Zimelis and Minister for Home Affairs (Citizenship)
[2018] AATA 4201
•9 November 2018
Zimelis and Minister for Home Affairs (Citizenship) [2018] AATA 4201 (9 November 2018)
Division:GENERAL DIVISION
File Number: 2018/0299
Re:Andris Zimelis
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Rayment QC
Date:9 November 2018
Place:Sydney
The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the factual and discretionary criterion in s 22(9) of the Australian Citizenship Act 2007 and satisfies s 21(2)(c) and (g) of the Act.
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Deputy President Rayment QC
CATCHWORDS
CITIZENSHIP – citizenship by conferral – residence requirements – whether the applicant had a close and continuing association with Australia – spouse and father to Australian citizen – annual visits to Australia – active search for employment in Australia – many positive relations with other Australian citizens – Ministerial discretion should be exercised – reviewable decision set aside and remitted to the respondent with the direction that the applicant satisfies ss 22(9), 21(2)(c) and (g) of the Australian Citizenship Act 2007
LEGISLATION
Australian Citizenship Act 2007, ss 21(2), 22(9)
SECONDARY MATERIALS
Citizenship Policy, June 2016
REASONS FOR DECISION
Deputy President Rayment QC
9 November 2018
BACKGROUND
The Applicant resides in Illinois in Skokie, a suburb of Chicago, with his wife and child, each of whom are Australian citizens. He has applied to become an Australian citizen also. He has the status of a permanent resident of Australia. He is aged 41.
Mr Zimelis and his wife Indra (whose parents live in Australia and who herself was born in this country) are part of the Latvian diaspora, and mix to a large extent, with that community, both within the United States and in Australia. The applicant has Latvian citizenship, having been born there, and although he visits Latvia from time to time to see family members, including his parents and siblings who reside in Latvia, he does not propose to reside there. He has permanent residence in the United States and a green card but has not applied for citizenship there and does not propose to do so.
He made an application to the Minister to become an Australian citizen and that application was refused on the grounds that he did not satisfy the general residence requirement specified in s 22 of the Australian Citizenship Act 2007 and therefore did not satisfy the eligibility requirement set out in s 21(2)(c) of the Act, and also that he did not satisfy the eligibility requirements of s 21(2)(g) of the Act. The applicant exercised his right to seek review of the respondent’s decision by this Tribunal.
ISSUE
The question whether the applicant satisfies the general residence requirement in the circumstances applicable to him comes down to a factual question and a discretionary question under s 22 of the Act. Section 22(9) provides as follows:
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.
The discretion cannot be exercised unless the Minister is satisfied that during the four years immediately preceding the application for citizenship, the applicant had a close and continuing association with Australia.
My review will therefore involve consideration of the “close and continuing association” question, and if that is to be answered in favour of Mr Zimelis, how the discretion should be exercised.
In addition, it would be necessary for Mr Zimelis to satisfy the requirements of s 21(2)(g) of the Act, which provides as follows:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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
I will commence by considering whether Mr Zimelis had, over the relevant years, a close and continuing association with Australia, and is likely to continue to do so.
CONSIDERATION
The years with which we are concerned are the four years ending on the date on which Mr Zimelis applied for citizenship by conferral, that is, on 27 March 2017, so we are particularly concerned with the period commencing on 27 March 2013 and ending on 27 March 2017.
He first came to Australia on 2 March 2009 with his wife, visiting her family who reside in Adelaide, and they departed on 3 April 2009. On Christmas day of 2012, he and his wife arrived in Australia for the birth of their son Eriks, which took place in Adelaide in March 2013. His wife remained here for a total of about six months, while he departed and returned on several occasions, until they departed together on 17 June 2013 with their son. He then took up employment in the United States. On 8 March 2014, he visited Australia again until 1 April 2014, and on 13 December 2014 until 17 January 2015, he was again in Australia. On 5 December 2015 until 17 January 2016, he was again here and on 1 December 2016 until 14 January 2017, he visited Australia again.
He returned in mid-January for employment reasons and usually his wife and son stayed until March, then returned to the United States to keep the family living in one place.
When Mr and Mrs Zimelis came to Adelaide in 2012, that was his first entry to Australia as a permanent resident. He immediately began applying for jobs in this country and continued to do so over the six-month period, also engaging and using headhunting sites but did not succeed in obtaining employment. He is qualified as a measurement and evaluation expert and he also teaches research and evaluation online. In mid-2013, he felt obliged to return to the United States to take up a consulting position in order to derive income to provide for his wife and baby. While in Australia, they had stayed with his wife’s parents, but had no income.
They listed their condominium for sale in Chicago in 2012, intending to settle in Australia permanently if circumstances permitted. It was actually sold in May 2013 while they were still in Adelaide, and shortly before Mr Zimelis returned in June 2013, their belongings were packed and shipped to Australia. Mr Zimelis’ evidence and the records he produced satisfied me that he and his wife then intended to make Australia their permanent home, and that they would have done so if Mr Zimelis had obtained employment. He does not plan to apply for United States citizenship. The repeated annual visits to this country also tends to confirm that he and his wife have not altered their intentions to reside here permanently if possible.
From overseas or in Australia, he has made applications for many jobs in this country, so far without success.
In the last two years, after renting for a period, he and his wife have again acquired a condominium in Illinois, and it is furnished with the furniture previously moved to Australia.
He opened in 2012 and has since maintained an Australian bank account with a debit card facility. He has a gym membership, and he and his wife now own shares in an educational camp near Adelaide. His wife once owned those shares in her own name before their marriage in 2006. He has published an article in the Australian Journal of Political Science in September 2011 as a graduate student at the University of Chicago. He has a tax file number in case he obtains employment.
Mrs Zimelis has her parents and all but one of her siblings in Adelaide, Melbourne and Sydney.
When he first gave evidence before me in August, he was working in a teaching role in Upper Iowa University. He left Latvia at the age of 22 when he obtained a scholarship to study for his bachelor’s degree in the United States. He did a master’s degree at Miami University in Ohio, and at the time he gave evidence before me, he was a PhD student at the University of Illinois. He is to defend his thesis shortly, in the disciplines of international relations, comparative politics and research methods in statistics. He met Mrs Zimelis in Chicago. She is qualifies as a radiation therapist.
I gathered from Mr Zimelis that if his wife obtained employment at a sufficient wage, the family would then move to Australia and reside here permanently even if he also had not then obtained employment. University work may become available to him in this country in due course.
Mr and Mrs Zimelis are members of the Adelaide Latvian Evangelical Lutheran Church congregation which they attend regularly whilst here. During their annual visits, they have been placing their son in a Saturday pre-school at the Latvian School of Adelaide because they want him to become used to an Australian childhood and they wish to live here permanently as soon as circumstances permit.
Mr Zimelis believes that his better prospect of obtaining Australian employment is with the Commonwealth government and that having Australian citizenship would meet what he understands is a precondition for obtaining such employment, especially with the Australian Taxation Office, which may offer employment compatible with his experience and qualifications. He says he wants to be a full citizen, entitled to vote. He has applied for many Australian jobs not requiring citizenship, so far without success.
I was provided with written materials from a number of persons, including the parents of Mrs Zimelis, who warmly recommend Mr Zimelis for Australian citizenship. They said that he has been interested in the history of this country since his first visit here in 2009. They speak weekly to Mr and Mrs Zimelis by skype. They confirmed a number of aspects of the evidence of Mr Zimelis. A friend from the Latvian community in Melbourne with whom Mr and Mrs Zimelis recently stayed for a week spoke well of him and his desire to be a citizen of this country. Friends of the parents of Mrs Zimelis spoke highly of the applicant and his desire to become a citizen. A thoracic surgeon from Adelaide who first met Mr Zimelis in 2006 also spoke highly of Mr Zimelis and his desire to participate fully in the Australian community. Other persons acquainted with Mr Zimelis either through knowing his wife, or his wife’s family from Adelaide and Sydney speak well of Mr Zimelis in evidence tendered before the Tribunal.
I accept that the annual visits to Australia made by Mr Zimelis and his wife and son are expensive to him and that they demonstrate a continuing desire to associate with the extended family and friends of his wife’s family and to participate in the local community, including those descending from Latvian roots. Friends from Australia who visited Mr and Mrs Zimelis in Chicago also speak to him at least once a week by Skype.
One connection which Mr Zimelis has to Australia is through his wife, who herself enjoys a close connection with this country because she grew up here, has family here and friends here. Mr Zimelis receives Australian television programmes in Chicago so his wife can watch them.
Guidance is published by the respondent’s department in relation to citizenship policy. With regard to the s 22 requirements of close and continuing association, the policy identifies factors which may demonstrate such an association in the following bullet points:
· 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.
The applicant satisfies certain points of those bullet points but not others. I am entitled but not bound to take them into account but it is the test of this statute which must govern the enquiry with which I am concerned, and all of the circumstances of the case.
The words “close and continuing association” are words of ordinary English, giving rise to no ambiguity, but requiring close attention to the facts and circumstances of the individual case and requiring an evaluative judgment.
CONCLUSION
I regard the various matters to which I have referred above as establishing, on balance, that Mr Zimelis has had a close and continuing association with this country. But for the misfortune that he has not, so far, obtained employment here, I accept that he would have made Australia his home country. Not having citizenship here has to some extent at least impeded him obtaining employment, and obtaining citizenship would improve his prospects of obtaining employment here.
If he or his wife obtains employment here, it is likely that he will be resident here. If neither of them obtains employment here, it is likely that he will maintain a close and continuing association with Australia in any event, and for that reason, satisfy the statutory requirements of s 21(2)(g).
It remains to consider the discretionary question arising under s 22(9) of the Act. That discretion is an open one, to be exercised consistently with the objects of the statute. Section 22(9) is designed to afford latitude to decision-makers in the case of, inter alia, the spouses of Australian citizens. If admitting the person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in his or her favour. If anything which might count as conduct disentitling were known, that would count against him or her. So far as can be seen from the evidence before me, quite a number of persons both related to the applicant’s wife, and friendly with her and Mr Zimelis, who know him well, speak very well of him. He is a person of good educational qualifications, and strong family values, likely to continue to fit in well with members of our community. In my opinion, the discretion should be exercised in his favour.
DECISION
The reviewable decision will therefore be set aside and the matter will be remitted to the respondent with the direction that the applicant satisfies the factual and discretionary criterion in s 22(9) of the Act and satisfies s 21(2)(c) and (g) of the Act.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC
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Associate
Dated: 9 November 2018
Dates of hearing: 8 & 23 October 2018 Date final submissions received: 14 October 2018 Applicant: By telephone Solicitors for the Respondent: Ms A Nanson, Australian Government Solicitor
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