Dhillon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 4274
•13 December 2022
Dhillon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4274 (13 December 2022)
Division:GENERAL DIVISION
File Number: 2021/6866
Re:Amrita Kaur Dhillon
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Mrs J C Kelly, Senior Member
Date:13 December 2022
Place:Sydney
The reviewable decision dated 23 August 2021 refusing the Applicant’s application for Australian citizenship by conferral, is affirmed.
..................................[sgd].....................................
Mrs J C Kelly, Senior Member
Catchwords
CITIZENSHIP – application for citizenship by conferral – citizenship application refused – applicant does not meet general residency requirements – whether the applicant should be exempted from the general residency requirements – whether the applicant has a close and continuing association with Australia – application of citizenship policy instructions – reviewable decision affirmed
Legislation
Australian Citizenship Act 2007
Cases
Khazzam and Minister for Immigration and Border Protection [2018] AAT 1269
Guillen Manzanilla and Minister for Home Affairs [2019] AATA 962
Minister for Immigration and Border Protection and Han [2015] FCAFC 79
Trang Tran v Minister for Immigration and Border Protection [2014] AATA 957
SECONDARY MATERIALS
The Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
13 December 2022
Introduction
The Applicant, Ms Dhillon, applied for Australian citizenship by conferral on 13 July 2021. On 23 August 2021 her application was refused because she:
(a)did not satisfy the general residency requirements under sections 22(1)(a) and (c) of the Australian Citizenship Act 2007 (the Act); and
(b)did not have a close and continuing association with Australia, which will warrant an exemption to the general residency requirements under section 22(9) of the Act.
The parties accept that the Applicant does not satisfy the general residency requirements under sections 22(1)(a) and (c) of the Act because she was not present in Australia for the period of four years immediately before the day she applied for citizenship, and she was not present in Australia as a permanent resident for the period of 12 months immediately before the day she applied.
The issue I have to decide is whether to exercise the discretion conferred by section 22(9) of the Act to treat a period referred to in section 22(1) of the Act as one in which the person was present in Australia. That is, to treat the four year and 12-month periods immediately before she applied for citizenship as ones in which she was present in Australia.
The Applicant satisfied three of the four criteria in section 22(9) of the Act:
·she was the spouse of the Australian citizen during that period;
·she was not present in Australia during the period; and
·she was a permanent resident during the period.
The fourth criterion of which I must be satisfied, is that she had a close and continuing association with Australia during ‘the period’, which is 13 July 2017 to 13 July 2021 (the relevant period).
Section 21(2)(g) is one of the general eligibility criteria in the Act. It is that a person 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. This criterion was not assessed by the delegate. The Respondent emphasised that it was not a matter to be considered in this case. I do not consider it.
For the reasons set out below, I am not satisfied that the Applicant had a close and continuing association with Australia during the relevant period.
The law and policy
Citizenship Procedural Instructions (CPIs) include guidance relating to applications for conferral of citizenship where a person does not meet the general residency requirements and seeks an exemption to those requirements pursuant to section 22(9) of the Act. CPI 11 at 3.3 provides a non-exhaustive list of factors that are relevant when considering whether a person has a close and continuing association with Australia.
CPI 11 at 3.2 provides that the requirement to maintain a close and continuing association refers to an association with Australia not with Australians. A close and continuing association with immediate /extended family or other social relationships or networks in Australia may not be sufficient to meet the legal requirement. The merits of every case must be carefully considered.
Factual background
The Applicant was born in Kenya in 1985. She and her husband are citizens of Kenya. The Applicant went to school and university in the United Kingdom (UK) from September 1998 until 2008. She returned to the UK for one year to study in 2009 and then returned to Kenya to work in 2010. She is a marketing specialist and has worked for companies in Kenya that are within her family’s group of companies until December 2013, and then again from January 2015 to the present time.
She was granted a permanent resident visa on 24 October 2015. Her current Subclass 155 (Resident Return) visa was granted on 26 August 2020.
Her husband attended university in Australia from 2006 and was working here from 2009. He became an Australian citizen in October 2012. They married in March 2013. She spent various periods of time in Australia in 2013, 2014 and 2015. On 31 July 2015, they both returned to Kenya to enable him to pursue a work opportunity. They have resided there since. Their two children were born in Kenya in September 2016 and November 2018. Both children are citizens of Australia and Kenya.
It is useful to consider the Applicant’s time spent in Australia during the period before 13 July 2017 and during the relevant period.
Before July 2017
Total
2009
1 visit
8 days
2013
3 visits
11, 16 and 20 days
2014
5 visits
79, 78, 60, 61 and 12 days
2014/15
1 visit
72 days
2015
3 visits
39, 73 and 9 days
2016
0 visits
After 13 July 2017 (the relevant period)
Total days present in Australia: 89
2017/2018
1 visit
45 days
2018
1 visit
22 days
2019
1 visit
22 days
The Applicant visited a cousin in Australia in 2009 with her mother. She first moved to Australia in January 2014 for about three months. She had to go out and come back in. She left Australia for the last time on 2 August 2019.
The Applicant’s circumstances
Both the Applicant and her husband gave oral evidence, as well as written statements. The statements of several people who are Australian citizens and friends or relatives of the Applicant were provided. One was telephoned during the hearing but did not answer. Documentation was provided by the Applicant and the Respondent.
Following are the circumstances raised by the Applicant or otherwise arising on the evidence and relevant to deciding whether she had a close and continuing association with Australia during the relevant period.
The Applicant describes her Sydney friends as her closest friends and like family and aunties to her children. They have children of similar ages and love to spend time together. They keep in touch on WhatsApp, FaceTime calls and social media. She is in contact with about 10 people and catches up with four or five when she returns to Australia. One or two of her friends have since moved to the UK.
The Applicant helped one of her friends by creating the logo for his Australian company.
The Applicant owns a two-bedroom apartment in Sydney’s Eastern Suburbs which she purchased in August 2014 using her savings and money given to her by her family. She and her husband lived there after the purchase until they returned to Kenya in July 2015 to enable him to take up the job offer in Kenya as Managing Director of a packing company which they both described as giving him invaluable experience which he could not pass up.
The apartment has been let since they left. It is no longer large enough for the family and it is likely that they will buy another property when they return to Australia. She keeps in touch with estate agents and receives property updates. However, finding another property needs to be done in person.
She has been paying the bills associated with property ownership including council and water rates and strata fees and levies. She has rented an Australia Post box since 2015.
The Applicant has been an active member of the Executive Committee of the strata committee of the apartment complex in which her apartment is located since about 2016, with a brief break when her son was young. This involves emails about weekly, regular conference calls, sometimes as long as two hours, and she attends the Annual General Meetings via teleconference. The Owners Corporation recently committed to major remedial works in the order of approximately $1 million.
The Applicant has two bank accounts in Australia. The deposits in both have grown to substantial sums.
The Applicant provided information about her taxpayer history in Australia from the 2014-2015 tax year to 30 June 2021.
Neither the Applicant nor her husband own any assets in Kenya. They are living in a home owned by the company her husband works for.
The Applicant has no caring responsibilities in Kenya, beyond her husband and two children. Her parents and three brothers live in Kenya. Her grandfather has passed away. Her relatives are not on speaking terms with her grandmother. Her part-time work allows her to be a ‘hands-on mum’. Her older child has ongoing health issues.
The Applicant provided copies of her membership card of a sailing club which is dated ‘30/06/2016’. She did not renew the membership. She has two children and does not sail. She joined for social reasons. She did have a meal at the restaurant on a visit in the relevant period. It is unnecessary to be a member to attend the restaurant.
The Applicant provided a library membership card and her loan history showing that she borrowed a book in July 2015, December 2017 and two books on 21 August 2018. She said ‘we’ have enjoyed going to the library when in Australia and provided two photographs of her daughter at the library in 2017 and 2019.
She is a member of a football club. She and her husband attended two matches before the children were born. She expressed a hope to become regulars at matches with the children who share her husband’s love of football. She follows the Sydney Sixers Cricket team on social media.
She has been a member of the NRMA since 2015 and enjoys the regular email updates which will be useful when they are back in Sydney.
The Applicant provided printouts of what appears to be the home page of Yumbox Lunch Ideas and Toddler Mums Australia Facebook page. She said that she joined the former to get ideas. She joined the latter when it began in 2020. It is a group of mothers who share parenting advice and experiences, and activities to do with children. She has not ‘posted’ to either group.
The Applicant provided what appears to be a print-out of a summary of 20 digital communications with Einsteinz Music, mostly undated. Three entries show indicators of attachments and refer to “your receipt”. Five refer to newsletters for Terms 1 to 4 2021 and Term 4 2020. She provided a photograph of her daughter at an Einsteinz music class. During the hearing, the Applicant said that her daughter had attended one music class.
The Applicant and her husband attended a Sikh Temple in Glenwood while in Australia. She follows the Facebook page, listens to prayers, and keeps up with what is happening in the community.
She and her husband have travelled to places in New South Wales, Tasmania, Western Australia, South Australia, the Northern Territory, Queensland, and the Australian Capital Territory. She hopes to take her children to those places.
The Applicant considers that the relative political stability of Australia provides a better environment than does Kenya, in which to bring up children.
The Applicant says that she wishes to continue with her Chartered Institute of Management Accounting (CIMA) qualifications in Australia. She provided what appears to be a print-out of her ‘My CIMA’ home page. It indicates that she is registered as a student with CIMA and has an ID. The location is ‘Australia’. The document refers to a ‘Coronavirus update’, from which I infer it has been downloaded in 2020 or 2021. She provided the results in four subjects which were completed in May, June and July 2010 ‘at the London School of Business and Finance’. She got an exemption from another subject because she has a BSc Hons Actuarial Science from City University, London. She holds a certificate level qualification. She is planning to continue with her studies and find a suitable job in Australia when she will have day care available for her son and full-time school for her daughter. Vetted nannies are not available in Kenya. She has been unable to continue the course because she is working part-time in Kenya and looking after her children.
The Applicant explained her absence from Australia as a consequence of accompanying her husband back to Kenya, as was culturally appropriate, to enable him to pursue a work opportunity for five years from 2015 and which has been extended during COVID-19 until October 2023. A number of projects her husband was working on were delayed because of global supply issues caused by the pandemic. He was requested to see the projects through.
The Applicant’s husband does not envisage it being necessary to extend his contract in Kenya. They have already started looking at internal candidates. He considers that there is a reasonable hand-over time. He is looking forward to returning to Australia to further his career. He and the Applicant have discussed starting their own business in Australia in the future. He is actively keeping an eye on the Australian job and general market through various websites but said that it is too early. He provided what was described as a LinkedIn entry. The one-page document was undated, and the source was not identified. It was entitled ‘Job preferences’, stated that he was ‘open to work’, set out his job titles, his workplaces were ‘on-site’, the locations ‘Australia’ and start date ‘Immediately, I’m actively applying’. The document was provided more than 16 months before the end of his contract.
He said that his wife has fallen in love with Australia, missed it and described how she maintains her connection, including with friends. She is keen that her children have a connection with the country.
The family plan to move back to Australia in time for their daughter to start school in Australia in the fourth term of 2023. The Applicant tried to register her daughter online at a public school in the Eastern suburbs but was unable to complete the process because her daughter does not have a Medicare card. They would also like to see the school and another private school to see which is the better fit. The Applicant also wishes to inspect any pre-school facility before enrolling her son and discuss his particular needs with the staff. Currently, both children attend kindergarten.
The Applicant was absent from Australia for 1,372 days in the four years prior to lodging her application for citizenship and absent for all of the 12-month period before she lodged her application. Putting it another way, the Applicant was present in Australia for 89 days in the four-year period. The last time she departed Australia was 2 August 2019. She stayed in hotels when she visited and with a relative.
Her two Australian citizen children have spent 89 and 21 days in Australia respectively, all within the relevant period.
The Applicant gave the following reasons for their travel history to Australia since 2015. Her husband gets limited time off work. She did not travel in 2016 because she was pregnant with her daughter. She did not travel more frequently to Australia in 2018 because of health issues associated with her second pregnancy. She required medical attention in Sydney in 2018 and treatment for back pain on both trips. It has been difficult to travel with two young children. It is a long distance, takes a long time, and involves transiting in a third country. The family intended to travel to Australia from 28 March to 19 April 2020 and from 24 March to 16 April 2022 but were prevented from doing so by COVID-19 related travel restrictions. She provided copies of communications with a travel agent in relation to the 2020 and 2022 travel, and information about restrictions on transit from Kenya via Dubai from 28 December 2021.
The Applicant provided documents relating to her daughter’s medical condition which included evidence of treatment in hospital in the early months of 2019 and her own numerous communications with a doctor about her daughter’s health from March 2019 to September 2020, up to a dozen times a day.
The Applicant said that relocating to Sydney with two young children is a big move requiring planning and needing to be in Sydney to look at schools and for a larger home. They were planning to do that over Easter 2020 and in 2022.
Consideration
The solicitor for the Applicant referred to and analysed cases where the applicant had been successful.[1] He cited a list of eleven relevant factors referred to in Khazzam and Minister for Immigration and Border Protection.[2] Those factors were derived from the policy then in force. As the Senior Member observed in that case, those factors are to be considered and given appropriate weight, but it does not mean that a mechanical approach is to be adopted. The factors set out in the relevant policy or CPIs and any other relevant circumstances are to be assessed.
[1] Guillen Manzanilla and Minister for Home Affairs [2019] AATA 962, Trang Tran v Minister for Immigration and Border Protection [2014] AATA 957.
[2] Khazzam and Minister for Immigration and Border Protection [2018] AAT 1269.
Relying on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection and Han [2015] FCAFC 79 at [54], he emphasised that section 22(9) of the Act must be construed as a mechanism to ameliorate the difficulty some applicants experience satisfying the general residency requirement and, in this case, the over-emphasis on the lack of physical presence in Australia defeats the purpose of the subsection. In support of this argument, he referred to Tran[3], where the applicant had been present in Australia for 38 days in the relevant period.
[3] Trang Tran v Minister for Immigration and Border Protection [2014] AATA 957.
The essence of the Applicant’s argument is that her and her husband’s absence from Australia is temporary and was extended beyond 2020 because of COVID-19. Their plans will be realised in 2023 when her husband’s contract ends. In all the circumstances, she has maintained a close and continuing association with Australia in the period 13 July 2017 to 13 July 2021.
The Applicant migrated to and established a home in Australia before her period overseas. Considering her travel pattern and evidence, I find that she resided in Australia in 2014 and 2015 until she left on 31 July. She purchased a home in August 2014 and resided there with her husband until they left.
On departing, she retained that residential property, her only asset in the world, and rented it out. She pays associated bills and has been an active member of the Executive Committee of the strata body for most of the relevant period. Throughout the relevant period she has had, and continues to have, two bank accounts which generally reflect income and payments, including tax, related to the ownership and lease of the property. The bank balances have grown to substantial sums.
The property is no longer suitable for her and her family which now includes two children. She intends to use the rent she has received to contribute to the purchase of an appropriate new property. She claimed to be in contact with real estate agents. She has not taken any steps to inquire about or inspect any properties.
She resides in Kenya where she cares for her husband and two children who were born after she returned there. She also works part-time. Her husband and children are citizens of Australia. She has been married to her Australian citizen husband since March 2013.
She maintains contact with her Australian friends and cousin by various means while she is in Kenya and meets with them when she is in Australia. None of her friends or her cousin mentioned that COVID-19 prevented the Applicant from returning to Australia to live in 2020. Her cousin and one of her friends mention ‘when’ she moves back to Australia, with no time frame mentioned. Her cousin wrote he was hoping to see the family in Sydney in 2021 but the trip had to be cancelled because of COVID-19, but not in the context of their returning to live here.
I would have expected that if the Applicant had been planning to return to Sydney to live in 2020 at the end of a five-year contract in Kenya, which had been stymied by COVID-19, or she was expected to return in 2023, her close friends or cousin would have mentioned it.
I take into account clause 3.2 of CPI 11 that says that the requirement is to maintain a close and continuing association with Australia and not Australians. I accept that the Applicant has kept in contact with her cousin and close friends. I give this evidence some weight in the context of the constraints on the Applicant’s ability to travel.
According to the Applicant, the only tie to Kenya is her husband’s job. However, her only employment has been, and continues to be, with companies in her family’s group of companies in Kenya. She been so employed since 2010, apart from a break in 2014. Her parents and three brothers reside in Kenya.
I give little weight to her membership of the sports clubs, library membership, on-line activities and her daughter attending one music class. The Applicant has attended few activities in Australia over the relevant period. She attended two football matches before the relevant period and perhaps had one meal at the sailing club when she was not a member, and made several visits to the library, during the relevant period. However, those interests and activities are not the kind of participation envisaged by the CPI which refers to engagement in activities that benefit the community in some way, for example providing services or recreational or educational opportunities. The Applicant said that she did what she could. That is perfectly understandable. She was a busy wife and mother of young children, one of whom had health issues, and she was working part-time, in Kenya.
I did not understand the Applicant to say that she was studying the CIMA course during the relevant period, but only that she proposed to resume studying at some stage. The evidence is that she has not studied since 2010.
The Applicant’s husband said that they have not had the best of luck since returning to Kenya, with their daughter’s health issues, the Applicant’s second pregnancy not being easy, and then not being able to travel because of the pandemic. I accept that is so.
Their daughter’s health was, understandably, of great concern to the Applicant and her husband. Reading the many exchanges between the Applicant and her daughter’s doctor from March 2019 to September 2020 reinforces my doubt that the Applicant was planning to return to Australia in 2020, or that the sole or principal reason the Applicant’s husband extended his contract was COVID-19. The Applicant was very reliant on the doctor in relation to her daughter’s health. It is unlikely that she and her husband would remove a child with an ongoing health issue from a known and trusted health provider and health system to face the daunting task of finding a doctor in an unfamiliar health system and establishing a new therapeutic relationship with that doctor.
The Applicant, her husband and two children spent three weeks in Sydney in July 2019. The evidence does not suggest that she made any inquiries about buying a property or appropriate kindergartens at that time. If the family was planning to return after July 2020, just a year later, it is surprising that she did not take that opportunity to do so, given the importance she attributes to making inquiries in person, and as she said, relocating to Sydney with two young children is a big move requiring planning. Making such inquiries in April 2020, just a few months before they planned to return, seems inconsistent with the inquiries, planning and arrangements that needed to be made according to the Applicant.
That the Applicant resumed her employment with a company in Kenya in January 2015 while residing in Australia may be for one of two reasons. Her husband may have arranged his new job there at that time and the Applicant resumed her employment in preparation for their return to Kenya, or they were always planning to return to Kenya in 2015.
The Applicant was prevented from visiting Australia in 2020, 2021 and 2022 by COVID-19. The Applicant said that in April 2020 they were going to look at schools and housing in preparation for their return in 2020. She emphasised that it was necessary to make those assessments in person.
The Applicant’s trips to Australia during the relevant period were few and of limited duration for the reasons set out above. They were holidays. She caught up with friends and her relative. The Applicant and her family may have been planning to visit Australia in each of 2020, and 2022, but I am not persuaded that they planned to return to live in Australia in 2020 or presently have a plan to do so. I give no weight to the screenshot said to be an attempt to enrol the children in a public school. It contains no substantive information. Enrolling the children without first having inspected the school is inconsistent with the Applicant’s evidence about the inquiries she needs to make in person before enrolling the children in schools. The husband’s evidence about looking for work was vague, including his LinkedIn profile. He said at one stage that it was too early to look for work.
I am not satisfied that the Applicant had a close and continuing association with Australia during the relevant period pursuant to section 22(9)(d) of the Act.
Decision
The reviewable decision dated 23 August 2021 refusing the Applicant’s application for Australian citizenship by conferral, is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
.................................[sgd].......................................
Associate
Dated: 13 December 2022
Date of hearing: 29 March 2022 Solicitors for the Applicant: Mr S Parashar, SAM Lawyers Solicitors for the Respondent: Mr T Creedon, AGS
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