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

Budhiraja and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2325 (17 July 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7557
Re:Ritika Budhiraja
APPLICANT

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

DECISION
Tribunal:Member S Burford
Date:17 July 2020
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent, dated
3 December 2018, is affirmed.
....................[sgd]....................................................
Member S Burford
CATCHWORDS
CITIZENSHIP – permanent resident – ‘close and continuing association’ – substantial periods of absence – spouse or de facto – intention to reside – purchase of property – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(a), 21(2)(c), 22, 22(1), 22(1A), 22(1B), 22(9), 22(9)(d), 24, 24(1), 24(5), 52(1)(b), 52(2)
CASES
Judd v Minister for Immigration [2017] FCA 827
Sabumei and Minister for Immigration and Border Protection [2014] AATA 64
See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1327
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Yang v Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Australian Citizenship Bill 2005 (Cth)
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 7A
REASONS FOR DECISION
Member S Burford
17 July 2020
THE REVIEW

This is an application for the review of a decision made by a delegate of the Respondent on 3 December 2018 (the Reviewable Decision). The Reviewable Decision (T6, 89), refused the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the general residence requirements under

s 22 of the Citizenship Act.
For the reasons outlined in this decision, the Tribunal has decided that the decision should be affirmed.
BACKGROUND
Mrs Budhiraja (the Applicant) is a 30 year old Indian citizen who wants to become an Australian citizen. She first arrived in Australia on 21 January 2013 on a Tourist (subclass 676) visa. She was granted a Partner (Provisional) (subclass 309) visa on 1 June 2013 (Exhibit R1, T7, page 100). On 19 February 2015 she was granted a permanent visa,
a Partner (subclass 100) visa (Exhibit R1, T6, page 89).
In 2012, the Applicant married Mr Pawan Budhijara who has been an Australian citizen since 29 August 2012. They have two children. The Applicant, her husband and their children live in Singapore.
The Applicant and her husband own two properties in Australia. They were living in one of these properties in Western Australia prior to moving to Singapore due to her husband’s work commitments with John Holland Group Pty Ltd (John Holland) (Singapore Branch). Their other property is in Victoria. The Applicant submitted this was purchased as an intended home for their return to Australia.
The Applicant’s daughter was born in Australia on 15 March 2015. Her second child,
a son, was born in Singapore on 24 April 2019. Both children are Australian citizens.
On 3 April 2018 the Applicant applied for Australian citizenship by conferral (Exhibit R1, T4). On 3 December 2018 the delegate refused the application because the Applicant did not satisfy the general residence requirement under s 21(2)(a) and 21(2)(c) of the Citizenship Act and the delegate was not satisfied that the Applicant had a close and continuing association with Australia (Exhibit R1, T6, Page ).
On 21 December 2018 the Applicant applied to the Tribunal for a review of that decision (Exhibit R1, T2).
ISSUES
The issues for decision by the Tribunal are:
(a)
whether the Applicant satisfies the general residence requirements under

s 22(1) of the Citizenship Act; and
(b)if not, whether the discretion under s 22(9) of the Citizenship Act can and should be exercised to treat any or all of the Applicant’s periods of absence from Australia as a period in which the Applicant was present in Australia as a permanent resident.
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act. The Applicant was, at the time that she made the application for citizenship, a permanent resident for the purposes of s 52(2) of the Citizenship Act, being the holder of a permanent visa. The Tribunal is therefore satisfied that it has jurisdiction.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place in Perth on Tuesday 6 August 2019. The Applicant appeared in person and was represented by Mr Chandan Mehndiratta, who also appeared in person.
The Respondent was represented by Ms Elle Tattersall, who appeared in person.
The Tribunal admitted the following documents into evidence at the hearing:
(a)written submissions made by the Applicant, dated 23 May 2019 (Exhibit A1);
(b)written submissions made by the Applicant, dated 1 March 2019, including Documents 1–6, a statutory declaration and ID documents (Exhibit A2);
(c)a copy of the Applicant’s son’s Australian passport (Exhibit A3);
(d)
documents produced under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (T documents) numbered T1–T8, comprising

126 pages (Exhibit R1);
(e)
further documents produced under s 37 of the AAT Act (supplementary

T documents) numbered ST1–ST3, comprising 53 pages (Exhibit R2); and
(f)Respondent’s Statement of Facts, Issues and Contentions dated 3 May 2019 (Exhibit R3).
Additional material received after the hearing
On 3 July 2020 the Tribunal notified the parties that it intended to deliver a decision with respect to the application on 6 July 2020.
In response to the Tribunal’s notification, the Applicant’s representative emailed the Tribunal that day, attaching several documents. The email stated:
I have contacted Ritika Budhiraja regarding communication related to their decision to be delivered on Monday 06th July 2020.

They have asked me to provide the Tribunal with further information which they were informed a few days back only. Ritika's spouse employer [sic] has asked

Mr Pawan to shift back to Melbourne by 20th July 2020. I have attached related documents such as termination letter from Singapore employment, Pawan

New Contract [sic] and Ritika RRV grant notification [sic] with this email.
The email attached the following documents:
(a)
A letter from John Holland (Singapore Branch) to “The Landlord” re

Pawan Budhiraja. The letter is dated 18 June 2020 and confirms John Holland (Singapore Branch) intends to terminate Mr Budhiraja’s employment pass as they are relocating him back to Australia;
(b)
A confirmation letter from the Department of Home Affairs regarding the grant of a Resident Return (subclass 155) visa to the Applicant on 26 June 2020.

Entry under the visa must be by 26 June 2021; and
(c)An ‘Offer of Employment’ letter from John Holland Group Pty Ltd (Australia) to Pawan Budhiraja dated 2 July 2020. The letter offers Mr Budhiraja a position with the company as a Planning Manager commencing 20 July 2020 in Melbourne.
The Tribunal wrote to both parties on 3 July inviting them to make submissions regarding whether this material should be taken into account by the Tribunal and, if so, how the material should be dealt with.
Both parties provided written submissions in response. The following documents were submitted:
(a)Applicant’s Submission: Additional Documentation Submission regarding Intention to Relocate back to Australia Factor dated 7 July 2020; and
(b)Respondent’s Outline of Submissions dated 7 July 2020
The Respondent submitted that the Tribunal should not have regard to the further evidence on the following basis (Respondent’s Outline of Submissions dated 7 July 2020, pages 1-3):
First
the evidence does not establish the matters suggested by the applicant,

takes the matter no further and was not subject to cross-examination.

…
Second
, by direction dated 11 February 2019, the applicant was required to give to the Tribunal and the Minister any submissions and further evidence upon which the applicant intended to rely on at the hearing of the matter by 15 March 2019.

The time for the filing of additional evidence by the applicant has passed.

The additional evidence that the applicant seeks to rely on has been provided some 16 months outside of the Tribunal’s direction and 11 months after the hearing of the matter.
In the alternative, the Minister submits that, for the reasons set out above,

the additional evidence takes matter no further and should be given no weight.
(Original emphasis.)
The Applicant submitted that her circumstances had changed since the AAT hearing and plans to relocate back to Australia permanently had only recently been confirmed.

The Applicant submitted this was consistent with her original submissions stating the intention to return by January 2021. The Applicant stated that it had been argued at the hearing that the Applicant had provided insufficient evidence of an intention to return to Australia and that the Applicant should be given an opportunity to provide the additional documents which demonstrated that she was relocating back to Australia.
The Tribunal has taken into account these submissions. While the Tribunal is sympathetic to the Respondent’s submission that the documents were provided significantly out of time, the Tribunal is also conscious that the matter has taken some time to resolve and that the evidence is, in effect, updated material broadly consistent with the evidence which was provided during the hearing. While the Tribunal is conscious of ensuring no unfairness to the Respondent, the Tribunal considers that the material can be taken into account without any significant disadvantage to the Respondent having regard to its limited nature and the fact that it flows from earlier evidence. However, the Tribunal has taken into account the Respondent’s submissions both with respect to the weight to be given to the evidence,

and to the limitations of specific evidence in terms of establishing the matters submitted.
The material in these submissions are considered further below.
LEGISLATIVE FRAMEWORK
To be granted citizenship, Mrs Budhiraja must satisfy the criteria set out in the Citizenship Act. Different criteria apply to different types of applicants. The Citizenship Act controls the circumstances for conferral of Australian citizenship. The Citizenship Act is clear that marriage to an Australian citizen, or being the parent of Australian citizens, does not confer an automatic entitlement to citizenship.
Section 21(1) of the Citizenship Act states that ‘[a] person may make an application to the Minister to become an Australian citizen’.
General eligibility requirements for citizenship
Section 21(2) of the Citizenship Act states with regards to general eligibility:
(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.
General residence requirement
Section 22(1) of the Citizenship Act states:
(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.
(Original emphasis.)
Exemption for overseas absences
Sections 22(1A) and (1B) of the Citizenship Act state:
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than
12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B)If:
(a)the person was absent from Australia for a part of the period of
12 months immediately before the day the person made the application; and
(b)The total period of absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Under these provisions, a person is taken to have fulfilled the residency requirement if they were not absent for more than 12 months during the four years immediately before the day of their application for Australian citizenship and were not absent for more than three months in the 12 months immediately before the day of their application.
Spousal discretion
The Citizenship Act contains several subsections which provide for Ministerial discretion. Applicable to this matter is the Ministerial discretion enabled by s 22(9) of the Citizenship Act, where Ministerial discretion may be exercised in some circumstances to treat a period that a person was absent as one in which a person was present in Australia as a permanent resident. Section 22(9) of the Citizenship Act states:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(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.
Prohibition on approving citizenship: s 24(5)
Section 24 of the Citizenship Act sets out the circumstances in which the Minister is permitted or required to refuse an application for citizenship. Section 24(5) states:
If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa)the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b)the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
Citizenship Policy
The Citizenship Policy (the Policy) provides additional guidance in relation to the exercise of the discretion under s 22(9). The Policy states the following as relevant factors in relation to the ‘close and continuing association’ criterion in s 22(9):
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.
(Exhibit R1, T8, pages 116–117)
As noted by Senior Member Evans-Bonner in See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327 (15 May 2020) (at [34]):
…As stated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645 the Tribunal should apply government policy when reviewing decisions unless there are cogent reasons not to do so:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.
Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered,
but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
CONSIDERATION
The general residence requirement
The first issue to be addressed is whether the Applicant satisfies the general residence requirements under s 22(1) of the Citizenship Act.
The Tribunal notes Senior Member Fice’s observations in Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher) (at [10] and [11]), cited in submissions for the Applicant (Exhibit A1), that ‘…residency is of paramount importance when determining whether to grant citizenship to an applicant.’ Senior Member Fice points to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) which states:
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.

The Applicant was, by operation of s 22(1A) of the Citizenship Act, allowed to be:
(a) absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not to be more than 12 months.
The departure and arrival records, which are not disputed by the Applicant, show that the Applicant has was present in Australia for 618 days and absent for 843 days in the four years immediately prior to the application for citizenship. Section 22(1A) of the Citizenship Act permits a person to be absent from Australia for an aggregate period of 12 months in that four year period and still comply with s 22(1)(a). The Applicant was absent from Australia in excess of 12 months in aggregate over that period therefore she does not comply with s 22(1)(a) of the Citizenship Act.
The departure and arrival records also indicate that in the 12 months immediately before the Applicant made her application for citizenship she was absent from Australia for 352 days. She was present in Australia for 13 days during that period. Section 22(1B) of the Citizenship Act permits a person to be absent from Australia for an aggregate of 90 days during that 12 month period and still comply with s 22(1)(c). The Applicant was absent for more than 90 days in that period. Therefore, she does not comply with s 22(1)(c) of the Citizenship Act.
It is not suggested that the Applicant was present in Australia at any time during the relevant period as anything other than a lawful non-citizen and Respondent accepts that the Applicant satisfies the residence requirement in s.22(1)(b) of the Citizenship Act.
The Applicant does not dispute that she does not meet the general residence requirements. In her written submissions to the Tribunal, the Applicant described her personal circumstances which, she says, required her to move to Singapore and be absent from Australia. The Applicant submitted that her husband was required to move to Singapore to work on a project with John Holland (Singapore Branch). Family obligations in India and her family commitments in Singapore, including her daughter’s schooling requirement, are the reasons that she has been absent from Australia for periods which mean that she does not meet the general residency requirements.
The Tribunal must consider whether the discretion in s 22(9) of the Citizenship Act can or should be exercised to treat any of the Applicant’s periods of absence from Australia as a period in which the Applicant was present in Australia as a permanent resident.
Senior Member Walsh, in Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 (at [22]), noted ‘It is clear from the EM [Explanatory Memorandum] that…[it] is intended to require spouses of Australian citizens to meet the same criteria as other adult applicants for Australian citizenship…’. However, ‘[t]he EM acknowledges that, in some circumstances, the spouse of an Australian citizen may have difficulty meeting the residence requirements…’ Section 22(9) of the Citizenship Act provides a basis upon which discretion may be exercised in those circumstances.
As Senior Member Fice in Taher at [19] notes:
The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s 22(1), even when allowances are made for overseas absence as provides in subsections (1A) and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia. It is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.
According to s 22(9) of the Citizenship Act, discretion may be exercised, and the Applicant’s periods of absence can be treated as periods in which the Applicant was present in Australia as a permanent resident if:
(a)the Applicant was a spouse or de facto partner of that Australian citizen during that period; and
(b)the Applicant was not present in Australia during that period; and
(c)the Applicant was a permanent resident during that period; and
(d)the Minister is satisfied that the Applicant had a close and continuing association with Australia during that period.
The Respondent conceded that the Applicant satisfied ss 22(9)(a)-(c) of required preconditions to the exercise of the discretion in that:
·She has been married to an Australian citizen since 2012: s 22(9)(a) (Exhibit R1, T5, pages 46-47);
·She has been absent for substantial periods in the four years preceding the application: s 22(9)(b) (Exhibit R1, T7);
·She was a permanent resident for 788 of 843 days she was absent from Australia: s 22(9)(c) (Exhibit R1,T7, page 97).
With respect to s 22(2)(c) the Respondent noted that the Applicant was a temporary resident for 55 of the days she spent out of Australia. This meant that even if the discretion was exercised those 55 days could not be taken into account (Transcript, page 9). However,
this did not preclude the operation of s 22(9) (Exhibit R3, p5).
In her submissions to the Tribunal, the Applicant has provided evidence of her associations with Australia; the Australian citizenship of her husband and children; her prior employment in Australia, the purchase of Australian properties; and community activities. It is clear that the Applicant is seeking recourse to the Ministerial discretion provided by s 22(9)(d) of the Citizenship Act, on the basis that she has ‘a close and continuing association with Australia’ (s 22(9)(d)) during the periods of her absences.
Close and continuing association with Australia?
As noted above, the applicant only resided in Australia for 13 days in Australia in the twelve months immediately before lodging the application for Australian citizenship. She was outside Australia for 842 days of the four years immediately prior to the application being lodged. As such she faces the difficulty that she cannot meet a primary indicator used in the legislation to demonstrate a connection with Australia. Accordingly, she needs to rely on other evidence to establish this connection.
In summary, the Applicant contends that her personal circumstances which required her to move to Singapore and be absent from Australia. However, she has maintained a close and continuing association with Australia through her intention to reside in Australia once her husband’s project is complete, the presence of close friends in Australia, her Australian citizen husband and children, return visits to Australia, ownership of two homes in Australia, payment of income taxes in Australia and her intention to eventually resume employment in Australia.
The Respondent submitted that there is insufficient evidence that the Applicant had a close and continuing association with Australia. The Respondent contends that the Applicant spent significant periods outside Australia and made limited return visits, there is a lack of evidence of a contractual obligation on the part of the husband’s employer to move the family back to Australia in January 2021 as claimed, one of their Australian properties is rented out and it is open to infer the same course may be taken with the other property, there is no evidence of extended family in Australia, and while she has lodged tax returns, the Applicant has not paid income tax in Australia.
The Respondent further contends that even if the Applicant meets the preconditions in

s 22(9) the discretion should not be exercised as she has not identified any good reason the discretion should be exercised or any hardship she would suffer if it were not exercised in her favour.
The meaning of close and continuing association
The meaning of a ‘close and continuing association’ was considered in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (Ul Haque) by Senior Member Britton at [45]:
45. The words that make up the phrase “close and continuing association” are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating ... connection or combination”.
In Judd v Minister for Immigration [2017] FCA 827 Perry J stated at [14] that the expression “close and continuing association” should be given its ordinary meaning.

Perry J also stated that a “broad” and “multi-factorial approach” should be applied to determine whether a person had a close and continuing association to Australia during relevant periods of absence:
14. The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). 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”.
Having a close connection with family members in Australia will not, in the absence of other evidence, be enough to demonstrate a close and continuing connection with Australia.

See, for example, Ul Haque where Senior Member Britton observed, at [52], that:
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…
Similarly, in Yang v Minister for Immigration and Border Protection [2017] AATA 364 Senior Member Cotter stated, at [35]:
35.…It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia”.
(Footnotes omitted.)
The Tribunal also notes the comments of Senior Member Fice in Taher at [47] – [48]:
[47] …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.
[48] I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.
Whether an Applicant has ‘a close and continuing association’ during relevant periods of absence is a question of fact to be objectively assessed having regard to the relevant factors listed in the Citizenship Policy (see Ul Haque at [44]).
The Policy provides guidance in relation to the interpretation and exercise of powers under the Citizenship Act. The preamble to the Policy reminds decision makers to be mindful that the Policy must not be applied inflexibly.
The Tribunal notes that the applicant spent 618 days in Australia in the four years immediately prior to the application being made. The Tribunal is therefore mindful of the policy that:
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.
(Department of Immigration and Border Protection, Australian Citizenship Policy, page 96)
Considerations
Migration to and establishment of a home in Australia prior to the period overseas
The Applicant contended that prior to moving to Singapore for employment reasons,

she and her husband were settled in Australia and had established a home and a life in Australia.
The Applicant arrived in Australia in January 2013 following her marriage to her husband in India in 2012. She was granted a provisional partner visa on 1 June 2013 (Exhibit R1, T7, page 100) and a permanent partner visa on 19 February 2015 (Exhibit R1, T6, page 89). She moved to Singapore on 25 January 2016 (Exhibit R1, T5, pages 54-55; T7).
The Applicant contended that she had lived in Australia for most of the period prior to moving to Singapore with her husband. Movement records indicate the Applicant made several trips outside Australia from (Exhibit R1, T7, page 100):
·23 March 2013 to 1 June 2013
·12 December 2013 to 21 January 2014
·27 January 2014 to 21 February 2014
·16 November 2014 to 10 January 2015
·24 November 2015 to 29 November 2015
The Tribunal understands from the evidence that the Applicant’s mother passed away in 2014 in India (Exhibit A2).
After arriving in Australia the Applicant completed a Diploma of Business Administration and a Diploma of Business at Polytechnic West, both awarded in January 2014. She also participated in a Mind Your Own Business Course at Polytechnic West from 27 February 2014 to 10 April 2014 (Exhibit A2, Document 5).
She worked as a Marketing and Student Recruitment Officer at Stanley College in Perth from 26 May 2014 to 2 August 2015 (Exhibit A2, Document 5). She also volunteered for the Cancer Council as an Administration and Publications Volunteer at Sir Charles Gairdner Hospital from 1 February 2014 to 31 May 2014 (Exhibit A2, Document 6). The Tribunal notes that the Respondent contended that there was minimal evidence of the courses undertaken however comparing the course dates with movement records it appeared they could have been no longer than six months in duration (Transcript, page 10).
The Applicant gave birth to her first child in Perth on 15 March 2015 (Exhibit R1, T5,

page 53).
The Applicant’s friends in Australia provided statements in support of the Applicant

(Exhibit A2, Document 1, Statutory declarations from Amir Vahdani, Vimal Mendiratta, Supriya Kashyap and Amrinder Singh). Statements from friends were also provided with the application (Exhibit R2, ST3, pages 21-23, Statutory Declarations from Savya Scahi Jha and Chandan Mehndiratta). The statements support the Applicant’s commitment to Australia and to her life and family when here. The Tribunal notes that one of the statements is from the Applicant’s registered migration agent who represented the Applicant before the Tribunal, though this is not indicated in the statement itself.
In her ‘Letter for Ministerial Discretion’ the Applicant stated that she and her husband had planned to live in Australia for the rest of their lives however they needed to move to Singapore for her husband’s employment (Exhibit R1, T5, pages 48-49). Her husband provided evidence to the same effect (Exhibit R2, ST3, page 23).
The Applicant moved to Australia to join her husband who had recently become an Australian citizen. At some point they purchased a property in Western Australia, however there is no documentary evidence establishing when they purchased the property. The only evidence that they lived at the property is the statement of Mr Mendiratta who states that he “stayed with them as a tenant” for about a year 2014-2015 (Exhibit A2, Document 2) and the Applicant’s Learners Permit which states her address as the house in Victoria Park, Western Australia (Exhibit R1, T5, page 28). Rates statements for 2017/2018 and 2018/2019 were provided (Exhibit R1, T5, page 64 and Exhibit R2, ST3, page 19) and a lease agreement was provided for the period from February 2018- February 2019 (Exhibit R1, T5, pages 66- 75). While the evidence regarding the purchase of the property is limited, the Tribunal accepts the Applicant and her husband purchased the property some time prior to 2014 and that they lived there prior to moving to Singapore.
The Applicant was in Australia for three years prior to moving to Singapore. She purchased a property, studied and found employment in Perth prior to moving to Singapore. She also made friends and gave birth to her first child here. Accordingly, the Tribunal finds that the Applicant migrated to, and made a home in Australia from January 2013 to January 2016. This factor weighs slightly in favour of the Applicant having a close and continuing association with Australia.
Australian citizen children and long-term relationship with Australian citizen spouse
The Applicant met her Australian citizen husband in 2006 and married in India in August 2012.
The Applicant and her husband have a daughter who is an Australian citizen, born in Perth in 2015 (Exhibit R1, T5, pages 52-53). They also have a son who was born in Singapore in March 2019. He is also an Australian citizen (Exhibit A3).
As in Taher, the Tribunal finds that whilst the Applicant has demonstrated a strong connection and deep ongoing association with her Australian citizen family, this is a connection to family rather than Australia. However, the Tribunal places more weight on this factor having regards to the policy and noting the Applicant has spent more than the 365 days of the four years prior to the application being made, in Australia.
This factor weighs in favour of the Applicant having a close and continuing association with Australia.
Extended family in Australia

The Applicant conceded she has no extended family in Australia. Her sister lives in India. She told the Tribunal that her father passed away two months prior to the hearing.
The Applicant submitted that she has close friends in Australia with whom she maintains contact including through visits in Australia and from them to Singapore. These are evidenced in the Statutory Declarations mentioned above.
While the Tribunal accepts the Applicant has friends in Australia, some of whom who are Australian, the Tribunal does not regard on the evidence that these relationships suggest a ‘close and continuing association with Australia’. Accordingly, the Tribunal finds that this factor tends to weigh against the Applicant having a close and continuing association with Australia.
Regular return visits to Australia and regular periods of residence in Australia
As noted above, the Applicant resided in Australia for three years from January 2013 to January 2016. She made five trips overseas during that time including for a period of three months on one occasion.
Movement records indicate that after moving to Singapore and prior to lodging the application for citizenship the Applicant returned to Australia once from 13 February 2018 to 25 February 2018. This is a period of 13 days in Australia since she moved overseas.
The Applicant submitted that the reasons she did not visit Australia more often since leaving was that (Exhibit A2):
·She needed to visit India to support her father, who was unexpectedly widowed when her mother died in 2014.
·Her daughter started school in 2018 and her school commitments made it more difficult for her to visit Australia.
·Her house in Perth is rented out and she doesn’t have anywhere to live in Australia.
The Respondent submitted that a significant period of this time offshore was not spent with her husband but by the Applicant travelling separately from him in India (Transcript,
page 14). The Respondent submitted that her father’s statutory declaration dated
8 February 2019 (Exhibit A2, Document 2) indicated the Applicant had spent around 250 days with her father in India since 2014. The Tribunal notes, based on the statutory declaration, that the Applicant spent around 168 days visiting her father since she moved to Singapore.
The Tribunal noted at the hearing that the Applicant’s daughter, who it appears from the documents was in pre-nursery and nursery school in Singapore in 2017 and 2018 respectively, appeared to have at least 12 weeks holiday per year. The Applicant confirmed this was the case but testified that (Transcript, page 6):
So for that whenever – all I got really less chance to go back to – to come here or go back to India, but whenever I get a chance to I just prefer to meet my father because he was so lonely there, he was alone there, nobody was there to take care of him, so I preferred to go there and meet him. Yes. He also wanted to meet his grandchildren, so that was the main concern. And recently two months back he passed away so now no more family there. It’s only my sister is there.
The Applicant testified at the hearing that (Transcript, pages 19-20):
I just want to come back here and I want to continue this relation with Australia and I know I couldn’t stay here for a longer time, but just because, as I told you earlier, that just because of my father I have to go back there and just take care of him.

And now there is no more family left there, so eventually I want to move back here only. That’s why we got the property in Victoria as well, and hopefully the construction will start early next year and then we want to move back to Melbourne.
While the Tribunal accepts and has considerable sympathy for the reasons why the Applicant has chosen to travel to India rather than Australia while she has been residing in Singapore, in the Tribunal’s view these factors tend to suggest a lack of close and continuing association with Australia since she has been living overseas. In the Tribunal’s view the fact that both her parents have now passed, while arguably lessening her immediate family links to India does not, of itself, create a close and continuing association with Australia.

The Tribunal finds this factor tends to weigh against the Applicant having a close and continuing association with Australia.
Intention to reside in Australia
The Applicant and her husband maintain it has always been their intention to return to and reside in Australia permanently.
The Applicant’s husband stated (Exhibit R2, ST3, page 23):
We chose to leave Australia with [sic] heavy heart for temporary period instead of staying there with probable chances of losing my job, which obviously would have had negative impact on on our personal economic conditions and to Australian economy indirectly. As per letter attached from my employer, they have promised to retain me and give Job [sic] in Victoria once I complete my assignment in Singapore. Our intentions of returning to Australia as family is clear from the fact that we have an existing property in Perth and we have already bought land in Melbourne to start preparing for a new home as per new job location.
At the hearing, the Applicant submitted that the family is due to return to Australia at the end of the project in Singapore in January 2021. This evidence was supported by the letter from the Applicant’s husband’s employer, John Holland (Singapore Branch), which indicated that (R2, ST3, page 32):
The Employer [John Holland Group Pty Ltd (Singapore Branch)] confirms that Pawan Kumar Budhiraja… (the “Employee”) will be on assignment with John Holland (Singapore Branch) till 27 Jan 2021. Our mutual understanding is that the Employee will continue his employment in John Holland Australia.
At the hearing the Applicant’s representative confirmed that the Applicant’s husband was employed by John Holland (Singapore Branch) on a locally engaged basis. At the time of the hearing, he did not have a contract for employment currently or in the future with John Holland (Australia). The Tribunal discussed with the Applicant’s representative at the hearing that the letter from John Holland (Singapore Branch) suggested that the employment relationship was somewhat different to that where, for example, a person is a permanent employee of the company and is posted overseas for a period while remaining an employee of an Australian business. The Tribunal accepted, on the basis of the evidence at the hearing, that there was a general agreement that the Applicant’s husband will return following the project to work with John Holland in Australia, though this would be subject to John Holland (Australia) offering him some form of employment contract in Australia.
As noted above, following the hearing the Applicant submitted documents including an offer of employment from John Holland (Australia) for the Applicant’s husband to commence employment in Melbourne from 20 July 2020. The Applicant also submitted a letter suggesting John Holland (Singapore Branch) intended to cancel his employment pass and a notification letter confirming the Applicant had been granted a Resident Return visa.
The Respondent submitted that these documents did not establish the facts claimed by the Applicant. In particular, the Respondent submitted that the letter from John Holland (Singapore Branch) contained inconsistent dates to the offer of employment letter from
John Holland (Australia) and it was not clear what the effect or purpose of the letter was.
The Tribunal accepts these submissions to the extent the letter does not seem to directly evidence the Applicant’s return to Australia. While the Tribunal accepts the letter is broadly consistent with the evidence regarding the intention to return to Australia, the Tribunal places limited weight on the letter as evidence establishing such an intention on the part of the Applicant.
The Respondent also submitted the grant of the Resident Return visa was of no significance as it merely confirms the Applicant remains the holder of a permanent visa. The Tribunal accepts that to be the case. The Respondent further submitted that the fact the Applicant remains a permanent visa holder confirms she has a right to enter and reside in Australia and imposes no conditions on her. This weighs against the exercise of discretion as she has failed to show a reason why the discretion should be exercised in her favour or identified any hardship that she would experience if the discretion were not exercised.
This is considered further below.
With respect to the letter of employment the Respondent submitted that the letter does not establish that the Applicant’s husband has accepted the offer or that it is the intention of the Applicant to relocate with her husband. The Respondent points to the fact that the Applicant’s prior evidence was that her limited trips to Australia during the relevant period were due to family circumstances in India, namely looking after her father.
The Tribunal accepts the letter does not establish the fact of employment or the Applicant’s intention to reside in Australia. However, the Tribunal regards the letter as consistent with the earlier evidence of intention from the Applicant and her husband and places some weight on it as further evidence of progress towards that stated intention.
The Applicant’s representative also submitted that she had been employed in Australia and was “actually on leave from the employment because of her partner overseas” and that she intended to return to work in Australia (Transcript, page 7). However, as submitted by the Respondent and as discussed with the Applicant’s representative at the hearing, the letter from the Applicant’s former employer dated 8 February 2019 indicated that she had worked for Stanley College as a marketing and student recruitment officer from 26 May 2014 to
2 August 2015 (A2, document 5). The letter certified that the Applicant had worked at Stanley College during those dates but did not suggest that she was on leave;
neither maternity leave nor leave whilst her husband was overseas. At the hearing the Applicant’s representative confirmed that she was not on leave but that she did intend to go back to work in Australia at some point (Transcript, pages 16-17).
The Applicant also maintained in addition to purchasing a property in Victoria
(a block of land), they have made plans to enrol her daughter in a local school when they return to Australia. As evidence of this they provided a school area snapshot to support their intention to reside in Australia (Exhibit A2, Document 4). The Tribunal notes there is no evidence that the child has been enrolled in a school in Australia.
The Applicant also pointed to evidence of deposits held in an Australian bank account as reflecting their intention to reside in Australia (Exhibit R2, ST3, page 29; Exhibit R1, T5, page 33). However, as discussed with the Applicant’s representative, although it was submitted that ‘most of the savings’ were deposited in this Australian account, there was no evidence before the Tribunal as to what proportion of the Applicant’s savings was held in Australia as opposed to elsewhere (Transcript, page 15). The Tribunal accepts on the evidence that in November 2013 the Applicant and her husband had just over one hundred thousand dollars in a joint account in Australia (Exhibit R2, ST3, page 29).
The evidence regarding the Applicant’s intention to reside in Australia is mixed.

The Tribunal accepts that the Applicant and her husband hold that intention and that employment opportunities now appear to allow for them to reside in Australia. This is consistent with the Applicant’s evidence and that of her husband and the Tribunal accepts it.
The Tribunal finds that the Applicant and her husband have, understandably, prioritised the availability of employment in their decision to move and remain in Singapore.
The Tribunal finds that the evidence discussed above shows an intention to reside in Australia consistent with employment opportunities available to the Applicant’s husband. This factor weighs in favour of the Applicant having a close and continuing association with Australia.
Applicant on leave from employment in Australia while accompanying spouse overseas
As noted above, based on the evidence, the Tribunal finds that the Applicant is not on leave from employment in Australia. She resigned from her employment in August 2015, several months prior to moving to Singapore. There is no evidence she has been in paid employment since that time.
The Tribunal finds that this factor tends to weigh against the Applicant having a close and continuing association with Australia.
Ownership of property in Australia
The applicant jointly owns real estate in Australia which includes a residential property in Perth and a block of land in Victoria. While the Tribunal accepts the Respondent’s submission that there was limited evidence with respect to these properties including a lack of evidence of title, the Tribunal finds on the evidence that the properties were purchased by the Applicant and her husband.
The Tribunal places weight on the ownership of residential property in Australia in favour of the Applicant having a close and continuing association with Australia.
Payment of income tax in Australia over the past four years
The Applicant provided copies of her Australian Taxation Office Notice of Assessment as evidence that she had filed an Australian tax return in the financial years 2014/15, 2015/16 and 2016/17 – three of the four years prior to her application for citizenship. Copies of the Applicant’s husband’s Notices of Assessment from 2008 onward were also provided.
The Applicant’s assessment notices state that she had taxable income below the threshold resulting in a tax credit or no liability.
While the Applicant provided some evidence of having lodged tax returns in Australia during the four years she has been overseas, there is no evidence she has paid income tax during that period. The Applicant’s representative submitted that this was because any income the Applicant earnt was below the income tax threshold (Transcript, page 7).
The Tribunal places minimal weight to the filing of tax returns during the relevant period. While this is understandable, in the Tribunal’s view the lack of a payment of any income tax in Australia tends to weigh against the Applicant having a close and continuing association with Australia.
Active participation in Australian based activities or organisations
As noted above, the Applicant volunteered for several months for the Cancer Council (Exhibit A2, Document 6). She also submitted a membership card for the Cancer Council of Western Australia.
The Applicant also studied in Australia, completing two business diplomas and a training course in 2014 (Exhibit A2, Document 5).
The Tribunal finds that the Applicant has had minimal participation in Australian based activities and organisations in the four years prior to her citizenship application,

which weighs only slightly in favour of her having a close and continuing association with Australia.
Other considerations
The Respondent submitted that even if a close and continuing association with Australia were established the discretion should not be exercised in the Applicant’s favour because she has shown no good reason why it should be exercised nor any hardship she would suffer if it were not exercised (Transcript, page 14).
The Applicant submitted that one of her reasons for seeking citizenship was that the Applicant’s whole family were citizens except for her and for travel purposes this means different regulations apply to her. The Tribunal clarified that this was a submission with respect to the rules which applied when the family travelled to countries other than Australia. The Applicant’s representative confirmed this was the case and submitted that it was hard for the Applicant to get a visa to most countries. The Applicant also submitted she was concerned the citizenship rules may change and she did not know what the rules would be in the future and she did not want to live separately from her husband and children in the future (Transcript, pages 17-18).
The Tribunal understands the Applicant’s practical desire to have certainty about her circumstances but indicated that there was no information before it to suggest that changes to citizenship laws would result in the Applicant being separated from her family.
CONCLUSION
While the Tribunal accepts that the Applicant satisfies some of the relevant factors identified in the Policy which may indicate a close and continuing association with Australia,

most notably Australian citizen children, Australian citizen spouse, migration to and establish establishment of a home in Australia prior to moving abroad, an intention to reside in Australia and property ownership in Australia, ultimately they must be considered in the context of all the relevant factors.
The Tribunal accepts that the Applicant and her family have an intention to reside in Australia in the immediate future. The Tribunal accepts it was their intention to make a home here before they made the decision to move to Singapore for employment reasons.

Further, the Tribunal has found that during the relevant period, the Applicant invested in Australia in the form of residential property and maintained savings here. Further the Tribunal accepts that the Applicant felt an obligation to spent time in India supporting her father following the death of her mother.
However, these factors are not sufficient to demonstrate a close and continuing relationship with Australia during the Applicant’s extended absences.
Having had regard to the evidence and relevant factors, the Tribunal finds there is insufficient evidence to support a finding that the Applicant had a ‘close and continuing relationship with Australia’ in the four years prior to her citizenship application for the purposes of s 22(9) of the Act. Consequently, she does not meet the requirement to enliven the discretion in s 22(9)(d) of the Citizenship Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

3 December 2018, is affirmed
.

I certify that the preceding 116 paragraphs are a true copy of the reasons for the decision herein of Member S Burford

........................[sgd]................................................
Associate
Dated: 17 July 2020

Date of hearing:

Date final submission received:

6 August 2019

8 July 2020

Advocate for the Applicant: Mr Chandan Mehndiratta

Representatives for the Applicant: indeedvisa

Counsel for the Respondent: Ms Elle Tattersall

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2325

17 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing: Date final submission received:	6 August 2019 8 July 2020
Advocate for the Applicant:	Mr Chandan Mehndiratta
Representatives for the Applicant:	indeedvisa
Counsel for the Respondent:	Ms Elle Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers