISION

File Number:2019/7520         

Re:Aqib Qureshi  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member S Barton

Date:22 April 2021

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 October 2019 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.

....[SGD]............................................................

Member S Barton

CATCHWORDS

CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether close and continuing association with Australia – where Applicant has been absent from Australia for extended periods of time – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 21(2), 21(2)(g), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 22, 24, 24(1), 24(1A), 52(1)(b)

CASES

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Taher v Minister for Immigration and Border Protection [2013] AATA 917

SECONDARY MATERIALS

Department of Home Affairs, ‘Citizenship Procedural Instructions’ (2020) – CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia

REASONS FOR DECISION

Member S Barton

22 April 2021

INTRODUCTION

1. The decision under review was made by a delegate of the Respondent (the delegate). The delegate made a decision to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet requirements under s 21(2)(g) of the Citizenship Act at the time of the decision.

   BACKGROUND

2. The Applicant, a Pakistani citizen, arrived in Australia on 13 June 2013, holding a Temporary Work (subclass 457) visa. On 14 November 2016, the Applicant was granted an Employer Nomination Scheme (subclass 186) visa.

3. On 17 January 2018, the Applicant lodged an application for Australian citizenship by conferral. Four days later, on 21 January 2018, he departed Australia, subsequently returning three times for periods of four days, 42 days and three days respectively (Exhibit R3).

4. On 21 October 2019, a the delegate refused the application for citizenship by conferral on the grounds that the Applicant did not meet the requirements for s 21(2)(g), being whether the Applicant is likely to reside in, or continue to reside in Australia, or maintain a close and continuing association with Australia.

   JURISDICTION

5. The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under s 24 of the Citizenship Act.

   ISSUE

6. The issue for determination by this Tribunal is whether the Applicant satisfies s 21(2)(g) of the Citizenship Act.

7. The Tribunal must be satisfied that the Applicant is likely to reside, or to continue to reside, in Australia or that he maintains a close and continuing association with Australia.

   MATERIAL BEFORE THE TRIBUNAL

8. The hearing took place on 22 January 2021. The Applicant was self-represented and the Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers. The Applicant gave oral evidence and the Respondent made oral submissions.

9. The Tribunal admitted the following documents into evidence at the hearing:

   (a)The Applicant’s submissions received 5 May 2020 (Exhibit A1).

   (b)Section 37 documents, comprising T1–T13, 78 pages, filed 9 January 2020 (Exhibit R1).

   (c)Respondent’s Statement of Facts, Issues and Contentions dated 30 July 2020 (Exhibit R2).

   (d)Department of Home Affairs, updated movement history dated 28 July 2020 (Exhibit R3).

   RELEVANT LEGISLATION AND POLICY

10. Section 21(2) of the Citizenship Act sets out the general eligibility criteria for a person to become an Australian citizen. It 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.

11. Relevantly, 21(2)(g) provides that the Minister must be satisfied that a person 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.

12. Section 24(1A) of the Citizenship Act provides that the Minister must not approve a person to become an Australian citizen unless the person is eligible under ss 21(2), 21(3), 21(4), 21(5), 21(6), 21(7) or 21(8) of the Act.

13. The Citizenship Procedural Instructions (CPI) ch 11 provides further guidance in assessing whether a person is likely to reside, or to continue to reside in Australia, or likely to maintain a close and continuing association with Australia. It provides that a person’s living arrangements and citizenship or migration status in their country of residence (be it in Australia or elsewhere) may be indicators of their intentions. In assessing these arrangements, consideration can be given to factors such as:

    (a)rental arrangements;

    (b)property ownership in country of residence;

    (c)assets, commitments or ties to another country, for example their source of employment and income;

    (d)the frequency and purpose of visits to Australia;

    (e)the reasons why an applicant has been away from Australia; and

    (f)participation in the Australian community.

14. Specifically, in relation to the consideration of a person’s absences from Australia, CPI ch 11 notes that such absences:

    Would not ordinarily be of concern if they were of a temporary nature, such as when the person was:

    ·undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;

    …

15. CPI ch 11 further notes that:

    An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period.

    CONSIDERATION

16. The Applicant and his wife are both Pakistani citizens. The Applicant previously worked as an engineer in Australia. However, he later (and unfortunately) became unemployed. According to his evidence he tried to secure alternative employment but was unsuccessful. The Applicant decided to return to the family home in Islamabad before successfully finding work as engineer in Abu Dhabi, United Arab Emirates (UAE) in 2018 (Exhibit A1, email dated 18 April 2020). The Applicant and his family have resided in the UAE since that time.

17. Since leaving Australia in 2018, the Applicant has returned three times, in March 2019, then from December 2019 to January 2020 when his second child was born in Perth, and in February 2020 (Exhibit A1, Western Australian birth certificate; Exhibit R3).

18. The Applicant’s wife trained as doctor in Pakistan. She has sat part of the Australian Medical Council examinations to enable her to practise as doctor in Australia, however, has further examinations to undertake (having been granted a re-sit) (Exhibit A1, email from the Applicant dated 18 April 2020). The Applicant advised that his wife is currently considering options that would qualify her to practise in the UAE, however that process may take some years (transcript, p 7 at [25]).

19. The Applicant and his family have been renting a home in the UAE, renewing their lease for a further year in November 2020 (transcript, pp 6–7 at [46]). The Applicant stated that he did not own any property in the UAE or in Pakistan and was saving up to buy property in Australia (transcript, pp 9–10 at [40]).

20. The Applicant advised that when he departed Australia in 2018, he did not know he would be away for so long and still maintains his desire to reside in Australia (transcript, p 8 at [35]).

21. The Applicant has two brothers in Australia, one currently living in Perth, the other in Brisbane (transcript, pp 8–9 at [9]). His two children were born in Australia (transcript p 7).

22. The Tribunal accepts that the Applicant would like to relocate his family to Australia and that his move to the UAE was based on decisions regarding his employment and ability to support his family. These are entirely understandable decisions. However, it is necessary for the Tribunal to consider the meaning of the term, ‘likely to reside’.

23. In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon considered the meaning of this term, stating (at [31]):

    It cannot mean “likely to take up residence in 18 months or two 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 citizenship. … [O]r within a reasonable time thereafter.

24. It is possible that the Applicant and his family may choose to return to live in Australia in the future. However, this would depend on employment opportunities both here and overseas and other factors or circumstances in their lives. They are likely to reside overseas for the foreseeable future. In these circumstances, the Tribunal cannot be satisfied that the Applicant is likely to reside in Australia.

25. The Tribunal cannot find, on the evidence available, that the Applicant satisfies the pre-requisite of having close associations with Australia. Whilst his children are Australian citizens, that in itself does not mean that the Applicant has a close association with Australia. A close and continuing association to Australia is broader than a mere familial connection. It requires embracing the values and culture of the country that only long-term presence in Australia can bring.

26. The Respondent has drawn the Tribunal’s attention to Taher and Minister for Immigration and Border Protection [2013] AATA 917, arguing that is relevant to this matter. Senior Member Fice stated (at [47]):

    In my opinion, 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. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.

27. The Applicant has lived abroad since 2018, returning only three times. While there have been restrictions placed on travel as a result of the COVID-19 pandemic, this does not negate the fact that the Applicant has spent limited time in Australia since 2018. Moreover, there is limited evidence before the Tribunal of any close and continuing association with Australia outside his two brothers and the fact that his children were born in Perth.

28. The Tribunal notes that there is no prejudice to the Applicant in denying this application. He is a permanent resident and can apply at any time for citizenship on his return to Australia, after meeting the requisite criteria and demonstrating his close and continuing association to Australia.

    DECISION

29. The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 October 2019 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

....[SGD]....................................................................

Associate

Dated: 22 April 2021

Date of hearing:	22 January 2021
Applicant:	In person
Counsel for the Respondent:	Elle Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers