Duffy and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 4476

Duffy and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4476 (1 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6863
Re:Marlene Duffy
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Tribunal:Mrs J C Kelly, Senior Member
Date:1 November 2018
Date of written reasons: 3 December 2018
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the Applicant satisfies section 21(2)(g) of the Citizenship Act 2007 (Cth), because she is likely to maintain a close and continuing association with Australia if the application were to be approved.
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Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of citizenship – Applicant will be spending significant period outside of Australia – whether Applicant is likely to reside or continue to reside in Australia – whether Applicant is likely to maintain a close and continuing association with Australia – Applicant has spent lengthy periods in Australia and has developed close ties – set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(1), (2)(g), ss 24(1), (1A), (5)
CASES
Bates and Minister for Immigration and Border Protection [2015] AATA 492
Chang and Minister for Immigration and Border Protection [2009] AATA 14
Kim and Minister for Immigration and Border Protection [2015] AATA 67; (2015) 145 ALD 704
Taher and Minister for Immigration and Border Protection [2013] AATA 917
SECONDARY MATERIALS
The Citizenship Policy
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
3 December 2018
Introduction

The Applicant, Mrs Duffy, seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) made on 20 November 2017 to refuse her application for Australian citizenship by conferral.
Mrs Duffy is a 42 year-old citizen of Germany. She became a permanent resident of Australia on 2 June 2010 when she was granted a Partner (Subclass 100) (Permanent) visa. Currently she holds a Resident Return (Subclass 155) visa that was granted on 23 November 2015.
On 6 August 2017, Mrs Duffy applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). On 9 September 2017, Mrs Duffy telephoned the Department of Immigration and Border Protection (the Department) and said she was planning to leave Australia for a few years because her husband had an overseas employment contract.
On 12 November 2017, Mrs Duffy advised the Department by email that she was relocating to Germany with her family because her husband had been offered a job in Europe, which he was commencing in January 2018. She advised that they were leaving Australia on 17 December 2017. She continued:
We are unsure of the time we will be spending overseas. We will maintain our strong ties to Australia while living overseas as we have close family and friends in Sydney.
I note that the Department sent Mrs Duffy a procedural fairness letter on 17 November 2017 and she replied on 19 November 2017, stating:
We would ideally like to stay in Germany two to three years and then return home to Sydney.
On 20 November 2017, the delegate refused the application pursuant to section 24(1) of the Act because Mrs Duffy did not satisfy section 21(2)(g) of the Act, which required that she 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.
On the same date, she applied to the Tribunal for review of the delegate’s decision and in the application for review wrote:
I have expressed my intentions to return to Australia - our plan is to stay overseas for two to three years…
Issue
The issue the Tribunal has to decide is whether Mrs Duffy satisfies the requirements set out in section 21(2)(g) of the Act that she is likely to reside in or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
The regulatory scheme
Following is a summary of the regulatory regime. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act provides that the Minister must not approve a person to become an Australian citizen unless the person is eligible to become an Australian citizen under one of several subsections of section 21 of the Act.
Section 21(2) of the Act sets out the general eligibility criteria, which are relevant in Mrs Duffy’s case. Section 24(5) of the Act prescribes that where a person is covered by section 21(2) of the Act and subject to further requirements, the Minister must not approve the person becoming a citizen at a time when the person is not present in Australia.
The Citizenship Policy (the Policy) provides policy guidance to decision makers in undertaking decision making functions under the Act. The Tribunal as a decision maker will generally apply policy such as that contained in the Policy unless there are cogent reasons not to do so.
In relation to the requirements in section 21(2)(g), the Policy states that:
Likely to reside or continue to reside in Australia.
Intention to reside should be investigated further in situations where:
othe applicant has spent significant periods outside of Australia since becoming a permanent resident or
o has requested a citizenship test or a citizenship ceremony be conducted overseas.
If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside in Australia, OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision.
Maintain a close and continuing association with Australia
Factors that may contribute to a close and continuing association with Australia include:
oAustralian citizen spouse or de facto partner
oAustralian citizen children
olength of relationship with Australian citizen spouse or de facto partner
oextended family in Australia
oreturn visits to Australia
operiods of residence in Australia
ointention to reside in Australia
oemployment in Australia (for example, public or private sector)
o ownership of property in Australia
oevidence of income tax payment in Australia.
Findings
The Tribunal makes the following findings, taking into account all the evidence before it, which includes the documents provided by the Minister pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the written statement and supporting documents Mrs Duffy provided, her oral evidence, the written and oral evidence given by her husband, her mother-in-law and two friends.
Mrs Duffy first visited Australia as an exchange student when she was 16 years old. She lived with several host families in Port Macquarie and went to high school for a year from mid-1992 to mid-1993. She returned to Australia for several weeks to visit her host families and friends in 1996. She is still connected with one of her host families via Facebook.
After saving money Mrs Duffy returned to Australia in 2003 as the holder of a work and travel visa and spent 12 months in Sydney and on the east coast. She met her husband at that time. He is an Australian citizen. They married in 2005. They spent a few years in Germany and visited family in Australia in 2006 after the birth of their first son in 2005. After the birth of their second son in 2010, Mr Duffy’s employer, a multinational corporation, gave him an opportunity to return to work in Sydney. He has been employed by that corporation since about 2006 except for a year from 2013 to 2014.
Mr Duffy is the family’s primary income earner. Mrs Duffy looks after their three children and undertakes work when it fits in with her family commitments. They lived in Sydney for the next three years, that is, from 2010 to 2013. The oldest son attended kindergarten. The family established friendships in the school and local community. When Mrs Duffy was pregnant with her third child she and her husband decided to return to Germany for 12 months. Her parents are retired and offered to help her with the children before and after the birth of the new baby. Her husband was offered a job in Berlin as head of IT at a start-up company, which enabled him to further his skills and knowledge.
The family returned to Sydney in July 2014 when Mr Duffy’s previous employer offered him another higher level role. Their oldest son returned to the same school and their second son started kindergarten in the beginning of 2015. At the beginning of 2017 their oldest son commenced attending a selective high school specialising in the performing arts.
The family left Australia on 17 December 2017. Mrs Duffy stated that they had planned to return to Australia for Christmas 2018, but because of the importance of her citizenship application and her attending the Tribunal in person, they are financially unable to travel here at Christmas as well as return for the hearing. Mr and Mrs Duffy attended the hearing in person. Her mother-in-law will now visit them in Germany at Christmas time.
Her husband has been employed by his current employer since 2005, as I have said, except for the 2013/2014 year. He is a Senior Engineering Manager. His current contract is for an indefinite period. Mrs Duffy described his current role as an amazing opportunity for him. Mr Duffy described his role in detail. He stated that it was a strategic step to be recognised as a Level 6 Engineering Manager and that he was fully supported by the managers of the teams in Zurich and Sydney.
The employer has specialist teams based in New York, Sydney and Zurich. Mr Duffy currently works flexibly from Berlin, commuting to Zurich to spend three and a half days a week there. The Tribunal completely accepts that this commuting arrangement is a temporary arrangement for the family.
His employer funded the family’s move to Berlin. He said that he will bring back to Australia knowledge and experience that is not readily available here and it will also benefit the Asia Pacific region. The Tribunal accepts his evidence that there is a shortage of people with his qualifications in Australia and that there has been a tightening up in Australia in relation to work visas for people with qualifications who would work at his organisation.
Living in Berlin allows Mrs Duffy and the children to spend time with her parents and her sister’s family, although they do not live in the same city. The Tribunal accepts that the family would not be living in their current circumstances if they had decided to move to Germany or to Europe permanently.
Mrs Duffy’s three children are Australian citizens. They were all born in Germany and are also citizens of Germany. Each of the sons attends a bilingual school in Germany. The two older children attend an international school, which will enable them to return to the education system in Australia. The oldest son maintains contact with friends from his selective high school in Sydney and plans to return to the school when the family returns to Australia.
The three boys are fluent in German as are, of course, both their parents. Mrs Duffy stated that their primary language is English and that English is the language they speak most at home. Mrs Duffy set out details of the activities each of the children participated in while in Australia and her role in taking them to and fro and attending with them. She claimed that the children are “deeply connected with their community” in Sydney. She also set out details of the activities they are involved in in Germany.
Mr Duffy said that this is possibly the last time that they can live outside Australia because of the children’s schooling. They believe that the children should be settled into high school no later than year 10 to be able to complete high school to a high standard and then continue on to university.
Mrs Duffy worked and studied at different times while in Australian from 2015, including as a research assistant for a Justice Health Research Program. She has deferred her Australian studies while overseas but plans to undertake a qualification in Germany which, she says, will enhance her value as an employee in the wine industry on return to Australia. The Tribunal accepts that she has met her tax obligations as required.
Mrs Duffy described her family’s close relationship with her 66 year-old mother-in-law who lives on the central coast of New South Wales and works in the travel industry. Mrs Duffy’s husband is an only child. His parents divorced many years ago. His father lives in the United States of America.
He is the only direct family member who is capable of taking care of his mother in her old age. The family regularly speak to her via telephone and video conference. Mrs Duffy listed 55 relatives she has in Australia. The Tribunal infers that they are actually all Mr Duffy’s relatives. They include 14 members of her mother-in-law’s family whom she has seen at various family celebrations. She listed 21 members on her father-in-law’s side of the family whom she has met on a few occasions. The others are distant relatives she has not met.
Mrs Duffy and her husband are supporting Mr Duffy’s grandmother financially since she became a widow in early January 2018 when her husband passed away. Mr Duffy spent every school holiday with his paternal grandparents when he was a child and was close to both of them.
Mrs Duffy owns no property in Australia. The Tribunal accepts that she and her husband investigated getting a loan to buy a property in the suburb where they lived on three occasions in 2014, 2015 and 2017. The medium price of a house in that area at that time was probably over $2 million. Their financial resources were not sufficient to purchase a property that met their requirements. She stated that they are hoping to save while her husband is earning a high income in Europe.
I note that Mr and Mrs Duffy told the Tribunal that friends had suggested that they might buy a block of land in Tasmania to satisfy the Policy “ownership of property in Australia” criterion, but they did not pursue that course.
Mrs Duffy and her husband own a motor vehicle and motor scooter in Australia, which continue to be registered, insured and maintained. They are stored in her mother-in-law’s garage.
She and her husband have two joint bank accounts in Australia with total credits of approximately in $70,000, and a credit card with a small balance. There are savings accounts in the names of their two older sons. Both Mr and Mrs Duffy have superannuation accounts in Australia. Mr Duffy suspended their health insurance membership on 15 November 2017 before the refusal decision. The allowable suspension is for two years but may be extended.
Mrs Duffy provided a copy of Mr Duffy’s registration at the Australian Electoral Commission as an overseas elector dated 16 December 2017. He specified that he expected to be overseas until 7 July 2020. The Tribunal takes into account that that document was prepared after the notice of refusal and the application to this Tribunal.
The Tribunal accepts Mrs Duffy’s evidence about her involvement in and contribution to community activities and organisations within Australia and making new friends from 2010. There is supporting evidence in respect to many of those activities. She keeps in touch with some of the groups on social media, email and telephone. She renewed her membership of the Amateur Beekeeper’s Association of New South Wales on 3 January 2018.
The Tribunal accepts that Mrs Duffy contacted the Department in 2015 and 2016. On the latter occasion she was told that her residence visa requirements would be fulfilled on 4 August 2017. She applied two days later. Before applying she had inquired about the impact on her application of two vacations outside Australia and was told advice on residency was not given. She therefore says she applied under Ministerial discretion.
In November 2015, Mrs Duffy applied for and in January of 2016 was a granted a certificate, which allows her to keep her German citizenship if she receives Australian citizenship. Because it is valid for two years, she has applied for an extension for another two years.
In support of her intention to return to Australia in 2020 at the latest, Mrs Duffy provided a copy of a two year rental lease for their Berlin apartment, which terminates on 29 February 2020. She said there was no ability to extend it and that such a time-limited lease is unusual in Germany. The Tribunal also notes her oral evidence that apartments were difficult to find at the time and there was a financial advantage in that the limited lease was cheaper than other indefinite leases.
In relation to the evidence of both Mr and Mrs Duffy about returning to enable their oldest son to go into year 10 at the beginning of 2020, the Tribunal does not accept that entirely. The Tribunal accepts that they had a timeframe of two to three years within which to return to Australia, which was, it accepts, related to their oldest son’s education, but it does not accept that it was necessarily for him to resume his year 10 studies. It entirely accepts that they are concerned about the stability of their children at the time they are in the senior years of high school, before going into university.
The Tribunal freely accepts that if they return to Australia their oldest son would reaudition to return to the performing arts high school where he was in 2017, their second son would return to his old school, and the youngest child, if he were of school age, would then go to the same school.
Mrs Duffy’s sister lives in Bremen in Germany. She wrote a letter of support stating that in 2014 when Mrs Duffy moved back to Australia, they and her brother agreed that Mrs Duffy’s sister would care for their parents when that was necessary as she lives in the next street.
Mrs Duffy claims that she has no future intentions to reside in Germany after returning to Australia, although she will continue to visit her family in Germany.
The Tribunal accepts that Mrs Duffy and her family are particularly upset that her application appeared to be refused because she owns no real property in Australia. Mr Duffy expressed concern about the members of the family not having the same citizenship in Australia when Germany changes visa requirements. He stated that he has no intention of becoming a German citizen and currently holds temporary Swiss and German visas.
In oral evidence, he elaborated upon the difficulty if there was an incident and he or his wife was required to go to one embassy with the children rather than all being able to go to the same embassy.
The Tribunal also notes that following the refusal decision Mrs Duffy’s mother-in-law has included her in her will. The Tribunal understands that she will be a beneficiary of her mother-in-law’s house. The Tribunal notes that Mrs Duffy’s mother-in-law and two friends who gave evidence had no doubt that they will return to Australia based on what was said at the time of their departure in December 2017.
I am now going to address some of the contentions the Minister made in the Statement of Facts, Issues and Contentions (the SOFICs). The first was that the Tribunal needs to be satisfied that Mrs Duffy will reside in Australia soon after becoming a citizen in order to be satisfied that she is likely to reside or to continue to reside in Australia.

Authorities are set out in the SOFICs. They include the decisions of Bates and Minister for Immigration and Border Protection [2015] AATA 492, Taher and Minister or Immigration and Border Protection [2013] AATA 917, Re Chang and Minister for Immigration and Citizenship [2009] AATA 14.
The Tribunal accepts that over the next two or three years and possibly for longer Mrs Duffy will spend a relatively short period of time in Australia having relocated to Germany with her husband and children.
In relation to her movement records, the Tribunal emphasises that Mrs Duffy has had a long connection with Australia since she was a 16 year-old in 1992, which has been a consistent and ongoing connection, culminating in her marrying an Australian citizen after she returned here in 2003 on a work visa, and then living in Australia from 2010 to 2013 and from 2014 to 2017 with the three children who are all Australian citizens but were born in Germany.
The Minister contended that Mrs Duffy’s significant periods of absence are of particular importance. In relation to the decision of Kim and Minister for Immigration and Citizenship [2015] AATA 67; (2015) 145 ALD 704, the Tribunal understands that the general principle that the Respondent relies on is that physical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia. However, Mrs Duffy’s circumstances, as I have summarised, are much different from those of Ms Kim. She has a longstanding association with Australia and has lived in Australia for relatively long periods of three and four years.
In relation to the decision of Taher, the Tribunal accepts the proposition that all the factors in relation to maintaining a close and continuing association with Australia have to be considered and you do not just “chop them up”. I am satisfied that Mrs Duffy does have that close and continuing association, as previously described. The only factor she does not tick the box on is ownership of property in Australia.
She has an Australian citizen spouse. She has three Australia citizen children. She has been in a relationship with an Australian spouse, Mr Duffy, since 2003. She has extended family in Australia, in terms of her husband’s family, including his grandmother and mother. I regard her mother-in-law as a very close relative to Mrs Duffy. Her own extended family are in Germany.
In terms of return visits to Australia, Mrs Duffy’s history has been outlined previously and is reflected in the movement records attached to the Respondent’s SOFICs. She has returned to Australia for the purpose of this hearing, having only left in December 2017 less than a year ago, and before this hearing had been scheduled, had intended to return for Christmas.
She has had periods of residence in Australia. She has expressed the intention to reside in Australia. The Tribunal accepts that is genuine. The Tribunal will come to its reasons why it has not found that she is likely to reside or to continue to reside in Australia.
She has been employed in Australia and she has paid income tax which has been due on that employment.
In relation to intending to stay in Berlin on a temporary basis, as the Tribunal has indicated, it accepts that the current living arrangement and commuting arrangement is temporary. It is obviously not in the best interests of the whole family and is for the purpose of Mr Duffy pursuing a particular opportunity that he sees will enhance his credentials in his particular specialist occupation, which I note, is part of the global economy and hence the movements of the family.
The Tribunal accepts that the contract is for an indefinite period. But given the global economy and the employment progress that Mr Duffy is pursuing, the Tribunal does not give that factor great weight.
The Tribunal accepts that association with an Australian spouse or children is not sufficient to establish a close and continuing association but Mrs Duffy’s circumstances are not confined to that. She has had a long association with Australia, lived here, and on the evidence has developed very close relationships and ties in her former local community and maintains those ties with people.
The Tribunal acknowledges, as stated at paragraph 47 of Taher, that it is plainly difficult to continue to be involved with the Australian community if a person is not physically present in Australia for significant periods. However, this is not a case like Taher. Mrs Duffy has had lengthy periods in Australia where she has developed close ties.
Coming back to why the Tribunal has not accepted that Mrs Duffy is likely to reside or to continue to reside in Australia, it comes down to this. The Tribunal accepts that in 2017 when the decision was made to relocate, the period of time the family was expected to be out of Australia was for two or three years, and that was based on the oldest son’s education. However, because it is a period of two or three years the Tribunal has not got the necessary certainty to be able to find that it is likely that they will reside or continue to reside in Australia because of the length of time. Mr Duffy’s employment is part of the global economy. There may be employment opportunities that arise in the next couple of years in Zurich or New York, as opposed to Sydney.
Also, the Tribunal is not persuaded that the children have to be educated in Australia. It was conceded by Mr and Mrs Duffy that there are excellent educational facilities in Europe, including in Zurich and Berlin, and in New York.
The Tribunal was not able to be satisfied in relation to those matters but for the reasons that it has given it is satisfied that Mrs Duffy is likely to maintain a close and continuing association with Australia, if the application were to be approved.
Decision
For those reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the Applicant satisfies section 21(2)(g) of the Citizenship Act 2007 (Cth), because she is likely to maintain a close and continuing association with Australia if the application were to be approved.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 3 December 2018

Date(s) of hearing: 1 November 2018

Applicant: In person

Solicitors for the Respondent: T Hillyard, Sparke Helmore Lawyers

Date(s) of hearing:	1 November 2018
Applicant:	In person
Solicitors for the Respondent:	T Hillyard, Sparke Helmore Lawyers