Bungay-Burbidge And Minister for Immigration and Citizenship
[2010] AATA 804
•20 October 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/0848
General Administrative Division )
Re: Elizabeth Bungay-Burbidge
Applicant
And: Minister for Immigration and Citizenship
RespondentDIRECTION- CORRIGENDUM
TRIBUNAL: Ms N Isenberg, Senior Member.
DATE: 26 October 2010
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The decision as published on 20 October 2010 was:
The decision under review is set aside.
- The Tribunal now amends that decision as follows:
The decision under review is set aside and remitted back to the Minister with the direction that the Applicant satisfies the requirements of s 21(2)(g) of the Australian Citizenship Act 2001 (Cth).
.............................[sgd]................................
Ms N Isenberg
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 804
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/0848
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH bungay-bURBIDGE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date20 October 2010
PlaceSydney
Decision
The decision under review is set aside.
....................[sgd]......................
Ms N Isenberg
Senior Member
CATCHWORDS
CITIZENSHIP- refusal of citizenship- general eligibility- likely to reside or continue to reside in Australia- maintain a close and continuing association with Australia- leaving Australia shortly after applying for citizenship- lengthy periods of absence from Australia- decision set aside.
LEGISLATION
Australian Citizenship Act 2007; sections 21 and 24.
Australian Citizenship Instructions; chapter 5.
CASES
Shi v Migration Agents Registration Authority (2008)
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Ann Nee Chang and Minister for Immigration and Citizenship [2009] AATA 14
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409)
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86
Hneidi and Minister for Immigration and Citizenship [2008] AATA 923
20 October 2010 REASONS FOR DECISION
Ms N Isenberg, Senior Member
BACKGROUND
1. Elizabeth Bungay-Burbidge, who was born in England, was granted an Australian permanent visa on 18 July 2003. On 5 June 2008 she applied for Australian Citizenship. The next day she departed Australia for Antigua, where she had previously lived for 25 years. On 7 April 2009, her citizenship application was refused. On 28 September 2009, Ms Bungay-Burbidge returned to Australia. She has applied to this Tribunal for review of the decision to refuse her citizenship.
RELEVANT LEGISLATION AND POLICY
2. Section 21 of the Australian Citizenship Act 2007 (the Act) relevantly provides:
"21 Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2)(g)A person is eligible to become an Australian citizen if the Minister is satisfied that the person is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved"
3. Section 24 relevantly provides:
"24 Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).”
4. The Minister's exercise of the discretion in section 24 is guided by the Australian Citizenship Instructions (ACIs). Chapter 5 of the ACIs provides:
"Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (s21(2)(g))
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 (eg public or private sector)
·Ownership of property in Australia
·evidence of income tax payment in Australia and
·current bank accounts in Australia.
5. The application for Australian citizenship by conferral, Form 1290, contains a declaration that refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the Applicant's intentions unless there is evidence to the contrary.
ISSUES
6. The Respondent conceded that, as at the date of her citizenship application, Ms Bungay-Burbidge met the residency requirements set out in section 22 of the Act.
7. The only question for the Tribunal then, is whether Ms Bungay-Burbidge satisfies section 21(2)(g) of the Act. This involves consideration of whether:
§she is likely to reside in Australia; or
§has a close and continuing association with Australia.
APPLICANT’S EVIDENCE
8. Ms Bungay-Burbidge said that she went to Antigua in 1981. She developed a business from about 1986: a ‘one-stop shop’ on the waterfront which provided medical, chiropractic, osteopathic, beautician and hairdressing services, mainly to the tourist yachts that would come to Antigua in the tourist season between November to May.
9. She first visited Australia in 1989. In 1994 her aged mother immigrated to Australia and lived very close to Ms Bungay-Burbidge’s sister, who had been living here since the 1970s. Ms Bungay-Burbidge then came every year to see her mother in the (Antiguan) ‘off season’. She applied for permanent residency in 1996 because she decided then that this is where she wanted to be long term.
10. She left Antigua in July 2007, appointing a manager to manage the business in her absence. Unfortunately, this proved to be a most unsatisfactory arrangement. She needed to return to Antigua in June 2008, hoping to sell the business and her house, anticipating that it would take 8-12 months to do so. However, three months after her arrival the economic downturn hit Antigua. She was fortunate to eventually be able to sell the goodwill of her business (albeit at a much reduced value). She leased the premises to the new business proprietor who, she understands, would like to eventually buy the premises. She was unable to sell her house, and let it instead for two years to a businessman and she anticipates that the lease will be extended.
11. The negotiations took longer than expected and she did not return to Australia until September 2009. She has been here since, other than a month in New Zealand earlier this year when she visited friends.
12. On her return to Australia she bought a campervan and travelled extensively around the west coast for five and a half months in order to find a place where she might settle down: ‘a reconnaissance’, as her sister described it (she had previously travelled extensively around the east coast). Her trip was financed by her United Kingdom (UK) pension; the proceeds of the sale of the business and the rental income from the two properties. Because she is trained in remedial massage, she helped some recovering cancer patients she met during her travels. She anticipates undertaking this or similar community service when she settles her accommodation. She has no need to work, and does not anticipate ever being eligible for any Centrelink benefits because her income would be likely to preclude eligibility.
13. She returned to Sydney at the end of August 2010 and is staying, rent free with a friend who is often away, in Bundeena. She is able to stay there for at least another three months.
14. She has decided that she would like to buy land in the Grafton area and build a house. That, of course, is dependent upon the sale of her property in Antigua. She spoke of an interest in car clubs and gardening. Her sister said Ms Bungay-Burbidge’s hobby could be described as ‘people’, because of her extraordinary ability to make lasting friendships. Ms Bungay-Burbidge will continue to travel, especially to see her international friends, as she has done throughout her life but has no immediate plans to do so. Ms Bungay-Burbidge has friends all around the world. Even her recent trip to Western Australia has produced open invitations to return. While she has ‘friends’ in Antigua they are largely transitory because they visit there on yachts and live elsewhere. Other friends are older and married with children and she does not always fit in with them because she is unattached. Two friends, Mr Seymour and Ms Yabsley, provided statements in support of Ms Bungay-Burbidge, attesting to her good character and to her kindheartedness.
15. As to family, Ms Bungay-Burbidge has a cousin in London and one in Vancouver. Her only other immediate family is her sister, Carolyn Farren, who lives in Melbourne, and who gave evidence at the hearing in support of Ms Bungay-Burbidge. They are close but Ms Bungay-Burbidge, having lived for so long in a tropical climate, does not want to live in Melbourne, notwithstanding the family ‘pull’. Even Ms Farren said that she herself goes to Europe for extended periods to avoid Melbourne in winter. Similarly, cities hold little appeal for Ms Bungay-Burbidge after being in the relative seclusion of Antigua.
16. Ms Bungay-Burbidge now has no ties with Antigua, and would only return there to finalise the sale of the business premises and the house when that occurs. If she were to visit, she would now have nowhere to stay, other than with friends. While Antigua is vibrant in the tourist season, it is not otherwise, and there is little to do unless you are working. Activities, she said, are confined to lying in the sun and going to bars, neither of which hold any appeal for her. She has an agent managing her two properties. Her sister speculated that, as people age, they become more interested in support networks and high level medical facilities. Antigua, while having some basic medical services, such as Ms Bungay-Burbidge’s previous business, does not have high level of care that an older person may need and one would have to go to the United States for higher level medical attention.
CONSIDERATION
17. Apart from the issues arising under s 21(2)(g) of the Act, there is a threshold question relating to the point in time at which I should consider whether the relevant statutory criteria have been met. The Respondent agreed that as a result of the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 103 ALD 467; 82 ALJR 1147; [2008] HCA 31, I am not limited to a consideration of the facts and circumstances as they existed at the time of the original decision, but should take into account the position as at the time of the Tribunal’s decision in reaching the correct and preferable decision. This was particularly relevant in this matter as, it seemed to me, there was quite some change in the Applicant’s circumstances between the date of the decision under review and the present time.
Intention to reside in Australia
18. In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon considered the meaning of the term "likely to reside in Australia" at [31]:
"It cannot mean "likely to take up residence in 18 months or 2 years time" or likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of citizenship or within a reasonable time thereafter."
19. I was referred to Re Ann Nee Chang and Minister for Immigration and Citizenship [2009] AATA 14, in which Senior Member Ettinger held that the Applicant must demonstrate an intention to reside in Australia immediately or very soon after being granted a certificate of citizenship.
20. The Respondent noted that the day after Ms Bungay-Burbidge applied for citizenship, she left Australia. Ms Bungay-Burbidge’s evidence was that she had to leave because the manager of her business in Antigua abandoned the business without notice and left the bank balance at zero. It is not altogether clear what Ms Bungay-Burbidge intended to do with her business on her return to Antigua, but she intended to sell her house. Her estimate, before leaving Australia, was that would take between 8 and 12 months to do so. The global financial crisis intervened and she could neither sell the house nor the business and its premises. I accept that she endeavoured for several months more to do so, and finally managed to rent the house, sell the business at a reduced figure, and lease out the business premises. The Minister contended that, at the time Ms Bungay-Burbidge departed Australia in June 2008, she did not demonstrate an intention to reside in Australia immediately or very soon after being granted citizenship. She intended to be absent from Australia for at least eight months and, as it transpires, was absent for 16 months.
21. However, I accept Ms Bungay-Burbidge’s evidence by way of explanation for her delayed return. What is clear now though, is that her involvement in Antigua is only that of absentee landlord. Her evidence was that she would probably only need to return to Antigua when the properties are sold in order to finalise things and to arrange transfer of all her money to Australia.
22. While Ms Bungay-Burbidge said she was travelling around Australia, looking for a place to settle, the Respondent noted that she had provided no evidence that she was engaged in such a process. In her evidence, she denied that she engaged in a prolonged sightseeing trip. It is true, as the Respondent notes, that for some time, Ms Bungay-Burbidge had no current fixed address. However, since August and at least for the next few months she is staying in Bundeena. Her trip has helped her decide that she wants to build a house in the Grafton area, when she gets her funds from Antigua.
23. The Respondent noted that Ms Bungay-Burbidge had not provided evidence as to what she might do once she decides where to live, by way of employment, recreation or otherwise, which may support her claim of an intention to reside in Australia. Her evidence was that she does not need to work as she has sufficient income from her UK pension, the proceeds of sale of the business, and the rental income from the two properties. In her evidence she spoke of an interest in car clubs and gardening, neither activity being conveniently available until she is less itinerant. She also gave evidence of an interest in palliative care, which was supported by both her sister and Ms Yabsley, and her intention to use her skills as a volunteer remedial masseuse. Again, such an activity is limited if one does not have a permanent base.
24. I am satisfied of her intention to reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.
Close and continuing association with Australia
25. Having come to my view in paragraph 24 above, it is not necessary for me to consider if Ms Bungay-Burbidge has a close and continuing association with Australia. Nonetheless, and for completeness, I turn to consider the evidence in respect of this criterion for citizenship.
26. Chapter five of the ACIs suggest a number of factors that might indicate a close and continuing association with Australia. These factors are relevant to determining whether an applicant is eligible for citizenship and, if so, whether the discretion to grant citizenship should be exercised.
27. Australian citizen spouse or de facto partner or Australian citizen children: Ms Bungay-Burbidge has no spouse or de facto partner nor Australian citizen children. Conversely, she has no spouse, de facto partner or children elsewhere. This factor therefore can be given little weight.
28. Extended family in Australia: Ms Bungay-Burbidge’s only immediate family member, her sister, lives in Melbourne, Australia. Her only other relatives, two cousins, live in London and Vancouver.
29. Return visits to Australia and periods of residence in Australia: Return visits to Australia may suggest a close and continuing association with Australia. According to movement records, Ms Bungay-Burbidge has spent the following periods in Australia over the last four years: from 12 July 2006 to 4 November 2006; from 22 May 2007 to 6 June 2008; from 28 September 2009 to 24 January 2010; and from 25 February 2010 to present. Before this, Ms Bungay-Burbidge made several visits, ranging from one week to seven months in duration.
30. Intention to reside in Australia: This is an element included in Chapter 5 of the ACI’s, which guides the assessment of whether there is a close and continuing relationship. However, it is also the first limb of section 21(2)(g) of the Act and has therefore been explored in paragraph 18 to 24 above.
31. Employment in Australia (eg public or private sector): Ms Bungay-Burbidge is of independent means and does not need to work.
32. Ownership of property in Australia: I accept Ms Bungay-Burbidge’s explanation that she cannot purchase property in Australia until she disposes of her properties in Antigua.
33. Evidence of income tax payment in Australia: Ms Bungay-Burbidge has not worked in Australia as she is of independent means. Consequently, she has paid no Australian tax, although she has a tax file number.
34. Current bank accounts in Australia: Ms Bungay-Burbidge has two current accounts, albeit with minimal funds. I accept her evidence that she transfers funds from Antigua as necessary, such as the costs required to buy her campervan.
35. Whilst I am not bound to apply policy guidelines such as the ACIs (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
36. Many of the factors are largely irrelevant to Ms Bungay-Burbidge’s circumstances and the fact that, for example, she has no Australian spouse or partner, has had no job in Australia and has paid no tax, can be given little weight.
37. I was referred by the Respondent to Hneidi and Minister for Immigration and Citizenship [2008] AATA 923 in which the Tribunal assessed whether the applicant had a close and continuing association with Australia (although in the context of the section 22(9) spouse discretion). The Tribunal considered that an unused opportunity to develop such an association was relevant, observing that the applicant “has had the opportunity to increase his association and connection with Australia for many years, but has not availed himself of that opportunity”.
38. In this matter the Respondent contended that while Ms Bungay-Burbidge has had an opportunity, over many years, to increase her association with Australia, there is very little evidence that such an association has been developed. I do not accept the Respondent’s contention that, with the exception of visits to Australia and the presence of the Applicant's sister in Australia, there is no evidence of a close and continuing association with Australia. To the extent that she may not have met the criteria in the ACIs, I accept her explanation for her failure to develop a closer association with Australia.
39. On balance, I also accept that her circumstances demonstrate a close and continuing association with Australia.
CONCLUSION
40. I am satisfied both of Ms Bungay-Burbidge’s intention to reside in Australia immediately or very soon after being granted a certificate of Australian citizenship, and also that her circumstances demonstrate a close and continuing association with Australia.
DECISION
41. The decision under review is set aside
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .....................................................................................
Associate: B. Dhanasar.Date of Hearing 7 October 2010
Date of Decision 20 October 2010
Representative for Applicant Ms Bungay-Burbidge (Self)
Solicitor for the Respondent Ms J Cumming, Clayton Utz
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