Re Saba and Minister for Immigration and Border Protection
[2014] AATA 579
[2014] AATA 579
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4962
Re
Hanan Saba
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 21 August 2014 Place Sydney The decision under review is set aside. I determine that Ms Saba had a close and continuing association with Australia during the whole of the 4 year period preceding her application for citizenship in September 1998. I also determine that Ms Saba was, and is, likely to maintain a close and continuing association with Australia.
I remit Ms Saba’s application to the Minister to be determined in accordance with these reasons and decision.
........................[sgd]................................................
Senior Member P W Taylor SC
CATCHWORDS
CITIZENSHIP - Citizenship application - Close and continuing association with Australia - Decision set aside - Decision remitted to Minister for redetermination
LEGISLATION
Australian Citizenship Act 1948 (Cth), ss 13(1), 13(1A), 13(4)(b)(iv)
Australian Citizenship Act 2007 (Cth), ss 21(2)(g), 22(1)(a), 22(1)(c), 22(9), 24(5)
SECONDARY MATERIALS
Australian Citizenship Instructions, s 5.18
REASONS FOR DECISION
Senior Member P W Taylor SC
21 August 2014
Ms Hanan Saba is a permanent resident of Australia, currently residing in Qatar. She applied for Australian citizenship on 24 September 2013.
Ms Saba cannot satisfy the ordinary “general residence requirement” in section 22(1) of the Australian Citizenship Act 2007 (the 2007 Act). There is an additional residency discretion available to the Minister pursuant to s 22(9) of the 2007 Act. That discretion depends on satisfaction that Ms Saba had a close and continuing association with Australia. The delegate was not so satisfied, and refused her application.
I have come to a different view, and I am satisfied that Ms Saba had the required close and continuing relationship with Australia. I am also satisfied that she continues to have such a relationship. The considerations and reasons that have led to my satisfaction are detailed below.
MS SABA’S CITIZENSHIP AND CIRCUMSTANCES
Ms Saba holds a Lebanese passport. She was born and educated in Lebanon. She lived there until just after August 1998. That was when she married her Australian citizen husband. In September 1998 she left Lebanon and came to live in Australia. They lived in the house he had purchased in 1996. Ms Saba’s parents in law lived with them. In December 1999 Ms Saba delivered her first child, a now 15 year old daughter. In June 2000 Ms Saba obtained her first permanent resident visa. (Her permanent residence status has since been renewed twice – in 2004 and 2009). In February 2001, Ms Saba gave birth to her second daughter.
Things changed in early 2001. Ms Saba’s husband had been working in Australia, for some time as an employee of a very well-known Australian infrastructure and development company, but subsequently as a self-employed computer consultant. A job opportunity arose for him in Dubai, which he accepted. Ms Saba, and their two young children accompanied him. In the years since then, Ms Saba’s husband’s expertise, professional interests and highly specialised job opportunities, have kept him working in Dubai and, more recently, in Doha, Qatar. Throughout that whole period, and quite understandably, Ms Saba and their children have lived overseas with him.
Sometime in about 2001 or 2002 Ms Saba enquired about applying for Australian citizenship. She had lived in Australia for just over 2 years and 6 months, but she had only been a permanent resident for about 9 months. That 9 months was too short to satisfy the then relevant residence requirement in s 13(1) of the Australian Citizenship Act 1948 (Cth). (Broadly speaking the total required residence period was only 2 years, but an applicant had to be a permanent resident for the whole of that period). In Ms Saba’s circumstances there was no real prospect that the residence requirement could be relaxed, or deemed to have been satisfied. Nor was there a realistic prospect that she would be granted citizenship if she was not present in Australia: see s 13(1A) & 13(4)(b)(iv) of the Australian Citizenship Act 1948 (Cth).
The residence requirements for Australian citizenship substantially changed when the Australian Citizenship Act 2007 (Cth) (“the 2007 Act”) came into operation in July 2007. The total required residence period was increased to a total of 4 years immediately preceding the application. But only the last 12 months of that period had to be as a permanent resident: see s 22(1)(a)&(c) of the 2007 Act. In addition, the Minister was granted a wider discretion to treat the residence requirement as satisfied, particularly where the citizenship applicant was the spouse of an Australian citizen: see s 22(9) of the 2007 Act. In addition, actual presence in Australia was no longer a comparatively inflexible pre-condition to the grant of citizenship: see s 24(5) of the 2007 Act.
In September 2013, after becoming apprised of the wider residence discretion available under the 2007 Act, Ms Saba again applied to become an Australian citizen. Her application was unsuccessful. It was unsuccessful because, not having lived in Australia for any significant period since the family’s 2001 departure, she clearly could not satisfy the ordinary “general residence requirement” in section 22(1) of the 2007 Act, and the Minister’s delegate refused to exercise the discretion to treat any part of her residence in Dubai or Qatar, as one in which she was “present in Australia as a permanent resident”: see s 22(9) of the 2007 Act.
In Ms Saba’s particular circumstances, as the permanent resident spouse of an Australian citizen, exercise of the ministerial discretion in s 22(9) of the 2007 Act depends on satisfaction that she had “a close and continuing association with Australia” during the 4 years before September 2013. During the early part of that period she lived in Dubai. Since some time in 2010, she has been living in Qatar.
The Minister’s delegate was not satisfied Ms Saba had “a close and continuing association with Australia” and declined to treat any part of the period since September 2009 (the 4 year period before her application) as one when she was present in Australia as a permanent resident. Nor was the delegate satisfied Ms Saba was likely to reside in Australia, or to maintain a close and continuing Association with Australia - so as to satisfy the additional requirement of s21(2)(g) of the 2007 Act. Consequently the Minister’s delegate refused the application. The Minister’s delegate did not determine whether or not Ms Saba satisfied the other citizenship eligibility requirements.
‘CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA’
The “close and continuing association with Australia” criterion is clearly an impressionistic one. The association is posited as capable of existing despite absence from Australia – even prolonged absence. Conversely it is an association that may not be sufficiently demonstrated by marriage to an Australian citizen, or by permanent resident status, or by a combination of marriage and permanent residence. Necessarily the criterion requires consideration of an Applicant’s circumstances beyond the bare facts of their relationship status and recent places of residence.
The Australian Citizenship Instructions are part of a system of departmental instructions that provide a policy exegesis intended to inform the interpretation of the 2007 Act, and guide the proper exercise of the various powers the 2007 Act confers. Chapter 5 of the Instructions deals generally with the topic of “citizenship by conferral” (in contrast to citizenship entitlements that may arise from birth, adoption or descent). Section 5.18 of the Instructions deals specifically with the scope of the Australian residence period discretion conferred by s 22(9) of the 2007 Act. The material part of the Instructions is set out below. (A little later in these reasons I will comment specifically on the shaded passage).
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), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
The fact that this list of potentially demonstrative factors is described as inclusive rather than exhaustive is a cautionary admonition not to disregard the potential relevance of other considerations that, in the impossible to predict diversity of human affairs, may arise in particular cases. Despite that caution, the list is an informative pointer to the kinds of considerations likely to be material in most cases. But it is clearly not prescriptive of the precise extent to which individual matters may properly influence, or even determine, the ultimate satisfaction conclusion. Any conclusion about whether a decision maker has come to a point of “satisfaction” that an applicant had a “close and continuing association” during any particular period, is necessarily an impressionistic outcome. It is not one disciplined by any particular ordering of priorities or by strictly logical reasoning from premise to conclusion.
The policy requirement to give “more weight” to “the above factors” where an applicant can demonstrate a minimum period of recent Australian presence is overtly imperative. It understandably highlights the relevance, and potential materiality, of substantial recent periods of Australian residence. But the imperative obliges an ill described comparison, and is actually equivocal in its content. The contrasting requirements to give “more” or “less” weight according to the whether or not applicant has satisfied the 365 day residence period stated in the Instructions, neither state nor imply that such a period of recent residence is a necessary pre-condition to achieving the relevant satisfaction. The intentional imprecision of the comparison contemplates that in some situations a decision maker may properly be satisfied of an applicant’s “close and continuing association” despite quite a long period of residential absence. Achieving that satisfaction in any particular applicant’s circumstances, where various factors may vary in their apparent significance, can be very much a matter of impression, and difficult to express with clear or persuasive conviction.
Difficulties of that kind are inherent in the exercise of any decision making function that requires regard to a wide range of potentially relevant considerations. But neither anxiety about that inherent difficulty, nor disagreement with the expressed reasons for any decision, should be allowed to substitute pragmatic guidelines for the proper exercise of the statutory task. In particular, the “more weight”/“less weight” proposition cannot be applied as an abbreviated substitute for the generality of the statutory discretion statutory. That there is some risk of its unguarded application in this way is perhaps underscored by the 24 September 2013 reasons for decision in the present matter, and the history of the shaded item in paragraph 12 above.
The 24 September 2013 reasons, although not informed by the marginally more detailed and recent evidence provided to the Tribunal, reasonably captured the essential nature of Ms Saba’s Australian connections. These were her relationship with her husband and children, and their property interests in Australia. Nevertheless, the reasons followed on with the observation that:
“… you have provided no other evidence which gave you a direct or personal close and continuing association with Australia (rather than Australians) during your periods of absence. And I have found that the evidence you have provided is not sufficient to support a claim that you had close and continuing ties to Australia given your minimal present in Australia in the relevant four year period. Further I have given less weight to these factors for Ministerial consideration, as you have only been present in Australia for 36 days since 6 September 2009 which is less than 365 days in the four year immediately before making your application as prescribed by the discretion policy stated above and much less than the 1095 days required by the residence requirements.”
Nothing in this passage, nor in other parts of the reasons, overtly took into account considerations of the kind reflected in the shaded passage set out in paragraph 12 above. The main reason for this was no doubt that the particular passage was not included in the Instructions until about November 2013 – months after the date of the reasons. But another reason, suggested by the extract from the reasons that is set out in paragraph 16 above, was that the “more weight”/“less weight” comparison contributed to an over concentration on the length of Ms Saba’s overseas absence rather than objective evaluation of her overall circumstances against the generality of the statutory criterion. Irrespective of whether or not Ms Saba’s 1998 migration, and subsequent Australian residence, were within a category of relevance specifically identified in the content of the Australia Citizenship Instructions, they were relevant considerations that had to be taken fully into account. Ordinarily one would think that a person who migrated to Australia, had established a home here, had continued to maintain it as the family home, and who held permanent resident status, would have gone a long way towards showing that they had at least a close association with Australia, and the likelihood that the close association was continuing.
But generalities serve only to provide the perspective from which to assess the circumstances of an individual applicant. In the present matter Ms Saba is able to point to many respects in which the inclusively relevant criteria identified in the Australian Citizenship Instructions tend to conduce satisfaction about her close and continuing association with Australia.
Pre absence migration and home-making: Ms Saba left her parents and homeland after her marriage in 1998, came to Australia, lived with her husband, and established their family home. She took out permanent residence less than two years after her migration. But for the work opportunities her husband took up in Dubai, she would have continued to live in Australia with her husband and to raise their children within the extended family she had joined.
Australian citizen spouse: Ms Saba’s husband is an Australian citizen. He was an Australian resident when they married in Lebanon in 1998. They returned and spent the first two and a half years of their married life here. He left Australia only to pursue opportunities within his chosen area of training and expertise. His evidence in the Tribunal proceedings is that he intends to return to Australia, with Ms Saba and his children, and is taking steps to facilitate that future return.
Australian citizen children: Ms Saba’s three children are Australian citizens and hold Australian passports. All of them were born in Australia – two of them before her departure to Dubai in April 2001. Her third child, a 12-year-old son, was born in May 2002 during an approximately 2 month period when she returned to Australia. It was a matter of deliberate decision on her part that, like his two elder siblings, he should be born in Australia – in fact at the same hospital, and delivered by the same obstetrician.
The three children are currently being educated in an American School in Qatar. The school offers the International Baccalaureate program curriculum. Ms Saba explained that she and her husband had intentionally chosen such a school, in preference to another international school. This was because the International Baccalaureate was recognised in Australia as satisfying academic entrance qualifications for many Australian Universities. She said that she and her husband both aspire to have the children undertake their tertiary education in Australia. This is the primary focus of their future plans, and underlies their intention to return to Australia. That aspiration for the children’s tertiary education is entirely realistic, given not only the fact of Ms Saba and her husband’s own abilities and qualifications but also their own involvement with Australian Universities. Ms Saba has an undergraduate degree in a combined agriculture and engineering discipline from the American University in Beirut. In 2012 she started a postgraduate Masters Degree Course at the University of Southern Queensland. In December 2005, during the early part of their residence in Dubai, Ms Saba’s husband obtained his PhD from the University of Wollongong.
Extended family in Australia: Ms Saba has two siblings. Her parents and her sister still live in Lebanon. She visits them periodically, usually only for a few days. Her brother, who is married and has three children, is her next door neighbour in Qatar. In contrast, Ms Saba’s husband's parents, siblings, nieces and nephews all live in Australia, and are Australian citizens. Ms Saba’s evidence made clear that she regards herself, and their children, as an integral part of her husband’s extended Australian family. Throughout her evidence, with disarmingly unselfconscious literal inaccuracy and affectionate sincerity, she repeatedly referred to her parents in law as if they were her own actual mother and father. She referred to her two sisters in law, who both live in suburban Sydney with their families, as her sisters.
Ms Saba’s asserted familiarity and involvement with her Australian resident nieces and nephews (there are 8 of them) is consistent with, though not alone established by, evidence she provided in the form of a selection of “cut and paste” print outs from various web based social media pages. These print outs, which cover the period from January 2013 to October 2013, evidence regular social exchanges and fond familiarity. She produced a selection of other photographs, depicting other family interactions dating back to about 2006. I infer that the totality of this material evidences a familiarity and affection that did not simply have its origin in the 2013 calendar year. It indicates a long standing familial association of genuine affection and familiarity.
Regular return visits to Australia: Ms Saba’s returns to Australia since 2001, and specifically in the four year period before her September 2009 application, have been periodic and not all that frequent. Their timing is evident from the following table, which details the dates of her various arrivals in, and departures from, Australia.
Australian presence - dates and duration Arrival Departure No of Days Activity 8-Sep-98 2-Jul-00 663 living in family home 24-Aug-00 4-Apr-01 223 living in family home 18-Jan-02 1-Feb-02 14 return visit with family 3-May-02 5-Jul-02 63 son born 17-Nov-02 6-Dec-02 19 return visit with family 20-Jan-07 2-Feb-07 13 return visit with family 17-Dec-09 1-Jan-10 15 return visit with family 13-Dec-10 1-Jan-11 19 return visit with family 13-Dec-13 4-Jan-14 22 return visit with family
As the table indicates, apart from the approximately two month stay in mid-2002, associated with the birth of her youngest child, Ms Saba has only returned for approximately fortnight long periods that roughly correspond with the Australian Christmas school holidays. After her son’s birth, these visits were in November/ December 2002, January 2007, December 2009, December 2010 and, most recently, December 2013. During these visits the whole family, Ms Saba, her husband, and all three children, have come to Australia and stayed at their own home, with her husband’s parents.
The comparative infrequency of these visits could be interpreted as detracting from satisfaction about the closeness of Ms Saba’s association with Australia. But I do not think that is the appropriate inference to be drawn from these bare details. It is rather more significant that the visits have been repeated, that they have broadly coincided with the end of year holiday period, that they have seen the family return to their family home, and that they are consistent with the family’s intention to return to live in Australia.
Intention to reside in Australia: Ms Saba’s and her husband’s original intention was clearly to reside in Australia. Australia was her husband’s home in 1998; he was well qualified, had a sound employment history and had correspondingly good future prospects. After her migration they were living in their own home, with his parents. In 1999 Ms Saba successfully applied to Sydney University to undertake a Masters Degree in Agriculture. Their subsequent departure to Dubai was fortuitous. The duration of their foreign residence since then has been a consequence of her husband’s abilities and expertise, and the opportunities they have generated. Despite its length, their period of overseas residence has in not diminished their desire to return to Australia and have their children enjoy their adolescence within the extended family group and complete their education as resident Australians.
Ms Saba explained that when she and her husband first left Australia in 2000 they were following the opportunities that his interests and expertise opened up. Now, almost 14 years later, things are different. He has established his reputation, secured his financial situation, and is about to complete the project that took him to Qatar in 2010. Their children are approaching the senior years of their education, and subjectively aspire to return to live within the Australian family community with which they identify.
I accept the genuine reality of Ms Saba’s intention to return to Australia, with her husband and children, to resume the life she commenced here after her marriage in 1998. The timing of that return is not precise, but the effect of Ms Saba’s husband’s evidence is that it is likely to be in the short term future. He moved to Qatar in 2010 to work on a solar power plant project. His originally intended commitment was only for two years, but had been extended to three years. The project is due to be completed in November 2014, and his involvement is likely to end at that time. His prospective successor has been engaged and has been working with him for the last three months. Ms Saba’s husband has not entirely discounted the possibility of extending his current contract employment if his employer asks him to do that in order to facilitate the project completion and the transition of his successor. But he has dismissed the possibility of an indefinite extension.
Ms Saba’s husband contrasts his situation now with the one that existed when he and Ms Saba first went to Dubai. Whilst he was then about thirty years old and already an experienced and skilled computer scientist, he was leaving to pursue new opportunities. Now, some 14 years later he regards himself as established commercially and professionally. His focus now is much more on their children and their education. It is also on his parents, from whom he has been separated for too long. He says he feels the need to come back to Australia and enjoy what is left of the rest of his life.
THE ACI’S INCLUSIVE FACTORS
Employment in/leave from employment in Australia: Ms Saba is not able to demonstrate any significant employment history, or specific employment prospects, in Australia. But two things may be said. First of all, that Ms Saba’s departure from Australia in 2001 was the result of a fortuitous job opportunity for her husband. The second thing that may be said is that she is actively pursuing tertiary qualifications that particularly apply to her prospects of employment in Australia. (I return to this matter in paragraph 41 below).
Ownership of property in Australia: Up until recent times, Ms Saba and her husband regarded a house at Rosemeadow as their matrimonial home. Ms Saba’s husband purchased it in about 1996. It was where they lived, with his parents, after their 1998 marriage. Ms Saba’s parents in law have continued to live in the house, and maintain it as the family home, throughout the whole time that she and her husband have lived overseas.
In 1999 Ms Saba’s husband purchased a small three to four bedroom house as an investment property. It has been rented out in the intervening period, and is still owned by him.
Ms Saba and her husband also own another 4 bedroom house near Campbelltown in NSW. They purchased the property in December 2000. The property has been tenanted, and managed by a firm of real estate agents, in the subsequent years. As at February 2010 the property was unencumbered.
Ms Saba opened an Australian bank account in February 2001, and has maintained it ever since. As at June 2013 it had a significant five figure balance.
More recently on their visit to Australia in early 2014 Ms Saba and her husband began to look for a larger home, more suitable as a residence for their family group, with the three teenage children and Ms Saba’s parents in law. Ms Saba’s husband purchased a new four bedroom house in April 2014. They have already moved their furniture and Ms Saba’s parents in law from their previous house into this larger property. This is to be their family home when they return to Australia.
In contrast to their Australian assets, Ms Saba said that she and her husband have no other significant assets. They own their own furniture and cars in Qatar, but nothing else. Their only significant assets are the Australian properties.
Evidence of income tax paid in Australia: Ms Saba has not worked in Australia, but during the period of her overseas residence she has derived income from the rental of the Campbelltown property. She retained an Australian accountant in 2000. In each of the subsequent years he has submitted tax returns for her. He provided a letter in which he reported that she consults with him regularly whenever she returns to Australia “to review her financial position and to review her present portfolio”. This may somewhat overstate objective reality – unless perhaps the accountant was inadvertently tending to conflate the property interests of both Ms Saba and her husband. Ms Saba’s “portfolio” is confined to the modest bank account balance, and the property to which I have referred.
Ms Saba’s Australian income and her corresponding tax obligations are modest. The diligence with which she has attended to the proper discharge of those obligations is some, albeit rather marginal, evidence of her past, current and future association with Australia.
Evidence of active participation Australian community-based activities organisations: Ms Saba holds a New South Wales drivers licence. It expires in January 2015, and I would surmise that it was probably issued during her visit to Australian between December 2009 and January 2010. Ms Saba’s parents in law are active members of the Campbelltown Arabic Baptist Church. There is a reference letter of commendation dated 26 November 2013 from the pastor of the Campbelltown Arabic Baptist Church. The letter attests to the fact that Miss Saba and her husband attended the church between 1999 and 2001, when they lived in Australia. Since then they have continued their connection with the church, and attend church services, participate in church activities and meet with church members whenever they have been in Australia on their periodic return visits. Ms Saba said that she and her husband had contributed funds towards the building of a new church.
On 30 May 2012 Ms Saba was offered a place in a post graduate “Master of Sustainability Science” course conducted by the University of Southern Queensland. She commenced that course in late 2012. The course is delivered online; it involves weekly assignments and significant interaction with fellow students, as well as the subject teachers. Ms Saba had completed 4 units by September 2013, and had completed, or substantially completed, another unit by the time of the Tribunal hearing. Ms Saba has only 3 further units to undertake in order to complete the Masters course.
Ms Saba explained that despite the original undergraduate degree she obtained in Lebanon, she had chosen to pursue her Masters course in an Australian University. She explained that the course was not just concerned with pure scientific discipline. There were substantial issues of regulation and compliance that directly impacted upon the general field of sustainability issues. These kinds of regulatory and compliance issues required knowledge of the relevant jurisdictional legislative regime. She intended to return to Australia and apply her degree qualifications here. She explained that the course she had commenced at the University of Southern Queensland, with its emphasis on the Australian legislative and regulatory regime, would be of little or no practical benefit to her in other jurisdictions. Her contention was that her choice of University was yet another indication of her association with Australia.
IMPRESSION FROM THE INCLUSIVE FACTORS
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.
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.
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. The rather more important point to make is that the mere presence, or absence, of significant associations beyond the circle of familial affection cannot be regarded as a determinative guide to the propriety of a decision about the criterion of satisfaction.
Thirdly, I do not accept the submission that an extended period of pre-application absence from Australia must necessarily detract from the significance of an earlier migration decision, and significant period of Australian residence. The guidance suggested by the “more weight” suggestion is that a period of recent residence is a sound basis for satisfaction of the particular applicant’s intention to participate meaningfully as a member of the Australian community. But so too, and in my view rather more forcefully, may be an anterior implemented decision to migrate to Australia. In the present case Ms Saba’s migration decision is particularly significant, in the light of the subsequent retention, and accumulation, of family assets in Australia, the retention of close family ties and the strongly expressed intention to return to Australia.
Finally, in relation to the imprecise timing of Ms Saba’s intention to return to Australia with her family, it may be accepted that the intention to which s 21(2)(g) of the 2007 Act refers is one that is to be acted upon within a reasonably short time frame. Given that Ms Saba’s eldest daughter is now almost 15, and that Ms Saba’s husband is already taking steps to facilitate the family’s return to Australia, I am satisfied that she is likely to reside in Australia in the near future in any event. But I also note that the likelihood of an applicant residing in Australia is only one of three disjunctive criteria in s 21(2)(g) of the 2007 Act. The third criterion, which I also regard as satisfied, is the likelihood that Ms Saba will maintain a close and continuing relationship with Australia. I am of that view because I am satisfied she has maintained such an association during the period of her overseas absence. The factors that have contributed to that association, principally her family and property connections with Australia, will continue and, upon the family’s return to Australia, likely strengthen.
DECISION
The decision under review is set aside. I determine that Ms Saba had a close and continuing association with Australia during the whole of the 4 year period preceding her application for citizenship in September 1998. I also determine that Ms Saba was, and is, likely to maintain a close and continuing association with Australia. In the light of those determinations, I remit Ms Saba’s application to the Minister to be determined in accordance with these reasons and decision.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC
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Associate
Dated 21 August 2014
Date of hearing 2 July 2014 Solicitors for the Applicant In person Solicitors for the Respondent Mr T Eteuati, Clayton Utz
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