Minhas and Minister for Immigration and Citizenship [2011] AATA 388 (19 May 2011)

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Minhas and Minister for Immigration and Citizenship [2011] AATA 388 (19 May 2011)

Last Updated: 6 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4823

GENERAL ADMINISTRATIVE DIVISION		)
	Re		NASIM MINHAS

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 19 May 2011

Place Melbourne

Decision

For reasons given orally at the conclusion of the hearing on 19 May 2011, the Tribunal affirms the reviewable decision dated 16 October 2010.

John Handley
Senior Member

CITIZENSHIP – application for citizenship by conferral – permanent resident – unable to satisfy general residence requirement or special residence requirement – de facto partner of an Australian citizen – discretion to treat period as one in which the applicant was present in Australia – whether close and continuing association with Australia during period spent outside Australia

Australian Citizenship Act 2007 ss 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3

Re Sapronov and Minister for Immigration and Citizenship [2011] AATA 126; (2011) 120 ALD 362

REASONS FOR DECISION

6 June 2011

Mr John Handley, Senior Member

1. Mr Minhas applied for Australian citizenship by conferral on 7 April 2010. A delegate of the Minister for Immigration and Citizenship refused the application on 16 October 2010. Mr Minhas sought review of the decision on 5 November 2010 and the application was heard on 19 May 2011. At the conclusion of the hearing I gave oral reasons for my decision to affirm the decision to refuse his citizenship application. The applicant requested written reasons for the decision. The oral reasons were transcribed and a printed copy of those reasons will be sent to both parties.
2. Mr Minhas first arrived in Australia in 2002 and completed studies to obtain a commercial pilot’s licence. During his studies he met Ms Bardel, his defacto partner and the mother of his child. On the basis of his relationship with Ms Bardel, he was granted a permanent spouse visa on 11 September 2006. Accordingly, he was a permanent resident before 1 July 2007. Therefore, the legislative requirements that he must satisfy in order to obtain citizenship by conferral are found in s 21(2) of the Australian Citizenship Act 2007 (the Act) and s 5B(1) in Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act).
3. Section 21(2)(c) of the Act requires a person to satisfy the general residence requirement (s 22) or the special residence requirement (s 22A or s 22B). The general residence requirement applicable to Mr Minhas is set out in s 5B(1), Schedule 3 of the Transitionals Act and provides that the person must have been present in Australia as a permanent resident for:

(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total period of at least 2 years in the period of 5 years before the day the person made the application.

During the 2 year period before making his application for citizenship, Mr Minhas spent 40 days in Australia. During the 5 year period prior to making his application, he spent 110 days in Australia. Therefore, Mr Minhas does not satisfy the general residence requirement.

4. Sections 22A, 22B and 22C of the Act prescribe the special residence requirements.
5. In broad terms, s 22A(1)(a)(i) refers to an absence from Australia because an applicant is seeking to engage in an activity within s 22C(1) or as the head or holder of a senior position of an organisation specified in Schedules A and B respectively, of Legislative Instrument F 2009LO3608.
6. Section 22B(1)(a) refers to engagement in work of a kind specified in Schedule C of the same instrument which requires regular travel outside Australia. The type of work specified – including, coincidently membership of an airline crew – suggests commencement of travel for work from Australia.
7. The relevant parts of s 22A and s 22B cannot be satisfied by Mr Minhas, especially the work within Schedule C because he has worked and continues to work as a pilot for Gulf Air whilst being a citizen of and travelling from Bahrain. Gulf Air does not fly into Australia.
8. This application and the oral reasons I delivered, focussed on the discretion available in the Act. Section 22(9) of the Act allows the Minister to treat a period as one in which the person was present in Australia as a permanent resident. In the absence of a definition of a period within the Act, I am satisfied it refers to the 5 year period within Schedule 3 of s 5B of the Transitional Act but only during which he was a permanent resident. That period commenced on 11 September 2006 and expired on 7 October 2010 when he applied for citizenship (the period). The discretion may only be exercised if during the period, the person was the de facto partner of an Australian citizen (refer s 22(10)), was not present in Australia, was a permanent resident and had a close and continuing association with Australia. During his absence overseas, Mr Minhas was the de facto partner of Ms Bardel. She is an Australian citizen. He was a permanent resident. Therefore, he satisfies three of the four requirements set out in s 22(9) of the Act.
9. The remaining issue before me was whether during the period, Mr Minhas had a close and continuing association with Australia (s 22(9)(d)). If Mr Minhas can satisfy that provision, in the exercise of my discretion, he would be entitled to citizenship by conferral. The Australia Citizenship Instructions provide guidance to decision-makers in assessing the extent of the association between the person and Australia. Factors that may assist in assessing the association include whether the applicant has children who are Australian citizens; the length of the de facto relationship with the Australian citizen; visits to and periods of residence in Australia; intention to reside in Australia; whether in Australia, the applicant has been employed, owns property, paid income tax and held bank accounts.
10. Mr Minhas arrived in Australia in 2002 from Bahrain and remained here until 2004 to complete his studies. During the time in Australia, he met Ms Bardel, their relationship developed and she became pregnant. When he obtained his pilot’s licence in June 2004, he returned to Bahrain to look for employment as an airline pilot. In November 2004, Ms Bardel gave birth to their son. Mr Minhas returned to Australia on 11 March 2006, 19 months later which was the first time he saw his son.
11. In his evidence, Mr Minhas said that he was unable to return to Australia any earlier because his visa had expired and had not been renewed. It emerged during the hearing that he had also returned to Bahrain to be close to his elderly parents, particularly his mother, who was ill and needed care. Mr Minhas also wanted to obtain Bahrain citizenship and in order to do so, he was required to have a minimum period of residence. He indicated during his evidence that Bahrain citizenship would assist his employment prospects, particularly with airlines in the Gulf that give priority to nationals.
12. On 11 September 2006, Mr Minhas obtained permanent residency of Australia. He left 10 days later to ensure that he satisfied the residence requirements for Bahrain citizenship. He became a citizen of Bahrain on 16 October 2006. He returned to Australia on 2 November 2006 and left on 10 December 2006, 5 weeks later. He again returned to Australia on 14 February 2007 and left on 5 March 2007. Mr Minhas did not return to Australia again until 5 February 2009, almost 2 years later.
13. During the period between 11 September 2006, when he obtained permanent residency and 5 February 2009, Mr Minhas spent 9 weeks in Australia. He said during that period he obtained employment with Gulf Airlines and completed a 4-month intensive training course in Jordan. He said he was not entitled to annual leave during those 2 years and it was impossible for him to return. He said that he transferred money to Ms Bardel on a monthly basis to assist with household expenses and the care of his son. I accept his evidence.
14. Mr Minhas has one biological child in Australia and he has become a father figure to 3 other children of Ms Bardel who lost their father in tragic circumstances. He was willing to step in and fill the void in the children’s lives and for that he should be commended. I have no doubt that he loves the children and they love him. Ms Bardel’s daughter, Charnelle gave evidence and it is clear from her evidence that he is highly regarded by the children. There is much to indicate that the relationship will continue. I have no doubt that Mr Minhas has a close and continuing association with his Australian family, namely Ms Bardel and the 4 children. However, the commitment to his family would be the same, irrespective of where they lived. I am not satisfied that the familial ties alone equate to a close and continuing connection to Australia for the purpose of s 22(9) of the Act.
15. The words a close and continuing connection to Australia are not defined in the Act. However, the requirement has been considered in a number of other Tribunal decisions. By way of example, the Tribunal in Re Sapranov and Minister for Immigration and Citizenship [2011] AATA 126; (2011) 120 ALD 362 was satisfied that the applicant had a close and continuing association with Australia. Mr Sapranov established a business in Australia that was exporting dairy products and meat to Russia, Europe and Korea. He employed seven Australian people as employees. He eventually developed a market for Australian produce in Russia. Within three or four years there was a turnover of $A25-28 million. He developed an association with Australian wild meat producers. He and his wife purchased three parcels of real estate and held bank accounts in Australia. He also filed tax returns and paid taxes during the relevant period.
16. Mr Minhas has been in a relationship with Ms Bardel for almost 10 years and they have one child together who is an Australian citizen and lives in Australia. Mr Minhas has also established a relationship with Ms Bardel’s 3 children, a factor that cannot be ignored in assessing the extent of his association with Australia. There is no evidence of extended family in Australia. He has returned to Australia on holidays for limited periods. However, since he left Australia after completing his studies in 2004, he has not resided in Australia; rather he has been a visitor. Mr Minhas made it clear that he intends to return to Australia indefinitely if and when he finds employment with an Australian airline. I am not satisfied that this was his intention at any time between 2004 and 2010. It became clear during his evidence that his movements were motivated by his career ambitions. He wanted to exploit the qualifications he obtained from study in Australia between 2002-2004 where he spent more than $150,000 in fees.
17. Since leaving Australia in 2004, Mr Minhas has not worked in Australia. He does not own property here nor has he paid taxes. He does have a bank account in Australia and transfers money to Ms Bardel monthly. I accept that he has family ties in Australia as he does in Bahrain. On balance, I am not satisfied that Mr Minhas had a close and continuing association with Australia in the period when he was residing in Bahrain. Therefore, he does not satisfy s 22(9)(d) of the Act and I was unable to treat the period as one in which he was present in Australia as a permanent resident. The decision under review was affirmed.
18. Mr Minhas’s rights do not end here. It is open to him to re-apply for citizenship by conferral in the future. If he relocates to Australia and establishes a life here, he is more likely to demonstrate a close and continuing association with Australia.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Olympia Sarrinikolaou

Legal Assistant

Date of Hearing 19 May 2011

Date of Decision 19 May 2011

Date of Written Reason 6 June 2011

Advocate for the Applicant Self-represented

Advocate for the Respondent Ms M. Gangemi, Australian Government Solicitor