Federal Court of Australia

Hammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a citizen of Jordan who was born in Kuwait, married an Australian citizen in January 2013. She and her husband have subsequently had two children, who are Australian citizens. She lives in Qatar. On 14 July 2013 the applicant was granted a temporary partner visa on the basis of her relationship with her husband. The applicant came to Australia on 25 September 2014, and departed the following month. On 1 May 2015 she was granted a permanent partner visa. She visited Australia for a second time in November 2015, staying for one week.

2    On 2 April 2020 the applicant made an application for conferral of Australian citizenship. It is not in issue that the applicant could not meet the residence requirements prescribed in s 22(1) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act). Rather she sought to meet the exception to the residence requirements set out in s 22(9), which requires, inter alia, establishing that she has “close and continuing association with Australia”: s 22(9)(d).

3    On 23 June 2020 a delegate of the Minister refused the application. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review. On 13 July 2021 the Tribunal affirmed the decision of the delegate who had decided that the applicant did not have a “clear and continuing association with Australia” for the purposes of s 22(9).

4    This is an appeal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Tribunal.

5    The applicant relies on a single ground, being that the Tribunal “should have, but failed to, consider that matters relevant to whether the applicant had ‘a close and continuing association with Australia’ included an association with the land, the people, the institutions, the society and the economy of Australia”.

6    For the reasons below, the application is dismissed.

Submissions

7    In summary, the applicant submitted that Tribunal misconstrued the phrase “close and continuing association”. Relying on the observations of Perry J in Judd v Minister for Immigration [2017] FCA 827; (2017) 72 AAR 349 (Judd) at [14], the applicant submitted the phrase was broad and a “multi-factorial approach” is to be adopted. She submitted, based on a construction of the Citizenship Act, that the Australia referred to which the applicant must have a close and continuing association with “must refer to something other than, or in addition to, the geographical or physical entity”. That is, it was submitted that what is there being referred to, is a wider concept of Australia. It was submitted that Australia as a nation does not exist in the absence of its people, and their various cultures and traditions, its economy including its commercial environment, its institutions, its land and physical environment, and no doubt many other things. It was submitted that this is consistent with Perry J’s reference in Judd to the consideration of a close and continuing association with Australia requiring a “multi-factorial approach”.

8    Against that background it was submitted that the Tribunal failed to recognise the breadth of the concept. The applicant submits that, in that context, Australia relevantly includes the following. First, Australian institutions, including museums and libraries. The applicant submitted that the Tribunal was in error at [35] of its reasons in dismissing contributions that she had made to an institution in Australia on the basis that it was distinct from participating in the community. Second, it was submitted that it encompassed Australians, and that the Tribunal was in error in distinguishing Australians from Australia at [36]. The applicant submitted that Australians, whether or not they are family members of an applicant, and no matter where they are situated, are a part of Australia. Third, it was submitted that it also encompassed the land and commercial environment. The applicant submitted that the Tribunal was in error at [46] in finding that the property at Lismore owned by the applicant was not relevant to her association with Australia because it could be managed from overseas. Each of these three matters were said to be relevant to the applicant’s association with Australia.

9    Further, it was submitted that the Tribunal failed to consider whether the applicant’s family’s links to Australia, which it noted at [27], and her preparations for and wish to live in Australia, which it noted at [31]-[32], were relevant to the question of whether she had a close and continuing association with Australia.

10    The respondent submitted that it did not disagree that a multitude of factors may be relevant to establishing a person’s requisite association with Australia for the purposes of s 22(9). It was submitted however, that properly construed, the Tribunal did not approach its decision-making task in this way, but rather it properly focussed itself upon the requisite connection being something substantial and capable of establishing an exception to the usual requirement that an applicant for citizenship will have lived in Australia for four years prior to application. The respondent submitted that consideration of whether a person has a close and continuing association with Australia cannot be divorced from the statutory context.

11    Given the nature of the submission it is appropriate to first refer to that statutory context.

12    An application to become an Australian citizen may be made under s 21(1) of the Citizenship Act. The general eligibility requirements are set out in s 21(2) which, relevantly for present purposes, includes at s 21(2)(c) that the applicant “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”. As observed above, there is no issue that the applicant could not satisfy the general residence requirement (noting the other provisions there referred to also do not apply).

13    The residence requirement in s 22(1) is as follows:

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.

14    However, the Minister has a discretion to deem an applicant to be a permanent resident present in Australia relevantly under s 22(9) of the Citizenship Act in certain circumstances:

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.

15    In that context, the applicant relies on observations in Judd at [14]:

The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.

16    The purpose of s 22(9) is to enliven a discretion to treat a period of time when an applicant for citizenship is outside of Australia as time spent in Australia, in circumstances where a decision-maker is satisfied as a matter of fact that such an association has been established. Given the requirements for citizenship, the Citizenship Act approaches an application on the basis that time spent in Australia is prima facie indicative of a close association with Australia.

17    As the respondent submitted, a person does not come within the exception simply by establishing some form of connection with Australia or with Australians or with something that is connected to Australia. Rather, the nature of the proximity to Australia needs to be assessed in light of the statutory scheme. It needs to be of such a nature as to warrant a departure from the application, that is the strict application, of the residence requirements. That is a factual assessment.

18    The Tribunal in its reasons at [16]-[19] referred to the Departmental policy which provides guidance to decision makers including the Tribunal, noting that it is not bound by departmental policy but will take it into account unless there are cogent reasons not to do so: and see [48]. The policy, CPI 11, entitled “Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia”, was identified as applicable to the application. The Instruction provides factors which may be relevant when assessing whether an applicant had a close and continuing association with Australia. The Tribunal noted at [18], inter alia, that the Instruction stated that “the requirement to maintain a close and continuing association refers to an association with Australia, not Australians, meaning that association with immediate family or other social relationships or networks in Australia may not be sufficient to meet the requirement”. No issue has been taken by the applicant to the Tribunal’s reference to or application of the policy, or to any of the content referred to. Although this policy does not assist in respect to any issue of construction of the provision, it does reflect a breadth to the discretion being exercised.

19    It may be accepted, as described in Judd, that the discretion in s 22(9) is broad and multifactorial. The respondent does not suggest otherwise. However, it must be exercised in its statutory context. In this case that was evaluating whether the evidence supported a finding of a close and continuing association for the purposes of overcoming the applicant’s absence from Australia for the periods required in s 22(1).

20    However, that approach does not advance the applicant’s case on the appeal. The submission that the Tribunal has misconstrued s 22(9) by not recognising its breadth is dependent on the applicant establishing her submissions regarding the effect of the Tribunal’s reasons in respect to the three topics identified above at [8]. That is, the applicant must establish that the Tribunal did not take those matters into account, and did not do so because Australian institutions, including museums and libraries, Australians, and land and environment are not relevant matters to consider in the evaluation in s 22(9). Unless that is the basis of the Tribunal’s conclusion, it falls to be a matter of weight attached to the particular factual matters in this case, not a misconstruction of the relevant provision.

21    It is appropriate to recognise in this context, that the Tribunal’s reasons should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38]. Bearing in mind also that a Tribunal’s reasons should be read fairly, and as a whole.

22    The Tribunal summarised relevant facts and evidence at [19]-[32]. There is no criticism of that summary. The Tribunal observed that it was required to consider if the applicant had a close and continuing association with Australia during the period prior to her making her application (being the four year period prior to the application).

23    It is apparent that the applicant sought to meet the requirements of a “close and continuing association with Australia” by referring, inter alia, to her close association with her Australian citizen husband and children with whom she lived in Qatar at the time, her donations to a museum in Australia, and her ownership of a property in regional NSW.

24    Evidence is not assessed by the Tribunal in isolation.

25    The Tribunal recognised at the outset of its consideration that the applicant had not been present in Australia at all in the four years prior to her application, and that physical presence in Australia is an important element for developing a close and continuing association with Australia: at [33]. The Tribunal was assessing the evidence relied on by the applicant in all the circumstances which, for example, included that the applicant has not been in Australia during the relevant four years, the applicant has never lived in Australia and has only been in Australia on two occasions for a total of 17 days.

26    It was in that context that the Tribunal addressed the applicant’s association with Australia in the four years prior to her application.

27    There was also other evidence referred to by the Tribunal which may tend to suggest that there was not a close and continuing association, for example she lived and worked in Qatar with her husband and children, she had made no attempts in the four years prior to the pandemic-related travel restrictions to visit Australia, and she had responsibilities caring for her mother-in-law in Qatar.

28    I accept the respondent’s submission that properly read, the Tribunal was not saying in respect to any of the impugned paragraphs that evidence on those topics could not be relevant to satisfying the criteria, but that the Tribunal was referring to the assessment in the circumstances of this case.

29    In relation to the first topic the reference to the donation is in [35] which was as follows:

In regard to the factors that may indicate a close and continuing association with Australia, [the applicant’s] involvement with the Australian community is limited, as would be expected given she has been in the country for a total of 17 days. She has offered donations to a museum in Australia which may benefit the community, but I note that this is distinct from participating in the community.

30    This appears to be based on a single donation to a museum made approximately two months before the applicant applied for citizenship. Although accepting this may benefit the community, it was open to the Tribunal, to conclude on a proper application of the law, that this was distinct from participating in the community. That may properly affect the assessment of the degree of closeness of the association.

31    As to the second topic, in [36], properly read, the Tribunal is not suggesting that the applicant’s relationship with her husband and family are not relevant, but rather that the close and continuing association being considered is with Australia, rather than Australians. This is to be considered in the light of [18] of the reasons, referred to above, which is the instruction which reflects that to maintain a close and continuing association refers to an association with Australia, not Australians, meaning that the association with family may not be sufficient to meet the requirement. The applicant submitted that [18] does not assist because that simply refers to the instruction, and attention must be given to what is actually said in [36] which is that association with Australians is not relevant. However, as previously explained, the reasons must be read fairly and as a whole. The applicant’s submission does not do that. Read in context, at [37], the Tribunal is saying no more than that this was not sufficient, in the circumstances. It must be recalled that s 22(9), as reflected in the chapeau, is premised on the basis that an applicant has established that they are the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time they made the application. It is in that context that the applicant must also establish they had “a close and continuing association with Australia” during the relevant period. It was open to the Tribunal to make the finding it did in the circumstances of this case.

32    As to the third topic, in [46] the Tribunal concluded that the applicant and her husband have assets in Australia, but they “are investments which they have demonstrated can be managed from outside Australia. I do not consider they indicate a close connection to Australia”. The paragraph reflects that the Tribunal did not consider these matters irrelevant because they do not fall within s 22(9), but rather, in the circumstances of this case, which include that they can be managed from overseas, that it does not indicate a close connection.

33    Finally, the applicant submitted that the Tribunal failed to consider the applicant’s directed preparations for and wish or desire to live in Australia as relevant to the question of whether she had a close and continuing association with Australia. The Tribunal referred to that fact in [38], that whilst the applicant is “readying herself for future employment in Australia by gaining qualifications which will assist in that regard, during the relevant period she was working in Qatar”. However, as the Tribunal observed, this is in the context where the applicant had ongoing employment in Qatar, on a contract which effectively has no end date. Considered alone or in combination with the assets referred to above, the conclusion by the Tribunal was open to it. There is no basis to suggest any misunderstanding of the provision, rather this reflects the application of the law to the circumstances in this case. That said, I note that an expression of desire is not an indication of a current connection. That is so when it is appreciated that the conclusion of having a close and continuing association with Australia is necessary to overcome the inability to satisfy the residency requirement.

34    The applicant has not established the propositions in the impugned paragraphs necessary to sustain the ground of appeal that the Tribunal has misconstrued s 22(9), by not recognising the breadth of the phrase “a close and continuing association with Australia”. It follows that the applicant has not established that the Tribunal misconstrued s 22(9) when considering her application.

35    Rather, properly construed, this matter turns on the weight attached to particular evidence.

Conclusion

36    The applicant has not established error in the reasons of the Tribunal. The application is dismissed with costs.

Associate:

Dated:    19 July 2022