Boonruang and Minister for Home Affairs (Citizenship)

[2019] AATA 147

Boonruang and Minister for Home Affairs (Citizenship) [2019] AATA 147 (15 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3914

Re:Gantiya Boonruang

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Antoinette Younes

Date:15 February 2019

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirement – application of Ministerial discretion – whether close and continuing association with Australia – whether migrated to and established home in Australia – Australian citizen children – extended family in Australia – long term relationship with Australian citizen spouse – decision affirmed  

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21, 22, 24

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648

SECONDARY MATERIAL
Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

Shorter Oxford English Dictionary (5^th ed, 2002)

REASONS FOR DECISION

Senior Member Antoinette Younes

15 February 2019

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 13 June 2018 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 7 August 2017.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (Cth) (the Act). Specifically, the delegate found that the applicant did not meet the requirements of s 22(1)(a) of the Act relating to general residence.

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

   RELEVANT LEGISLATION

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with s 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8).

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

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

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)     at the time the person made the application; and

   (ii)    at the time of the Minister's decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23) at the time the person made the application; and

   (d)understands the nature of an application under subsection (1); and

   (e)possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   (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

   (h)is of good character at the time of the Minister's decision on the application.

6. Section 22 of the Act refers to the general residence requirement. It provides, amongst other things, that:

   (1)…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. [Emphasis in Original]

7. Subsection 22(1A) provides that if the person was absent from Australia for a period of four years immediately before the day the person made the application and the total period of the absence was not more than 12 months, the person is taken to have been present in Australia during each period of absence.

8. Subsection 22(1B) provides that for a person who was absent from Australia for part of the 12 months immediately before the day the application was made, the total period of absence was not more than 90 days, and the person was a permanent resident during each period of absence, the person is taken to have been present in Australia as a permanent resident during each period of absence.

9. Subsection 22(9) provides for Ministerial discretion in the case of a person who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen. Specifically, 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.

   Citizenship Policy

10. The Citizenship Policy (the Policy) provides guidance to decision-makers in regards to interpretation and exercise of power.  As a decision-maker, the Tribunal is required to give regard to and apply policy unless there are cogent reasons not to do so.[1]  The Tribunal is satisfied 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 at 640 (Drake No 2).

11. Chapter 7A of the Policy provides that:

    Under s22(9), period spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.

    The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:

    ·the applicant was the spouse or de facto partner of a person who was an    Australian citizen and

    ·the applicant was a permanent resident and

    ·the applicant had a close and continuing association with Australia.

    ...

    In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:

    ·evidence that the person migrated to and established a home in Australia prior to the period overseas

    ·Australian citizen children

    ·long term relationship with Australian citizen spouse or de facto partner

    ·extended family in Australia

    ·regular 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 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 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.

    BACKGROUND

12. The applicant is a Thai national who on 14 March 2013 was granted a Partner (Migrant) (class BC) (subclass 100) visa on the basis of her relationship with her current spouse, Mr Mark Parkins.  Since December 2009, the applicant has entered Australia on multiple occasions. She last entered Australia on 9 July 2016.  On 7 August 2017, the applicant lodged the application for citizenship by conferral requesting the exercise of Ministerial discretion in s 22(9). 

13. The delegate refused the application on the basis that the applicant did not meet the general residence requirements in s 22(1)(a). Essentially, the delegate was not satisfied that the applicant met the requirements of s 22(1)(a) because the applicant was absent from Australia for a total of 909 days in the four year period immediately before applying for citizenship. The delegate found that as the applicant was absent from Australia for more than 12 months, she has exceeded the period of up to 12 months within the four year period, as stipulated by s 22(1)(a).

14. The delegate considered whether any of the partial exemptions in s 22(2) applied and Ministerial discretion in ss 22(4A), (5), (5A), (6), (9), (10) or (11). The delegate found that there was no evidence that any of the partial exemptions applied. The delegate also found that there was no evidence to support the exercise of discretion in the applicant’s case, including exercise of discretion for being married to an Australian citizen.

15. The applicant has argued that the delegate had incorrectly concluded that the spousal discretion in s 22(9) of the Act did not allow waiver of the four year residence requirements in s 22(1)(a). The applicant has provided submissions and supporting documents, including statements of the applicant and her husband as well as statements from relatives. The applicant’s submissions contended that the discretion should be exercised in the applicant’s favour because she has a close and continuing association with Australia.

    FINDINGS AND REASONS

    Does the applicant meet the requirements of s 22(9)?

16. In the four years between 7 August 2013 and the application for Australian citizenship on 7 August 2017, the applicant was absent from Australia for 909 days, approximately 2 ½ years. Consequently she does not meet the requirements of ss 22(1)(a) and 22(1A) of the Act.

17. The applicant is relying on a number of circumstances to argue that the Tribunal ought to exercise discretion in her favour. Those circumstances include her marriage to, and long-term relationship with, an Australian citizen, her relationship with the Australian citizens, having an Australian citizen child, having stepchildren in Australia, regular returns to Australia, and employment in Australia.

18. Although the concepts are not entirely distinct and the Tribunal does not wish to create an artificial dichotomy, the Tribunal accepts the respondent’s submissions that the process under s 22(9) has two-steps; to enliven consideration to exercise the power in s 22(9), a number of factors are to be considered. Subsection 22(9) provides that the Minister may treat a period as one in which the person was present in Australia as a permanent resident “if” a number of requirements are met.  The Tribunal is satisfied that “if” suggests a precondition, a threshold that needs to be met in order to enliven consideration to exercise of discretion. It is undisputed that the applicant is a spouse of an Australian citizen and that she was a permanent resident during the relevant period.  It is further agreed that the total period of absence from Australia during the four years to the date of the citizenship application is 909 days. The central issue of contention is whether the applicant had a close and continuing association with Australia during that period, as contemplated by s 22(9)(d).

19. There is no definition in the Act of “close and continuing association”.  The Explanatory Memorandum to the Australian Citizenship Bill  2005, in relation to s 22(9) states:[2]

    This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.

    However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australia’s working overseas for international organisations). As a result, this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.

    [2] Explanatory Memorandum, Australian Citizenship Bill  2005 (Cth) 29.

20. The Shorter Oxford English Dictionary (fifth edition) defines close, continuing and association as follows:

    ·close means very near in relation or connection; intimate, confidential;

    ·continuing means remain in existence or in its present condition; last, endure; and

    ·association means the action of joining or uniting for a common purpose.

21. The Respondent relied on a number of Tribunal decisions (differently constituted)[3] to argue that the discretion is not confined.  Consistent with previous Tribunal decisions and Judd v Minister for Immigration and Border Protection,[4] the Tribunal is satisfied that although the expression close and continuing is a broad one, it does require an objective assessment giving regard to “a qualitative assessment of the ultimate significance of an applicant’s circumstances”.[5]

    [3] Exhibit G, Respondent’s Statement of Issues, Facts and Contentions pp 8-9.

    [4] Judd v Minister for Immigration and Border Protection [2017] FCA 827.

    [5] Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14] quoting Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25].

22. As mentioned earlier, chapter 7A of the Policy provides guidance for consideration of the 11 factors. This does not mean that a mechanical approach is to be adopted but an assessment of the applicant’s circumstances objectively and in totality, giving regard to the 11 factors.

    Evidence that the person migrated to and established a home in Australia prior to the period overseas

23. The evidence[6] before the Tribunal indicates that the applicant was granted a Tourist Visa (subclass 676) on 4 December 2009 and she arrived in Australia on 20 December 2009. She was granted while offshore a Partner Visa (subclass 309 – provisional Visa) on 31 May 2011 and, on 14 March 2013, she was granted the Partner (Migrant) (class BC) (subclass 100) visa.  From 20 December 2009 until 28 October 2013, she was absent from Australia for a total of 879 days and she was present in Australia for a total of 528 days. From 7 August 2013 until 7 August 2017, being the relevant period for the purposes of s 22(1)(a), the applicant was absent from Australia for 909 days.

    [6] Exhibit H, T documents pp 208-209.

24. The applicant explained her absences essentially on the basis of her husband’s employment. The evidence before the Tribunal indicates that Mr Parkins was employed in a senior role by McConnell Dowell Constructions Thai Ltd.  Although the position was based in Thailand, Mr Parkins travelled regularly. He gave evidence that he travelled to Malaysia, Singapore, New Zealand and many other countries. Over the years, he returned to Australia regularly to be with his three children, Adam (22 years of age), Joshua (20 years old), and Sonya (19 years old). The applicant did not travel with Mr Parkins at all times during his visits to Australia. She explained that as her son, Morgan (born July 2014) was very young, it was difficult to travel with him in those circumstances. She gave evidence that she considered Thailand to be her home and she received support from her family members in Thailand. The Tribunal acknowledges that travelling with the young child would have presented challenges and that Mr Parkins was based in Thailand.

25. The applicant has provided statements in support from various members of Mr Parkins’ family, including his children. The Tribunal observes that although Adam Parkins, Joshua Parkins and Sonya Parkins were intending to give evidence in the course of the Tribunal’s hearing, they did not do so.  The applicant and Mr Mark Parkins explained that this was due to work commitments and Mr Parkins’ suggestion to them that if one of them was unable to attend the hearing, then no one should attend, so as to present a united front. The Tribunal found Mr Parkins to be a genuine and sincere witness. The Tribunal has decided to accept those explanations and not draw any adverse inferences on the basis that Mr Parkins’ children did not attend.  The Tribunal has decided to give their statements weight.

26. The applicant has provided documents relating to superannuation and payslips[7] which indicate that from 9 January 2017 to 15 January 2017, and 24 January 2017 to 30 January 2017, the applicant was employed in Australia. During those periods, she earned approximately $478 gross. She has also provided a Tax File Number Advice dated 15 November 2011 delivered to an address in Haymarket.[8] The applicant gave evidence that this was a friend’s address. The Tribunal is satisfied that the applicant’s employment is limited and is not persuasive evidence that she had migrated to and established a home in Australia. The existence of the tax file number in the circumstances does not mean that she has migrated to and established a home in Australia.

    [7] Exhibit H, T documents pp 133-136.

    [8] Exhibit H, T documents pp 131-132.

27. The applicant and Mr Parkins gave evidence and provided documents[9] in support that the applicant had attended a number of functions organised by the Australian Chamber of Commerce in Thailand. The Tribunal is satisfied that attendance of those events does not mean that she has migrated to and established a home in Australia.

    [9] Exhibit H, T documents pp 169-176.

28. The Tribunal has assessed the applicant’s circumstances cumulatively under this consideration. On the evidence, the Tribunal is satisfied that prior to her periods of absences during the four year residence period under s 22(1)(a), the applicant had not migrated to and established a home in Australia.  Although the Tribunal has given weight to the applicant’s explanations and reasons, on balance, the Tribunal is satisfied that the evidence indicates that the applicant’s home was Thailand and that she has not established a home in Australia. The Tribunal gives significant weight to this factor in deciding not to exercise discretion.

    Australian citizen children

29. The applicant has one Australian citizen minor child and three adult stepchildren. The Tribunal is satisfied that under the Act, they are considered the applicant’s children. The Tribunal accepts the evidence that the applicant and her husband have maintained relationships with the stepchildren. Although the Tribunal gives this aspect some weight, given the absences during the relevant period, the Tribunal is satisfied that this is not strong evidence that she had a close and continuing association with Australia during the relevant periods.

1. The Tribunal accepts the submissions of the respondent that the fact that the applicant has an Australian citizen child on its own is insufficient evidence of a close and continuing association with Australia during the relevant periods.

2. On balance and under these circumstances, the Tribunal gives this aspect limited weight in favour of the applicant.

   Long term relationship with Australian citizen spouse or de facto partner

3. The applicant has been in a relationship with Mr Parkins, who is an Australian citizen. The couple gave evidence that they met around 2009. The applicant was granted the provisional partner visa on 31 May 2011.

4. The Tribunal has noted the respondent’s submissions of insufficient evidence of a long-term relationship prior to the couple’s marriage in Australia in 2016. The Tribunal does not agree with those submissions. The applicant was granted the provisional partner visa on 31 May 2011 and later in 2013, she was granted the permanent partner visa. The Tribunal is of the view that it is reasonable to suggest that she was granted those visas on the basis of probative evidence that the couple were in a genuine and continuing relationship. The fact that the couple now have a child is highly persuasive evidence of a long-term relationship with an Australian citizen.

5. The Tribunal gives this aspect weight in favour of the applicant.

   Extended family in Australia

6. As noted earlier, the applicant has three stepchildren. Mr Parkins also has his parents in Australia who have provided statements in support. The Tribunal is satisfied that the applicant has an extended family in Australia, including stepchildren and Mr Parkins’ parents.

7. The Tribunal gives this aspect weight in the applicant’s favour.

   Regular return visits to Australia

8. Departmental records indicate that although the applicant made return visits to Australia, those visits were for relatively short periods of time. She was absent from Australia for longer periods of time. In those circumstances, the Tribunal is not satisfied that the regular visits to Australia are evidence of a close and continuing association with Australia during the relevant periods. The Tribunal does not wish to take the applicant’s comments out of their context; in the course of the hearing, she repeatedly stated that she considered Thailand home and not Australia.

9. The Tribunal gives this aspect limited weight in the applicant’s favour.

   Regular periods of residence in Australia

10. The Tribunal has accepted that the applicant regularly returned to Australia. The Tribunal is satisfied that taking into consideration the evidence in totality, the visits to Australia are in the nature of a visitor rather than a resident who has established a home in Australia or being indicative of close and continuing association with Australia. 

11. The Tribunal gives this aspect limited weight in the applicant’s favour.

    Intention to reside in Australia

12. The applicant has stated that she has intended to reside in Australia but this has been contingent on Mr Parkins’ employment. From an objective point of view, there is little or no evidence of that intention. The evidence is that the applicant considered Thailand home and her intention was to remain in Thailand at the relevant time. Moreover, the Tribunal is not satisfied that any such intention means that she had a close and continuing association with Australia.

13. The Tribunal gives this aspect no weight in the applicant’s favour. 

    The person has been on leave from employment in Australia while accompanying their spouse or partner overseas

14. The evidence before the Tribunal is that the applicant is not currently employed and although she has worked in Australia, this has been limited. The Tribunal is satisfied that she was not on leave from employment in Australia while overseas.

15. The Tribunal gives this aspect no weight in the applicant’s favour.

    Ownership of property in Australia

16. There is no evidence before the Tribunal relating to the ownership of the family home in New South Wales.

17. The Tribunal gives this aspect no weight in the applicant’s favour.

    Evidence of income tax paid in Australia over the past four year

18. The applicant has provided evidence such as payslips and a letter from Host Plus, a superannuation scheme. There is no evidence before the Tribunal of ongoing employment in Australia.  The Tribunal is satisfied that the evidence does not support a finding that based on those matters, she has had a close and continuing association with Australia during the four year prescribed period.

19. The Tribunal gives this aspect no weight in the applicant’s favour.

    Evidence of active participation in Australian community based activities or organisations

20. The applicant has contended that her attendance at events by the Australian Chamber of Commerce in Thailand is evidence of her participation in the Australian community.

21. While the Tribunal accepts that the applicant has attended those events, the Tribunal is satisfied that this is limited evidence of active participation in the Australian community.  It appears to the Tribunal that she attended those events primarily to accompany Mr Parkins as representative of his work.

22. The Tribunal gives this aspect limited weight in the applicant’s favour.

    Cumulative consideration

23. The Tribunal has considered the Policy factors independently.  The Tribunal recognises that the factors are not exhaustive and that a cumulative approach is required in assessing whether the applicant has a close and continuing association with Australia. In terms of the 11 factors, on the Tribunal’s assessment, there are factors in her favour but there are others that are can only be given no or limited weight.

24. The Tribunal acknowledges that the application of the Policy needs to be flexible but not to the point of weakening Policy guidance or making a decision arbitrarily. Policy is important because amongst other things, it aims to provide consistency in decision-making but that does not mean that policy ought to be applied inflexibly and mechanically. The Tribunal gives regard to statements in Drake No 2 that:

    [The Minister’s] discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.[10]

    [10] Drake v Minister for Immigration and Multicultural and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 640.

25. Looking at the evidence cumulatively, the Tribunal is satisfied that although the applicant has been visiting Australia regularly and that she has associations and relationships with Australians, her association with Australia is not close.

26. The Tribunal is satisfied that during the relevant period, the applicant’s connection with Australia is more of a visitor rather than a resident. 

    Should the Tribunal to exercise the discretion in the applicant’s favour?

27. In a case where an applicant does not meet the residence requirements, it is important to look at the circumstances as a whole and consider whether the applicant’s reasons for not meeting those requirements warrant the exercise of discretion. As outlined above and although the Tribunal has concluded that there are some factors in the Policy which are favourable to the applicant, others are not favourable. In consideration of the evidence as a whole, the Tribunal is satisfied that looking at the applicant’s circumstances individually and cumulatively, the applicant did not have a close and continuing association with Australia during the relevant period and consequently the Tribunal finds that the applicant does not meet s 22(9)(d).

28. The grant of an Australian citizenship depends on meeting all relevant criteria. The residency requirements are threshold criteria and any dispensation from those requirements is not something which is exercised lightly.  Subsection 22(9) makes it clear that where a person is in a spousal or de facto relationship with an Australian citizen at the time that person makes an application for Australian citizenship, the Minister may exercise a discretion to treat the period the person spent overseas as a period where the person was present in Australia as a permanent resident. The purpose is not to dispense from meeting the general residency requirements.

29. The Tribunal has carefully considered the applicant circumstances and is satisfied that the totality of the evidence means that the Tribunal does not exercise discretion in the applicant’s favour. Given those conclusions, the discretion in s 22(9) is not enlivened.

30. For the stated reasons, the Tribunal affirms the decision to refuse the application of Australian citizenship by conferral.

    DECISION

31. The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

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

Associate

Dated: 15 February 2019

Date(s) of hearing:	5 February 2019
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz