Wassim Chakass and Minister for Immigration and Citizenship
[2013] AATA 375
[2013] AATA 375
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5309
Re
Wassim Chakass
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 5 June 2013 Place Sydney The Tribunal affirms the decision under review.
......[Sgd]..................................................................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - permanent resident - application for citizenship - applicant married to Australian citizen - applicant does not meet residence requirements - exercise of discretion - application of Australian Citizenship Instructions - whether applicant has a close and continuing association with Australia - decision under affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 22, 22(1), 22(2), 22(9)
SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
Wassim Chakass is a citizen of Lebanon. Mr Chakass married an Australian citizen, Ms Youmen Chakass (née Chabaan), in 2003. He was granted permanent residence in March 2009. In April 2012 Mr Chakass applied for Australian citizenship. His application was refused.
During 2008 to 2012 Mr Chakass spent almost all of his time in Lebanon or Qatar, with his wife and children in Lebanon, working as an orthodontist. As a result, he does not meet the residence requirements for conferral of Australian citizenship in section 22 of the Australian Citizenship Act 2007. The question remains whether the discretion contained in section 22(9) should be exercised in his favour. Mr Chakass contends that he maintained a close and continuing association with Australia during the four years leading up to his application for citizenship. The Minister maintains that he did not.
ISSUES
Section 22(1) of the Act provides:
(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.
There is no dispute that Mr Chakass, who was present in Australia for less than two months in the four years prior to his application, does not satisfy the residence requirement in section 22(1) and, according to section 22(2), is not eligible to become an Australian citizen.
However, section 22(9) of the Act provides for a discretion in some circumstances to treat a period as one in which a person was present in Australia as a permanent resident:
(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.
There is no dispute that Ms Youmen Chakass is an Australian citizen and that she and Mr Chakass married in March 2003 and that it is a genuine marriage. Nor is it in dispute that Mr Chakass was a permanent resident from April 2009. The essential issues are therefore whether Mr Chakass had a close and continuing connection with Australia during the relevant period, and in particular from April 2009, and, if so, whether the discretion should be exercised.
DID MR CHAKASS HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA?
The Australian Citizenship Instructions contain the following introduction:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
In relation to the discretion contained in section 22(9) of the Act, the Instructions say:
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
Factors that may contribute to a close and continuing association with Australia include:
· Australian citizen children
· length of relationship with Australian citizen spouse or de facto partner
· extended family in Australia
· return visits to Australia
· periods of residence in Australia
· intention to reside in Australia
· employment in Australia (for example, public or private sector)
· ownership of property in Australia
· evidence of income tax payment in Australia and
· current bank accounts in Australia.
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.
Mr Chakass’ three children were born in Australia and are Australian citizens. His oldest child is seven years old and attends an “English” school in Lebanon. Her education is conducted in English. She also attended school for four months in Australia while she was here with her mother. She has spent approximately eight months in Australia.
Mr Chakass and his Australian citizen wife have been married for 10 years.
Mr Chakass said he has a large extended family in Australia. Almost all of that family are his wife’s relatives. Of his own family, there is one cousin of his father’s living in Australia. Mr Chakass said that since his marriage, relatives from Australia have visited them in Lebanon and stayed at their home for periods of one to four months. He said this happens once or twice per year. He said that through these visits he has formed close connections with his wife’s family.
Mr Chakkas has only visited Australia on three occasions, each time for less than one month with one of those occasions being outside the relevant four year period. He has never resided in Australia. Rather, he has resided in Lebanon with his wife and children.
From 3 March 2009 until 5 April 2012 (the relevant period) Mr Chakass spent the following periods in Australia (at all times holding a permanent visa):
From
To
Days
21 June 2009
18 July 2009
28
11 October 2011
1 November 2011
22
Total
50
Mr Chakass said he intends to reside in Australia. However, he also said he has work in Lebanon and in Qatar as an orthodontist and his qualifications have not been recognised in Australia. He has pointed to no steps he has yet taken to establish himself in Australia, except to say he is preparing himself for the first equivalence exam for recognition as a dentist in Australia. He said he contacted the Australian Dental Council about this in 2011 and obtained the study materials to revise for the dentistry examination. He said the process to gain equivalent qualifications is a three-stage process that will take two years in total.
Mr Chakass said that his plan is to obtain citizenship before he takes his equivalency exams. He considers that his application will carry more weight if he is an Australian citizen. He expects that when his wife finishes her studies (currently a PhD from Macquarie University) she will be able to obtain work in Australia and the family will move to Australia then. He said that if he is unable to obtain citizenship he will obtain his equivalency, move to Australia and then apply again for citizenship.
Mr Chakass said his father in law owns a property in Australia and that it is where he stays when he visits here. This does not amount to ownership of property in Australia by Mr Chakass.
Although Mr Chakass said he has an Australian Tax File Number, there is no evidence of his having paid tax in Australia.
Mr Chakass has a bank account with the National Australia Bank. The bank statement provided by him indicates that the account is held with his wife and has a current balance of $1,820.51. The account was opened by his wife in 2005 and in 2009 Mr Chakass became a joint account holder. He said the account is used to pay for goods he and his wife obtain through relatives in Australia. He gave the example of Moccona coffee which he said he likes to have available for relatives visiting from Australia.
The Instructions say that “more weight” should be given if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship. According to the Instructions “less weight” should be given if the person has not been present for at least 365 days. Mr Chakass was present in Australia for just 50 days in the 4 years prior to his application for citizenship.
The Instructions 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.
However, on such a sliding scale, Mr Chakass’ 50 days place him at the lower end.
While the fact of his wife and children’s Australian citizenship is significant, and while his connections with his wife’s family are more frequent than first appeared in the documents lodged with the Minister and the Tribunal, Mr Chakass’ connection with Australia remains a distant one because of the little time he has spent in Australia. There is no doubt that he has an association with Australia and that he wishes to further that association and eventually live here. I note, in particular, that his oldest daughter is being schooled in English at an English school and that he has investigated the requirements for equivalency in respect of his qualifications as a dentist and orthodontist. However, the Instructions make it clear that physical presence in Australia is an important factor in determining whether the required association exists. Mr Chakass has spent very little time in Australia in spite of his desire to settle here eventually.
I conclude that during the relevant period he did not yet have a close and continuing association with Australia of the kind anticipated by the Instructions.
SHOULD THE DISCRETION BE EXERCISED?
Having reached the conclusion that Mr Chakass did not have a close and continuing association with Australia throughout the relevant period, I cannot exercise the discretion in his favour.
DECISION
The Tribunal affirms the decision under review.
I note that it is available to Mr Chakass to lodge another application for citizenship at any time.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ....[Sgd]....................................................................
Associate
Dated 5 June 2013
Date of hearing 21 May 2013 Applicant In person Solicitors for the Respondent M Stone, DLA Piper
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