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Papion

Appeal against citizenship refusal through AAT

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31052019105038-0001.pdfHi 

I lodged my application last week for extension of time to review my citizenship refusal decision in 2015. Here is the story:

In Oct 2014 I fulfilled 4 years of residency in Australia and was eligible to apply for Australian citizenship. I had a serious health issue in that time and my doctor recommended me to go back home country and spend a while with family to get recovered. I had a plan to go to the UK to join a friend that I have there to get my master degree in my profession. So I decided to go back and after getting citizenship and recovery from the health issue go to the UK and then come back to Australia and I explain this on a cover letter in my application. Before I left I called the department and even physically went to their Sydney office and discussed the issue and they assured me I could lodged my application from overseas and they introduced me the OCU (Overseas Citizenship Unit) to apply through them. Then told me that I would be able to seat for the test in Australian embassy there. The only proof I have for their this saying are 3 friend who witnessed I talked to them by then and told them what I had heard from the Dep.

As soon I got there I lodged my application but after months in 2015 they rejected my application for the reasons they mentioned in their decision letter which is attached to this post. I could not appeal against the decision in that time as I was very sick plus I thought the result would not be any different as long as I was overseas. Because the main reason for them as seen in the attached letter to reject my application was that they were not sure if I would come back to Oz in future. 

Now I am living and working here and I found it a good time to appeal against that decision. I lodged an application last week in AAT to request for extension of time to review the decision. They then came back to me saying that they had sent a letter to the immi department and had given them 14 days time to say if they oppose this application or not and if they agree AAT will made the last decision by himself and they oppose there will be a hearing session with me and them. 

Sorry for the long story, but do you have any experience in a situation like mine or any tip or suggestion with my application? Thanks before for your helpful replies. 

 

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In similar cases in the past the AAT has affirmed the Department’s decision not to grant citizenship, I suspect they will also do the same in your case as from the information you have posted the department has made the correct decision based on your circumstances. 

My suggestion would be to re-apply for citizenship again once you meet the requirements and to maintain residence within Australia until its granted. 

 

 

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Agree with @Nightcall

The reasons for refusal are very solid and do not suggest any form of legal, administrative, process or decision error on behalf of the Government.  For an appeal to be even considered it must define a solid legal basis for the appeal. IMHO your case does not demonstrate grounds for appeal. The AAT will determine if there are valid grounds, based on a review of your case and the response from IMMI.

Whilst I understand your personal illness at the time, there is a provision for deferring the citizenship test in such cases, it appears you did not do so? Also, the AAT very rarely overrules a Dept Decision for just compassionate grounds, they usually refer it to the Minister for compassionate Grants, especially for Citizenship.  Plus. your health at the time is just one factor.

As @Nightcall said, I also believe the core of your refusal is that you do not meet the general expectation for days onshore and/or genuine nature to reside.

Good luck with the appeal, let us know if your appeal petition is accepted, and then how the actual appeal goes.

If you intend to represent yourself at the AAT, remember that IMMI will be fronting their absolute experts in this field.

 


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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Hi 

thanks for your replies. What I understood from the officer's letter was that he did not feel I would be back to Australia if I was granted the citizenship otherwise I met the required time of residence in Australia to be eligible for applying. Me being here now and applying for my wife visa too is the best proof that he was wrong.  He just mentioned he wouldn't think I would come back otherwise he did not offer any solid legal obstacle to refuse my application. 

I put the street on this issue that I did exactly what I was told by them so it is either I'm lieing that they said to me to do so or they say I should not have trusted on what they themselves told me. The ground of my complaint will be the fact that I was  misled by them and the fact that the prediction of me not coming back was not right. If I meant to get the citizenship and then leave it was not that hard for me to stay 3 weeks longer to sit for the test and do the oath in embassy overseas. 

still looking for hearing more opinions when my application is in process. 

 

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I can't really cant add any more to what Nightcall and AussieDude have posted. However I think you will have a significant hurdle getting this before the AAT. The timeframe to appeal a decision is 28 days, which you didn't. You are now seeking to appeal the decision some 4 years later. I very much doubt the Department will agree to your out-of-time appeal, and I am almost certain the AAT would reject your request to a time extension. 


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Hi 

As I mentioned before I received an email from AAT that they sent a letter to the Dep and asked them to oppose this application if they want to in 14 days, however I am not sure if this means my application has been accepted by aat himself already or not. If immi opposes this then there will be a hearing session between us. 

@AFV In my application I explained it to them why I didnt appeal and actually couldn't appeal in that 28 days. 

 

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10 hours ago, Papion said:

What I understood from the officer's letter was that he did not feel I would be back to Australia if I was granted the citizenship otherwise I met the required time of residence in Australia to be eligible for applying.

You have failed to meet the requirements on 4 parts

  1. Failed to undertake and pass the citizenship test
  2. Not likely to reside in Australia. You failed to supply any evidence of this, you failed to even give a return date. The evidence you provided when requested was very poor and failed to show this. You also told them that you wish to live another country for a significant period before considering returning at some unknown future date.
  3. Continue to reside in Australia. You provided no evidence of this at all, at the time of application you didn't even have a RRV
  4. Maintain close and continuing association with Australia. You failed to supply any substantial evidence of this fact, only a past tax return which carries little to no weight.
10 hours ago, Papion said:

Me being here now and applying for my wife visa too is the best proof that he was wrong

The decision is made on the information/evidence available at the time, what has happened since the decision isn't relevant and will carry no weight.  

10 hours ago, Papion said:

He just mentioned he wouldn't think I would come back otherwise he did not offer any solid legal obstacle to refuse my application.

If that is your understanding of the refusal, I suggest you engage the services of a lawyer, as you lack the ability to even understand the issues of the refusal.

10 hours ago, Papion said:

The ground of my complaint will be the fact that I was  misled by them

I think it's more likely you didn't understand what you were being told, nothing you have written about the advice they have given you is misleading or incorrect. 

10 hours ago, Papion said:

the fact that the prediction of me not coming back was not right

 Has no relevance to your situation.

 

 

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Hi

below is a part of our correspondence with case officer and my response to each part:

Client Name xxxx

Date of Birth xxx

Client ID xxx

Application ID xxx

Dear Mr xxxx

Request for further documents

I am writing regarding your application for Australian citizenship.

To enable the processing of your application, you are required to provide the documents as listed below:

 

  • Please provide evidence that you are likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (as required under s21(2)(g) of theAustralian Citizenship Act 2007). Applicants are required to satisfy this requirement for conferral of Australian citizenship.  As you are applying from offshore you must provide substantial evidence in this regard. 

 

Factors that may contribute to a close and continuing association with Australia include but are not limited to:

o   evidence that the person migrated to and established a home in Australia prior to the period overseas

I provided evidence of 4 years of residence 

o   Australian citizen children. If applicable, please provide full birth certificates.

I didn't have any

o   long term relationship with Australian citizen spouse or de facto partner. If applicable, please provide a marriage certificate or evidence of your de facto relationship such as joint bank accounts, evidence you reside at the same address, third party statements attesting to your relationship etc.

I didn't have any 

o   extended family in Australia

I didn't have any 

o   regular return visits to Australia

I explained it in a cover letter that I had planned to get my master degree in UK before coming back to Australia. For this purpose I need Australian passport as I couldn't go there easily with my original passport so it wouldn't be any visit to Australia before doing my plan unless I was asked to do so for approval that I was never asked to do so. 

o   regular periods of residence in Australia

I provided this. 

o   intention to reside in Australia.  If not already provided, please provide a signed statement confirming your intention to reside in Australia.

I provided this. 

o   the person has been on leave from employment in Australia while accompanying their spouse or partner overseas.  If you are currently offshore for work, please provide an employment letter or contract confirming your return date to Australia.

not applicable to me 

o   ownership of property in Australia

I didn't have any

o   evidence of income tax paid in Australia over the past four year and

I provided this 

o   evidence of active participation in Australian community based activities or organisations.

 I provided this 

If you have any evidence beyond the above list please also provide this information.

 

This documentation is required as evidence that you are able to satisfy the requirements of the Australian Citizenship Act 2007.

 

OK this was our correspondence with officer and the documents I could and had to offer. I also added a letter from my Australia doctor suggesting it would be better for me to stay with my family until I get fully recovered so basically not me not anyone else in my situation could determine a date for returning to Australia right?  instead,  they could asked me to be present in Australia in a specific time for approval. And yes I didn't even have rrv because of I was expecting for citizenship which meant I wouldn't need to rrv and as soon I received the refusal letter I applied and received the rrv.

I think the main issue was that I was really honest in that procedure. if I didn't mean to live in Australia I could easily wait for a while to get my citizenship and then leave the country. The issue was that unfortunately they didn't trust on me when I was quite honest to them from the beginning. 

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Why do you need citizenship right now?

1 hour ago, Papion said:

o   regular return visits to Australia

I explained it in a cover letter that I had planned to get my master degree in UK before coming back to Australia. For this purpose I need Australian passport as I couldn't go there easily with my original passport so it wouldn't be any visit to Australia before doing my plan unless I was asked to do so for approval that I was never asked to do so. 

So you basically told them that you required Australia citizenship to live in another country as you couldn't on your own countries citizenship and wouldn't come to Australia unless instructed too, but may come at some distant but unknown time that suit you.

This makes you ineligible for citizenship. 

1 hour ago, Papion said:

o   regular periods of residence in Australia

I provided this. 

This refers to after the application has been lodged, so you provided nothing to met this.

1 hour ago, Papion said:

o   intention to reside in Australia.  If not already provided, please provide a signed statement confirming your intention to reside in Australia.

I provided this. 

A statement without a fixed date or evidence of plans to move back to Australia isn't seen as a serious or genuine intention.  Also at the time of the decision you didn't even hold a visa (RRV) that allowed you enter Australia. 

1 hour ago, Papion said:

o   evidence of active participation in Australian community based activities or organisations.

 I provided this

You provided very poor evidence of this, you provided membership to an organization that doesn't require their members to live in, current reside or work in Australia. So pretty much pointless evidence. 

 

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I really don't understand what you mean when you say my INTENTIONS. Yes there are many people out there who use their Oz passport to go to other countries for business or education so any problem with this?  There are hundreds of times more than those Australian citizens who have been living in other countries and may never come back to Australia. Any problem with this?  I didn't tell them that I would stay permanently in the UK I just said I would come back as soon I finish my course. 

You neglect this point that I literally couldn't give them any date because all depended on my health issues.  They could at least link my application approval to my presence in Australia. And they didn't ask me any date too BTW.  My intention is only to achieve my deprived right just this 

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1 hour ago, Papion said:

And yes I didn't even have rrv because of I was expecting for citizenship which meant I wouldn't need to rrv and as soon I received the refusal letter I applied and received the rrv.

This was a mistake that you made, you need to be in Australia to be granted citizenship (some rare exceptions).  

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27 minutes ago, Papion said:

Yes there are many people out there who use their Oz passport to go to other countries for business or education so any problem with this?  There are hundreds of times more than those Australian citizens who have been living in other countries and may never come back to Australia. Any problem with this?

No problem because they are citizens, you are not an Australian citizen! so these rights don't confer to you. 

27 minutes ago, Papion said:

I didn't tell them that I would stay permanently in the UK I just said I would come back as soon I finish my course.

Clearly they didn't believe you, also you provided no evidence to support this. 

27 minutes ago, Papion said:

You neglect this point that I literally couldn't give them any date because all depended on my health issues

 Your health made the situation difficult for yourself, but there is no requirement for the department to take it into account when assessing your eligibility. You also clearly state to the department that you intend to study overseas before returning to Australia.

The department has no obligation to hold your application until it suits you or your situation.

The requirement is that you meet the eligibility requirements at time of application and time of decision, if you don't it will be rejected. 

27 minutes ago, Papion said:

My intention is only to achieve my deprived right just this 

You have no right to Australian citizenship, it is a privilege bestowed by the Australian Government and its citizens to people that meet the stated requirements. 

You did not meet these stated requirements.

It's that simple

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I was a legal permanent resident in Australia with no record of any penal not here nor overseas that lived and worked in Australia for 4 years. So I imagined if I explained anything honestly to them they would assist me to achieve my goals also to help with my health issue and they would perceive the fact that I was really sick and I had to leave Australia based on a valid medical reason. I expected them to believe me when I said I would come back to Australia as soon I finish my education in Uk that I am still pursuing that plan. They never asked me to tell them Ok when exactly you would be in Australia.  I would not expect it to be like a conviction session in a court for me and that is why I say maybe the issue was that I was honest to them.   

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Ok Basically you are telling me that I should have lied to them. I should have stayed for more 3 weeks to seat for the test and after approval I would leave Australia and have the oath in overseas embassy. And after getting passport I could go and never come back. If this is the case I was too naive then that I didnt do that. Sorry I have been an honest person entire my life although it hurts my benefits sometimes. As I said I explained everything honestly to them and maybe it was my stupidity to expect them behave me same way. 

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46 minutes ago, Papion said:

So I imagined if I explained anything honestly to them they would assist me to achieve my goals also to help with my health issue and they would perceive the fact that I was really sick and I had to leave Australia based on a valid medical reason.

The issue is that your goals,situation and lack of ties to Australia made you ineligible for citizenship at the time you applied/the decision was made, the fact you were sick has no bearing on the matter except to make your application that more difficult (for you).

You are lucky to already have been granted a permanent visa as your health issues would most likely make you ineligible for one now. You are also lucky they didn't cancel your permanent visa. 

What you fail to understand is that citizenship is not a right, it's a privilege that requires a long-term commitment to Australia. Not a future commitment when it suits you. 

46 minutes ago, Papion said:

I expected them to believe me when I said I would come back to Australia as soon I finish my education in Uk that I am still pursuing that plan. They never asked me to tell them Ok when exactly you would be in Australia.  I would not expect it to be like a conviction session in a court for me and that is why I say maybe the issue was that I was honest to them.   

Your expectations are off, they don't believe their own citizens without evidence (well put very little weight on it). Its a legal process you are going through when applying, so next time treat it as such. 

34 minutes ago, Papion said:

Ok Basically you are telling me that I should have lied to them. I should have stayed for more 3 weeks to seat for the test and after approval I would leave Australia and have the oath in overseas embassy. And after getting passport I could go and never come back. If this is the case I was too naive then that I didnt do that. Sorry I have been an honest person entire my life although it hurts my benefits sometimes. 

No, you should understand the eligibility requirements before applying, one of which is that you must intend to live in Australia or maintain a close and continuing association with Australia.

If you intend to just get citizenship to allow you study in the UK or never to return to Australia then you are not eligible to be granted.  

 

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Hello @Papion I have been following your posts here. I am very sorry for the position that you are in, but the decision to not grant you Australian citizenship was absolutely correct based on the application of the law. I don't think you are looking at this objectively, but instead your arguments appear to be baseless and irrelevant. You have applied to the AAT. Your first hurdle will be for them to accept your application for review which is 4 years since the date of decision. I think your chances of your review application being accepted by the AAT are zero. If your application is accepted, your chances then of success are equally low as well. 

If you don't mind me asking, you returned home to your country of origin for medical reasons, but you were well enough to consider travelling to the United Kingdom if you were granted Australian citizenship. Is that a correct assessment of your circumstances.

I really hope it all works out for you.   

 


Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

 

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8 hours ago, Papion said:

Hi 

As I mentioned before I received an email from AAT that they sent a letter to the Dep and asked them to oppose this application if they want to in 14 days, however I am not sure if this means my application has been accepted by aat himself already or not. If immi opposes this then there will be a hearing session between us. 

@AFV In my application I explained it to them why I didnt appeal and actually couldn't appeal in that 28 days. 

 

Your application has been accepted.  But the process to review varies.  The first stage will naturally follow the 14 day DOHA/IMMI response period. IMMI can request another 30 days if they require the extra time.   If IMMI do not oppose your appeal, then the decision is overturned and all is good.  As you stated IMMI have 14 days to reply to AAT. Trust me IMMI will respond and IMHO they will certainly object to your appeal. 

So the formal appeal process now starts.

As you are representing yourself, the process takes longer. You will get a call/letter around 6 weeks after you made the application. A staff member from the courts admin will talk you through the process, and advise you what extra evidence you will need.

From there, AAT will try to resolve the issue to everyone's satisfaction without a formal court hearing. The steps are usually a mediation session (in person or phone), a phone hearing,  and if all that fails, a formal court hearing. On average, AAT cases take around 6 months to reach a decision.

As you are probably aware, you have already or will be required to pay a A$920 lodgement fee.  

I can not stress that all appeals and federal court processes take a long, long time. The wheels of the AAT particularly move slowly, their case load is massive.  I always recommend that you engage legal counsel and representation for the AAT. 

Please let us know how your petition goes.


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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13 hours ago, AussieDude said:

Your application has been accepted.  But the process to review varies.  The first stage will naturally follow the 14 day DOHA/IMMI response period. IMMI can request another 30 days if they require the extra time.   If IMMI do not oppose your appeal, then the decision is overturned and all is good.  As you stated IMMI have 14 days to reply to AAT. Trust me IMMI will respond and IMHO they will certainly object to your appeal. 

So the formal appeal process now starts.

As you are representing yourself, the process takes longer. You will get a call/letter around 6 weeks after you made the application. A staff member from the courts admin will talk you through the process, and advise you what extra evidence you will need.

From there, AAT will try to resolve the issue to everyone's satisfaction without a formal court hearing. The steps are usually a mediation session (in person or phone), a phone hearing,  and if all that fails, a formal court hearing. On average, AAT cases take around 6 months to reach a decision.

As you are probably aware, you have already or will be required to pay a A$920 lodgement fee.  

I can not stress that all appeals and federal court processes take a long, long time. The wheels of the AAT particularly move slowly, their case load is massive.  I always recommend that you engage legal counsel and representation for the AAT. 

Please let us know how your petition goes.

It is not at the appeal stage yet. The AAT have given the Department 14 days to to advise whether they oppose the applicant's out-of-date application for review. If the Department opposes the application then it must be decided by a hearing. If they do not oppose the application, it must still be determined by the AAT, but it can be done on the papers. This is still only at the stage as to whether the AAT can review the original decision which the applicant is seeking review of. 


Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

 

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Thank you again for the time you all spend on posting these valuable comments here. I really appreciate that. Actually as some of you guys are very focused on each section of the requirement for citizenship I have to rephrase some points and go a bit dipper to the issue. I am not a lawyer so please correct me if  I am wrong. 

First of all lets see what officer asked me to provide:

I am writing regarding your application for Australian citizenship.

To enable the processing of your application, you are required to provide the documents as listed below:

  • Please provide evidence that you are likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (as required under s21(2)(g) of the Australian Citizenship Act 2007). Applicants are required to satisfy this requirement for conferral of Australian citizenship.  As you are applying from offshore you must provide substantial evidence in this regard. 

 Factors that may contribute to a close and continuing association with Australia include but are not limited to:

 1.   evidence that the person migrated to and established a home in Australia prior to the period overseas

2. Australian citizen children. If applicable, please provide full birth certificates.

3. long term relationship with Australian citizen spouse or de facto partner. If applicable, please provide a marriage certificate or evidence of your de facto relationship such as joint bank accounts, evidence you reside at the same address, third party statements attesting to your relationship etc.

4. extended family in Australia

5.  regular return visits to Australia

6. regular periods of residence in Australia

7.  intention to reside in Australia.  If not already provided, please provide a signed statement confirming your intention to reside in Australia.

8.  the person has been on leave from employment in Australia while accompanying their spouse or partner overseas.  If you are currently offshore for work, please provide an employment letter or contract confirming your return date to Australia.

9. ownership of property in Australia

10. evidence of income tax paid in Australia over the past four year and

11. evidence of active participation in Australian community based activities or organisations.

 If you have any evidence beyond the above list please also provide this information.

 This documentation is required as evidence that you are able to satisfy the requirements of the Australian Citizenship Act 2007

Now lets see what law says:

31.4 Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (s21(2)(g))
Factors that may contribute to a close and continuing association with Australia include:

1. Australian citizen spouse or de facto partner

2. Australian citizen children

3. length of relationship with Australian citizen spouse or de facto partner

4. extended family in Australia

5. return visits to Australia

6. periods of residence in Australia

7. intention to reside in Australia

8. employment in Australia (for example, public or private sector) • ownership of property in Australia

9. evidence of income tax payment in Australia and

10. current bank accounts in Australia.
The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the applicant’s intentions unless there is evidence to the contrary.

As you can see there are 3 OR to satisfy this section: 1. Likely to reside, or 2. continue to reside, in Australia 3. or to maintain a close and continuing association with Australia. This means if I can meet each of these 3 I will be eligible to proceed with next section. 

Now Lets have a look at what officer wrote in his decision letter:

 

Paragraph 21(2)(g) provides that a person must be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application is approved.

 Satisfied

Not Satisfied

Not assessed

I find that you are not likely to reside in Australia or maintain a close and continuing association with Australia if your application were approved.

This requirement has three components and I must assess your circumstances against each of these to determine whether you are able to meet this criteria:

 a.    Are you likely to reside in Australia if your application were to be approved; or

 Firstly, I find that you are not likely to reside in Australia. You have been residing in xxx since your last departure from Australia on 31 October 2014. In your applicant statement you advised that the reason for your absence was to spend more time with your family due to your health and you have provided a letter issued by a clinical

psychologist to support this. Initially you provided no additional information with your application to show you intended to return to Australia. Upon request by the department you provided evidence of tax paid in Australia between 2011 and 2014, a membership certificate for the Institution of Engineers Australia issued in 2011, and a signed statement.

 You are currently residing in xxx, your country of origin, and you have given no evidence of active steps you are making to return to Australia. Your evidence of tax and a membership do not indicate that you intend to return to Australia to reside in the future. You have provided no evidence of your intended return date, only a statement th.a.I you someday wish Ie return to .A.ustra!!a aft=r your r=sc •=ry in !ran and potentially after further study in the UK. You have provided no further substantial evidence to show that you will in fact return to Australia as you claim. This is not supportive of you returning to Australia in the near future to take on the responsibilities of Australian citizenship.

b.    Would you continue to reside in Australia if your application were to be approved ; or

 Secondly, I find that you will not continue to reside in Australia. You have not resided in Australia since 31 October 2014. Based on the information you have provided it appears that you are residing in xxx where you appear to have strong family connections. You have not provided a date when you intend to return to Australia to reside permanently. I am not satisfied that you will continue to reside in Australia.

 c.    Will you maintain a close and continuing association with Australia should your application be approved.

 Lastly, I find that you are unlikely to maintain a close and continuing association with Australia if your application were approved.

 Chapter 5 of the Australian Citizenship Instructions (ACls) provides guidance in factors that may contribute to a close and continuing association with Australia:

5.7.2 Maintain a c/ose and continuing association with Australia Factors that may contr/bofe to a c/ose and continuing association with Australia include:

 •          Australian citizen spouse or de facto partner

•          Australian citizen children

•          length of relationship with Australian citizen spouse or de facto partner

•          extended family in Australia

•          return visits to Australia

•          periods of residence in Australia

•          intention to reside in Australia

•          employment in Australia (for example, public or private sector)

•          ownership of property in Australia and

•          evidence of income tax payment in Australia

Of the above list of factors that can demonstrate a close and continuing association with Australia you have only provided a statement regarding your periods of residence and intention to reside in Australia. You have not provided any substantial evidence beyond the above list to show a close and continuing association with Australia.

You have provided the following supporting documentation with your application: letter from a clinical psychologist, Australian bank statement, applicant statement, Australian tax documentation, Institution of Engineers Australia membership certificate.

 I accept that you are a member of the Institution of Engineers Australia. However, you have not provided any substantial evidence of future employment in Australia, or how active your membership is while you are overseas.

I accept that you have spent considerable time in Australia previously. However you have not returned to Australia at all since your last departure on 31 October 2014. I accept that in the past you resided in Australia; however I find that this evidence is insufficient to show that you will maintain a close and continuing association with Australia into the future.

I find that you do not meet the requirement set out in paragraph 21(2)(g) as you have not provided evidence that you will return to reside in Australia in the future, and you have not provided sufficient evidence to show that you will maintain a close and continuing association with Australia.

Ok. Please go back to the items he asked me to provide in his email. As you can see there are 11 items. From those 11 items , all apart from items 1, 7 are to satisfy the third OR above (or to maintain a close and continuing association with Australia.). Ok I imagine with the documents I provided I could not satisfy this OR. There are still 2 other ORs 1. Likely to reside, or 2. continue to reside, in Australia. The remaining items in his emails which are 1 and 7 seems to be requested these two remaining ORs. Lets see again what law says :

The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the applicant’s intentions unless there is evidence to the contrary.

I was never asked to provide these two forms however i provided a statement and signed it that I will return to reside in Australia as he requested in item 7 of his email. According to this description this will be what i will say in that hearing session or court if there will be any. Sorry i have to rewrite his letter below and i write my answer to each item in blue:

 

Paragraph 21(2)(g) provides that a person must be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application is approved.

 Satisfied

Not Satisfied

Not assessed

I find that you are not likely to reside in Australia or maintain a close and continuing association with Australia if your application were approved.

This requirement has three components and I must assess your circumstances against each of these to determine whether you are able to meet this criteria:

 a.    Are you likely to reside in Australia if your application were to be approved; or

 Firstly, I find that you are not likely to reside in Australia. You have been residing in xxx since your last departure from Australia on 31 October 2014. In your applicant statement you advised that the reason for your absence was to spend more time with your family due to your health and you have provided a letter issued by a clinical psychologist to support this. Initially you provided no additional information with your application to show you intended to return to Australia. Simply because initially i was not asked to .Upon request by the department you provided evidence of tax paid in Australia between 2011 and 2014, a membership certificate for the Institution of Engineers Australia issued in 2011, and a signed statement. Just saying this shows how knowledgable you are in your job! Apart from "a signed statement" other items according to the law are not intended to satisfy my intention to reside in Australia. There are intended to satisfy the third OR which is "to maintain a close and continuing association with Australia"

 You are currently residing in xxxx, your country of origin, and you have given no evidence of active steps you are making to return to Australia. Your evidence of tax and a membership do not indicate that you intend to return to Australia to reside in the future Agree Agree, so why do you mention them here Sir? you can not use these items to dissatisfy me for this section can you?You have provided no evidence of your intended return date, only a statement th.a.I you someday wish Ie return to .A.ustra!!a aft=r your r=sc •=ry in !ran and potentially after further study in the UK. You have provided no further substantial evidence to show that you will in fact return to Australia as you claim. This is not supportive of you returning to Australia in the near future to take on the responsibilities of Australian citizenship. First of all I was never asked to provide an exact date to return, secondly your knowledge from depression is not probably enough to understand that it is not like a surgery with specified date to introduce to hospital and specified date to release from hospital. I had to wait until my psychologist confirmed I was fully recovered and there would not be any risk of it to relapse, instead you could give me a deadline to return right?

b.    Would you continue to reside in Australia if your application were to be approved ; or

 Secondly, I find that you will not continue to reside in Australia. You have not resided in Australia since 31 October 2014. Based on the information you have provided it appears that you are residing in xxx where you appear to have strong family connections. You have not provided a date when you intend to return to Australia to reside permanently. I am not satisfied that you will continue to reside in Australia. Really? Your prediction was probably wrong wasn't it? I had not resided in Australia since 31 Oct 2014 because I was expecting to get my citizenship to pursue my plans as stated completely honestly. And my expectation was based on the information the Dep gave me before I left Australia, there are three persons who can testify this if needed. You could at least tell me i had to cancel my plans and return. Then, Is that so strange for you that I have a strong family connection!? How had I already lived for 4 years in Australia with this "Strong Family Connection" How would this " Strong Familt Connection" made me incapable of living in Australia. Yes because of this "Strong Family Connection" I had many plans to bring them over for a tour here that never happened. About the date, Again I was never asked to provide you with a date OK? BTW what are those forms in: "The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the applicant’s intentions unless there is evidence to the contrary." Why did you never ask me to fill out and send these? What exactly did you find contrary to this ? After 4 years as you can see your "finding" in that time was absolutely wrong you just ruined 4 years of my life and the plans that i had. This was what exactly your " finding" did.  
 

 c.    Will you maintain a close and continuing association with Australia should your application be approved. Ok lets imagine I could not meet the required criteria to meet this so I am not going to argue this much

 Lastly, I find that you are unlikely to maintain a close and continuing association with Australia if your application were approved (Maybe I should have shown you the correspondence I had to a land seller in Australia in that time to buy a land and make a farm that was ruined by this decision too.)

 Chapter 5 of the Australian Citizenship Instructions (ACls) provides guidance in factors that may contribute to a close and continuing association with Australia:

5.7.2 Maintain a c/ose and continuing association with Australia Factors that may contr/bofe to a c/ose and continuing association with Australia include:

 •          Australian citizen spouse or de facto partner

•          Australian citizen children

•          length of relationship with Australian citizen spouse or de facto partner

•          extended family in Australia

•          return visits to Australia

•          periods of residence in Australia

•          intention to reside in Australia

•          employment in Australia (for example, public or private sector)

•          ownership of property in Australia and

•          evidence of income tax payment in Australia

Of the above list of factors that can demonstrate a close and continuing association with Australia you have only provided a statement regarding your periods of residence and intention to reside in Australia. You have not provided any substantial evidence beyond the above list to show a close and continuing association with Australia.

You have provided the following supporting documentation with your application: letter from a clinical psychologist, Australian bank statement, applicant statement (I am really sorry that you dont even know this item is not applicable for this OR, this is to satisfy the other 2 ORs,) Australian tax documentation, Institution of Engineers Australia membership certificate.

 I accept that you are a member of the Institution of Engineers Australia. However, you have not provided any substantial evidence of future employment in Australia, or how active your membership is while you are overseas( Did you really asked me to provide this?).

I accept that you have spent considerable time in Australia previously. However you have not returned to Australia at all since your last departure on 31 October 2014(I already answered this above). I accept that in the past you resided in Australia; however I find that this evidence is insufficient to show that you will maintain a close and continuing association with Australia into the future.

I find that you do not meet the requirement set out in paragraph 21(2)(g) as you have not provided evidence that you will return to reside in Australia in the future, and you have not provided sufficient evidence to show that you will maintain a close and continuing association with Australia .

 

Ok Guys sorry to make such a long comment. I just tried to make all the point as clear as possible for you. And sorry to be a bit aggressive in my comments 🙂

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What's your question? seems like a rant!

You are required to meet section 21(2)(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.

When you received the email/letter you should have sort legal advice. 

The guidance information requested is simply guidance on what to supply, it's not legally required, it's procedural fairness.

It's the departments way of telling you that the information you have supplied thus far or your situation doesn't make you eligible for citizenship, but if you can cover of all these points or explain why you can't they will take it into consideration in making the decision.

 

 

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Just to add, I understand English isn't your first language, but you are misunderstanding certain terms that have a legal context to them. Such as,

1 hour ago, Papion said:

 Secondly, I find that you will not continue to reside in Australia. You have not resided in Australia since 31 October 2014. Based on the information you have provided it appears that you are residing in xxx where you appear to have strong family connections. You have not provided a date when you intend to return to Australia to reside permanently. I am not satisfied that you will continue to reside in Australia. Really? Your prediction was probably wrong wasn't it?

 I am not satisfied isn't a prediction as they make no such thing claim, they say you have failed to prove to them that you will continue to reside in Australia to their satisfaction.

What you do in the future or what happens in the future is of no relevance, as at the time of making the decision you failed to prove it to their satisfaction. 

 

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@Nightcall 

Thanks for your comments, of course I wont use the exact same word in hearing session. I just mixed it with some aggressive statements here. Any other idea? I appreciate your corrective points here but mostly you reject my statements but don't offer any better?  Cheers

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3 hours ago, Papion said:

@Nightcall 

Thanks for your comments, of course I wont use the exact same word in hearing session. I just mixed it with some aggressive statements here. Any other idea? I appreciate your corrective points here but mostly you reject my statements but don't offer any better?  Cheers

Hi @Papion after they rejected your application how long was it until you returned to Australia?

When you did return, did you lodge an appeal then?


 

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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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I have read over the previous posts many times. I think the decision to refuse the citizenship application was the correct decision based on the application of the relevant law and the facts that have been posted. 


Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

 

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