Bulrice and Minister for Home Affairs (Citizenship)
[2019] AATA 1871
•12 July 2019
Bulrice and Minister for Home Affairs (Citizenship) [2019] AATA 1871 (12 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5576
Re:Brian Bulrice
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 July 2019
Place:Sydney
The decision under review is set aside and the matter is remitted with a direction that the discretion in section 22(9) of the Australian Citizenship Act 2007 be exercised in favour of the Applicant.
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP - application for citizenship by conferral - refusal of citizenship - whether applicant maintains a close and continuing association with Australia - application of Citizenship Policy - decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Judd v Minister for Immigration [2017] FCA 827
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Li and Minister for Immigration and Border Protection [2015] AATA
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Roach v Electoral Commissioner [2007] HCA 43
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21
Secondary Materials
Australian Citizenship Policy, effective 1 June 2016
Macquarie Dictionary (online at 5 July 2019)
Home Affairs Resident Return Visa
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 July 2019
Mr Brian Bulrice (the Applicant) is seeking a review of a decision made by a delegate of the Minister (the Respondent) to refuse his application for Australian citizenship by conferral.
The Applicant is a citizen of the United States of America who first arrived in Australia on 28 July 2012 as the holder of a Partner (subclass 100) visa. On 29 January 2019 he was granted a Five Year Resident Return (subclass 155) visa.
On 8 June 2017 the Applicant, at that stage resident outside Australia, lodged an application for citizenship by conferral, the details of which will be discussed below. That application was refused by the Delegate on 7 September 2018 and on 25 September 2018 the Applicant lodged an appeal against that decision. That appeal was heard by the Tribunal on 28 June 2019.
The Delegate’s decision was based on an assessment that the Applicant did not meet the general residency requirements of the Australian Citizenship Act 2007 (the Act) in that he did not have a “close and continuing association with Australia”.
APPLICANT’S DE FACTO STATUS AND QUALIFICATIONS
The Applicant has been in a long-term relationship with an Australian citizen whom he met in 1986 and with whom he has lived since 1996.[1] His partner holds a senior medical appointment at the prestigious University of California which has involved extensive travel between the United States, Australia and other destinations. The Applicant’s relationship was recognised by the initial grant of a Partner Visa and their de facto relationship is accepted and recognised by the Respondent.[2]
[1] The partner was born in Australia, lost his Australian citizenship on acquisition of United States citizenship in 1996 but had his Australian citizenship restored on 11 November 2011. Section 37 Tribunal Documents at [31].
[2] Respondent’s Statement of Facts, Issues and Contentions at [17]; Section 37 Tribunal Documents at [31].
The Applicant is a graduate of a vocational nursing programme (details unknown) but has worked in both operating theatres and in medical administration positions.[3]
[3] Applicant’s Submission (7 January 2019) at page [8].
AN INITIAL CITIZENSHIP APPLICATION
The Applicant initially applied for citizenship by conferral on 3 July 2016. This application was apparently approved so that he was able to sit for and pass the citizenship test on 8 May 2017.[4] It then transpired that he had lodged that application approximately 20 days prior to having satisfied the requirement for four years lawful (with one year permanent) residency in Australia. As such, his application failed.
[4] Section 37 Tribunal Documents at [18].
The Tribunal notes that the Applicant received correspondence from the Department in the following terms, dated 4 June 2017:
“Hi Brian
Ministerial discretion can only be assessed for 3 in 4 years and 9 in 12 month period. You must still meet the 4 years lawful and 1 year permanent residency.
I’m sorry but you did not meet the 4 years lawful. If it was up to me I would grant it to you but I need to go by the legal requirements for discretion under the citizenship (sic) Act of 2007.
This is the part of my role I do not like doing. If you believe you have a case, you can appeal my decision, but I have to stand by my decision.”
The Gmail is signed by an Australian Citizenship and Ceremonies Officer of The Department of Immigration and Border Protection.[5]
[5] Ibid at [21].
The Applicant, quite correctly, points out that this determination by the Department made no mention of his application being deficient in terms of failing to meet any requirement to establish a “close and continuing association with Australia” (see below).
THE LEGISLATIVE FRAMEWORK
The granting of citizenship by conferral is provided by section 21 of the Act which, relevantly, provides:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
(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.
Requirements relating to the general residency requirements are set out in section 22 (relevantly):
22 General residence requirement
(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.
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 the 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.
Ministerial discretion--person in Australia would suffer significant hardship or disadvantage
Additionally, sections 22A, 22B and 23 of the Act provide for exemptions from the general residency requirement where an applicant’s case involves:
22A: Special residence requirement--persons engaging in activities that are of benefit to Australia
22B: Special residence requirement--persons engaged in particular kinds of work requiring regular travel outside Australia
23: Defence service requirement.
There is a further qualification of the requirements of the Act provided for in relation to a spouse or de facto partner of an Australian citizen. Section 22(9) provides:
22(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.
In making determinations under the Act, the Tribunal also takes account of the Citizenship Policy promulgated by the Department as a guide to decision-makers and the Citizenship Instructions which further amplify this advice.
As noted, this application turns (in large part, but not exclusively) on the question of whether or not the Applicant had a “close and continuing association with Australia.” In this respect, the Australian Citizenship Policy seeks to provide guidance for decision-makers. It states:[6]
[6] Australian Citizenship Policy page [70-71].
Factors that may contribute to a close and continuing association with Australia include:
·Australian citizen spouse or de facto partner
·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 and
·evidence of income tax payment in Australia.
When applications are being assessed under the discretionary provisions of section 22(9) related to applications by “spouse and de factor partners”, it is provided that:[7]
[7] Ibid at [95-96].
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.
In relation to both the Policy and the Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
“I do not accept the Australian Citizenship Instructions[8] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[9]
The Policy itself states clearly: “Policy cannot constrain the exercise of delegated powers under the Act or the Regulations”[10] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the facts pertinent to each individual case.
As stated above, this application turns upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement. There are two elements in this, the length of time which is a matter of fact and the degree to which he has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haq that “Whether or not [the applicant] has a “close and continuing association” … is a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions.”[11]
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
[8] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[9] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
[10] Citizenship Policy (1 June 2016) at page [1].
[11] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
The Macquarie Dictionary,[12] among its many definitions of the word “close” refers to
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[12] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32) and ‘continuing’ (def 3 and 6).
“Continuing” is defined as
3. to last or endure.
6. to go on with or persist in: to continue an action.
In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
·‘close’ means ‘having a strong or immediate relation or connection’;
·‘continuing’ means ‘to remain in existence or unchanged’; and
·‘association’ means ‘the act or an instance of associating; fellowship or companionship’.[13]
[13] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
As will be seen when the Tribunal considers the Applicant’s evidence, it would be hard to deny that his connection with Australia is not strong or that it has not been enduring, persistent or unchanged over a lengthy period.
Both the Policy and the Instructions make it clear that the check-lists which they provide, list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process.
PHYSICAL PRESENCE
Records tendered by the Respondent indicate that the Applicant was absent from Australia for periods of:
·1290 days in the four years immediately before he lodged his citizenship application, and
·302 days in the 12 months immediately before such lodgement.
These facts are not contested by the Applicant.
As such, the Applicant’s absences exceed the
·12 months in 4 years as defined in section 22(1A)(b), and
·90 days in the immediately prior 12 months defined in section 22(1B)(b).
Given that these are statutory delineations which the Tribunal cannot ignore, it falls to the Applicant to demonstrate that there are alternative circumstances, specifically applicable to him, which would allow these to be qualified by the exercise of Ministerial discretion.
There is no claim on the part of the Applicant that the special provisions of sections 22A, 22B or 23 of the Act are applicable.
Hence the Applicant must rely upon enlivening the Ministerial discretion provided for in section 22(9) related to applicants who are the spouse of an Australian citizen.
There is no disagreement that the Applicant satisfies the requirements of s 22(9) subsections (a), (b) and (c), the only issue is, does he satisfy subsection (d)?
MEANING OF “CLOSE AND CONTINUING ASSOCIATION”
As with so many of the key concepts in the Act, the Act itself contains no precise definition of what this formulation means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately there is no unanimity on that point and different decision-makers have come to different conclusions.
In both Li[14] and Vasiunina[15] the Tribunal discussed at some length the variety of opinions expressed on this topic.
[14] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]-[38].
[15] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]-[49].
The Respondent referred the Tribunal to a number of decisions, the gravamen of which are that “close and continuing” is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are “enough” to satisfy the requirement of a close and continuing association – although what “enough” might be is itself unclear. These authorities also support the Respondent’s proposition that this requirement of physical presence should be given more weight or consideration than the other three elements of section 22(9), although there is no authority for that in the actual wording of the legislation itself, as distinct from the Policy. Subsection 22(9) (d) is but one of four requirements, each of which must be met.
On the other hand, in Saba, the Tribunal said:
[47] I have already addressed the “more weight” guidance offered by the Australian Citizenship Instructions. That guidance neither says nor implies that a 365 day period of recent residence is a pre-condition to the statutory satisfaction contemplated by s 22(9)(d) of the 2007 Act. It is simply one factor that may inform the process of taking into account all relevant considerations.
[48] Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors (in which I would include the first factor relating to migration) are essentially concerned with personal relationships. Three of them are concerned with the either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership and tax obligations. Only one factor, the last one listed, refers to participation in “Australian community based activities and organisations”. I do not mean to suggest by this categorisation of the examples described in the Instructions that any ordering of priority can be discerned from mere numerical comparisons. [16]
[16] Saba and Minister for Immigration and Border Protection [2014] AATA 579.
In Paula the Tribunal stated:
[31] 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.[17]
[17] Paula and Minister for Immigration and Citizenship [2012] AATA 543.
In Judd v Minister for Immigration[18] Perry J determined:
[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 & 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”.
[18] Judd v Minister for Immigration [2017] FCA 827.
Both the Applicant and the Respondent referred the Tribunal to my own determination in Vasiunina[19] where I said:
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
does it mean merely a physical place on the face of the plant, a continent girt by sea?; or
does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
……….
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[19] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
THE APPLICANT’S SUBMISSION
The Respondent has based its case for the refusal of citizenship upon the simple proposition that the Applicant lacks evidence of a “close and continuing association with Australia”.
Applicant’s evidence
The Applicant refutes this by asserting that:
1)Throughout his life he has had a deep fascination with Australia, starting with the encouragement of his Australian-born school teacher in the United States and enhanced by his more than thirty year relationship/partnership with an Australian citizen.
2)He first visited Australia in 1988 to be here for part of the national Bicentennial celebrations and he has followed Australian life and politics, to the extent of having televisions set up at home (in California) to follow Australian news and sport.
3)He has been in Australia on numerous occasions, perhaps as many as 45, admittedly on each of these with his Australian partner.
4)His partner is a distinguished medical practitioner and surgeon, who has, in recent years, resided, taught and practiced in the United States, primarily at various campuses of the University of California. The Applicant has travelled with him and has otherwise devoted himself to his support, both emotionally as his partner and as his research/secretarial assistant supporting his professional activities.
5)His partner is the owner of a property in Vaucluse (NSW) and it has always been their intention for this to be registered in joint names, although this has not yet been done. When in Sydney he and his partner live at that address and, in their absence, it remains vacant.
6)He and his partner have been planning to return to Australia for some time, but this return has been delayed to accommodate his partner’s retirement plans. The Applicant conceded that he initially advised the Department that the couple planned to return to Australia in 2017 and that he failed to correct this advice when his partner’s retirement plans changed. A projected retirement was scheduled for June 2018 but, at the request of the University extended to January 2020. His partner is 76 years of age.
7)Although the Applicant has four remaining siblings and a network of friends in the United States, he has a friendship network in Australia and is close to the members of his partner’s family, all of whom are Australian residents.
8)He has an Australian Medicare card and various other commercial ties to Australia, including bank accounts, a TFN, a local mobile phone network plan and a Sydney Swans football club membership.
9)He has submitted Australian tax returns in relation to income from franking credits.
10)He has been an Australian permanent resident since July 2012 and is desirous of acquiring full citizenship in order to be able to participate more fully in the life of the Australian community. As a “political animal” (in the words of his partner) he would value the right to vote. He is also conscious of the fact that it is now possible for a person to hold dual Australian and United States citizenship.
Professor Williams’s evidence
The Applicant’s partner, Professor Russell Williams MB, BS, BSc, FRACS, FRCS, FACS is currently (and until January 2020) an academic surgeon at the University of California. Professor Williams gave evidence at the Tribunal in which he stressed his genuine desire to return to live in what is his family home in Vaucluse and in proximity to all his surviving family members. He affirmed all the details given by the Applicant, especially in relation to both his retirement plans and the career which the Applicant had, forgoing his own career in nursing or medical administration decided to work primarily as his professional support person.
In his written submission he states:
“As an important part of my academic work I am required to publish research manuscripts, write grant proposals, develop illustrative educational material for teaching handouts and produce materials for use on the podium, lecture screen at conferences and various national and international meeting sites.
Brian has a medical background garnered through his education and working in the operating room and is very adept at working with electronic media, literature searching, producing electronic illustrative material and the production of the actual manuscript. In other words he is a very valuable and a critical and an integral part of producing materials for my work. I asked him to interrupt his own career and become my full-time education assistant. He has done this and relishes the work.”[20]
[20] Included in the Applicant’s Further Submission (dated 10 January 2019) Exhibit R1 at Tab [2].
Apart from his career in the United States, Professor Williams worked with an Australian medical unit in South Vietnam during the period of Australia’s active involvement in the Vietnam war.
He stated that on return to Australia he would like to “give something in return” for a successful medical career by using his medical skills in the support of disadvantaged people through some sort of not-for-profit organisation where he would work on a voluntary basis.
Other testimonials
The Applicant provided the Tribunal with letters of support from several referees.[21]
·Mr Robert Hinkley BA, Dip Ed, LLB(Hons), Barrister at Law attests to the nature of the Applicant’s close and lengthy relationship with Professor Williams and states that the latter’s success owes much to the former’s assistance and support especially in the United States. Mr Hinkley analyses the decision of the Delegate and draws attention to what he sees at its flaws in “finding that there was no evidence of (the Applicant) establishing a home in Australia, (having) regular periods of residence in Australia and owning property in Australia” when all of these were manifestly evident.
·Dr Paul Tandy, MB, BS, FRCS, FRANZCO (an ophthalmologist) makes particular reference to the couple being “rarely separate” and to the Applicant’s role in supporting his partner’s career.
·Dr Peter Kyle, BSc.Agr, MB, BS, FRACPA, FRCPath (a haematologist) writes of his knowledge of the couple’s plans to relocate permanently to their home in Sydney following Professor Williams’ retirement and that he has been in contact with them during numerous return trips to Australia on their part.
·(Emeritus) Lieutenant Commander David Putman, BDS, Royal Australian Navy (a dental surgeon) writes that “Brian .. has made about 45 trips to Australia” over a 32 year period and that he has met with him on each occasion.
·Dr. Timothy Waddell MB, BS, FRCA (an anaesthetist) described the Applicant as “an Australiaphile” who is “totally integrated into the Australian life style. In fact, is more Australian in his thinking and actions than many I know.”
DISCUSSION
[21] Idem.
Considering the evidence
None of the statements provided either by Professor Williams or by any of the referees was questioned or challenged by the Respondent. The Tribunal thus feels confident in taking them at face value.
In terms of testing any claims made in these references, the only evidence provided by the Respondent is a travel record for the Applicant which shows that between November 2003 and April 2019 he made 30 separate trips to Australia.[22] There is no evidence from the Respondent as to any trips made between 1988, when the Applicant first came to Australia in the Bicentennial Year and that recorded for 2003. The Applicant in his Submission states:
“I have kept records of visits to Australia since 2003 and can show travel to Australia on about 45 occasions including estimates prior to the 2003 recorded dates.”[23]
[22] This appears as an Attachment to the Respondent’s Statement of Facts, Issues and Contentions.
[23] Applicant’s Submission (7 January 2019) at page [4].
It may well be that the exact number of trips lies between the 30 recorded in Tribunal documentation and the “about 45” referred to by Lt Cmdr Putman and the Applicant.
In either case, it is a considerable number of trips, albeit, most of them are of relatively short duration. What is however undeniable, is that if the word “continuing” is given its ordinary meaning, the evidence of the Applicant making between 30 and 45 trips to Australia cannot be characterised as anything other than demonstrating a “continuing” association.
Similarly the Tribunal finds no difficulty in accepting two other propositions, namely that as a couple the Applicant and Professor Williams rarely separate or travel separately and secondly that the Applicant has played a major supportive role in supporting and advancing the career of his partner.
Considering the Citizenship Policy
The Tribunal has set out above the check-list of factors, both in terms of the general approach to determining general residency requirements and the more extensive list related to spousal exemption considerations.
Clearly the Applicant has a lengthy relationship with an Australian de facto partner; has made numerous return visits to Australia with (limited) periods of residence here; intends to reside in Australia; has lodged tax returns in Australia[24] and his partner owns property in Australia which he intends to record as being in joint names.
[24] In an Attachment to his Submission (see fn 20) the Applicant provides details from the Australian Taxation Office covering the period 2012/2103 to 2017/2018 showing that in the first five years he was listed as “Return not necessary” and in the final year, receipt of a tax refund.
It is unlikely that a majority of same-sex couples will have children who are Australian Citizens. The Applicant admits that he has not participated in the Australian workforce, and although he stated in testimony that he would seek work on return to Australia there is no evidence that he has secured future employment pending that return. In any event he will be 59 or 60 years of age at that time. He does not have extended family in Australia, although his partner does.
Considering the Act
There is also provision in the Act that a person holding a permanent resident visa who is the spouse or de factor partner of an Australian citizen may have their absence from Australia qualified by reference to that status. The discussion of this provision of section 22(9) of the Act has been considered above, but once again it turns very much upon the close and continuing association criterion.
Considering the current Visa
The Applicant is the holder of a 5 Year Return Resident Visa (subclass 155) which he was granted in January 2019. He was initially granted a Partner Visa (subclass 100) in July2012 and became a permanent resident in July 2018.
The Department’s website states that in order to
Meet our residence or substantial ties requirements
You must either:
·have lived in Australia for 2 years (730 days) in the last 5 years as the holder of a permanent visa (or entry permit), or as an Australian citizen
·be able to demonstrate substantial ties to Australia that are of benefit to Australia.[25]
[25]Home Affairs Resident Return Visa >
Clearly the Department would not have granted the Visa in question if it had not been satisfied of the second leg of this requirement (the first being factually precluded), namely that the Applicant was “able to demonstrate substantial ties to Australia.”
The website further defines what may constitute these “substantial ties.” It states:
Your ties must be both substantial and of benefit to Australia. They include:
·business ties
·cultural ties
·employment ties
·personal ties
Substantial personal ties may be of benefit to Australia if the applicant is, or has been, a participating member of the Australian community and economy, and their ties enrich the lives of individual Australian residents and citizens.
Substantial personal ties may be that you regard Australia as home or have an intention to reside in Australia. You can see how examples of how to demonstrate these ties in Step by step under Gather documents.
The Applicant advances a strong argument that his ties to Australia have involved some participation in the Australian community and have enriched the life of an individual Australian citizen (Professor Williams) and perhaps other local friends. Equally the Applicant may already regard Australia as home and certainly has an intention to reside in Australia. He has certainly gathered documents to this effect.
The Tribunal has some difficulty in understanding and accepting that, on the one hand, the Department had no problem granting the Applicant a Subclass 155 Visa recognising that in his case “substantial ties to Australia” existed, and then going on to deny that the Applicant had a “close and continuing association with Australia”, on the other.
That however, does appear to be its position.
The Tribunal acknowledges that differing policy considerations and departmental instructions apply when decision-makers are determining Subclass 155 visa applications and that “substantial ties” and a “close and continuing association” are not identical concepts, nevertheless it seems to the Tribunal that they are both attempting to define what is essentially the same concept. The Tribunal does not accept that the Applicant can be found to have had “substantial ties” to Australia but be found not to have had a “close and continuing association” with Australia.
CONSIDERING THE FIRST APPLICATION
The Tribunal has noted that in 2017 the Applicant’s initial application for citizenship was approved, but that that approval was withdrawn when it was found that, due to an administrative error on the part of the Department it was processed when it should not have been, being 20 days in advance of the date of eligible lodgement.
In the hearing, counsel for the Respondent conceded, very properly, that this was an administrative error on the part of the Department and expressed some sympathy with the “frustration” which must have resulted for the Applicant.
Leaving aside the timing error, it is clear that in granting this initial application the Department was satisfied that the Applicant met all the legislative requirements for the grant to be made.
It would be somewhat perverse as an outcome for the Applicant to now be found, by the Department, not to meet those requirements, primarily as a result of the initial administrative error of the Department itself.
The Tribunal has sympathy with the Applicant’s compliant that:
“Both the first and second applications requested the exercising by the assessor of ministerial discretion with regard to my time spent outside Australia as a permanent resident and partner of an Australian citizen, be considered as time in Australia under section 22 of the regulations. This was not an issue for the first application assessor, although she subsequently recognized the requirement time of four years was deficient by days. However, it was the basis for denial of the citizenship application by the assessor of the second application.”[26]
[26] Applicant’s Submission (7 January 2019) at page at [1]-[2].
CONSIDERING THE WEIGHT TO BE ASSIGNED TO VARIOUS FACTORS
The Tribunal recognises that the Policy enjoins decision- makers to give ”more weight” to the question of physical presence in Australia then to some other factors. It also recognises that some authorities assign this consideration “paramount importance”.[27]
[27] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
However, it is equally clear that this is only one of many factors to be considered in such applications.
The Federal Court in Kumar made it clear that the “discretion reposed in the Minister by s 22(9) is “unconfined”[28] and that in its exercise, account may be taken of a variety of factors (not just those stated in the legislation) “provided those matters are not “definitely extraneous to any objects the legislature could have had in view” to use the words of Dixon J in Browning.”[29]
[28] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [20].
[29] Ibid at [23] referencing Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21.
In Taher, after considering the list of factors outlined above, and the stricture about the assigning of more weight to the physical presence factor, the Tribunal stated;
“In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia.”[30] (emphasis in original)
[30] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
The Tribunal derives from the authorities that consideration should be given to all relevant factors (Kumar) or on the basis of a multi-factorial approach (Judd), taking them in combination (Taher) and recognising that these elements may be assessed on a sliding scale (Paula), appreciating the ultimate significance of an applicant’s circumstances (Sabumei).[31]
[31] Sabumei and Minister for Immigration and Border Protection [2014] AATA 648.
CONSIDERING THE ESSENCE AND NATURE OF CITIZENSHIP
It may be that the safest way to frame this determination is by reference to the Preamble of the Act.
It is unusual for Australian federal legislation to have a Preamble (as distinct from an Objectives clause) and hence it is an indication that the Parliament expected decision-makers to draw some guidance from its provisions.
Preamble
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
The Preamble is more than simply a declaratory statement. In Roach, Chief Justice Gleeson of the High Court discussed it in the following terms:
“The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community…...”[32]
[32] Roach v Electoral Commissioner [2007] HCA 43 at [12].
The importance of citizenship is emphasised at the outset of the Citizenship Policy document which states: “Citizenship is a cornerstone of Australia’s inclusive and pluralist democracy.”[33]
[33] Citizenship Policy page 15.
Deputy President Breen said in Fenn:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home...[34]
[34]Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
In Ahmadi the Tribunal stated:
The conferral of citizenship is a privilege and those reposed with the task of assessing applicants necessarily are required to carry out their duties with due vigilance and with a critical eye.[35]
[35] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171].
These strictures impose on any decision-maker a substantial responsibility to take into account and carefully weigh all the evidence before it. The Australian government’s clear policy of not bestowing citizenship on individuals unqualified or deemed unworthy must be respected.
In this instance, the only matter before the Tribunal is that of having a close and continuing association with Australia. The evidence is to the effect that the Applicant has met all the other citizenship requirements.
CONCLUSION
While it is clear that the Applicant does not meet the express statutory requirements in relation to the amount of time spent physically in Australia during the prescribed periods, it is clear that he is entitled to seek the exercise of ministerial discretion due to his long-term de facto relationship with an Australian citizen.
In assessing all of the factors, both listed and unlisted, as relevant to determining the nature of the Applicant’s association with Australia, the Tribunal finds that the Applicant’s association can be characterised as “close and continuous.”
It may be inferred, in the absence of any indication to the contrary, that this was also the finding of the delegate in relation to the first citizenship application. In relation to the Applicant’s Resident Return Visa, the Tribunal notes that the Applicant satisfied the “substantial ties” requirement which was a prerequisite of the grant of the Resident Return Visa.
As a permanent resident there is no issue about the Applicant’s ability to travel to, from and remain in Australia. In terms of seeking the security and status of an Australian citizen however, everything appears to turn on this point. The Tribunal believes that the Applicant has demonstrated a close and continuing association with Australia and that the alternative view advance by the Respondent is not strong enough to deny the Applicant fulfillment of his long-term goal.
In these circumstances the ministerial discretion provided for in section 22(9) of the Act should be exercised in favour of the Applicant.
DECISION
The decision under review is set aside the matter is remitted with a direction that the discretion in section 22(9) of the Australian Citizenship Act 2007 be exercised in favour of the Applicant.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].............................................
Associate
Dated: 12 July 2019
Date(s) of hearing: 28 June 2019 Applicant: In person Solicitors for the Respondent: Harry McLaurin, Minter Ellison
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