Docherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1822
•16 June 2021
Docherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1822 (16 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5024
Re:Kathleen Docherty
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 June 2021
Place:Sydney
The decision under review is affirmed.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – close and continuing association with Australia – applicant likely to reside, or to continue to reside, in Australia – application of Citizenship Procedural Instruction 11 – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21, 23A, 24 and 26
CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Judd v Minister for Immigration [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Li and Minister for Immigration and Border Protection [2015] AATA 270
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Australian Citizenship Policy Statement
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
Chris Puplick AM, Senior Member
16 June 2021
THE APPLICATION
Ms Kathleen Docherty (the Applicant) applied for Australian citizenship by conferral on 23 February 2020 but her application was rejected by a delegate of the Minister (the Respondent) on 6 August 2020.
The basis for the delegate’s decision was two-fold. In the first instance the delegate held that the Applicant did not meet the requirement of paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (the Act) because they did not believe that Ms Docherty was “likely to reside, or to continue to reside in Australia”. Further, the delegate found that she did not have a “close and continuing association with Australia”.
Secondly the delegate determined that, regardless of any considerations of the first matter, the Minister was prohibited from granting the Applicant citizenship by subsection 24(5) of the Act which prohibits such grants to persons who are not, at the time of the Minister’s decision, resident in Australia.[1]
[1] Subject to exceptions in ss 22A, 22B or 22(9) or 22(11) of the Australian Citizenship Act 2007 (Cth) (the Act), none of which apply to the Applicant.
On 19 August 2020 the Applicant sought a review of the delegate’s decision in this Tribunal where the matter was heard on 14 May 2021. The proceedings were conducted on the Microsoft Teams platform with the Applicant appearing from Glasgow (Scotland, United Kingdom).
BACKGROUND
The Applicant is a citizen of the United Kingdom who first arrived in Australia on 1 January 2002 as the holder of a Visitor (subclass 976) visa. On this occasion she made a brief visit before returning again in September 2004. Since that date the Applicant has made frequent trips in and out of Australia. On 21 February 2007 she was granted a Permanent Resident (subclass 801) visa and then a Resident Return (subclass 155) visa on 29 July 2018.
She is married to an Australian citizen and has an Australian citizen son (now 7 years of age). She has an extensive family network (through her husband) in Australia and has many friends here, especially those made through her son’s school community. The family both rented homes in the Manly-Brookvale (NSW) area before buying a family home at Allambie Heights which they renovated and eventually sold. The family has purchased a home in Glasgow where they reside currently.
The Applicant and her husband have taken steps to establish a self-managed superannuation fund (SMSF) in Australia for the purpose (inter alia) of eventually acquiring property in Australia.
The Applicant had an extensive career working of some 16 years in Australia, primarily in the banking industry and concluded her formal employment as Chief Operating Officer of the HSBC bank in May 2020.
On 8 December 2019 the Applicant, her husband and son departed Australia with the intention of spending 12 to 18 months visiting relatives in Scotland and touring the United Kingdom and Europe.
Needless to say, those plans have been largely thwarted by the impact of the COVID-19 pandemic and the restrictions imposed on travel (domestic and international) by the governments of both Australia and the United Kingdom.
It was the Applicant’s evidence to the Tribunal that she and her husband had a clear intention to return to Australia to reside but that they were unable, due to the COVID-19 situation to make any definitive plans in this regard. She admitted that the family had not made any specific plans for their return, other than being committed to return for a family wedding in March 2022. The Applicant cited uncertainty about government travel policy; concerns about travelling on certain airlines; issues of obtaining vaccinations and other factors which she adjudged relevant to her situation led her to avoid making any definitive travel plans. She was however adamant that she wanted to be back in Australia as a permanent resident while her son was still of primary school age as she did not want him to have an interrupted educational career once he started high school.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[2] The Minister must make a decision on the application and either approve or refuse it.[3] An applicant must meet certain qualifications a specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing[6]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing)[8] before their citizenship is granted finally.
[2] Act s 21(1).
[3] Act s 24(1).
[4] Act s 21(2).
[5] Act s 23A.
[6] Act ss 21(3)(d) and 21(4)-21(8).
[7] Act s 26.
[8] Act s 26(1).
Eligible applicants for Australian citizenship by conferral must meet the requirements set out in subsection 21(2)[9] of the Act which provides:
[9] Emphasis added.
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.
To be successful in an application for citizenship by conferral an applicant must satisfy all of the criteria set out in that subsection. As noted, the Minister’s delegate was not satisfied that the Applicant met the requirements of paragraph 21(2)(g).
A CLOSE AND CONTINUING ASSOCIATION
In making determinations under the Act, the Tribunal also takes account of the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPI) which guides and assists decision-makers, in particular Citizenship Procedural Instruction 11 – Assessing Likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) effective as from 17 April 2019.[10] Unlike previously published departmental policy documents, the CPIs do not contain, in their present iteration, any set of indicia by which a “close and continuing association” is to be assessed. At best they provide some examples of what might be indicative of “participation in the Australian community”; factors related to the living arrangement of the applicant in their current country of residence and some examples which “would not ordinarily be of concern” related to frequent absences overseas of a person ordinarily resident in Australia.
[10] CPI 11 - Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia.
In relation to such Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[11] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[12]
[emphasis added]
[11] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement (27 November 2020) in the same terms. See Department of Home Affairs, Australian Citizenship Policy Statement (27 November 2020). The current set of Instructions are a different form of advice to decision-makers.
[12] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
This application turns to some degree upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement, both past and projected. There are two elements in this, the length of time which is a matter of fact and the degree to which she has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haque, namely that “[w]hether Mr Ul Haque 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.”[13] The Tribunal went on to say that “[w]hile physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia.”[14]
[13] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
[14] Ibid at [50].
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
CPI 11 states:[15]
·‘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.
[15] Tribunal documents (T-documents) at 151. Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) at 3.2.
The Macquarie Dictionary,[16] among its many definitions of the word “close” refers to:
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[16] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32) and ‘continuing’ (def 3 and 6).
“Continuing” is defined as:
3. to last or endure.
…
6. to go on with or persist in: to continue an action.
In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
·‘close’ means ‘having a strong or immediate relation or connection’;
·‘continuing’ means ‘to remain in existence or unchanged’; and
·‘association’ means ‘the act or an instance of associating; fellowship or companionship’.[17]
[17] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
The CPIs make it clear that the checklists which they provide, list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also stress the necessity of each case being determined on its own particular merits and terms.
As the Tribunal has noted, with so many of the key concepts in the Act, the Act itself contains no precise definition of what this formulation means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately, there is no unanimity on that point and different decision-makers have come to different conclusions. What is clear however is that:
[w]hether the applicant had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.[18]
[18] PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148 at [30].
In both Li[19] and Vasiunina[20] the Tribunal discussed at some length the variety of opinions expressed regarding definitions of this key phrase.
[19] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]-[38].
[20] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]-[49].
As noted, there are many decisions on this point, the gravamen of which are that “close and continuing” is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are “enough” to satisfy the requirement of a close and continuing association,[21] although what “enough” might be is itself unclear.
[21] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26].
In Nassif,[22] Kim[23], Taher[24] and Nicholls,[25] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[26]
[22] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[23] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[24] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[25] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[26] Ibid.
On the other hand, in Saba, Paula and Judd[27] the Tribunal or Court has been less concerned with the aspect of physical presence and more with the quality of attachment. Indeed, in Judd the Court noted, “the concept of a ‘close and continuing association’ is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as ‘a multi-factorial approach’”.[28]
[27] Saba and Minister for Immigration and Border Protection [2014] AATA 579; Paula and Minister for Immigration and Citizenship [2012] AATA 543; Judd v Minister for Immigration [2017] FCA 827.
[28] Judd v Minister for Immigration [2017] FCA 827 at [14].
In Vasiunina[29] I said:
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
·does it mean merely a physical place on the face of the planet, a continent girt by sea?; or
·does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
…
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[29] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
In Mishra, the Tribunal reinforced a broader evaluative construction of the “close and continuing association” requirement and said:
[52] The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
[53] In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[30]
[30] Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479. Footnote omitted.
CONSIDERATIONS
In the Respondent’s Statement of Facts, Issues and Contentions, the following proposition is advanced [at 35]:
The respondent contends that because of the centrality of presence and residency in the eligibility for conferral of Australian citizenship, the periods that a person has not been present in Australia will affect the assessment of whether they have a close and continuing association with Australia. Having regard to the applicant's movement records leading up to, and following, her application for citizenship, the respondent contends the Tribunal cannot be satisfied the applicant would maintain a close and continuing association with Australia if her application were to be approved.
The Tribunal took evidence from both the Respondent and the Applicant in relation to the latter’s travels over the period from September 2004 to December 2019. That evidence shows that the Applicant was a well-travelled lady who made numerous trips outside Australia, some of which may have been on business and which were (with one exception) usually of relatively short duration.
By its own calculations the Tribunal has determined that the Applicant was absent from Australia for some 137 out of about 789 weeks in the period under consideration. Put more constructively, the Applicant spent more than 80% of her time resident in Australia.
It is true that since her citizenship application was lodged in February 2020 she has not been present in Australia at all. However, the evidence is that this absence has been as much enforced as voluntary, although initially it was expected to last some 12 to 18 months.
On balance however, the Tribunal is not prepared to concede the Respondent’s point that the Applicant’s travel and absences from Australia are evidence of any absence of a close and continuing association with the country.
Apart from having obvious close ties with Australians (family and friends), a matter conceded by the Respondent, the Tribunal is satisfied that the Applicant has a close and continuing association with Australia for the following reasons:
(a)she has spent more than half her adult working life in Australia where she has pursued a successful career in banking;
(b)she has been a homeowner in Australia, and although not currently owning any property in this country has indicated a clear intention to acquire a family home at some stage per medium of savings through her SMSF;
(c)she is committed to ensuring that her son has an uninterrupted high school education in Australia, having already started his education in this country; and
(d)she has never evidenced any intention to reside anywhere other than in Australia with her citizen husband and son.
It is on this basis that the Tribunal is also satisfied that she has a clear intention to return to Australia to reside.
The Applicant’s answers to questions about her commitment to Australia as a place where she wanted to live were clear and the Tribunal accepts that she regards herself as “an Australian” to all intents and purposes.
The Tribunal is satisfied that the Applicant meets the requirements of paragraph 21(2)(g) of the Act.
THE FATAL IMPACT OF SUBSECTION 24(5)
Subsection 24(5) of the Act relevantly provides:
(5) If:
the person is covered by subsection 21(2), (3) or (4);
…
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
While considerations under subsection 21(2) may be open to interpretation, subsection 24(5) is both unequivocal and unyielding. It imports no discretion.
Many people in this current COVID-19 nightmare find themselves in the same position as the Applicant. They are outside Australia; they desire to return but they cannot. That is unfortunate and devastating for many of them. Whatever actions can be taken by anybody or any authority to ameliorate or rectify this situation, none of them lies within the remit of this Tribunal.
The Tribunal cannot set aside the mandatory requirement of subsection 24(5) that, in order to acquire citizenship by conferral the Applicant must be physically present in Australia at the relevant time. To the extent that she is not, she cannot succeed in her application.
This determination in no way prohibits the Applicant from making another application for citizenship by conferral once she satisfies the requirement of subsection 24(5) and has returned physically to the place she has come to call home.[31]
[31] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...................................[sgd].....................................
Associate
Dated: 16 June 2021
Date(s) of hearing: 14 May 2021 Applicant: In person Solicitors for the Respondent: Mr A Gent, HWL Ebsworth Lawyers
0
15
0