Sumra Zafar and Minister for Immigration and Border Protection
[2014] AATA 329
•28 May 2014
[2014] AATA 329
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2013/6741 |
| Re | Sumra Zafar |
| APPLICANT | |
| And | Minister for Immigration and Border Protection |
| RESPONDENT |
DECISION
| Tribunal | RM Creyke, Senior Member |
| Date | 28 May 2014 |
| Place | Canberra |
The decision under review is affirmed.
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RM Creyke, Senior Member
CITIZENSHIP – General residence requirement – inadequate number of days in Australia to meet legislative requirements -– Ministerial discretion – whether partner was a citizen of Australia at the time of the application for citizenship by conferral – whether applicant has a close and continuing relationship with Australia
Legislation
Australian Citizenship Act 2007 (Cth) sections 21 and 22
Cases
Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions (1 July 2013)
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Sumra Zafar, born 1981, applied for citizenship by conferral on 27 November 2013. The application was refused by a delegate of the Minister on 13 December 2013.
On 18 December 2013 Ms Zafar applied to the Tribunal for review of the decision.
With the consent of both parties, the matter was heard on the papers in accordance with the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 34J.
Background
Ms Sumra Zafar is the wife of Mr Syed Hasnain Kazmi. She currently resides in Pakistan with their two children.
Mr Kazmi arrived in Australia on 21 November 2009 where he resides currently. On 8 August 2011, Mr Kazmi was granted a Skilled (Provisional) (class VF) Subclass 475 (Regional Sponsored (Skilled-subsequent entrant)) visa. He was made an Australian citizen on 26 January 2014.
On 6 July 2009, while offshore, Ms Zafar had been granted a Regional Sponsored (Class VF) (Subclass 475) visa. Ms Zafar first arrived in Australia on 21 November 2009, with her husband. She remained in Australia until 2 March 2010, before leaving for her country of origin.
Ms Zafar returned to Australia on 2 August 2012 and while in Australia she was granted a Bridging (Class WA) (Subclass 010) visa. On 5 November 2012, she was granted, while in Australia, a permanent Skilled Regional Visa (Class VB) (Subclass 887) visa.
On 27 November 2013, Ms Zafar applied for citizenship by conferral. On 28 November 2013 Ms Zafar departed Australia for Pakistan.
Ms Zafar has provided evidence to the Tribunal that her husband has paid the electricity bills, and power and gas bills for the property in which he is a tenant. She has also provided to the Tribunal the tenancy agreement for the property, and her husband’s rental history, his car registration renewal, bank statements, and his tax office notice of assessment.
10. The documents show Ms Zafar listed as a co-tenant with her husband for the property rented between 9 December 2009 and 18 June 2010. On 2 August 2012 Ms Zafar’s name was also put on the leasehold agreement for the property in which Mr Kazmi has resided from 31 March 2011 till the present.
Legislation
11. The relevant legislation is the Australian Citizenship Act 2007 (Cth) (Act).
Issues
12. The sole issue is whether the decision to refuse Ms Zafar’s application for Australian citizenship by conferral was the correct or preferable decision.
Consideration
13. In order to be granted citizenship, a person must meet the criteria in the Act. These include general eligibility and general residence criteria, as well as specific residence requirements.
General eligibility
14. The general eligibility requirements are set out in section 21(2) of the Act. They are:
21(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i)at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), … at the time the person made the application; and …
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
15. Ms Zafar was over 18 and a permanent resident at the time she applied for Australian citizenship and at the time of the Minister’s decision. Whether she met the criteria in section 21(2)(g) is discussed later in these reasons.
16. The principal issue is whether her application satisfies the general residence requirements.
General residence
17. The general residence criteria which must be met prior to a grant of citizenship are found in section 22 of the Act. The relevant provisions state:
22(1) … 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.
18. There is no suggestion that Ms Zafar was present in Australia as an unlawful non-citizen at any time during the 4 year period and therefore she satisfies the criteria in section 22(1)(b). However, issues arise in relation to Ms Zafar’s absences from Australia (section 22(1)(a)). The Act provides that a person may be absent from Australia for up to twelve months in total during the 4 year general residence period, including 90 days in the twelve months immediately before making an application.[1] The relevant four year period prior to Ms Zafar’s making her application commenced on 21 November 2009.
[1] Australian Citizenship Act 2007 (Cth) s 22(1A).
19. Ms Zafar has not been present in Australia for the four years immediately prior to her application. The departmental records indicate that Ms Zafar was absent from Australia for a total of 942 days in the four years, or 1460 days, prior to lodgement of her application. In this four year period therefore Ms Zafar was physically present in Australia for only 519 days.
20. Ms Zafar was present in Australia for the period of twelve months immediately prior to making her application She was also a permanent resident in the twelve months prior to making her application (section 22(1)(c)).
21. However, her absence from Australia for 942 days during the period of 4 years prior to making her application exceeds the twelve months or 365 days of allowable absences in that period. Accordingly she did not meet the general residence requirements in section 22(1)(a). Ms Zafar accepted that this was the position.
General eligibility criteria in section 21(2)(g)
22. Ms Zafar’s application was also found not to meet the requirement in section 21(2)(g) of the Act, namely, that she ‘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’.
23. The delegate had found that Ms Zafar had ‘been consistently absent from Australia throughout the relevant four year period’, citing her presence in Australia for only 519 days during the four years preceding her application. [T 10, 5-6]. The delegate also found that the bills, tax records, rental information and utility payment details, were all in the name of her husband, not of Ms Zafar. As a consequence, the delegate concluded that Ms Zafar had ‘provided no substantial evidence’ that she intended to reside in Australia in the future.
24. As the evidence before the Tribunal indicates, those findings need qualification. On 2 August 2012, Ms Zafar’s name was added as a co-tenant of the leasehold property in which her husband currently resides. A former leasehold property was also in joint names for the period 9 December 2009 to 18 June 2010. Therefore, in relation to tenancy records, the finding of the delegate was not sustained by the evidence.
25. A finding that Ms Zafar had provided ‘no substantial evidence’ of her intention to reside in Australia also fails to take fully into account the history of the matter. Ms Zafar accompanied her husband to Australia in 2009 and remained in Australia for some three and a half months. The Tribunal has inferred that the couple were living together since the lease documents were in joint names. Ms Zafar then departed on 2 March 2010 and within a short period after she departed Australia, discovered she was pregnant. Her second child was born outside Australia on 24 November 2010. The Tribunal had no evidence to suggest that the children were not the children of Ms Zafar and Mr Kazmi.
26. Ms Zafar has submitted ‘it was not possible for me to travel to Australia during pregnancy’. No evidence was provided as to why Ms Zafar was prevented from travelling during at least the early stages of her pregnancy. However, her pregnancy may explain her absence during the period to November 2010 and for some time thereafter while the child was in its early infancy.
27. The Tribunal has inferred that support by family members, particularly when a second child is born, can be helpful and that it was more likely that Ms Zafar would have that support in her country of origin where her family resides. Ms Zafar returned to Australia on 2 August 2012 and remained here until 28 November 2013, that is, a period of some fifteen months.
28. During that period, as the lease documents were in joint names, it can be assumed that the couple were again co-habiting. In that period Ms Zafar obtained a permanent resident’s visa, indicating an intention to continue to live in Australia. In addition, just prior to her departure on 28 November 2013, Ms Zafar applied for citizenship by conferral. So arguments that there is no substantial evidence of Ms Zafar’s intention to continue to reside in Australia are more equivocal than the delegate’s findings suggest.
29. Nonetheless, the Tribunal is aware that there is a paucity of evidence as to the reasons Ms Zafar returned to her country of origin in March 2010, and why she did not return until 2 August 2012. Nor is there evidence of the reason she again left Australia in November 2013. In the absence of reasons for her continuing absence from Australia, the Tribunal is not able to be satisfied that Ms Zafar meets the criterion that she is likely to reside in Australia or to maintain a close and continuing association with Australia if the application is approved.
Special residence requirements
30. Ms Zafar has also contended that she has eligibility for citizenship under the special residence requirements. Her argument is that as she had been granted a Skilled Regional Provisional Subclass 475 visa and was later granted a Permanent Skilled regional subclass 887 visa, she must meet the ‘work’ requirements in the special residence requirements in section 22B of the Act. She could not have qualified, in her view, as ‘skilled’ unless she was skilled in some field of work.
31. The special residence requirements are contained in section 22B of the Act which states, as relevant:
22B(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work.
32. The kind of work for the purposes of section 22B(1)(a) of the Act was decided by the Minister, by legislative instrument, in accordance with section 22C(3).
33. Legislative Instrument IMMI 13/056 provides:
The kinds of work are those undertaken as part of their duties in which a person is:
a. A member of the crew of a ship; or
b. A member of the crew of an aircraft; or
c. Engaged in work on a resources installation or a sea installation; or
d. a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or
e. an Executive Manager of an S&P/ASX All Australian 200 listed company; or
f. A Scientist employed by:
i.An Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or
ii.Commonwealth Scientific and Industrial Research Organisation; or
iii.A medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMR).
g. A medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Schedule 4 – Part 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation;
h. A person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.
34. On the evidence Ms Zafar is not undertaking any of the kinds of work listed. Nor has she provided any indication of particular employment skills that she possesses, much less that they require her to travel outside Australia for work. The list of ‘work’ for the purposes of section 22B is a legislative instrument and is part of Australian law.
35. Ms Zafar submitted on 16 March 2013 that the list unduly narrows the concept of ‘work’. She argued that scientifically work is not confined to paid employment, nor was it so confined in the social sciences. In relation to the social sciences she referred to the writing of Mr Richard Lee that ‘work means the specific activities as designated by an ethnographic’ and that ‘many cultures do distinguish activities requiring disciplined effort and focus to produce a concrete result’, and according to Mr Benjamin Orlove, that ‘the general word work was used only in conjunction with a specific activity’.
36. However, the kinds of work which qualify under the legislative instrument are exhaustive. That means it is only the kinds of work specified in the instrument which are accepted for the purposes of the special residence requirements. Therefore arguments about the scientific or social science meanings of the word ‘work’ cannot influence the narrow legal meaning that the term has in this context for the purpose of seeking citizenship under the law in Australia. Ms Zafar therefore does not qualify for citizenship by conferral under the special residence requirements.
Exercise of Minister’s discretion
37. The Tribunal also has to consider whether the Minister’s discretion should be exercised in Ms Zafar’s case. Section 22(9) of the Act provides for an exemption from the general residence criteria provided the Minister’s discretion is exercised. Section 22(9) states:
22(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 the period.
38. The Australian Citizenship Instructions provide guidance in relation to the exercise of the discretion in section 22(9). Clause 5.18 of the policy provides as relevant:
… this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicant must provide evidence that they maintained a close and continuing association with Australian while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
· Australian citizen children
· Long term relationship with Australian citizen spouse or de facto partner
· Extended family in Australia
· Regular return visits to Australia
· Regular periods of residence in Australia
· Intention to reside in Australia
· Employment in Australia where the person has been on leave to accompany their spouse or partner overseas
· Ownership of property in Australia
· Evidence of income tax paid in Australia over the past four years and
· Evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of section 22(9)(d), it is policy that more weight should be given 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.
39. The policy does not bind the Tribunal. Nonetheless, the Tribunal would normally take account of the policy as relevant, unless it was unlawful.[2]
[2] Re Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634 at 645.
40. Before relying on the policy, however, the Tribunal finds that Ms Zafar has not met the terms of the Act. In particular, the requirement in section 22(9) that Ms Zafar is the spouse of an Australian citizen at the time of her application. As Mr Kazmi did not become an Australian citizen until 26 January 2014, Ms Zafar does not meet the requirement that she was the spouse of an Australian citizen at the time she made her application for citizenship on 27 November 2013. So Ms Zafar’s circumstances do not fall within the terms of section 22(9) of the Act.
41. As the discretion cannot be exercised by the Minister on that ground, there is no need further to consider the terms of the policy.
42. Ms Zafar has been advised that she is not precluded from making another application for citizenship by conferral, relying on her husband’s current citizenship. At the same time, she will still need to meet the relevant criteria including whether her circumstances bring her within the policy, namely, that she has ‘maintained a close and continuing association with Australia while overseas’ since 28 November 2013.
43. In all the circumstances, Ms Zafar does not meet the criteria for eligibility for Australian citizenship at this time, including the general eligibility criteria, the general residence criteria, the special residence criteria, or the grounds for exercise under section 22(9) of the Minister’s discretion. That does not preclude Ms Zafar making a further application which meets the relevant criteria in the Act. The decision under review is affirmed.
| I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. |
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Associate
28 May 2014
| Date of hearing on the papers | 28 April 2014 |
| Advocate for the Applicant | Syed Kazmi |
| Advocate for the Respondent | Matthew Bock |
| Solicitors for the Respondent | Clayton Utz |
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