WILLIAM YOUNG and MINISTER FOR IMMIGRATION AND CITIZENSHIP Mr A Sweidan, Senior Member 12 April 2012 7 May 2012 Perth
[2012] AATA 268
•12 April 2012
[2012] AATA 268
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4344
Re
WILLIAM YOUNG
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
WRITTEN REASONS FOR DECISION
Tribunal Mr A Sweidan, Senior Member
Date of Decision 12 April 2012 Date of Written Reasons
7 May 2012 Place Perth
1. On 12 April 2012 the Tribunal in an oral Decision set aside the decision of the Respondent made on 21 September 2011 and remitted the matter to the Respondent to determine the Applicant’s eligibility to become an Australian citizen taking into account that the Tribunal has found, in exercising the discretion provided for in s22(9) of the Australian Citizenship Act 2007 (the Act) that the Applicant satisfies the general residential requirement in s22(1) of the Act.
2. The Respondent has requested written reasons for the Tribunal’s Decision.
3. The written reasons are attached.
..(sgd) Mr A Sweidan...................
Mr A Sweidan, Senior Member
CATCHWORDS
Australian Citizenship by conferral - whether discretion should be exercised in favour of applicant who does not satisfy general residential requirements
LEGISLATION
Australian Citizenship Act 2007 s 22(9)
CASES
Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Dandan v Minister for Immigration and Citizenship [2010] AATA 539
Sapronov and Minister for Immigration and Citizenship [2011] AATA 126
Hingorani and Minister for Immigration and Citizenship [2011] AATA 266
Minhas and Minister for Immigration and Citizenship [2011] AATA 388Jiang and Minister for Immigration and Citizenship [2011] AATA 688
WRITTEN REASONS FOR DECISION
Mr A Sweidan, Senior Member
7 May 2012
BACKGROUND AND RELEVANT FACTS
Applicant seeks review of a decision dated 21 September 2011 by a delegate of the respondent to refuse his application for Australian citizenship by conferral under s. 24(1) of the Australian Citizenship Act 2007 (Cth) (Act).
The application for review is made in accordance with paragraph 52(1)(b) of the Act, which allows applications to be made to the this Tribunal for review of a decision made under section 24 of the Act.
The following facts are not in dispute:
Applicant first entered Australia on 2 May 1999 as the holder of a Subclass 976 (Visitor) visa. He currently holds a Subclass 155 (Five Year Resident Return) visa, which was granted on 14 June 2007.
On 29 August 2011 the Applicant applied for Australian citizenship by conferral under s.21(1) of the Act.
In the 4 years immediately before the day on which the Applicant applied for Australian citizenship the Applicant spent the following periods, being a total of 189 days, in Australia as a permanent resident:
· 25 November 2007 – 10 December 2007 (16 days)
· 24 December 2007 – 7 January 2008 (15 days)
· 14 March 2008 – 18 March 2008 (5 days)
· 31 October 2008 – 10 November 2011 (11 days)
· 21 May 2009 – 8 June 2009 (19 days)
· 21 August 2009 – 7 September 2009 (18 days)
· 23 December 2009 - 11 January 2010 (20 days)
· 24 April 2010 – 10 May 2010 (17 days)
· 25 September 2010 – 10 October 2010 (16 days)
· 21 December 2010 – 6 January 2011 (17 days)
· 21 May 2011 – 5 June 2011 (16 days)
· 11 August 2011 – 29 August 2011 (19 days).
In the 12 months immediately before the day on which the Applicant applied for Australian citizenship he spent the following periods, being a total of 58 days, in Australia as a permanent resident:
· 25 September 2010 – 10 October 2010 (16 days)
· 21 December 2010 – 6 January 2011 (17 days)
· 21 May 2011 – 5 June 2011 (16 days)
· 11 August 2011 – 29 August 2011 (19 days).
Applicant’s wife and daughter are Australian citizens.
In addition to the material included in the T Documents, the Applicant has provided the following materials in support of his application:
(a)Citizenship certificate of Jennifer Louise Young (the Applicant’s daughter);
(b)Movement records, which show the Applicant has made 28 return trips to Australia between 2 May 1999 and 11 August 2011;
(c)Memo from ASC Pty Ltd (the Applicant’s employer, being a Perth based company) dated 15 November 2011 confirming the Applicant’s successful completion of his probationary period and his status as a permanent employee;
(d)Record of certificate of title for the property at 7 Bordeaux Ramble Port Kennedy (the Applicant’s residential address). The Registered Proprietors are the Applicant and his wife, Mrs Joyce Young;
(e)Australian Tax Office Notice of Assessment for the year ending 30 June 2006; and
(f)Statements from the Commonwealth Bank in relation to the Applicant’s savings and credit accounts.
The Applicant is currently present in Australia.
ISSUES
As there is no dispute that the Applicant does not satisfy the general residence requirements under s.22 of the Act, the issue for the Tribunal to determine is whether the discretion in s.22(9) of the Act should be exercised in favour of the Applicant.
RELEVANT LEGISLATION
Under s.21(1) of the Act a person may make an application to the Minister to become an Australian citizen.
Where an application has been made under s.21(1) of the Act the Minister, or a delegate, must, by writing, approve or refuse to approve the person becoming an Australian citizen (s.24(1)).
If the person is not eligible to become an Australian citizen under ss.21(2),(3),(4),(5),(6),(7) or (8) of the Act, the Minister, or delegate, must not approve of the person becoming an Australian citizen (s.24(1A)).
The criteria that must be satisfied by a person applying for Australian citizenship under s.21 of the Act on general eligibility grounds (s21.(2)) include the criterion at s.21(2)(c), which requires that the Minister is satisfied that the person:
“satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application.”
General residence requirement – s.22(1) of the Act
The general residence requirement is contained in section 22 of the Act.
Subsection 22(1) of the Act provides that 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 immediately before the day the person made the application; and
(b)the person was not present in the 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 – ss.22(1A) and 22(1B) of the Act
Subsections 22(1A) and 22(1B) of the Act contain provisions regarding overseas absences.
Subsection 22(1A) of the Act allows a person to be absent from Australia for up to 12 months within the 4 years immediately before applying for citizenship, as follows:
“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 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.”
Subsection 22(1B) of the Act allows a person to be absent from Australia for up to 90 days within the 12 months permanent residence immediately before applying providing they remain a permanent resident during this time, as follows:
“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 the 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.”
Ministerial discretion – s.22(9) of the Act
There are discretions available to the Minister, or delegate, which allow for periods in which a person was not present in Australia to be treated as a period in which the person was present in Australia.
Relevantly, s.22(9) of the Act provides that periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, may be treated by the Minister as periods of permanent residence in Australia if:
“(a)the person was the spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia; 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 Australian Citizenship Instructions
The Australian Citizenship Instructions (ACIs) provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and Regulations.
The exercise of the discretion in s.22(9) of the Act is guided by the ACIs.
In general, the Tribunal should apply the guidelines in the ACIs as the Tribunal should apply such guidelines “unless there are cogent reasons to the contrary” (Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (at 645)).
The ACIs state that the policy is that the Ministerial discretion in s.22(9) of the Act 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 in Australia” under s.22(9)(d) of the Act 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)
· evidence of income tax payment in Australia and
· current bank accounts in Australia.
The ACIs provide that:
“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 citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australia for at least this period.”
RESPONDENT’S CONTENTIONS
General residence requirement
There is no dispute between the parties that the Applicant did not satisfy the general residence requirement at the time of his application for Australian citizenship by conferral on 29 August 2011.
s.22(9) discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
For the discretion in s.22(9) of the Act to be exercised in the Applicant’s favour, the Tribunal must be satisfied that the Applicant meets the criteria set out in s.22(9), namely that:
“(a) the Applicant was a spouse or de facto partner of an Australian citizen during that period; and
(b) the Applicant was not present in Australia during that period; and
(c) the Applicant 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.”
s.22(9)(a) Period in which Applicant’s wife was not an Australian citizen
The Applicant’s wife became an Australian citizen on 3 December 2007. As the Applicant’s application for citizenship was made on 29 August 2011, the Applicant’s wife was not an Australian citizen for the totality of the four year period immediately before the Applicant made his application for citizenship.
The Minister contends that the discretion in s.22(9) of the Act cannot be applied in the Applicant’s favour for the period between 29 August 2007 (i.e. the date four years immediately prior to the Applicant’s application for citizenship) and 3 December 2007 (i.e. the date on which the Applicant’s wife became an Australian citizen.
There is no dispute that, for the periods between 3 December 2007 and 29 August 2011 during which the Applicant was not present in Australia, the Applicant:
(a) was a spouse or de facto partner of an Australian citizen; and
(b)was not present in Australia during that period; and
(c) was a permanent resident during that period.
Therefore, for the discretion to treat periods the Applicant spent outside Australia between 3 December 2007 and 29 August 2011 as periods present in Australia for the purpose of exercising the discretion in s.22(9) of the Act in the Applicant’s favour, the issue for determination is whether the Applicant satisfies the requirement in s.22(9)(d) that the Applicant had a ‘close and continuing association with Australia’ during that time.
TRIBUNAL’S FINDINGS
‘Close and continuing association with Australia’
Period during which the Tribunal will assess whether the Applicant had a ‘close and continuing association with Australia’
The Minister contends that the time during which the Tribunal must consider whether the Applicant had a ‘close and continuing association with Australia’ are those periods during the four year prior to the date of the Applicant’s application for which the Applicant seeks that the discretion in s.22(9) of the Act be exercised in his favour.
The Minister contends that, while the Tribunal is generally obliged to take into account material that is relevant to the matter under review subsequent to the original decision (Shi v Migration Agents Registration Authority [2008] HCA 31), the words “at the time the person made the application” in s.21(2)(c) of the Act denote a temporal element of a sort identified by the High Court in Shi as providing for an exception to the general rule that material should be taken into account up to the Tribunal’s decision making process.
This interpretation was confirmed in Dandan v Minister for Immigration and Citizenship [2010] AATA 539, in which Britton SM found (at [6]) that the residency requirement in ss.21(2)(c) of the Act requires an assessment to be made of whether the applicant satisfies a residence requirement at the time the person’s application for citizenship is made.
The effect of this interpretation is that, to apply the discretion in ss.22(9) of the Act in the Applicant’s favour, the Tribunal must be satisfied that the Applicant had a close and continuing association with Australia during those periods between 3 December 2007 and 29 August 2011 in which the Applicant was not present in Australia for which the Applicant seeks the discretion in s.22(9) of the Act to be exercised in his favour.
The Minister contends that in taking this approach the Tribunal should take into account that:
· the Applicant’s application for citizenship on 29 August 2011 was made less than 3 weeks after his most recent arrival in Australia on 11 August 2011;
· the commencement of the Applicant’s employment with ASC Pty Ltd commenced only two weeks prior to the Applicant’s application; and
· the Applicant’s total period of time in Australia in the four years immediately prior to his application was 189 days.
Approach to question of ‘close and continuing association with Australia’
The ACIs (T documents, at 40) state that the discretion in s.22(9) of the Act “would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner” for the time in which the applicant seeks for a period or periods overseas to be treated as time present in Australia.
The Tribunal cannot discern any logical rationale for the application of this policy in this matter.
Counsel for the Minister drew the attention of the Tribunal to two recent conflicting Tribunal decisions regarding the effect of the ACI’s on this issue ie: Sapronov and Minister for Immigration and Citizenship [2011] AATA 126 and Hingorani and Minister for Immigration and Citizenship [2011] AATA 266.
In my view the decision in Sapronov is the correct or preferable approach to the issue and there are, for the reasons set out in that decision, “cogent reasons” not to follow the ACI’s in this matter.
Alternatively, the Minister contends that, in undertaking an assessment of the extent and depth of the Applicant’s purported ‘close and continuing association with Australia’, the Tribunal should distinguish between a close and continuing association with the Applicant’s family in Australia and a close and continuing association with Australia itself (see Minhas and Minister for Immigration and Citizenship [2011] AATA 388; Jiang and Minister for Immigration and Citizenship [2011] AATA 688). However the Tribunal notes that in the Minhas case the applicant had no property or bank accounts in Australia unlike the applicant in this matter.
The Tribunal is satisfied that the Applicant has demonstrated a ‘close and continuing association with Australia on all the facts referred to above and the discretion in s.22(9) should accordingly be exercised in the Applicant’s favour.
DECISION
The Tribunal sets aside the decision of the Respondent made on 21 September 2011 and remits the matter to the Respondent to determine the Applicant’s eligibility to become an Australian citizen, taking into account that the Tribunal has found, in exercising the discretion provided for in s22(9) of the Australian Citizenship Act 2007 (the Act) that the Applicant satisfies the general residential requirement in s22(1) of the Act.
I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
....(sgd) T Freeman...............
Associate
Dated 7 May 2012
Date(s) of hearing 12 April 2012 Applicant In person Solicitors for the Respondent Ms L Mitsakis
Sparke Helmore
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