Baijens and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 350

Baijens and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 350 (21 March 2017)

Division:  GENERAL DIVISION

File Number:  2015/4215

Re:  CORNELIS BAIJENS

APPLICANT

And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION

RESPONDENT

DECISION

Tribunal:  Deputy President S A Forgie

Date:  21 March 2017

Place:  Melbourne

The Tribunal decides:

to affirm the decision of the respondent dated 3 August 2015.

[sgd]…………………….

Deputy President

CITIZENSHIP  –  acquisition of Australian citizenship by application – citizenship by conferral - refusal of approval given to a person becoming an Australian citizen – whether person meets the general residence requirement under s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) – decision affirmed.

CITIZENSHIP – general residence requirement – ameliorating provision – not in Australia for the period of 12 months immediately before made application for citizenship – whether ameliorating provisions of s 22(9) apply only to periods of absence in 12 month requirement of 22(4)(c) or to periods of absence in both the four year requirement of s 22(4)(a) and the 12 month requirement of s 24(1)(c) – apply only to s 24(1)(c).
CITIZENSHIP – general residence requirement – ameliorating provision – applicant’s close and continuing association with Australia during period of absence in 12 month period – concerned only with association in periods of absence in 12 month period.

PRACTICE AND PROCEDURE – reference to extrinsic material – provision amended during course of debate on Bill - extrinsic material not clear – provision clear on its face - not an appropriate occasion on which to have regard to extrinsic material.

LEGISLATION

Acts Interpretation Act 1901; ss 13(2)(b), 15AB

Administrative Appeals Tribunal Act 1975; ss 19A, 19D(2)(b), 37

Australian Citizenship Act 2007; ss 21(4)(e), 22(1)(c), 22(1A), s 24(1), 22(9), 24(5)

CASES

Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368, (1984) 56 ALR 265
Bretag v Immigration Review Tribunal [1991] FCA 582
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, (1979) 24 ALR 577, (1979) 46 FLR 409
Kumar v Minister for Immigration and Border Protection (2015) 231 FCR 308
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, (1986) 66 ALR 299, (1986) 60 ALJR 560, [1986] HCA 40
Minister for Immigration and Border Protection v Tran (2015) 232 FCR 540, (2015) 150 ALD 446
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Re Taher and Minister for Immigration and Border Protection [2013] AATA 917
Re Sapronov and Minister for Immigration and Citizenship (2011) 120 ALD 362
R v Deputy Industrial Injuries Commissioner; Ex part Moore [1965] 1 QB 456
Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87, (1991) 26 ALD 203
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, (1992) 28 ALD 50; (1992) 111 ALR 1; (1992) 16 AAR 566

SECONDARY MATERIALS

Australian Citizenship Instructions (issued on 1 July 2014)

Second Reading Speech delivered by Minister for Citizenship and Multicultural Affairs for Australian Citizenship Bill 2005 on 9 November 2005

Explanatory Memorandum to Australian Citizenship Bill 2005

Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005

Revised Explanatory Memorandum to the Australian Citizenship Bill 2005

REASONS FOR DECISION

1. This is an application for review of the decision of a delegate of the Minister for Immigration and Border Protection (Minister) made on 3 August 2015 to refuse Mr Cornelis Baijens’ application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”).  Mr Baijens made his application on 20 February 2015.  The Minister refused on the basis that the applicant did not meet the general residence requirement in s 22(1)(c) of the Act as qualified by s 22(1A).  He declined to exercise his discretion under s 22(9) to treat Mr Baijens’ periods of absence as periods in which he was present in Australia in order to meet that general residence requirement.  An issue also arises under s 21(4)(e) as to whether Mr Baijens is likely to reside in Australia if his application for citizenship were approved.  Apart from the two issues relating to Mr Baijens’ eligibility to become an Australian citizen, the Minister also decided that he was prohibited from approving Mr Baijens’ application under s 24(5) of the Act.  He did so on the basis that Mr Baijens was not present in Australia at the time that he made his decision and as he had declined to exercise his discretion under s 22(9). 

1. The matter was heard by another member of the Tribunal but, relying on 19D(2)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the President of the Tribunal has made a further direction under s 19A of that legislation and dated 9 March 2017 directing me to constitute the Tribunal for the purposes of Mr Baijens’ application.  Under that reconstitution, I am required by s 19D(4) to:

   “… continue the proceeding.  For this purpose, … [I] may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).”

   Consistently with my obligation, I have had regard to the transcript of the hearing of Mr Baijens’ application, the exhibits and the submissions made by both parties. 

   I have decided to affirm the decision not to approve Mr Baijens’ application to become an Australian citizen.

   BACKGROUND

1. Many of the facts forming the background to the resolution of the issues in this case are not contested between the parties.  In view of that and on the basis of the material admitted as exhibits in this case and on the oral evidence, I have set out in this section of the reasons the findings of fact that I have made on those matters.

1. I find that Mr Baijens was born in Holland in 1943.  He completed an apprenticeship as a tool maker.  He and his first wife married in 1967.  In 1969, they decided to take advantage of the offer then made by the Australian Government to young skilled people to migrate to Australia.  All of their expenses were paid for them.  Mr Baijens and his wife migrated with their first born, Ferdinand Baijens, and left Holland leaving no assets behind as it was their intention to make Australia their home.   He remains a Dutch citizen but has an Australian permanent resident visa and a subclass 155 Resident return visa.

1. Mr Baijens found employment as a tool maker with the firm of Griffiths and Beerens within two days of his arrival in Australia.  Subsequently, he secured further part-time employment with another employer and then another.  I accept that, from the beginning and in order to support his family, Mr Baijens worked long hours in three jobs.

1. Mr and Mrs Baijens’ second child, Brenda Baijens, was born in 1970.  When their daughter was approximately seven months old, Mrs Baijens left her family permanently.  Mr Baijens became the sole carer of his two young children.  He had an arrangement with his employer allowing him to take his daughter into work with him.  That arrangement continued until his daughter was old enough to attend school.

1. Between 1972 and 1975 Mr Baijens worked for a firm, operating machinery with which he had become acquainted through his employment with Griffiths and Beerens.  The business primarily manufactured special tooling for clients throughout Australia.  Mr Baijens ran the business when its owner travelled overseas.  On his return from overseas, the owner had decided to sell the business.  Mr Baijens agreed to purchase it and changed its name to “Brand Engineering Toolmaking Vic Pty Ltd” (Brand Engineering).  I accept his uncontradicted evidence that, through his endeavours, the business became very successful and he employed at least three full-time workers.  Over time, the business expanded and gained several large clients across Australia.  Some of these clients included Vinidex Tubemakers, James Hardie Iplex, Palmer Tubemakers, BTM Tubemakers, BGJ Steel, Atlas Steel, Viplas Plastics Extrutions, Steelcraft, Fallshaw, Purple Pig, Sallman Engineering and Thor Plastics.

1. Mr Baijens successfully expanded Brand Engineering until he employed, on average, three people at a time.  He was able to rely on the business as his sole source of income.  He purchased a house in Avondale Heights and lived there with his two children for approximately four or five years.  In 1981 Mr Baijens purchased ten acres of rural land at Gisborne in Victoria.  He built a house on the property, fenced the land and it became the family home.  His children grew up on the Gisborne property where there was ample room for them to have horses and ride motorbikes.  Ferdinand became an Australian motorcycle racing champion and spent ten to fifteen years in Europe as a professional in the sport.  Later, Mr Baijens acquired a further property at Bacchus Marsh and he owned the factory and land on which he carried out his business in Sunshine. 

1. On the basis of his evidence in cross-examination, I find that Mr Baijens had a share in a business based in Singapore between 1990 and 2002.  During that time, he travelled frequently between Australia and Singapore.  That travel was for the purpose of the business in Singapore.

1. In 1992 while he was on holiday in Malaysia, Mr Baijens and the woman who was to become his second wife, Ms Corazon Valeroso, were introduced to each other by a mutual friend.  Their relationship developed and Mr Baijens described them as becoming a de facto couple.  In 1994, Mr Baijens made an application to sponsor Ms Valeroso’s application for a visa permitting her and her daughter, Estella, to enter and remain in Australia.  Ms Corazon’s application was approved and she and her daughter migrated to Australia.  They arrived in Australia in 1994.[1]  

   [1] Mr Baijen’s Statutory Declaration: T documents; T2 at [17] and Ms Bayerns’ statement: Exhibit A1 at [2] and see transcript at 24

1. On their arrival, Ms Valeroso and her daughter resided with Mr Baijens and his children, Ferdinand and Brenda, at the Gisborne property.  Ms Valeroso took care of the house and of their family while he ran his business.  Mr Baijens regarded Estella as his step daughter.  He would pick her up after school when his work allowed him to do so, he taught her to ride a bicycle, played badminton and table tennis with her and listened to her practising the piano.  The family would spend time together at the weekend and would take frequent day trips around Victoria.  Ms Valeroso was granted Australian citizenship in January 2000.  All three of Mr Baijens’ children have made their own ways in life.  Each is an Australian citizen, each has tertiary qualifications, each has married and each is settled in Australia.

1. By 2000, Mr Baijens had been operating his business for some 25 years and working seven days a week.  At the time, he had some health issues.  Consequently, he and his wife decided that he should have a break from work.  They decided to sell the business and to retire.  In 2006, he and Ms Valeroso, who had continued to live and travel together as a married couple since before she arrived in Australia, were married. 

1. In or about 2000, Mr Baijens and his wife began travelling to Thailand.  On the basis of the Movement Details maintained by the Department of Immigration and Border Protection (DIBP), I find that Mr Baijens left Australia on 40 occasions between 14 December 1990 and 3 October 2002 and returned after various lengths of time ranging between a few days and two or three weeks.  Mr Baijens agreed that, by 2002 at the latest, he had retired from his business and from work.  I find that, on 25 November 2002, he left Australia and did not return until 21 May 2003.  He left Australia again on 30 May 2003 and did not return until 27 November 2003.  On 2 December 2003, he left again and returned on 22 February 2004.  Thereafter, Mr Baijens’ absences from Australia became quite lengthy and his periods in Australia quite short.  When he left on 7 March 2004, he did not return until 1 October 2006.  He remained in Australia until 4 November 2006 when he left and did not return to Australia until 19 September 2007.  The pattern of Mr Baijens’ travel and periods of absences from Australia and periods in Australia have remained broadly consistent until the most recent departure date shown on the Movement Details prepared on 16 November 2016.  That departure date was 2 December 2014. 

1. On the basis of the Movement Details recorded by DIBP, I find that he has spent only short periods of time in Australia since 2002.  In the four year period before he made his application for Australian citizenship, I find that Mr Baijens made three return trips to Australia between the following dates:

   (1)13 days from 29 November 2011 to 11 December 2011;

   (2)12 days from 14 November 2013 to 25 November 2013; and

   (3)18 days from 15 November 2014 to 2 February 2014.

1. Mr Baijens initially said that reasons for living in Thailand for extended periods came about because of the advice of his doctor.  It was better for his knees if he were to live in a warm climate.  Before he moved to Thailand, he had great difficulty in walking.  Mr Baijens denied that the cost of living in Thailand was cheaper than in Australia as was rent on the apartment in which they lived.  He was able to live comfortably on his superannuation income in Thailand.  He pays for their utilities and he owns and insures a car in Thailand.

1. Initially, Mr Baijens and his wife retained the Gisborne property while they travelled back and forth between the two countries.  As the periods of time that they spent in Thailand became longer each time, they decided to sell the Gisborne property and to remain in Thailand on a more regular basis.  By then, that property had become too large for them to manage.  The children had left home and Ferdinand no longer required it for his motorcycle.  Estella, who was studying at the time, stayed with friends.  The property was too much for Mr Baijens and Ms Valeroso Baijens to look after and they worried about bushfires.  When they sold the property, they stored some of their household goods, such as a bed and their computers, with Estella in her house where a room is set aside for their use.  Mr Baijens also left some tools behind with Brenda’s husband. 

1. I find that, since he lodged his application, Mr Baijens returned to Australia for Estella’s wedding in November 2015.  He “gave her away” at her wedding and, at her request, had previously advised her and her partner regarding their purchase of real estate.  He had also helped them financially.  Her father and mother stay with her when they travel to Australia. 

1. On the basis of the statements of Ferdinand and Estella, I find that Mr Baijens is in constant contact with all three of his children in Australia as well as with his grandchildren.

1. Mr Baijens and Ms Valeroso Baijens are permitted to live in Thailand on visitors’ visas, which must be renewed annually.  In addition, they must report their whereabouts to Thai authorities.  They rent an apartment in Thailand but do not own any real estate.

1. I accept that Mr Baijens has never wished to return to Holland to live.  He has returned on occasion for family reasons but, having spent the last 48 years or so away from Holland, feels that he has now lost the ability to speak Dutch.  Throughout his life, his assets have been acquired in Australia and he has provided for his retirement through contributions to a superannuation fund.  He has provided for himself and his family through his own work and, at no time has he had to seek income support maintenance through the social security system.  Mr Baijens pays for his own medical expenses. 

1. As at the date of the hearing, Mr Baijens had sold all of his real estate in Australia.  I accept his evidence that he has investments and monies in Australia and that all of his investments and monies are held in Australia.  They form his retirement income.

1. On the basis of his evidence, I find that Mr Baijens does not plan to remain in Thailand permanently.  At the time he gave oral evidence, he did not know exactly how long he and his wife would remain there.  His wife would like to return to Australia immediately if the decision were up to her.  At the time, however, he did not know where they wanted to go.  Maybe they would return to Victoria or maybe they would move to another part of Australia.  They were thinking about the matter at the time of the hearing.  At the time of the hearing, he had not owned or rented any real estate in Australia since approximately 2000.  It was “most likely” his intention to purchase real estate in Australia.  He could capitalise part of his superannuation fund and he thought that he would still have enough money to fund his retirement.[2] 

[2] Transcript at 36

1. I also find that, at the date of the hearing and in the years preceding it, Mr Baijens was in regular and almost daily contact with his children either by email or a telephone.  He and his wife call the children or the children call them.  Estella and her husband and Ferdinand and his wife have visited them in Thailand.  I accept that Mr Baijens believes that he and his wife visit their children “… about once a year or something like that”.[3]  They stay for about a fortnight and use the room set aside for them in Estella’s house.  Mr Baijens had not maintained any memberships of Australian organisations or clubs.

   [3] Transcript at 28

1. Although occurring after the date of the hearing, I note that a Contract for the Sale of House and Land dated 2 September 2016 (Contract of Sale) shows Mr and Mrs Baijens as agreeing to purchase a property in Queensland.  Their Migration Agent, Mr Sutherland, advised separately that settlement had occurred on 30 September 2016.  An invoice dated 3 September 2016 shows that Mr Baijens paid a $2,000 deposit on a motor vehicle.  No date for the payment of the balance of $28,300 was shown on the invoice.  An undated Driver Licence Surrender Receipt issued by Queensland’s Department of Main Roads shows Mr Baijens’ address as the address of the property in the Contract of Sale.

LEGISLATIVE BACKGROUND

Australian Citizenship Act 2007

1. Division 2 of Part 2 of the Act provides for the acquisition of Australian citizenship by application.  A person may make an application to the Minister to become an Australian citizen.[4]   As Mr Baijens was over the age of 60 years when he made his application, his eligibility to become an Australian citizen is determined under s 21(4).  That section sets out the criteria that he was required to meet.  Of relevance in this case is the requirement that he satisfy either the general residence requirement set out in s 22 or the special residence requirement set out in ss 22A or 22B at the time that he made his application.[5]   He made his application on 21 November 2014. 

   [4] Act; s 21(1)

   [5] Act; s 21(4)(d).  The special residence requirements set out in ss 22A and 22B do not apply to Mr Baijens’ circumstances and nor does the defence service requirement in s 23

A.        The general residence requirement

1. Section 22(1) provides:

   “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.”

1. The operation of s 22(1) is ameliorated by ss 22(1A) and (1B) when they provide that:

   “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 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.”

1. Mr Baijens concedes that he does not meet the general residence requirement as set out in s 21(1A ) or the ameliorated requirements set out in s 22(1B).  The Minister, however, is given a discretion by s 22(9) to treat certain periods as periods within which he was in Australia as a permanent resident even though he was not.  In so far as it applies to Mr Baijens’ circumstances, s 22(9) provides:

   “If the person is the spouse … 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 … 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.”

B.       The special residence requirement

1. Sections 22A and 22B set out special residence requirements referred to in s 21(4).  They are not relevant in this case.

The Australian Citizenship Instructions

1. The Minister has issued a document known as the “Australian Citizenship Instructions” (ACIs).  The ACIs are intended to provide guidance on the interpretation and administration of the Act and of the regulations made under it.  They are in the nature of policy guidelines and are not legislative instruments.  At the time that Mr Baijens lodged his application on 20 February 2015, the ACIs in operation were those made on 1 July 2014. 

1. Chapter 5 of the ACIs is concerned with Citizenship by Conferral.  Clause 5.18 addresses s 22(9) of the Act.  Of particular relevance in this case is the passage addressing the requirement in s 22(9)(d) that the person had a close and continuing association with Australia during the four year period:

   “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 visits to 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[s] 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 s 22(9)(d), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before.  Less weight should be given to these factors if they have not been present in Australia for at least this period.”

Relevant authorities

A.        The parameters of the Minister’s discretion

1. I note at the outset that the ACIs do not purport to be more than guidelines as to the way in which the Minister views the interpretation of the Act and the considerations that should be taken into account in the exercise of any discretion conferred on him.  They recognise that, as a statement of policy, they cannot supplant the provisions of the Act.  The Tribunal is not bound by the ACIs, as the law lies in the statutory text rather than in the policy.[6]   It follows that regard can only be had to the ACIs if, and to the extent that, they are consistent with the Act.

   [6] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J

1. Returning to the Act, I must consider the parameters within which the Ministerial discretion conferred by s 22(9) may be exercised.  No express parameters are drawn but that does not mean that the discretion is unfettered.  They must be drawn by reference to the subject matter of the Act as well as from its object and underlying policy.[7]   The Act gives expression to Australia’s policy regarding those who should be permitted to become its citizens.  It prescribes various criteria, most of which are expressed in absolute terms although there may be some latitude in deciding whether an applicant for citizenship meets them in his or her particular circumstances.  The residence requirements are also expressed in absolute terms.  By requiring a minimum period of residence that meets certain criteria and requiring that period of residence to immediately precede the date on which a person makes an application for Australian citizenship shows that citizenship is intended for those who have a present commitment to Australia demonstrated by their history of residence over the four years immediately before they made their applications.  That this is the policy behind the residency requirements is confirmed when regard is had to the ameliorating provisions of the residency requirements found in s 22(9). 

   [7] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272-272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309; 565 per Mason J with whom Gibbs CJ and Dawson J agreed

1. This was the approach taken by Edmonds J in Kumar v Minister for Immigration and Border Protection[8] (Kumar):

   “… [I]f the discretion reposed in the Minister by s 22(9) of the Act is enlivened by an applicant because he or she meets the requirements in (a) to (d) inclusive, the word ‘may’ permits the Minister to consider any matters, either in favour 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’, to use the words of Dixon J in [Water Conservation and Irrigation Commission (NSW) v] Browning [(1947) 74 CLR 492 at 505] …

   My view of the width of the discretion finds support in ‘the subject matter and the scope and purpose of the statutory enactments’, to use the words of Dixon J again, that are s 22 of the Act.  Accepting for the moment that s 22(9) provides the Minister with a discretion to overcome the failure by a person to meet the presence in Australia requirement of four years in s 22(1)9a), as well as the presence in Australia requirement of 12 months as a permanent resident in s 22(1)(c), there is potentially a very wide range of circumstances that might come before the Minister, both as to the extent of the failure to meet the presence requirements of s 22(1)(a) and (c), and the reason or reasons for those failures. …”[9]

   [8] [2015] FCA 446; (2015) 231 FCR 308

   [9] [2015] FCA 446; (2015) 231 FCR 308 at [23]-[24]; 313

1. The exercise of the discretion is not dependent upon any reason that might be described as “compelling” or “compassionate”.  The reason must be “sufficient”.[10]  It must be sufficient when viewed in the context of the Act and its scope and purpose generally as well as the particular scope and purpose of the discretion conferred by a particular provision within the Act.  Mr Sutherland questioned what he regards as the Minister’s silence in the ACIs regarding the way in which the discretion conferred by s 22(9)(d) is to be exercised.  I do not agree that the question is raised.  Clause 5.18 of the ACIs sets out a number of factors that may demonstrate a person’s close and continuing association with Australia but does not presume to limit them.  Given that there are number of circumstances and variations of circumstances in which people find themselves, it is difficult to think that a finite list could be compiled.  The list of factors is indicative only and the factors that are listed, together with any other relevant factors are to be considered in light of the scope and purpose of the Act.  A general statement of the scope and purpose of the Act is found in its Preamble:[11]

   “The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

   The Parliament recognises that persons conferred Australian citizenship enjoy those rights and undertake to accept these obligations:

   (a)       by pledging loyalty to Australia and its people; and

   (b)       by sharing their democratic beliefs; and

   (c)       by respecting their rights and liberties; and

   (d)       by upholding and obeying the laws of Australia.”

   [10] [2015] FCA 446; (2015) 231 FCR 308 at [26]; 313-314

   [11] The Preamble forms part of the Act: Acts Interpretation Act 1901; s 13(2)(b)

1. The way in which various factors and considerations are weighed against the scope and purpose of the Act is illustrated in the case of Minister for Immigration and Border Protection v Tran[12] (Tran).  In that case, Jagot J agreed with the principles identified by Edmonds J in Kumar.[13]  Her Honour went on to consider a submission made on behalf of the Minister to the effect that the Tribunal was precluded from considering an applicant’s contact with his or her extended family or from considering assets held jointly with his or her spouse.  These were described by the Minister as “natural concomitants” of being married to an Australian citizen so that something more was required to establish a close and continuing relationship with Australia.   Jagot J rejected that description and also rejected any distinction between so-called natural concomitants of marriage to an Australian citizen and matters falling outside that description but equally relevant in determining whether the applicant for citizenship has a close and continuing relationship with Australia.  The Tribunal would not have erred, Jagot J decided, had it taken into account the nature and extent of Ms Tran’s connections to Australia through her relationship with her extended family and her joint ownership of eight properties.[14]  She also rejected Ms Tran’s submission that the relevant length of time during which an applicant has been within and outside Australia in the relevant four year period is an irrelevant consideration.  Nothing in the statutory scheme would support that, Jagot J said.[15]

   [12] [2015] FCA 546; (2015) 232 FCR 540

   [13] [2015] FCA 546; (2015) 232 FCR 540 at [8]-[9]; 543

   [14] [2015] FCA 546; (2015) 232 FCR 540 at [18]-[22]; 546-547

   [15] [2015] FCA 546; (2015) 232 FCR 540 at [29]; 549

1. In the earlier case of Re Taher and Minister for Immigration and Border Protection[16] (Taher), Senior Member Fice had explored the significance of the residency requirement and the relevance of a person’s physical presence in Australia in considering the discretion under s 22(9).  He said in Taher:

   [16] [2013] AATA 917

   “11. While the Citizenship Act does not set out the basis for why residency might be so important, it clearly has to do with an applicant’s association with Australia. In fact, the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 says this about the residency requirements:

   The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.

   In addition, it is important to note that Australian citizenship is a privilege not a right.

   The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.

   12.      In case there is any doubt about the fact that the reference to being present in Australia for the period of 4 years and also the period of 12 months as a permanent resident before making an application (s. 22(1)) requires physical presence in Australia, the Revised Explanatory Memorandum states:

   These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made.

   13.      The Preamble to the Citizenship Act also underscores the importance of community involvement. It provides:

   The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

   14.      Accordingly, in my opinion, any dispensation from the residency requirements is not something which is granted lightly.  Significant periods of physical presence in Australia are important.”

1. Mr Sutherland relied on the case of Re Sapronov and Minister for Immigration and Citizenship[17] (Sapronov) noting that Mr Baijens had accompanied his spouse, who is an Australian citizen, overseas.  He relied on the passage from the Explanatory Memorandum to the Australian Citizenship Bill when it referred to the current policy that adult applicants for Australian citizenship should qualify for it in their own right rather than, as had previously been the case, being permitted to rely on a spousal relationship with an Australian citizen.  Amelioration of that requirement was provided for in s 22(9), though, because it was recognised that:

   “… in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations).  As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.”[18]

   [17] [2011] AATA 126; (2011) 120 ALD 362

   [18] Explanatory Memorandum; cl 22 reproduced at [2011] AATA 126; (2011) 120 ALD 362 at [28]; 369

1. Mr Sutherland submitted that Mr Baijens fits within the example provided in the Explanatory Memorandum as he was accompanying his Australian spouse overseas.  While Mr Baijens is in that position he does not come within the precise example in that his spouse is not working overseas and he has not accompanied her because she is working overseas.  Having said that, exercise of the discretion under s 22(9) is not about matching a person’s circumstances with those described in an example given in the Explanatory Memorandum.  The example is indicative only and the discretion must be exercised in a way that is consistent with the express terms of the Act and with the scope and purpose of the Act and the reason for Parliament’s conferring a discretion upon the Minister.  As Senior Member Fice said in Sapronov:

   “          In my opinion, the Explanatory Memorandum in fact confirms that one should not read into the text of s 22(9) of the Act, anything further than is stated in that provision.  Its purpose is to require spouses to meet the residency and close and continuing association with Australia requirements during the period they are absent from Australia subject to some relaxation of the residence requirement where they meet the criteria set out in s 22(9)(a) – (d); and where the Minister forms the view that the discretion should be exercised in that person’s favour.”[19]

   [19] [2011] AATA 126; (2011) 120 ALD 362 at [31]; 369-370

B.       The time at which the discretion may be considered

1. It is clear from s 21(4)(d) of the Act that Mr Baijens must satisfy the residence requirement at the time that he made his application for citizenship i.e. 20 February 2015.  All but one of the requirements of s 21(4) must be met either at that time or at a different but specified time.[20]  The same is true of the requirement in s 21(4)(d) to meet, among others, the general residence requirement. 

   [20] The requirements of ss 21(4)(a), (b)(i) and (c) must also be met at the time the application is made.  Those in ss 21(4)(b)(ii) and (f) must be met at the time that the Minister makes a decision.

1. The only exception in this pattern of requiring compliance at a particular time is found in s 21(4)(e).  All that is required under that provision is that he is likely to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved.  In view of the specificity regarding the time at which Mr Baijens must comply with other provisions of s 21(4) and of s 22(9) and in view of its being a requirement based on an assessment of his likely future action, it seems to me that the time at which he is required to meet the requirements of s 21(4)(e) is the time at which a decision is made on his application.  That is so whether the decision is made in the first instance by a delegate of the Minister or on review by the Tribunal.

C.The period in relation to which the discretion may be exercised under s 22(1)(9)

C.1Section 2(1)(9) ameliorates operation of s 22(1)(c) and not of s 22(1)(a)

1. Section 22(1)(9) provides for the circumstances in which the Minister may treat “… a period as one in which the person was present in Australia as a permanent resident …” (emphasis added) when the person was not in Australia during that period.  Although no reference is made to the 12 month period referred to in s 22(1)(c), the wording of s 22(1)(9) is consistent with that of s 22(1)(c) of the general residence requirement i.e. that 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” (emphasis added).  It is also consistent with the wording of s 22(1B) which, like s 22(9), ameliorates the strict requirements of s 22(1)(c).  Section 22(1B) provides that a person is taken to have been “present in Australia as a permanent resident” for each period of absence in the 12 month period immediately before he or she lodged an application for citizenship if, among other matters, his or her total period of absence was no greater than 90 days.

1. The wording of s 22(1)(9) is not consistent with the wording of the criterion specified in s 22(1)(a) i.e. that the “person was present in Australia for the period of 4 years immediately before the day the person made the application” (emphasis added).    The criterion specified in s 22(1)(a) is ameliorated by provisions such as s 22(1A) which specifically refers to s 22(1)(a).  Section 22(1A) provides:

   “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.”

1. This seems to me to be the ordinary meaning conveyed by the words used in the Act but, relying on s 15AB(1)(a) of the Acts Interpretation Act 1901 (AI Act), I have had regard to the Explanatory Memorandum (EM).  That is not the EM accompanying the Australian Citizenship Bill 2005 when it was introduced for s 22(9) was the subject of some amendment following its consideration by the Senate Standing Legal and Constitutional Legislation Committee (Senate Committee) and report dated 27 February 2006, the House of Representatives Standing Committee on Family and Human Services and the government’s policy changes.  That led to amendment of the general residence requirement and amendment of s 22(9).  I will broadly outline those amendments as they impact upon the interpretation of ss 22(1) and (9).

1. When the original EM was circulated in 2005, the general residence requirement was set out in cl 22 as it continued to be in the 2007 version of the AC Bill when it was passed and became the Act.  In its original form, cl 22(1) provided:

   “For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

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

   (b)a total period of at least 3 years in the period of 5 years before that day.”

1. Clause 22(9) at the time read:

   “If the person is the spouse, widow or widower 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 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.”

1. When the context is known, the references in the Second Reading Speech delivered by the then Minister for Citizenship and Multicultural Affairs, Mr John Cobb, on 9 November 2005 on the AC Bill are better understood when he said:

   “          We do not propose extensive changes to the eligibility criteria for the conferral of Australian citizenship.  There is no change to the current provisions which require a basic knowledge of the English language, an adequate knowledge of the responsibilities and privileges of citizenship, that the applicant is likely to reside in or maintain a close relationship with Australia, and, most importantly, be of good character. 

   However, as announced in July 2004, spouses of Australian citizens will need to meet the same requirements as other applicants.  And, as announced by the Prime Minister on 8 September, the residential qualifying period of not less than two years in Australia in the previous five years is being extended to three years.  There will be no change to the requirement to have spent one year in Australia in the two years immediately prior to making the application.

   The increase in the residential qualifying period will allow more time for new arrivals to become familiar with the Australian way of life and the values to which they will need to commit as citizens.  It will also strengthen the integrity of the citizenship process by giving more time for the identification of people who may represent a risk to Australia’s security.

   The residence exemptions are being strengthened and made more equitable.

   One of the existing provisions allows for the possibility that a person could spend just one day in Australia as a permanent resident and then be eligible for citizenship two years later, provided they can demonstrate that their time spent overseas was of some benefit to Australia.

   On the other hand, a person who has been here on temporary visas for several years before being granted permanent residence cannot have that time recognised unless they would suffer significant hardship or disadvantage if not conferred citizenship.  During those periods prior to the grant of permanent residence, people live and work in our community and develop a close connection with Australia and understanding of our way of life.  It would be unreasonable not to be able to count some of that time for the purposes of the citizenship residential qualifying period.

   In the future, up to two years spent outside Australia as a permanent resident or in Australia as a temporary resident may be treated as time spent in Australia as a permanent resident, provided the person has been involved in activities beneficial to Australia.  These applicants will therefore need to have spent a minimum of 12 months in Australia as a permanent resident.

   There will be only two circumstances in which a person will be exempt from the requirement to spend at least 12 months as a permanent resident.

   The first circumstance involves the spouse of an Australian citizen.  Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas—for example, in association with their spouse’s employment.  The definition of ‘spouse’ for the purpose of this provision will include a de facto spouse.

   The second situation already exists in the legislation and allows for periods of lawful temporary stay in Australia to be treated as permanent residence where a person would suffer significant hardship or disadvantage if not allowed to become a citizen.”

1. Senior Member Fice quoted part of this passage in Sapronov and the amendments subsequently made to ss 22(1) and (9) were of no consequence for the point he was deciding.  He was concerned with whether Parliament had intended that the citizenship applicant’s spouse had to be an Australian citizen not only at the time the application for citizenship was made but also throughout the entirety of the period of the applicant’s absence from Australia.  The changes are of consequence for the point that I am deciding.

1. In 2005, it was clear that the AC Bill intended that the ameliorating provisions of s 22(9) would apply to each of the three criterion specified in s 22(1).  Clause 22(1) provided that “For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for …” the two periods of time that it then specified.  The ameliorating provisions of s 22(9) clearly applied to both those periods of time for it provided for the circumstances in which the Minister might “treat a period as one in which the person was present in Australia as a permanent resident …” i.e. it ameliorated the requirements of having to be present in Australia as a permanent resident for a total period of at least 1 year in the period of 2 years before the day the person made the application and a total period of at least 3 years in the period of 5 years before that day. 

1. After it was amended and became the AC Bill 2007, s 22(1) appeared in its current form.  In that form, presence in Australia for the period of four years before lodgement of an application for citizenship is all that is required to satisfy s 22(1)(a).  There is no requirement that the person be a permanent resident although, in order to satisfy s 22(1)(b), the person would not have been an unlawful non-citizen at any time during that four year period.  The criterion in s 22(1)(c) requires presence as a “permanent resident” for a 12 month period immediately before the day the application is made.  That would seem to be the criterion to which s 22(9) was addressed and intended to ameliorate.  It would not seem to have been intended to ameliorate s 22(1)(a).

1. When these amendments were circulated by the then Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, the Hon Andrew Robb AO MP, the distinction between the provisions of ss 22(1)(a) and (c) see clear.  The relevant passage in the Supplementary Explanatory Memorandum reads:

   “These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made.  However subclause 21(1A) allows the person to have spent up to 12 months outside Australia during this 4 year period. The person may have been lawfully present in Australia as the holder of any kind of visa during this 4 year period, but cannot have been an unlawful non-citizen for any of this time.

   In addition, the person must have been physically present in Australia as a permanent resident (defined in clause 5 of the Bill) for the entire 12 month period immediately before making the application. However subclause 21(1B) allows the person to have spent up to 3 months outside Australia during this period, provided the person was a permanent resident while overseas.”[21]

   [21] Supplementary Explanatory Memorandum; Amendments to be Moved on Behalf of the Government

1. The passage regarding s 22(9) states that it:

   “… allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia.  The person must have been a permanent resident and the spouse of an Australian citizen during the time overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the time overseas.”

There is nothing in that statement that runs to the clear words of s 22(9).

1. The Revised Explanatory Memorandum circulated by authority of the Minister for Immigration and Multicultural Affairs, Senator the Honourable Amanda Vanstone took into account the amendments that had been made by the House of Representatives to the AC Bill as introduced.  The relevant passage dealing with cl 22(1) sets out its criteria and then turns to the ameliorating provisions in ss 22(1A) and (1B).  It deals with those provisions in this way:

   “Subclause (1A) allows applicants to spend up to a total of 12 months outside Australia (either as one period of 12 months, or several periods totalling 12 months) during the 4 years immediately before making their application.  The person will be taken to have been present in Australia for that time.  The person may have been lawfully present in Australia as the holder of any kind of visa during this 4 year period, but cannot have been an unlawful non-citizen for any of this time.

   …

   Subclause (1B) allows applicants to spend up to 3 months outside Australia (either as one period of 3 months, or several periods totalling 3 months) during the 12 months immediately before making their application provided they are permanent residents at the time. The person must have held a permanent visa during that time overseas.  Subclause (1B) provides that the person is taken to have been present in Australia as a permanent resident for each period of absence.

   If a person has been an unlawful non-citizen at any time, that person will need to spend 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the residence requirement for citizenship.”

1. That passage clearly separates the application of s 22(1A) to the four year period when all that is at stake is presence in Australia for the requisite time and presence that is lawful and s 22(1B) that is clearly concerned with the 12 month period.  The first is the subject of s 22(1)(a) and the latter is the subject of s 22(1)(c).  Even though that is clear, the next paragraph confuses the two concepts:

   Subclauses (1A) and (1B) reduce the complexity of the residential discretions in the Australian Citizenship Act 1948, in which certain periods of time can be treated as periods of permanent residence in Australia.” (emphasis added)

That paragraph would seem at odds with the passages preceding it.

1. When reference is made to cl 22(9), the Revised Explanatory Memorandum contains a passage similar to that in the earlier Supplementary Explanatory Memorandum set out at [52] above. It then states:

   “This makes clear that periods spent overseas by a spouse that may be counted towards time spent in Australia for the purposes of the residence requirement, must be met as a permanent resident of Australia.”

1. I would question that statement for it runs counter to the clear requirement of cl 22(4)(a) at that time but I will not consider it further.  What I have concluded is that this is not a case in which I should have regard to the extrinsic material.  It does not confirm what seems to be the ordinary meaning conveyed by the text of s 22(9).  The provision is not to my mind ambiguous and I think it would be improper to import into it ambiguities arising from the Explanatory Memoranda.  It would run counter to the desirability of persons being able to rely on the ordinary meaning of conveyed by the text of s 22(9) when read with s 22(1).  This is not a situation in which s 15AB of the AI Act is appropriate to rely upon.

C.2     The scope of s 22(9)

1. The period or periods for which the criteria specified in s 22(9) must be met do not necessarily extend across the whole of the 12 month period immediately preceding the day on which he made his application.  Those criteria must be met only in relation to that period or to those periods in that 12 month period during which in which an applicant for citizenship was not in Australia.[22]  That follows from the fact that s 22(9) deems “a period” as “one in which the person was present in Australia as a permanent resident” if the person was a spouse or de facto partner of an Australian citizen “during that period”, was a permanent resident “during that period” and the Minister is satisfied he or she had a close and continuing association with Australia “during that period” (emphasis added).

   [22] This conclusion is consistent with that reached by Senior Member Fice in Sapronov [2011] AATA 126; (2011) 120 ALD 362 at [37]; 371

D.       The evidentiary material to which regard may be had

1. I have identified the two different times at which the issues under ss 21(4)(d) and (e) must be considered because they lead to different conclusions regarding the evidentiary material to which I may have regard. 

1. In the case of s 21(4)(d), the limits on the evidence to which the Tribunal may have regard are illustrated by the judgment of Wilcox, Burchett and French JJ in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services[23] (HBF case).  The judgment of Hill J in Surinakova v Minister for Immigration and Ethnic Affairs[24] (Surinakova) also illustrates the limited way in which regard may be had to evidence of events occurring after the date in relation to which a decision must be made.

   [23] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566

   [24] [1991] FCA 596; (1991) 33 FCR 87; 26 ALD 203; Hill J

1. The HBF case illustrated the way in which evidence of matters happening after a relevant period might relate to that period.  Under the National Health Act 1953, the Minister might give directions to a registered health insurance organisation with respect to the scope and level of benefits available to contributors.  Once registered, the organisation was required to notify the Secretary of certain changes it made to its constitution, articles of association or rules.  If the Minister was of the opinion that a change might, among other matters, impose an unreasonable or inequitable condition affecting the rights of any contributors, that Minister might declare that the change had not come into operation.  Wilcox, Burchett and French JJ explained how the particular decision limited the evidence to which the Tribunal could have regard:

   “In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuing three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors.  Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position.  It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change.  The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments.  But the evidence must be related back to the date of the change.”[25]

   [25] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566 at [24]; 234; 11; 59; 575

1. The second example is found in Surinakova, in which Hill J said:

   “There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters that should have been taken into account at the time the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration.”[26]

   [26] [1991] FCA 596; (1991) 33 FCR 87; 26 ALD 203 at [19]; 94; 205

2. The principles adopted in these two cases are consistent with those applied by O’Loughlin J in Bretag v Immigration Review Tribunal[27] when he said that the Immigration Review Tribunal (IRT) had been entitled to have regard to the relationship between Ms Bretag and her husband and between her husband and his first wife after her application for a spouse visa made on 7 February 1990.  :

   “… But the evidence of the subsequent history is only relevant so long as it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 ^[[28]] at p. 160 per Deane J. …”[29]

   [27] [1991] FCA 582

   [28] [1980] FCA 85, (1980) 44 FLR 41, 31 ALR 666, 4 ALD 139; Smithers, Evatt and Deane JJ

   [29] [1991] FCA 582 at [12]

1. The principle to which O’Loughlin referred in the judgment of Deane J in Minister for Immigration and Ethnic Affairs v Pochi is equally applicable to the issue that must be resolved under s 21(4)(e) even though the time at which it is to be determined is later than that under s 21(4)(d).  His Honour had quoted from the judgment of Willmer and Diplock LJJ in R v Deputy Industrial Injuries Commissioner; Ex part Moore[30] and the whole passage is relevant to keep in mind:

   “          These technical rules of evidence, however, form no part of the rules of natural justice.  The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant.  It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.  If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue ….”[31]

   [30] [1965] 1 QB 456

   [31] [1965] 1 QB 456 at 487-488

CONSIDERATION

Section 22(1)(a) as ameliorated by section 22(1A)

1. As Mr Baijens has conceded that he does not meet the criterion specified in s 22(1)(a) as ameliorated by s 22(1A), he cannot meet the general residence requirement specified in s 22.  He cannot do so for the criteria that must be met under s 22(1) are cumulative and not expressed in the alternative.  If Mr Baijens cannot meet the criterion specified by s 22(1)(a), it is of no relevance that he could meet the criterion specified by s 22(1)(c) as ameliorated by s 22(1)(9).  As Mr Baijens cannot meet the general residence requirement, he cannot meet the eligibility requirements of s 21(4).  The consequence of that is that the decision of the delegate of the Minister refusing Mr Baijens’ application for citizenship must be refused.  As the case was not argued by either party on that basis, I have gone on to consider s 22(9).

Section 22(9)

1. There is no question on the findings that I have made that Mr Baijens has made a considerable contribution to the Australian community.  His contribution is seen in the fruits of his labours and in his employment of three other members of the Australian community while he operated his business.  He has brought up his children in Australia and they and their children are members of the Australian community.  Throughout his life in Australia, Mr Baijens retained his Dutch citizenship and did not apply for Australian citizenship.  As a permanent resident of Australia, he was quite entitled to make that choice and, provided he held a current subclass 155 Resident return visa, was entitled to come and go from Australia as he pleased.  He was no less a member of the Australian community for doing so and no less a valued member.  Had he applied for Australian citizenship at any time in this period of his life, it is difficult to think that there would have been grounds for refusing his application.

1. His circumstances, however, have changed and the general residence requirement in s 22 does not pay regard to past actions and involvement in the Australian community when prescribing the criteria to become a member of that community.  As the Preamble to the Act states, Australian citizenship brings with it a bond that unites all Australian citizens and brings with it reciprocal rights and obligations one to another.  That is not to say that those who are permitted to remain in Australia but who are not citizens are not part of the Australian community with rights and obligations.  Citizenship, however, brings with it a formal recognition both by the community and by the person of the particular values that are reflected in the Preamble and that bind them one to another.

1. One of the objective ways in which the Act assesses a person’s eligibility to become an Australian citizen is by reference to his or her period of residence in Australia both as a permanent resident and otherwise in the four years – or, perhaps, the 12 months - before he or she makes an application for citizenship.  Whichever period is relevant, I am not satisfied that Mr Baijens had a close and continuing relationship with Australia. 

1. By 2002, Mr Baijens’ physical presence in Australia was limited to short periods occurring approximately once each year in the earlier years and then less frequently.  In the 12 months before he made his application for citizenship, he spent 18 days in Australia and 43 days in the four years before that date.  His contact with members of the Australian community in Australia was limited to his contact during those visits.  He did not maintain membership of any clubs or associations.  He was not engaged in the management of his business for he had sold that in the early part of the 2000s. 

1. Mr Baijens no longer owned real property in Australia when he made his application.  Certainly, he had investments and bank accounts with financial institutions in Australia but they were liquid assets and his only assets.  Following the hearing, Mr Baijens and his wife did purchase a property in Queensland.  Mr Sutherland submitted that I could have regard to that purchase on the basis that it indicated that it tended to support the evidence given by Mr Baijens at the hearing regarding his intentions to return to Australia and his maintaining close links with it.  I could have regard to such evidence as supporting any statement Mr Baijens made as to his intentions to return to Australia or even as to his intentions to purchase property in Australia on the basis that his intentions have been demonstrated in some tangible form.  Mr Baijens, though, did not give evidence in that form.  The highest statement of his intention to purchase property in Australia was that it was “most likely” that he would do so.  Even if I were to have regard to the purchase of the property in Queensland, I note that I have no evidence as to whether Mr Baijens and his wife intend to return to Australia to live in it or not.

1. Mr Baijens’ daughters and son and their children have lived in Australia during the past four years as well as in their earlier years.  I accept that Mr Baijens and his wife are very close to the children and grandchildren and maintain contact over the telephone and over the internet regularly.  Mr Baijens’ advice is sought on a variety of matters and he gives it and he and his wife attended Estella’s wedding in Australia in November 2015.

1. As close as it is, Mr Baijens’ contact with his family does not translate in to his having a close and continuing association with the Australia during the period of his absence.  Apart from monetary investments or deposits, he has not maintained a connection with Australia or with the community in the relevant period.  His connection would seem to be with Thailand but it is not relevant to identify a country with which Mr Baijens does have a close and continuing association.  All that I need to determine is whether he has such an association with Australia and, for the reasons I have given, I find that he has not.

1. Although there is no need to consider it in view of my conclusion regarding s 22(9)(d), I am not satisfied that Mr Baijens meets the requirements of s 21(4)(e).  I am not satisfied that he is likely to reside in Australia or to maintain a close and continuing relationship with Australia if his application were to be approved.  He has yet to resume the close and continuing relationship with Australia that he previously enjoyed and his subsequent purchase of a property does not satisfy me that he had done so at the date he made his application for Australian citizenship.

DECISION

1. For the reasons I have given, I affirm the decision of the respondent dated 3 August 2015.

I certify that the seventy three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.

Signed:           [sgd]……….......................................

Associate

Date of Hearing   29 March 2016

Date final submissions received       16 May 2016

Date of Decision  21 March 2017

Applicant’s representative                  Mr Mark Sutherland
Absolute Immigration Services

Respondent’s solicitor  Mr Ned Rogers
Australian Government Solicitor