Davies and Minister for Immigration and Border Protection
[2014] AATA 245
•28 April 2014
[2014] AATA 245
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3038
Re
Bethan Davies
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 28 April 2014 Place Sydney The decision under review is affirmed.
.........................[sgd]...............................................
Deputy President RP Handley
Catchwords
CITIZENSHIP – Citizenship by conferral – Residence requirements – Ministerial discretion – Whether the applicant had a close and continuing association with Australia – Decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
Cases
Bungay-Burbidge and Minister for Immigration and Citizenship [2010] AATA 804
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118Secondary Materials
Australian Citizenship Instructions para 5.18
REASONS FOR DECISION
Deputy President RP Handley
Mrs Davies (the Applicant) has applied to the Tribunal for a review of the decision made by a delegate of the Minister for Immigration and Border Protection (the Respondent) to refuse her application for Australian Citizenship.
BACKGROUND
Mrs Davies was born in 1973 in Wales. She is married to an Australian citizen and has three children, all of whom are Australian citizens. Mrs Davies is currently living in Wales with her husband and children.
Mrs Davies first visited Australia in 1997. She and her husband came here on a working holiday for one year and left at the expiry of their visas on 13 March 1998. From that time, Mrs Davies states that she and her husband made plans to return to Australia to live. On 23 April 2003, she obtained a visa permitting her to remain permanently in Australia. Mr and Mrs Davies moved to Australia with a view to living here on 30 June 2003.
On 5 April 2005, Mrs Davies gave birth to her first child in Sydney. She subsequently applied for Australian Citizenship. Her application was granted on 3 August 2005. However, on 1 October 2005, she travelled back to Wales with her husband and child, without first attending a conferral of Australian Citizenship ceremony. Mrs Davies was depressed after the birth of her child and found the support of her family members greatly assisted her in coping. As a result, she and her husband decided to remain in the United Kingdom at that time. Mrs Davies has since had two further children – in 2007 and 2009 – both born in Wales. Australian Citizenship was conferred on her husband on 27 July 2006 and their three children are Australian citizens, the oldest by birth and the two younger children by descent.
On 13 July 2007, approval of the grant of Australian citizenship to Mrs Davies was cancelled because she had not attended a citizenship ceremony. Mrs Davies’ permanent residency visa expired in 2008. In February 2008, she was granted a subclass 155 (Resident Return) visa until 5 December 2012. On 5 December 2012, she was granted another Subclass 155 (5 year Resident Return) visa permitting multiple entries into Australia until 5 December 2013, but requiring that she apply for a Resident Return visa thereafter for further entry into Australia. Since then, she has been granted a further Subclass 155 visa. Her current visa expires on 8 November 2014.
Mrs Davies has remained in the United Kingdom since October 2005, other than a short trip to Australia between 4 December 2012 and 4 January 2013. During this trip, Mrs Davies submitted a second application for Australian Citizenship. This application was refused by a delegate of the Minister on 29 May 2013. The basis for this decision was that Mrs Davies had not been present in Australia for a sufficient period of time to meet the residence requirements for citizenship, and that she did not have a close and continuing association with Australia. Mrs Davies has applied to the Tribunal for a review of this decision.
LEGISLATION AND ISSUES
Applications for Australian Citizenship by conferral are governed by the Australian Citizenship Act 2007 (the Act). Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. The general eligibility criteria for Citizenship by conferral is stated in section 21(2):
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) 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; and
(h) is of good character at the time of the Minister's decision on the application.
Mrs Davies’ application for citizenship was refused partly because she did not fulfil the residence requirement referred to in s 21(2)(c). Section 22(1) establishes that the general residence requirement will be satisfied where:
(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.
There is no dispute that Mrs Davies does not fulfil s 22(1) as she was not present in Australia for all of the required period. Neither does Mrs Davies satisfy the relaxed requirements permitting a limited overseas absence contained in section 22(1A) and section 22(1B) of the Act.
The primary issue for the Tribunal is whether the Ministerial discretion contained in section 22(9) of the Act should be exercised to treat Mrs Davies as being present in Australia during the required period. Section 22(9) provides:
(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.
Mrs Davies’ husband has been an Australian citizen since 2006 (subsection (9)(a)). Mrs Davies was not present in Australia, other than for 31 days, in the 12 months immediately prior to her application, and only for those 31 days in the 4 years prior to her application (subsection (9)(b)). She has been a permanent resident since 2003 (subsection (9)(c)). Mrs Davies therefore satisfies the first three elements of s 22(9). The question for the Tribunal is whether Mrs Davies had a close and continuing relationship with Australia during this period (subsection (9)(d)) and, if so, whether the Ministerial discretion should be exercised to treat Mrs Davies as having satisfied the residence requirement.
Whether Mrs Davies had a close and continuing association with Australia during that period “is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the instructions”: Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, at [28]. The Australian Citizenship Instructions (the Citizenship Instructions) provide guidance on the exercise of the discretion in s 22(9). Paragraph 5.18 of the Instructions provides that:
… 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 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 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 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.
In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal stated that decision-makers should apply Government policy unless that policy is unlawful, or produces an unjust result in the circumstances of the particular case.
With respect to the application of paragraph 5.18 of the Citizenship Instructions, the Tribunal stated in Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher) at [47]:
In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
If the Tribunal decides to exercise the discretion in s 22(9), a further question remains as to whether Mrs Davies is ‘likely to reside in Australia … or maintain a close and continuing association with Australia’. This is a criterion of eligibility under s 21(2)(g) and was a basis of the decision to refuse Mrs Davies’ application for citizenship.
The Respondent also relies on s 24(5) of the Act which provides, relevantly, that where the Minister did not apply the s 22(9) discretion, the Minister “must not approve the person becoming an Australian citizen at a time when the person is not present in Australia”.
MRS DAVIES’ EVIDENCE
Mrs Davies provided a statutory declaration dated 28 November 2013 and gave evidence by telephone at the hearing. She stated that following the birth of her first child, she felt very isolated and suffered from anxiety and depression. On a visit to the UK in late 2005, Mrs Davies felt relief at being close to her family and friends, and decided to remain there until she was better able to cope. However, while her symptoms eased at that time, she remained depressed. In September 2006, Mrs Davies sought medical help and was diagnosed with Post-Natal Depression (PND) for which she was treated with medication and also had counselling. While recovering from PND, Mrs Davies became pregnant and, following the birth of her second child, again suffered PND. This also happened following the birth of her third child. Mrs Davies said that during these periods, her family provided invaluable support.
Mrs Davies said, although her family in Wales is not large, she is close to her sister and brother. They and their children all live within 10 miles of where Mr and Mrs Davies currently live. Her parents are deceased. She is not currently suffering from depression and thinks she would now be able to cope without the support of her family. Neither she nor her husband has any family in Australia although her husband’s sister is thinking of migrating to Australia.
Mrs Davies said she and her husband have constantly thought of Australia since they left in 2005, have remained in contact with three Australian friends, and have kept abreast of Australian current affairs and sport. Mr and Mrs Davies visited their friends in Australia in late 2012 to early 2013 and maintain contact by telephone. One of their friends has visited them in Wales and the other two will be visiting them in the UK this summer. She and her husband have both maintained their superannuation funds in Australia and Mrs Davies thought they might still have a dormant bank account here.
Mrs Davies said she and her husband began thinking of returning to Australia when their youngest child turned three and Mrs Davies finally concluded that there was no possibility of a recurrence of PND. In any event, if she had a recurrence of depression, she says she now knows the symptoms and would be better able to manage it.
Mrs Davies said she and her husband enjoyed the lifestyle in Australia and thinks her children would also love it. They visited Australia for a month in December 2012 to January 2013 and looked at options as to where they might live – perhaps in Sydney or Perth, although they did not consider specific schools for the children. Prior to the birth of their first child, they lived in Coogee but property prices appear to be very expensive there. At that time, Mrs Davies worked as a legal secretary. She is not currently working because of the needs of the three children. Mrs Davies said her husband runs a successful IT consultancy business and should have no difficulty finding suitable employment. He is based at home but travels to Sheffield and Manchester on a regular basis. Her husband is still in contact with some of his former colleagues in Australia but has not made any formal enquiries about employment in Australia.
Mrs Davies said she and her husband have no firm plans to return to Australia in the immediate future although they have had several discussions about doing so. She said it is more of a five year plan. They own their own home in Wales but the property market is poor at the moment and it would probably be better to rent out their house if they were to return to Australia. Mrs Davies said with her husband and children being Australian citizens, she is the only member of the family without citizenship. She wants the security of having Australian citizenship in case migration requirements change.
SUBMISSIONS
Ms Black, for Mrs Davies, submitted that the discretion in s 22(9) of the Act should be exercised in Mrs Davies’ favour because the facts indicate that she has maintained a close and continuing association with Australia. Mrs Davies remained in the UK in late 2005 because of factors beyond her control and has always retained the intention to return to Australia. Her time out of Australia is not a reflection of her intention to live in Australia but more of her inability to do so in the context of her PND, the need to be close to her supportive family, and the needs of her children.
Ms Black noted that when Mrs Davies and her husband moved to Australia in 2003 they sold their property in the UK with a view to establishing themselves in Australia. Furthermore, the fact of her having previously applied for citizenship is a reflection of her intention to reside here. Since returning to the UK, they have retained friends in Australia with whom they maintain contact, they have superannuation accounts here, and a five year plan to return. Ms Black submitted that the evidence supports a finding that they have a close and continuing association with Australia.
Ms Buchanan, for the Respondent, noted that in the four years prior to making her citizenship application on 28 December 2012, Mrs Davies made only one visit to Australia and was only present for a total of 31 days. While Mrs Davies has an Australian citizen spouse and children, the family have not lived here since 2005. Ms Buchanan noted that neither Mrs Davies nor her husband has any family in Australia, they do not own property here, have no employment here, do not pay income tax here, and have provided no evidence of involvement in the Australian community. By contrast, they have a property in Wales, where her husband has established his own business.
Ms Buchanan said while Mrs Davies says they have a five year plan, they have no immediate plans to return to Australia and have taken no concrete steps towards that end. Mrs Davies acknowledged that she wants the security of Australian citizenship in case the immigration rules change. However, as a permanent resident, there is nothing stopping her returning to Australia with her husband and children. Ms Buchanan contended that Mrs Davies did not have a close and continuing association with Australia in the period when she was not present here (s 22(9) and the discretion should not be exercised in her favour. Moreover, in relation to s 21(2)(g)), there is no indication that Mrs Davies intends to return to Australia to live here in the near future.
DISCUSSION
In terms of s 22(9)(d) and whether Mrs Davies “had a close and continuing association with Australia during that period”, as stated above, the Citizenship Instructions provide guidance on the exercise of the discretion, listing factors that may demonstrate a close and continuing association. Among those factors is whether the person has made regular return visits to Australia and whether they have had regular periods of residence in Australia during the relevant period. The relevant period here is the four years immediately before Mrs Davies made her application for citizenship on 28 December 2012, being 28 December 2008 to 27 December 2012.
In Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (Ul Haque) where, at [50], the Tribunal said that “While physical presence is not determinative, it is nonetheless, highly relevant to the nature of a person’s association with Australia”. Inevitably, the nature of the person’s association with Australia will be affected by the extent of the time the person has spent in Australia. I also note the rider to the list of factors in paragraph 5.18 stating that less weight should be given to the listed factors if the person has not been present for at least 365 days in the four years immediately before making an application for citizenship. As the Tribunal stated in Paula and Minister for Immigration and Citizenship [2012] AATA 543 (Paula), at [31], the use of the words ‘more weight’ and ‘less weight’ in the Citizen Instructions suggest a sliding scale of weight depending on how many days a person has been present in Australia in the relevant period.
Mrs Davies made only one visit to Australia, spending 31 days here in the relevant period. While wishing to have the support of her family while she was suffering PND is understandable, their youngest child is now aged 5 and Mrs Davies said she has felt able to cope since he was aged 3. Nevertheless, she and her husband have no immediate plans to return here - only a vague plan to do so during the next five years. Apart from thinking about where they might live during the course of their visit in 2012/2013, they have not taken any other steps towards returning to Australia.
The facts of this case differ from those in Bungay-Burbidge and Minister for Immigration and Citizenship [2010] AATA 804, to which Ms Black referred. In that case, the Tribunal found an intention to reside in Australia immediately or very soon after being granted Australian citizenship. The evidence does not point to such an intention in the present case. Equally, the facts differ materially from those in Paula where the applicant had been in Australia for 253 days in the relevant period but, most particularly, whose absence from Australia was found to be directed towards establishing a future for herself in Australia to which she was strongly committed.
Mrs Davies’ evidence indicates that she and her husband are well-established in Wales: they own a house near close family, and her husband has established a successful IT business. The reason for her pursuing her citizenship application is because she wants the security of citizenship in case the immigration rules change, remembering that her husband and three children are all Australian citizens. She does, nevertheless, hold a visa entitling her to permanent residence.
With regard to other relevant factors, while Mr and Mrs Davies have a few close friends in Australia with whom they have maintained contact, they do not own property here, have no employment here, do not pay income tax here, and have no other particular connection with the Australian community.
I am not satisfied that this is a case where the discretion in s 22(9) of the Act should be exercised in favour of the Applicant. While I am not unsympathetic to the situation Mrs Davies faced in 2005 after the birth of her first child, nine years have passed since then, during which Mrs Davies has only spent 31 days in Australia, on one visit. Her association with Australia has been very limited and, notwithstanding an idea that the family might move to Australia in the future, neither she nor her husband have any firm plan to do so. This is not an appropriate basis for the exercise of the s 22(9) discretion. Equally, the evidence would not support a favourable finding under s 21(2)(g) – the likelihood of Mrs Davies residing in Australia in the future is, at this time, uncertain.
Thus, the decision under review, to refuse Mrs Davies’ application for Australian citizenship, is affirmed. The rejection of her current application for citizenship does not, of course, prevent her from reapplying at a future date at which time she may have more substantial evidence to support her claim.
DECISION
The decision under review is affirmed.
I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .............................[sgd]...........................................
Associate
Dated 28 April 2014
Date(s) of hearing 17 April 2014 Date final submissions received 17 April 2014 Solicitor for the Applicant Ms S Black Solicitors for the Respondent Ms L Buchanan, Australian Government Solicitor
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