Taher v Minister for Immigration and Border Protection
[2013] AATA 917
[2013] AATA 917
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0552
Re
Safi Taher
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 19 December 2013 Place Melbourne The Tribunal affirms the decision made on 4 January 2013, refusing to grant
Mr Safi Taher Australian citizenship......[sgd Egon Fice]...................................................................
Egon Fice, Senior Member
CITIZENSHIP – application for citizenship – general eligibility for citizenship – general residence requirement – ministerial discretion relating to the spouse of an Australian citizen – overseas absences – close and continuing association with Australia
Legislation
Australian Citizenship Act 1948 (Cth) ss 13, 15
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 52
Cases
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507
Secondary Materials
Australian Citizenship Bill 2005 (Cth) Explanatory Memorandum
Australian Citizenship Bill 2005 (Cth) Revised Explanatory Memorandum
Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013)
REASONS FOR DECISION
Egon Fice, Senior Member
19 December 2013
Mr Safi Taher was born in Asmara, Eritrea. He is an Eritrean citizen. He was granted a permanent visa to enter Australia on 26 November 2003 as the last remaining relative. Mr Taher had lodged previous applications for citizenship on 3 January 2007 and 15 October 2007, both applications being refused. He sat and passed the citizenship test on 15 October 2007. In both former applications, he requested an exemption to the residence requirements and consideration of his application under the spouse discretion.
Mr Taher lodged a third application for citizenship on 3 September 2012 which is the subject of this application for review. He again sought a residence exemption on the spouse discretion ground.
In a letter dated 4 January 2013, a Citizenship Officer with the then Department of Immigration and Citizenship, notified Mr Taher that his application for Australian citizenship had been refused under the Australian Citizenship Act 2007 (the Citizenship Act). The reason for refusing his application was that he did not meet the general residence requirements set out in s. 22 of the Citizenship Act for the conferral of citizenship. Also, the Citizenship Officer determined that she was prohibited from approving his application because s. 24(5) applied.
A decision made under s. 24 to refuse to approve a person becoming an Australian citizen may be reviewed by the Tribunal pursuant to s. 52(1)(b) of the Citizenship Act.
As will become apparent presently, this application will be determined by the correct construction of s. 22(9) of the Citizenship Act.
ELIGIBILITY FOR CITIZENSHIP
The general eligibility requirements are set out in s. 21(2) of the Citizenship Act. Those provisions relevant to the determination of this application are as follows:
(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), or satisfies the defence service requirement (see section 23), 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; and…
The first thing to observe about the general eligibility requirements is that they are conjunctive. Therefore, a person who satisfies the general residence requirement (s. 21(2)(c)) must also satisfy the requirements set out in s. 21(2)(g). In other words, it is not sufficient to simply meet the 4 year and 12 month requirements under the general residence provisions. The applicant must also demonstrate that they are likely to reside if they do not already do so, or to continue to reside in Australia, or maintain a close and continuing association with Australia if the application were to be approved.
The general residence requirements are set out in s. 22 of the Citizenship Act. Essentially, they provide for a 4 year period and 12 month period where presence in Australia is required. An allowance is made for both periods where there have been overseas absences. The relevant provisions are as follows:
22 General 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.
Overseas absences
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
There are also a number of subsections which deal with Ministerial discretion in various circumstances. In this matter, I am concerned in particular with s. 22(9). It is the construction of this subsection which has been the cause of some considerable concern. The purpose of the Ministerial discretion is to permit a person who does not satisfy the general residency requirements due to matters set out in the particular subsection where Ministerial discretion may be exercised, to treat an absence as a period when that person was present in Australia as a permanent resident. Section 22(9) 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.
THE SIGNIFICANCE OF RESIDENCY
Although not expressly stated in the Citizenship Act, it is clear that residency is of paramount importance when determining whether to grant citizenship to an applicant. So much can be gleaned from s. 24(1A) which provides:
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
While the Citizenship Act does not set out the basis for why residency might be so important, it clearly has to do with an applicant’s association with Australia. In fact, the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 says this about the residency requirements:
The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 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 to appreciate the commitment that they are required to make to become citizens.
In case there is any doubt about the fact that the reference to being present in Australia for the period of 4 years and also the period of 12 months as a permanent resident before making an application (s. 22(1)) requires physical presence in Australia, the Revised Explanatory Memorandum states:
These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made.
The Preamble to the Citizenship Act also underscores the importance of community involvement. It provides:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
Accordingly, in my opinion, any dispensation from the residency requirements is not something which is granted lightly. Significant periods of physical presence in Australia are important.
CONSTRUCTION OF SECTION 22(9)
Section 15AA of the Acts Interpretation Act 1901 provides:
15AA Interpretation best achieving Act’s purpose or object
(1)In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
I must also have regard to the common law principles of statutory construction, in particular, contextual considerations. The High Court of Australia has restated these principles on a number of occasions. In Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297, Gibbs CJ said, at 304:
It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Commissioners v. Adamson (16). It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v J. H. Nelson Pty. Ltd. (17). Of course, no part of a statute can be considered in isolation from its context-the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (18). …
I am also mindful of the caution expressed by the High Court (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) in Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507, where it said, at 515:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained," what is involved is the 'intention manifested' by the legislation". Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
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 that 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.
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.
Furthermore, the only days which may be counted as days spent in Australia when the person was outside of Australia are those days when the person was a permanent resident of Australia. As the Revised Explanatory Memorandum states:
This makes clear that periods spent overseas by a spouse that may be counted towards time spent in Australia for the purposes of the residence requirement, must be as a permanent resident of Australia.
Section 22(9) sets out four preconditions which must be met so as to enliven the Ministerial discretion. They are the spousal or de facto relationship being in existence during the period of time in question; absence from Australia for the period that is sought to be treated as a period when the person was in Australia; the requirement to have been a permanent resident during the period sought to be included as time spent in Australia; and satisfying the Minister of a close and continuing association with Australia during the period of time spent overseas which the person wishes to have included as time spent in Australia.
As I understood Ms Hamilton, a solicitor who acted on behalf of Mr Taher, the Minister’s discretion should be exercised under s. 22(9) in this case because, broadly speaking, Mr Taher had a close and continuing association with Australia for the entire 4 year period referred to in s. 22(1) of the Citizenship Act. Furthermore, he was a permanent resident during that entire period.
The problem which I see with Ms Hamilton’s submission is that it does not take into account any distinction between meeting the four conditions necessary to enliven the Minister’s discretion under s. 22(9) and the basis upon which that discretion should be exercised. Put another way, there are two discrete steps in the application of s. 22(9). The first step is to determine whether the four preconditions for the exercise of the discretion have been met. If they have, the second step is to examine the reasons why the applicant has not been able to meet the general residence requirements and whether those reasons are appropriate for the grant of special consideration.
What Ms Hamilton has submitted is that, effectively, having met the conditions precedent for the exercise of the discretion, it must be exercised in an applicant’s favour. In my opinion, that is incorrect. That is because the words used in s. 22(9) are: the Minister may treat a period…. Even if I have misunderstood the way in which Ms Hamilton has expressed her argument, and that her submission was not that the discretion must be exercised on meeting those conditions, but rather that it may be exercised if those conditions are met, it is nevertheless incorrect to then rely on those conditions for the purpose of exercising the discretion. That involves different considerations.
The reasons why I have formed that view requires close examination of the objects or purpose of the discretionary provision and a contextual reading of s. 22(9).
It is difficult to ascertain the objects or purpose of s. 22(9) simply by reading that section alone. All that can be said from reading the section is that there may be circumstances where a spouse or de facto partner of an Australian citizen has not met the general residence requirement for a reason associated with their relationship with the Australian citizen, but not simply because they have that relationship. This approach is supported by a brief examination of the history of like provisions in the earlier Citizenship Act which s. 22(9) replaced.
Section 15 of the Australian Citizenship Act 1948 was concerned with the grant of a certificate of naturalisation as an Australian citizen to an alien. The grant of that certificate conferred citizenship on the applicant. Section 15(1)(b) and (c) set out residency requirements for the alien relating to one year immediately preceding the date of application and residence in Australia or New Guinea, which was then an Australian Trust Territory, for periods amounting in aggregate to not less than four years during the eight years immediately preceding the date of application. However, s. 15(4) provided a dispensation to the wife of an Australian citizen. That section provided:
(4.) Notwithstanding anything contained in section fourteen of this Act or in paragraph (a) or (b) of sub-section (1.) of this section, the Minister may, upon application in the prescribed form, grant a certificate of naturalization as an Australian citizen to an alien woman who satisfies the Minister –
(a)that she is the wife of an Australian citizen; and
(b)that she has resided with her husband in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a continuous period of not less than one year.
This was truly a dispensation because the wife of an Australian citizen was not required to meet all of the residence requirements required to be met by other adult applicants for citizenship. It also appears to be based on the presumption that the wife ordinarily resides with the husband.
The Australian Citizenship Act 1948 underwent numerous amendments and immediately prior to the introduction of the new Act (the Citizenship Act), the residence requirements for a spouse had been removed entirely. The presumption of cohabitation appears to have remained. The relevant provision was set out in s. 13(9) which provided:
(9) Subject to subsection (11), the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:
(a)…
(b)…
(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or…
On the introduction of the Australian Citizenship Bill 2005, which it was proposed would replace the Australian Citizenship Act 1948, the Explanatory Memorandum accompanying the Bill explained that the proposed new subsection (9) provided for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen. The Explanatory Memorandum then said:
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 the 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.
It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been 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 of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.
The original Bill introduced into The House of Representatives was amended before going to the Senate and a Revised Explanatory Memorandum issued. The new proposed subsection (9) remained unaltered.
The first paragraph of the Explanatory Memorandum is important when it comes to understanding the objects or purpose of the new subsection (9). The 1948 Act, prior to its repeal, contained no residency requirements for the spouse of an Australian citizen. The reference to adult applicants qualifying in their own right rather than relying on a spousal relationship is plainly a reference to the fact that the new subsection (9) was introduced because the new Act was intended to apply the usual residency requirements to all adults, regardless of their relationship. Simply being the spouse of an Australian citizen was no longer sufficient. Nevertheless, it was recognised that this could cause hardship in certain circumstances, those circumstances being related to the fact that two persons were in a spousal relationship which, ordinarily, included cohabitation. To assist in understanding that, an example was given. The example is, of course, only one of a number of circumstances which might give rise to the exercise of the discretion in s. 22(9).
However, what is important about the example is the fact that the events described which give rise to the inability to meet the general residence requirements stem from the spousal relationship and the desire or need to cohabit. In fact, they stem from the reasons why the Australian citizen spouse might be outside Australia and the desire or need for the non-citizen spouse to be accompanying the citizen spouse. Given that the stated object of s. 22(9) is that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship, it should come as no surprise that one of the preconditions for the exercise of Ministerial discretion is that the person had a close and continuing association with Australia during the period of time they were overseas, being the time they seek to have counted as time spent in Australia so as to meet the general residency requirement. That is one of the eligibility criteria which apply to all other adult applicants for citizenship.
There is also, in my opinion, a contextual reason which discloses the Ministerial discretion in s. 22(9) is not intended to be exercised simply on the basis of a close and continuing relationship with Australia. The general eligibility requirements set out in s. 21(2) require an applicant for citizenship not only to satisfy the general residence requirement, but also to demonstrate that should citizenship be granted and they are not at that time residing in Australia, they are likely to maintain a close and continuing association with Australia if the application were to be approved. Therefore, consistent with the general eligibility requirements in s. 21(2), s. 22(9) also requires an applicant for citizenship, even though in a spousal relationship with an Australian citizen, to meet the close and continuing association with Australia requirement throughout the period when they are overseas. It is also consistent with the stated object of the new subsection which is that spouses of Australian citizens are required to meet the same criteria as other adult applicants for citizenship.
If I am correct in my understanding of the object or purpose of s. 22(9) of the Citizenship Act, then, simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a precondition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and reasons why the applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.
TIME SPENT IN AUSTRALIA IN THE FOUR YEARS BEFORE APPLICATION FOR CITIZENSHIP
Mr Kikkert, a solicitor with the Department of Immigration and Border Protection, submitted that in the four years immediately prior to making his citizenship application, Mr Taher had been present in Australia for a total of 168 days. In the 12 months immediately before making his application, Mr Taher had been present in Australia for a total of 40 days. Ms Hamilton did not dispute these figures. They appear to be an accurate statement taken from an interval calculator prepared by the Department from its records.
Allowing for the overseas absences in s. 22(1A) and (1B) of the Citizenship Act, the 4 year requirement is reduced to 1095 days and the 12 month requirement to 275 days. Plainly, Mr Taher is well short of the required residency period required to meet eligibility for the grant of Australian citizenship.
I did not have in evidence a witness statement from Mr Taher although he did give oral evidence by telephone from Saudi Arabia. In fact, I had very scant evidence about what Mr Taher was doing in Saudi Arabia other than the fact that he worked there as an employee until around two years ago when he said he was conducting business on his own account.
In the course of his re-examination Mr Taher said that he first commenced working in Saudi Arabia in 1993. His wife has never been to Saudi Arabia. Ms Hamilton said that Mr Taher and his wife and four children arrived in Australia in 2004. However, Mr Taher appears to reside in Saudi Arabia, visiting Australia from time to time.
Although Mr Taher was asked about the work he did in Saudi Arabia, the answers he gave were so general as to be unhelpful. As best I could determine, Mr Taher chooses to work in Saudi Arabia because of the job opportunities and the contacts he has developed in that country which have enabled him to establish his own business. He cannot spend much time in Australia due to his work commitments in Saudi Arabia. Mr Taher said that he has to renew his permit to enable him to work in Saudi Arabia on an annual basis. He was also critical of the fact that his permanent residency visa in Australia had to be renewed on an annual basis although it used to be on a five yearly basis. He expressed an intention to reside in Australia at some future undetermined point in time.
DOES MR TAHER MEET THE PRECONDITIONS FOR THE EXERCISE OF MINISTERIAL DISCRETION
The Minister conceded that at the time Mr Taher made his citizenship application, he met the prerequisites for the exercise of the discretion in s. 22(9)(a), (b) and (c). However, the Minister was not satisfied that he had a close and continuing association with Australia during the period he was not present in Australia.
The Minister relied on the Australian Citizenship Instructions (ACIs) for the purposes of determining whether Mr Taher had a close and continuing association with Australia throughout the relevant period. Although not made under the Citizenship Act, the role of the ACIs is said to support the Citizenship Act. The document states that the instructions contained therein provide guidance on policy in relation to the interpretation of and the exercise of powers under the Citizenship Act and the Regulations.
Brennan J, the then President of the Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 said this about a guiding policy, at 640:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such policy.…
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…
His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the minister on his own initiative.
Chapter 5 of the ACIs is concerned with citizenship by conferral. Paragraph 5.18 deals with Ministerial discretion in relation to a spouse, de facto partner et cetera of an Australian citizen. It sets out the following factors which may demonstrate the close and continuing association with Australia. They are not exclusive. The factors are as follows:
·Australian citizen children
·long-term relationship with the Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·intention to reside in Australia
·employment in Australia where a 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
·evidence of active participation in Australian community based activities and organisations
Paragraph 5.18 also states:
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 if the person has been lawfully and physically present in Australia for at least 365 days in the four 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 [the factors referred to above] if they have not been present in Australia for at least this period.
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.
I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.
Nevertheless, Ms Hamilton focused on the fact that Mr Taher had made a statutory declaration of his intention to reside in Australia and pointed to his previous attempts at obtaining citizenship. However, and with respect to Mr Taher, a declaration of intent, without any indication whatsoever of a timeframe, carries very little weight. There can be no question that in this case, actions speak louder than words.
Ms Hamilton also focused on Mr Taher’s business activities and his intention to build a business introducing Australian and international businesses to the Middle East, acting as their representative. I had in evidence a Certificate of Registration of a Company referred to as Global Business Development Pty Ltd (Global Business), which Mr Taher said was his company. I did not have any details of its directors, issued shares or paid-up capital. I was referred to an agreement dated 2 February 2011 in which Global Business appears to have entered into an agreement with an Australian company, Torus Group Pty Ltd (TG). The recital states that Global Business is active in business development of constructions, civil engineering, clean energy, renewable energy as well waste to energy related products in and about the Saudi Arabian Region. However there was no evidence of any such activity before me. The purpose of the agreement is stated as TG engaging Global Business to arrange finance or investment as well as projects and microwave technology as well as real estate developments. There was no evidence of any such work conducted by Global Business. Perhaps more significantly, Mr Taher’s evidence was that Global Business had never paid any income tax.
I had in evidence a number of other contracts between Australian companies and a Saudi Arabia based company for whom Mr Taher apparently acts. One of those contracts is said to be an overseas representation agreement and the other agreement appears to relate to the provision of information security consulting and testing services. However, both agreements are extremely loose and it is impossible to identify any activities undertaken pursuant to those agreements.
I also had in evidence a statement provided by Mr Wayne Richards who described himself as the Chief Executive Officer of Wayne Richards Marketing. Mr Richards also gave oral evidence in the course of the hearing. Mr Richards said that he had been developing various business opportunities over the past two years in partnership with Mr Taher seeking opportunities in the Middle East and Gulf Countries. In his oral evidence, Mr Richards stressed the importance of using Mr Taher in the Middle East because of his high-level contacts, particularly in Saudi Arabia. However, once again, no tangible results have yet been produced.
On the other hand, Mr Kikkert referred to a brief statement made by Mr Taher which is dated 27 September 2012. In that letter he referred to documents (the signed business contracts) and said:
I believe by creating the mention business opportunities to those companies (detailed in doc. 6), will enable me to generate income while I reside in Australia and that will be contributing to the Australian economy.
Mr Kikkert noted the future tense used in that statement which he suggested indicated the company had yet to produce revenue or to benefit Australia. That must be correct because the company has not paid any income tax in Australia to date.
Mr Taher’s evidence was that he did not own property in Australia and that he had not paid any personal income tax in Australia. His direct family in Australia lives in a house rented to them by Mr Taher’s sister. Although Global Business had lodged tax returns, it did not have any taxable income.
In my opinion, the payment of income tax is an important aspect disclosing involvement in the Australian community. Income taxes benefit the Australian community as a whole. Mr Taher is presently resident in Saudi Arabia and any earnings he may have in that country are not subject to taxation in Australia. He clearly provides for his family in Australia from earnings derived in Saudi Arabia. That may well be a significant advantage to him and his family, but it does not demonstrate a close and continuing association with the Australian community.
For the reasons I have set out above, I find that Mr Taher has not established, on the evidence provided to the Tribunal, that he has maintained a close and continuing association with Australia over the 4 year period immediately preceding his application for citizenship. Therefore, the Minister’s discretion which is provided for in s. 22(9) of the Citizenship Act is not enlivened.
In the event that I am wrong about my finding regarding Mr Taher’s close and continuing association with Australia in the four year period preceding his application for citizenship, and assuming that he meets the prerequisites for the exercise of the discretion in s. 22(9), I would nevertheless find that the exercise of discretion in his case would be inappropriate. That is because the exercise of discretion under s. 22(9) is based on a consideration of the circumstances arising out of a spousal relationship. Mr Taher is not in a situation where he is accompanying his Australian citizen spouse overseas because of her work commitments, other humanitarian or suchlike pursuits. He is not in Saudi Arabia because of his desire or need to cohabit with his spouse. His spouse has never been to Saudi Arabia. In fact, it appears from the evidence that he is in Saudi Arabia only for the reason that his opportunities for employment and development of business relations in that country are positive and lucrative. Those reasons do not arise out of his spousal relationship. Therefore, in my opinion, it would be inappropriate for the Minister to exercise the discretion in s. 22(9) of the Citizenship Act.
CONCLUSION
Although Mr Taher lodged an application for Australian citizenship, he did not dispute that he did not meet the general residence requirements set out in s. 22 of the Citizenship Act, even after taking into account allowable overseas absences. He sought to have the Minister exercise his discretion under s. 22(9).
Even if the Ministerial discretion under s. 22(9) the Citizenship Act was open to be applied to Mr Taher, I have found that he does not satisfy a precondition to the exercise of that discretion. That is because, on the evidence before me, he has not established that in the 4 year period prior to his application for citizenship he had a close and continuing association with Australia.
Even if my finding about that is incorrect, I have nevertheless found that it would be inappropriate for the Minister to exercise the discretion in Mr Taher’s circumstances. His absence from Australia for very significant periods has nothing to do with his spousal relationship. It has everything to do with his employment and ability to utilise contacts made in Saudi Arabia to further his business interests. Following the commencement of the Citizenship Act in 2007, as an adult, he is required to meet the same criteria as other adult applicants for citizenship. That includes the general residence requirements. He cannot rely solely on a spousal relationship, which is what he is attempting to do.
In my opinion, the decision made by a delegate of the Minister on the 4 January 2013 refusing to grant Mr Taher Australian citizenship was correct. I affirm that decision.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon Fice...[sgd].....................................................................
Associate
Dated 19 December 2013
Date of hearing 2 December 2013 Advocate for the Applicant Ms G Hamilton Solicitors for the Applicant Hamiltons Migration Law Advocate for the Respondent Ms S Kikkert Solicitors for the Respondent Department of Immigration and Border Protection
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