XQMD and Minister for Immigration and Border Protection
[2014] AATA 633
[2014] AATA 633
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0127
Re
XQMD
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 2 September 2014 Place Perth The Tribunal sets aside the decision under review and remits the matter to the Minister for reconsideration with the direction that the discretion under section 22(9) of the Act should be exercised so as to treat the applicant’s periods of absence from Australia in the four years immediately before his application as citizenship as periods in which he was present in Australia.
.....(Sgd) N Isenberg...................
Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP - Application for Australian Citizenship - General Residence Requirements not Satisfied - Whether s 22(9) Discretion should be Exercised - Whether Applicant had a Close and Continuing Relationship with Australia - Whether in Periods of Absence Applicant can be treated as Present in Australia if Applicant was Absent due to reasons not related to Applicant's Spouse
LEGISLATION
Australian Citizenship Act 2007
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Herrmann and Minister for Immigration and Border Protection [2014] AATA 105
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tan and Minister for Immigration and Citizenship [2011] AATA 877
Tanko and Minister for Immigration and Citizenship [2011] AATA 122SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms N Isenberg, Senior Member
2 September 2014
BACKGROUND
The applicant is a citizen of the United Kingdom who first arrived in Australia in September 1997 on a Subclass 442 (Occupational Trainee) visa. In May 1998 he was granted a Subclass 126 (Independent Entry) permanent visa and first arrived in Australia on that visa on 8 December 1998. Between 2003 and 2009 the applicant was granted a number of Subclass 155 (Resident Return) visas, the last of which was granted on 20 December 2010 and is in effect until 20 December 2015.
By application, dated 20 May 2013, the applicant applied to become an Australian citizen pursuant to s 21 of the Australian Citizenship Act 2007 ('the Citizenship Act'). During the four years immediately prior to making the citizenship application, the applicant was physically present in Australia for only 50 days, and was only present in Australia for 22 days in the 12 months immediately prior to making that application. His application was refused because the delegate considered that the applicant did not meet the criteria in s 21(2)(c) and (g) of the Citizenship Act, and that as the applicant was not present in Australia at the time of decision, the delegate was prohibited from approving the application under s 24(5) of the Citizenship Act.
The applicant seeks review of that decision.
RELEVANT LEGISLATION
Subsection 22(1) of the Citizenship Act sets out the general residence requirement:
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.
Subsection 22(9) of the Citizenship Act provides, relevantly, that:
(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 … 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.
ISSUES
There was no dispute that applicant meets the requirements of paragraphs (a), (b) and (c) of s 22(9) of the Citizenship Act. Consequently the issues are whether:
·In the period of four years immediately before the day the applicant made the citizenship application when the applicant was not present in Australia, I am satisfied that the applicant had a close and continuing association with Australia: s 22(9)(d) of the Citizenship Act.
·If so, should I exercise the Tribunal's discretion under s 22(9) of the Citizenship Act to treat any such period as one in which the applicant was present in Australia as a permanent resident.
CONSIDERATION
The applicant did not dispute that he was only present in Australia for a total of 50 days in the period of four years immediately before the day he made the citizenship application, and was only present in Australia for 22 days in the 12 months immediately prior to making that application. Accordingly, he did not satisfy the general residence requirement.
The applicant sought to rely upon his close and continuing association with Australia and asked the Tribunal to exercise the discretion in s 22(9) of the Citizenship Act.
Does the applicant have a close and continuing association with Australia?
The applicant gave evidence about his coming to Australia and his ongoing ties. There appeared to be no dispute as to the facts in this regard.
The applicant and his wife, met in London while he was working as a junior doctor and she, a nurse. They married in 1996. They came to Australia and both worked for some months in a country hospital. They returned to the UK so as to be able to apply for permanent residence, which they obtained, he said, because Australia had a shortage of doctors and nurses at the time and their 'points' secured their status. They needed to return to Australia in 1998 to take up their permanent residence, otherwise it would expire after 12 months. They subsequently returned to the UK so he could complete his surgical rotations and complete his examinations for the Royal College of Surgeons.
In January 2000 he returned to Australia to take up a surgical orthopaedic registrar position at St George Hospital on a renewable 6 month contract. His wife and children followed at the completion of the UK academic year. He transferred to Perth because there were greater opportunities for a trainee orthopaedic registrar in Perth. As part of his role he undertook periods of work in remote areas, including aboriginal settlements. After 18 months he was successful in being accepted into the training program in orthopaedic surgery at Royal Perth Hospital. By 2009 he had completed all his examinations.
In July 2009 he was offered a fellowship training position at St Vincent's Hospital in Dublin which offered an opportunity to undertake a sub-specialty in foot and ankle orthopaedics. He said that such a program was not really available in Australia, as this country is not 'strong' in that sub-specialty. It was his intention to return to Australia at the completion of his training, which was planned to take 2-3 years.
In April 2010 he was offered a temporary, but open-ended, specialist position at Kerry General Hospital. He took up that position because it also offered training in orthopaedic trauma, as well as his foot and ankle specialty.
In about June or July 2013 his wife became unwell, developing symptoms which did not respond to conservative treatment. Eventually, in November 2013, unfortunately she was diagnosed with metastatic carcinoma of the tonsil. Within a week or two she was in the care of a specialist and has subsequently undergone chemotherapy, radiotherapy and other treatment.
The applicant's wife became an Australian citizen, and they have 2 children, who are Australian citizens.
The applicant is a medical practitioner and orthopaedic surgeon. He is registered as a medical practitioner with general and specialist registration by the Medical Board of Australia and maintains his medical registration with the Australian Health Practitioner Regulation Agency while overseas, paying the relevant annual registration fees. The applicant is also a Fellow of the Royal Australasian College of Surgeons, and continues to participate in its monthly surgical audit program to maintain his Australian medical registration. He also continues to pay the annual fee of $1,200. He also maintains his membership of the Australian Orthopaedic Association. He attended the Australian Orthopaedic Association annual scientific meeting in Sydney in October 2012, and in Darwin in 2013 to maintain professional relationships and has generally maintained his continuing association with the Australian orthopaedic specialist community.
The applicant owns a house in Perth which is rented out while he and his family are in Ireland. The rental payments are paid into his account with a New South Wales branch of the Commonwealth Bank. Amounts from that account are transferred into another Australian account in the applicant's name. The money is retained in that account for the applicant and his family to use when they return to Australia.
The applicant is a member of an Australian superannuation fund, although he has not made contributions into that fund while he has been working in Ireland.
The applicant was offered, and accepted, a 12 months' appointment as an orthopaedic surgeon at the Mater Misericordiae Hospital, Gladstone, Queensland, which has been without an orthopaedic surgeon for some years. The contract was to commence by 30 December 2013, but because of his wife's condition he has not been able to take up the position.
The applicant and his wife have many friends both in Perth and Sydney, and are in constant contact by phone, email and Facebook. The applicant provided letters from colleagues and friends with whom he has an ongoing relationship. He said that Perth friends have visited him in Ireland and the UK, and each time he returns to Australia, he is invited to stay at the homes of friends, rather than in hotels. His daughters have maintained friendships from their old school in Perth. The family has also maintained contact with the Roman Catholic Church community in Perth and a letter from their Perth priest was provided by the applicant.
The respondent submitted that s 22(9) introduced 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. I was referred to the Tribunal's decision of Taher and Minister for Immigration and Border Protection [2013] AATA 917 where Senior Member Fice referred to s 22(9) as the 'spousal discretion'. The respondent referred especially to [36] where SM Fice said:
...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.
The respondent submitted that the fact that the applicant has a wife and children who are Australian citizens does not of itself constitute a close and continuing relationship with Australia. As the Tribunal observed in Herrmann and Minister for Immigration and Border Protection [2014] AATA 105 at [33], a close and continuing relationship with family in Australia is not the same as having a close and continuing relationship with Australia.
The respondent also submitted that the fact that the applicant owns a house in Australia and maintains Australian bank accounts into which rental payments are made or transferred, and which are used when the applicant visits Australia, also does not amount to a close and continuing association with Australia. Nor does the fact that the applicant has maintained his Australian superannuation fund demonstrate a close and continuing association with Australia, particularly when the applicant has not been paying monies into that fund while he has been living and working in Ireland.
The respondent submitted that while the applicant has maintained his professional medical registration and memberships, and has visited Australia on four occasions during the four years immediately prior to the making of the citizenship application, and attended scientific meetings on two of those visits, those matters do not amount to a close and continuing relationship with Australia when he was only present in Australia for a total of 50 days during the four years preceding his application.
Both parties referred me to Paragraph 5.18 of the Australian Citizenship Instructions (‘the ACIs’) which provide guidance in relation to s 22(9). Whilst I am not bound to apply policy guidelines of the kind referred to in the ACIs (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) I may do so and, indeed, the Tribunal will usually apply guidelines unless there are cogent reasons in a particular case for not doing so: see ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
Paragraph 5.18 provides that:
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
·employment in Australia where the 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 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 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 Australia for at least this period.
The respondent referred me to Paula and Minister for Immigration and Citizenship [2012] AATA 543 at [31] where the Tribunal stated that:
The [ACIs] do not provide that a failure to be present for 365 days in the four years prior to the making of the citizenship application are 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 that person has been present in Australia in the relevant period.
Consequently, the respondent submitted, because the applicant had spent so little time in Australia in the four years immediately prior to the making of the citizenship application, very little weight should be given to the various factors he relied on as demonstrating a close and continuing relationship with Australia. The respondent submitted that the Tribunal should conclude that matters relied upon by the applicant do not, even when considered together, amount to a close and continuing association with Australia. The respondent referred me to Tan and Minister for Immigration and Citizenship [2011] AATA 877 at [27] where the very limited time the applicant had spent in Australia - 60 days in the 4 years before application and 29 days in the 12 months beforehand - were described by the Tribunal as 'the major stumbling block'. There are, however, some major points of difference between that case and the present matter; while the applicant in that matter had extended family in Australia, she had not worked in Australia, nor did she own property in Australia. The major difference though is that the applicant there had a total of only 99 days in Australia whereas the present applicant had over 9 years in Australia.
The respondent also referred to Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688 and Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388 where the applicants were essentially visitors who had spent little time here.
29.
Such a submission, while technically correct, is in my view, somewhat disingenuous in circumstances where the applicant had spent 9 years in Australia before his departure for Ireland in mid-2009. I do not think that the applicant could in any way be described as having been 'a visitor'. As in Paula the applicant's claim would have been stronger had he spent 365 days or more in Australia during the relevant period, I do not think I am constrained in the circumstances of this matter, from giving some considerable weight to the 9 years the applicant had spent in Australia previously.
I consider the combination of the applicant's circumstances demonstrate a close and continuing association with Australia. I accept that there is evidence that the applicant had migrated to and established a home in Australia prior to the period overseas; his wife and children are Australian citizens; he makes regular return visits to Australia; it is his intention to reside in Australia at the conclusion of his wife's treatment; he owns property in Australia; he maintains active participation in Australian community based organisations, especially professional organisations. He was offered a job in Gladstone which he has had to forego because of his wife's illness. These factors, together with the 9 years he had previously had in Australia weigh heavily in his favour, notwithstanding his very limited time in Australia during the relevant period.
Exercise of discretion
The respondent submitted that, even if the applicant were to persuade me that during the periods when he was absent from Australia in the four years immediately prior to making his citizenship application he had a close and continuing association with Australia, that would not in itself be sufficient for the discretion in s 22(9) of the Citizenship Act to be exercised in his favour. The respondent referred me to Taher at [36] where the Tribunal stated in relation to exercise of the discretion:
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.[emphasis added]
The Tribunal in Taher at [58], in observing that it would be inappropriate for the Minister to exercise the discretion in s 22(9) of the Citizenship Act concluded that Mr Taher was not overseas for the purpose of accompanying his Australian citizen spouse and his reasons for being absent from Australia did not arise out of his spousal relationship. In the present matter, the respondent submitted, the applicant was not in Ireland because he has a need to accompany his Australian citizen spouse overseas, other than for the period since her diagnosis; rather, the applicant's reasons for being in Ireland relate to his employment, and do not arise out of his spousal relationship. The Tribunal should likewise decline to exercise the discretion in s 22(9) of the Citizenship Act.
With respect, I am of the view that, the limitation expressed in Taher, should not be applied to preclude the exercise of the discretion absolutely, if a person is absent from Australia due to reasons that are not directly related to that person’s spouse. I find that s 22(9) provides only the context in which the consideration of the discretion is enlivened; it is not limited to circumstances where an applicant for citizenship is precluded from being in Australia for the relevant period because of the commitments of their spouse. While that may provide a very strong factor in favour of the exercise of the discretion, the inclusion of other considerations in the ACIs militate against the limited interpretation applied in Taher.
Indeed, in recent decisions of the Tribunal where the discretion has been exercised in the applicant's favour, no such limitation has been applied: see Paula and Tanko.
Prior to departing Australia in 2009, the applicant had lived continuously in Australia for nine years, as a Permanent Resident. The respondent conceded that if he had applied for Australian citizenship before he departed, he would have been granted Australian citizenship, as, at that time, he would have met the general residency requirements. In my view this weighs heavily in favour of the exercise of the discretion. Further, the applicant is a specialist orthopaedic surgeon and trained here for a total period of nine years, at great expense to the Australian community. He intended to take up a position as Consultant Orthopaedic Surgeon in Gladstone, Queensland and still intends to bring his family back to Australia, albeit when his wife's condition stabilises.
Having reached the conclusion that the applicant had a close and continuing association with Australia throughout the relevant period, I see no reason not to exercise the discretion in his favour.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Minister for reconsideration with the direction that the discretion under section 22(9) of the Act should be exercised so as to treat the applicant’s periods of absence from Australia in the four years immediately before his application as citizenship as periods in which he was present in Australia.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ....(Sgd) T Freeman............
Associate
Dated 2 September 2014
Date of hearing 20 August 2014 Applicant In person Counsel for the Respondent Mr P MacLiver Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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