Chaliiya Supunyachotsakul and Minister for Immigration and Border Protection

[2014] AATA 103

[2014] AATA  103

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3819
Re	Chaliiya Supunyachotsakul
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	27 February 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

CITIZENSHIP – Application for citizenship by conferral – Whether applicant meets residence requirements - Whether applicant likely to reside in Australia – Whether ministerial discretion enlivened – Whether applicant has a close and continuing association with Australia –– Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

SECONDARY MATERIALS

Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013)

Revised Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

27 February 2014

1. Ms Supunyachotsakul (“the applicant”) was born in Thailand and is also a citizen of Thailand. On 2 June 2013 the applicant made an application for Australian citizenship.

   
   

   A delegate of the Minister declined that application because the applicant did not satisfy the “residence requirement” in s 21(2)(c) of the Australian Citizenship Act 2007 (Cth)

   
   

   (“the Act”). While the applicant accepts that she did not meet the residence requirement, she seeks the exercise of a Ministerial discretion under s 22(9) of the Act to treat the residence requirement as having been met. I have to determine whether the applicant had “a close and continuing association with Australia” in those periods that she was absent from Australia, being the four years prior to her making her application for Australian citizenship. The applicant travelled from Thailand in order to appear in person before the Tribunal at this hearing in Brisbane. I thank her for her courtesy to the Tribunal in so doing.

   INTENTION TO RESIDE IN AUSTRALIA

2. One of the reasons why the delegate declined the application for citizenship by conferral was because the delegate was not satisfied that the applicant “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” in the terms of s 21(2)(g) of the Act.

3. In Re Ho and Minister for Immigration and Ethnic Affairs,[1] Deputy President McMahon considered the meaning of the term "likely to reside in Australia":

   It can not mean "likely to take up residence in 18 months or two 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 any reasonable time thereafter.

   [1] (1994) 34 ALD 664, [31].

4. There is certainly contradictory evidence as to when the applicant intends to return to Australia. In the “Letter of Appeal” that the applicant lodged with her application to this Tribunal,[2] the applicant remarked: “I have all the intention of living in Australia, but I do not know when the business will allow me to move back permanently”. In giving evidence before this Tribunal the applicant, who has recently arrived in Australia to appear before the Tribunal, stated that she now intends to live in Australia. The applicant and her spouse have yet to find a residence of their own. There is no firm indication of when she and her spouse will move to Australia.

   [2] Exhibit 1, p 5.

5. If her application for citizenship was now successful I cannot be satisfied on the state of the evidence before me that the applicant would reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.

   RESIDENCE REQUIREMENT

6. To be eligible for the conferral of Australian citizenship the applicant has must satisfy the general residence requirement (s 22 of the Act), the special residence requirement (ss 22A or 22B of the Act), or the defence service requirement (s 23 of the Act).

7. Section 22(1) of the Act provides that the general residence requirement will be satisfied by a person if:

   (a)the person was present in Australia for the period of 4 years immediately before the day he or she 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 he or she made the application.

8. By s 22(1A) of the Act, the applicant will be taken to satisfy s 22(1)(a) of the Act if the total period of any absence in the four years immediately before 2 June 2013, which is the day on which she made an application for Australian citizenship, was not more than 12 months. By s 22(1B) of the Act, a person is taken to satisfy s 22(1)(c) of the Act if the total period of any absence during the 12-month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.

9. The applicant cannot satisfy any of these provisions. The applicant has agreed that in the four years immediately before making her application for Australian citizenship on

   
   

   2 June 2013 (“the statutory period”), she was present in Australia for a total of 293 days.[3]  I therefore find that that the applicant has not satisfied the general residence requirement in s 22(1) of the Act.

   [3] See Exhibit 4, p 4[6].

10. As a matter of completeness, I mention that the special residence requirement and the defence service requirement of the Act have no relevance to this application.

    MINISTERIAL DISCRETION

11. As I am satisfied that the applicant does not satisfy the general residence requirement (which is quite properly conceded by the applicant), the applicant seeks the exercise of the discretion which is conferred by s 22(9) of the Act which provides:

    Ministerial discretion — spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

    (9) If the person is the spouse ... 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:

    (d)the person was a spouse or de facto partner of that Australian citizen during that period; and

    (e)the person was not present in Australia during that period; and

    (f)the person was a permanent resident during that period; and

    (g)the Minister is satisfied that the person had a close and continuing association with Australia during that period.

12. The spouse of the applicant became an Australian citizenship in 2000.[4] The Minister has properly conceded that the applicant satisfies ss 22(9)(a), (b) and (c) of the Act. At issue is whether the applicant meets the requirements of s 22(9)(d) of the Act.

    [4] Exhibit 1, p 248-249.

13. The Australian Citizenship Instructions (“the Instructions”)[5] have been issued to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. Policy documents such as the Instructions will generally be followed by this Tribunal unless this would cause injustice in a particular case or where there are compelling reasons to disregard the policy.[6] There was no suggestion that following the Instructions would cause injustice to the applicant.

    [5] Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013).

    [6] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

14. The following extract from the Instructions, which is in evidence,[7]  provides:

    [7] Exhibit 1, p 212-213.

    5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))

    …

    Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.

    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:

    ·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

    ·employment in Australia where the person has been on leave to accompany their spouse or partner overseas

    ·ownership of property in Australia

    ·evidence of income tax paid in Australia over the past four years 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 s 22(9)(d), it is policy that more weight should be given 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 Australian for at least this period.    

15. The applicant has not been present in Australia for at least 365 days in the 4 years immediately before making the application. I will examine the factors that are set out in the Instruction to examine the nature of the association of the applicant with Australia.

16. Australian citizen children: The applicant does not have any children.

17. Long term relationship with Australian citizenship spouse: The applicant married her spouse in Thailand in 2010. The case of the applicant is that she has been in a long term relationship with him since they first met in 1999.

18. Extended family in Australia: The applicant has stated that she has a younger sister and cousin in Australia and that she keeps in touch with her family. The mother of her spouse lives in Australia and was present at the hearing to support the applicant.

19. Regular return visits to Australia

    : My enquiry has to be directed to the statutory period, having regard to s 22(9)(d) of the Act which refers to the “close and continuing association with Australia during that period”. On 13 October 2009 the applicant departed Australia. In 2010 she visited Australia for 59 days. On 1 August 2011 she arrived in Australia and departed on 9 September 2011 after being granted a permanent visa. The applicant next arrived in Australia on 10 December 2011 and departed on

    
    

    15 January 2012. During the statutory period the applicant made two return visits to Australia. The applicant in giving evidence stated that she visited Australia twice in 2011 because of the death of her father-in-law. I do not find that these visits can be regarded as regular return visits to Australia.

20. Regular periods of residence in Australia: There is no evidence that during the statutory period the applicant had regular periods of residence in Australia.

21. Intention to reside in Australia: The applicant stated that she intends to move to Australia. She also gave evidence of her affection for Australia having been educated at school and university in Australia. The applicant has maintained her health insurance membership and she has stated that she cannot use that membership outside Australia. The applicant is also a resident of Australia for tax purposes. The applicant tendered considerable documentary evidence which she contends indicates that she intends to return to Australia at some time in the future. She has tendered a number of circulars from the Brisbane City Council which indicate her interest in developments in Brisbane.[8] She has also tendered circulars which indicate that she is interested in developments in the real estate market.[9]

    [8] Exhibit 2.

    [9]  Exhibit 3.

22. Employment in Australia: During the statutory period the applicant was not employed in Australia.

23. Ownership of property in Australia: The applicant has not owned any real property in Australia. The spouse of the applicant owned a residence which was sold during the statutory period; settlement of that sale occurred in October 2009.[10] The applicant gave evidence why the property was sold rather than rented during her absence from Australia. One reason that was given by the applicant for selling the property was that she and her spouse could not live from the income of the property. Her spouse had given up his job before moving to Thailand to work on her business and they needed the proceeds of sale to live on as well as to use the capital on the business.

    [10] Exhibit 10.

24. The applicant has some investments in Australia which are funds in bank accounts. She also has some funds in an Australian superannuation fund from her past Australian employment.

25. Evidence of income tax paid in Australia over the past four years: The income tax assessments of the applicant are in evidence.[11] These records confirm that the applicant has certainly not paid any income tax in Australia during the statutory period.

    [11] Exhibit 5.

26. Evidence of active participation in Australian community based activities or organisations: There is no evidence that during the statutory period that the applicant actively participated in any Australian community based activities or organisations. The applicant and her spouse have within their means made some small donations to Australian charities.

27. The Instruction provides that the consideration of a delegate is not limited to the factors that are outlined in the Instruction. I can certainly consider other factors which are relevant to my consideration of the application. The applicant stated that she was absent from Australia during the statutory period because of her work in the development of a business which will market computer programs for mathematics teaching. During this time she has been in Thailand working with her father, who is the copyright owner of a mathematics text, in the development of computer programs for mathematics teaching. The applicant explained that she needs to be physically in Thailand because she needed the assistance of her father who has greater proficiency in mathematics than she has.

28. The applicant has stated that the computer programs for mathematics teaching will be marketed by an Australian company which was incorporated in April 2008. The certificate of registration of that company was admitted into evidence.[12] The applicant and another person have an equal shareholding in this company as well as being directors of the company.  Her spouse has IT expertise and has been providing assistance as an animator and in web design. The company has not sold any products or paid any Australian income tax. The applicant stated that their funds are limited and she did yet spend funds to market the products which she states have just been completed. The company does not employ any staff. The applicant did not provide any evidence in terms of any business plan or what funds had been injected into the business. The accounts of the company were not placed in evidence. There was certainly evidence that the applicant has visited schools in Laos to promote the work of the company. However, the applicant stated that the products of the company will only use the English language.

    [12] Exhibit 6.

29. After reviewing the evidence before me I cannot be satisfied that the applicant had “a close and continuing association with Australia” when she was absent from Australia for long periods in the four years prior to her making an application for Australian citizenship. One factor in the Instruction requires me to consider whether the applicant had close association with her relatives and extended family. I certainly accept that the applicant maintains a close association with her relatives and extended family. However, there is a directive in the Instructions not to give great weight to such a factor where the applicant had not been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship. In my view, the evidence does not disclose that the applicant had a close and continuing association with the Australian community. The applicant has not made a contribution to Australia during the statutory period such as by actively participating in any Australian community based activities or organisations during the statutory period. One way that the applicant may make a contribution to the Australian community is by the payment of income tax, but the applicant has not paid any income tax during the statutory period even though she is an Australian resident for tax purposes. The company has also not paid any company tax. The applicant did not call her spouse to give evidence. There is no suggestion that the applicant has been absent from Australia because her spouse has had opportunities for employment in Thailand, in fact, her evidence is that her spouse cannot work in Thailand and that he is only permitted to stay in that country for only ninety days at a time. This Tribunal is therefore unable to exercise the Ministerial discretion which is conferred by s 22(9) of the Act and it is not necessary to consider whether this discretion ought to be exercised.

    FAMILIARITY WITH AUSTRALIA

30. One of the matters the applicant raised with the Tribunal was her familiarity with Australia. She first came to Australia in 1993 on a temporary student visa.  In particular, she referred to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 which referred to the policy underlying the residency requirements of the Act:

    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.[13]

    [13] Revised Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) 38.

31. The applicant submitted that her application should be granted having regard to her knowledge of the Australian way of life. The applicant emphasised her education in Australia as well as her past employment as a marketing officer with a State Government Department. However, her familiarity with Australia is not, in itself, a sufficient basis for her application to succeed. Statements in explanatory memoranda to legislation cannot override the need for this Tribunal to apply the clear terms of the legislation.[14] For the applicant to succeed it is necessary that she satisfy the residency requirements of the Act which bind not only this Tribunal, but also the Minister. Parliament has required that these residency requirements should be satisfied before a person is granted the privilege of Australian citizenship.  It is because the applicant cannot satisfy these requirements that her application cannot succeed.

    [14] See Wik Peoples v Queensland (1996) 187 CLR 1, 168-169 [Gummow J]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264-265.

    CONCLUSION

32. I consider that the delegate of the Minister was correct in deciding that the applicant cannot be granted Australian citizenship because she does not satisfy ss 21(2)(g)and 22(9)(d) of the Act.

    DECISION

1. I affirm the decision under review.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 27 February 2014

Date of hearing	20 February 2014
Applicant	In person
Solicitors for the Respondent	Catherine Hayes, Clayton Utz