Bianca Pereira Da Costa Paula and Minister for Immigration and Citizenship
[2012] AATA 543
•21 August 2012
[2012] AATA 543
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1045
Re
Bianca Pereira Da Costa Paula
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 21 August 2012 Place Sydney The Tribunal sets aside the decision under review and remits the matter to the Minister for reconsideration with the direction that the discretion under section 22(9) of the Act should be exercised so as to treat Ms Paula’s periods of absence from Australia in the four years immediately before her application as citizenship as periods in which she was present in Australia.
.....[Sgd]...................................................................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - permanent resident - application for citizenship - applicant married to Australian citizen - applicant does not meet residence requirements - exercise of discretion - application of Australian Citizenship Instructions - whether applicant has a close and continuing association with Australia - decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 22, 22(1), 22(2), 22(9)
CASES
Budilay v Minister for Immigration and Citizenship [2011] FCA 508
Jiang v Minister for Immigration and Citizenship [2011] AATA 688
Hneidi v minister for Immigration and Citizenship (2010) 182 FCR 115; (2010) 114 ALD 26
Singh v Minister for Immigration and Citizenship [2011] FCA 685SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
21 August 2012
Bianca Pereira Da Costa Paula arrived in Australia in April 2001. She is a citizen of Brazil. Ms Paula married an Australian citizen, Guido Mier, in March 2004. She was granted a Partner (Provisional) subclass 820 visa in June 2004 and a Partner (Residence) subclass 801 visa in July 2006. She was granted a Return (Residence) subclass 155 visa in May 2007. In September 2011 Ms Paula applied for Australian citizenship. Her application was refused.
During 2007 to 2011 Ms Paula spent most of her time in Brazil, completing her legal studies there. There is no dispute that, as a result, she does not meet the residence requirements for conferral of Australian citizenship in section 22 of the Australian Citizenship Act 2007. The question remains whether the discretion contained in section 22(9) should be exercised in her favour. Ms Paula contends that she maintained a close and continuing association with Australia during the four years leading up to her application. The Minister maintains that she did not.
ISSUES
Section 22(1) of the Act provides:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
There is no dispute that Ms Paula, who was present in Australia for no more than 253 days (or 252, according to the Minister) from 14 September 2007 to 13 September 2011, does not satisfy the residence requirement in section 22(1) and, according to section 22(2), is not eligible to become an Australian citizen.
However, section 22(9) of the Act provides for a discretion in some circumstances to treat a period as one in which a person was present in Australia as a permanent resident:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
There is no dispute that Mr Mier is an Australian citizen and that he and Ms Paula married in March 2004 and that it is a genuine marriage. Nor is it in dispute that Ms Paula was a permanent resident at the relevant time. The essential issues are therefore whether Ms Paula had a close and continuing connection with Australia during the relevant period and, if so, whether the discretion should be exercised.
DID MS PAULA HAVE A CLOSE AND CONTINUING RELATIONSHIP WITH AUSTRALIA?
The Australian Citizenship Instructions 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.
In relation to the discretion contained in section 22(9) of the Act, the Instructions say:
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
Factors that may contribute to a close and continuing association with Australia include:
· Australian citizen children
· length of relationship with Australian citizen spouse or de facto partner
· extended family in Australia
· return visits to Australia
· periods of residence in Australia
· intention to reside in Australia
· employment in Australia (for example, public or private sector)
· ownership of property in Australia
· evidence of income tax payment in Australia and
· current bank accounts in Australia.
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have 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 if they have not been present in Australian for at least this period.
Ms Paula said she had come to Australia in 2001 to stay for one year to study English. She had just completed her first year of a BA/LLB in Brazil. Ms Paula met her husband, Guido Mier, in February 2002. After meeting him again almost one year later, they became close. By then she had been in Australia for two years. They moved together to Mr Mier’s family’s home in Westmead, living with his mother, brother and his two children. Ms Paula said she does not get on very well with her mother-in-law.
She had finished her English studies and had enrolled in a TAFE course in Legal Administration. She decided that she wanted to study law in Australia, but was intent on studying only at either the University of Sydney or the University of New South Wales. She had no degree and so had to apply for undergraduate law. She said she did not consider any other universities in Australia because she wanted to attend only the best. She was firmly of the view that the University of Sydney and the University of New South Wales are the best universities. She said that in Brazil she studied at the best law school. When, in cross-examination, the possibility of beginning a non-law degree and then transferring was raised with her she said that transferring is very difficult. She said she only wanted to do a degree that would entitle her to practice law. With English not her first language, she was unable to get admission to the Universities of her choice. She obtained advice from the University of Sydney administration that a postgraduate degree would be the best option for her.
Ms Paula agreed that she could have studied a different course to obtain postgraduate entry to the universities of her choice, but said there are advantages in having degrees in both jurisdictions. She pointed to the prevalence of multinational companies, international contracts and globalisation to illustrate her point.
Ms Paula said that when she first considered finishing her degree in Brazil she was reluctant to do it because it meant being away from Australia. She said she became depressed. Because of her unhappiness, her husband encouraged her to finish her studies in Brazil. She said they decided Ms Paula would go to Brazil first to try to find work for Mr Mier. This turned out to be impossible because his qualifications as a French Polisher were not recognised in Brazil. They decided she should finish her studies in Brazil anyway and that Mr Mier would support her from Australia. She said she did some internships in Brazil, for which she was paid, but only ever sought internships with government organisations and never with law firms. She said she had no desire or intention to enter the legal profession in Brazil.
Ms Paula finished her six year combined Arts/Law degree in Brazil in four and a half years and graduated in March 2010. She applied to enrol in a postgraduate law degree at the University of Sydney and the University of New South Wales and was accepted to both. She returned to Australia in February 2011. Her degree from the University of Sydney will make her eligible for admission to practice as a lawyer in Australia. The University has given her one year’s credit for her Brazilian degree. She will complete her degree this year and will attend the College of Law next year.
Ms Paula said her mother died in Brazil in 2009, intestate. Because she had a property that was not registered in her name, Ms Paula has had to return to Brazil to try to deal with her very problematic estate. She described the process of establishing a chain of title as a nightmare.
Ms Paula said she and her husband are currently living in student housing because he is now studying as well. They have a joint bank account and have previously had other joint accounts. She said Mr Mier supported her financially while she was studying in Brazil and travelled to Brazil from time to time to be with her. They have had leases in joint names and have been registered co-owners of a vehicle. She said he came to be with her when her mother and grandmother died. She said she returned to Australia during her university vacations.
Ms Paula said she has held a credit card in Australia and has been employed here at TAFE.
From 8 April 2001 until 13 September 2007 Ms Paula spent the following periods in Australia (holding a provisional visa from 23 June 2004 and a permanent visa from 11 July 2006):
From
To
Days
08/04/2001
29/02/2002
631
03/02/2003
29/06/2003
147
22/07/2003
29/09/2003
70
13/10/2003
05/01/2004
85
27/01/2004
19/08/2004
206
18/12/2004
02/03/2005
75
25/11/2005
13/08/2006
262
Total
1476
From 14 September 2007 until 14 September 2011 (the statutory period) Ms Paula spent the following periods in Australia (at all times holding a permanent visa):
From
To
Days
26/12/2007
13/03/2008
79
15/02/2011
16/06/2011
122
25/07/2011
14/09/2011
52
Total
253
The longest continuous period Ms Paula was away from Australia was from March 2008 to February 2011. Ms Paula said that, but for her mother’s death and the problems with her estate, she would have returned in 2009. She noted that her husband had visited her at length during this period and that from November 2005 to August 2006 she had taken a semester off to return to Australia for a long period.
Mr Mier said he arrived in Australia from Ecuador when he was 12 years old and has been a citizen of Australia since 1990. He confirmed the history of his relationship with Ms Paula that was given by her and their co-ownership of a vehicle and their joint bank accounts. He described his wife as very focussed on her goal of becoming a lawyer in Australia.
Mr Mier said Ms Paula was becoming very depressed because she could not study law here and could not get a job in the legal profession. He said he thought it better for her to finish her studies in Brazil and then return to Australia for good to study or work. He said he encouraged her to complete her degree in Brazil because he thought it would be to both their benefit. He said he encouraged her also because she was not happy and he wanted her to be happy.
Mr Mier said he first encouraged Ms Paula to look for a job and then he encouraged her to try for another university, for example, Wollongong, but she had worked very hard and a degree from a top university would work better for them later. He also noted that her studies in Brazil were supported by a scholarship and she was required to pay no fees.
Mr Mier said he considered going to Brazil with Ms Paula but his qualifications as a French Polisher were not recognised there. So he came back to Australia to work and send money to his wife to support her in Brazil.
Of their life in Australia, Mr Mier said they first lived together with his mother and then moved to Rockdale. Mr Mier is a musician and he said Ms Paula would attend his gigs and interact with his friends and family. However, he said his children, now aged 17 and 18 years, are jealous of her.
Mr Mier said Ms Paula loves Australia and has no intention of returning to Brazil. He said she only has her father there now and she will not return to Brazil as a lawyer. She wants to practice law in Australia. He said that, in order to get into law in Australia, Ms Paula had to study very hard in Brazil
Mr Mier said he visited Ms Paula in Brazil as much as he could, but it was expensive to travel there and he had to hold down his job.
Ms Paula submitted that the part of the Citizenship Instructions that maintains that the discretion would “usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner” is “perverse” because if a person’s spouse is outside Australia with the person then the person’s connection with Australia would necessarily be lessened. It was submitted that in this case, the applicant’s close and continuing association with Australia was through her husband.
In Jiang and the Minister for Immigration and Citizenship [2011] AATA 688, I considered this part of the Instructions and adopted the following approach, which I adopt here:
5. The inclusion in this passage of the word “usually” leaves scope for the exercise of the discretion favourable to an applicant in circumstances where the applicant was not “overseas with their Australian citizen spouse or partner”. The discretion conferred by the Act is not fettered by the words in the Instruction and I may have regard to them. In reaching this conclusion I am guided by the judgment of the Federal Court in Singh v Minister for Immigration and Citizenship [2011] FCA 685 in which a similarly worded passage appeared in the Instructions in respect of a discretion conferred by section 24(2) to refuse to grant citizenship. The Court said:
policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would “usually be approved”, thereby leaving the appropriate decision to the decision maker. The Instructions are not intended to dictate how the discretion under s 24(2) is exercised (Budilay v Ministerfor Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J);
the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard (Hneidi at paragraph [40] to [45]);
as the Instructions set out policy considerations which the explanatory memorandum suggested were appropriate considerations, being considerations which do not dictate how the discretion is to be exercised but provide guidance in its exercise, they may be properly considered in the exercise of the s 24(2) discretion. They are not ultra vires. They do not impermissibly raise, as a usual course, the prior attainment of permanent residence. That factor is expressly contemplated by the explanatory memorandum as a policy matter which may be reflected in guidelines to inform relevant administrative decision making.
6.These principles apply with equal effect to the provisions of section 22(9) and the passage from the Instructions extracted above.
As in Jiang, the more pertinent question is whether Ms Paula had a close and continuing association with Australia during the relevant period. I note that I considered, in Jiang, that in the absence of close associations with Australia beyond his devotion to his Australian citizen family, I could not be satisfied that Mr Jiang’s association with Australia was close and continuing. This case is different. While Ms Paula’s devotion to her Australian citizen husband is unquestioned, I accept her evidence that she is devoted also to the goal of becoming an Australian legal practitioner. She has almost reached that goal and she has taken a long and difficult path to get there, dependent on her Australian citizen husband’s moral and financial support throughout. Ms Paula’s goal has involved long separations from her husband, delayed earnings, and a great deal of hard work. She did not avail herself of the opportunities open to her as a qualified lawyer in Brazil. Rather, she immediately committed herself more hard work, in line with her goal, by enrolling in a law degree in Australia that would equip her to practice law here. Her commitment to her chosen path is clear and it has centred on an Australian institution and an Australian profession. The time she spent in Brazil, completing her degree, was a means to an end in Australia.
The Instructions say that “more weight” should be given 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 Instructions “less weight” should be given if the person has not been present for at least 365 days. Ms Paula was present in Australia for 253 (or 252) days in the 4 years prior to her application for citizenship.
The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.
Ms Paula submitted that the number of days she was present in Australia should be considered proportionally and in the context of her general goal of making herself eligible for admission to an Australian law school and the constraints posed by that commitment. It is relevant to this consideration to note that Ms Paula’s significant absence from Australia during the relevant period was for 1,069 days from 13 March 2008 to 15 February 2011. Prior to this, Ms Paula spent the 2004/2005 university vacation in Australia, returned to Australia at the end of the 2005 academic year and deferred a semester to remain here until the middle of 2006 and came again for the 2007/2008 vacation. Mr Mier visited her in Brazil for five months in 2005, five months in 2007, and two months in 2009.
Ms Paula’s claim of a close and continuing association with Australia would be stronger had she spent 365 days or more in Australia in the relevant period, but I do not consider I am constrained from giving some weight to the time she did spend here or from having regard to the context in which her presence in Australia was limited.
I consider that the combination of Ms Paula’s close relationship with, financial dependence on and commitment to her husband; and her commitment to the goal of practising law in Australia with a qualification from an Australian University; and the consistently focussed actions she took towards that goal establish a firmly close and continuing association with Australia throughout the statutory period. This is so notwithstanding that she spent less than 365 days in Australia during the statutory period. I have taken this shorter period of presence in Australia throughout the statutory period into account and I find that, in the context of Ms Paula’s commitment to her goal, it serves to weaken only slightly her claim of a close and continuing association with Australia.
SHOULD THE DISCRETION BE EXERCISED?
Ms Paula’s absence from Australia in the statutory period, while maintaining a close and continuing association with Australia, was directed entirely towards a future in Australia with her Australian citizen husband and as a member of the legal profession in Australia. Her dual jurisdiction qualifications will be of benefit to Australia in the increasingly globalised economy and practice of law. I do not doubt her commitment to Australia and to a long future here with her Australian citizen husband.
Having reached the conclusion that Ms Paula had a close and continuing association with Australia throughout the relevant period, I see no reason not to exercise the discretion in her favour.
DECISION
The Minister has requested that, in the event that I decide to exercise the discretion in Ms Paula’s favour, I remit the application to the Minister to consider remaining eligibility requirements.
I am informed by the Minister that there are a number of further assessments that have yet to be completed including a character assessment, assessment of intention to reside and assessment of identity and any other prohibitions on approval.
This Tribunal is not in a position to perform those assessments.
The Tribunal sets aside the decision under review and remits the matter to the Minister for reconsideration with the direction that the discretion under section 22(9) of the Act should be exercised so as to treat Ms Paula’s periods of absence from Australia in the four years immediately before her application as citizenship as periods in which she was present in Australia.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .....[Sgd]..................................................................
Associate
Dated 21 August 2012
Date of hearing 11 July 2012 Date final submissions received 16 July 2012 Solicitors for the Applicant Michael Jones, Solicitor Solicitors for the Respondent Department of Immigration and Citizenship In-house Litigation Section
24
3
0