Shah and Minister for Immigration and Border Protection (Citizenship)

Shah and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1085 (1 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4474
Re:Sagar Shah
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:1 May 2018
Place:Brisbane

The decision under review is affirmed.
......................[sgd]..................................................
Senior Member Theodore Tavoularis
CATCHWORDS
CITIZENSHIP – citizenship by conferral – where citizenship application took over four years to process – where Applicant resided overseas for much of that time – where Applicant meets most other requirements for citizenship – section 21(2)(g) of the Citizenship Act 2007 (Cth) – whether Applicant is likely to reside or to continue to reside in Australia – whether Applicant is likely to maintain a close and continuing relationship with Australia – whether Applicant has sufficient ties to the Australian community – decision under review affirmed
LEGISLATION
Citizenship Act 2007 (Cth), s 21
CASES
Bates and Minister for Immigration and Border Protection
[2015] AATA 492
Kim and Minister for Immigration and Citizenship [2015] AATA 67
Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664
Taher and Minister for Immigration and Border Protection [2013] AATA 917

Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 May 2018
INTRODUCTION

Mr Sagar Shah (“the Applicant”) is an Indian citizen who has applied for Australian citizenship by conferral. At the time he applied for citizenship, on 10 December 2012, the Applicant had resided in Australia since March 2006 and held a Skilled – Independent (subclass 136) (Permanent) visa.[1] The Applicant has held a Resident Return (subclass 155) (Permanent) visa since August 2016.[2]
[1] See Exhibit 4, T-Documents, T 4, pp 10-16.
[2] Ibid, T 27, p 1002.
A delegate of the Minister for Immigration and Border Protection (“the Respondent”) refused the Applicant’s application for citizenship by conferral on 20 June 2017, some four and a half years after the Applicant had lodged his application.[3] The Applicant now seeks to appeal that decision to this Tribunal.
[3] Ibid, T 27, pp 998-1010.
THE LEGAL FRAMEWORK
The Respondent has conceded that the Applicant satisfies all the requirements for Australian citizenship with the exception of s 21(2)(g) of the Citizenship Act 2007 (Cth) (“the Act”). I consider this concession properly made. Thus, I must turn my attention to the terms of s 21(2)(g). To properly consider whether the Applicant meets the requirements of this provision, it is helpful to set it out in full:
Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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 …
Clearly, there are two alternate avenues through which a person can satisfy this provision: (1) the person must be likely to reside, or to continue to reside in Australia if their application were to be approved; or (2) the person must be likely to maintain a close and continuing association with Australia if their application were to be approved. I note that these avenues run in the alternate – if a person is not likely to reside or to continue to reside in Australia, they still may satisfy the latter element of the test, and vice versa.
Non-binding guidance on this provision can be found in the Citizenship Policy:
Likely to reside / close and continuing association
Applicants are expected to be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if their application is approved, if they are seeking to acquire Australian citizenship by conferral…
…
The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the applicant’s intentions unless there is information to the contrary.
Likely to reside, or continue to reside in Australia
Intention to reside should be investigated further in situations where:
§ the applicant has spent significant periods outside of Australia since becoming a permanent resident or
§ has requested a citizenship test or citizenship ceremony be conducted overseas.
If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision.
Maintain a close and continuing association with Australia
Factors that may contribute to a close and continuing association with Australia include:
§ Australian citizen spouse or de facto partner
§ Australian citizen children
§ length of relationship with Australian citizen spouse or de facto partner
§ extended family in Australia
§ return visits to Australia
§ periods of residence in Australia
§ intention to reside in Australia
§ employment in Australia (for example, public or private sector)
§ ownership of property in Australia and
§ evidence of income tax payment in Australia.[4]
[4] See Citizenship Policy, pp 70-71.
THE RESPONDENT’S CONTENTIONS
The Respondent contends that the Tribunal cannot be satisfied that the Applicant is likely to reside in Australia or maintain a close and continuing association with this country if his citizenship application is granted. The basis of this contention lies in an assessment of the Applicant’s circumstances against the abovementioned factors set out in the Citizenship Policy. When that exercise is done, according to the Respondent, the Tribunal should be convinced that the Applicant does not have a close and continuing association with Australia.
The threshold or test required to be met for the Tribunal to be satisfied, on the balance of probabilities, that the Applicant is “likely to reside or continue to reside in Australia”, involves a determination of whether the Applicant will reside in Australia soon after becoming a citizen.[5]
[5] See Bates and Minister for Immigration and Border Protection [2015] AATA 492, citing Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664.
It appears that the Respondent’s most critical contention is that the Applicant cannot be said to have a close and continuing association with Australia or that he is otherwise likely to reside here because he has spent very little time in Australia following his application for citizenship. As mentioned earlier, that application was filed in December 2012. The Applicant’s movement records are clear: he departed Australia on 27 March 2014 for India and did not return from India until 3 October 2017.[6] This comprises a continuous and unbroken absence from Australia of around three years and six months. Those movement records further indicate that, since the Applicant’s initial arrival in March 2006, he has departed and returned to Australia on nine separate occasions.[7] Stated cumulatively, he has been absent from Australia for approximately five of the twelve years since March 2006.
[6] Exhibit 5, Applicant’s Movement Records.
[7] Ibid.
For guidance on the significance of periods of absence by applicants, the Tribunal was pointed to two authorities. Senior Member Britton in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 said at [50] that an applicant’s physical presence in Australia is: “highly relevant to the nature of a person’s association with Australia.” The factual circumstances in the present case are similar to those Deputy President Constance dealt with in Kim and Minister for Immigration and Citizenship [2015] AATA 67 (“Kim”), which involved an applicant’s absence from Australia in the four years prior to their application for citizenship.
Deputy President Constance observed at [31] that:
Physical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia. I regard Ms Kim’s limited physical presence in Australia in the four years prior to her application for citizenship as being of particular relevance. When considered in light of her very limited involvement in the Australian community, this outweighs any connection which she does have with Australia.[8]
(my underlining)
[8] Ibid.
In my view, the absence of the Applicant in the period leading up to determination of his citizenship application is more significant than that in Kim. In Kim, the Tribunal was concerned with the applicant’s limited physical presence in Australia in the four years prior to her application for citizenship. Here, we have an applicant who filed an application in December 2012, which application was determined in mid-2017, yet the Applicant was entirely absent from Australia for three and a half of the four and a half years involved in the processing of his application.
As against such a finding, it is of great assistance to have regard to the abovementioned factors in the Citizenship Policy. In determining whether an applicant can reasonably be expected to maintain a close and continuing association with Australia, were that person to be granted citizenship, the following bullet points need to be addressed. I will do so on a question and answer methodology, based on the evidence as it transpired before the Tribunal.
·Does the Applicant have an Australian citizen spouse or de facto partner? Yes.
·Does the Applicant have Australian citizen children? Yes. Both of his children are Australian citizens.
·What is the length of relationship with the Australian citizen spouse or de facto partner? The Applicant has been married to his wife for something in the order of 16-17 years.
·Does the Applicant have extended family in Australia? Yes, his brother in law and his family reside in Coomera, Queensland. The brother in law has a wife and two children. They all arrived in Australia in 2008. The brother in law and his family are Australian citizens.
·Has the Applicant frequently returned to Australia and how long were his periods of residence in Australia? As mentioned earlier, the Applicant arrived in Australia in March 2006. Between March 2006 and the present, the Applicant has returned to Australia after each of the nine occasions he has left this country. This comprises three periods: (1) from March 2006 to just prior to his departure for India in 2014 – the Applicant left and returned to Australia on seven occasions, for a cumulative period of about a year and a half; (2) from his departure for India in 2014 to his return in 2017 – the Applicant was overseas for the entirety of this three and a half year period; and (3) from October 2017 to the present – the Applicant departed Australia in January 2018 for two and a half weeks and then returned. Thus, in the twelve years since his first arrival in Australia, the Applicant has spent about five years outside Australia.[9] However, he has consistently returned to Australia and resided here after each of his trips.
·Does the Applicant express an intention to reside in Australia? Yes. The Applicant’s clear and unequivocal evidence was that he and his family regard Australia as their home and that they all want to live here on a permanent basis.
·Has the Applicant had or does he have employment in Australia? Yes. When the Applicant arrived in Australia, he sought and obtained employment in a range of jobs in the IT industry and at least one other sector. In 2014, the Applicant became self-employed by commencing the business trading as “Nath International Pty Ltd”, whose primary activity is online retail sales. More recently, in 2016, the Applicant commenced the business known as “Technobits Digital”, which is an IT business with an office in Parramatta in New South Wales and one in Adelaide in South Australia. It presently employs one person on a part-time basis.[10]
·Does the Applicant own property in Australia? During his time in Australia, the Applicant has owned real property. That property was sold and he now resides (with his family) in rented accommodation in Sydney. In his evidence, the Applicant stated a firm intention to purchase another residential property. The Applicant gave evidence of owning two motor vehicles, one for himself and one for his wife, and of having spent $25,000 on the acquisition of household goods and furniture. In addition, the Applicant gave evidence of consistently maintained policies of private medical insurance for himself and his family, and life insurance for himself.[11]
·Has the Applicant paid or does the Applicant pay income tax in Australia? Yes. His evidence was that he has consistently filed income tax returns for income he has derived in Australia. In particular, he gave evidence of the specific returns he lodged in the years of income ending 30 June 2013, 2014 and 2015, regarding income he earned in those periods. He gave further evidence about the respective returns he filed for the years of income ending 30 June 2016 and 2017, but these returns were nil returns due to his absence from Australia for tax purposes during these years.
[9] Ibid.
[10] Exhibit 1, Applicant’s Statement with Annexures.
[11] Exhibit 2, Applicant’s Email of 23/01/2018 with Annexures.
This rather simplistic exercise of answering each of the abovementioned dot points in the Citizenship Policy must be tempered with the approach adopted by Senior Member Fice in the matter of Taher and Minister for Immigration and Border Protection [2013] AATA 917 (“Taher”) at [47], where he said:
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.
(my underlining)
I am of the view that the Applicant’s three and a half year period of absence from Australia in the period leading up to the determination of his application for citizenship strongly weighs against his application. I consider that this lengthy absence outweighs the factors in the citizenship policy that may, at first blush, indicate a close and continuing association with Australia.
As observed by Senior Member Fice in Taher, individual factors, taken alone, are not sufficient to demonstrate the necessary close and continuing association with Australia. The Applicant seems both a dedicated husband and father. His wife and children are citizens of this country. But these factors, alone, are not sufficient to demonstrate the necessary close and continuing association with this country.
As also observed by Senior Member Fice in Taher, regard must be had to the stated policy purpose around citizenship as detailed in the preamble to the Act. The concept of citizenship involves a consistently demonstrated membership or participation in the community into which an applicant seeks admission, via that grant of citizenship. There must be a commonality of interests between the Applicant and that community, together with reciprocal rights and obligations. The Applicant’s almost four year absence from Australia after his application for citizenship was lodged in December 2012 and poses grave difficulties for him being able to demonstrate any such claim to commonality and/or reciprocal rights and obligations with the community of which he seeks to become a citizen.
Three and a half, almost four years, is clearly a very long period of time. The Applicant sought to ameliorate the length of his absence on two primary grounds. First, due to cultural reasons, with his position as the eldest son of his parents, the Applicant said it was incumbent upon him to take primary responsibility for the welfare of both the family and his family’s business interests during his father’s infirmity. Secondly, the rather extensive and varied nature of the business interests, says the Applicant, required his presence in India for the purpose of keeping those interests on an even financial keel during his father’s infirmity and to configure control of those business interests so as to be capable of management by others after the Applicant returned to Australia.
I have misgivings about this evidence. Setting to one side the differences in healthcare methods and standards between Australia and India, I find it difficult to accept that it took a period approaching four years to (1) receive a diagnosis about the father’s condition; (2) stabilise the father’s condition and to otherwise implement a programme of ongoing care and rehabilitation; and (3) reach a point where either the Applicant was satisfied or his medical advice was such as to convince him to return to Australia to make this country, as he now contends, his home forever. In short compass, three and a half years, in my view, constitutes more than adequate time for a diagnosis to be arrived at and for care arrangements for the father to be established. I therefore have great difficulty with the Applicant’s assertion that the predominant purpose for which he spent nearly four years in India was to look after his father.
With respect to the second reason given by the Applicant, the Applicant is clearly part of a savvy (certainly in terms of technology) and commercial family business unit. I find it difficult to accept that for a period approaching four years, arrangements could not be arrived at to facilitate the Applicant’s role in the Indian business operations in a way that would have seen him reside more predominantly in Australia. For example, a power of attorney from the Applicant in favour of another family member involved in the Indian businesses could have been readily drafted and signed. Business meetings and other communications could have been readily facilitated by Skype or other on-line conferencing software. Similarly, transmission of all usual and necessary data relating to the business operations could be facilitated or undertaken by electronic means. I therefore have difficulty in accepting the Applicant’s version of why he was out of Australia for a virtually continuous four year period after he filed this application for citizenship.
CONSIDERATION
The Applicant’s evidence before the Tribunal
The Applicant operates two businesses in Australia. First, he operates Technobits Pty Ltd. He says that for the back-office elements of the business, he does not need to be in Australia. However, as his clients are in Australia, he feels he needs to be here to effectively run the business. In cross-examination, he stated concerns about relying solely on employees for this element of the business. Secondly, he operates Nath International Pty Ltd which, as mentioned earlier, is involved in online sales.

There is a third business in which the Applicant is involved that is relevant to this matter, however: Evol Technology Digital, where he is a shareholder, which was established in India in the latter half of 2016. He says a shareholder meeting is the only reason he is required to be in India for the purposes of this company. He said he might be required to travel to India for such a meeting once every two years. Once again, I find it difficult to believe that participation in such a shareholders’ meeting cannot be done on an electronic basis. The predominance of contemporary company constitutions provide for shareholder or director participation at relevant meetings via electronic means. No compelling evidence has been provided about the state of Indian laws requiring in-person attendance, either.
As I understand the Applicant’s evidence, the nature of his Australian business interests is thus: his clients, front of house and sales teams are located in Australia, operating out of Parramatta and Adelaide. He says he employs a part-time sales team member to help him achieve this. The operative or ‘back room’ elements of his IT business activities is conducted in India.
He gave evidence of previously owning a residential property in Sydney but having to sell it due to financial pressures. He is now seeking to buy another property, but said he is holding off until he finds a school for his children.
The Applicant paid income tax on his 2013/2014 and 2014/2015 financial year incomes.[12] However, while he was living and working overseas (the 2015/2016 and 2016/2017 financial years), he did not file Australian tax returns and did not pay tax here as he was given advice that he was not an Australian resident for tax reasons and so did not need to pay Australian taxes in this period.
[12] Exhibit 4, T-Documents, T 22, pp 615-637.
The Applicant’s principal explanation for his protracted absence is, he says, due to his father suffering a stroke and becoming paralysed. He said the father was essentially the founder and driving force behind the family businesses. However, his evidence was that, due to the father’s health issues, the Applicant – as the eldest son of the family – was compelled to take on the responsibilities for both (1) arranging for and managing his father’s care and (2) managing the family’s various business interests. During this three and a half year period, the Applicant says his wife and children lived with him in India.
When asked by the Tribunal about how the Indian business interests were being managed, the Applicant said that all of those interests were now being looked after by his brother and a friend, both of whom are resident in India. He says he recently had to return to India to attend a shareholders’ meeting and to grant certain further powers to his brother and friend so that they could continue to further look after the businesses. The Applicant attributed this need to travel to India to a certain Indian law requiring a shareholder to be located in India to be able to vote at a relevant shareholders’ meeting. For reasons outlined earlier, I have significant misgivings about this evidence and find it difficult to accept that the Applicant cannot participate in such meetings by way of telephone or electronic means and to otherwise delegate or appropriate his powers as a shareholder and/or director to another person in India by way of power of attorney or an appropriately worded proxy form.
The Applicant gave evidence of having some type of social connection with Australia due to his sponsorship of two specific cultural events in Sydney involving Indian themes. He says that he has sponsored the Dandya Festival three times. He also said he had a stall at the Diwali Festival and that he has run this stall on two occasions at this festival.
The Applicant and his wife both have superannuation accounts in Australia. He has an Australian medicare card, and has private medical and life insurance accounts in Australia.
The Applicant has assets in Australia: he owns some $25,000 worth of furnishings, appliances etc for his family home in Australia. He also owns two motor vehicles here.
Cross-examination
The Respondent’s representative adopted a line of questioning aimed at establishing the absence of a close and continuing association between this Applicant and Australia. He was asked about the six-month lease for the family’s current residential house and whether he intends to continue living in Sydney indefinitely. The Applicant said he and his family loved the lifestyle of Sydney and that he wants to continue basing his work and business activities in Sydney. It was also put to the Applicant that the lease for the family home is only for a relatively short period of six months. He sought to explain to the Tribunal that he and the family want to renew the existing lease when it expires.
The Applicant was then referred to Exhibit 1 which comprises his email to this Tribunal’s Registry. The email is dated 30 October 2017 and relevantly provides:
My Wife and both child [sic] came back on 6^th Oct 2017.
…
My both kids [sic] got enrolled in Year 5 and Year 7 into Coomera River State School and Pimpama Secondary State College respectively.
…
My spouse enrolled for Certificate III in Individual Support in Aging [sic] (1 Year Course Duration) to start her career in Aged care. She also applied for Police Check to start placement for Aged care Job.
…
We are planning to buy our own house next year in Coomera, Queensland or nearby so I can stay with my wife and kids and also we can have close family association with my brother in law, my sister in law and two nephews. Also next year I am planning to expand my business in Brisbane.[13]
[13] Exhibit 1, Applicant’s Statement with Annexures.
In cross-examination, it was put to the Applicant that while he makes a claim of having some type of deep affiliation and connection with Australia, he does not seem to demonstrate a capacity to begin that process by establishing an affinity or connection with a specific place and facilities around that place and the community that exists there. It was put to him that:
·the original plan was for his family to settle in the same general area (Coomera, South East Queensland) as the family of his brother in law and sister in law, with its resulting benefits for mutual support by one family of the other. Despite his initial intentions, this did not eventuate because the family moved to Sydney to take on a six month lease there;
·the original plan was for the Applicant to “expand my business in Brisbane”. This did not eventuate either because his evidence now was that his business operations are based in Sydney and Adelaide with most, if not all, of the back room work done in India;
·while the intention to settle in Coomera was still current, enrolment and other school fees were paid for both of the children to attend school in Coomera, money was paid for the purchase of school uniforms and associated school material for the children and, presumably, a fee would have been paid for the wife’s enrolment in the aged care course she was proposing to complete. Despite payment of these sums for these items, the Applicant nevertheless caused his family to relocate to Sydney.
The Applicant’s evidence in response was, to my mind, tepid and unconvincing. He told the Tribunal that he was “really concerned” about the education of his children. He said that when they arrived in South-East Queensland, he and his wife had an impression that the Brisbane area might have been the best place for them to live. However, the Applicant’s evidence was that “I researched it and convinced my wife and family that Sydney was the better place for us to live.” His further evidence was that despite her enrolment in the aged care course while in South-East Queensland, his wife was not currently working because of, according to the Applicant, her commitment to parenting their children. At best, the Applicant said she could only do part time work now. He said there was no plan to buy a residential property in Coomera. The plan now is to buy a house in Sydney. He concluded this part of his evidence with words to the effect of “Sometimes you plan to do something but it doesn’t always happen.”
A question was then put to the Applicant about his contention that his involvement in the Indian businesses had decreased or that he had now otherwise stepped back from active involvement in the family’s Indian business affairs. It was put to him that his titles or position descriptions within the family’s company structure had not changed and, in fact, were exactly the same as when he was in India. The Applicant had no convincing response to this question.
A further question was put to the Applicant about a hypothetical situation where the health of his father were to take a bad turn and the father were to be sick for another period of say, two years. The specific question was: what would the Applicant do then? His answer was that he would return to India if his father were to fall ill again. The Applicant was equivocal about how long he would remain in India in such a circumstance.
It was pointed out to the Applicant that Australian citizenship was granted to both his wife and children in 2014. The specific question was along these lines: if his family had such a close connection and affiliation to Australia, how is it that Australian citizenship was granted to them yet they left Australia for almost four years immediately after that occurred? The Applicant’s response can be summarised in one word: equivocal. In light of this cross-examination, I have found the Applicant’s evidence less than convincing.
Is the Applicant likely to continue to reside in Australia or to otherwise maintain a close association with Australia if the subject application were to be approved?
I am of the view that the Applicant’s absence from Australia for almost four years after he lodged his application weighs strongly against his application. I am of the further view that the factors he has cited apparently demonstrating a close and continuing association with Australia should be given minimal weight when considered in the context of his significant absences from this country.
The fact that the Applicant’s wife and children are each Australian citizens and that he may have obviously close and loving ties with them are not sufficient– in and of themselves – to establish a close and continuing association between this Applicant and Australia. I am not convinced that this Applicant has demonstrated membership of the Australian community involving not just the factors referred to in the Citizenship Policy but active engagement with the common interests of that community that requires a demonstrated involvement in reciprocal rights and obligations arising from such an engagement.
The primary reason, in my view, that the Applicant’s circumstances do not reach this level of demonstrable proof is because of an undeniable absence of history or, more plainly, ‘a historical track record’ that would more easily be demonstrated had he not been physically absent from Australia for such significant periods of time.
Another factor mitigating against the Applicant is the absence of any evidence of significant ties with extended family in Australia. If anything, such evidence could have existed if the Applicant and his family had settled in the Coomera area to be near the family of his brother in law and sister in law. Such evidence was effectively dispelled as a result of the Applicant causing his family to leave the Coomera area and to re-settle in Sydney.
I reiterate my above findings in relation to the Applicant’s evidence about his absence from Australia between March 2014 and October 2017 due to his father’s infirmity. It is, to my mind, not credible for the Applicant to suggest it took something like four years to diagnose and stabilize the father’s condition. A more likely explanation is that the Applicant’s presence in India for such a long period was due to his significant involvement in his family’s business affairs in India and, additionally, to pursue his own business interests.
Such a finding is supported by the extent of the family’s business interests in India comprising:
·three Subway restaurants;
·a Havmor ice cream parlour;
·a business processing outsource company (Eevo Corporate Advisory Pty Ltd);[14]
·Migrate Zone;
·Abroadjobseeker.[15]
[14] Exhibit 4, T-Documents, T 22, pp 638-693.
[15] Ibid, T 27, p 1005.
While I accept that some of the above business entities may be more active or vibrant than the others, the extent of the family’s business activities in India is undeniable. As I have found earlier in these Reasons, I have a concern about the lack of evidence around the Applicant ceasing or limiting his involvement in these businesses if he is genuinely of a mind to continue to reside in Australia or to maintain a close association with this country were his application for citizenship to be approved. To repeat, it is, simply, surprising that the Applicant cannot participate in meetings involving these businesses either by way of telephone or electronic means and/or to otherwise delegate or appropriate his powers as a shareholder and/or director to another person in India by way of power of attorney or an appropriately worded proxy form.
I regard as less than credible his evidence that Indian corporate law and/or regulations compel a shareholder or board member to physically attend a relevant meeting of a company in order for that shareholder or board member to exercise his/her corporate rights. There must surely be scope in the constitutions of Indian corporate entities for participation in such meetings by either telephonic or electronic means.
There seemed a certain “convenience” or self-serving nature in the Applicant’s evidence. For example, he told the Respondent on 5 April 2017 that “No, I Don’t think that I will travel outside of Australia after October 2017…”.[16] Yet he recently returned to India between 4 January 2018 and 21 January 2018.[17] He did so, he says, due to a certain, but unidentified, Indian corporate law or regulation that somehow compels his physical presence in India to exercise his voting rights as either a shareholder and/or director.
[16] Ibid, T 23, p 697.
[17] Exhibit 5, Applicant’s Movement Records.
In this regard, the following submission of the Respondent has, to my mind, significant gravity: “… whilst there remains the possibility of the applicant continuing to be involved in the family businesses to the extent that his prolonged physical presence is required in India, the Tribunal cannot be satisfied of a close and continuing association with Australia.”[18] I am not so satisfied.
[18] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, [25].
While there is evidence of the Applicant paying income tax in this country for the financial years ending 2013, 2014 and 2015, he did not, due primarily to his absence in India, derive any income here and therefore did not pay any income tax here for the financial years ending 2016 and 2017. In these circumstances, it is difficult to understand how the Applicant seeks a grant of citizenship without participating in or submitting to this community sharing its common interests and involving himself with its reciprocal rights and obligations – such as paying income tax here.
The sum total of his asset holdings in this country comprise household furniture and effects modestly costing $25,000 and two motor vehicles. Similarly, his participation in Australian based activities or organizations is limited to sponsorship of one Indian festival and maintaining a stall at another. This is not to say that the Applicant is either devoid of assets or that he is not interested in the cultural life of this country. The reality for him in this application is that he has been physically absent from Australia for so long that it is now extremely difficult for him to demonstrate the necessary level of involvement with the Australian community to convince a decision maker that he is worthy of citizenship.
I agree with the Respondent’s contention[19] that any inference that the Applicant has established a home in Australia must be dispelled in circumstances where this (1) has purportedly occurred after his citizenship application was refused by the Delegate, and (2) is only substantiated by a single 6-month lease agreement. Any pretence of establishing a home in this country was also dispelled by the Applicant’s decision to move the family away from the Coomera area and the resulting support his family would have derived from that of his brother in law and sister in law and to, it would seem unilaterally, cause the family to relocate to Sydney. This, in circumstances where both children had been enrolled at local schools in the Coomera area, uniforms and other school items purchased for them and enrolment fees having been paid for the wife to complete a course that would have enabled her to work in the aged care industry, shows that the Applicant has not, or will not, develop(ed) strong ties to that local community.
[19] Ibid, [28].
It would be unfair and inaccurate to say that none of the factors in either the Citizenship Policy or as may be evident from the Applicant’s own circumstances do not assist him. However, his quite significant absence from this country following the filing of his application for citizenship and the continued uncertainty about (1) whether or not the family is genuinely settled here such that there could be a finding of a likeliness to continue to reside here or to otherwise maintain a close association with this country and (2) the unconvincing nature of his evidence that his association with India – both in a business participation sense and, apparently, as the person primarily responsible for his father’s ongoing medical care and welfare – all heavily militate against any factors in his favour.
The overall impression given by the evidence before the Tribunal is that the Applicant is itinerant and will move himself and his family wherever is convenient for him and his business interests at a given time. While there is nothing wrong with this – indeed, it is to some extent heartening to see a man so dedicated to forging a better life for himself – it does mean that the Applicant has failed to put down roots in the Australian community. This lack of roots prevents the Applicant from meeting the threshold of being “likely to reside, or to continue to reside, in Australia”. Similarly, it causes me to have grave doubts that the Applicant would be likely to “maintain a close and continuing association with Australia”. I therefore cannot find that he satisfies the requirements of s 21(2)(g) of the Act.
Some additional observations
Any finding now that the Applicant has not demonstrated a close and continuing association with Australia for the purposes of s 21(1)(g) of the Act is not determinative of any future finding that he may have done so.
There is nothing stopping him from applying for citizenship in the future once an appropriate passage of time has elapsed such that he can more readily demonstrate a likeliness to reside or continue to reside in this country or to maintain a close and continuing association with this country.
Even if this particular application for citizenship is refused, it will not cause any undue prejudice or harm to the Applicant or any member of his family. He has permanent resident rights in this country and enjoys the rights that such status brings.
CONCLUSION
In consideration of the above, I have found that the Applicant does not satisfy the requirements of s 21(2)(g) of the Act.
Consequently, I do not believe he is presently eligible to become an Australian citizen.
I accordingly affirm the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[sgd]............................................
Associate
Dated: 1 May 2018

Date of hearing: 21 March 2018

Applicant: In person

Advocate for the Respondent: Claire Campbell

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 1085

1 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	21 March 2018
Applicant:	In person
Advocate for the Respondent:	Claire Campbell
Solicitors for the Respondent:	Sparke Helmore