Bhavani Gettings and Minister for Immigration and Border Protection

[2014] AATA 357

[2014] AATA  357

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5158
Re	Bhavani Gettings
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	6 June 2014
Place	Adelaide

The Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – subclass 801 (Partner) visa – permanent resident – application for Australian citizenship by conferral  –  applicant married to an Australian citizen – applicant does not meet general residence requirement  –  application of Australian Citizenship Instructions  –  whether the applicant had, and will maintain, a close and continuing association with Australia  –  decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(2), 22(1) and 22(9)  

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634

Re Taher and Minister for Immigration and Border Protection [2013] AATA 917
Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Re Chakass v Minister for Immigration and Citizenship [2013] AATA 375
Re Paula v Minister for Immigration and Citizenship [2012] AATA 543
Re Plange and Minister for Immigration and Border Protection [2013] AATA 837

Re Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

REASONS FOR DECISION

Senior Member R W Dunne

6 June 2014

INTRODUCTION

1. The applicant in this case is Bhavani Gettings, who is a citizen of India.  She was granted permanent residency on 23 March 2009 and applied for Australian citizenship by conferral on 29 August 2013.  Between these dates is the “Relevant Period” referred to in these reasons.  A delegate of the respondent Minister refused her application on the ground that she did not satisfy the general residence requirement of the Australian Citizenship Act 2007 (“Act”).  Ms Gettings has applied to this Tribunal for review of the delegate’s decision.

2. At the hearing, Ms Gettings was represented by her husband and the respondent was represented by Ms Claire Deegan.  I received into evidence the T Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

   [1] Exhibit R1.

   THE RESIDENCE REQUIREMENT

3. A person is eligible for conferral of Australian citizenship if, among other things, they satisfy the general residence requirement (s 22 of the Act), the special residence requirement (s 22A or s 22B), or the defence service requirement (s 23), at the time the person made the application for citizenship (s 21(2)).  Ms Gettings did not meet any of these requirements when she lodged her application for citizenship.

4. Section 22(1) of the Act provides:

   “General residence requirement

   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.”

5. By s 22(1A), a person is taken to satisfy s 22(1)(a) of the Act if the total period of any absence in the four years immediately before the day they made the application was not more than twelve months.  By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the twelve month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence. 

6. These deeming provisions do not assist Ms Gettings because in the four years before making her application for citizenship she has not been physically present in Australia at all or for any period in the twelve months immediately before making that application.  There is no dispute that Ms Gettings does not satisfy the residence requirement in s 22(1) and, according to s 22(2), is not eligible to become an Australian Citizen.

   BACKGROUND AND EVIDENCE

7. The following facts are based on the evidence of Ms Gettings and on the documents before me.

8. Ms Gettings met her husband in Malaysia in 2001.  Her first visit to Australia was in 2002 when her husband introduced her to his parents, family and friends.  She and her husband married in Australia on 13 March 2004 and they continued to live in Malaysia.  She and her husband returned to live in Australia in 2006 and she was granted a subclass 820 (Partner) temporary visa on 29 January 2007.  They returned to Malaysia in November 2007.  Ms Gettings and her husband made five trips to Australia in 2008 to visit her husband’s family and a further trip in March 2009.  They have been unable to return to Australia since them because of the cost involved.

9. Ms Gettings describes herself as a full-time mother.  She has two children, a four year old adopted daughter (who she intends will become an Australian citizen) and another daughter, born in September 2011, who has been granted Australian citizenship.  All of her husband’s family (father, two brothers, sister, thirteen nephews and nieces) still reside in Australia and she has a number of close friends also residing in Australia.  She says she keeps in regular contact with the family via Skype and WhatsApp.  She says she intends to return and live in Melbourne within two years.  Her husband’s employer has said that it hopes to be in a position to relocate him and his family to Australia within 12‑18 months after the company appoints a distributor in Australia in 2015.  She has never lived in India, but has been in Brunei for 18 years.  She wants to be somewhere she can call home and this will be where her family is.

   THE DISCRETION

10. Section 22(9) of the Act provides for a discretion in some circumstances for the Minister to treat a period as one in which a person was present in Australia as a permanent resident.  Section 22(9) reads:

    “If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

    (a)the person was a spouse or de facto partner of that Australian citizen during that period; and

    (b)the person was not present in Australia during that period; and

    (c)the person was a permanent resident during that period; and

    (d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.”

11. There is no dispute that Ms Gettings’ husband is an Australian citizen and that they were married in Australia on 13 March 2004.  Nor is it in dispute that Ms Gettings has been a permanent resident since 23 March 2009.  The essential issues are therefore whether Ms Gettings had a close and continuing association with Australia during the Relevant Period and, if so, whether the discretion conferred by s 22(9) should be exercised in her favour.

12. The Minister has issued the Australian Citizenship Instructions (“the ACIs”) to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”.  Unless there are cogent reasons not to do so, the Tribunal must take the ACIs into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)).[2]  

    [2] (1979) 2 ALD 634.

13. The ACIs contain the following introduction:

    “The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.”

14. In relation to the discretion contained in s 22(9) of the Act, paragraph 5.18 of the ACIs that were relevant at the time Ms Gettings applied for citizenship said:

    “… Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.

    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:

    ·     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

    ·     employment in Australia where the person has been on leave to accompany their spouse or partner overseas

    ·     ownership of property in Australia

    ·     evidence of income tax payment in Australia over the past four year and

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

    In assessing whether a person has a close and continuing association with Australia for the purposes of 22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 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.”

    DISCUSSION ON CLOSE AND CONTINUING ASSOCIATION

15. In terms of s 22(9)(d) and whether Ms Gettings “had a close and continuing association with Australia during that period” (being the Relevant Period), as stated above, the ACI’s provide guidance on the exercise of the discretion listing factors that may demonstrate a close and continuing association. 

16. In considering whether an applicant had a close and continuing association with Australia, there have been numerous decisions of the Tribunal.  In some decisions, on the facts found, the question has been answered in the positive.  In others, the question has been answered in the negative.  Some of those decisions will now be discussed.

17. In ReTaher and Minister for Immigration and Border Protection,[3] Senior Member Fice, when referring to paragraph 5.18 of the ACIs, 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. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and 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. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.”

    [3] [2013] AATA 917.

18. In Re Taher, on the facts of the case, Senior Member Fice found that there was not a close and continuing association with Australia and the discretion was not exercised. 

19. In Re Abh Zafor Reza Ul Haque and Minister for Immigration and Citizenship,[4] Senior Member Britton said at [52]:

    “Mr Ul Haque has a close and continuing relationship with his wife and daughter, both of whom, as Australian citizens, have a close and continuing relationship with Australia.  But, although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia.  He spends little time here and does little work or business here.  He makes very little contribution to Australian society.  Apart from his family, he has very few personal connections with Australia.  Weighing these considerations discussed above I am not satisfied that Mr Ul Haque’s association with Australia could be described as close and continuing.”

    Senior Member Britton decided that the preferable decision was to affirm the decision to refuse to approve Mr Ul Haque’s application for Australian citizenship.

    [4] [2013] AATA 118.

20. In Re Wassim Chakass v Minister for Immigration and Citizenship,[5] Senior Member Bell found that, as Mr Chakass had spent only 50 days in Australia during what was the relevant period in spite of his desire to settle here eventually, he did not have a close and continuing association with Australia of the kind anticipated by the ACI’s.  She could not exercise the discretion in s 22(9) in his favour.

    [5] [2013] AATA 375.

21. In Re Bianca Pereira Da Costa Paula v Minister for Immigration and Citizenship,[6] Ms Paula was a citizen of Brazil and was married to an Australian citizen.  She was completing legal studies in Brazil and wanted to practice law in Australia when she arrived here.  Senior Member Bell found that Ms Paula had a commitment to the goal of practicing law in Australia with a qualification from an Australian university.  The consistently focused actions she took towards that goal established a close and continuing association with Australia throughout the relevant period.  Senior Member Bell concluded that Ms Paula had a close and continuing association with Australia and she saw no reason not to exercise the discretion in her favour.

    [6] [2012] AATA 543.

22. In Re Nii-K Plange and Minister for Immigration and Border Protection,[7] in applying for citizenship, Dr Plange had only spent 131 days in the four years prior to his application for citizenship.  He had worked as an advisor to AusAID based in Port Moresby, PNG, providing guidance and technical assistance to the PNG-Australia HIV Aids program.  He previously worked with the United Nations in the same field in both PNG and Geneva.  He was married to a Fijian born Australian citizen with whom he had an Australian born citizen child.  Senior Member Bell concluded that Dr Plange’s long marriage to an Australian citizen and the peculiar demands of the work he undertook on the part of AusAID pointed to a continuing association with Australia throughout the relevant period.  She saw no reason not to exercise the discretion in his favour.

    [7] [2013] AATA 837.

    CONSIDERATION

23. It is clear that Ms Gettings does not meet the general residence requirement provided for in s 22(1)(a) and (c) of the Act, because she was not present in Australia for the period of four years immediately before she made her application for citizenship, and in addition she was not present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application for citizenship.

24. However, under s 22(9) of the Act, the Minister has a discretion (which may be exercised by this Tribunal on reviewing decisions of the Minister or his delegate) to treat a period as one in which the non-citizen was present in Australia as a permanent resident if the conditions referred to in ss 22(9)(a) to (d) are met.  It is common ground that Ms Gettings meets the requirements of ss 22(9)(a) to (c). 

25. I referred in paragraph 14 above to the non-exhaustive list of factors which, according to the ACI’s, may contribute to a close and continuing association with Australia.  Ms Gettings satisfies a number of the factors:  she has one and potentially two Australian citizen children, she has a long relationship with an Australian citizen spouse and an extended family in Australia.  She has close associations with her husband’s family and regularly communicates with them by Skype and WhatsApp.  However, Ms Gettings does not meet other factors referred to in the ACI’s, namely, she has never been employed in Australia, she has not paid income tax in Australia, she no longer owns property in Australia and there is no evidence of active participation in Australian community-based activities or organisations. 

26. In weighing the various factors to which I have referred, I am required by the ACI’s to give “more weight” if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship.  According to the ACI’s, “less weight” should be given if a person has not been present for at least 365 days.  As I have said above, Ms Gettings has not been present in Australia for any period in the four years prior to her application for citizenship.  Given her circumstances, “less weight” must be attached to a claim for exercise of the discretion as she has not been present in Australia in the Relevant Period.  While the fact the Australian citizenship of her husband and her children is significant, Ms Gettings’ connection with Australia remains a distant one because of the lack of time she has spent here.  There is no doubt that she has some association with Australia and that she wishes to further that association and eventually live here.  However, the ACI’s make it clear that physical presence in Australia is an important factor in determining whether the required association exists.

27. I agree with the Tribunal in Re Taher that the whole of a person’s association with Australia must be considered, including the factors listed in paragraph 5.18 of the ACIs. I also agree with the Tribunal in Re Ul Haque that a close and continuing relationship with family in Australia is not the same thing as having a close and continuing relationship with Australia, although it is obviously an important factor. Moreover, inevitably, the nature of the association will be affected by the extent of the time the person has spent in Australia.

28. In considering the exercise of the discretion, the Tribunal must consider two distinct time periods.  Paragraph 22(9)(d) of the Act is concerned with a person’s association with Australia during periods of absence in the four years immediately before making an application, whilst s 21(2)(g) of the Act asks the question of whether a person will maintain a close and continuing association with Australia if her application for citizenship is granted.  This is a criteria of eligibility and was a basis of the reviewable decision to refuse Ms Gettings’ application for citizenship.  Accordingly, the Tribunal must be satisfied that the Ms Gettings both had, and will maintain, a close and continuing association with Australia.  Thus, even if she is considered to have had a close and continuing association with Australia during extensive periods of absence in the past four years, additional considerations will apply in assessing whether she will maintain that association into the future.  Ms Gettings has expressed an intention to return and live in Melbourne within two years, depending on whether her husband’s employer is able to relocate him and his family to Australia.  In these circumstances, arguably Ms Gettings will not maintain a close and continuing association with Australia if her citizenship is approved.

29. In Re Ho v Minister for Immigration and Ethnic Affairs[8]  Deputy President McMahon considered the meaning of “likely to reside in Australia”.  At [31], the learned Deputy President said:

    “It cannot mean ‘likely to take up residence in 18 months or two years time’ or ‘likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found’.  The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship. …”

    On the evidence, it seems clear that, if Ms Gettings is granted citizenship based on her application, she is not likely to reside in Australia immediately or very soon after the grant.

    [8] (1994) 34 ALD 664.

    SHOULD THE DISCRETION BE EXERCISED?

1. In paragraphs 17-22 above I have referred to some of the positive and negative decisions of the Tribunal dealing with whether an applicant had a close and continuing association with Australia.  It seems to me that the positive decisions in which the Tribunal has examined s 22(9) of the Act have involved particular factual backgrounds which have enabled the Tribunal to exercise the discretion favourably.

2. Having reached the conclusion that Ms Gettings did not have a close and continuing association with Australia throughout the Relevant Period, I cannot exercise the discretion in her favour.

   DECISION

3. The Tribunal affirms the decision under review.

4. I note that it is available to Ms Gettings to lodge another application for citizenship at any time.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 6 June 2014

Date(s) of hearing	18 March 2014
Advocate for the Applicant	Mr H Gettings
Advocate for the Respondent	Ms C Deegan
Solicitors for the Respondent	Australian Government Solicitor