Sharma and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Sharma and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1262 (18 May 2023)
Division:GENERAL DIVISION
File Number: 2022/7564
Re:Money Sharma
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:18 May 2023
Place:Melbourne

The decision under review is affirmed.
................................[SGD]........................................
Dr L Bygrave, Member
Catchwords
CITIZENSHIP – approval of citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) – whether to cancel the approval of citizenship under subsection 25(2) of the Australian Citizenship Act 2007 (Cth) – whether Applicant likely to reside in Australia or maintain a close and continuing association with Australia – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Secondary Materials
Australian Citizenship [Policy Statement], reissued 27 November 2020
Citizenship Procedural Instruction 10 – Cancellation of Approval and Delay Making the Pledge, reissued 28 January 2022
Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, reissued 17 April 2019
REASONS FOR DECISION
Dr L Bygrave, Member
18 May 2023

The Applicant, Mrs Money Sharma, is a citizen of India.
On 1 March 2018, Mrs Sharma lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The Department of Home Affairs (the Department) notified Mrs Sharma that her application for Australian citizenship was approved on 22 October 2019 and she was invited to attend a citizenship ceremony on 20 April 2020.
On 28 January 2020, Mrs Sharma departed Australia and has not since returned.
On 12 March 2022, the Department notified Mrs Sharma of an intention to consider the cancellation of her citizenship approval on the basis that she may no longer satisfy the eligibility criteria of subsection 25(2) of the Act; that is, she ‘may no longer be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia’.[1] This letter requested Mrs Sharma respond within 28 days with information about her business ties, employment ties, cultural ties and/or personal ties to Australia. Mrs Sharma did not respond to this letter or contact the Department.
[1] Exhibit T-T17, 82.
On 30 August 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) decided to cancel the approval of Mrs Sharma’s application for Australian citizenship under section 25 of the Act on the basis that Mrs Sharma was ‘not likely to reside or to continue to reside in Australia, or to maintain a close and continuing association with Australia’.[2]
[2] Exhibit T-T18, 95-97.
On 15 September 2022, Mrs Sharma made an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard by the Tribunal in Melbourne on 14 April 2023. Mrs Sharma attended the hearing by videoconference and teleconference from India and gave oral evidence with the support of her husband, Mr Sanjeev Sharma.
RELEVANT LEGISLATION AND ISSUES
Section 21 of the Act sets out provisions for the application and eligibility for citizenship, and subsection 24(1) of the Act states that ‘if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’.
Relevant to this matter, section 25 of the Act states that the Minister has discretion to cancel the approval of an application for Australian citizenship as follows:
25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval [for conferral of citizenship] given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
…
Eligibility criteria not met
(2) …
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
…
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; …
Australian Citizenship [Policy Statement]
The Australian Citizenship [Policy Statement] (Citizenship Statement) and the Citizenship Procedural Instructions (CPIs) comprise government policy. These documents must be given due weight, but not applied inflexibly, and the merits and facts of each individual case must be considered.
The Citizenship Statement outlines the overarching legislative requirements for the process of becoming an Australian citizen, the rights and responsibilities of Australian citizenship, and provides context for the CPIs when making decisions under the Act.
The CPIs relevant to this matter are:
·CPI 10 – Cancellation of Approval and Delay Making the Pledge (CPI 10) issued on 28 January 2022; and
·CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) issued on 17 April 2019.
CPI 10 – Cancellation of Approval and Delay Making the Pledge
The legal requirements and related policy and procedures that apply to the cancellation under section 25 of the Act of an approval of an application for citizenship by conferral are set out in CPI 10.
CPI10 states that the provision for the Minister to cancel the approval of an application for citizenship under subsection 25(2) of the Act is ‘a discretionary power’ and decision-makers should ‘make a fair and reasonable decision based on the merits of the individual case’.[3]
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
[3] CPI 10 – Cancellation of Approval and Delay Making the Pledge, 28 January 2022, part 3.
CPI 11 outlines the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if their application for citizenship were to be approved.
Notably, CPI 11 states that ‘only one arm’ of the requirement must be met: that is, a person must be likely to reside or continue to reside in Australia; or to maintain a close and continuing association with Australia. This requires findings to be made about the person’s future plans or intentions.[4]
[4] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.2
The words in subparagraph 25(2)(b)(ii) of the Act should be given their ordinary meaning. CPI 11 refers to the Macquarie Dictionary and sets out the following definitions:
·‘likely’ means ‘probably’;
·‘reside’ means ‘to dwell permanently or for a considerable time’;
·‘maintain’ means to ‘keep in existence or continuance’;
·‘close’ means ‘near, or near together, in space, time, or relation’;
·‘continuing’ means ‘to last or endure’; and
·‘association’ means ‘the act of associating … connection’.[5]
[5] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.2.
Further, CPI 11 stipulates that it is important to note ‘the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians’.[6]
[6] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.2.
CPI 11 states that a person’s living arrangements and citizenship status in their country of residence (either in Australia or elsewhere) may be indicators of their future intentions, and lists the following factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place:
·whether the person is currently renting a home, and if so, when their lease would expire and what options are open to them to break the lease if necessary;
·whether the person has purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
·whether the person has any assets, commitments or ties to a country that may require or incline them to continue to reside in that country, for example, their source of income and/or employment contract;
·the frequency and purpose of the person’s visits to Australia if they reside overseas;
·the frequency and reasons for absences from Australia if the person resides in Australia, for example, whether the absences were of a temporary nature due to work or other activities;
·participation in the Australian community; and
·whether the applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.[7]
EVIDENCE
[7] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.3.
Periods outside Australia since Mrs Sharma became a permanent resident
Mrs Sharma first arrived in Australia as the holder of a tourist (subclass 676) temporary visa on 29 October 2009. She was granted a spouse (subclass 100) permanent visa on 17 March 2012 and she currently holds a residence return (subclass 155) permanent visa that was granted on 13 July 2022.
Mrs Sharma’s movement history from the time she was granted a permanent resident visa in March 2012 to the present shows she was outside Australia during the following periods:
·two months from April 2012 to July 2012;
·approximately four-and-a-half months from August 2012 to January 2013;
·15 months from February 2013 to May 2014;
·approximately nine months from August 2014 to May 2015;
·seven weeks from October 2018 to November 2018; and
·three months from May 2019 to August 2019.[8]
[8] Exhibit T-T20, 106-107.
Mrs Sharma gave oral evidence that she travelled to India between 2012 and 2019 to visit family members and, in 2014–2015, she went to India to have family support during and after the birth of her daughter.
Mrs Sharma most recently departed Australia on 28 January 2020 and she has not returned. Since Mrs Sharma departed Australia, she has been living in India with her husband and their daughter, ‘H’. Mr Sharma and ‘H’ are Australian citizens.
Mrs Sharma’s circumstances and her intention to reside in Australia
In an undated written statement and her oral evidence to the Tribunal, Mrs Sharma stated that she departed Australia on 28 January 2020 to attend her sister’s wedding in India and became stuck in India due to the covid-19 pandemic, and family and financial issues. She said her father passed away in October 2021 and her sister’s wedding was postponed until February 2022 due to ‘lockdowns’.[9] She explained that she is the eldest daughter/sister and, consequently, was responsible for her younger sister’s marriage.
[9] Exhibit T2, 6.
Mrs Sharma and her husband, Mr Sharma, also gave evidence that Mr Sharma has a history of uncontrolled diabetes and suffered a stroke in 2013, and he had concerns about receiving the covid vaccination due to possible side-effects. They said that they were effectively in ‘lockdown’ in India for two years due to the covid-19 pandemic.
Mrs Sharma provided some documentation to support her evidence, including the death certificate of her father, photos from her sister’s wedding, and medical notes dated 2012, 2013 and 2015 that referred to Mr Sharma’s medical conditions.
Mrs Sharma said she intends to ‘come back to Australia to continue [her] life’ after she finishes ‘some pending duties.’[10] She explained at the hearing that her plans to return to Australia have been delayed due to financial issues and needing to care for her mother.
[10] Exhibit T-T19, 105.
In relation to financial issues, Mrs Sharma told the Tribunal that she and her husband have used all their savings and sold their car in Australia. She borrowed money from friends (the equivalent of approximately A$22,000) to pay for her sister’s wedding and personal/living expenses while in India, which she needs to repay before she is able to return to Australia. She said she plans to repay these loans by borrowing money from one of her sisters and another friend.
Mrs Sharma said she is currently caring for her mother who has a condition with her eyes. She provided minimal details except that her mother is receiving treatment and is waiting for possible eye surgery. Mrs Sharma explained that, as she is the eldest daughter and her siblings live in other cities in India, she is responsible for caring for her mother. Mrs Sharma said they are waiting to see whether her mother will require surgery in the next three months and that post-surgery, her mother should be able to live independently.
In oral evidence to the Tribunal, Mrs Sharma said she thought she should be able to resolve her financial issues and her mother’s treatment by September 2023, and she then would return to Australia with her husband and ‘H’. She said she has not yet booked airfares, looked at accommodation or found a school for ‘H’ in Australia.
Mr Sharma also gave evidence that his Australian passport has expired, and he needs to renew his passport prior returning to Australia. He said the process of renewing his passport has been delayed because he understood that he was required to be vaccinated in order to visit the Australian High Commission; he accepted that he now understands he can renew his passport by post and said he plans to commence this process.
Current living arrangements and accommodation
Mrs Sharma gave oral evidence that she, Mr Sharma and their daughter were staying in rental accommodation near her mother’s home from when they arrived in India in 2020 until late 2022. She said they moved into her mother’s home about four months ago to care for her mother while she is receiving treatment for her eyes.
Mrs Sharma does not currently own or rent any accommodation in Australia.
Ownership of property / assets in Australia and overseas
Mrs Sharma owns no significant property or assets either in Australia or in India. She has limited household and personal effects that are currently held in storage at a friend’s house in Australia, and some personal effects and clothing in India.
Mrs Sharma holds a bank account in Australia that currently has no funds and said she does not have a bank account in India.
Employment and payment of income tax in Australia
Mrs Sharma gave evidence that she has previously worked as a beauty therapist in Australia; she said she has taken extended leave from her workplace and intends to return to this workplace when she comes back to Australia. Following the hearing, Mrs Sharma provided an email exchange between herself and this employer on 24 December 2021, 7 June 2022 and 13 June 2022 that indicated Mrs Sharma had informed her employer she would return to work in early 2022 and had not done so and, consequently, her employer had paid out her entitlements on 15 June 2022.
Mrs Sharma provided no evidence of her payment of income tax in Australia.
Since February 2022, Mrs Sharma has been undertaking some casual work for a friend in India and is paid approximately A$300-$400 per month.
Mr Sharma gave oral evidence that he has not undertaken any employment since 2015 due to his medical conditions.
Participation in the Australian community
Mrs Sharma told the Tribunal that she maintains contact with three or four friends in Australia via WhatsApp. However, she filed no supporting references from any friends or colleagues.
Mrs Sharma also said that she attended a Hindu temple for worship once or twice a month while she was in Australia. However, she provided no references of support.
Family members
Mrs Sharma is married to Mr Sharma. Their daughter, ‘H’, is eight years old. ‘H’ commenced school in Australia and has not attended school in India because of the covid-19 pandemic and lockdowns. Mrs Sharma said that ‘H’ will attend school when they return to Australia but has not yet enrolled her in any school.
Mrs Sharma’s mother and siblings (two sisters and one brother) live in India. Mr Sharma’s family also live in India.
Mrs Sharma has no immediate or extended family members in Australia.
CONSIDERATION
The exercise of the discretion in section 25 of the Act requires that I consider whether, in accordance with subparagraph 25(2)(b)(ii) of the Act, either Mrs Sharma is likely to:
·reside or continue to reside in Australia or
·maintain a close and continuing association with Australia.
Is Mrs Sharma likely to reside, or continue to reside, in Australia?
I am satisfied that Mrs Sharma does not currently reside in Australia and, since she departed Australia on 28 January 2020, she has resided in India.
In considering whether Mrs Sharma is likely to reside in Australia in the future, I find her travel movement history shows she has spent more than six years outside of Australia since she was granted a permanent resident visa in March 2012. This includes a period of more than three years since she departed Australia in January 2020.
I am satisfied that the extensive periods of time Mrs Sharma has resided outside of Australia in the period since she was granted a permanent resident visa in March 2012 to the present weighs against a finding that she is likely to reside in Australia. In making this finding, I rely on the evidence that:
·Mrs Sharma has spent extended periods with her family in India from 2012 to the present; this includes a period of 15 months in 2013–2014, and a period of nine months in 2014–2015 during and after the birth of her daughter.
·All of Mrs Sharma’s immediate family members – her husband, daughter, mother and siblings – reside in India. Mr Sharma’s family members also live in India. Neither Mrs Sharma nor Mr Sharma have any family members in Australia.
·Mrs Sharma has three or four friends in Australia, but she has provided no written or objective evidence regarding these relationships.
·Mrs Sharma and Mr Sharma do not own or rent any property in Australia. They have no money and only limited household and personal effects in Australia.
·Mrs Sharma does not have current employment in Australia, although she could obtain employment as a beauty therapist in the future. She is currently working for a friend on a casual basis in India.
·Mrs Sharma has borrowed approximately A$22,000 from friends in India that she needs to repay before returning to Australia. Despite Mrs Sharma’s contention that she intends to borrow money from her sister and another friend to repay these loans, it is unclear how she will repay these loans in their entirety given her current employment situation.
I accept Mrs Sharma’s explanation that, after travelling to India in January 2020, her and her family’s circumstances were affected by the covid-19 pandemic. I also accept that Mr Sharma was fearful of covid-19 due to his underlying medical conditions, and that Mrs Sharma had family responsibilities in India until her sister was married in February 2022.
However, it is now more than 14 months since Ms Sharma’s sister married and I cannot find any evidence that Mrs Sharma has made plans to return to Australia in this period. For example, Mrs Sharma has not looked at or booked flights for her family to return to Australia, considered issues of accommodation or schooling for ‘H’ in Australia, and has not contacted her former employer since June 2022. I also note that Mr Sharma’s Australian passport has expired, and he has yet to renew it.

Finally, I have considered what weight I should place on Mrs Sharma’s oral evidence that she remains in India because she is required to provide care for her mother. At the hearing, Mrs Sharma gave a limited explanation about her mother’s need for ‘eye surgery’. She filed no supporting medical evidence with the Tribunal regarding her mother’s eye condition, treatment and required care, or whether and when she may need surgery. As there is no objective medical evidence before the Tribunal, I place less weight on this evidence.
Overall, I cannot be satisfied that Mrs Sharma is likely to reside in Australia in the future.
Is Mrs Sharma likely to maintain a close and continuing association with Australia?
I now consider whether Mrs Sharma is likely to maintain a close and continuing association with Australia.
While Mrs Sharma said she intends to return to Australia, she provided limited evidence to the Tribunal about her past and current association with Australia. She has not resided in Australia for over three years and does not have any substantial property or assets that tie her to Australia. Mrs Sharma has no current employment in Australia or other continuing connection with the Australian community. She has no family members in Australia.
While I accept Mrs Sharma may have had a close association with Australia in the past and her husband and daughter are Australian citizens, I find the only association she has maintained with Australia since she departed in January 2020 is three or four friendships that she has continued via WhatsApp. As set out in CPI11, the requirement to ‘maintain a close and continuing association’ is ‘with Australia, not with Australians’. I therefore place no weight on the Australian citizenship of Mr Sharma and ‘H’ or on Mrs Sharma’s continuing association with friends in Australia.
Based on the evidence before the Tribunal, I cannot be satisfied that at this time Mrs Sharma is likely to maintain a close and continuing association with Australia.
CONCLUSION
I am satisfied that the discretion to cancel the approval of Mrs Sharma’s application for Australian citizenship should be exercised under section 25 of the Act because I find Mrs Sharma no longer satisfies the eligibility criteria of subparagraph 25(2)(b)(ii) of the Act. In making this decision, I note that Mrs Sharma continues to hold a permanent resident visa for Australia and will be able to make an application for Australian citizenship in the future if or when she re-establishes her life in Australia.
DECISION
The decision under review is affirmed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
...........................[sgd].............................................
Associate
Dated: 18 May 2023

Date of hearing: 14 April 2023

Applicant: Self- represented

Solicitors for the Respondent: Australian Government Solicitor

[2023] AATA 1262

18 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	14 April 2023
Applicant:	Self- represented
Solicitors for the Respondent:	Australian Government Solicitor