Ul Haque and Minister for Immigration & Citizenship
[2013] AATA 118
[2013] AATA 118
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0529
Re
Abu Zafor Reza Ul Haque
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 6 March 2013 Place Sydney Decision Summary
The decision under review is affirmed.
......................[SGD]..................................................
Senior Member A K Britton
CATCHWORDS
CITIZENSHIP — Citizenship by conferral — Residence requirement — Ministerial discretion —Whether there was a close and continuing association with Australia — Application of Australian Citizenship Instructions — Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 22, 22(1)(a), 22(1)(c), 22(1A), 22(1B), 22(9), 22A, 22B, 23
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Singh v Minister for Immigration and Citizenship [2011] FCA 685Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315
SECONDARY MATERIALS
Australian Citizenship Instructions as at 1 July 2009
Australian Citizenship Instructions as at 1 January 2013
REASONS FOR DECISION
Senior Member A K Britton
6 March 2013
Mr Ul Haque was born in and is a citizen of Bangladesh. He has been a permanent resident of Australia since 1999. His wife and only child, a daughter, migrated to Australia from Bangladesh in 2004. Both are now Australian citizens. Mr Ul Haque seeks review of the decision made by a delegate of the Minister for Immigration to refuse his application for Australian citizenship. The delegate found that Mr Ul Haque did not satisfy one of the criteria for the grant of Australian citizenship, namely the “residence requirement”, and, in addition decided not to exercise the discretion to count periods Mr Ul Haque spent overseas as periods he was present in Australia (s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)).
The primary issue to be determined is whether the discretion conferred by s 22(9) can and should be exercised. That power can only be exercised if the decision-maker is satisfied that Mr Ul Haque had “a close and continuing association with Australia”.
THE RESIDENCE REQUIREMENT
A person is eligible for conferral of Australian citizenship if, among other things, they satisfy the general residence requirement (s 22), the special residence requirement (ss 22A or 22B), or the defence service requirement (s 23), at the time the person made the application for citizenship (s 21(2)). There is no argument that Mr Ul Haque did not meet any of these requirements when he lodged his application for citizenship on 30 November 2011.
By s 22(1) of the Citizenship Act, a person will satisfy the general residence requirement if:
(a) the person was present in Australia for the period of four years immediately before the day he or she made the application; and
(b) the person was not present in Australia as an unlawful noncitizen at any time during that four year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day he or she made the application.
By s 22(1A), a person is taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day they made the application was not more than 12 months. By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the 12 month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.
These deeming provisions do not assist Mr Ul Haque because in the four years before making his application for citizenship (“the relevant period”) he was present in Australia for a total of 150 (of the required 365) days and, in the 12 months immediately before making that application, a total of 43 (of the required 90) days.
THE DISCRETION
The Act confers on the decision-maker the power to treat the residence requirement as having been met in certain circumstances. The parties agree that the only applicable provision is s 22(9) which is in the following terms:
(9) If the person is the spouse … 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.
There is no argument that paragraphs (a), (b) and (c) are met.
APPLICABLE POLICY
The Australian Citizenship Instructions (“the Instructions”) were issued by the Minister to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. The current version of the Instruction was issued on 1 January 2013 and states (at [5.18]):
5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))
….
Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
oAustralian citizen children
olong term relationship with Australian citizen spouse or de facto partner
oextended family in Australia
oregular return visits to Australia
oregular periods of residence in Australia
ointention to reside in Australia
oemployment in Australia where the person has been on leave to accompany their spouse or partner overseas
oownership of property in Australia
oevidence of income tax paid in Australia over the past four years and
oevidence 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 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 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 Australian for at least this period.
….
The Minister’s delegate in assessing Mr Ul Haque’s application for citizenship applied an earlier version of the Instructions then in force (the old version). It is similar but not identical to the current version of the Instructions. Each version states that the discretion in s 22(9) “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse”. Each also states:
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have 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 if they have not been present in Australian for at least this period.
The main difference between the two versions, is that the current version lists as one of the factors relevant to whether a close and continuing association has been demonstrated: “employment in Australia where the person has been on leave to accompany their spouse or partner overseas …”. The old version on the other hand refers to: “employment in Australia (for example, public or private sector)”. In addition the current version lists “evidence of active participation in Australian community based activities or organisations”. There is no corresponding factor listed in the old version of the Instructions.
Which version of the Instructions applies?
Mr Ul Haque contends that the applicable policy is the old version of the Instructions; the Minister disagrees and contends that the current version applies. The Instructions provide no guidance as to which version should apply to applications for citizenship made before the introduction of the current version on 1 January 2013.
The parties consider the amendment to the Instruction, specifically the narrowing of the employment factor to be of some significance. The Minster argues that this amendment strengthens the policy that the discretion in s 22(9) “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse”.
While the Instructions do not have the status of legislation, in my opinion, like legislation, in the absence of a clear statement it should not be assumed that they have retrospective operation. Accordingly in my view the old version should be applied.
The factors listed in each version as relevant to the question of whether a “close and continuing association” has been demonstrated are not expressed to be exhaustive and in any event could not be said to constrain the decision-maker in the factors he or she takes into account. The current version of the Instructions in my opinion could not be interpreted to mean that the decision–maker should only have regard to employment in Australia where the applicant has been on leave to accompany their spouse.
Application of the policy
In the exercise of its review function the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The issue between the parties is whether there are cogent reasons to depart from the policy that the discretion in s 22(9) “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse”. Mr Ul Haque contends there are cogent reasons to depart from that policy because it is both perverse and unlawful.
He argues that it is perverse because it would appear to favour applicants who travel overseas to accompany their Australian citizen spouse, over those who did not, even where the latter had a closer association with Australia. He asserts that it is unlawful because it purports to fetter the Tribunal’s discretion.
The Minister accepts that the policy should not be applied inflexibly but points out that the use of the word “usually” leaves scope for the exercise of the discretion notwithstanding that throughout the relevant period Mr Ul Haque’s wife seldom accompanied her husband when he travelled overseas.
The Federal Court in Singh v Minister for Immigration and Citizenship [2011] FCA 685 considered a similarly worded passage in the Instructions in respect of a discretion conferred by section 24(2) to refuse to grant citizenship. The Court said (at [12]):
·policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would “usually be approved”, thereby leaving the appropriate decision to the decision maker. The Instructions are not intended to dictate how the discretion under s 24(2) is exercised (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J);
·the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 at paragraph [40] to [45]);
·as the Instructions set out policy considerations which the explanatory memorandum suggested were appropriate considerations, being considerations which do not dictate how the discretion is to be exercised but provide guidance in its exercise, they may be properly considered in the exercise of the s 24(2) discretion. They are not ultra vires. They do not impermissibly raise, as a usual course, the prior attainment of permanent residence. That factor is expressly contemplated by the explanatory memorandum as a policy matter which may be reflected in guidelines to inform relevant administrative decision making.
DP Handley commented in Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315 at [41] – [43], the proper approach to the application of the policy that the discretion in s 22(9) “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse” requires that the Tribunal:
while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.
I will adopt that approach in this matter.
Factors relevant to the nature of Mr Ul Haque’s association to Australia
Australian citizen children: Mr Ul Haque’s only child, a daughter aged 26, has resided in Australia since mid-2004 and was granted Australian citizenship in March 2007. She completed her final years of secondary school and tertiary studies in Australia. While on occasion she has accompanied her parents overseas, since her arrival she has primarily resided in Australia. In 2009 she married an Australian citizen and, in 2011, was conferred a Master’s Degree in Economics by the University of Sydney.
Her evidence corroborated by both parents is that she and her father are close and maintain regular contact even when he is overseas. In 2011 she took over the management of a family business, a SEVEN-11 Franchise in the CBD of Sydney. While initially she relied heavily on her father for advice and guidance, she is now less reliant but continues to consult him on a regular basis. Mr Ul Haque continues to take an active role in the business and when in Australia always visits the store and speaks to staff.
Long term relationship with Australian citizenship spouse: Mr Ul Haque and his wife, Ms Asma Reza, have been married since 1982. There is no evidence to suggest that the marriage is other than genuine.
Ms Reza was granted Australian citizenship in March 2007. Prior to her daughter’s marriage in 2009 she seldom accompanied her husband when he travelled overseas. More recently she has started to do so on a more regular basis, and in the relevant period, accompanied him overseas about 50 per cent of the time. She claims that when she accompanies her husband to Bangladesh she works in the family businesses.
Extended family in Australia: Mr Ul Haque has two brothers who reside in Australia with their respective families. Mr Ul Haque’s relationship with his younger brother is strained following a failed joint business venture. Mr Ul Haque says he remains optimistic that the relationship can be repaired. Mr Ul Haque’s son-in-law also resides in Australia.
Period spent in Australia throughout the relevant period: As noted in the relevant period Mr Ul Haque spent just over 10 per cent of his time, a total of 150 days in Australia. These stays varied in length from between four to 24 days; the average was 12.5. In the 12 months immediately before making his current application for citizenship Mr Ul Haque spent a total of 43 days in Australia.
Period spent in Australia since arrival: Since arriving in 1999, Mr Ul Haque has spent a total of 415 days, or about 10 per cent of his time in Australia. In that period his shortest stay was four days (in May 2008) and the longest, 37 days (in December 2006).
Mr Ul Haque claims that despite being absent for significant periods he considers Australia to be his home.
Intention to reside in Australia: Mr Ul Haque testified that he plans to retire in about ten years and hand over the management of his extensive business interests to his daughter. He says once long-running litigation in which he is involved in Singapore (the Singapore litigation) is resolved he will be able to reduce the amount of time he spends overseas. He stated that he believes that advances in communication technology will make it practicable for him to spend more time in Australia.
Employment in Australia: Mr Ul Haque is self-employed. See below.
Business interests in Australia and overseas: According to Mr Ul Haque, his decision to purchase a SEVEN-11 franchise in 2004 was motivated by a desire to assist his younger brother. The franchise was purchased by a family company. Initially the shareholders were Mr Ul Haque, his brother, wife and daughter. The business was managed by Mr Ul Haque’s brother and Mr Ul Haque was the chair of its board of directors (his wife, daughter and brother). Concerned with the management of the company, in 2011 Mr Ul Haque took steps to have his brother removed as director and his daughter appointed as managing director.
Mr Ul Haque estimates the value of the company to be approximately $AUD 1m. The company employs about seven people.
Mr Ul Haque has extensive overseas business interests including in Bangladesh, Germany and Singapore. He estimates that at the end of the relevant period the value of those interests was about $AUD 30m. He estimates that if, as he anticipates is likely, the Singapore litigation is resolved in his favour, the value of his interests will increase by a further € 46m.
On his account at the end of the relevant period he was employing about 300 people in Bangladesh and about 10 people in Singapore.
Mr Ul Haque and his daughter testified that they have been actively considering a number of business opportunities in Australia. In late 2012 an Australian company of which Mr Ul Haque and his son-in-law are shareholders entered into leases to operate two Sydney service stations. Mr Ul Haque’s daughter stated that she will manage this business.
Ownership of real property in Australia: Mr Ul Haque owns three residential properties in Australia. Two were purchased shortly after his family moved to Australia in 2004. Since that time his wife and, until her marriage, his daughter resided in one of the properties. Mr Ul Haque describes that property as his principal place of residence. The other property was initially rented through a property agent and is now occupied by Mr Ul Haque’s daughter and son-in-law. The third property was purchased in 2005 by a company owned by members of Mr Ul Haque’s immediate family. It has been tenanted since purchase.
In 2011 Mr Ul Haque estimates the total value of these three properties to be $AUD 3.8m.
Ownership of real property outside Australia: Mr Ul Haque has significant property interests in Singapore and Bangladesh. He owns three houses in Bangladesh, one in Dhaka where he lives when in Bangladesh (estimated value, $AUD 3m), a villa in his family village where he holidays when he is in Bangladesh (estimated value, $AUD 1.5m) and a house where his mother now lives. In addition he owns 20 apartments which are leased.
Mr Ul Haque also owns three apartments in Singapore (each estimated to be worth $AUD 1.5m). He resides in one when he is in Singapore and leases the other two.
Money invested in Australia: Mr Ul Haque estimates that at the end of the relevant period he had just under $AUD 2m in term deposits and some small sums in savings accounts. He estimates that he has about € 46m in bank accounts in Singapore and Germany.
Evidence of income tax paid in Australia in respect of the relevant period: At the Tribunal’s request after the hearing Mr Ul Haque provided some information about his tax position. He provided an unidentified document apparently a printout of his Australian Tax Office running balance account. It shows that he paid no personal income tax for the tax years 2005, 2006, 2007 and 2008 and a total of $23,000 for the 2009, 2011 and 2011 tax years. According to his accountant a return has been lodged for the 2012 tax year.
Mr Ul Haque testified that all of his Australian companies pay tax in Australia but provided no particulars.
Evidence of active participation in Australian community-based activities or organisations: Mr Ul Haque has had no involvement in Australian community-based activities or organisations since first arriving Australia in 1999. He says he has a few friends in Australia, mainly business acquaintances.
DID MR UL HAQUE HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA THROUGHOUT THE RELEVANT PERIOD?
Whether Mr Ul Haque had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions.
The words that make up the phrase “close and continuing association” are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating … connection or combination”.
I accept that notwithstanding the little time Mr Ul Haque has spent with his Australian‑based wife and daughter since they moved to Australia in 2004, his association with each is close and continuing. I also accept that while a small proportion of his total portfolio, Mr Ul Haque’s Australian business and property interests point to a continuing association with Australia. Further I accept that he has had an active involvement in the SEVEN‑11 franchise, particularly when the problems with his brother’s management were exposed.
The reason Mr Ul Haque has spent most of the past decade overseas is because of the demands of his significant foreign business interests and the Singapore-based litigation. This is hardly surprising given their scale and apparent complexity. As he readily concedes the great bulk of his time is absorbed in the management of existing overseas interests and pursuing further overseas business opportunities.
I accept as argued for Mr Ul Haque that the policy that the discretion “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse” is not, by itself, determinative.
I also accept that Mr Ul Haque’s business and property interests are not to be disregarded merely because they represent a fraction of his total business and property interests. Nonetheless the assessment as to whether Mr Ul Haque had a close association with Australia cannot be undertaken in a vacuum and his association with other countries must also be taken into account. This is not to suggest that to satisfy s 22(9)(d) a person’s association with Australia must be exclusive, but rather that the totality of their circumstances must be taken into account. Here Mr Ul Haque has a close and continuing association with both Bangladesh and Singapore: he spends most of his time and maintains residences in these countries and they generate and/or hold the bulk of his assets and income. In addition all but a handful of his 300 plus workforce are employed in these two countries. By comparison, he has a relatively low level of business investment in this country. He has multiple property investments in a number of countries but not predominantly in Australia.
While physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia. The little time Mr Ul Haque has been present in Australia since being granted permanent residency and throughout the relevant period is reflected in the modest amount of personal income tax paid, and the lack of any significant social or community ties, to Australia.
It may be in time Mr Ul Haque will be able to spend more time in, and expand his business opportunities within, Australia. However that is not the case at present, nor was it the case throughout the relevant period.
Mr Ul Haque has a close and continuing relationship with his wife and daughter, both of whom, as Australian citizens, have a close and continuing relationship with Australia. But, although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia. He spends little time here and does little work or business here. He makes very little contribution to Australian society. Apart from his family, he has very few personal connections with Australia. Weighing these considerations discussed above I am not satisfied that Mr Ul Haque’s association with Australia could be described as close and continuing.
It may be, as Mr Ul Haque contends, that it would be to Australia’s advantage to grant citizenship to a person possessing his significant wealth and demonstrated business acumen. While these factors might be relevant to the exercise of discretion, they are irrelevant to the threshold question of whether a close and continuing association with Australia has been demonstrated.
I have decided that the preferable decision is to affirm the decision to refuse to approve Mr Ul Haque’s application for Australian citizenship.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ................[SGD]........................................................
Associate to Senior Member Britton
Dated 6 March 2013
Date(s) of hearing 24 January 2013 Date final submissions received 7 February 2013 Solicitors for the Applicant Parish Patience Immigration Lawyers Respondent In person
46
4
0