Re Sabumei and Minister for immigration and Border Protection
[2014] AATA 648
•5 September 2014
[2014] AATA 648
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2014/1815
Re
Locklyn Sabumei
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member C R Walsh
Date 5 September 2014 Place Perth The Tribunal affirms the decision under review.
..............[sgd]...............................
Senior Member C R Walsh
CATCHWORDS
Citizenship – eligibility – citizenship by conferral – general residence requirement – non-citizen applicant spouse of Australian citizen – non-citizen applicant physically present in Australia for 173 days (and absent from Australia for 1,288 day) in four years immediately before citizenship application – non-citizen applicant employed overseas – spousal discretion – whether non-citizen applicant had “close and continuing association with Australia” during periods of absence from Australia in relevant period – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 – s 21(2) – s 21(2)(c) – s 22(1) – s 22(9) – s 22(9)(a) – s 22(9)(b) – s 22(9)(c) – s 22(9)(d)- s22A(1) – s22B(1) – s 23(1)
Australian Citizenship Act 1948 – s 13(9)(c)
CASES
Herrman and Minister for Immigration and Border Protection [2014] AATA 105
Hneidi and Minister for Immigration and Citizenship and Ors [2008] AATA 923
Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Le and Minister for Immigration and Border Protection [2014] AATA 382
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Plange and Minister for Immigration and Border Protection [2013] AATA 837
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
Re Sapronov and Minister for Immigration and Citizenship [2011] AATA 126
Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Southhall and Minister for Immigration and Border Protection [2014] AATA 47
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tanko and Miniter for Immigration and Citizenship [2011] AATA 122
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118XQMD and Minister for Immigration and Border Protection [2014] AATA 633
SECONDARY MATERIALS
Australian Citizenship Instructions (as reissued on 23 November 2013) – paragraph 5.18
Explanatory Memorandum to the Australian Citizenship Bill 2005
Macquarie Dictionary, Sixth Edition (2013)Revised Explanatory Memorandum to the Australian Citizenship Bill 2005
REASONS FOR DECISION
Senior Member C R Walsh
5 September 2014
INTRODUCTION
Mr Sabumei is a citizen of Papua New Guinea who lives in Dubai in the United Arab Emirates (UAE), with his Australian citizen wife and two children, where he is employed as an airline Captain with Emirates. This application concerns whether the spousal discretion in s 22(9) of the Australian Citizenship Act 2007 (Citizenship Act) should be exercised so as to treat any of Mr Sabumei’s periods of absence from Australia, in the four years immediately before he applied for Australian citizenship, as periods in which he was “was present in Australia as a permanent resident”, with the consequence that Mr Sabumei satisfies the “general residence requirement” in s 22(1) of the Citizenship Act and is eligible to become an Australian citizen, by conferral, under s 21(2) of the Citizenship Act.
This turns on whether Mr Sabumei had a “close and continuing association with Australia” in the periods in which he was absent from Australia in the four years immediately before his citizenship application for the purposes of s 22(9)(d) of the Citizenship Act. If “yes”, the Tribunal must consider whether to exercise the discretion in s 22(9) of the Citizenship Act in Mr Sabumei’s favour.
BACKGROUND
Mr Sabumei has been an airline pilot since 1987 and employed as an airline Captain, with Emirates, since 6 January 1999.
Mr Sabumei and his wife, an Australian citizen, were married on 2 June 2001.
Mr and Mrs Sabumei have two children, a son and a daughter, who are both Australian citizens.
Mr Sabumei first arrived in Australia on 9 September 2005 on a Subclass 138 (Skilled Australian Sponsored) visa.
Mr Sabumei was granted a Subclass 155 (Resident Return) visa on 4 August 2010.
On 12 March 2014, Mr Sabumei applied to the Department of Immigration and Border Protection (Department) to become an Australian citizen, by conferral, pursuant to s 21(2) of the Citizenship Act (Citizenship Application). The Citizenship Application was received by the Department on 18 March 2014.
In the four years immediately before the Citizenship Application (i.e. in the period from 18 March 2010 to 18 March 2014), Mr Sabumei was absent from Australia for 1,288 days and was physically present in Australia for a 173 days.
In the twelve months immediately before the Citizenship Application (i.e. in the period from 18 March 2013 to 18 March 2014), Mr Sabumei was physically present in Australia for 105 days.
On 20 March 2014, a delegate of the Minister for Immigration and Border Protection (Minister) made a decision refusing the Citizenship Application (Citizenship Decision). In reaching the Citizenship Decision, the delegate found that there was insufficient evidence to support a finding that Mr Sabumei had a “close and continuing association with Australia” during his absences from Australia in the four years immediately before the Citizenship Application and, consequently that he did not meet the requirements of s 22(9)(d) of the Citizenship Act. As such, Mr Sabumei did not satisfy the “general residence requirement” in s 22(1) of the Citizenship Act and, it follows, was ineligible to become an Australian citizen, by conferral, under s 21(2)(c) of the Citizenship Act.
On 9 April 2014, Mr Sabumei applied to the Tribunal for a review of the Citizenship Decision.
ANALYSIS
Eligibility for citizenship
In accordance with to s 21(2)(c) of the Citizenship Act, Mr Sabumei is only eligible to become an Australian citizen, by conferral, if he satisfies the “general residence requirement” (in s 22(1) of the Citizenship Act), the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) or the “defence service requirement” (in s 23(1) of the Citizenship Act).
It is common ground that the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) and the “defence service requirement” (in s 23(1) of the Citizenship Act) do not apply to Mr Sabumei and that in order to be eligible for Australian citizenship by conferral, Mr Sabumei must satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act).
Subsection 22(1) of the Citizenship Act provides that:
22General 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.
Since Mr Sabumei was only present in Australia for 173 days in four years immediately before the Citizenship Application , including only 105 days in the 12 months immediately before the Citizenship Application , he cannot satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act) unless he is able to satisfy one of the Ministerial discretions in s 22 of the Citizenship Act.
Ministerial (spousal) discretion
The only Ministerial discretion upon which Mr Sabumei has sought to rely, is the discretion in s 22(9) of the Citizenship Act, which 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.
As Senior Member Fice said in Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher) at [18] to [20]:
18. The opening paragraph of s 22(9) makes it clear that where a person is in a spousal or de facto relationship with an Australian citizen at the time the person makes an application for Australian citizenship, the Minister may exercise a discretion to treat the period that person has spent overseas as a period where the person was present in Australia as a permanent resident.
19. The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s 22 (1), even when allowances are made for overseas absences as provided for in subsections (1A) and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia. It is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.
20. Furthermore, the only days which may be counted as days spent in Australia when a person was outside of Australia are those days when the person was a permanent resident of Australia. [Emphasis added]
It is not in dispute that Mr Sabumei meets the requirements of s 22(9)(a), (b) and (c) of the Citizenship Act. What is in dispute is whether Mr Sabumei had a “close and continuing association with Australia” during any or all of the periods in which he was absent from Australia as a permanent resident in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act.
Objects or purpose of s 22(9) of the Citizenship Act
Under s 13(9) of the Australian Citizenship Act 1948 (1948 Act), the predecessor to s 22(9) of the Citizenship Act, the Minister had a discretion to grant a certificate of Australian citizenship to a person who was a permanent resident and the spouse, widow or widower of an Australian citizen. There was no requirement for the spouse to meet either the “residency” requirement or the “close and continuing association with Australia” requirement which applied to other applicants for Australian citizenship.
The Explanatory Memorandum (EM) to the Australian Citizenship Bill 2005[1] which ultimately introduced the Citizenship Act, including the spousal discretion in s 22(9) of the Citizenship Act, states (at p29):
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example, if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result, this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia. [Emphasis added]
[1] The original Australian Citizenship Bill 2005 as introduced into the House of Representatives was amended before going to the Senate and being passed as the Australian Citizenship Act 2007. Consequently, a Revised Explanatory Memorandum for the Bill was issued. However, it is noteworthy that proposed new s 22(9) remained unaffected by the amendments to the Bill by the Senate.
It is clear from the EM that, unlike former s 13(9) of the 1948, s 22(9) of the Citizenship Act is intended to require spouses of Australian citizens to meet the same criteria as other adult applicants for Australian citizenship, including the “residence” and “close or continuing association with Australia” requirements. The EM acknowledges that, in some circumstances, the spouse of an Australian citizen may have difficulty meeting the residence requirements (for example, where they accompany their Australian citizen spouse overseas), hence the inclusion in s 22(9) of a discretion to waive all or part of the residence requirements for the spouse of an Australian citizen who can demonstrate a “close and continuing association with Australia”: see Re Sapranov and Minister for Immigration and Citizenship [2011] AATA 126 at [28] to [30] and Taher at [29] – [30].
As Senior Member Fice correctly observed in Taher at [31]:
It appears that the intention [of s 22(9) of the Citizenship Act] is to remove the presumption of cohabitation [which existed in s 13(9) of the 1948 Act] by requiring spouses of Australian citizens to meet the residence requirements; just as any other applicant for citizenship is required to do. However, it also appears to have recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided that the person was a permanent resident throughout that time.
Close and continuing association with Australia
The phrase “close and continuing association” is not defined in the Citizenship Act. The words in the phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The latest version of the Macquarie Dictionary[2] defines “close” (at 287) as meaning “near, or near together, in space, time or relation”, “continuing” (at 327) as meaning “to cause to last or endure; maintain or retain, as in a position…to remain in a particular state or capacity” and “association” (at 82) as “the act of associating….the state of being associated….connection or combination.”
[2] Macquarie Dictionary, Sixth Edition (2013), Macquarie Dictionary Publishers Pty Ltd, Sydney, Australia.
The phrase “close and continuing association with Australia”, as it appears in s 22(9)(d) of the Citizenship Act, has been considered in a number of recent Tribunal decisions, including Sie and Minister for Immigration and Border Protection [2014] AATA 60 (Sie) at [37], Herrman and Minister for Immigration and Border Protection [2014] AATA 105 at [33], Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52], Taher at [47] and [48] and Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [25]. These decisions have consistently found that whilst an applicant for Australian citizenship may have a close and continuing association with Australian family that is not the same as having a close and continuing association with Australia. This is self-evident from the words in the subsection, namely that a person must have had a “close and continuing association with Australia” in the relevant period. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had a “close and continuing relationship with Australia” in the four years immediately before his or her citizenship application for the purposes of s 22(9)(d) of the Citizenship Act.
Australian Citizenship Instructions
The preamble to the Australian citizenship Instructions (ACIs) states:
The role of the ACI's is to support the Australian Citizenship Act 2007. The Instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers must be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers.
It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Chapter 5 of the current ACIs (as reissued on 23 November 2013) is concerned with citizenship by conferral. Of particular relevance here, is paragraph 5.18, which sets out the following eleven factors that “may” demonstrate a “close and continuing association with Australia” for the purposes of the Ministerial discretion in s 22(9) of the Citizenship Act:
·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 spouse;
·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
The above eleven factors are not intended to be exclusive.[3] Further, as stated by Senior Member Fice in Taher at [47]:
…the factors referred to [in 5.18 of the ACIs] 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. [Emphasis added]
[3] Paragraph 5.18 of Chapter 5 of the ACIs states that the factors listed are factors that “may” demonstrate a close and continuing association with Australia and that “they include but are not limited to” the factors listed.
Accordingly, whether Mr Sabumei had a “close and continuing association with Australia” throughout the relevant period is ultimately a question of fact to be objectively assessed having had regard to all relevant factors, including, but not limited to, the factors listed in paragraph 5.18 of the ACIs.
Applying the factors listed in paragraph 5.18 of the ACIs to Mr Sabumei’s factual circumstances, the Tribunal makes the following observations:
(a)Evidence that the person migrated to and established a home in Australia prior to the period overseas – Mr Sabumei and his Australian citizen wife and two children lived in Western Australia from 18 January 2007 to 25 August 2009. They resided in various rental properties in this period.
(b)Australian citizen children – Mr Sabumei has two Australian citizen children, a son and a daughter, who were both born in Dubai in the UAE.
(c)Long term relationship with Australian citizen spouse or de facto partner – Mr Sabumei has been married to his Australian citizen wife since 2 June 2001 (i.e. over 13 years).
(d)Extended family in Australia – Mr Sabumei has the following extended family in Australia – his father-in-law (who lives in Queensland) in an aged care facility, his first cousin (who lives in Queensland), his two aunts-in-law (who each live in Queensland), his ex-sister-in-law (who lives in Queensland), his niece (who lives in Queensland) and his nephew (who lives in Queensland).
(e)Regular return visits to Australia – Since first arriving in Australia on 9 September 2005 (on a Subclass 138 (Skilled Australian Sponsored) visa), Mr Sabumei has visited Australia on numerous occasions for varying lengths of time. In the period from 27 February 2005 to 20 July 2005, Mr Sabumei made regular trips to Australia on a Subclass 942 (Crew Travel Authority) visa: see also paragraph 38 below.
(f)Regular periods of residence in Australia – Mr Sabumei has had one extended period of residence in Australia, being the period in which he and his Australian citizen wife and two children lived in Western Australia (from 18 January 2007 to 25 August 2009), being a period of approximately two and a half years. However, this extended period preceded the four years immediately before the Citizenship Application (i.e. the period from 18 March 2010 to 18 March 2014). In the four years immediately before the Citizenship Application, Mr Sabumei was physically present in Australia for 173 days. These 173 days were accumulated over short intermittent visits to Australia and most of these visits were 24 to 36 hour stop overs associated with his employment as an airline Captain for Emirates. The longest continuous period Mr Sabumei spent in Australia in the four years immediately before the Citizenship Application was 10 days (i.e. from 7 July 2010 to 19 July 2010). The longest period Mr Sabumei has spent in Australia since becoming a permanent resident has been no longer than one month.
(g)Intention to reside in Australia – According to Mr Sabumei, his intention has always been to return to Australia, to reside permanently. Mr Sabumei’s contends that his intention to reside in Australia is supported by the fact that the only property that he and his wife own is in Queensland, Australia, in close proximity to his wife’s family, his family and his close long-term friends. Mr Sabumei states that the Queensland property was purchased by himself and his wife with the full intent of it being his and his family’s home in Australia upon their return.
(h)The person has been on leave from employment in Australia while accompanying their spouse or partner overseas – This factor does not apply in Mr Sabumei’s case. Mr Sabumei’s Australian citizen wife accompanied him to Dubai in the UAE to accompany him whilst he worked as an airline Captain for Emirates.
(i)Ownership of property in Australia – Mr and Mrs Sabumei purchased a property in Coomera, Queensland in 2010 by taking out a “Rocket Investment Loan” with Westpac. Mr Sabumei and his family have never lived in the Queensland property. It has always been rented out and negatively geared.
(j)Evidence of income tax paid in Australia over the past four years – Mr Sabumei has lodged income tax returns and paid tax in Australia (as a “non-resident”) since the income tax year ended 30 June 2007.
(k)Evidence of active participation in Australian community based activities or organisations – Mr Sabumei has maintained his Airline Transport Pilot Licence (ATPL) and annually renewed his Class 1 medical certificate – both documents are issued by the Civil Aviation Safety Authority of Australia (CASA). Mr Sabumei explained that, once issued, an ATPL remains valid indefinitely, without the need for renewal. However, a Class 1 medical certificate needs to be renewed annually, as a requirement for the exercise of an ATPL in Australia. Mr Sabumei stated that he has continued to renew his Class 1 medical certificate annually on his own volition and expense (being $275 annually) in order to keep his options open “should an opportunity for employment present itself in Australia at short notice”. According to Mr Sabumei, his voluntary annual renewal of his Class 1 medical certificate demonstrates his “commitment to Australia.”
(l)There is no other evidence of Mr Sabumei’s participation in Australian community based activities or organisations.
Other factors, not listed in paragraph 5.18 of the ACIs, which may demonstrate that Mr Sabumei had a “close and continuing association with Australia” are as follows:
·Australian bank accounts – Mr Sabumei and his wife have maintained and transferred funds (from his employment income with Emirates) to a joint “Westpac eSaver” account in Australia since 2005. The closing balance of that account, as at 31 January 2014, was $39,450.96. According to Ms Sabumei, the funds were transferred “to advance our financial position in Australia, which should also demonstrate a commitment to my future in Australia.” In addition, Mr Sabumei has transferred funds (from his employment income with Emirates) to his “Investment Loans” with Westpac which relate to his property in Queensland. Mr Sabumei said that, over the years, he has transferred income (from his employment with Emirates) totalling about $700,000 to his respective bank accounts in Australia.
·On-going relationship with family and friends in Australia – Mr Sabumei stated that his father-in-law has visited him and his family in Dubai in the UAE a few times, but that he is no longer able to do so due his age and medical condition. Despite this, Mr Sabumei said that he and his family remain close with his father-in-law. Further, Mr Sabumei’s wife has travelled without him to Australia on numerous occasions to check on her father (at an aged care facility in Queensland) and to visit their Queensland property. Finally, Mr Sabumei said that he has consistently kept in touch with Australian family and friends by way of telephone calls, “Skype” calls and/or personal visits.
·Children’s choice of school – Mr Sabumei explained that in Dubai he sends his Australian citizen children to an international baccalaureate school in Dubai with an English-based, rather than American-based, curriculum. He said that this was a deliberate choice and is intended to make his children’s transition into an Australian school in due course easier. According to Mr Sabumei, this further demonstrates his intention to reside in Australia.
The final paragraph of 5.18 of the ACIs contains the following “rider”:
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(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. [Emphasis added]
As stated, Mr Sabumei was physically present as a permanent resident in Australia for 173 days (and absent from Australia for 1,288 days) in the four years immediately before the Citizenship Application (i.e. in the period from 18 March 2010 to 18 March 2014). This is less than half of the 365 day benchmark identified in the “rider” contained in paragraph 5.18 of the ACIs. Further, as stated, Mr Sabumei was physically present in Australia as a permanent resident for 105 days in the 12 months prior to the Citizenship Application.
Mr Sabumei made the submission that although he was absent from Australia for 1,288 days in the four years immediately before the Citizenship Application, the Tribunal should nevertheless be satisfied that he had a “close and continuing association with Australia” throughout this period since he satisfied at least 8 of the 11 factors listed in paragraph 5.18 of the ACIs, plus 2 non-listed factors. In support of this contention, Mr Sabumei referred to a number of Tribunal decisions in which applicants have succeeded in establishing a “close and continuing association with Australia”, despite the fact that, in each case, the applicants satisfied less of the factors in 5.18 of the ACIs than Mr Sabumei and irrespective of the fact that they were physically present in Australia for less than 365 days in the four years immediately before their respective citizenship applications (and, therefore, did not satisfy the words in the “rider” to 5.18 of the ACIs).[4] As submitted by the Minister, in each of the Tribunal decisions referred to by Mr Sabumei, something greater than family connections and some limited financial associations or investments in Australia existed, which is essentially the sum total of Mr Sabumei’s claim in this matter. Mr Sabumei has sought to compare his situation with the applicants in the other Tribunal decisions by listing the number of factors in paragraph 5.18 of the ACIs which have been satisfied in each case as some kind of “checklist”. As contended by the Minister, this cannot, with respect, form a rational approach or basis for the exercise of the s 22(9) discretion. What is required is some sort of qualitative assessment of the factors listed in the ACIs and other factors to determine whether a close and continued association is established in a particular case. Each case turns on its own facts and the Tribunal is not bound by other decisions of the Tribunal.
[4] The decisions referred to by Mr Sabumei include Tanko and Minister for Immigration and Citizenship [2011] AATA 122; Paula and Minister for Immigration and Citizenship [2012] AATA 543; Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689; Plange and Minister for Immigration and Border Protection [2013] AATA 83; Southhall and Minister for Immigration and Border Protection [2014] AATA 47 and Le and Minister for Immigration and Border Protection [2014] AATA 382.
Mr Sabumei also referred to following comments of Senior Member Bell decision in Southall and Minister for Immigration and Border Protection [2014] AATA 47 at [24]:
I am mindful of the passage in the Citizenship Instructions that says “less weight” should be given to indications of a close association with Australia if a person has been present in Australia for less than 365 days in the four year period. However, I am also mindful of the passage in the Instructions that says:
Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the [Citizenship] Act.
As submitted by the Minister, whilst the ACIs are not binding on the Tribunal and do not expressly provide that the failure of an applicant for Australian citizenship to be present in Australia for at least 365 days in the four years immediately before his or her citizenship application is a “bar” to a conclusion that that person has a “close and continuing association with Australia” in the relevant period, or to the exercise of the s 22(9) 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 the exercise of the discretion, depending on how many days that person has been present in Australia. The policy in the ACIs should generally be followed by the Tribunal unless there is good reason for it not to do so: refer to paragraph 27 above.
Mr Sabumei was only physically present in Australia for 173 days in the four years immediately before the Citizenship Application and only 105 days as a permanent resident in the 12 months immediately before the Citizenship Application. As discussed, the longest continuous period that Mr Sabumei has spent in Australia in the relevant period (i.e. from 18 March 2010 to 18 March 2014) is 10 days (being from 7 July 2010 to 19 July 2010). Indeed, since becoming a permanent resident of Australia in 2005, Mr Sabumei has, by his own admission, been physically present in Australia for only one extended period of approximately two and half years (being from 18 January 2007 to 25 August 2009).
Mr Sabumei’s physical presence in the four years immediately before the Citizenship Application can only, as submitted by the Minister, be described as “minimal”. In such circumstances, “less weight” should be given to the factors in paragraph 5.18 of the ACIs which have been satisfied by Mr Sabumei and upon which Mr Sabumei relies as demonstrating a “close and continuing association with Australia” for the purposes of s 22(9)(d) of the Citizenship Act.
In reaching this conclusion, I note that a number of Tribunal decisions have emphasized the importance of “residence” as a consideration in the exercise of the spousal discretion. I agree that such an approach is entirely consistent with the history and purpose of the spousal discretion in s 22(9) and with the provisions in the Citizenship Act more generally. For example, in Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75, Senior Member Fice made the following comments (at [19]) in relation to the spousal discretion in former s 13(9) of the 1948 Act:
…the essential themes underlying the grant of Australian citizenship throughout the [1948] Act and the ACIs are residence and a close and continuing association with Australia. While there are modifications to the period of residence required for the ordinary grant of Australian citizenship, residence and presence in Australia are of paramount importance when considering whether to exercise a discretion under s 13(9)(c) [of the 1948 Act].
Similarly, in the Hneidi and Minister for Immigration and Citizenship [2008] AATA 923, Senior Member Hastwell observed (at [87]), in relation to the spousal discretion in former s 13(9) of the 1948 Act, that “Residence and connection with Australia are important considerations”.
More recently, in Taher, Senior Member Fice said (at [10]), in relation to the spousal discretion in s 22(9) of the Citizenship Act, that “it is clear that residency is of paramount importance when determining whether to grant citizenship to an applicant” and (at [14]) that any dispensation from the residency requirements is not something which should be “granted lightly” and that “significant periods of physical presence in Australia are important” in deciding whether citizenship should be granted. In support of this view, Senior Member Fice referred (at [11]) to the following extract from the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005:
The change in residence requirements from those previously outlined in the [1948 Act] recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.
In addition, it is important to note that Australian citizenship is a privilege not a right.
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and the appreciate the commitment that they are required to make to become citizens.
Mr Sabumei’s physical presence in Australia in the four years immediately before the Citizenship Application, and for the entire time in which he has been a permanent resident of Australia, has been the antithesis of “significant”. It is acknowledged that this is undoubtedly a direct result of his employment as an airline Captain with a foreign airline and his inability to obtain suitable alternative employment with an airline which would allow him to be based in Australia.
In relation to the factors listed in paragraph 5.18 of the ACIs and the other “non-listed” factors upon which Mr Sabumei relies to demonstrate that he had a “close and continuing association with Australia” in the relevant period, the Tribunal makes the following observations.
Whilst it is accepted that Mr Sabumei has an Australian citizen wife and two children and that he genuinely maintained a close and continuing association with Australian family and friends in the four years immediately before the Citizenship Application (and he continues to do so) that does not, of itself, constitute a “close and continuing association with Australia” for the purposes of s 22(9)(d) of the Citizenship Act: refer to paragraph 25 above.
In relation to Mr Sabumei financial associations with Australia, the Tribunal notes that Mr Sabumei has never been employed by an Australian company and that he has been employed by Emirates, a foreign airline, since 1999. Further, whilst it is acknowledged that the only property Mr Sabumei has ever owned is a property in Queensland, Australia, he has never lived in that property. Since purchasing the Australian property with his wife in 2010, Mr Sabumei has leased out the property and negatively geared it for Australian tax purposes (with mortgage repayments on the property consistently being higher than the rental income generated by the property). Whilst Mr Sabumei may possess some general intention to live in the Queensland property at some point in the future, at this point in time and throughout the relevant period, the Queensland property can more accurately be described as an “investment property” which was acquired by Mr Sabumei and his wife to enable Mr Sabumei to minimise his Australian tax liability.
Mr Sabumei provided evidence of bank accounts in Australia, being joint savings accounts and loan accounts with his wife with Westpac. According to Mr Sabumei, over the years he has transferred about $700,000 from his employment income with Emirates to his Australian join bank accounts. Most of the money transferred has been used to repay his mortgages on the Queensland investment property which he has never lived in. This does not establish a “close and continuing association with Australia” for s 22(9) purposes.
On the evidence, Mr Sabumei has had, and continues to have, a close and continuing association with Dubai in the UAE. Mr Sabumei commenced his employment and began living in Dubai in January 1999, where he remained until about 17 January 2007 (i.e. almost 8 years). Following a period of about two and a half years living in Australia (i.e. from 18 January 2007 to 25 August 2009), Mr Sabumei returned to live in Dubai and he has lived there since (i.e. for about the last 5 years). Mr Samubei’s children were born in Dubai and they attend school in Dubai. Whilst the fact that Mr Samubei has a close and continuing association with Dubai does not in any way preclude him from also having a close and continuing association with Australia for the purposes of the Citizenship Act, the closeness and the continuing nature of Mr Sabumei’s association with Dubai does, nevertheless (as was submitted by the Minister), stand in stark contrast to his association with Australia.
Whilst the Tribunal accepts that Mr Sabumei has a genuine intention to reside in Australia in the future, there is currently no evidence that he has acted on that intention. Mr Sabumei’s intention to reside in Australia is, to adopt the language used by Senior Member Handley in Sie at [38] “aspirational, prospective and speculative”. As Senior Member Handley said in Sie (at [32]) “the expression intention to reside in Australia must mean, if not an immediate intention, an intention to reside with some reasonable proximity to the grant of citizenship”. That is not the case here.
For the above reasons, the Tribunal does not consider that Mr Sabumei had a “close and continuing association with Australia” in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act. As such, he cannot satisfy the “general residence requirement” in s 22(1) of the Citizenship Act and is not eligible to become an Australian citizen, by conferral, under s 21(2) of the Citizenship Act.
Exercise of discretion
Since a “close and continuing association with Australia”, within the meaning of s 22(9)(d) of the Citizenship Act, has not been established in Mr Sabumei’s case, it is unnecessary for the Tribunal to consider whether it would exercise the discretion in s 22(9) of the Citizenship Act, to treat any of the periods in which Mr Sabumei was absent from Australia, in the four years immediately before the Citizenship Application, as a period in which Mr Sabumei was present in Australia as a permanent resident.
Even if the Tribunal had found that Mr Sabumei had a “close and continuing association with Australia” in the relevant period, that would not of itself be sufficient for the spousal discretion in s 22(9) of the Citizenship Act to be exercised in Mr Sabumei’s favour.
In Taher, Senior Member Fice took the position (at [36]) that in exercising the spousal discretion in s 22(9) of the Citizenship Act regard should be had to whether the applicant’s reasons for being absent from Australia in the four years before applying for citizenship arise out of a spousal relationship with an Australian citizen. If the applicant’s reasons are not related to the spousal relationship but, rather, are “a matter of personal choice, such as the ability to earn substantially more income in another country”, the spousal discretion should not be exercised. Differently constituted Tribunals have approached this matter differently. For example, in the recent decision XQMD and Minister for Immigration and Border Protection [2014] AATA 633, Senior Member Isenberg said (at [34]):
…I am of the view that, the limitation in Taher , should not be applied to preclude the exercise of the discretion absolutely, if a person is absent from Australia due to reasons that are not directly related to that person’s spouse. I find that s 22(9) provides only the context in which the consideration of the discretion is enlivened; it is not limited to circumstances where an applicant for citizenship is precluded from being in Australia for the relevant period because of the commitments of their spouse. While that may be a very strong factor in favour of the exercise of the discretion, the inclusion of other considerations in the ACIs militate against the limited interpretation applied in Taher.
Mr Sabumei was overseas, in Dubai in the UAE, in the four years immediately before the Citizenship Application solely as a consequence of his employment as an airline Captain with Emirates (and because he could not find suitable alternative employment which enabled him to based in Australia). Mr Sabumei’s reasons for being absent from Australia in the relevant period in no way arise out of his spousal relationship with his Australian citizen wife. Whilst I agree with the above remarks of Senior Member Isenberg in XQMD, I consider that there is compelling logic to Senior Member Fice’s comments in Taher (at [36]). After all, the discretion in s 22(9) is a spousal discretion, which exists to assist certain spouses of Australian citizens gain citizenship when they otherwise could not. The requirement to establish a “close and continuing association with Australia” is such that s 22(9) is clearly not intended to apply to all spouses of Australian citizens. As submitted by the Minister, another person in Mr Sabumei’s position, identical save for not having an Australian citizen spouse, would clearly not be able to obtain Australian citizenship. If follows, therefore, that there must be something about the non-citizen applicant’s spousal relationship with an Australian citizen which enlivens the discretion to be used to overcome the applicant’s failure to meet the residence requirements.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh ……[sgd D Brodie]................
Administrative Assistant
Dated 5 September 2014
Date of hearing 3 September 2014 Representative for the Applicant Self Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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