Celia Gage and Minister for Immigration and Border Protection

[2014] AATA 373

[2014] AATA  373

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6896
Re	Celia Gage
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	13 June 2014
Place	Melbourne

The decision under review, being the decision of the Minister made 12 December 2013, to refuse the application of Mrs Gage for Australian citizenship, is affirmed.

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Deputy President J W Constance

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral –spouse of an Australian citizen - general residence requirement - close and continuing association with Australia – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) sub-ss 21(2), 22(1), 22(9)

CASES

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

Southall and Minister for Immigration and Border Protection [2014] AATA 47

SECONDARY MATERIALS

Australian Citizenship Instructions

Australian Oxford Dictionary

REASONS FOR DECISION

Deputy President J W Constance

13 June 2014 

INTRODUCTION

1. Mrs Gage is a citizen of the United Kingdom.  Her husband is an Australian citizen.  Their two children are citizens of both Australia and the United Kingdom.

2. Mrs Gage first visited Australia for a short period in 2005.  In 2006-2007 she lived in Australia for just over nine months. Since then she has lived in the United Kingdom and has made three short visits to Australia.[1]

   [1] Exhibit R2.

3. On 12 November 2013 Mrs Gage applied for Australian citizenship.  On 12 December 2013 Mrs Gage’s application was refused on the ground that she did not meet the residence requirements of the Australian Citizenship Act 2007 (Cth) nor did she establish the grounds for an exercise of the Minister’s discretion as to residency in the case of an application by the spouse of an Australian citizen.

4. Mrs Gage has applied to the Tribunal to review the Minister’s decision.  For the reasons which follow, the decision under review will be affirmed.

   RELEVANT LEGISLATION

5. Subsection 21(2) of the Act sets out a number of requirements for a person to be eligible to become an Australian citizen.  The relevant requirement in this application is that the Minister be satisfied that the person “satisfies the general residence requirement”. [2]

   [2] Subsection 21(2)(c).

6. Subsection 22(1) provides:

   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.

7. Subsection 22(9) provides the Minister with a discretion which may be exercised in the case of an applicant who is the spouse of an Australian citizen.  It provides:

   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.

8. In exercising its power to review the Minister’s decision in this matter the Tribunal has all the relevant powers of the Minister, including the power to exercise the discretion given in subsection 22(9) of the Act.  The Tribunal makes its decision on the evidence before it at the time the decision is made.

   ISSUE FOR DETERMINATION

9. Mrs Gage agrees that she does not meet the “residence requirement” of the Act unless the discretion provided by subsection 22(9) is exercised in her favour.  The only issue between the parties is whether I am satisfied that Mrs Gage had “a close and continuing association with Australia” during the period of four years prior to her application for citizenship, being the period commencing on 12 November 2009.

   THE FACTS

10. Unless stated otherwise the following findings of facts and the facts stated in the Introduction to these reasons are based on the evidence of Mrs Gage.  Mrs Gage gave evidence at the hearing of this application.  I am satisfied that she was an honest witness and I accept her evidence.

11. Mrs Gage was born in the United Kingdom in 1975.  She married her husband, an Australian citizen, in 2008.

12. The record of Mrs Gage's movements in and out of Australia[3] show that she has spent the following time in Australia:

    ·1 April 2005 to 21 April 2005;

    ·5 September 2006 to 8 June 2007 (nine months three days);

    ·2 January 2008 to 17 January 2008;

    ·1 November 2009 to 21 November 2009;

    ·10 December 2011 to 10 January 2012.

    [3] Exhibit R2.

13. During the nine months Mrs Gage lived in Australia she and her husband purchased a home, intending to reside here permanently.  She was employed on a temporary basis for about six months.  They left Australia as Mr Gage accepted an offer of employment in the United Kingdom.  They initially leased their property but later sold it when they realized that their absence from Australia would be longer than expected.  They have since purchased a home in the United Kingdom.   

14. Since leaving Australia in 2007 Mrs Gage has resided in the United Kingdom with her family.  She has visited Australia for three short periods to spend time with family and friends.  Mrs Gage and her husband plan to live permanently in Australia at some time, as yet undetermined.

15. In 2009 Mrs Gage was granted permanent residency status in Australia.

16. Mrs Gage has remained in frequent contact with family members and with friends in Australia.  She usually contacts family weekly and friends on a fortnightly basis.  Through friends she has made some financial contribution to charities in Australia.

17. On the birth of each of their two children Mr and Mrs Gage immediately applied for Australian citizenship and Australian passports on their behalf.

18. Mrs Gage has been unable to visit Australia more frequently than she has done so by reason of the birth of her children, the cost involved and the needs of the children’s schooling. She endeavours to engage her children with Australian culture and to remind them of their Australian heritage whenever she can.

19. Mr Gage gave evidence also.  I found him to be an honest witness and I accept his evidence.

20. Approximately 80 per cent of the employees of Mr Gage’s employer reside in Australia.  In his opinion his likely opportunities to advance within the company will be by employment in Australia.  He hopes to be able to return to live in Australia in three to five years, although he could be transferred elsewhere.

21. In a statement dated 17 February 2014[4], a Director of Mr Gage’s employer confirmed that both Mr and Mrs Gage have expressed an interest in Mr Gage being relocated to Australia when the opportunity arises. He states that he is supportive of such a move.

    [4] Exhibit A2.

    MRS GAGE'S ARGUMENT

22. Mrs Gage argues that she is committed to Australia and plans eventually to make Australia her permanent home with her family when Mr Gage’s employment permits.  She contends that her marriage to an Australian citizen, her close contact with family and friends in Australia and her commitment to living permanently in Australia at some time in the future warrants the exercise of the discretion in her favour.  She regards it as unfair that her husband and children are Australian citizens and she is not.

23. Mrs Gage referred me to the decision of the Tribunal in Southall and Minister for Immigration and Border Protection.[5]  In that matter the Tribunal was satisfied that the discretion given by subsection 22(9) should be exercised in favour of the Applicant.  However the facts found by the Tribunal show a much closer and long-established association with Australia, far beyond an association based on personal relationships.  In reaching its decision the Tribunal said, in part:

    … I find that Mr Southall’s association with Australia is particularly close.  I am struck not only by his economic, employment, academic, family and social connections with Australia, but also by his apparent emotional connection with this country and his long-standing identification as an Australian – even when not in Australia.  This close association has not only been present during the four years prior to his application for citizenship, but rests on a foundation of close association for the last 20 years.  It is a strong and enduring pattern and I have no doubt that it will continue into the future and culminate in his residence here permanently as soon as his employment allows.  Mr Southall and his wife Ms Doyle are in all ways invested in this country.[6]

    [5] [2014] AATA 47.

    [6] [2014] AATA 47, [23].

    CONSIDERATION

24. The Minister has issued the Australian Citizenship Instructions to provide guidance to those making decisions in respect of applications under the Act.  These Instructions reflect government policy and are not binding on the Tribunal.  However the tribunal should apply such policy unless there are “cogent reasons to the contrary”.[7]  I have no reason not to apply the policy in this matter.

    [7] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

25. In relation to the exercise of the discretion under subsection 22(9) of the Act the Instructions relevantly provide:

    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), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.

26. Before considering the application of the Instructions it is necessary to consider the wording of subparagraph 22(9)(d) which is to be interpreted in accordance with the ordinary meaning of the words used.  Counsel for the Minister has referred me to the following definitions in the Australian Oxford Dictionary:

    (a)“close” means “having a strong or immediate relation or connection”;

    (b)“continuing” means “to remain in existence or unchanged” and

    (c)“association” means “the act or an instance of associating; fellowship or companionship”.

27. Subsection 22(9)(d) requires that I be satisfied that Mrs Gage had “a close and personal relationship with Australia during that period.” [Emphasis added].  It provides that I may treat a period of time “as one in which the person was present in Australia as a permanent resident” in the circumstances set out.  Although paragraph 22(1)(c) only requires presence in Australia as a permanent resident for a period of 12 months prior to the application for citizenship, Mrs Gage needs also to rely on paragraph 22(9)(d) to meet the requirement of subsection 22(1)(a).  This is so by reason of her being present in Australia for only 40 days in the period of four years prior to her making the application.  Therefore I must be satisfied that Mrs Gage had “a close and personal relationship with Australia” in that four year period.

28. Mrs Gage had a close and personal relationship with her Australian spouse and children and her extended family and friends in Australia during the relevant period. She also maintained an interest in Australian culture and encouraged her children to be aware of their Australian heritage.  During this time she intended that when Mr Gage found a suitable position in Australia, she and her family would return to live permanently in Australia.  These are some of the factors which the Instructions indicate may demonstrate the necessary association with Australia.

29. On the other hand Mrs Gage has been unable to show that other factors referred to in the Instructions applied during the four year period.  She did not migrate to Australia and establish a home in the period. She returned to Australia only once and stayed here for only 40 days.  She did not own property in Australia in the period and there is no evidence that she paid tax in the four years.  I do not consider that Mrs Gage's contribution to charities in Australia is sufficient to establish an “active participation in Australian community based activities or organisations.”

30. During the relevant four year period Mrs Gage was physically present in Australia for only 40 days, far less than the 365 days referred to in paragraph 5.18 of the Instructions.  On this basis I give less weight to the factors in her favour than I would have had she been present in Australia for a longer period.

31. Counsel for the Minister referred me to several decisions of the Tribunal which considered similar applications for citizenship.  However it is essential that each application be considered on its particular facts.  Nevertheless there is nothing in the decisions to which I have been referred that is inconsistent with the decision I have reached.

32. In this case I regard the limited physical presence of Mrs Gage in Australia in the four years prior to her application for citizenship of particular relevance.  This, when considered in light of her very limited involvement in the Australian community, outweighs the connection which she does have with Australia.  Even taking into account all of Mrs Gage's associations with Australia since she first arrived in 2005, I am not satisfied that she has had “a close and continuing association with Australia” at any time other than during the nine month period in 2006 to 2007.  This is not a relevant period under the Act.

33. When it was put to Mrs Gage that she has a close association with a small number of Australians rather than with Australia she dismissed this proposition as “ridiculous.”  However it is necessary to consider the actual words of the legislation.  Subsection 22(9) does refer to “Australia” rather than “Australians”.  Further, as the subsection also requires that the person was a spouse or de facto partner of an Australian and a permanent resident during the relevant period, it is clear that more than a relationship with Australians is required by subsection 22(9)(d). 

34. In this application Mrs Gage has failed to satisfy me that she has the necessary association with Australia to enliven the discretion given by subsection 22(9) of the Act.

    CONCLUSION

35. The decision under review, being the decision of the Minister made 12 December 2013, to refuse the application of Mrs Gage for Australian citizenship, will be affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 13 June 2014 

Date(s) of hearing	9 April 2014
Advocate for the Applicant	Mr A Gage
Solicitors for the Respondent	Clayton Utz