Downey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 938

Downey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 938 (22 April 2021)

Division:GENERAL DIVISION

File Number:          2020/3461

Re:Catriona Downey

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 April 2021  

Place:Sydney

The decision under review is affirmed.

............................[sgd]............................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP BY CONFERRAL – person not present in Australia – whether the applicant is likely to reside or continue to reside in Australia – whether the applicant is likely to maintain a close and continuing association with Australia – the decision under review is affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21, s24

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (dated 27 November 2020)

Citizen Procedural Instructions (CPI 11, dated 17 April 2019)

REASONS FOR DECISION

Dr L Bygrave, Member

22 April 2021

INTRODUCTION

1. The applicant, Ms Catriona Downey, is a citizen of the Republic of Ireland.

2. On 31 March 2017, Ms Downey lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. On 19 May 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse Ms Downey’s application on the basis that:

   ·she did not satisfy the requirement in paragraph 21(2)(g) of the Act ‘concerning future residence or close and continuing association with Australia’;

   ·the prohibition in subsection 24(5) of the Act applied because she was ‘not present in Australia at time of decision’ and was ‘not eligible for the special residence requirement of Ministerial discretion’.[1]

   [1] Exhibit T-T2, page 14.

4. Ms Downey subsequently applied for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 9 June 2020.

5. The matter was heard by the Tribunal in Sydney on 31 March 2021. Ms Downey attended the hearing and gave oral evidence by videoconference.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

7. The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. Relevant to the determination of this application, these provisions include that:

   (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…

8. Also relevant to this application, subsection 24(5) of the Act states:

   Person not present in Australia

   (5)       If:

   (a)the person is covered by subsection 21(2), (3) or (4); and

   (aa)the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

   (b)(b) the Minister did not apply subsection 22(9) in relation to the person; and

   (c)the Minister did not apply subsection 22(11) in relation to the person;

   the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

   Australian Citizenship [Policy Statement]

9. The Australian Citizenship [Policy Statement] (Policy Statement) issued on 27 November 2020 outlines the overarching legislative requirements for the process of becoming an Australian citizen. The Policy Statement also provides context for the relevant Citizenship Procedural Instructions (CPIs) (set out below) when making decisions under the Act.

10. The rights and responsibilities of an Australian citizen are articulated in the Policy Statement as follows:

    Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations.

    Australian citizenship includes the right to:

    ·apply for an Australian passport and re-enter Australia freely;

    ·ask for consular assistance from an Australian consulate while overseas;

    ·vote in federal, state or territory, and local elections;

    ·vote in a Constitutional referendum or plebiscite;

    ·seek election to parliament;

    ·apply for children born overseas to become Australian citizens by descent; and

    ·apply for a job in the Australian Public Service or in the Australian Defence Force…

    The responsibilities of Australian citizenship include obligations to:

    ·obey the laws of Australia;

    ·vote in federal, state or territory, and local elections, and in a Constitution referendum or plebiscite;

    ·defend Australia should the need arise; and

    ·serve on jury duty if called to do so.[2]

    CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia

    [2] Australian Citizenship [Policy Statement], section 3.2.

11. CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) sets out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if their application for citizenship were to be approved.

12. Notably, CPI 11 confirms that only ‘one arm’ of the requirement must be met; that is, a person must be likely to either:

    ·reside or continue to reside in Australia; or

    ·maintain a close and continuing association with Australia if their application for citizenship were to be approved.[3]

    [3] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.2

13. In applying paragraph 21(2)(g) of the Act, the words should be given their ordinary meaning within the context used. Referring to the Macquarie Dictionary, CPI 11 sets out the following definitions:

    ·‘likely’ means ‘probably’;

    ·‘reside’ means ‘to dwell permanently or for a considerable time’;

    ·‘maintain’ means to ‘keep in existence or continuance’;

    ·‘close’ means ‘near, or near together, in space, time or relation’;

    ·‘continuing’ means ‘to last or endure’; and

    ·‘association’ means ‘the act of associating … connection’.[4]

    [4] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.2.

14. Further, CPI 11 states that if a person has indicated they will be outside of Australia during processing of their application and/or has spent significant amounts of time outside of Australia while a permanent resident, their future intention to reside in Australia should be investigated.

15. CPI 11 sets out that a person’s living arrangements and citizenship status in their country of residence (either in Australia or elsewhere) may indicate their future intentions and lists the following factors to be considered as to whether a person intends to reside in a particular place or will maintain a close and continuing association with that place:

    -    Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;  

    -    Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;

    -    Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country…;

    -    Frequency and purpose of visits to Australia if the applicant resides overseas…;

    -    Frequency and reasons for absences from Australia if the person resides in Australia…;

    -    Participation in the Australian community.[5]

    [5] CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, 17 April 2019, part 3.3.

16. Although I am not bound to strictly apply the Policy Statement and CPI 11, these comprise government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[6]

    EVIDENCE

    [6] [1979] AATA 179; (1979) 2 ALD 634.

    Periods outside Australia since Ms Downey became a permanent resident

17. Ms Downey first arrived in Australia in September 2012 as the holder of a working holiday (subclass 417) visa. Her movement history from September 2012 to March 2017 shows a general pattern of departing Australia at least annually for approximate periods of two to four weeks.[7]

    [7] Exhibit T-T12, pages 65-66.

18. On 1 March 2016, Ms Downey was granted a permanent employer nomination (subclass 186) visa as a ‘dependent applicant’.[8] Ms Downey subsequently lodged her application for Australian citizenship and departed Australia on 31 March 2017. She arrived in Australia on 2 October 2017 and departed again on 5 October 2017. She has not returned to Australia since 5 October 2017.

    [8] Exhibit A13.

19. Both in written statements and oral evidence to the Tribunal, Ms Downey explained that she had returned to Ireland in March 2017 prior to her wedding in August 2017. She said she arrived back in Perth (Australia) on 2 October 2017 intending to stay but, on 5 October 2017, she received a phone call that her father in Ireland was ill and she immediately left Australia. Ms Downey said that she stayed in Ireland to care for her father, who died in January 2018, and then to support her mother who was grieving. However, Ms Downey explained that her mother is ‘currently fit and healthy’, and encouraging of Ms Downey and her husband returning to reside in Australia.[9]

    [9] Exhibit A20.

    Intention to live in Australia

20. Ms Downey provided evidence about her future intention to reside in Australia with her husband. She told the Tribunal that she would like ‘equal opportunities’ to reside in Australia as a citizen for the purposes of living, working and travel.[10] She said that, while she is able to travel on her Irish passport, she wants ‘flexibility to travel in and out of Australia’ for work commitments without worrying about ‘visa expiry/renewal’.[11] Ms Downey said that she has long-term friendships and business commitments in Australia.

    [10] Exhibit A3.

    [11] Exhibit A3.

21. Ms Downey provided written statements from three friends who reside in Australia, two of whom stated that they are Australian citizens. She also gave further information about these friends at the Tribunal hearing, including that she has maintained contact with them via social media and videoconferencing since she has been in Ireland.

22. Ms Downey is currently employed as project management consultant with an American finance company. She said the company has offices in Ireland and Australia, and she has facilities to work from home. Ms Downey told the Tribunal that, while she reports to an office in Ireland, she would be able to request a transfer to relocate offices to Australia; however, she has not yet made this request.

23. Ms Downey also maintains an online sales business registered to an Australian Business Number. Although she operates this business online from Ireland, payments related to this business are deposited into her Australian bank account.

24. Ms Downey provided the following documents in support of her intention to reside in Australia:

    ·flights booked from Ireland to Australia in October 2020 and February 2021, which were subsequently cancelled due to the covid-19 pandemic;

    ·registration for a conference in Australia in September 2021 associated with her online sales business; and

    ·email enquiries regarding property sales in a suburb of Perth. 

    Ownership of property/assets in Australia and Ireland

25. Ms Downey does not own property in either Australia or Ireland. She and her husband are currently living with her mother in Ireland. Ms Downey’s only assets in Australia are her bank account which contains minimal savings and her superannuation fund.

    Spouse/family members

26. Ms Downey’s husband is a citizen of Ireland and currently resides with her in Ireland. Her mother and siblings are also citizens of and reside in Ireland. She has no extended family members in Australia, although she told the Tribunal that her husband has two (first) cousins who live in Perth.

    CONSIDERATION

27. I must consider whether, as required by paragraph 21(2)(g) of the Act, Ms Downey is either likely to reside in Australia or maintain a close and continuing association with Australia.

    Is Ms Downey likely to reside, or continue to reside, in Australia?

28. In considering whether Ms Downey is likely to reside in Australia, I find she has spent only 13 months in Australia since she was granted a permanent resident visa on 1 March 2016. In contrast, she has resided in Ireland for most of the last four years.

29. While I accept Ms Downey’s explanation that she departed Australia on 5 October 2017 to care for her father in Ireland, I find there is minimal evidence before the Tribunal that she is likely to reside in Australia. In making this finding, I rely on the evidence that:

    ·Since Ms Downey first came to Australia in September 2012, she returned to Ireland at least annually to visit family. All her immediate family members – her husband, mother and siblings – currently reside in and are citizens of Ireland.

    ·Ms Downey has visited Australia once (for a period of three days) in the past four years. She provided limited reasons for not visiting Australia in 2018–2019; however, her planned flights to Australia in October 2020 and February 2021 were cancelled due to the covid-19 pandemic.

    ·Neither Ms Downey nor her husband own any property or hold substantial financial assets in Australia. They also do not own or lease property in Ireland.

    ·While Ms Downey has maintained some close friendships with Australian citizens, she has no immediate family members in Australia.

    ·Ms Downey’s employment has flexible work from home arrangements and her sales business is online. She is not required to reside in Australia for the purpose of either her employment or her online sales business. 

    Is Ms Downey likely to maintain a close and continuing association with Australia?

30. I now consider whether Ms Downey is likely to maintain a close and continuing association with Australia if her application for Australian citizenship is approved.

31. Ms Downey provided documentary evidence about her association with Australia. This included brief statements from friends who are Australian citizens, details about her online business, email enquiries about property, and a statement dated March–September 2020 from her Australian bank account.

32. I accept Ms Downey’s submission that she and her husband wish to return to Australia at some time in the future. I also accept that she has applied for Australian citizenship to enable her to have greater flexibility to live, work and travel into and out of Australia.

33. However, apart from friendships and an Australian bank account, I find that Ms Downey has maintained a very limited association with Australia since she departed in October 2017. She has continued her online sales business from Ireland and her employment is currently based in Ireland; albeit with a flexible work from home arrangement that would enable her to work from Australia (or elsewhere in the world). She owns no property and holds no significant assets in Australia. Her immediate family members all reside in Ireland.

34. I am satisfied that, at this time, there is minimal evidence that Ms Downey is likely to maintain a close and continuing association with Australia.

    CONCLUSION

35. Weighing all the evidence, I am satisfied Ms Downey does not meet the requirement in paragraph 21(2)(g) of the Act that she either is likely to reside in Australia or to maintain a close and continuing association with Australia if her application for citizenship were to be approved.

36. I further find that, as Ms Downey is not present in Australia, (and does not satisfy the special residence requirement referred to in section 22A or 22B, or meet circumstances relevant to subsection 22(9) or subsection 22(11)), I must not approve her becoming an Australian citizen in accordance with subsection 24(5) of the Act.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[sgd]..........................................

Associate

Dated: 22 April 2021

Date(s) of hearing:	31 March 2021
Applicant:	Self represented
Solicitors for the Respondent:	Alice Ashby (Australian Government Solicitor)