David Southall and Minister for Immigration and Border Protection
[2014] AATA 47
•31 January 2014
[2014] AATA 47
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2882
Re
David Southall
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 31 January 2014 Place Sydney The Tribunal sets aside the decision under review and decides instead that Mr Southall, having had a close and continuing association with Australia as a permanent resident during the four years prior to his application for citizenship and thereafter and continuing, should be considered as having been present in Australia during that period in accordance with the discretion provided for in section 22(9) of the Australian Citizenship Act 2007.
............[Sgd]............................................................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship applicant married to Australian citizen –applicant does not meet residence requirements – exercise of discretion-application of Australian Citizenship Instructions – whether applicant has a close and continuing association with Australia – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21,21(4), 22(1), 22(2), 22(9)
SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
31 January 2014
David Southall is a Fijian born UK citizen. He first arrived in Australia as a baby with his parents in 1968 on a temporary visa. He returned to Australia in 1989 for approximately four months to travel and work and then returned again in 1993 to obtain a Masters degree from the University of Sydney, having been awarded an Australian Bicentennial Scholarship. He married his Australian born, Australian citizen wife, Emma Doyle, in 1994.
Thereafter, Mr Southall and Ms Doyle left Australia so that Mr Southall could take up a posting with his employer, Shell Australia, overseas. All of his postings since that time have been overseas – in the Netherlands, Venezuela and now in the United States. Mr Southall obtained Australian permanent resident status in 2003. He lodged an application for Australian Citizenship by conferral on 30 January 2013.
The difficulty for Mr Southall, in his application for citizenship, is that over the last four years he has been present in Australia for only 60 days (see table below). This means that he does not satisfy the general residence requirement in the Australian Citizenship Act 2007 (section 22(1)). I must therefore consider whether the discretion provided for in section 22(9) of the Act should be exercised in his favour.
ISSUES
Section 22(9) of the Act provides for a discretion in some circumstances to treat a period as one in which a person was present in Australia as a permanent resident:
(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.
There is no dispute that Ms Doyle is an Australian citizen, that she and Mr Southall married in February 1994 and that he became a permanent resident in 2003. Therefore the only issues are whether Mr Southall had a close and continuing connection with Australia during the four years before his application for citizenship, and, if so, whether the discretion in section 22(9) should be exercised.
DID MR SOUTHALL HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA?
The Australian Citizenship Instructions contain the following introduction:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
In relation to the discretion contained in section 22(9) of the Act, the Instructions say:
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicants must provide evidence that they maintained a 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 payment 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 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 if they have not been present in Australian for at least this period.
Mr Southall and his Australian citizen wife have been married for nearly 20 years. There is no doubt that theirs is a genuine and committed relationship.
Mr Southall’s wife’s parents live in Sydney as does one of her cousins. An uncle and another cousin and that cousin’s family live in Yass. Mr Southall and Ms Doyle have spent most of their Christmases over the last 20 years and three of the last four Christmases with her family in Sydney. When in Sydney, they generally stay with Ms Doyle’s parents, in whose house a room is kept for their use. Occasionally they stay in one of the properties Mr Southall and Ms Doyle own on the Sydney Lower North Shore.
Mr Southall and Ms Doyle have a familial relationship with close friends who live in Suttons Forest in NSW and who have asked them to be guardians of their three children aged 16, 12 and 8 years. Ms Doyle is godmother to one of the children.
From 30 January 2009 until 30 January 2013 (the relevant period) Mr Southall spent the following periods in Australia (at all times holding a permanent visa):
From
To
Days
28 December 2009
8 January 2010
12
10 August 2010
14 August 2010
5
24 August 2010
25 August 2010
2
17 December 2011
7 January 2012
22
21 December 2012
8 January 2013
19
Total
60
Prior to the relevant period, Mr Southall and Ms Doyle were in Australia for the following periods:
From
To
Days
17 December 1995
25 January 1996
40
19 December 1996
18 January 1997
31
13 December 1997
12 January 1998
31
15 December 1999
14 February 1999
31
21 December 1999
17 January 2000
28
22 December 2000
19 January 2001
29
18 December 2001
11 January 2002
25
18 December 2002
12 February 2003
57
24 December 2003
12 January 2004
20
27 December 2004
22 January 2005
27
23 December 2007
11 January 2008
20
1 January 2009
18 January 2009
18
Total
357
I note that their longest stay in Australia was from 18 December 2002 to 12 February 2003, after they were evacuated from Venezuela and “repatriated” by Shell to Australia. It is significant that they returned to Australia during this time.
Mr Southall and Ms Doyle state a clear intention to reside in Australia. They own, unencumbered, three residential properties here and nowhere else, the third of which they currently rent out but which they have identified as a future residence. They maintain links with family and friends through weekly and sometimes daily Skype conversations. They maintain financial bank based investments here, and nowhere else.
Mr Southall’s salary and potential pension are calculated in Australian dollars and his employer operates a tax normalisation policy based on Australian marginal tax rates. A letter from the Human Resources Manager of Mr Southall’s employer notes that he has applied for many positions with Shell in Australia and that he is included in a list of people to be chosen from in the event of positions opening in Australia. As recently as December 2013 he was approached by his General Manager who advised him of potential positions in Australia in 2014. He made his interest and availability for these positions known to his General Manager. Ms Doyle, working in the environmental marine science field in the US, as Project Manager in Marine Protected Areas Support, has developed links with Australian organisations in the same field, and in particular, with AusAID, with a view to continuing her career in Australia. She is currently working, on behalf of her employer, Gulf and Caribbean Fisheries Institute, on a two year project with AusAID concerning the Great Barrier Reef.
Mr Southall and Ms Doyle keep some of their possessions in Australia, at Ms Doyle’s parents’ home and at one of their residential properties. They have maintained relationships with their Australian dentist, general practitioner and optometrist practices over the last 20 years and rely on them as their primary medical service providers; their medical records stay with these practitioners. They maintain the Sydney Morning Herald front page as the home page on their computer.
All of this combines to indicate a firm intention to reside in Australia as soon as Mr Southall’s employment allows them to do so.
In addition to the three residential properties Mr Southall and Ms Doyle own in Australia, they have substantial financial investments with the St George Bank. These have been allowed to accumulate and no monies have been transferred out of Australia. In total, since 1998, Mr Southall and Ms Doyle have transferred more than $1.6 million to Australia.
Mr Southall’s salary income tax is paid in the US, according to local law, but at Australian marginal tax rates, according to Shell’s tax normalisation policy. However, he pays tax on the income he derives from the rental of his three residential properties, the mortgages for all of which he has paid off. He therefore derives no negative gearing benefit from the rental of these properties and pays more tax now than when he first purchased the properties. He also pays tax on the interest income from bank deposits.
Mr Southall and Ms Doyle have been members of the Long Reef Golf Club for 18 years, paying total annual membership fees of $2,000 to maintain involvement in and rights at that club. Until the group was disbanded in 2010, they were active members of the Bush Care organisation in Ms Doyle’s parents’ locality, planting saplings and removing weeds from the local bushland.
In addition, while overseas, they support Australian sporting teams in international contests; they have hosted Australia Day events overseas; and have been host to overseas visitors when they and the visitors have been in Australia. They have taken part in Australian expatriate activities at Mr Southall’s various overseas postings. I note the letter from the current United Nations Resident Co-ordinator in Papua New Guinea, David McLachlan-Karr, attesting to Mr Southall’s involvement overseas in the Australian community abroad and his attendance at diplomatic and cultural functions as a de facto representative of Australia. I also note the letter from the Australian Ambassador to Peru, formerly Ambassador to Venezuela, John M L Woods, describing Mr Southall’s prominent involvement in the Australian community in Caracas and his role in leading that community after the closure of the Embassy in 2003.
The Minister submitted that, because Mr Southall cannot point to a specific date on which he will return to Australia, then his intention to return is mere speculation. The Minister also submitted that the short returns to Australia by Mr Southall and Ms Doyle are in the nature of holidays and not indicative of a close association with Australia. In the face of the evidence summarised so far in these reasons, none of which has been controverted by the Minister, these submissions are unpersuasive.
I accept the evidence of Mr Southall and that of Ms Doyle. 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 longstanding 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.
Still, 60 days presence in Australia in four years is not much time. I am mindful of the passage in the Citizenship Instructions that says that “less weight” should be given to indications of a close association with Australia if a person has been present for less than 365 days in the four year period. However, I am also mindful of the passage in the Instructions that says:
Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
I consider that Mr Southall’s particularly close, longstanding and abiding association with Australia and the need, in accordance with the Instructions, to apply policy flexibly and in light of individual circumstances combines to support the conclusion that, notwithstanding the short amount of time he has been present in Australia in the relevant period, he had a close and continuing association with Australia throughout that period.
SHOULD THE DISCRETION BE EXERCISED?
Having reached the conclusion that Mr Southall had a close and continuing association with Australia throughout the relevant period, I see no reason not to exercise the discretion in his favour.
DECISION
The Tribunal sets aside the decision under review and decides instead that Mr Southall, having had a close and continuing association with Australia as a permanent resident during the four years prior to his application for citizenship and thereafter and continuing, should be considered as having been present in Australia during that period in accordance with the discretion provided for in section 22(9) of the Australian Citizenship Act 2007.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .........[Sgd]...............................................................
Associate
Dated 31 January 2014
Date of hearing 7 January 2014 Applicant In person Solicitors for the Respondent A Wong, DLA Piper
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