Uelese v Minister for Immigration and Border Protection

1. The issues for consideration by the Tribunal in this application comprise two parts arising from whether the Applicant can satisfy the Tribunal that he is eligible for citizenship under the Australian Citizenship Act 2007 ("the Act"):
   • (a) whether he meets the general residence requirement at the time he made the application to the Respondent (section 21(2)(c)) by virtue of the Ministerial discretion that may be given to the spouse of an Australian citizen under section 22(9) of the Act; and
   • (b) whether he is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved within the meaning of section 21(2)(g) of the Act.
2. The parties agree that the Applicant does not otherwise meet the general residence requirement created by section 21(2)(c) or the general residence requirement exceptions contained in sections 22(1A) and 22(1B) of the Act.
3. Whether the Applicant satisfies the general residence requirement in the circumstances applicable to him is both a factual and a discretionary question under section 22 of the Act. The discretion under section 22(9) of the Act 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.
4. The Applicant contends that the fact that he has a close and continuing association with Australia is amply demonstrated from the extensive evidence that has been received in support of his application. He contends that the discretion contained in section 22(9) is a broad one and that there is nothing in the text of the section to construe its language or words restrictively. He contends that the only evidence of a more restrictive construction of the language used in the section is derived from the drafting of the Citizenship Policy (dated 1 June 2016).[9] Therefore, the section should not be applied inflexibly. Or put another way, the Citizenship Policy should not be used as an instrument for inflexible construction of the section; or to introduce a test which is not permitted by the statute's text, on its true and proper construction. With this caveat in mind, the Applicant contends that the extensive evidence before the Tribunal provides a satisfactory demonstration of his close and continuing association with Australia, to enable the decision-maker, in this case the Tribunal, to exercise the discretion in section 22(9) in favour of the Applicant.
5. The Respondent contends that the Applicant does not satisfy the requirements of section 22(9)(d) of the Act. In support of this contention, the Respondent relies upon the various factors identified in Chapter 7 of the Citizenship Policy, which provides guidance to decision-makers on the administration of the provisions under the Act. The Citizenship Policy identifies several "factors" that may demonstrate a close and continuing association with Australia for the purposes of that section.[10] The Respondent identifies each of the factors which may be indicia of a close and continuing association with Australia, and argues with considerable force and effect, that several of them have not been satisfied or otherwise met, by the Applicant. By reason of his not meeting the factors or otherwise satisfying them, the Respondent submits that his application should be refused.
6. The review does require a consideration of the "close and continuing association" question, and if it is answered in favour of the Applicant, how the Tribunal should exercise the discretion.

A BRIEF OBSERVATION ON THE APPLICANT AND HIS WITNESSES

1. The Tribunal found the Applicant and his wife to be thoroughly impressive witnesses. They are both highly qualified and have achieved much in their lives academically, commercially and socially. The Applicant obtained an MBA and a PhD from Victoria University of Technology (now better known as Victoria University). His wife obtained a PhD from RMIT University. He became a permanent resident on 10 March 2001.[11] None of their evidence was really challenged by the Respondent and is therefore accepted by the Tribunal.
2. Similarly, the witnesses called by the Applicant on his behalf came from a range of backgrounds (several were very eminent Australians) and were impressive in their credibility, and in how they attested to the qualities of the Applicant, together with the facts and circumstances of his close and continuing connections with Australia throughout the relevant period (as well as before and after the relevant period in some instances). Once again, none of their evidence was seriously challenged and it is therefore accepted by the Tribunal.

1. It is appropriate to reproduce in these reasons applicable sections of the Act.

"21 Application and eligibility for citizenship

General eligibility

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

...........

(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

...........

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...

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.

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.

24 Minister's decision

..........

(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

..........

WHETHER THE APPLICANT HAD A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA

1. The relevant years which the Tribunal is required to consider, when looking for the close and personal relationship between the Applicant and Australia, are the four years preceding the application for citizenship on 23 July 2016.
2. The Applicant relies on a number of facts that were elucidated from the evidence given or tendered on his behalf before the Tribunal, to establish a close and continuing association with Australia within the meaning of section 22(9) of the Act. The Tribunal will provide a summary of those facts. They are not identified in any particular order of priority but simply as a collective summary of the relevant facts.
3. The Tribunal refers to the contents of the Applicant's witness statement and his evidence from the witness box. They provide extensive particulars that he relies upon to establish the close and continuing association within the relevant period.
4. The Applicant has been employed since July 2017 by Deakin University as part of an initiative to establish and advance a Centre for Social Enterprise at its Geelong Campus.
5. Professor Brenda Cherednichenko, Executive Dean of the Faculty of Arts and Education at Deakin University, made a statement but did not give evidence from the witness box. She deposed that, at the request of the Vice Chancellor of the University, she worked closely with the Applicant to establish a Centre for Social Enterprise at the University. Amongst other things, in her statement she said that since the establishment of that Centre she had worked closely with the Applicant in its development and the conduct of its operations.
6. Mr Seignior's evidence confirmed the continuing contribution made by the Applicant to this enterprise. He also deposed that the idea for the enterprise was developed after a group of senior Deakin University staff members visited the Applicant in India. He stated that the Applicant had been involved with that enterprise continuously since its commencement. He further stated that he usually speaks to him, every day when the Applicant is in Australia and once a week when the Applicant is in India concerning amongst other things, the Centre's affairs.
7. A program, known as the "Thamarrurr Youth Indigenous Corporation", which aims to assist in the development and implementation of a training program for Indigenous youths, has recruited the Applicant to work for it. He has been working with Indigenous communities in Wadeye in the Northern Territory for approximately three years as part of this program. In parallel with this effort, he has developed relationships with Australian charities, which have over the last two to three years created a fund to establish a facility for teaching and training Indigenous youth.
8. There was evidence from Professor Martin, Mr Varghese and Ms Crawley about the Applicant's contributions to the education and welfare of Indigenous educational and welfare programs. Professor Martin said that he makes a vital contribution to Australia in terms of improving peoples' lives and culture. He described the Applicant's unique expertise in terms of education, training and lived experience as world-leading and of great benefit to the Australian educational sector. Further, he gave evidence of the Applicant's work with tribal communities in India and transferring the expertise thus developed to Australian Indigenous communities. This expertise assisted with remote communities' sense of self-determination. He said that the Applicant had initiated a reciprocal relationship so that Indigenous students could travel to India to learn from other tribal groups. These include those in Wadeye in the Northern Territory and in Bright, Victoria which he has visited. The evidence from Professor Martin, Mr Varghese and Ms Crawley on this question was impressive.
9. There was evidence from Ms Crawley that she communicates with the Applicant weekly concerning the Indigenous Corporation for which she works. Several of the witnesses also mentioned that they had sometimes, with others from their organisations, visited the Applicant in India. Ms Crawley referred to taking a group of Indigenous youth to meet tribal communities in India. Professor Cherednichenko also hosted a visit to Centurion University in India by the Deakin Centre for Social Enterprise. Mr Thomas also gave evidence of being in regular contact with the Applicant, whether he is in Australia or India.
10. Since approximately 2010, the Applicant has negotiated and established numerous commercial agreements and memoranda of understanding,[12] between Australian educational institutions and companies for the mutual benefit of CUTM, and other educational institutions in India. Such arrangements have enabled Australian students to participate in exchange programs and research projects.
11. The Applicant also has a continuing relationship with the Australian High Commission in India, and with the Department of Foreign Affairs and Trade, promoting Australian interests in India. There were several letters of commendation in evidence before the Tribunal from the current Australian High Commissioner to India, Ms Harrinder Sidhu, and from the previous occupant of that position, Mr Patrick Suckling. Another letter of relevance was from the Deputy High Commissioner, Mr Chris Elstoft. Other letters of commendation or support were from other High Commission officials including Australian Trade Commission representatives, the First Secretary (Education), the Second Secretary, Trade & Economic, and from the Department of Education and Training. In various ways, they attest to the qualities of the Applicant and his promotion of and connection with Australia. Another letter in evidence was from The Honourable Christopher Pyne MP, as the then Minister for Education and Training, thanking the Applicant for his valuable contribution to a forum on the growth of private higher education conducted during a trip he made to India in 2015. The letter was at page 28 of the Applicant's Documents.
12. The Applicant is an Adjunct Professor at Victoria University, RMIT University and Deakin University and continues to supervise PhD students, having occupied such roles with those institutions since approximately 2007.[13] Coupled with these responsibilities at those institutions, he also sponsors Australian students to undertake further study in Australia and overseas, and aids them in securing financial assistance for such endeavours.
13. The Applicant is also the director of an Australian company, Centurion Global Services Pty Ltd, which was incorporated in 2015. This company aims to provide global consultancy in student mobility and institutional strategic expansion plans.
14. The Applicant jointly owns a property in Victoria; and has a bank account, an investment account and a credit card. He has an Australian superannuation account and has lodged tax returns in Australia.
15. He has been a member of the Quality Society of Australasia since 1996.
16. The Applicant has maintained significant professional and personal relationships with many Australian colleagues, several of whom gave evidence by witness statement and from the witness box, in support of his application. As noted earlier, the contents of those statements were very impressive indeed. Their contents need not be explored in any detail. They provide much evidence of the Applicant's close and continuing association with Australia within the relevant meaning of the applicable sections of the Act over the relevant years; as well as before that period and since.
17. The Tribunal should observe that the evidence of the Applicant's close and continuing association with Australia over the relevant timeframe, which the Tribunal has summarised in the preceding paragraphs, enables the Tribunal to conclude that such close and continuing association has been extensive. The association has arisen from various academic positions that the Applicant holds in several universities, the contributions that he has made to support the establishment and assistance of various programs promoting Indigenous affairs, and (what may be described as) sundry commercial and educational ventures. The Australian-linked quotient of these ventures has been significant, close and continuous. This is notwithstanding that he has been in India for much of the time concerned.
18. The Applicant and his wife in their oral evidence stated that their objectives have been to improve access to high-quality education to disadvantaged socio-economic groups in both India and Australia. It is the Applicant's intention and that of his wife, to establish an educational institution in Australia similar to CUTM (there was much evidence before the Tribunal of CUTM's programs and achievements, all of which is accepted) which would focus on providing education to Indigenous Australians and those for whom access to traditional tertiary-level education has proven a struggle. They have both given evidence that if the Applicant was an Australian citizen it would assist in achievement of this objective, as he is more likely to have ready access to credit facilities from Australian lending institutions.[14] This evidence was not seriously challenged by the Respondent.
19. The Respondent, both in submissions and to some extent during the course of evidence, urged the Tribunal not to place any emphasis on the Applicant's involvement with CUTM as evidence of the Applicant's close and continuing association with Australia.
20. The argument as developed by the Respondent was that collectively this evidence was no more than details of the Applicant's association with a private institution based in India that had entered into such memoranda or commercial agreements. The Tribunal rejects this contention. Such a contention puts a strained construction on the relevant sections of the Act. The evidence was that the commercial agreements and memoranda of understanding were negotiated by the Applicant on behalf of CUTM. The Applicant was, with his wife, a guiding force of that organisation. It is in every respect his commercial and educational alter ego. The Respondent's contention is artificial. The contention also flies in the face of the unchallenged evidence of several of the witnesses, which was to the effect that the Applicant was very much the face of CUTM; and that in Australia this was well known, including by the Respondent. The Applicant personally was the link. The Tribunal has previously noted that the witnesses called by the Applicant included several eminent Australians from universities, who did not see the distinction in the way it was put by the Respondent.
21. The Respondent, as noted earlier, tackles the Applicant's contentions and contends that by reason of him not being able to satisfy the "factors" in the Citizenship Policy, the discretion in section 22(9) should not be exercised in his favour. The Respondent's contentions about each of those factors will be addressed below.

1. Although the Applicant does have a property which has been described as an "investment property" in Mount Alexander Road, Travancore[15] the Respondent contends that he has not established a home here in the relevant sense required by section 22(9) and as articulated in Chapter 7 of the Citizenship Policy. In furtherance of this argument it was put by the Minister that there is no evidence that the Applicant migrated to and established a home in Australia prior to the period he has since spent overseas. The Applicant gave evidence, which was not seriously challenged, that whilst he rents the property out, he does retain a room in that house which he uses as his residential base upon his return to Australia.
2. The Respondent contends that the Applicant has no Australian citizen children. He has no extended family in Australia. This is readily conceded by the Applicant.
3. The Applicant's return visits to Australia demonstrate "in a limited way" a close and continuing association with Australia. The Respondent contends that such return visits are of short duration and never longer than a continuous period of a few weeks. There is no evidence to suggest that he has visited Australia with his family.
4. The Respondent contends there is no evidence of the Applicant having spent regular periods of residence in Australia. The Respondent, understandably, contends that he has spent approximately 214 days (7 months) in Australia over more than a 15-year period from the time that he acquired permanent residency; namely, on or about 10 March 2001, until his application for citizenship on 23 July 2016.
5. The Respondent contends that the Applicant has not expressed an intention to reside in Australia. Rather, his intention in the foreseeable future appears to be to remain outside Australia, most likely in India, as has been the case to date.
6. The Respondent contends there is no evidence that the Applicant has been on leave from employment in Australia whilst accompanying his spouse overseas. This is conceded by the Applicant.
7. The Respondent contends that the residential property that the Applicant owns in Travancore has not been the subject of any evidence as to whether he intends to retain it or reside in it with his family in the future.
8. The Respondent contends that the Applicant has not paid income tax in Australia over the past four years because his taxable Australian income fell below the relevant tax threshold.[16]
9. The Respondent has characterised the evidence given by the Applicant as amounting to evidence of participation in Australian community-based activities or organisations. It seeks to identify a distinction between activities conducted by the Applicant in his own right, and those by reason of his association with CUTM and that organisation's professional association with various Australian organisations.
10. Additionally, the Respondent places significant emphasis on the sections in Chapter 7 of the Citizenship Policy, which provide that in assessing whether a person has a close and continuing association with Australia for the purposes of section 22(9)(d) of the Act, 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 prior to making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if an applicant has not been present in Australia for at least this period.
11. The Respondent argues that the Applicant's marriage to an Australian citizen and his ownership of property should attract less weight because he was physically present in Australia for only 183 days and not at least 365 days in the four years prior to making an application for citizenship. Therefore, to the extent that marriage to an Australian citizen and ownership of property can be relied upon to establish a close and continuing association with Australia within the meaning of section 22(9)(d) of the Act, they are outweighed by the other remaining factors, which vitiate against such a finding when construed in accordance with Chapter 7 of the Citizenship Policy.
12. As to section 21(2)(g) of the Act, notwithstanding the declaration made by the Applicant in his application for Australian Citizenship by conferral that he intends to reside or continue to reside in Australia, the Respondent contends that there is insufficient evidence of such intention; and it is contrary to an explanation proffered by him in other material received in evidence before the Tribunal.[17]
13. Concerning the question of whether the Applicant is likely to maintain a close and continuing association with Australia within the meaning of section 21(2)(g) of the Act, the Respondent again maintains that the Applicant is not likely to maintain a close and continuing association with Australia if his application were to be approved. Once again the provisions of Chapter 7 of the Citizenship Policy are relied upon. Additionally, the Respondent contends that the Applicant's employment history in Australia does not contribute to a finding of a close and continuing association, notwithstanding the evidence that has been adduced.

1. The discretion cast upon the decision-maker, in this case the Tribunal, under section 22(9)(d) of the Act is an open one; or, as submitted by the Applicant in his Statement of Facts, Issues and Contentions, "at large". It has been observed that it is a discretion designed to afford latitude to such a decision-maker in the case of, amongst other things, the spouses of Australian citizens. If admitting such a person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in the Applicant's favour.
2. The language used in section 22(9)(d) namely "close and continuing association with Australia" are not ambiguous, and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
3. In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[18]
4. The Tribunal has considered the contents of the Citizenship Policy and each of the "factors" that the Respondent has identified which do not apply to the Applicant; they have been identified earlier in these reasons. Quite properly, the Respondent's reliance upon the fact that the Applicant does not satisfy several of the "factors" contained in the Citizenship Policy has much merit.
5. It is correct, as the Respondent argues, that several of the factors simply do not apply to the Applicant. It is true that he has spent limited time in Australia and has no extended family or Australian citizen children here. He has earned little or no taxable income in this country for the years for which tax returns have been provided.
6. The Applicant has given evidence, which the Tribunal accepts, that he maintains a room, in the residential property that he owns in Travancore, for the purposes of residing upon his return to Australia from time to time. The property does provide evidence of a continuing association with Australia.
7. The Applicant has returned to Australia regularly; although, as the Respondent contends, not for extended periods. Nonetheless, there have been return visits. There was evidence from a range of witnesses who were, as noted earlier, impressive and, in many instances, high-achieving eminent Australians of the Applicant's activities during the time that he returns. This is further evidence of his close and continuing association with Australia. These activities have been summarised earlier in these reasons. They are accepted by the Tribunal.
8. The Applicant has explained why he has not resided in Australia for an extended period. That has been also touched on earlier in these reasons. The Tribunal accepts the Applicant's reasons, and the explanation that he has given concerning why he has not taken up residence in Australia in recent times, and his future intentions. The Tribunal also accepts the evidence of the Applicant and his wife that it is their intention to return to Australia and establish an institution which would focus on the provision of education to Indigenous Australians, and those for whom access or entry to, conventional tertiary institutions is either difficult or beyond them. The Tribunal considers that the Applicant and his wife are impressive individuals who are motivated by a desire to make a contribution to society, both in Australia and India, and to foster strong relations between those two nations. The goal of establishing an institution or assisting in giving such people as described earlier access to higher education in Australia will inevitably lead to their return to this country.
9. The Applicant has demonstrated that he is a person of high educational achievement and strong personal values. He would clearly fit in with Australian society. A range of eminent people have attested to his qualities and the contribution that he has already made to this country. They have given strong evidence of the Applicant's close and continuing connection with Australia. The evidence that has been provided does outweigh the failure of the Applicant to meet several of the factors contained in the Citizenship Policy. The public interest would be served by having such a high-calibre person become an Australian citizen. He has contributed much to Australia already, and there is no doubt that he will continue to do so in the future. Having had the opportunity to observe the Applicant, the Tribunal is of the view that he would continue to make a contribution if this application were to fail. However, for the reasons identified earlier, weighing up all of the evidence that has been adduced, the Tribunal decides the discretion should be exercised in his favour.

1. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant satisfies the tests in sections 21(2)(g) and 22(9) of the Act.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron

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

[1] The Applicant and his wife were married on 30 June 1989. His wife became an Australian citizen on 3 May 2007.

[2] Professor Martin is Associate Dean of Indigenous Studies at Monash University; and has been, amongst other things, the Acting Director of the Institute of Koorie Education at Deakin University.

[3] He is the Project Coordinator for the Deacon Centre of Social Enterprise.

[4] A former International Ambassador for Sports Education Development Australia. Prior to his retirement he was CEO of the National Education Foundation and then the Brotherhood of St Lawrence.

[5] Emeritus Professor, College of Law and Justice at Victoria University. Professor Armstrong supervised the Applicant's Masters and PhD theses at Victoria University.

[6] Senior Lecturer and Unit Coordinator for the Global Leadership and Work and Organisation Systems in the School of Business at Victoria University. He has been a lecturer and Associate Professor for approximately 19 years, prior to which he was a Lieutenant Colonel in the Australian Army.

[7] Ms Thawley is the Manager of Employment and Training at the Thamarurr Youth Indigenous Corporation.

[8] Professor Toohey is currently an Honorary Professor at the Centre for Workforce Futures, Faculty of Business and Economics at Macquarie University, in the Master of Business Administration program. He has also held several significant positions at RMIT University, including the Head of School, Graduate School of Business and Law; and International Dean, College of Business.

[9] Hereinafter, referred to as "the Citizenship Policy"

[10] The relevant passages of the Citizenship Policy "Ministerial discretion - Spouses and de facto partners (s 22 (9) and s 22 (10)" are to be found in document "T03" (pages 55-56) of the T documents.

[11] He is currently is the holder of a Resident Return visa (subclass 155).

[12]Paragraph 16 of the Applicant's witness statement and paragraph 36 of the Respondent's Statement of Facts, Issues and Contentions.

[13] This evidence was confirmed by several witnesses including Professors Armstrong and Toohey.

[14] The Applicant gave evidence, particularly at paragraph 30 of his witness statement, of his endeavours in 2009 to acquire the Sunbury Campus of Victoria University; and a similar attempt in 2014 to acquire the Lilydale Campus of Swinburne University. He was able to obtain support from Indian banks but could not proceed, as access to appropriate credit facilities could not be obtained in Australia. Apparently, this was because he was not an Australian citizen, amongst other things. The object in acquiring these campuses was to establish a Tertiary educational institution.

[15] The Respondent at paragraph 26 of its Statement of Facts, Issues and Contentions observed that the Applicant had not provided any evidence of how long he had owned the property. At the hearing of this application evidence was tendered that the purchase of the property concerned by the Applicant and his wife was settled on 15 September 2010. (A "Final Settlement Statement" formed part of exhibit A-2.)

[16] There were income tax returns of the Applicant provided for the years 2015, 2016 and 2017. They show limited income in each of those years. A useful summary of the details found in each of the years concerned is contained in paragraph 27 of the Respondent's Statement of Facts, Issues and Contentions. As contended by the Respondent they show limited income earned in such years.

[17] The Respondent relies upon the contents of paragraph 44 of the Applicant's Statement of Facts, Issues and Contentions. The Applicant also made this concession candidly during the course of his evidence in the witness box. His evidence was expressed in terms that with the business interests he has including that of promoting higher or further education, it is difficult for him to return to live in Australia permanently at this time. Specific reference was made to paragraph 38 of his witness statement and the second paragraph on page 101 of the T-Documents Part "I. Trajectory Ahead" of his "Statement of Purpose of my Application for Australian Citizenship by Conferral".

[18] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296