Atkins and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 1438
•8 September 2017
Atkins and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1438 (8 September 2017)
Division:GENERAL DIVISION
File Number: 2016/6152
Re:Stephen Atkins
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:8 September 2017
Place:Brisbane
The Tribunal affirms the decision under review.
...................................[Sgd].....................................
Member D K Grigg
CATCHWORDS
CITIZENSHIP – general residency requirements not satisfied – whether close and continuing association with Australia – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Acts Interpretation Act 1901 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher and Minister for Immigration and Border Protection [2013] AATA 917Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Australian Citizenship Instructions Citizenship Policy (2016, Cth)
Concise Oxford English Dictionary (12th edition, 2011)
The Macquarie Dictionary (7th edition, 2017)
REASONS FOR DECISION
Member D K Grigg
8 September 2017
INTRODUCTION
Mr Atkins is a Canadian citizen[1] and currently has permanent residency in Australia.
[1] Exhibit 1, T Documents, T4, pages 82-90, Application for Australian Citizenship dated 15 August 2016.
On 15 August 2016 Mr Atkins applied for Australian citizenship by conferral on the ground that he is a spouse or de facto partner of an Australian citizen pursuant to section 21(2)(c) of the Australian Citizenship Act 2007 (“the Act”) (“Citizenship Application”).[2] However, on 20 October 2016 the Department of Immigration and Border Protection (“DIBP”) advised Mr Atkins that he did not meet the general resident requirement under section 22 of the Act (“DIBP Decision”).[3]
[2]Exhibit 1, T Documents, T4, pages 42-90, Application for Australian Citizenship dated 15 August 2016.
[3]Exhibit 1, T Documents, T2, pages 9-19, Notification of refusal of application for citizenship by conferral from Department of Immigration and Border Protection to Mr Atkins dated 20 October 2016.
Mr Atkins has sought a review of the DIBP Decision by this Tribunal.[4]
[4] Exhibit 1, T Documents, T1, pages 1-8, Application for Review of Decision dated 15 November 2016.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are whether:
(a)Mr Atkins satisfies the residence criteria at section 21(2)(c) of the Act; or, alternatively
(b)Mr Atkins satisfies the criteria in section 22(9)(a) – (c) of the Act; and
(c)Mr Atkins had a close and continuing associationwith Australia in the periods in which he was absent from Australia in the four years immediately before his Citizenship Application for the purposes of section 22(9)(d) of the Act; and
(d)the discretion in section 22(9) of the Act should be exercised to treat any or all of Mr Atkin’s periods of absence from Australia as a period in which he was present in Australia as a permanent resident.
The Tribunal has jurisdiction to review the DIBP Decision pursuant to section 52(1)(b) of the Act.
LEGISLATIVE REQUIREMENTS
Pursuant to section 24(1A) of the Act, the Minister must not approve an application to become an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 21(2)-21(8) of the Act”.
Section 21(2)(c) of the Act relevantly provides that:
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) … at the time the person made the application…
There is no contention that Mr Atkins does not meet the other general eligibility requirements in section 21(2) of the Act.
Section 22 of the Act sets out the general residency requirements. It provides:
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.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…
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.
(My emphasis)
In order for Mr Atkins to be eligible to become an Australian citizen, Mr Atkins needs to meet the requirements of section 22(1), 22(1A) or 22(1B) of the Act. Alternatively, section 22(9) of the Act provides that the Minister may exercise a discretion to treat a period as one in which the person was present in Australia as a permanent resident if the circumstances set out in sections 22(9)(a) to 22(9)(d) are met.
WAS MR ATKINS PRESENT IN AUSTRALIA FOR THE PERIOD OF 4 YEARS IMMEDIATELY BEFORE THE DAY HE MADE THE APPLICATION FOR CITIZENSHIP: SECTION 22(1)?
The Minister submits that Mr Atkins does not meet the criteria in section 22(1) because in the four years prior to lodging his Citizenship Application (between 15 August 2012 and 14 August 2016) Mr Atkins was absent from Australia for 986 days.[5]
[5] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 12.
This is not disputed by Mr Atkins.
Therefore, Mr Atkins does not satisfy the criteria in section 22(1) of the Act.
WAS THE TOTAL PERIOD MR ATKINS WAS ABSENT FROM AUSTRALIA IN THE 4 YEARS IMMEDIATELY BEFORE THE DAY HE MADE THE APPLICATION FOR CITIZENSHIP NOT MORE THAN 12 MONTHS: SECTION 22(1A)?
The Minister submits that Mr Atkins does not meet the criteria in section 22(1A) of the Act because in the 4 years prior to lodging his Citizenship Application, Mr Atkins was absent from Australia for 986 days.[6]
[6] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 12.
This is not disputed by Mr Atkins.
Therefore, Mr Atkins does not satisfy the criteria in section 22(1A) of the Act.
WAS THE TOTAL PERIOD MR ATKINS WAS ABSENT FROM AUSTRALIA IN THE 12 MONTHS IMMEDIATELY BEFORE THE DAY HE MADE THE APPLICATION FOR CITIZENSHIP NOT MORE THAN 90 DAYS: SECTION 22(1B)?
The Minister submits that Mr Atkins does not meet the criteria in section 22(1B) because in the 12 months prior to lodging his Citizenship Application Mr Atkins was absent from Australia for 342 days.[7]
[7] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 12.
This is not disputed by Mr Atkins.
Therefore, Mr Atkins does not satisfy the criteria in section 22(1B) of the Act.
MINISTERIAL DISCRETION: SECTION 22(9)
Mr Atkins does not meet the general residency requirement in section 21(2)(c) of the Act, therefore, the question is whether section 22(9) of the Act applies.
Before the Minister can exercise the discretion provided for in section 22(9) to treat a period of absence as one in which a person was present in Australia, the four criteria set out in section 22(9)(a)–(d) inclusive must be satisfied.
However, this does not mean that the Minister must exercise his or her discretion in favour of an applicant. The section specifically uses the word “may” not must. The Federal Court in Kumar v Minister for Immigration and Border Protection[2015] FCA 446 said:[8]
[22]…the word “may” permits the Minister to consider any matters, either in favour of or against “treat[ing] a period as one in which the person was present in Australia as a permanent resident”, provided those matters are not “definitely extraneous to any objects the legislature could have had in view”.
[8] Following Dixon J (as his Honour then was) in Water Conservation and Irrigation Commission (NSW) v Browning
[1947] HCA 21; (1947) 74 CLR 492, at 505.
Further, pursuant to section 24(2) of the Act, the Minister may still refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under section 21(2).
Criteria in section 22(9)(a)-(c)
Mr Atkins:
(a)satisfies the criteria in section 22(9)(a) of the Act because he was a spouse or de facto partner of an Australian citizen during his periods of absence;[9]
(b)satisfies the criteria in section 22(9)(b) of the Act because he was not present in Australia during that period;[10]
(c)satisfies, except for a period of 94 days when Mr Atkins was not present in Australia and not a permanent resident,[11] the criteria in section 22(9)(c) of the Act because he was a permanent resident during his periods of absence.[12]
[9] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 17.
[10] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 17.
[11] This is not disputed by Mr Atkins. See Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 16, Annexure A.
[12] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 17.
The issue for determination is whether Mr Atkins meets the final criteria in section 22(9)(d) of the Act. That is, did Mr Atkins have “a close and continuing association with Australia” during his periods of absence. The Minister submits that he did not.[13]
Did Mr Atkins have a close and continuing association with Australia during his periods of absence: section 22(9)(d)?
[13] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 17.
A “close and continuing association with Australia” must be established for each period in which Mr Atkins was absent from Australia in the four years immediately before the day he made the application for citizenship.[14]
[14] The Full Federal Court held in Minister for Immigration and Border Protection v Han[2015] FCAFC 79 (“Han”) (at
[37]), that “the various references in paragraphs (a) to (d) of s 22(9) to “during that period” are a reference to the period which is the subject of the Minister’s requested intervention.”
The 4-year period of interest is between 15 August 2012 and 14 August 2016.
Between 14 August 2012 and 14 August 2016 Mr Atkins was absent from Australia on 9 occasions as follows:[15]
[15] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 18.
·14 August 2012 – 12 December 2012 (121 days);
·31 December 2012 – 3 April 2013 (94 days);
·3 August 2013 – 9 December 2013 (129 days);
·2 January 2014 – 19 June 2014 (169 days);
·24 September 2014 – 21 October 2014 (28 days);
·22 March 2015 – 29 March 2015 (8 days);
·18 August 2015 – 24 May 2016 (281 days);
·2 June 2016 – 14 July 2016 (43 days);
·23 July 2016 – 10 August 2016 (19 days).
Put another way:
(a)in the 4-year period prior to the Citizenship Application, Mr Atkins was only present in Australia for 574 days out of a total of 1,460 days; and
(b)in the 12-month period prior to the Citizenship Application, Mr Atkins was only present in Australia for 21 days out of a total of 365 days.
What does “a close and continuing association” mean?
The Act does not define what constitutes “a close and continuing association”.
Section 15AA of the Acts Interpretation Act 1901 (Cth) (“AIA”) provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In interpreting a section of an Act, “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22].
The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ):
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…
The Concise Oxford English Dictionary defines “close” as “(of a connection...) strong”; “continue” as meaning “remain in existence...or a specified state”; and “association” as “a connection or cooperative link between people or organizations”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”; “continue” as “to last or endure”; and “association” as “the act of associating; ...connection or combination”.
Section 22(9) of the Act provides that the connection must be to Australia.
The Minister referred me to Chapter 7A of the Australian Citizenship Instructions Citizenship Policy (“the Citizenship Policy”) which provides guidance to the Department in relation to the exercise of the discretion under section 22(9) of the Act. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[16]
[16] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
I also note the comments of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70,[17] that:
....the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
[17] Referred to by Deputy President Dr P McDermott RFD in Secretary, Department of Social
Services and Irvine [2016] AATA 306, at [24]-[25].
This Tribunal has considerable the phrase “close and continuing connection” on numerous occasions and relevant authorities were recently summarised by Senior Member Cotter in Yang and Minister for Immigration and Border Protection [2017] AATA 364 as follows:
Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy.[18] The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”,[19] or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied.[20] What is required is:
... a qualitative assessment of the ultimate significance (of) an applicant’s circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant’s periods of Australian presence were highly relevant considerations.[21]
[18] Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton); Al-
Hadethi and Minister for Immigration and Border Protection [2016] AATA 447, [36] (DP Deutsch).
[19] Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton).
[20] Taher and Minister for Immigration and Border Protection [2013] AATA 917, [47] (SM Fice).
[21] Li and Minister for Immigration and Border Protection [2015] AATA 270, [27] (SM Taylor SC).
The Citizenship Policy relevantly provides as follows:[22]
[22] Exhibit 1, T Documents, T3, pages 33-41, Citizenship Policy – Chapter 7A.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
§evidence that the person migrated to and established a home in Australia prior to the period overseas
§Australian citizen children
§long term relationship with Australian citizen spouse or de facto partner
§extended family in Australia
§regular return visits to Australia
§regular periods of residence in Australia
§intention to reside in Australia
§the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
§ownership of property in Australia
§evidence of income tax paid in Australia over the past four year and
§evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) 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 before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
Evidence to be provided for s22(9)
Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) - spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to provide:
§evidence of their spouse’s, or de facto partner’s, Australian citizenship. For example, a full Australian birth certificate or citizenship certificate
§their marriage certificate or, if a de facto partner, evidence of their de facto relationship. The definition of ‘de facto partner’ provided in the Acts Interpretation Act 1901 lists circumstances that can be taken into account when determining whether two people are in a de facto relationship. These include:
othe duration of the relationship
othe nature and extent of their common residence
owhether a sexual relationship exists
othe degree of financial dependence or interdependence, and any arrangements for financial support, between them
othe ownership, use and acquisition of their property
othe degree of mutual commitment to a shared life
othe care and support of children
othe reputation and public aspects of the relationship.
§evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained a close and continuing association with Australia during that period
§evidence of their spouse’s, or de facto partner’s, death, if applicable.
In Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689 the Tribunal said, at [28], that the factors “listed in the Instructions have no hierarchy or weighting [and that the] decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case”.
Although the Citizenship Policy provides:
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) 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 before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period…
in Saba and Minister for Immigration and Border Protection [2014] AATA 579 the Tribunal considered the above passage and found (at [14]) that:
…in some situations the decision-maker may properly be satisfied of an applicant’s ‘close and continuing association’ despite quite a long period of residential absence.
The Minister submits that Mr Atkins did not have “a close and continuing association with Australia” during his periods of absence.[23] This is disputed by Mr Atkins.
[23] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, paras 23-35.
THE SECTION 22(9) EVIDENCE
Mr Atkins is currently a citizen of Canada, a citizen of the United Kingdom (because of his father) and a permanent resident of Australia.
In 1998 Mr Atkins was teaching at Capilano University in North Vancouver when he met Mr Wade-Cooper. They commenced a relationship and began living together in Vancouver in 1999.[24]
[24] Exhibit 1, T Documents, T5, page 93, Letter from Registered Migration Agent dated 15 August 2016, para (i).
Mr Wade-Cooper became an Australian citizen on 3 January 2007.[25] Mr Wade-Cooper told the Tribunal that it was not until he became an Australian citizen in January 2007 that he realised he could move to Australia.
[25] Exhibit 1, T Documents, T5, page 107, Australian Citizenship Certificate.
At the hearing Mr Atkins gave evidence that in 2007 he and Mr Wade-Cooper began discussing migrating to Australia. At that time they visited Australia and Mr Atkins did an internship as an associate director of Zen Zen Zo, an Australian theatre company.[26]
[26] Applicant’s December 2016 Submissions, Annexure 7.
In 2008 Mr Atkins applied for an Australian Partner (Provisional and Migrant) visa (Subclasses 309 and 100) and was granted a Subclass 100 visa.[27]
[27] Exhibit 1, T Documents, T5, page 108, Letter from Registered Migration Agent dated 15 August 2016, para (i);
Mr Atkins has renewed his permanent visa several times and held a Resident Return visa (Subclass 155) which was valid until 1 June 2017.
From on or around 2009 Mr Wade-Cooper became involved in theatre work.[28] Between 2009 and 2015 many of Mr Wade-Cooper’s theatre projects during this period were based in Canada.
[28] Exhibit 1, T Documents, T5, pages 110-119, Curriculum Vitae of Anthony Wade-Cooper.
Mr Atkins did not visit Australia between 2 September 2008 and 19 February 2010.[29]
[29] Exhibit 1, T Documents, T9 pages 175 – 178, Applicant’s Movement Records.
Mr Atkins told the Tribunal that in 2010 the idea to move to Australia became more concrete and Zen Zen Zo invited him to come over and work as associate director.[30] Mr Atkins says this is when he and Mr Wade-Cooper began looking at real estate for the purposes of buying a home with the assistance of a friend, Mr Bruce Stanley. Mr Atkins says that when he and Mr Wade-Cooper visited Australia, between 2010 and 2015, they stayed at Mr Stanley’s daughter’s house. Mr Atkins says they helped out and paid some rent pursuant to a verbal agreement with Mr Stanley’s daughter. Mr Stanley’s daughter confirms the verbal rental arrangement, however she says they only stayed on and off from July 2012 (not 2010) for approximately a 2-year period (i.e. until 2014 not 2015).[31]
[30] Applicant’s December 2016 Submissions, Annexure 8.
[31] Applicant’s December 2016 Submissions, Annexure 17.
At the hearing Mr Atkins told the Tribunal that in 2011 Mr Atkins and Mr Wade-Cooper sold an investment property they owned in Vancouver and bought a new apartment in Vancouver which they then rented out. However, a letter from Mr Atkins’ representatives provides that the investment property was sold in 2009 and that the new property in Vancouver was purchased in 2009 and that they lived in it for more than 5 years until 2014.[32]
[32] Exhibit 1, T Documents, T5, page 93, Letter from Registered Migration Agent dated 15 August 2016.
In February 2011 Mr Atkins commenced doctoral studies at Queensland University of Technology and was accompanied by Mr Wade-Cooper to Australia. Mr Atkins said it was around this time that they decided to move to Australia permanently.
Mr Wade-Cooper was diagnosed with a major illness in August 2011. Mr Atkins explained that although they had access to healthcare in Australia they did not feel comfortable with some of the treatment received because of a comment made about their relationship by hospital staff. Mr Atkins says they felt Mr Wade-Cooper would be better treated in Canada. Mr Wade-Cooper confirmed at the hearing that he had full Canadian insurance at that time and therefore could obtain better and less expensive treatment in Canada. Mr Wade-Cooper did not say he had felt uncomfortable because of discriminatory comments by staff while in hospital here, nor did he give that as a reason for why they returned to Canada. When Mr Atkins and Mr Wade-Cooper returned to Vancouver they lived in a friend’s place because their property had been rented out. Mr Atkins did not return to Australia again until 13 December 2012.[33]
[33] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
At the hearing Mr Wade-Cooper told the Tribunal that although his health improved in 2012 he decided to stay in Vancouver, rather than return to Australia, because he had been offered a “very important and prestigious job”.
Between 2012-2016 Mr Atkins continued his position at Capilano University. Mr Atkins says that during this time he continued his research for his PhD and that part of his research plan involved doing some work in New York and Vancouver. Mr Atkins told the Tribunal that between August 2012 and August 2016 he spent most of his time in Canada doing practice-based research for his PhD, although it was always his and Mr Wade-Cooper’s intention to return to Australia. However, Mr Atkins was employed full-time by Capilano University at this time. A letter from the Dean of the Faculty at Capilano University wrote that Mr Atkins’ physical presence was required to perform his regular full-time instructor role and that on average he teaches 13 courses between 1 August and 31 July each year.[34] Further, documents contained in Annexure 1 to the Applicant’s December 2016 Submissions indicate that Mr Atkins withdrew from his PhD studies in January 2014.
[34] Exhibit 1, T Documents, T5, page 134, Letter from Dean of Capilano University dated 18 July 2016.
Between 2011 and 2014 the couple made several trips to Australia,[35] during which time Mr Atkins says he met with his PhD supervisor at QUT and searched for a home. Mr Atkins was also engaged by Zen Zen Zo to direct a new production.[36]
[35] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
[36] Applicant’s December 2016 Submissions, Annexure 16.
Mr Atkins and Mr Wade-Cooper married under Canadian law on 1 March 2014 in Vancouver.[37]
[37] Exhibit 1, T Documents, T5, page 106, Certificate of Marriage, Canada registered 11 March 2014.
Mr Atkins says they moved to Australia permanently in 2014.
Mr Wade-Cooper told the Tribunal he retired in 2014 and that the permanent decision to live in Australia was not made until October 2014. This evidence is supported by:
(a)Mr Atkins’ movement records which indicate that he spent the most time (292 days) in Australia between October 2014 and August 2015;[38] and
(b)medical evidence which indicates that Mr Wade-Cooper continued to receive medical care in Vancouver between June 2011 and March 2015.[39]
[38] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
[39] Applicant’s December 2016 Submissions, Annexure 3.
The couple then sold their home in Canada and purchased a home in Queensland in April 2015.[40] For financial reasons, Mr Atkins says he guaranteed the mortgage over their Australian home against his income at Capilano University.
[40] Exhibit 1, T Documents, T5, page 95, Letter from Registered Migration Agent dated 15 August 2016; Applicant’s December 2016 Submissions, Annexure 4.
Between April and June 2015 Mr Atkins says he attempted to find employment in Australia and that even though he continued to be employed by Capilano University, he:
(a)entered into discussions with Sunshine Coast University to develop a Masters program (although this did not ultimately pan out);
(b)met with people from Jam Drama Funhouse, a Queensland based theatre school, to discuss the development of a pedagogy and conducted some workshops for them in China; and
(c)met Gary Hopes, Managing Director of Agency 888, who offered him some teaching and with who he discussed developing a potential training series and the potential of establishing a drama school in the future.[41]
[41] Applicant’s December 2016 Submissions, Annexure 12.
I note that there is no evidence that Mr Atkins made any other attempts to find employment in Australia.
Between August 2015 and May 2016 Mr Atkins was outside of Australia[42] and had returned to Vancouver to work. Mr Wade-Cooper remained in Australia during this time. Mr Atkins told the Tribunal that he continued his employment with Capilano University because:
(a)Capilano University was their financial resource;
(b)it was better for his career to be working in Canada; and
(c)returning to Canada and Capilano University would help advance the connections and opportunities he was attempting to build in Australia.
[42] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
Between March 2016 and August 2016 Mr Atkins did some work with Jam Drama Funhouse which required him to travel to China.[43] I note that Mr Zhang, from Jam Drama Funhouse, indicated that he had offered Mr Atkins a position with the company starting in early 2017,[44] but that as at the date of the hearing, Mr Atkins has still not been employed by Jam Drama Funhouse.
[43] Applicant’s December 2016 Submissions, Annexure 5.
[44] Applicant’s December 2016 Submissions, Annexure 5.
At the hearing Mr Atkins said he was returning to Capilano University to direct one further show and for his professional growth and that it would secure his “eventual move”.
Mr Atkins relies on the following evidence as supporting his contention that he maintained “a close and continuing association with Australia” during his periods of absence:
·His ongoing relationship with Mr Wade-Cooper since 1999. Mr Atkins says he has only been out of Australia on one occasion without his partner;
·His return visits to Australia;
·His close relationship with his partner’s family;
·His friendships with other Australian’s, including Mr Stanley to whom he has provided care and support since Mr Stanley’s stroke;
·The ownership of their home in Queensland;
·His professional ties (through teaching and directing) to:
oAustralian theatre company Zen Zen Zo;
oJam Drama Funhouse
·His attempt, albeit unsuccessful, to establish an online company based in Australia;
·His contribution to Australian culture through:
oCreating and directing shows with Australian theatre company Zen Zen Zo;
oHis doctoral degree studies at QUT between 2011-2014 through which he has met and maintained colleagues;
oThe creation of a new pedagogy for language, youth and drama educators through Jam Drama Funhouse;
·Other than a car and some clothes, all of his and Mr Wade-Cooper’s possessions are in Australia;
·His strong desire to live in Australia since 2008.
Citizenship Policy Factors
Did Mr Atkins "migrate to Australia and establish a home in Australia prior to a period spent overseas from Australia"?
The evidence does not support a finding that Mr Atkins had migrated to Australia and established a home prior to the periods he spent overseas. The evidence indicates that between 14 August 2012 and 21 October 2014 (during which time Mr Atkins was absent from Australia for 541 days), Mr Atkins:
(a)was living and working in Vancouver;
(b)stayed with Mr Wade-Cooper who had decided to stay in Vancouver in 2012 until the end of 2014 because of a job opportunity;
(c)owned a home in Canada;
(d)owned no property in Australia;
(e)stayed on and off at a friend’s house when in Australia;
(f)made no offers on any property in Australia;
(g)did not seek to enter into any formal lease agreement on any property within which to live in Australia;
(h)has not opened a bank account in his own name (although he is a signatory to an account in Mr Wade-Cooper’s name);[45] and
(i)made no attempt to obtain full-time employment in Australia.
[45] Exhibit 1, T Documents, T5, page 141, Letter from ANZ Bank dated 9 August 2016.
While Mr Atkins purchased a home with Mr Wade-Cooper in Queensland in April 2015, he then continued to live and work in Vancouver.
Long Term Relationship with Australian Citizen
It is not in dispute that Mr Atkins is in a long-term relationship with an Australian citizen. However, the Full Federal Court in Han (at [41]) said, given that section 22(9) of the Act requires not only that the applicant was a spouse at the time of making the citizenship application but also had “a close and continuing association with Australia” during the periods for which he sought the Minister’s intervention, this “suggests that the Parliament proceeded on the basis that the requirement that a person have a close and continuing association with Australia to become an Australian citizen is not simply established by the fact that the applicant for citizenship is a spouse of an Australian citizen at the time of application”.
Further, Mr Wade-Cooper has only been an Australian citizen since 2007. Prior to becoming an Australian citizen, Mr Wade-Cooper had been a citizen of Canada since 1984[46] and had spent his life living and working in Canada.
[46] Exhibit 1, T Documents, T4, page 55, Application for Australian Citizenship dated 15 August 2016.
Extended Family in Australia
Mr Atkins has family in the United Kingdom whom he has visited on 3 occasions in 1998,[47] 2004[48] and 2005.[49]
[47] Exhibit 1, T Documents, T4, page 63, Application for Australian Citizenship dated 15 August 2016.
[48] Exhibit 1, T Documents, T4, page 66, Application for Australian Citizenship dated 15 August 2016.
[49] Exhibit 1, T Documents, T4, page 67, Application for Australian Citizenship dated 15 August 2016.
Mr Atkins says he also has a close relationship with Mr Stanley and has many connections and friendships with people he has met whilst working with Zen Zen Zo and Jam Drama Funhouse. Mr Atkins says he has maintained those connections, including with some of his students.
However, Mr Atkins has very little extended family in Australia. The only relationship for which we have evidence on the current materials is his relationship with his partner's cousin and her family. An individual's ties with their Australian citizen family alone does not equate to a “close and continuing association with Australia”.[50]
[50] Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [27]; Taher and Minister for Immigration
and Border Protection [2013] AATA 917 at [47].
Regular Periods of Residence in Australia
The evidence indicates that Mr Atkins has visited Australia 9 times between August 2012 and August 2016. Those visits have lasted between 16 and 151 days on each occasion.[51] The evidence shows that there have not been regular periods of residence in Australia. Rather, he has provided evidence of regular periods of residence in Canada.
[51] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
Mr Atkins primary residence and place of employment in the 4-year period prior to the Citizenship Application (and I note afterwards) was Canada.
Intention to Reside in Australia
Mr Atkins said it was in February 2011 that he and Mr Wade-Cooper decided their intention to move to Australia was permanent. However, Mr Wade-Cooper told the Tribunal that the decision to live in Australia was not made until October 2014.
While I acknowledge that Australian residence was clearly something that was discussed and considered by Mr Atkins and Mr Wade-Cooper prior to October 2014, it was not until October 2014 that Mr Atkins firmly made the decision to do so. The actions of Mr Atkins and Mr Wade-Cooper prior to October 2014 do not evidence an intention to reside in Australia before then. For example, there is no corroborating evidence to support Mr Atkins’ oral evidence that, if he had found a house they liked earlier than 2015 they would have purchased it. Further, it seems unlikely that they would have purchased a house before then in any event because at that time they had not sold their home in Vancouver, had no means of earning any income in Australia, and in 2012 Mr Wade-Cooper had accepted a job in Canada and had decided to remain there for its duration.
Further, as submitted by the Minister, even if Mr Atkins had an intention to reside in Australia, in the final year period he:
(a)spent most of his time outside of Australia in Canada, US and China;[52]
(b)visited Australia 4 times but only for one or two weeks at a time;[53] and
(c)remained employed in Canada.[54]
[52] Exhibit 1, T Documents, T4, pages 63, 66-67, Application for Australian Citizenship dated 15 August 2016
[53] Exhibit 1, T Documents, T9, pages 175 – 178, Applicant’s Movement Records.
[54]Exhibit 1, T Documents, T5, page 134, Letter from Dean of Capilano University dated 18 July 2016.
These facts do not support Mr Atkin’s contention that he had an intention to reside in Australia throughout the 4-year period.
Senior Member Handley in Sie and Minister for Immigration and Border Protection [2014] AATA 60, at [32] considered the expression “intention to reside” in the Citizenship Policy:
"the expression intention to reside in Australia must mean, if not an immediate intention, an intention at least to reside with some reasonable proximity to the grant of citizenship".
Mr Atkins' claims that his decision to stay on at Capilano University in 2015 was to assist in paying the mortgage for the Australian home the couple now owned, which is understandable. However, as referred to by the Minister, Mr Atkins’ submissions received on 16 December 2016 state “... whilst cultural work is not the only conceivable employment [available] to Mr Atkins' [sic], it would not make sense for him to take up any employment (e.g. driving taxi's [sic]) purely for the purposes of securing an income.” Mr Atkins also states in a statutory declaration dated 13 December 2016 that “the entertainment and arts education sectors often demand travel if you are successful” and later, “To dismantle this career at its peak would be to negate many positive contributions I could make to Australia". This evidence indicates that Mr Atkins made a choice to work and live outside Australia and does not support a contention that Mr Atkins had an intention to reside in Australia with “some reasonable proximity” to a grant of citizenship.
Life is about choices. Mr Atkins’ personal choice has been to earn an income in a job in a particular sector in another country. While I accept that Mr Atkins was building networks in the arts sector in Australia, he has not actively searched for a job in Australia because he was, for all intents and purposes, working in, and connected to, Canada.
This Tribunal has held, in Taher v Minister for Immigration and Border Protection [2013] AATA 917 (at [36]) that:
…if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.
Was Mr Atkins on leave from employment in Australia while accompanying his partner overseas?
Mr Atkins has never been an employee in Australia. Rather, he has done project or contract work for a couple of different organisations as a consultant.[55]
[55] Exhibit 1, T Documents, T5, page 153, Letter from Jam Drama Funhouse dated 10 August 2016.
Ownership of Property in Australia
Until April 2015 Mr Atkins did not own property in Australia. For the majority of the relevant 4-year period, Mr Atkins owned property in Canada.
Income Tax Paid in Australia
Mr Atkins has not paid income tax in Australia during the relevant 4-year period, or since. Further, the Canada Revenue Agency considers Mr Atkins to be a Canadian resident for income tax purposes.[56]
[56] Exhibit 1, T Documents, T5, page 165, Letter from Canada Revenue Agency dated 27 November 2015.
CONCLUSION
In the last four years Mr Atkins was absent from Australia for 986 days, having spent that time primarily in Canada.[57]
[57] Exhibit 2, Minister’s Amended Statement of Facts, Issues and Contentions dated 14 August 2017, para 12.
14 August 2012 – 12 December 2012 (121 days absent)
The evidence indicates that in this period of absence:
(a)Mr Atkins was living and working in Vancouver having returned there a year earlier due to Mr Wade-Cooper’s illness; and
(b)Mr Wade-Cooper decided to stay in Vancouver because of a job opportunity.
When Mr Atkins returned on 13 December 2012 he remained in Australia for approximately 18 days before returning again to Canada.
31 December 2012 – 3 April 2013 (94 days absent)
The evidence indicates that in this period of absence:
(a)Mr Atkins was living and working in Vancouver; and
(b)Mr Wade-Cooper decided to stay in Vancouver because of a job opportunity.
3 August 2013 – 9 December 2013 (129 days absent)
The evidence indicates that in this period of absence:
(a)Mr Atkins was living and working in Vancouver; and
(b)Mr Wade-Cooper decided to stay in Vancouver because of a job opportunity.
2 January 2014 – 19 June 2014 (169 days absent)
The evidence indicates that in this period of absence:
(a)Mr Atkins was living and working in Vancouver;
(b)Mr Wade-Cooper decided to stay in Vancouver because of a job opportunity; and
(c)Mr Atkins and Mr Wade-Cooper married on 1 March 2014 in Vancouver.[58]
[58] Exhibit 1, T Documents, T5, pages 106-107, Certificate of Marriage, Canada registered 11 March 2014 and Evidence of Australian Citizenship of Anthony Wade-Cooper.
24 September 2014 – 21 October 2014 (28 days absent)
The evidence indicates that in this period of absence:
(a)Mr Atkins was living and working in Vancouver;
(b)Mr Wade-Cooper retired; and
(c)in October 2014 Mr Atkins and Mr Wade-Cooper made the permanent decision to live in Australia.
22 March 2015 – 29 March 2015 (8 days absent)
The evidence indicates that in this period of absence, Mr Atkins was living and working in Vancouver.
18 August 2015 – 24 May 2016 (281 days absent)
The evidence indicates that in this period of absence:
(a)while Mr Atkins had purchased a home in Queensland in April 2015, he continued to live and work in Vancouver;
(b)Mr Atkins continued to make connections within the arts community in Queensland;
(c)Mr Atkins did some consulting work with Queensland based theatre school Jam Drama Funhouse which involved travelling to China; and
(d)Mr Wade-Cooper remained in Australia during this time.
2 June 2016 – 14 July 2016 (43 days absent)
The evidence indicates that in this period of absence:
(a)while Mr Atkins had purchased a home in Queensland in April 2015, he continued to live and work in Vancouver;
(b)Mr Atkins continued to make connections within the arts community in Queensland;
(c)Mr Atkins did some consulting work with Queensland based theatre school Jam Drama Funhouse which involved travelling to China; and
(d)Mr Wade-Cooper remained in Australia during this time.
23 July 2016 – 10 August 2016 (19 days absent)
The evidence indicates that in this period of absence:
(a)while Mr Atkins had purchased a home in Queensland in April 2015, he continued to live and work in Vancouver;
(b)Mr Atkins continued to make connections within the arts community in Queensland;
(c)Mr Atkins did some consulting work with Queensland based theatre school Jam Drama Funhouse which involved travelling to China; and
(d)Mr Wade-Cooper remained in Australia during this time.
Mr Atkins clearly had an interest in Australia, having visited on 10 occasions between August 2012 and August 2016. Mr Atkins also intended at some point to migrate to Australia. However, I find that in the relevant 4-year period and in the 9 periods in which Mr Atkins was absent from Australia, that the evidence does not support a finding that he had a close and continuing association with Australia in each of those periods which is what is required for the discretion in section 22(9)(d) of the Act to be enlivened.
Whether the discretion should be exercised
I have found that Mr Atkins does not meet the criteria in section 22(9)(d) of the act and as a result it is not necessary for me to consider whether the discretion contained in section 22(9)(d) of the Act should be exercised in Mr Atkins favour.
DECISION
Mr Atkins does not satisfy the general residence requirement in section 22 of the Act and therefore is not eligible for citizenship under section 21(2)(c) of the Act.
Mr Atkins’s application therefore must be refused.
As a permanent Visa holder, Mr Atkins may reapply for citizenship in the future when he satisfies the general residence requirement in the Act.
The decision under review is affirmed.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.................................[Sgd].......................................
Associate
Dated: 8 September 2017
Date of hearing: 15 August 2017 Advocate for the Applicant: Ms Rosemary Acutt Solicitors for the Applicant: Queensland Migration Practice Solicitors for the Respondent Ms Phoebe Richards
Clayton Utz:
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