Wachsberger and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 808

Wachsberger and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 808 (14 October 2016)

Division	GENERAL DIVISION
File Number	2016/0781
Re	Robert Wachsberger
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance Dr L Bygrave, Member
Date	14 October 2016
Place	Sydney

The decision of the delegate of the Minister for Immigration and Border Protection dated 21 January 2016 to refuse Mr Robert Wachsberger’s application for Australian citizenship is affirmed.

..................[sgd]......................................................

J W Constance
Deputy President

CATCHWORDS

CITIZENSHIP – general residence requirements – ministerial discretion where general residence requirements not met – close and continuing association with Australia – family connection – return visits – intention to reside – ownership of property in Australia – community participation – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(4), 22(1), 22(9)

CASES

Paula and Minister for Immigration and Citizenship [2012] AATA 543

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Taher and Minister for Immigration and Border Protection [2013] AATA 917

Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Deputy President J W Constance
Dr L Bygrave, Member

14 October 2016

INTRODUCTION

1. Mr Robert Wachsberger is a 66 year old citizen of South Africa. He became a permanent resident of Australia on 3 April 2011, when he first entered Australia on a permanent Partner (subclass 100) visa that was granted on 6 December 2010. He currently holds a permanent Resident Return (subclass 155) visa, which was granted on 16 November 2015 while he was overseas.[1]

   [1] Exhibit R1, p 10.

2. On 28 April 2015, Mr Wachsberger applied for Australian Citizenship under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection on 21 January 2016 because Mr Wachsberger did not satisfy the residence requirements under subsections 21(4)(d) and (e) of the Act and could not benefit from the discretion in subsection 22(9) of the Act.

4. On 15 February 2016, Mr Wachsberger applied to the Administrative Appeals Tribunal for review of that decision.

5. The matter was heard in Sydney on 29 September 2016. Mr Wachsberger was present at the hearing and had legal representation.

   RELEVANT LEGISLATION AND ISSUES

6. Section 21(4) of the Act establishes the criteria for general eligibility requirements for the conferral of Australian citizenship for a person aged over 60 years. The provisions relevant to the determination of this application are as follows:

   (4)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)    is:

   (i)  aged 60 or over at the time the person made the application; or

   …

   (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

   …

   (d)    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

   (e)    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 …

7. We are satisfied that Mr Wachsberger meets the requirements in subsections 21(4)(a) and (b) of the Act; he was aged over 60 years at the time he made the application, and was a permanent resident at the time he applied for citizenship and at the date of decision by the Minister’s delegate.[2]

   [2] Exhibit R1, pp 11-12.

8. The general residence requirement is set out in section 22 of the Act. 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.

9. In the four years prior to his application for citizenship, between 28 April 2011 and 28 April 2015, Mr Wachsberger was present in Australia for a total of 241 days. He was present in Australia for 47 days in the 12 months immediately preceding his application for citizenship.[3] We therefore find that Mr Wachsberger does not satisfy the general residence requirement in section 22(1) of the Act.

   [3] Exhibit R1, Supplementary T-docs p.43-47. .

10. Mr Wachsberger’s spouse, Ms Tessa Wachsberger, became an Australian citizen on 17 December 2009.[4] As Mr Wachsberger is the spouse of an Australian citizen, the Act gives the Minister, and therefore this Tribunal, discretion to treat a period of absence from Australia as a period in which he was present for the purposes of satisfying the general residence requirement. 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. [emphasis added]

    [4] Exhibit R1, p.80.

11. The issue for determination by the Tribunal is whether Mr Wachsberger had “a close and continuing association with Australia” during his periods of absence from Australia in the four years prior to his application for citizenship as required by section 22(9)(d).

    Did Mr Wachsberger have a close and continuing association with Australia during his periods of absence?

12. In applying subsection 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:

    (a)“close” means “having a strong or immediate relation or connection”;

    (b)“continuing” means “to remain in existence or unchanged”; and

    (c)“association” means “the act or an instance of associating; fellowship or companionship”.

    Citizenship Policy

13. The Citizenship Policy offers guidance on the interpretation of the Act. The Citizenship Policy replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions (the ACIs), which were last published on 26 February 2015.  From 1 June 2016, the ACIs detail the citizenship operational instructions.

14. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary.[5]

    [5] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

15. We are considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the reviewable decision was made, the relevant policy from 1 June 2016 and at the time of hearing was the Citizenship Policy.

16. In relation to the exercise of the discretion under subsection 22(9), the Citizenship Policy relevantly provides:

    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:

    ·evidence that the person migrated to and established a home in Australia prior to the period overseas

    ·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

    ·the person has been on leave from employment in Australia while accompanying  their spouse or partner overseas

    ·ownership of property in Australia

    ·evidence of income tax paid in Australia over the past four year 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 s22(9)(d), more weight should be given to the listed factors 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 if they have not been present in Australia for at least this period. [emphasis added][6]

    [6] Chapter 7A, pp 95-96.

17. As noted by the Tribunal in Taher and Minister for Immigration and Border Protection:

    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.

    Family connection

18. Mr Wachsberger’s spouse is an Australian citizen. He has been married to his wife since 1991. In a written statutory declaration dated 4 May 2016, Mr Wachsberger stated that his wife “spends considerable period of time in our residence in Sydney. In Australia we have three children and seven grandchildren, all of whom are Australian citizens”.[8]

    [8] Exhibit A1.

19. At the Tribunal hearing, Mr Wachsberger said that he has other children who currently live in South Africa and are also considering moving to Australia.

    Regular return visits and/or residence in Australia

20. Mr Wachsberger’s spouse owns an apartment in Sydney. At the Tribunal hearing, Mr Wachsberger said that he treats this residence as his home while he is in Australia; it is furnished and he leaves clothes and belongings permanently at the residence. He has a motor vehicle in Australia and an Australian licence.

21. Mr Wachsberger travelled to and from Australia an average of three times per year during the four years prior to his application. The primary purpose of these trips was to visit family, holiday and network with businessmen. Each of these trips was for short periods of time, with the average trip lasting approximately two weeks.

    Intention to reside

22. In the four years before his application, Mr Wachsberger worked in South Africa where he maintains significant business interests. In a statement dated 16 March 2015, Mr Wachsberger noted:

    … as I approach my 65^th birthday I am now making plans to make Australia my primary residence.

    Once I am a citizen of Australia I will be in a position to change my domicile, move assets to Australia and make investments and become a contributor to Australia.[9]

    [9] Exhibit R1, p.128.

23. Mr Wachsberger told the Tribunal that he owns substantial businesses and assets in South Africa. He is actively involved in these businesses and is based in South Africa to “continue the growth and success of these companies”.[10] He is in the process of selling his assets in order to move to Australia and noted that this process takes time due to the current political situation in South Africa. However, he provided the Tribunal with minimal detail and no timeframe regarding this process of divesting assets and moving to Australia.

    [10] Exhibit T11.

24. At the Tribunal hearing, Mr Wachsberger said that he is networking with people to find the “right” opportunity to invest in a business in Australia. He provided three statutory declarations from business associates, which refer to discussions regarding investment and business opportunities.[11] His statutory declaration dated 4 May 2016 sets out meetings he has held with businessmen in Australia since 2010.[12] Mr Wachsberger discussed these meetings in general terms, saying he was interested in opportunities in the construction, design, hotel and/or medical industries, and sought to invest “tens of millions of dollars”. 

    [11] Exhibits A3, A4 and A5.

    [12] Exhibit A1, paras 12-25.

    Ownership of property/payment of income tax

25. Mr Wachsberger and his wife own an apartment in Sydney. Bank statements submitted to the Tribunal show that Mr Wachsberger transferred $31,290 into an Australian bank account in April 2016 and $32,550 into an account in September 2016.[13] Mr Wachsberger told the Tribunal that he transfers about $100,000 into his Australian bank account each year to pay for his expenses while visiting Australia.

    [13] Exhibit A2.

26. There is no evidence before the Tribunal that Mr Wachsberger has paid income tax or completed a tax return in other income years.

    Community participation

27. Mr Wachsberger has met with business people in Australia since the late 1970s.[14] He told the Tribunal that he has maintained his business contacts since this time through his involvement with international business organisations such as the Young President’s Organisation and World President’s Organisation. Until recently, however, these business associations appear to have related to opportunities for Mr Wachsberger to further develop his business interests in South Africa rather than initiate investment opportunities in Australia.

    [14] Exhibit A1, para 9.

28. Mr Wachsberger has also owned a share in a boat syndicate based in Sydney and Hamilton Island for the past ten years.[15]

    [15] Exhibit A3.

    CONSIDERATION

29. Mr Wachsberger was present in Australia for 241 days (and absent for 1220 days) in the four years prior to his application. He was present in Australia for 47 days (and absent for 318 days) in the 365 days immediately before making his application for citizenship. The Citizenship Policy requires that less weight should therefore be given to the listed factors. We also have regard to what the Tribunal said in Paula and Minister for Immigration and Citizenship:

    The Instructions [Citizenship Policy] do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.

30. Physical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia. We regard Mr Wachsberger’s limited physical presence in Australia in the four years, and the 12 months, prior to his application for citizenship as being of particular relevance.

31. Based on the evidence before the Tribunal, it is clear that Mr Wachsberger’s connection to Australia is primarily to his family. His wife resides in Australia for approximately five months per year, and his step-children and grandchildren reside full-time in Australia. Mr Wachsberger travels to Australia three times a year to visit them. This connection is undoubtedly strong. Nonetheless, as stated by the Tribunal in Ul Haque and Minister for Immigration and Citizenship, “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”.[17]

    [17] [2013] AATA 118, at [52].

32. Mr Wachsberger also engages with members of the Australian community through his business and boating interests. However, we place minimal weight on these factors due to the very limited periods of time Mr Wachsberger has been present in Australia over the past four years.

33. We accept that Mr Wachsberger’s spouse owns an apartment in Sydney and that Mr Wachsberger has an intention to reside in Australia in the future. We also accept that the process of divesting Mr Wachsberger’s businesses and assets in South Africa is complex and may take time. However, he has held a permanent resident visa for Australia since December 2010 and his spouse has been an Australian citizen since December 2009. Mr Wachsberger was only able to provide the Tribunal with limited information about processes he has undertaken since 2010 towards residing in Australia and any future plans to move his business and assets to Australia.

    CONCLUSION

34. On the basis of all of the factors above, we are not satisfied that Mr Wachsberger had a close and continuing association with Australia during his periods of absence from the country in the four years prior to his application. For that reason, he does not meet the pre-requisite to the exercise of the discretion contained in subsection 22(9)(d).

    DECISION

35. The decision of the delegate of the Minister dated 21 January 2016 to refuse Mr Wachsberger’s application for Australian citizenship will be affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Dr L Bygrave, Member.

...................[sgd].....................................................

Associate

Dated 14 October 2016

Date of hearing	29 September 2016
Date final submissions received	29 September 2016
Solicitors for the Applicant	Mr A Conyer; Diamond Conway Lawyers
Solicitors for the Respondent	Ms G Doyle; Sparke Helmore

[7] [2013] AATA 917 at [47]

[16] [2012] AATA 543 at [31].