Zalaf and Minister for Home Affairs (Citizenship) - [2019] AATA 2960

Zalaf and Minister for Home Affairs (Citizenship) [2019] AATA 2960 (28 August 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0075
Re:Yussef Zalaf
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Evans
Date:28 August 2019
Place:Sydney

The decision under review, being the decision to refuse Mr Zalaf’s application for Australian citizenship, is affirmed.
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Member S Evans
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – general residence requirement – where applicant spouse of Australian citizen – where applicant has two Australian citizen children – where applicant had extended periods of absence from Australia in four years immediately before the citizenship application – application of ministerial discretion to treat periods overseas as a period in which the applicant was present in Australia as a permanent resident – whether close and continuing association with Australia during period of absence – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22
CASES
Roach v Electoral Commissioner (2007) 239 ALR 1
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tan and Minister for Immigration and Citizenship [2014] AATA 877
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Member S Evans
OVERVIEW

Yussef Zalaf (“the Applicant”) is a Syrian citizen who has been an Australian permanent resident since March 2009. He currently holds a Resident Return (Subclass BB155) visa. He applied for citizenship on 27 September 2017 and on 11 December 2018 his application was refused by a delegate of the Minister for Home Affairs (“the Respondent”). The Applicant has sought a review of that decision.
The delegate made the decision to refuse Mr Zalaf’s application on the basis that he did not satisfy the residency requirements under the Australian Citizenship Act 2007 (Cth) (“the Act”). The delegate also decided that the discretion available to the Minister in s 22(9) of the Act should not be exercised in the Applicant’s favour.
The matter was heard on 17 July 2019 in Sydney and Mr Zalaf attended the hearing in person and represented himself.
For the reasons I will explain, I have decided that the decision should be affirmed.
THE LEGISLATIVE FRAMEWORK AND KEY ISSUES
To be granted citizenship, Mr Zalaf must satisfy the criteria set out in the Act. Different criteria apply to different types of applicants.
The provisions of the Act tightly control the circumstances for conferral of Australian citizenship. The legislation is clear that marriage to an Australian citizen, or being the parent of Australian citizens, does not confer an automatic entitlement to citizenship.
The general eligibility requirements for citizenship are set out in s 21(2) of the Act:
2A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(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
(c)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
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)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
(h)is of good character at the time of the Minister’s decision on the application.
The requirement that the Applicant must satisfy at s 21(2)(c) is known as the general residence requirement and it is defined in s 22(1):
General residence requirement
1Subject 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.
The general residence requirement contemplates an applicant being physically present in Australia for a minimum period before the application. Mr Zalaf was absent from Australia for 1316 days in the four year period immediately before applying for citizenship[1] and therefore does not meet the general residence requirements in s 22(1)(a). Mr Zalaf was also absent from Australia for 314 days in the 12 month period immediately before applying for citizenship, meaning he also fails to satisfy s 22(1)(c) of the requirement. This is not in contention.
[1] T-documents, p. 13.
Applicants that do not meet the general residency requirement may ask the Minister for Home Affairs to exercise discretion under s 22(9) of the Act:
9If 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.
Mr Zalaf has asked the Minister for Home Affairs to exercise the discretion in s 22(9) to effectively deem him present in Australia during the periods of absence so that he may meet the requirements for citizenship by conferral.
A delegate for the Minister found that the discretion could not be applied because Mr Zalaf did not have a close and continuing association with Australia in the four years prior to making his application as required by s 22(9)(d) of the Act.
In considering if an Applicant has a close and continuing relationship with Australia which may satisfy s 22(9) the Citizenship Policy (“the Policy”) provides guidance. Relevantly:
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 years 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.
Issues for the Tribunal
As there is agreement that Mr Zalaf does not satisfy the residency requirement in s 21(2)(c) of the Act, and it is not in dispute that he meets the requirements in s 22(9)(a), (b) and (c) of the Act, there are two issues for the Tribunal to decide in this matter:
(a)whether Mr Zalaf had a “close and continuing association with Australia” in the periods in which he was absent from Australia in the four years immediately prior to the citizenship application for the purposes of s 22(9)(d) of the Act; and
(b)if yes, whether the Ministerial discretion in s 22(9) of the Act should be exercised to treat any of Mr Zalaf’s periods of absence from Australia as a period in which he was “present in Australia as a permanent resident”.
BACKGROUND AND CONSIDERATION
Mr Zalaf is a Syrian citizen but he says he has no affiliation with Syria having not lived there since he was a small child.
He lives in Australia with his Australian citizen wife and three children, who are also Australian citizens. They married in Egypt in 2004 having met in 1996. Mr Zalaf was living in Kuwait at the time, as do some other members of his family, notably his parents.
Mr Zalaf and his family briefly settled in Australia during 2012. They moved all their possessions from Kuwait and enrolled their children at schools in Sydney. Shortly after Mr Zalaf was offered a job in Kuwait working as a project manager in the expansion of the airport in Kuwait. Mr Zalaf worked as a project manager there until August 2016 when he took on another role in Kuwait, this time working for an oil company.
In July 2018 he and his family returned to Australia where, Mr Zalaf contends, they intend to live permanently.
Should Ministerial discretion be exercised?
The Statement of Facts, Issues and Contentions (“the SFIC”) lodged by the Respondent states that Mr Zalaf was present in Australia for 145 days in the four years immediately before the day of his application, and only 51 days in the 12 months immediately prior.
As Mr Zalaf does not meet the primary indicator used in the legislation to demonstrate a connection with Australia, that is, the general residency requirement, he is required to establish such a connection through other factors if the Minister is to favourably exercise discretion in this case.
As mentioned, in the four years immediately prior to his application Mr Zalaf was not present in Australia, he was the spouse of an Australian citizen and a permanent resident as required in s 22(9) of the Act. It follows that Ministerial discretion may be applied to deem Mr Zalaf present in Australia so that he may meet the general residence requirement if it can be demonstrated that he ‘had a close and continuing association with Australia’.
Does the Applicant have a ‘close and continuing association with Australia’?
It is useful for the Tribunal to consider the factors identified in the Policy which may indicate a close and continuing association with Australia as they relate to Mr Zalaf’s case. The Policy provides guidance in relation to the interpretation and exercise of powers under the Act. The preamble to the Policy reminds decision makers to be mindful that the Policy must not be applied inflexibly.
Intention to reside in Australia
Mr Zalaf and his Australian citizen wife and children lived in Kuwait in the four years prior to his application for citizenship. At the hearing the issue of Mr Zalaf’s intention to reside in Australia was considered at length. While Mr Zalaf contends that he and his family have now settled in Australia permanently, this was not accepted by the Respondent.
The Respondent’s contention rested largely on the Applicant and his family moving for a brief period to Australia in 2012 before returning to Kuwait to live and work. On that occasion he relocated to Australia in May 2012 and returned to Kuwait in August the same year. The Minister contends that this history is cause to question if the Applicant has on this occasion truly moved to Australia permanently, given the similarity of the circumstances.
At the hearing Mr Zalaf provided an explanation for the previous move in 2012 and why his current circumstance are different, in so much as he intends to stay in Australia. Mr Zalaf conceded that his experience and qualifications are better recognised in Kuwait but he says Kuwait is challenged economically and no jobs exist which would tempt him to move back to Kuwait.
He also explained that the 2012 job opportunity in Kuwait was an opportunity for Mr Zalaf and his family. The job paid well and provided an opportunity to save a considerable sum of money at a time in his life when he had the flexibility to do so. He says that he was 33 years old then, but he is now over 40 and his children are of an age where they need stability.
Furthermore, Mr Zalaf recently secured employment on a permanent, full time basis in Australia as a senior project manager at an engineering firm. When considered in the context of the circumstances of his life in 2012, when he says he was depressed and struggling to find work in Australia, I am of the view that it is Mr Zalaf’s genuine intention to continue to reside in Australia.
This intention is reinforced by the Applicant’s wife who testified at the hearing that she was not happy in Kuwait. The Tribunal accepts this.
Ownership of property in Australia
Mr Zalaf presented as an individual who seeks to create his own opportunities and to provide for his family to the best of his ability. In 2016 he transferred considerable savings from Kuwait to his Australian bank account. In 2017 he jointly purchased real estate with his brother in law for which he has submitted plans to develop. He has, as required, paid taxes including Land Tax on the properties whilst he was living overseas.
Extended family in Australia
Mr Zalaf’s wife has family in Sydney including her parents and siblings. He says that during their time overseas they ‘visited Australia more than once and stayed connected with family and friends’. Mr Zalaf’s own parents reside in Kuwait but he told the Tribunal that recently his father was made redundant and consequently they would need to return to Syria as they cannot stay in Kuwait long-term as they do not hold Kuwaiti citizenship.
Mr Zalaf has also provided evidence that he has formed trusted relationships with extended family members and this is supported by his brother in law having provided assistance in establishing investments in Australia.
Australian citizen spouse and children
Mr Zalaf’s wife and children are all Australian citizens and in his statement of 6 March 2019 Mr Zalaf contends that this was ‘not considered’ and the delegate ‘did not take my links and association with [an] Australian as time spent in Australia’.
Mr Zalaf’s submission opens the possibility that he has understood that periods spent with his Australian citizen spouse should count toward his meeting the residency requirement in the Act. In order to satisfy s 22(9)(d) Mr Zalaf must prove that he had a ‘close and continuing relationship with Australia’ in the four year period immediately before his citizenship application, during which time he was primarily living outside Australia.
In reference to this I note the comments of Senior Member Fice in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47] – [48]:
[47] On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
[48] I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.
Similarly in Tan and Minister for Immigration and Citizenship [2014] AATA 877 Deputy President Handley observed at ([27]):
The major stumbling block for Ms Tan is the very limited time she has spent in Australia. It is not unreasonable to expect that a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by at least residing here for an extended period, even if the period falls short of the general residence requirement in s 22(1), and provided there are other factors indicating a close and continuing association. The Instructions suggest, not unreasonably, that a period of less than 365 days should be considered less favourably. In Ms Tan’s case, the time she has spent in Australia – 60 days in the relevant four year period - falls far short of this.
The factors demonstrating a close and continuing association with Australia must be very strong if they are to offset a relatively short period of residence in Australia. That Mr Zalaf has a strong relationship with his Australian citizen family is not in contention. However, this does not necessarily extrapolate to evidence of a close and continuing relationship with Australia.
Other considerations
Mr Zalaf has been refreshingly upfront about his desire to obtain an Australian passport as a benefit he would derive from citizenship. He writes:
I am in urgent need for my Australian citizenship to be approved as my Kuwait residency will be cancelled if I do not renew it by entering the country every 6 months which I will not be doing any more by the end of this year as it will expire by itself. Therefore, I need my Australian passport to be able to travel to Kuwait every year or more to see my elderly parents who are residing there. As a Syrian citizen, it is very hard to get a visitor visa to enter Kuwait any time I want and it [sic] very hard for my parents to relocate to Syria as it is experiencing war. My parents are dependent on me being their only male child and I will need to visit them and look after them. They cannot go to Syria neither [can] they come to Australia. I have applied for them a visitor visa to come Australia previously and they got refused because they are Syrian citizen[s] and Syria is considered a high risk country.
I find his reasoning compelling and understandable. He wishes to meet his obligations to his parents whose own circumstances are uncertain. The practicalities of doing so are impeded by him travelling on a Syrian passport, particularly to a country such as Kuwait.

Mr Zalaf has established a friendship network in Australia which is centred around his relationship with his brother in law who he has known since 1998 and regularly plays cards with. He has also told the Tribunal that he has made friends with colleagues at his new workplace.
In the Minister’s Statement of Facts, Issues and Contentions it is noted at [24]:
‘Prior to his application for citizenship, the extent of the applicant’s presence in Australia was limited to 366 days… approximately one year in the 11 years following his first arrival in Australia in 2006. Further at the time of his application for citizenship, the extent of the applicant’s presence in Australia as a resident (as opposed to a visitor) was limited to a three month period between May 2012 and August 2012. The Minister contends that it is plainly difficult for the applicant to have been involved with the Australian community in circumstances where he was not physically present in Australia for significant periods of time.’
The details provided to the Tribunal of Mr Zalaf’s involvement in the Australian community support the conclusion that in his absence, his community involvement was minimal.
CONCLUSION
I accept that Mr Zalaf and his family have every intention to reside in Australia. Further, it is not in dispute that during the relevant period Mr Zalaf invested in Australia, paid taxes in Australia and was essentially saving to build a future in Australia.
However, these factors are not sufficient to demonstrate a close and continuing relationship with Australia during his extended absences.
My impression of Mr Zalaf is of a determined and hard-working individual with a pragmatic approach to challenges. From a practical viewpoint, I can appreciate Mr Zalaf’s perspective on the issue of his application for Australian citizenship. However, Australian citizenship represents full and formal membership of the community.
In Roach v Electoral Commissioner (2007) 239 ALR 1, 7-8, Chief Justice Gleeson of the High Court discussed Australian citizenship in a way which demonstrates its significance:
“The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations.
The Respondent quotes Senior Member Britton in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118:
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.
Having had regard to the evidence and relevant factors, I find there is insufficient evidence to support a finding that Mr Zalaf had a “close and continuing relationship with Australia” in the four years prior to his citizenship application for the purposes of s 22(9) of the Act. Consequently he does not meet the requirement to enliven the discretion in s 22(9)(d) of the Act.
Decision
For the above reasons, the decision under review is affirmed.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Member S Evans

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Associate
Dated: 28 August 2019

Date(s) of hearing: 17 July 2019

Applicant: In person

Solicitors for the Respondent: C Campbell, Minter Ellison

Date(s) of hearing:	17 July 2019
Applicant:	In person
Solicitors for the Respondent:	C Campbell, Minter Ellison