Baum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Baum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 6072 (8 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1134
Re:Martin Baum
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:8 October 2020
Place:Sydney

The reviewable decision is affirmed.
.............................[sgd]...........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of application for citizenship – general residence requirements not met – whether Ministerial discretion applies – whether Applicant has a close and continuing association with Australia – whether the 365 day policy is lawful – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Judd v Minister for Immigration [2017] FCA 827
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
8 October 2020
Introduction

Mr Baum is a 45 year old German citizen. He has applied for review of the decision made on 31 January 2019 to refuse his application for Australian citizenship by conferral. He applied for citizenship on 28 March 2018. He holds a subclass 155 resident return permanent visa granted on 17 September 2018.
Mr Baum relies on the exercise of the Ministerial discretion under subsection 22(9) of the Australian Citizenship Act 2007 (Cth) (the Act) because he does not satisfy the general residence requirement in subsection 21(2)(c) of the Act. Relevantly, Mr Baum was not present in Australia for the period of 4 years immediately before the day he made the application for citizenship as required by subsection 22(1)(a) of the Act (the 4 year period), and was not present in Australia as a permanent resident for the period of 12 months (the 12 month period) immediately before the day he made the application as required by subsection 22(1)(c) of the Act.
Subsection 22(1A) of the Act allows that a person may be overseas for part of the four year period referred to in subsection 22(1)(a) but the total period of absence must not be more than 12 months. In relation to the 12 month period immediately before the day of application in subsection 22(1)(c), the total period of absence must not be more than 90 days as prescribed by subsection 22(1B).
Mr Baum does not satisfy either of those provisions. He was present in Australia for 271 days in the four years immediately before the day he applied for citizenship and 76 days as a permanent resident in the 12 months immediately before the day he applied. Cumulatively, he has been present in Australia for less than a year since he became a permanent resident on 22 February 2014.
The issues in dispute
The principle issues in dispute are:
(a)Whether Mr Baum had a close and continuing association with Australia during the period he was not present in Australia during the 4 year and one year periods, and if so,
(b)whether the discretion in subsection 22(9) should be exercised in his favour, and if so,
(c)whether Mr Baum meets the criteria in subsection 21(2)(g), that is whether he is likely to reside in Australia or will continue to reside in Australia or will maintain a close and continuing relationship with Australia if his application is approved.
(d)Whether Mr Baum’s application for citizenship should be affirmed or refused pursuant to subsection 24(1) of the Act.
Law and Policy
Subsection 22(9) of the Act provides:
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: [emphasis added]
(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.
The delegate accepted that Mr Baum satisfied subsections 22(9)(a), (b) and (c) of the Act but not subsection 22(9)(d).
The Full Federal Court considered the construction of 22(9) of the Act in Minister for Immigration and Border Protection v Han [2015] FCAFC 79 (Han). Relevantly, the Court said:
One of the obvious purposes of the Act, which is manifest in ss 21 and 22(1), is to specify the criteria which have to be met for a person to obtain Australian citizenship by conferral. Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.[1]
…
The passages emphasised above indicate that it was intended that spouses of Australian citizens should generally meet the same criteria as other adult applicants and not merely rely on a spousal relationship. It is equally evident, however, that it was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.[2]
[1] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [51].
[2] Ibid [54].
In Kumar v Minister for Immigration and Border Protection [2015] FCA 446 (Kumar), Edmonds J said at [20]:
The discretion reposed in the Minister by s 22(9) is “unconfined” in the sense referred to by the Tribunal at [17]: “[T]he Act does not set out criteria that govern the exercise of the discretion”. As Dixon J (as his Honour then was) said in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 relevantly at 505:
[T]here is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any object the legislature could have had in view …
The satisfaction of the preconditions in subsection 22(9) does not mean that the discretion will be automatically exercised in favour of the person seeking to rely on the discretion. In Kumar, Edmonds J went on to say:
… if 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)-(d) inclusive, 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”, to use the words of Dixon J in Browning in the extract reproduced in [20] above.[3]
[3] Kumar [23].
In Judd v Minister for Immigration [2017] FCA 827 (Judd), Perry J held that the expression 'close and continuing association' should be given its ordinary meaning, having regard to the circumstances of the applicant's case as a whole, noting at [14]:
… While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
The Citizenship Policy (the Policy) lists factors that may demonstrate that an applicant has maintained a close and continuing association with Australia during a period the person was not present in Australia. They 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 years and
·evidence of active participation in Australian community based activities or organisations.
The underlined paragraphs are those that Mr Baum contends are relevant in this case.
The Policy also states:
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.
[Referred to below as the 365 day policy.]
In Taher and Minister for Immigration and Border Protection [2013] AATA 917 Senior Member Fice said at [47]:
In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia… as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time.
In Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26], Senior Member Cotter held that the assessment of a “close and continuing association” is a “qualitative assessment of the ultimate significance [of] an applicant’s circumstances”, noting that “the fact and extent of the applicant’s periods of Australian presence were highly relevant considerations”.
Mr Baum’s legal representative contended that there is no legislative justification in the Act for the 365 day policy because it unlawfully narrows the breadth of the operation of subsection 22(9). He contended that the above considerations “have the same useful relevance regardless of whether or not this arbitrary 365 day period is reached by an Applicant”.[4]
[4] Applicant’s Statement of Facts, Issues and Contentions [53].
During the hearing, he developed his argument to question whether the Policy was a “policy” in the sense discussed” by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J (Re Drake No. 2).
The Respondent contended that it was appropriate to have regard to the Policy including the 365 day policy, because applying the Policy would be consistent with the purpose of the general residence requirement and the discretion available in s 22(9) by the Tribunal, and there are no cogent reasons that it should not be applied, as was discussed in Re Drake No. 2.
I will address that issue after considering each of the factors relevant to the consideration of whether Mr Baum had a close and continuing association with Australia for the purposes of s 22(9)(d) of the Act.
Did Mr Baum have a close and continuing association with Australia while overseas during the period 28 March 2014 to 27 March 2018?
The evidence
Mr Baum married his wife, an Australian citizen, in 2002. They have lived together ever since, mostly in Hamburg, Germany, where Mr Baum is involved in running the family business with his brother and sister, which will be referred to as Pantaenius Holdings. Mr Baum reports only to his brother and sister who are company shareholders with him.
Mr and Mrs Baum have three children who were born in 2003, 2004 and 2009. All were born in Hamburg and are dual German citizens and Australian citizens by descent.
Following is a summary of Mr Baum’s evidence.
He is currently in charge of Pantaenius Yacht Group (PYG) and has been the managing director since 2006. All positions in PYG and all country subsidiary managers report to him. PYG insures yachts and boats which sail outside coastal waters. His father had started the business in the 1960s and made it the German market leader. Since 2006, Mr Baum has focused on a global expansion. PYG has offices where their clients are travelling, in other words, worldwide. There are 15 offices in Europe, the USA and Australia. PYG is the biggest Yacht Managing General Agent in the world with over 100,000 yachts insured and more than 350 employees.
Mr Baum purchased a flat in London before Brexit[5], which is rented out, has a flat in Dusseldorf, Germany, that he inherited, and a house in Germany that he purchased in 2009. His mother, father, sister, brother and their children live in Germany.
[5] Brexit, a portmanteau of “British” and “exit” refers to the withdrawal of the United Kingdom from the European Union which started in 2017 after a national referendum and was finalised on 31 January 2020.
Mr Baum first came to Australia in 2002. He has been a sailor all his life, sailing across the Atlantic with his father when he was six years old, and has a connection with the sea. He had a unique connection with Sydney and the water. He wanted to live in Sydney permanently and open an office here. But at that stage of their lives, he and Mrs Baum had to build up the structure to make it permanent. They had to face the fact that they could not stop everything else and stay here. They had the idea to live in Sydney permanently in the long term.
He began establishing Pantaenius Australia Pty Ltd (Pantaenius Australia) in Sydney from December 2010 when the company was registered. The ultimate holding company is Pantaenius Holdings which owns all the shares. The first directors were Mr Baum and Mrs Baum’s father who is well-connected in the Sydney yachting community and worked in international shipping until he retired. On 19 December 2011 Pantaenius Australia was issued an Australian Financial Services Licence which allows it to sell insurance. Mrs Baum’s father ceased being a director on 4 April 2012 when Mr MacPhail became a director. Mr Baum and Mr MacPhail are currently the directors of Pantaenius Australia and joint managing directors. Mr Baum’s employment agreement with Pantaenius Australia is dated March 2014 and specifies that his base salary is $30,000. Mr Baum earns most of his income in Germany. He has lodged tax returns in Australia for the financial years 2013/2014 to 2018/2019 inclusive.
At the time of the hearing, Pantaenius Australia had 15 employees and was servicing 5,000 yacht owners. In his 28 August 2019 statement, Mr Baum stated that there were 10 Australian employees. Mr Baum said that this company provides an insurance service to the Australian yachting and boating community that did not previously exist, especially to the segments of race boats, blue water cruisers, and fishing boats with extensive cruising areas. His job of finding additional insurers was and is vital to Pantaenius Australia. Australia will be the hub for expansion into Asia because of the security of Australian law, its geographical position, and language.
For the year ended 31 December 2018, the revenue of Pantaenius Australia was $2,331,308 and the net profit was $230,264, compared to revenue of $84,839 and net loss of $275,254 in the year ending December 2012. In the 2019 financial year, the turnover of Pantaenius Australia was $2,892,338 and the net profit was $175,768.
Mr Baum is also the director of Mad Property Australia Pty Ltd (Mad Property) which he said manages the real estate in Australia for Pantaenius Australia. Mr Baum wrote in his statement dated 19 February 2020 that the company was registered on 11 May 2018. On 2 July 2018 Mad Property purchased office space from which to operate the two businesses for $1,348,851.88. He provided photographs of the premises. The contract for sale showed that the purchase was subject to existing tenancies.
Mr Baum said at the hearing, that when he returns to Australia, he will pursue three or four projects for expanding Pantaenius Australia within Australia. There is no office in Perth. He is looking at some brokers who want to get rid of yacht portfolios. He has bought a portfolio in Asia from another insurer which includes boats in Thailand and Singapore which fits his strategy to expand into Asia and the Pacific.
Movement records show that from his first arrival in Australia on 17 August 2002 until 28 March 2014, Mr Baum visited Australia 13 times for a total of 206 days, an average of 15.8 days per visit.
Mr Baum said that he has started living in Sydney three times. The first time was when the Baum family lived in Australia from January 2014 to May 2014 with Mrs Baum’s parents who live in a Sydney harbourside suburb. Mr Baum said that the family moved back to Germany because the global insurance industry had started to earn less money due to low interest rates and increasing claim costs. His role then was to find additional insurance companies that would support the business model. The more insurance companies that write a share of the business of PYG, the more sustainable and bulletproof it is. When he left Australia in 2014, Pantaenius Australia had four to six employees.
Mr Baum’s movement records show that he visited Australia during the period January 2014 to May 2014 only once, from 22 February 2014 to 20 March 2014. Movement records show that Mrs Baum and the children were only present in Australia during the same period. Mrs Baum’s evidence was that the children attended schools in Australia from January to April 2014.
Mr Baum travelled to Australia during the four-year period before he applied for citizenship as follows:
(a)20 December 2014 – 17 January 2015: 29 days;
(b)23 December 2015 – 26 January 2016: 35 days;
(c)7 February 2016 – 23 May 2016: 107 days;
(d)4 June 2016 – 27 June 2016: 24 days;
(e)21 May 2017 – 29 May 2017: 9 days;
(f)24 December 2017 – 20 January 2018: 28 days;
(g)4 February 2018 – 3 March 2018: 28 days; and
(h)17 March 2018 – 27 March 2018 (day before application): 11 days.

The main reason Mr Baum was in Australia during the period December 2015 to June 2016 was to develop the Australian business. During that period, Mrs Baum’s parents rented a nearby apartment and the Baum family lived in their house. Otherwise, the family has stayed with Mrs Baum’s parents. The movement records show that the children and Mrs Baum arrived in Australia on 23 December 2015 and departed on 27 June 2016. Mrs Baum’s evidence was that the children went to a private school in the Eastern suburbs (the Eastern suburbs school) during that period.
At the hearing, Mr Baum said that from 2014 to late 2017 he talked to or emailed Pantaenius Australia every two or three days.
Mr Baum’s evidence in his 28 August 2019 statement was that in December 2017 the family had returned to Australia to stay for good and he went on to explain the circumstances. Everything was organised on the European side. Unfortunately, the illness of Mr Baum’s father, who was still officially the executive chairman of Pantaenius Holding, forced him to return to Germany in order to sort out his succession with his siblings. He has to restructure Pantaenius Holding and PYG. There were 400 employees for the whole group, and 300 on the yachting side. His brother runs the commercial business in Germany which was founded in 1899, and his sister takes care of marketing. He explained that he needed a board of directors to run PYG so he can focus on new markets and the Australian office where he has a hands-on role. He does not have to travel anymore. He will return after the restructure of the business in Germany. He conceded during cross-examination that he had not had a face-to-face meeting with anyone from Pantaenius Australia since January 2019 but said that someone from that office had visited Hamburg during the year. Mr Baum said that he finds it more and more difficult to undertake his role in Pantaenius Australia from Germany.
Mr Baum said that his mother and sister mainly look after his father and if he were needed, he would stay and help.
Three letters dated 18 May 2017 from the Eastern suburbs school to Mr and Mrs Baum stated that the three children were enrolled for the 2018 year.[6]
[6] T6/124-126.
The movement records show that the children arrived in Australia on 24 December 2017 and departed on 16 April 2018, arrived on 26 April 2018 and departed 28 May 2018. Mrs Baum arrived on 24 December 2017, departed on 25 February 2018, arrived on 6 March 2018, departed on 16 April 2018, arrived on 26 April 2018, and departed on 28 May 2018. Mrs Baum’s evidence was that the three children attended the Eastern suburbs school in 2018 until 28 May. It appears from the Statement of Fees that the children did not return to school after 10 April 2018.[7] I infer that the children were cared for by their maternal grandparents during their mother’s absence in February/March of that year.
[7] T6/T127.
Mr Baum travelled in and out of Australia as shown at [35] except he was present in Australia from 17 March 2018 to 16 April 2018 and then his movement records are the same as for Mrs Baum and the children. The family left Australia on 28 May 2018.
During her oral evidence, Mrs Baum explained that it was difficult to find a home in the suburb where her parents live and at the end of 2017 they had found a house to rent there. The decline of her husband’s father had been a shock. Since then she has kept in contact with the Eastern suburbs school to try to keep the children’s places, but it had been hard. She described the difficulties the children had with moving between Sydney and Hamburg, fitting into schooling and with friendships.
The family returned to Australia from 16 December 2018 to 7 January 2019. In his 28 August 2019 statement, Mr Baum wrote that their oldest child would attend boarding school in Australia from 1 January 2020 to begin a two-year program in order to obtain his International Baccalaureate (IB). The family returned to Australia on 20 December 2019 and departed on 8 January 2020. At the time of the hearing in February 2020, Mr and Mrs Baum gave evidence by telephone from Germany. Mr Baum said that he had planned to return for the hearing but the family had had colds and with warnings about COVID-19, he decided not to.
Their oldest child has not come to Australia and intends to remain in Germany for his studies when the rest of the family return to Australia at the end of 2020. The school he had planned to attend in Australia did not offer the highest IB German language classes which he wished to study. He will finish school in Germany on 1 June 2021. Where he will go to university has not been decided. The second oldest child has been enrolled in an Eastern Suburbs school and the family was awaiting confirmation that the youngest would also get a place there. Mr and Mrs Baum have committed to donating $5,000 per annum over 5 years to the senior school rebuilding program and have continued to do so since leaving in 2018. They had recently received an invitation to a school event for donors on 26 February 2020 to which Mrs Baum’s parents will attend as their representatives. Correspondence between Mrs Baum and the school dated 6 February 2020 showed that a place would be offered to the second oldest child in the third term of 2020 and the 2021 school year, that no place was available for the youngest child but the school would contact Mrs Baum if opportunities became available. A $5,000 deduction appears on each of Mr Baum’s 2018 and 2019 tax returns.
Mr Baum claimed that Australia has remained "our home” since 2014 despite living mainly in Germany.[8] In his 28 August 2019 statement, Mr Baum gave evidence about the considerable amount of funds he has available to purchase a home and two properties that they were considering buying in the suburb where his parents-in-law live. There was also the possibility of living in a house Mrs Baum’s parents own in a nearby suburb rather than renting or living with them. Mrs Baum’s mother gave evidence about her efforts to find a house for Mr and Mrs Baum to buy. In November 2019, Mrs Baum’s parents obtained development consent to upgrade the studio accommodation above their garage to create more room for the to move into upon their return from Germany at the end of 2020. It should be finished by September 2020. Mrs Baum’s parents would move into the studio and the Baum family would move into the house. They could provide “much needed daily support” to Mrs Baum’s parents, according to Mrs Baum’s father. By February 2020, one of the properties in which they had been interested had been auctioned and they were continuing private negotiations to purchase another property, when the owner dies according to Mrs Baum’s father.
[8] Statement of Martin Baum dated 28 August 2019 [32].
Mr Baum was able to help members of the Sydney Game Fishing Club with insurance and Pantaenius Australia sponsors the monthly membership meeting with safety on the sea presentations. He enjoys family days with the Sydney Game Fishing Club where young people and children try off-shore fishing.
Mr Baum’s evidence was that he is treated like a son by his parents-in-law and has made friends with their friends. Mrs Baum’s father helped him build up Pantaenius Australia. He was in shipping until he retired. They go to the pub and play golf together. Mr Baum feels fully integrated into the village-like community where Mrs Baum’s parents live. When in Germany, he is in contact with his parents-in-law every three to four days. He speaks with Mrs Baum’s father about private and business questions.
Mrs Baum’s parents have stayed with Mr and Mrs Baum and their children in their Hamburg home seven times for about 30 days each time. They have also holidayed together in 2011 in their chalet in Switzerland and in London and Cornwall. When in Australia, Mr Baum sees them every day. They were planning to travel together to Germany and Italy for the 80^th birthday of Mrs Baum’s mother in July and August 2020.
Mrs Baum was pregnant and unable to fly to Australia in 2002 when her only sibling died. She is very close to her parents and fears not being in Australia when they need her. As they get older it is more difficult for them to travel and health issues are becoming a concern. She has refused to become a dual citizen of Germany and wishes to live in Australia. During cross-examination, she said that she would remain in Sydney if Mr Baum returned to Germany on a long-term basis but hoped he could go as little as possible once they move permanently to Sydney.
Mr Baum believes that the relationship between his children and their maternal grandparents is closer than with their paternal grandparents.
Mr Baum said that he applied for citizenship because he wants to be an Australian and be with his family and make his home in Sydney. It is also for security so he can stay if ever visa laws change. He did not agree that there was no urgency for citizenship. He said that it was important to have citizenship from a business point of view because he needs a work permit. He conceded that his current visa allows him to work.
Consideration of relevant factors
Did Mr Baum migrate to and establish a home in Australia prior to the period overseas?
The evidence of Mr and Mrs Baum about their residence in Australia at the beginning of 2014 is not supported by the movement records. I prefer the contemporaneous movement records to the evidence given by Mr and Mrs Baum and find that the family visited Australia from 22 February 2014 to 20 March 2014 and stayed with Mrs Baum’s parents. The children may have attended schools during that period. Mr Baum did not migrate to and establish a home in Australia prior to the period overseas.
Relevant factors that may demonstrate that Mr Baum had close and continuing association with Australia during the four year period when he was not present in Australia
Following is a consideration of the factors raised by the evidence that may demonstrate that Mr Baum had a close and continuing association with Australia during the four year period when he was not present in Australia.
Mr Baum has three Australian citizen children who were born in, have lived in, and been educated in Germany. They are also citizens of Germany. They have visited, resided and attended schools in Australia briefly as set out above.
Mr Baum has been in a long-term relationship with an Australian citizen spouse. Apart from the periods when they have visited Australia as discussed above, their home has been in Germany. I give little weight to the evidence of Mr Baum that Australia has been home since 2014 despite living mainly in Germany. It is not consistent with his limited physical presence in Australia, including during the four year period.
Mrs Baum’s parents are Mr Baum’s extended family in Australia. He has visited Mrs Baum’s uncle and his wife in South Australia for two weeks in 2016. Mrs Baum’s parents hold Mr Baum in high regard and frequently communicate with him when he is overseas and daily when he is in Australia because he stays with them or is close by. They also often visit or travel with him and his family in the European summer.
Mr Baum resided in Australia with his family for 107 days from 7 February 2016 to 23 May 2016 and 24 days from 4 June 2016 to 27 June 2016. His family resided in Australia from 24 December 2017 to 28 May 2018, with an absence of 10 days in April 2018, that is, a total of 145 days. During the same period, Mr Baum resided with his family in Australia for a total of 131 days. I regard his other visits listed at [35] to be appropriately described as regular return visits to Australia.
Mr Baum’s evidence is that he has had the intention to reside in Australia in the future for some years before 28 March 2014 and that he had the same intention throughout and after the four year period, culminating in moving here for good at the end of 2017 but having to return to Germany for business reasons because of his father’s ill-health but planned to return to Australia at the end of 2020 and purchase a house. Mrs Baum and her parents gave evidence to the same effect.
On 13 November 2018, the Department of Home Affairs (the Department) received a document and attachments from a lawyer in response to a request from the Department dated 15 October 2018, which was after Mr and Mrs Baum and the children had returned to Germany and after Mr Baum had applied for citizenship in March of that year.
Under the heading “Statement explaining the reasons why you and your Australian citizen spouse and children are/were overseas”, the following explanation was provided:
Due to his employment, Martin Baum has recently been living with his family in Hamburg, Germany. Martin is the CEO of the Pantaenius Group – an international marine and transport insurance broker – with its headquarters in Hamburg, Germany. … Martin is the holder of the Australian Financial Services Licence required to operate the Australian subsidiary, which would require him, should the business need arise, to reside in Australia in the long term on short notice.
As the CEO of an international group of companies, Martin has been frequently traveling to the company’s subsidiaries in Sweden, Denmark, Norway, France, Switzerland, Netherlands, England, Italy, Spain and Monaco. The frequent travel required in his position prevents Martin from satisfying the general residency requirements.[9]
[9] Ibid.
Under the heading “Statement and Evidence of having had a close and continuing association with Australia (not with Australians only) during the period(s) you were outside of Australia in the last 4 years”, the following explanation appeared:
The Baum family maintains close and continuing ties to Australia. Martin and his family have regularly visited Australia throughout the years and continue to do so. … When the family lives in Sydney, Martin’s children attend (the Eastern suburbs school). The children are currently enrolled in the school. To maintain the children’s contact with the Australian family, Martin and his family intend to reside in Australia in the future as soon as this will be professionally possible for Martin.[10]
[10] T6/122.
There was no reference in the document to the family having moved to live in Australia in December 2017 “for good” or having to return to Germany because of the ill-health of Mr Baum’s father or of Mr Baum’s intention to return to live in Australia as soon as the restructuring of the company had occurred.
The circumstances set out in the first quotation have existed since 2006. They are not recent. In the years from 2006 until the hearing it had not been “professionally possible” for Mr Baum to reside in Australia. In his statement dated 28 August 2019 and at the time of the hearing, he proposed to do so from the end of 2020, nearly three years after he claimed that he had to return to Germany because of his father’s ill-health around the beginning of 2018.
Pantaenius Holding has 400 employees, of which PYG has 300. Mr Baum’s responsibilities for operations outside Australia are obviously extensive, time consuming, and continuing. They require him to be based in Hamburg, which is the effect of the first quotation. At the hearing, Mr Baum commented that it is possible to fly anywhere, which I understood to suggest that he could carry out his role from Sydney. I give little weight to that evidence. Up until that time he could have been based in Sydney and flown to the places mentioned in the first quotation but had not been. I have taken into account his evidence about changes to his role and his emphasis on his role in Pantaenius Australia and the potential for expansion into Asia, however, for the reasons given below, I do not accept that that role requires much of his time or presence in Australia.
I am concerned with Mr Baum’s intention, during the four year period ending on 28 March 2018, to reside in Australia. The evidence of Mr and Mrs Baum and Mrs Baum’s parents about the family’s return to Germany in 2018 and Mr Baum’s evidence about having intended to remain in Australia from December 2017 and having to restructure the family business, was given in response to the decision to refuse his citizenship application for the purpose of this review and more than 17 months after Mr Baum applied for citizenship. As described, those events were very significant in the lives of the family. That they were not referred to in the response received by the Department in November 2018, only about six months after the family left Australia and before the reviewable decision had been made, leads me to give little weight to the more recent evidence.
I also give little weight to the steps taken to enrol the children in schools in Australia in 2020 and 2021 and the plans to purchase a residential property in Australia around the end of 2019 and the beginning of 2020. The only mention of looking for a home before that time was Mrs Baum’s oral evidence about finding a house to rent when they were in Australia at the end of 2017 – beginning of 2018. I give little weight to the evidence that Mrs Baum’s parents had obtained development consent for a studio in November 2019 to assist the family in relation to Mr Baum’s plan to reside in Australia. Mrs Baum’s father gave that evidence in his statement dated 20 February 2020. Mr Baum did not mention it in his August 2019 statement.
The donations to the Eastern suburbs school were made in 2018 and 2019. It is not clear that the 2018 donation was made before Mr Baum applied for citizenship on 28 March 2018. There was no donation in the 2017 financial year. I give little weight to this evidence as supporting Mr Baum’s intention to reside permanently in Australia during the four year period.
I infer that he and Mrs Baum intend to reside for periods of several months in Australia in the future as circumstances allow, as they have in 2016 and 2018, “to maintain the children’s contact with the Australian family”, as was said in the November 2018 statement, and also because Mrs Baum wishes to spend more time with her parents. The November 2018 statement that Mr Baum and his family intend to reside in Australia in the future as soon as this will be “professionally possible” for Mr Baum rings true. It is consistent with what has happened in the past and I find that will be the case in the foreseeable future.
Before, during and after the four year period, Mr Baum was employed by Pantaenius Australia. He received a small salary and paid a small amount of tax in Australia during the same periods. Contrary to Mr Baum’s evidence, the Australian Financial Service Licence does not require his presence in Australia. Mr Baum established the business. It grew throughout the four year period and has continued to grow. During the four year period it employed from about 6 to 10 Australians who I infer pay income tax. Pantaenius Australia is liable for tax in Australia, depending on its financial position. It is a very small part of the business of Pantaenius Holding and PYG of which Mr Baum is the managing director, which has 300 employees. His role in Pantaenius Australia is very much subordinate to his role in PYG which includes global expansion, including into Asia, which the base in Australia may facilitate in the future. He does not mention his role in Pantaenius Australia in his curriculum vitae.[11]
[11] Statement of Martin Baum dated 28 August 2019, Annexure MB2.
I accept that when he was in Australia, Mr Baum went to the pub and played golf with Mrs Baum’s father and that he was accepted in the village-like community of which Mrs Baum’s parents have been a part for almost 40 years. He supported the Sydney Game Fishing Club and participated in their family events while present in Australia.[12] I infer that the financial support for the Sydney Game Fishing Club continued when he was not present in Australia. That financial support was an aspect of Pantaenius Australia’s business activity.
[12] T6/128.

I give some weight to the ownership of business premises by Mad Property which Mr Baum said manages the real estate in Australia for Pantaenius Australia. Mr Baum wrote in his statement dated 19 February 2020 that the company was registered on 11 May 2018 and the property was purchased on 2 July 2018. That is after the four year period. I acknowledge that Mr Baum owns 29.35% of the shares in Pantaenius Holding of which Mad Property is part. The purchase of business premises reflects that Pantaenius Australia is a growing business. Mr Baum owns no property in his own right in Australia.
Before deciding whether Mr Baum’s circumstances constitute a close and continuing association with Australia pursuant to subsection 22(9)(d) of the Act, it is necessary to consider whether the 365 Day policy is lawful.
Is the 365 Day policy lawful?
In Drake No. 2, Brennan J said at page 640:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 126 CLR 1; Drake’s case, supra, at 589, and the cases there cited).
At page 644 to 645, His Honour concluded:
If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.
These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.
The Introduction to the Citizenship Policy says:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations. (Emphasis added.)
The 365 Day policy specifies two temporal considerations when weighing the evidence of the factors relevant to deciding whether an applicant had a close and continuing association with Australia during the periods the applicant was not present in Australia during the four year period. They are one quarter of the temporal requirements in subsections 22(1)(a) and (c) of the Act and reflect the periods specified in subsections 22(1A) and 22(1B) respectively. Subsection 22(9) “was intended to… provide a mechanism whereby the general residence requirement… could be mitigated”.[13] As Edmonds J said in Kumar, the discretion is unconfined. In my opinion, those two temporal considerations are “irrelevant circumstances” and “serve a purpose foreign to the purpose for which the discretionary power was created” and are “inconsistent with the statute”.[14] There are cogent reasons for not adopting the 365 Day policy.
[13] Han at [51].
[14] Drake No. 2, 640.
Therefore, I will not follow the guidance given by the Citizenship Policy in this respect in determining whether Mr Baum had a close and continuing association with Australia when he was not present in Australia during the four year period. That is not to say that the time Mr Baum did spend in Australia during the four year period is an irrelevant consideration when exercising the discretion in subsection 22(9) of the Act.
Taking into account all the evidence, I am not satisfied that Mr Baum had a close and continuing association with Australia during the periods that he was not present in Australia as required by subsection 22(9)(d) of the Act. It is unnecessary to consider the other issues flagged by the parties.
Decision
For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]........................................
Associate
Dated: 8 October 2020

Date of hearing: 21 February 2020

Solicitors for the Applicant: Mr D Prince, Kinslor Prince Lawyers

Solicitors for the Respondent: Mr H McLaurin, Minter Ellison

[2020] AATA 6072

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice

Date of hearing:	21 February 2020
Solicitors for the Applicant:	Mr D Prince, Kinslor Prince Lawyers
Solicitors for the Respondent:	Mr H McLaurin, Minter Ellison