Baldry and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 558

Baldry and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 558 (3 April 2024)

Division:GENERAL DIVISION

File Number(s):      2023/7084

Re:Jennifer Baldry   

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION              

Tribunal:Deputy President Antoinette Younes

Date:3 April 2024

Place:Sydney

The Tribunal affirms the decision under review.

.....................[SGD]............................

Deputy President Antoinette Younes

CATCHWORDS

CITIZENSHIP — Refusal of application for Australian citizenship by conferral — Whether Applicant meets criteria under paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth) — Where Applicant’s spouse and children are Australian citizens — Where Applicant has spent limited time in Australia — Where Applicant has no employment or assets in Australia — Whether Applicant is likely to reside in Australia or maintain a close and continuing association with Australia — Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Procedural Instruction 11 — Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019)

REASONS FOR DECISION

Deputy President Antoinette Younes

3 April 2024

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 25 August 2023 to refuse the approval of the Applicant’s application for Australian citizenship by conferral (the delegate’s decision).

2. The delegate refused the approval on the basis that the Applicant did not satisfy the eligibility criteria for Australian citizenship by conferral because she is not likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved, as contemplated by paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (the Act).

3. On 22 September 2023, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

4. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   RELEVANT LEGISLATION

5. Paragraph 21(2)(g) of the Act provides that:

   General eligibility

   …

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

   …

   (g)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   Citizenship Policy

6. The Australian Citizenship Policy and the Citizenship Procedural Instructions provide guidance to decision-makers regarding interpretation and exercise of power under the Act. As a decision-maker, the Tribunal is required to give regard and apply policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no cogent reasons not to apply the policy.

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.

7. Relevantly, the Revised Citizenship Procedural Instruction 11 (CPI 11) provides guidance as follows:[2]

   [2] Department of Immigration and Border Protection, Citizenship Procedural Instruction 11 — Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019).

   Likely to reside or continue to reside in Australia

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

   • ‘likely’ as probably or apparently going or destined (to do, be, etc.) - in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;

   • 'reside' as to dwell permanently or for a considerable time; have one’s abode for a time - in the context of the requirements of the Act, this means the person's home in which they ordinarily live is in Australia.

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

   • be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas; or

   • reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.

   Past international movements may also indicate that a person's intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have the ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered In the light of evidence about the person's intended residence. If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.

   Likely to maintain a close and continuing association with Australia

   The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

   • 'maintain' as to keep in existence or continuance; preserve; retain;

   • 'close' as near, or near together, in space, time, or relation;

   • 'continuing' as to last or endure;

   • 'association' as the act of associating... connection or combination.

   • It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.[3]

   [3] Ex 12, 217-220.

8. CPI 11 refers to the factors that may be relevant in assessing whether an applicant is likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved, including but not limited to, rental and/or ownership of property, assets, commitments, ties etc.[4]

   [4] Ex 12, 220.

   BACKGROUND

9. The Applicant is a citizen of the United Kingdom (UK), who first arrived in Australia on 28 January 2009 as the holder of an Electronic Travel Authority (Visitor) (Class UD) (subclass 976) visa.[5]

   [5] Ex 12, 151.

10. From 2009 until 2020, the Applicant was absent from Australia during the following periods:[6]

    ·16 April 2009 to 21 December 2013;

    ·14 January 2014 to 6 October 2019; and

    ·15 January 2020 to 2 February 2020.

    [6] EX 12, 150-151.

11. On 29 September 2020, the Applicant was invited to attend a citizenship interview and test scheduled for 5 November 2020.[7] The Applicant left Australia on 4 October 2020.[8] On 16 October 2020, the Applicant rescheduled her citizenship interview and test to 4 February 2021.[9] On 4 October 2022, the Applicant advised the Department that she had missed the citizenship test scheduled for 4 February 2021 because she was outside Australia. On 29 March 2023, the Applicant was invited to attend a citizenship interview and test scheduled for 4 May 2023.[10] On 13 April 2023, she rescheduled the citizenship interview and test to 25 May 2023.[11]

    [7] Ex 12, 73.

    [8] EX 12, 150.

    [9] Ex 12, 81.

    [10] Ex 12, 87.

    [11] EX 12, 95.

12. On 23 May 2023, the Applicant arrived in Australia.[12] On 25 May 2023, she sat and passed the citizenship test.[13] On 26 May 2023, the Applicant departed Australia.[14] On 5 June 2023, she advised the Department that she would return to Australia on 9 June 2023,[15] and she arrived on 9 June 2023.[16]

    [12] EX 12, 150.

    [13] Ex 12, 17.

    [14] Ex12, 150.

    [15] Ex 12, 119.

    [16] Ex 12, 150.

13. On 17 June 2023, the Department sent the Applicant a request by email to provide evidence to demonstrate that she satisfied paragraph 21(2)(g) of the Act.[17] She provided evidence of the Australian citizenship of her husband and children. In a note dated 17 June 2013,[18] she stated:

    I have uploaded my children's and my husband's Australian citizenship certificates. All my immediate family are Australian citizens. We all intend to reside in Australia as soon as possible. I left in 2020 due to Covid separating myself from my family in England when I had very small children and my husband was away frequently with the ADF. This is no longer a problem and we intend to move back as soon as my youngest is of school age and I can work full time.

    [17] Ex 12, 128.

    [18] Ex 12, 130.

14. On 28 June 2023, the Applicant departed Australia.[19] On 25 August 2023, the delegate refused the Applicant's application for citizenship by conferral on the basis that the Applicant did not meet the criteria in paragraph 21(2)(g) of the Act.[20]

    [19] Ex 12, 150.

    [20] Ex 12, 11.

    Material before the Tribunal

15. The Tribunal has the following material before it: 

    • The Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 28 February 2024 (Exhibit 1).
    • Letters of Support, filed on 13 December 2023, from Ms Tricia Grant, Ms Laura Booth, Ms Emily Eastham, Dr Lisa Pursell, Ms Maryna Vozniuk, Mr Harvey Walters, Ms Narelle Caligari, Mr Cameron Baldry, Mr Benjamin Owen Jankalns, and Mr Christopher Booth (Exhibits 2-11).
    • T-Documents filed on 8 November 2022 (Exhibit 12).

16. In her application for review to the Tribunal, the applicant provided the following reasons[21] for seeking review of the delegate's decision:

    The application was open for 3 years. It was lodged in 2020 just before COVID-19. I was meant to do my citizenship interview and test at the beginning of 2021, however I had returned to England for a holiday at the end of 2020 and was unable to get back into Australia because of the strict rules around COVID. At the time I was pregnant. Therefore in January 2021 when my flights kept getting cancelled to get back into Australia I had the decision to go back to Australia taken out of my hands as I was "too pregnant to fly" as per airline rules. My baby was born in February 2021. The rules of COVID didn't ease and we made the decision that I couldn't come back to Australia and quarantine with my new baby and my other two children (age 1 and 4 at the time) as the pressure on me as a new mother and my young children would be two great in the strict quarantine hotels. My husband was in Australia throughout all of this in the ADF so he would not have been able to help us. We, as a family made the decision to stay in England until COVID had blown over and we were able to safely bring our children back to Australia. As my husband was in Australia throughout all of this, we made the decision that in September 2021 he came to England. (At this point he hadn’t seen us all for just under a year). All of these decisions were made because of the huge impact of COVID.

    We then decided for financial reasons we would stay in England for a few years and move back to Australia when our daughter is of school age so I am able to work. The financial implications through all of this have been absolutely huge for us.

    My husband and all 3 of our children are Australian citizens. I am a permanent resident. In March 2023 Australian immigration contacted me to say my citizenship test and interview had been booked. I spoke to home affairs numerous times on the phone and told them my situation and how I was living in England. They assured me that was fine and therefore I booked my flight and went to Australia to sit my test in May 2023. I am a breastfeeding mother and the decision to leave my children was absolutely heartbreaking and financially very difficult however I am committed to Australia and want to be able to have my citizenship like my children and husband.

    When I came back to England, 8 days after my test and interview (which I passed with 100%), I was told I needed to be in Australia for them to accept my application. Again, I spoke to home affairs numerous times and I fly back to Australia 6 days after I had received the letter. I was told I just needed to wait in the country until my application was approved. This time I took my breastfeeding child and left my other two children in England. The personal implications for this were absolutely horrendous and leaving my young children was something I have never done before this year and these two trips to Australia. I have spent just under $12,000 on these two trips this year in order to get my citizenship. This has left us as a family in an extremely difficult place financially.

    My daughter and I waited in Australia for 3 weeks and I spoke to home affairs who told me to just keep waiting on numerous occasions. After three weeks we made the decision that I had to go back to England for the sake of my other children. This was June 2023.

    On August 25th 2023 I received the letter refusing my citizenship. I believe this to be entirely unfair and unreasonable for all the reasons set out above. I am a teacher who plans to work when we move back to Australia, as soon as we are able to financially. All my immediate family members are Australian citizens. I had spoken to home affairs so many times but never was I allowed to speak to someone who could help deal with my case as it was such an unusual one because I was out of the country.

    [21] Ex 12, 8.

    HEARING

17. On 19 March 2024, the Applicant attended the hearing and gave evidence via Microsoft Teams.

    ISSUE

18. The issue before the Tribunal is whether the Applicant satisfies paragraph 21(2)(g) of the Act, namely, whether the Applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia.

    FINDINGS & REASONS

19. The Applicant contends that she is likely to reside in Australia and to maintain a close and continuing association.

20. The Applicant gave evidence that she returned to the UK for a holiday at the end of 2020 and was unable to return to Australia because of the COVID-19 rules that operated at the time. She stated that she was pregnant (baby born in February 2021) and she was unable to fly. The rules of COVID-19 remained and the family made a decision that she would not return to Australia and face quarantine with her three young children. Mr Baldry joined the family in the UK in September 2021. The Tribunal has considered the Applicant’s explanations and the Tribunal accepts that due to COVID-19 restrictions and being pregnant, the Applicant did not return to Australia for some time. 

21. The Applicant gave evidence that the family now resides in the UK but is intending to return to Australia in around 2026. She explained that Mr Baldry has the opportunity until 2026 to return to the Australian Defence Force (ADF). She indicated that for financial reasons, they decided to stay in the UK for a few years and return to Australia when their daughter is of school age and the Applicant is able to work. The Applicant explained that there have been significant financial consequences for the family. In 2021, for financial reasons and the rental market in the UK, they decided to purchase a property in the UK. When asked by the Respondent’s representative about the reasons for not returning to Australia, the Applicant stated they needed to save money. She explained they did not purchase property in Australia because as Mr Baldry was in the ADF with the potential of moving around, it was inappropriate to purchase a house. She stated that she has ongoing ties with Australia including many connections. She expressed her commitment and desire to become an Australian citizen.

22. There is before the Tribunal multiple letters of support from friends and references from the Australian Army for Mr Baldry, speaking very highly of his character, skills and expertise. The evidence from the Australia Army confirms that Mr Baldry maintains eligibility for re-enlistment in the ADF until 2026.[22]

    [22] Ex 10.

23. The Applicant currently resides in the UK with her husband and three children, all of whom were born in the UK. They live in a home which they purchased. The Tribunal notes that the Applicant married an Australian citizen in 2015[23] but has spent limited time in Australia. She spent 78 days from 28 January 2009 to 16 April 2009, 24 days from 21 December 2013 to 14 January 2014, 101 days from 6 October 2019 to 15 January 2020, 245 days from 2 February 2020 to 4 October 2020, 3 days from 23 May 2023 to 26 May 2023, and 19 days from 9 June 2023 to 28 June 2023. In total therefore, the Applicant has spent less than 18 months in Australia since her first arrival in 2009, and the longest period she resided in Australia was for approximately eight months from 2 February 2020 to 4 October 2020. She has not resided in Australia since that time.

    [23] Ex 12, 24.

24. The Tribunal refers to the Respondent’s SFIC and the contentions that this “history appears to be at odds with the applicant's contention that she returned to live in the United Kingdom in 2020 as a result of the COVID-19 pandemic…whilst the Tribunal may accept the applicant's contention that she was unable to return to Australia in 2020 or 2021 due to her pregnancy and COVID-19 travel restrictions, including difficulties associated with quarantine with her young children…it is clear that her decision to remain in the United Kingdom since that time was purely financial”.[24] There is merit in those contentions, as supported by the Applicant’s oral evidence. The Applicant has provided multiple statements from individuals who believe that the family intends to return to Australia, and the Tribunal has given some weight to that material. Although the Tribunal accepts that the Applicant intends to relocate to Australia in 2026, there have been no actual steps taken to facilitate a relocation, which also appears to be contingent on finances. The plan is to return in 2026, but that is a long time and many things could happen that could change that plan.

    [24] Ex 1, [34(b)-(c)].

25. There is evidence that whilst in Australia, the Applicant had participated in various community activities, a 'mums and bubs community group',[25] and that she and Mr Baldry were active members of the local Australian Defence Force community, establishing ‘deep societal ties and lasting relationships'.[26] However, there is no evidence of ongoing involvement with those community groups since leaving Australia.

    [25] Ex 8.

    [26] Ex 10.

26. There are letters of support indicting ongoing relationships with friends who live in Australia and are Australian citizens, demonstrating ties to Australians as opposed to ties with Australia.[27]

    [27] Paragraph 3.2, CPI 11.

27. The Tribunal is satisfied that although the Applicant has connections with Australians, the Applicant does not have assets in Australia, Mr Baldry is no longer with the ADF (although he could be re-instated until 2026), the Applicant has never been employed in Australia, and the family has re-established in the UK. The Applicant does not reside in Australia. It is also noteworthy that the Applicant's extended family reside in the UK and although Mr Baldry and the three children are Australian citizens, the Applicant confirmed during the hearing that they remain citizens of the UK as well. Mr Baldry is currently employed in the UK.

1. On the evidence, the Tribunal is satisfied that consistent with the meaning of 'likely' in CPI 11, although it is possible that the Applicant will reside in Australia in the future, it is not probable that she would do so. Relevantly, in Judd v Minister for Immigration and Border Protection,[28] the Federal Court held that while paragraph 21(2)(g) does not impose a temporal restriction, “it may be more difficult to establish that residence is likely where a long period is envisaged before the possible time at which residence will commence.”[29]

   [28] Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827.

   [29] Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827 at [10].

2. Moreover, on the evidence and for the above reasons, the Tribunal is not satisfied that the Applicant currently has, or is likely to maintain, a close and continuing association with Australia in the event that her citizenship application is approved.

3. Although there is some evidence to support the Applicant’s contentions, the Tribunal is not satisfied that the totality of the evidence demonstrates to the required level of satisfaction, that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. On the evidence, the Tribunal is satisfied that it is possible rather than probable that the Applicant would reside in Australia.

4. For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the Australian citizenship by conferral.

   DECISION

5. The Tribunal affirms the decision under review.

33.     I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................

Associate

Dated: 3 April 2024

Date of hearing(s):	19 March 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms L Butterfield, MinterEllison