Diplock and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) - [2024] AATA 3281

Diplock and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 3281 (16 September 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0093
Re:Jessica Diplock
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President A Younes
Date:16 September 2024
Place:Sydney

The Tribunal affirms the decision under review.
........................[sgd]................................
Deputy President A Younes
Catchwords
Application for conferral of Australian citizenship — general residence requirements — close and continuing association with Australia — CPI 11 — overseas absences — Decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827
Secondary Materials
Citizenship Procedural Instruction 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019)
Citizenship Procedural Instruction 33 - Prohibitions on approval (31 October 2021)
REASONS FOR DECISION
Deputy President A Younes
16 September 2024

This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 15 December 2023 to refuse the approval of the Applicant’s application for Australian citizenship by conferral (the delegate’s decision).
The delegate refused the approval on the basis that the Applicant did not satisfy the eligibility criteria for Australian citizenship by conferral because she is not 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, as contemplated by paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (the Act). Moreover, the delegate found that the prohibition under s 24(5) applied to the Applicant.
On 5 January 2024, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
RELEVANT LEGISLATION
Paragraph 21(2)(g) of the Act provides that:
General eligibility
…
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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
Citizenship Policy
The Australian Citizenship Policy and the Citizenship Procedural Instructions provide guidance to decision-makers regarding interpretation and exercise of powers under the Act. As a decision-maker, the Tribunal is required to give regard and apply policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no cogent reasons not to apply the policy.
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
Relevantly, the Revised Citizenship Procedural Instruction 11 (CPI 11) provides guidance as follows:[2]
[2] Ex 17, T3, 37-46 - Department of Immigration and Border Protection, Citizenship Procedural Instruction 11 — Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019).
Likely to reside or continue to reside in Australia
The words comprising the phrase 'likely to reside or continue to reside' should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
• ‘likely’ as probably or apparently going or destined (to do, be, etc.) - in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
• 'reside' as to dwell permanently or for a considerable time; have one’s abode for a time - in the context of the requirements of the Act, this means the person's home in which they ordinarily live is in Australia.
The person's intention to reside in Australia should be investigated if the applicant has indicated they will:
• be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas; or
• reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.
Past international movements may also indicate that a person's intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have the ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered In the light of evidence about the person's intended residence. If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
• 'maintain' as to keep in existence or continuance; preserve; retain;
• 'close' as near, or near together, in space, time, or relation;
• 'continuing' as to last or endure;
• 'association' as the act of associating... connection or combination.
• It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
CPI 11 refers to the factors that may be relevant in assessing whether an applicant 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, including but not limited to, rental and/or ownership of property, assets, commitments, ties etc.
Citizenship Procedural Instruction 33 (CPI 33) deals with prohibition on approval. It states:
…
Person not present in Australia
This prohibition applies to Australian citizenship by conferral under subsections of the Act:
·           21(2) - general eligibility;
·           21(3) - incapacity; and
·21(4) - persons aged 60 years or over or who have a hearing, speech or sight impairment.
A delegate must not approve an applicant for citizenship by conferral as set out above if the applicant is not present in Australia at the time of decision.
However, the Act provides some exceptions, where an applicant may be approved if not present in Australia at time of decision:
· If the discretion under subsection 22(9) has been exercised in assessing the general residence requirement.
·   This approach also applies to exercises of the equivalent discretion under subsection 22 (11), for an applicant in an inter-dependent relationship with an Australian citizen.
·   If the applicant would be eligible for the discretion under subsection2 2(9) or 22(11) but did not need it in order to meet the general residence requirement, the discretion may be applied to approve the application whilst they are not present in Australia.
·   If the delegate is satisfied that the applicant meets the special residence requirements or the alternative residence requirements in section 22A or 22B of the Act.
…
Can a decision be delayed until the applicant returns to Australia?
If the applicant is not present in Australia and does not meet the exceptions listed above, the delegate must attempt to contact the applicant and seek information on their plans to return to Australia within a reasonable period.
While an individual’s circumstances will differ, in this context, a reasonable period may be 10 weeks or less. If the applicant responds and can demonstrate their intention to return to Australia within a reasonable period (e.g. by producing a scan of a return ticket) it may be appropriate to delay the decision until their expected return date.
Delaying making a decision on an application until the applicant returns should only be considered in circumstances where:
·the applicant’s non-presence in Australia is the only barrier to the application proceeding;
·and the applicant has demonstrated their intention to return within a reasonable period.
If, after the reasonable period has passed and the applicant has not returned to Australia, a decision should be made on the application as soon as practicable without further attempts to contact the applicant.[3]
[3] Ex 17, 66.
BACKGROUND
The Applicant is a citizen of the United Kingdom (UK), who first arrived in Australia on 9 February 1984. She departed on 5 April 1984. She returned to Australia on multiple occasions.
On 5 May 2017, the Applicant was granted a Partner (subclass 100) visa and later a Resident Return (subclass 155) visa, which was granted on 31 May 2022.[4]
[4] Ex 17, 157.
Relevantly, since arriving in Australia in 2007, the Applicant spent six months or more outside of Australia in the following periods:
·      3 January 2008 to 22 August 2009 (596 days);
·      31 August 2009 to 2 May 2013 (1,340 days);
·      7 May 2013 to 15 February 2014 (283 days);
·      28 February 2014 to 11 February 2016 (712 days);
·      20 February 2016 to 26 September 2017 (583 days); and
·      27 July 2022 to 26 March 2024 (608 days).
Most recently, the Applicant departed Australia on 15 April 2024, six days after her arrival, and has not returned.[5] She gave evidence that she is currently residing in the UK.
[5] Ex 17, 154-6.
At the time of the application for Australian citizenship by conferral on 2 November 2021, the Applicant resided in Australia. In her application, she indicated that she was the partner of Mr Richard Booth and the mother of Douglas Booth, both of whom are Australian citizens.[6]
[6] Ex 17, 85.
In the application for Australian citizenship by conferral, the Applicant indicated that she intended to travel within the next twelve months for the purpose of a 21-day holiday from 31 December 2021.[7] On 27 July 2022, the Applicant departed Australia.[8]
[7] Ex 17, 94.
[8] Ex 17, 153.
On 21 March 2022 and 25 May 2022, the Department requested further information from the Applicant, which she provided on 6 June 2022.[9] On 24 May 2023, the Department requested further information as Departmental records showed that the Applicant had not returned to Australia or provided an intended return date. The Department informed the Applicant of the prohibition under subsection 24(5) of the Act.[10]
[9] Ex 17, 129-130.
[10] Ex 17, 135.
On 1 June 2023, the Applicant provided a letter to the Department stating that she would maintain a close and continuing relationship with Australia.[11] In support, she provided documents including copies of pages from Richard James Booth’s passport, pages from Douglas Andrew Montgomery Booth’s passport, a letter from NRMA insurance confirming home insurance policy details, a joint bank statement for the period between 3 February 2023 and 5 April 2023, a bank statement for the applicant’s account between 14 March 2023 and 12 May 2023, and a pay slip from Mosman Prep School dated 12 March 2022.
[11] Ex 17, 136.
On 6 September 2023, the applicant requested from the Department an update on her citizenship application,[12] to which the Department responded on 15 September 2023,[13] requesting a proposed return date to Australia and advising that the Department was unable to determine the application for citizenship while she was offshore. The Applicant responded on 18 September 2023, indicating that she was living the UK due to family commitments. She advised that although she would return to Australia for the purpose of progressing her application but she was unable to return or live in Australia for an extended period of time.[14] The delegate refused the application on 15 December 2023.
[12] Ex 17, 147.
[13] Ex 17, 148.
[14] Ex 17, 150-2.
Material before the Tribunal
In her application for review to the Tribunal,[15] the Applicant stated:
·   Her partner of 17 years (Richard Booth) and son (Douglas Booth) are both Australian citizens and hope to have the same commitments to Australia as a family.
·   Her partner’s close family live in Australia. His mother is in Adelaide and his brother and family are in Melbourne. They have many friends in Sydney and Adelaide.
·   She first travelled to Australia in 1984 at the age of 18 years. She returned 6 times prior to moving to live in 2017. They lived in Sydney from September 2017 until July 2022. She has booked to return in March/April 2024 so that her son can see his family and school friends. She will continue to return as often as it is financially possible.
·   They intend to reside in Australia but hey are currently living in the UK due to commitments to her elderly mother and her four adult children. Her son has discussed the possibility of returning to Australia for school or university. Her partner intends to return to Australia to live and work.
·   She was employed at Mosman Preparatory School whilst they lived in Sydney and she paid Australian income tax. She is currently employed in the UK. She is financially secure and independent. Her partner owns a house in Sydney in which they lived. It is not in joint ownership because she owns property in the UK.
·   She intends to increase her involvement in the Australian community during her overseas stay.
[15] Ex 17, 1-9.
The material before the Tribunal includes:
·Respondent’s Statement of Facts, Issues, and Contentions (SFIC), dated 17 June 2024 (Exhibit 1);
·Applicant’s reply filed on 22 July 2024 (Exhibit 2);
·Submissions of the Applicant dated 15 March 2024 (Exhibit 3);
·Statement of Richard Booth dated 18 March 2024 (Exhibit 4);
·Qantas e-Ticket itinerary (Exhibit 5);
·An email from the Applicant to Greycliffe Property dated 18 March 2024, in relation to landlord inspection (Exhibit 6);
·ANZ Bank Statement for the period 11 August 2023 to 9 February 2024 (Exhibit 7);
·AMP superannuation statement dated 7 September 2023 (Exhibit 8);
·Australian Home Staging Conference registration (Exhibit 9);
·Museums of History NSW confirming a ticket booking made on 19 March 2024 (Exhibit 10);
·An email from Iltja Ntjarra Art Centre confirming a donation in the amount of $100.00 (Exhibit 11);
·An email dated 18 March 2024 from Godinymayin Yijard Rivers Arts and Culture Centre confirming a donation in the amount of $45.45 (Exhibit 12);
·A copy of the Applicant’s current NSW drivers licence (Exhibit 13);
·A payment confirmation slip dated 9 May 2024 from Sydney Church of England Grammar School (SHORE) (Exhibit 14);
·An email from SHORE dated 10 May 2024 confirming the applicant’s son has been waitlisted for a position at the school (Exhibit 15);
·A letter from the Applicant dated 13 May 2024 (Exhibit 16); and
·T Documents (Exhibit 17).
In the Applicant’s reply to the Respondent’s SFIC, the Applicant provided background information about her relationship with Mr Richard Both and her connections with Australia. She explained that when the family moved to Australia in 2017, they had planned to remain in Australia on permanent basis and had not expected the death of her father, or the restriction of COVID. They lived in Sydney until 2022 and her connection to Australia is “more deep rooted that it might appear from my absences”.[16] Her connections to Australia include having shared responsibility for the management of the property owned by her partner. Her son Douglas has been placed on a waiting list at Shore school as many of his friends are pupils at Shores.
[16] Ex 2.
In oral evidence, the Applicant stated that she was living in Australia when her father died in 2019. He left her mother properties on a small and inaccessible island called Sark, located in the Channel Islands. Her mother is about 83 years old and she lives in sark. Her mother found managing the properties to be challenging. The Applicant’s sister helped her mother for about three years. The Applicant felt it was her turn to assist. Although, those commitments may continue, the work done so far means that the commitments will reduce. The Applicant reiterated that she has friends and connections with Australia.
ISSUES
The issues before the Tribunal are whether the Applicant satisfies ss 21(2)(g) and 24(5) of the Act, namely, whether the Applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia, and whether a prohibition applies.
FINDINGS & REASONS
The Applicant contends that she is likely to reside in Australia and to maintain a close and continuing association.
The Applicant currently resides in the UK with her husband and minor child, both of whom are Australian citizens. She has four adult children, an elderly mother, and a sister. They reside in the UK. The Applicant owns property in the UK for a stated valued of AU$7,500,000, which she has managed from Australia whilst living here. Her partner owns a property in Australia which is leased but is jointly managed by the Applicant and her partner. Whist in Australia, the Applicant worked casually as a member of a team running a school kitchen.
During the hearing, the Applicant indicated that she intends to return to Australia between now and May 2027. The Tribunal is satisfied that although there is an intention to return, there is no specific plan or certainty around the Applicant’s intention to return. The Applicant has commitments to her elderly mother and adult children in the UK and it is unclear how or when those commitments could change in the foreseeable future.
The Applicant gave evidence that they have discussed her minor son attending SHORE on their return to Australia, and university in the future. The Applicant has provided documents indicating that her son is waitlisted at SHORE. However, this does not mean that he has a place at the school, or that it is certain that he would be attending that school.
The Applicant has made donations amounting to $145.45, to arts/cultural centres. The Respondent contended that these donations were made to strengthen the Applicant’s case and do not reflect any real engagement with the Australian community or the organisations to which these donations were made. The Respondent further contended that the two donations to the sum of $145.45, ought to be viewed in the context of the Applicant’s stated net worth of over AU$7,500,000 and do not reflect any level of active participation in the Australian community. The Tribunal sees merit in those contentions.
As to the Applicant’s membership of the Museums of History NSW and the National Trust, CPI 11 expressly states that simply being a member of a club or body does not amount to participation in the Australian community, nor is usage of such a bodies’ facilities for a private purpose.[17]
[17] Ex 17, 59.
The Applicant has claimed, and the Tribunal accepts that the Applicant has paid income tax in Australia through her employment at Mosman Preparatory School, which lasted for three years.[18] She provided a pay slip, dated 17 March 2022 noting that the Applicant had paid the modest sum of $916.00 in tax in the financial year ending June 2022 (as of 17 March 2022).[19]
[18] EX 17, 136.
[19] Ex 17, 146.

The Applicant has claimed that she has had a long connection with Australia. The Tribunal observes that during her residence in Australia between 18 December 2007 and 27 July 2022, the Applicant spent approximately two thirds of her time overseas.[20] She also arrived in Australia as an adult, after spending her formative years overseas. Since her departure on 27 July 2022 and the beginning of her residence in the UK with her partner and minor son, the Applicant has only returned to Australia twice, for a total period of thirteen days in March and April 2024. Two visits to Australia totalling less than two weeks, in the context of an almost two-year absence from the country, does not support a contention that the Applicant has strong connections with Australia which she wishes to maintain.
[20] Ex 17, 153-6.
The Tribunal sees merit in the Respondent’s submissions that the Applicant’s history of extended absences from Australia does not support a finding that she is likely to maintain a close and continuing association with Australia while overseas.
On the cumulative evidence, the Tribunal is satisfied that the Applicant has extensive financial and familial ties to the UK, both of which outweigh her ties to Australia. The Tribunal is persuaded by the Respondent’s submissions that the Applicant’s current country of residence, living arrangements and employment in the UK do not support a finding that the Applicant will maintain a close and continuing association with Australia while overseas.
On the cumulative evidence, the Tribunal is satisfied that consistent with the meaning of 'likely' in CPI 11, although it is possible that the Applicant will reside in Australia in the future, it is not probable that she would do so. Relevantly, in Judd v Minister for Immigration and Border Protection,[21] the Federal Court held that while paragraph 21(2)(g) does not impose a temporal restriction, “it may be more difficult to establish that residence is likely where a long period is envisaged before the possible time at which residence will commence”.[22]
[21] Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827.
[22] Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349; [2017] FCA 827 at [10].
Although there is some evidence to support the Applicant’s contentions that she has connections with Australia, including financial, the Tribunal is not satisfied that the totality of the evidence demonstrates to the required level of satisfaction, that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. On the evidence, the Tribunal is satisfied that it is possible rather than probable that the Applicant would reside in Australia.
Therefore, the Tribunal finds that the Applicant does not meet the requirements of paragraph 21(2)(g).
The Applicant is currently in the UK, and although she could be eligible for consideration under s 22(9) of the Act due to her relationship with her partner, given that the Tribunal is not satisfied that the Applicant has maintained a close and continuing association with Australia, the Tribunal finds that the Applicant does not meet the requirements of s 24(5).
As to the Applicant’s request during the hearing to delay making a decision, for the reasons explained above, the Tribunal has not been satisfied that the Applicant has an intention to return within a reasonable period, and as such the Tribunal is satisfied that delaying a decision in those circumstances is not appropriate. Moreover, the Tribunal has an obligation to finalise matters, among other things, in a timely manner.
For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the Australian citizenship by conferral.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 40 (Forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes

..........................[sgd]..............................................
Associate
Dated: 16 September 2024

Date(s) of hearing: 26 August 2024 by Video

Applicant: In person

Solicitors for the Respondent: R O'shannessy, Mills Oakley

Date(s) of hearing:	26 August 2024 by Video
Applicant:	In person
Solicitors for the Respondent:	R O'shannessy, Mills Oakley