Corrigan and Minister for Immigration and Border Protection (Citizenship)

Corrigan and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2880 (21 December 2017)
Division:GENERAL DIVISION
File Number: 2017/0733
Re:Aidan Corrigan
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:21 December 2017
Date of written reasons: 16 January 2018
Place:Sydney

The Tribunal affirms the reviewable decision made on 18 January 2017 to refuse Mr Corrigan’s application for citizenship by conferral because he does not satisfy s 21(2)(g) of the Australian Citizenship Act 2007.
............................[sgd]............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
HOME AFFAIRS – citizenship by conferral – refusal of citizenship application – Applicant currently residing outside Australia – whether Applicant is likely to reside, or continue to reside in Australia – whether Applicant is likely to maintain a close and continuing association with Australia – Tribunal not satisfied that the Applicant is likely to reside in Australia or maintain a close and continuing association – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 22, 24
CASES
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Saba v Minister for Immigration and Border Protection [2014] AAT 579
Sabumei v Minister v Immigration and Border Protection [2014] AATA 348
Taher v Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque v Minister for Immigration and Multicultural Affairs and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Mrs J C Kelly, Senior Member

At the conclusion of the hearing of this matter on 21 December 2017, the reasons for the decision that was made were given orally. On 21 December 2017 the Tribunal served both parties with a copy of the order setting out the decision. On the same date, pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), the Respondent requested that the Tribunal provide written reasons for its decision. The written reasons are set out below.
The reviewable decision
The Applicant, Mr Corrigan, has made an application to the Tribunal to review the decision of a delegate of the Respondent, the Minister for Immigration and Border Protection, to refuse his application for citizenship by conferral because he did not satisfy s 21(2)(g) of the Australian Citizenship Act 2007 (the Act). The delegate found that Mr Corrigan did not satisfy s 21(2)(g) of the Act, as he was not likely to reside, or continue to reside, in Australia or maintain a close and continuing association with Australia.
The legislative and policy context
Section 21(2) of the Act sets out the general eligibility requirements for a person to become and Australian citizen. Relevantly s 21(2)(g) requires 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.
The Minister has issued the Australian Citizenship Policy (the Policy) to ‘provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations’. Unless there are cogent reasons not to do so, the Tribunal must take the Policy into account and give it an appropriate level of weight: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645; Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115 at [48] and [61].
Chapter 7 of the Policy relates to Citizenship by Conferral and Chapter 7A addresses the “Residence Requirement”.
Factual background
Mr Corrigan is an Irish national and currently resides in the United States of America.
He first arrived in Australia on 13 January 2009. He left Australia on 29 November 2009. In 2010 he studied in Spain for a master’s degree in his field of video production and marketing. He returned to Australia on 11 May 2011 and became a permanent resident on 7 March 2013.
On 9 May 2015, Mr Corrigan married his wife in Ireland. She is an Australian citizen. Her expertise is the use of social media for marketing. While in Australia, he and his wife lived in the inner west of Sydney, except for the month before they left Australia when they lived with his wife’s parents in western Sydney. On 23 December 2015, Mr Corrigan applied for Australian citizenship by conferral.
On 10 February 2016, a Departmental officer wrote to the applicant advising him of s 21(2)(g) of the Act, noting that the applicant had advised in an interview conducted on 3 February 2016 that he had a green card to work in the United States, and intended to move there in May 2016 and reside for a number of years, possibly indefinitely. On 12 February 2016, the applicant responded to the Departmental officer’s email, providing documents in support of his close and continuing association with Australia.
Mr Corrigan’s wife had applied for a Green Card through the Diversity Immigrant Visa Program, known as the diversity lottery, sometime in 2015. Mr Corrigan was granted a Green Card as her spouse. It was granted in about December 2015 and had to be taken up within six months.
Mr Corrigan and his wife left Australia for the United States on 2 May 2016. By that time, Mr Corrigan had resided in Australia for almost five years, from 11 May 2011, with several short trips overseas for various reasons. They leased an apartment in the United States from 24 July 2016. They can renew the lease on 23 July 2018 for 12 or 24 months.
On 18 January 2017, the delegate refused the application on the basis that Mr Corrigan did not satisfy s 21(2)(g) of the Act because:
(a)In an interview conducted on 3 February 2016, the applicant stated that he had a green card for work in the United States, that he and his wife intended to move to the United States in May 2016 and reside there for a number of years, possibly indefinitely;
(b)Departmental records showed that the applicant departed Australia on 2 May 2016 and had not returned since;
(c)The applicant had stated in his response to the Departmental officer’s email dated 10 February 2016 that the length of time he spent in the United States was dependent on what jobs he and his wife obtained;
(d)No strong evidence of an intention to return to reside in Australia was made by the applicant in response to the Departmental officer’s email of 10 February 2016, and no evidence was provided of a close and continuing association with Australia while the applicant resided in the United States;
(e)Given the applicant’s long-term absence from Australia, and lack of key evidence of an intention to reside in Australia or maintain a close and continuing association with Australia, the case that the applicant met the requirement under s 21(2)(g) of the Act was negligible.
On 12 February 2017, Mr Corrigan applied to the Tribunal for review of the delegate’s decision.
Both Mr Corrigan and his wife have changed their employment once since they have been in the United States. Mrs Corrigan’s current position involved a promotion for her. Mr Corrigan’s second job was one he preferred over his first job.
Mr Corrigan and his wife returned to Australia on 9 December 2017 at 20:57. They held a picnic attended by various friends on 10 December 2017. The statutory declarations of Mr Corrigan’s wife and 11 of Mr Corrigan’s friends were sworn on or after 10 December 2017. The hearing in this matter was held on 19 December 2017. They will return to the United States in early January 2018 where they will return to their employment in the positions referred to above.
The issues
The issues arising from s 21(2)(g) of the Act in this case are, if the application were to be approved:
(a)Whether Mr Corrigan is likely to reside in Australia or, if not:
(b)Whether he is likely to maintain a close and continuing association with Australia.
The evidence before the Tribunal
The documentary evidence before the Tribunal included:
·the documents provided to the Tribunal pursuant to s 37 of the AAT Act 1975 (the T-documents);
·statutory declarations from Mr Corrigan’s wife, parents-in-law, and brother-in-law, 16 statutory declarations from friends and work associates, and a letter from a work associate who also provided one of the statutory declarations;
·medical evidence in respect of Mr Corrigan’s wife;
·letters relating to the first jobs Mr Corrigan and his wife held in the United States;
·letters from the ABC and Opera Australia about work Mr Corrigan has been involved in or may undertake in the future;
·photographs taken in the Unites States, Ireland, and Australia;
·lease of an apartment in the United States;
·a receipt for a flight purchased on 24 September 2017 for Mr Corrigan and his wife from the United States to Australia on 24 July 2018;
·a statement for an Australian superannuation account in Mr Corrigan’s name; and
·a reference from McGrath Property Management in relation to the premises where Mr Corrigan and his wife lived in Sydney’s inner west from 9 June 2012 to 17 April 2016.
Mr Corrigan, his wife, her parents and brother, and seven of their friends who had provided statements/and/or statutory declarations, gave oral evidence before the Tribunal.
Consideration
Is Mr Corrigan likely to reside in Australia?
Mr Corrigan relied on the purchase of the flight to return to Australia on 24 July 2018 to demonstrate his intent to return with his wife at the time to live in Australia. He acknowledged that he had purchased the flight during this process involving his citizenship application. Both he and his wife told the Tribunal that they planned to return to Australia at that time and thereafter live and work in Australia.
There was evidence from the Human Resources Director of Opera Australia dated 28 September 2017, about Mr Corrigan’s work with that organisation from 2011 to 2016, that he was currently doing freelance work and that on his return in July 2018, “we would be delighted to offer him a longer term role, subject to the conditions of his work permit in Australia”. Opera Australia had sponsored him for a work-related visa in 2011.
The evidence before the Tribunal about a possible documentary project for the ABC in 2018 was a letter dated 22 December 2016 from the Head of ABC Arts. It expressed “interest” in the project in which Mr Corrigan was involved with a friend/colleague. From that document, the next step was that the ABC had to “commission” the project. Given that there is no evidence that the work had been “commissioned” as of the end of 2017, the Tribunal gives little weight to that proposed project. Based on his evidence, that project did not require Mr Corrigan’s presence in Australia in any event.
Mr Corrigan’s wife said that she had moved to her current employment in the United States in part because it is global, and has three offices in Sydney. It provides short-term office space. She is still on probation for her job but plans to approach her employer about a possible job in Australia.
Several friends of Mr Corrigan said that they were aware that Mr Corrigan was returning to live in Australia in July 2018. Some had heard that within the last couple of months and/or since Mr Corrigan’s return to Australia on 9 December 2017.
The Tribunal does not accept that it is likely that Mr Corrigan will return and reside in Australia in July 2018. Mr Corrigan’s parents-in-law and brother-in-law were not aware of Mr Corrigan’s plan to return to live in Australia in July 2018. Both his parents-in-law talked about their plans to visit Mr Corrigan and his wife in the United States in about September 2018, after a plan to visit in April 2018 became untenable.
The Tribunal does not accept Mr Corrigan’s submission that those witnesses were confused when they gave their evidence about that critical matter. It was the clear evidence of Mr Corrigan and his wife that they plan to live with her parents when they first return. They have stored furniture and household items in her parents’ garage which makes it unusable for other purposes. The Tribunal does not accept that if they had firm plans to return to live with Mr Corrigan’s parents-in-law in July 2018, they would not have conveyed that intention very clearly.
Mr Corrigan also relied on the date of the renewal of the lease on their apartment in the United States to support the claim that he and his wife will return in July 2018 to live in Australia. The flight is booked for the day after the current term of the lease ends. As the Tribunal noted above, the lease may be renewed for a 12 or 24 month period.
While there was evidence that Mr Corrigan and his wife did not think that the flight they have purchased was refundable, the flight purchase document does not state that. The document does not state that it is not transferable. In any event, Mr Corrigan may consider that that expenditure is a worthwhile investment, particularly if it achieves a successful outcome for his citizenship application.
Mr Corrigan and his wife went to the United States to advance their careers. They have each changed their employment advantageously. The Tribunal finds that their respective skill sets are very marketable and that the opportunities in the United States for advancement are much greater than in Australia. That is why they took the opportunity to live and work there after being granted Green Cards. In the circumstances set out above, the Tribunal does not accept that Mr Corrigan and his wife are about to walk away from those positions in July, a matter of seven months’ time.
Having considered the proposed return date of July 2018 which the Tribunal does not accept, it is necessary to consider the likelihood of Mr Corrigan residing in Australia in the future more generally.
In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, DP McMahon considered the meaning of the term “likely to reside in Australia” at [31]. He said:
It cannot mean “likely to take up residence in 18 months or two years’ time” or likely to reside sometime 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.
More recently, Senior Member Taylor SC in Saba v Minister for Immigration and Border Protection [2014] AAT 579 at [50] accepted that:
the intention to which section 21(2)(g) of the 2007 Act refers is one that is to be acted upon within a reasonably short time frame.
Taking into account the current and likely future circumstances of Mr Corrigan and his wife, discussed above, the Tribunal does not accept that he is likely to reside in Australia within the meaning of s 21(2)(g) of the Act. On the evidence, the Tribunal finds that he and his wife will continue to reside in the United States for the foreseeable future.
Mr Corrigan and his wife may return to live in Australia in the future. It will depend on the employment opportunities available to them in the United States or in other countries, including Australia. It will also depend on what may be referred to as life events, such as having a child, their health, and possibly security issues where they live.
Is Mr Corrigan likely to maintain a close and continuing association with Australia?
The factors set out in Chapter 7 of the Policy are relevant.
As noted by Britton SM in Ul Haque v Minister for Immigration and Multicultural Affairs and Citizenship [2013] AATA 118 at [44]:
Whether or not [the applicant] had “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 [the Policy].
The Tribunal notes that the matters listed in the Policy are not exclusive. The phrase “close and continuing association” is not defined in the Act. The words and the phrase are ordinary English words and should be given their ordinary meaning. The Macquarie Dictionary 2009 (5^th edition) defines “close” as meaning “near, or near together, in space, time, or relation”, “continuing” as meaning “to cause, to last or endure”, maintain or retain as in a position…to remain in a particular state or capacity,” and “association” as “the act of associating…the state of being associated…connection or combination”.
The Tribunal notes the following with respect to the application of the factors listed in the Policy, at page 70, to Mr Corrigan’s evidence:
·Australian Citizen Spouse or De Facto Partner: Clearly the applicant is married to an Australian citizen and has been since 9 May 2015. He has provided a marriage certificate in support of that claim, and the tribunal accepts that the relationship was one of a de facto nature prior to that, given the McGrath property reference from 2012.
·Australian Citizen Children: The applicant has no Australian citizen children.
·Length of Relationship with Australian Citizen Spouse or De Facto Partner: The Tribunal accepts, as stated, that Mr Corrigan has been in a relationship with his now-wife since 25 April 2009.
·Extended Family in Australia: There is evidence that Mr Corrigan has an extended family in Australia, namely his in-laws and including his brother-in-law. However, the Tribunal notes that his immediate family, his parents and three sisters, and many cousins apparently, from the evidence of friends who visited Ireland, are in Ireland.
·Return Visits to and Periods of Residence in Australia: The Tribunal has already referred to Mr Corrigan’s prior residence in Australia from May 2011 until departure in May 2016. He has not or had not returned to Australia after leaving in May 2016 until returning just prior to these proceedings, on 9 December 2017.
·Intention to Reside in Australia: Mr Corrigan is currently residing in the United States and the Tribunal has discussed his claimed intent to return to Australia in July 2016 which it does not accept for the reasons set out above.
·Employment in Australia: Mr Corrigan continues to work to some extent on a freelance basis for Opera Australia, however, he has held two fulltime permanent positions in the United States, having changed his employment as discussed earlier. The Tribunal notes that there is an offer to him, referred to above, of employment if he does return in July 2018 from Opera Australia, his previous employment, which obviously regards him very highly.
·Ownership of property in Australia: There is no evidence to suggest that the Applicant owns property in Australia. There was inconsistent evidence from him and his wife about their savings. The Tribunal has no documentary evidence to corroborate either claim but it accepts that they have considerable funds saved for the purpose of buying a house in Australia.
Evidence of income tax payment: There is evidence of income tax payments by Mr Corrigan for the years ending 30 June 2012, 30 June 2015 and 30 June 2016. The tribunal accepts Mr Corrigan’s evidence as to why there has not been a tax return lodged for the year ending 30 June 2017, taking into account the complexities of earning income in the United States as well.
Insofar as Mr Corrigan, his friends and colleagues make general assertions about his close relationships with his spouse’s extended family in Australia. As noted by Senior Member Britton in Ul Haque at [52]:
…although there may be some overlap, having a close and continuing relationship with his [Australian] family is not the same thing as having a close and continuing relationship with Australia.

In Taher v Minister for Immigration and Border Protection [2013] AATA 917, Senior Member Fice, at [47], noted “citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations”.
In Sabumei v Minister v Immigration and Border Protection [2014] AATA 648 at [25], Senior Member Walsh stated:
A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether that person has a close and continuing relationship with Australia in the relevant period
In this case, the Tribunal finds that Mr Corrigan’s ties to his spouse’s extended family and to all his friends and work colleagues is outweighed by the remainder of the factors that the tribunal addresses in relation to this matter.
The Tribunal is not satisfied that Mr Corrigan is likely to maintain a close and continuing association with Australia. In making that finding, the Tribunal has taken into account the evidence from his friends/work colleagues, some of whom have visited him and his wife in the United States. It has also taken into account the authorities to which Mr Corrigan referred. They include Hung Minh Le and Minister for Immigration and Border Protection [2014] AATA 382; Trang Tran and Minister for Immigration and Border Protection [2014] AATA 957; and Yunheng Tang and Minister for Immigration and Border Protection [2014] AATA 917. As the Tribunal commented at the hearing, decisions in other cases involving different facts do not assist the Tribunal which has to consider the facts in the case before it.
Section 24(5) of the Act
Section 24(5) of the Act provides as follows:
(5)If:
(a)the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b)the Minister did not apply subsection 22(9) in relation to the person; and
(c)the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
Section 22(9) of the Act sets out the following:
(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.
Mr Corrigan pointed, quite correctly, to statements in the Policy in Chapter 7 under the heading “Interaction with the residence requirement and discretions” at 81-82 which state:
If the applicant does not need the s 22(9) or s 22(11) discretion to be applied in order to meet the general residence requirement, but they are overseas at the time of the decision, the s 22(9) or s 22(11) discretion may be applied to avoid refusal under s 24(5) of the Act provided the applicant meet all criteria.
That statement is also made under the heading “Minister discretion – spouses and de facto partners (s 22(9) and s 22(10)” on page 95 of the Policy. Similar statements are made in Chapter 7A of the Policy. Mr Corrigan did not need the s 22(9) discretion to be applied in order for him to meet the general residence requirement.
The Respondent argued that those statements are inconsistent with the text and context of the Act, and took the Tribunal through the legislative history of the provision. The Respondent argued that it followed that those statements in the Policy should not be followed.
Given that Mr Corrigan has not satisfied the Tribunal that he satisfies either relevant criterion in s 21(2)(g) of the Act, the issue does not arise for decision in this case and it is not appropriate that the Tribunal consider it further. Further, as Mr Corrigan was in Australia when this decision was made, the issue would not have arisen if Mr Corrigan had been successful.
Concluding observations
In conclusion, the Tribunal makes the following observations.
Based on the evidence of his wife, having citizenship would be more convenient for her and Mr Corrigan, than his having permanent residence which, in the future, may require further applications and expenditure and perhaps some uncertainty.
The Tribunal does not consider that the convenience of the applicant is a relevant consideration in relation to an application for the conferral of citizenship under the Act, taking into account the Policy.
Finally, this decision relates to Mr Corrigan’s present circumstances. He may reapply for citizenship in the future.
Decision
The Tribunal affirms the reviewable decision made on 18 January 2017 to refuse Mr Corrigan’s application for citizenship by conferral because he did not satisfy s 21(2)(g) of the Australian Citizenship Act 2007.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.......................[sgd].................................................
Associate
Dated: 16 January 2018

Dates of hearing: 19 and 21 December 2017

Applicant: In person

Solicitors for the Respondent: Mr J Hutton and Mr D Eberl, Australian Government Solicitor

[2017] AATA 2880

21 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	19 and 21 December 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton and Mr D Eberl, Australian Government Solicitor