Dau and Minister for Home Affairs (Citizenship)

Dau and Minister for Home Affairs (Citizenship) [2019] AATA 2313 (30 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1491
Re:Hoang Anh Dau
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:30 July 2019
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member A Poljak
CATCHWORDS
CITIZENSHIP – Citizenship by conferral – residence requirements – whether the applicant had a close and continuing relationship with Australia – de facto partner of an Australian citizen – where applicant not overseas with Australia citizen de facto partner – where reasons why applicant outside Australian for a lengthy period of time not related to de facto relationship – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 24, 52
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kanis v Minister for Immigration and Border Protection [2018] AATA 3222
Taherv Minister for Immigration and Border Protection [2013] AATA 917
UI Haque v Minister for Immigration and Multicultural Affairs and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Australian Citizenship Bill (Cth)
Citizenship Policy, June 2016
REASONS FOR DECISION
Senior Member A Poljak
30 July 2019

Ms Hoang Anh Dau, the applicant, is a citizen of Vietnam. She was granted a student visa on 9 February 2009 and arrived in Australia on 27 February 2009. She has been in a relationship with an Australian citizen since 2010. The applicant left Australia on 22 October 2015, without her Australian citizen partner, to undertake studies in the United States.
The applicant lodged her current application for Australian Citizenship on 23 December 2016 (“Citizenship application”) under s 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). On 23 February 2018, the applicant’s Citizenship application was refused (“the decision”) as the Minister’s delegate found that she did not satisfy the general residence requirements in s 22(1)(a) of the Act. The Minister’s delegate also found that the discretion in s 22(9) of the Act could not be applied because the applicant did not have a close and continuing association with Australia as required by s 22(9)(d). This is the decision under review in these proceedings.
The relevant period for the purposes of s 22(9) is 22 October 2015 to 23 December 2016 (“the relevant period”); being the date that the applicant left Australia and the date of her current application for Australian citizenship.
During the relevant period, the applicant met the requirements of s 22(9)(b) and (c). This was because she was not present in Australia and was a permanent resident, having being granted a Skilled Independent (subclass 189 visa) on 16 October 2014.
The issues before the Tribunal in these proceedings are whether:
(a)the applicant was a spouse or de facto partner of an Australian citizen during the relevant period (s 22(9)(a)); and
(b)the applicant had a close and continuing relationship with Australia during the relevant period (s 22(9)(d)).
RELEVANT LEGISLATIVE PROVISIONS
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming a Australian citizen. Subsection 24(1A) of the Act provides “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)”.
Section 52 permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.
Paragraphs 21(2)(c) and (g) of the Act relevantly provide, respectively, that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the general residence requirement pursuant to s 22; and 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.
Subsection 22(1) of the Act sets out the general residence requirements as follows:
1Subject 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.
Subsection 22(9) of the Act provides:
9If 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. [Emphasis added]
The Citizenship Policy (”Citizenship Policy”) sets out the evidence required to be provided by applicants who are seeking the exercise of the residence requirement ministerial discretion under s 22(9). It also provides guidance to decision-makers on the interpretation and exercise of the powers under the Act generally. The Tribunal is not bound to strictly apply the Citizenship Policy however, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Background and Consideration
In considering whether the applicant satisfies the criteria contained in s22(9)(d), I must be satisfied that the applicant had a close and continuing association with Australia during the relevant period. As noted by Senior Member Britton in UI Haque and 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].”
Chapter 7A of the Citizenship Policy, dated 1 June 2016, provides:
Under s22(9), period spent overseas by permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat period spent overseas by an applicant has period during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
·     the applicant was the spouse or de facto partner of a person who was an Australian citizen and
·     the applicant was a permanent resident and
·     the applicant had a close and continuing association with Australia.
…
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.
The applicant has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making the application for citizenship. As such, under the Citizenship Policy, more weight should be given to the listed factors above.
The Citizenship Policy also states that the applicant will need to provide “evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained close and continuing association with Australia during the period”.
The respondent accepts that the applicant migrated to Australia and established a home prior to her period overseas and that she has been in a long-term relationship with an Australian citizen. The applicant has provided evidence that she has been in a long term relationship with her Australian partner since before November 2010 and has lived at his property in Armadale, Victoria, since July 2011. However, the evidence shows that there were some breaks in cohabitation, particularly since late 2013 when the applicant’s partner began travelling a lot. At hearing the applicant stated that they had a long-distance relationship since that time. The applicant and her partner are financially independent and do not have a joint bank account.
The applicant was employed casually at RMIT University as a Sessional Tutor and Lab Assistant from March 2013 until September 2015. There is no evidence that the applicant maintained employment in Australia during the relevant period. The respondent accepts that the applicant has paid very modest amounts of tax in Australia while working at RMIT and has provided her tax returns for the 2012-2013, 2013-2014 and 2014-2015 financial years.
On 22 October 2015, the applicant left Australia for the United States of America to undertake a PhD program in Computer Science and a prestigious Dean’s Distinguished Fellowship Award beginning in the Fall 2015 term at the University of California, Riverside. In an undated letter, Professor Keogh, from the Department of Computer Science and Engineering, University of California, Riverside advised (unedited):
“[The applicant] is a very ambitious person; she wants to high impact research at a top fifty-university. I am flattered she chose UCR and my lab. However, her ultimate ambition is to return to Australia (very specifically, Melbourne) and have a successful career in academia, with perhaps a side career in an entrepreneurial capacity.
…
…This year I have obtained funding (NSF IIS-1510741 $1.2 million, Google Research $280K) that will allow me to fully fund [the applicant] for up to six years (although I expect her to finish her PhD in only four years, given her “head-start” from RMIT).” [Emphasis added]
In a letter dated 17 January 2018, Professor Keogh advised:
“[The applicant] has expressed her wish to graduate in late 2018 or early 2019. As her sole academic advisor, I see this totally within her reach, as she has already published in high-impact venues and journals.”
At hearing, the applicant advised that since she left Australia in October 2015, she has been residing in the United States. In regards to travel, she said that she travelled to Vietnam once a year to see her family; travelled to Canada to present her work at a conference; and undertook two summer internships in Boston. During the relevant period the applicant obtained a Californian driver’s license, opened bank accounts in the United States and was paying utilities in the United States. She stated that when she left Australia, she did not have any intention of residing with her Australian partner in the United States and said that he never visited her since she moved there in October 2015. The applicant advised that she returned to Australia once in December 2016 for 14 days but her partner was in Vietnam at that time so they did not see each other. They did not physically see each other again until a few days before the hearing in these proceedings which occurred on 14 December 2018.
The applicant has provided some photographic evidence that as at 6 December 2017, some of her personal possessions still remain in the property she once resided in with her Australian partner in Armadale, Victoria prior to leaving Australia. The possessions include some furnishings, personal photographs, books and clothes. The applicant has a UniSuper account in Australia, which as at 1 January 2017 had a balance of $3,262.54.
I have before me numerous statements from Australian citizens and colleagues about the applicant’s relationship with Australia and her desire and intention to return. I accept that the applicant keeps in touch with Australian citizens through social media, messages, and emails and with some telephone contact.
Both the Citizenship Policy and extrinsic material associated to s 22(9) of the Act indicate that the discretion should be excursed in circumstances where a citizenship applicant is overseas with their Australian citizen partner.
The explanatory memorandum to the Australian Citizenship Bill (Cth) (“the Bill”) said at page 29:
“[Subsection 22(9)] amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
Associated with this new discretion, a new provision (subsection 24(5)) provides for approval of applications where the spouse is outside Australia.
…
Proposed paragraph (5)(b) enables spouses who may be overseas with their Australian citizen spouse to be approved as an Australian citizen while outside Australia. The exception is consistent with the introduction of the residence discretion for the spouse of an Australian citizen.”
In Taherv Minister for Immigration and Border Protection [2013] AATA 917 Senior Member Fice stated at [36]:
“If I am correct in my understanding of the object or purpose of s. 22(9) of the Citizenship Act, then, simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a precondition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and reasons why the applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.” [Emphasis added]
In Kanis v Minister for Immigration and Border Protection [2018] AATA 3222, Senior Member Kirk said at [54]:
“…the discretion, while unconfined, must only be exercised in circumstances consistent with the objects and purposes of s 22(9). The legislative history of the discretion indicates it was not intended to relieve a person from satisfaction of the general residency requirements merely on the basis of their spousal relationship with an Australian citizen. There must be a reason or reasons, associated with the spousal relationship, for the person’s absences from Australia that provide a justification for the exercise of the discretion.” [Emphasis added]
On the available evidence, I am not satisfied that the applicant had a close and continuing association with Australia during the relevant period. The applicant was not living in Australia during the relevant period and I am not persuaded that during her time in the United States she had a close and continuing connection with Australia. While I accept that during the relevant period the applicant maintained contact with Australian citizens, had some limited property in Australia, had a superannuation account and had a strong desire and intention to one day return, these factors are insufficient to overcome her absence during the period. Significantly, there is no evidence to support a finding that the reason for the applicant’s absences from Australia was related to her de facto relationship with her Australian citizen partner. The applicant’s absences overseas were for the purpose of undertaking study for her PhD. These absences were not associated with her spousal relationship with her partner. Accordingly, this is not a circumstance in which the discretion in s 22(9) should be exercised.
Paragraph 22A(1)(a) and s 22(6) of the Act
The applicant has submitted that in the alternative, ss 22A and 22(6) of the Act apply to the applicant’s circumstances. For completeness I will address these below.
Paragraph 22A(1)(a) provides:
1Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a)the following apply:
(i)     the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii)    the applicant’s engagement in that activity would be of benefit to Australia;
(iii)    the applicant needs to be an Australian citizen in order to engage in that activity;
(iv)   in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and…

Section 22A does not apply in these circumstances because the applicant’s studies are not referred to in the Special Residence Requirement determination made on 29 May 2013 and there is no evidence before me to support a finding that the applicant needs to be an Australian citizen in order to engage in her studies.
Subsection 22(6) of the Act provides:
For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
There is no evidence before me to support a finding that the applicant will suffer significant hardship or disadvantage if the 12 month period before she applied for Australian citizenship was not treated as one during which she was present in Australia as a permanent resident. To the contrary, the evidence of the applicant is that she travelled to the United States to study because of the superior opportunities available to her compared to that in Australia and that she has permanent residency in the United States.
Decision
The decision under review is affirmed.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

............................[SGD]............................................
Associate
Dated: 30 July 2019

Date(s) of hearing: 14 December 2018

Applicant: In person

Solicitors for the Respondent: J Hutton, Australian Government Solicitor

[2019] AATA 2313

30 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	14 December 2018
Applicant:	In person
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor