The Citizenship Policy Statement and its application

1. The Tribunal notes that the role of the Policy Statement is defined as outlining:

The overarching legislative requirements for the process of becoming an Australian citizen (either automatically or by application), the rights and responsibilities of an Australian citizen, the circumstances in which a person's Australian citizenship may cease, evidence of Australian citizenship, personal identifiers of persons applying for Australian citizenship and other citizenship related matters.[11]

1. In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[12] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
2. A decision-maker is required to have regard to any statements of government policy. As far back as 1979, the Full Federal Court held that:

If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.[13]

1. In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, in relation to the responsibilities of a decision-maker, '[h]is discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases'.[14]
2. In 1985, the Tribunal noted:

Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[15]

1. Similarly, in Gbojueh the Federal Court noted:

At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[16]

The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will "normally" be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[17]

1. In relation to both the Policy Statement and the CPIs, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:

I do not accept the Australian Citizenship Instructions[18] are useful aids to the interpretation of the statute. At best, they represent the respondent's opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[19]

1. More recently this matter was addressed by Besanko J as follows:

The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[20]

1. Eligible applicants for citizenship by conferral must meet the requirements set out in section 21(2) of the Act which provides:

A 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.

1. Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act. In this case the Respondent found that criteria 21(2)(a) to 21(2)(f), inclusive had been satisfied.[21]
2. However, the Respondent found that the Applicant did not satisfy the requirements of section 21(2)(g), and, as a result of this, did not proceed to any consideration of the satisfaction of criterion 21(2)(h).

The delegate was not satisfied that the applicant was likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if his application were approved, as required by s 21(2)(g) of the Act. In addition, the delegate was satisfied that pursuant to s 24(5), the application was prohibited from being approved as the applicant was not present in Australia.[22]

1. Section 24(5) of the Act provides that, inter alia, 'the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia'.
2. However, in the Respondent's further submission it is stated:

The question of whether the prohibition in s 24(5) applies is not in issue in the present review as, in the event that the applicant is successful in his review application, it would be appropriate for the Tribunal to remit the matter to the Minister for reconsideration. In reconsidering the matter, the Minister will assess whether at that point in time, the prohibition in s 24(5) of the Act applies. The Minister also notes that the applicant has not yet been assessed against s 21(2)(h) or the other prohibitions in s 24 of the Act.[23]

1. Given the Respondent's position on section 24(5) which the Tribunal accepts, the question before the Tribunal turns on the issue of whether or not the Tribunal accepts that the Applicant is likely to reside in Australia, and whether he has or will maintain a close and continuing association with Australia.

1. The Respondent relies primarily upon the fact that the Applicant departed Australia on 8 February 2019, while his application for citizenship was still under active consideration, and that he has not returned to Australia since that date.[24]
2. Further, the Respondent points out that the Applicant has an academic position at a university in Saudi Arabia which is 'renewable by mutual agreement'[25] and there is no evidence that this renewal, once the initial one-year contract concludes, will not be enlivened, especially in the absence of any apparent alternative academic position being available to the Applicant in Australia.
3. The Respondent also asserts that there is little evidence of the Applicant having any close and continuing association with Australia which needs to be demonstrated by a 'reality-testing'[26] of the Applicant's past behaviour and coherent future plans.
4. In relation to these future plans, the Respondent does not accept the repeated statements by the Applicant that he intends to return to Australia 'as soon as my personal circumstances would allow me' and that he is 'waiting for [a] suitable time to move to Australia'.[27]

1. The Applicant maintains that he has secured academic employment in Saudi Arabia in a position which will enhance his opportunities to secure similar employment in Australia, and that he has been applying for positions at various Australian universities.
2. He notes that he has an Australian citizen son[28] and that he has financial investments in Australia and has been an Australian taxpayer. He claims that he wishes to raise his son in Australia stating:

I want to assure you this is one of my major motivations and concerns that I want to raise my children in Australia for the betterment of their future and to continue to contribute in Australian community. My child is and will be part of the Australian community. I feel this intensely as my kid is growing.[29]

1. The Applicant has provided medical evidence which confirms that his wife suffered a miscarriage in Saudi Arabia in December 2019,[30] and that this, combined with evidence of the cancellation of several flight bookings from Saudi Arabia to Australia occasioned as a result of COVID19-based travel restrictions/prohibitions,[31] prevented his planned return to this country.
2. The Respondent challenges a number of these assertions, for example pointing out that the Applicant's child has spent only 134 days in Australia and more than 600 offshore; and that the Applicant's limited tax payments (only made on income generated prior to departure), and financial investments are minimal at best.[32]

1. The authority relied upon by the Respondent in this matter reflects the position laid down by Deputy President McMahon in Ho and Minister for Immigration and Ethnic Affairs where the Tribunal said:

The juxtaposition of the phrase with the opening phrase of the paragraph, indicates the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship.[33]

1. However, as I outlined in Al-Khalidi[34], this is not the only view on this matter. In that case I stated:

By contrast, the Tribunal in Rasiah took an entirely contrary view:

[49] Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration & Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration & Border Protection and Sie v Minister for Immigration & Border Protection , that the intention must be "immediate or with some reasonable proximity". If that were so, the phrase in the ACI's would state "immediate or reasonably proximate intention to reside in Australia.

In the case cited by the Tribunal in Rasiah¸ Senior Member Toohey considered the previous tribunal decision in Ho but noted that each case before the Tribunal needed to be determined on the facts pertinent to it. In distinguishing Ho, he said:

[41] The decision in Ho has been cited in other Tribunal decisions....... With respect, I do not agree with the application of the test in Ho in this case.

[42] In Ho, the Tribunal considered the relevant provisions in the Australian Citizenship Act 1948, s 13(1) of which made it a criterion for eligibility that a person be likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application was approved.

[43] A requirement in identical terms is one of the criteria for eligibility in s 21(2) of the current Act. Importantly, in both cases the requirements are stated in the alternative. As I read the current Act, it is not necessary to find both a likelihood of residence or continuing residence and a close and continuing association to satisfy s 21(2)(g). Moreover, the ACIs state only that a factor to be considered in determining whether a person has a close and continuing association with Australia for the purposes of s 22(9) is whether they have an "intention to reside in Australia".

There is thus no settled position on whether or not the intention to reside in Australia should be taken simply on the face value of the words - namely that the applicant intends, at some future time to reside in Australia or whether the intention must be more immediately manifest.

1. Since that time the CPI appear, in their revised form, to have adopted a clearer line of support for taking the words at their face value. The CPI states:[35]

Likely to reside or continue to reside in Australia

The words comprising the phrase 'likely to reside or continue to reside' should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

• 'likely' as probably or apparently going or destined (to do, be, etc.) - in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
• 'reside' as to dwell permanently or for a considerable time; have one's abode for a time - in the context of the requirements of the Act, this means the person's home in which they ordinarily live is in Australia.

The person's intention to reside in Australia should be investigated if the applicant has indicated they will:

• be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas[36]; or
• reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.

1. There appears little beyond the vague statements of the Applicant that he intends to return to Australia with his family on a permanent basis, at some suitable time or when circumstances are favourable, and the efforts which appear to have been frustrated by the COVID-19 restrictions appear to have been primarily intended for short-term visits such as New Year's Eve celebrations[37] or to participate personally in Tribunal hearings.[38]
2. Although the Applicant speaks of his 'strong intentions to return back to Australia'[39] there is little in the way of concrete activity on his part to support this. What appears to be primarily determinative in the Applicant's mind - properly and understandably so - is his ability to secure suitable employment in Australia. He has a position at the university in Saudi Arabia which, although not necessarily secure (tenured), is renewable by mutual consent of the parties, and is one of some stature with not ungenerous remuneration and related benefits. The Applicant has worked previously in Australia at purely manual and unskilled jobs, despite his doctoral qualifications.[40] He has not been successful with his applications[41] for academic employment to date. The Tribunal also recognises that many Australian universities have stopped hiring academic staff, indeed in many instances, terminating their employment, as a result of the COVID-19-induced downturn in student enrolments.
3. The CPI 11 suggests a number of factors which might be taken as relevant to making a decision about a likelihood to reside in Australia. These include matters such as securing accommodation, holding assets in Australia, the frequency and purpose of visits to Australia, reasons for absence from Australia, participation in the Australian community and family ties in this country.[42]
4. The evidence given to the Tribunal in its hearing was to the effect that the Applicant's financial position was not a strong one with limited reserves held in the Commonwealth Bank and through cryptocurrency trading via the BTC platform.[43] There is no evidence of any attempt to secure accommodation, nor of any degree of active participation in the Australian community at any stage of the Applicant's previous eight years of residence.
5. The test which I applied in Al-Khalidi was expressed as follows:

The Tribunal believes that the correct approach is to consider the evidence as it presents in each individual case. It needs however to have more than just the expressed words or intentions of the applicant, there needs to be some reality-testing of such an expression.[44]

1. Reality-testing of the Applicant's position and evidence does not support a finding that the Tribunal could be confident that the Applicant is likely to reside in Australia (in either the immediate or longer term) if his citizenship application were to be granted.

1. In Vasiunina I took an expansive view of what might be thought to constitute a close and continuing relationship with Australia, however I also said:

Equally, it seems to me that words such as "close" and "continuing" import some degree of emotional commitment or attachment. They require involvement, participation, commitment or investment.[45]

1. The Tribunal is unable to find any of those elements present in this application. The Applicant has not been an active participant in any form of Australian community activity outside his limited academic circle, although being a full-time PhD student does not necessarily leave much time for that. It cannot be said that there is any evidence of commitment or investment.
2. Although the Applicant has an Australian son (as a result of the child's birth in Australia to an Australian permanent resident parent[46]), that child has no meaningful attachment to Australia, and the Applicant's family are primarily resident in Pakistan. Although he has friends here, there is no evidence of any close or continuing commitment or association.
3. Equally, while the Tribunal recognises that the Applicant has lived in Australia for a number of years, he has been absent for a considerable period of time since February 2019. The Tribunal has generally given greater weight to factors demonstrating a close and continuing association with Australia where an applicant has been present in Australia for some time in relation to the date of their citizenship application.[47]

1. The Tribunal has no doubt that the Applicant is a highly qualified person who has skills which would be valuable to this country, nor that, prima facie, he would make an excellent addition to the ranks of Australian citizenship. Equally, it does not doubt that if he were able to secure appropriate employment he would make the necessary arrangements to return to Australia, and that there is nothing to prevent him (and his family) from doing this as he is the holder of a Permanent Resident visa.
2. However, in the absence of having secured this employment commitment, the Tribunal does not believe that there is any realistic prospect or likelihood of the Applicant returning to live in Australia.
3. The evidence is more compelling to allow the Tribunal to conclude that the Applicant does not have a close and continuing association with Australia and, in the absence of a grant of citizenship, this is likely to become more acute and obvious.
4. To deny the Applicant the chance to have his application considered further by the Respondent at this stage does not deny him future opportunities to do so. As a Permanent Resident he can return to Australia at any time and once here he is able to make further applications for citizenship by conferral.[48]
5. To the extent that the Respondent has already found that the Applicant meets the requirements of sections 21(1)(a) to (f) of the Act, should he then meet the requirements of section 21(1)(g) by continuing to reside in (and establish a close and continuing association with) Australia, all that would be required would be that he then met the character test of section 21(1)(h). Nothing before the Tribunal suggests that he would not.
6. The Tribunal cannot, of course, be definitive on this point, but rather suggests that the overcoming of the obstacle of section 21(1)(g) is a matter in the hands of the Applicant and not impossible of resolution.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..........................[sgd]............................................

[3] Respondent's Tender Bundle at [1].

[11] Australian Citizenship Policy Statement, Revised edition 27 November 2020.

[12] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.

[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.

[14] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640.

[15] Re Aston and Secretary, Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.

[16] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].

[17] Elias v Commissioner of Taxation [2002] FCA 845 at [34].

[18] These "Instructions" (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.

[19] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].

[20] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] (footnotes and citations omitted).

[21] Tribunal documents at [21]-[22].

[22] Respondent's Statement of Facts, Issues and Contentions (SFIC) at [9].

[24] Shah and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1085 at [8] and [35].

[26] Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700 at [55].

[28] Born September 2018, Tribunal documents at [75].

[29] Applicant's Submission (25 October 2020).

[30] Tribunal documents at [10]-[14].

[31] Applicant's Submission (25 October 2020).

[32] Respondent's SFIC at [37]-[38].

[33] [1994] 34 ALD 664 at [671/2] cited in, Bates and Minister for Immigration and Border Protection [2015] AATA 492 at [18]- [21]; Sie and Minister for Immigration and Border Protection [2014] AATA 60 at [31].

[34] Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700at [51]-[53] (footnotes and citations omitted).

[35] CPI 11: Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (April 2019) (CPI 11).

[36] The Applicant sat for (and passed) his Citizenship test in Dubai. Respondent's Tender Bundle at [4].

[38] Respondent's Tender Bundle at [27]-[29].

[41] Respondent's Tender Bundle at [13]-[15].

[43] Tribunal documents at [75]; Respondent's Tender Bundle at [18]-[20], [23]-[24].

[44] Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700 at [55].

[45] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [36].

[46] Australian Citizenship Act 2007 (Cth) s 12(1)(a).

[47] Khan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 284 at [27].

[48] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].