Edwards and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 764
•14 April 2023
Edwards and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 764 (14 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0067
Re:Rachel Edwards
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:14 April 2023
Place:Melbourne
The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship –– general residence requirement – nature of presence in Australia – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021CASES
Lin v Minister for Immigration and Border Protection [2009] FCA 494
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
14 April 2023
BACKGROUND
The Applicant seeks review of a decision by a delegate of the Minister dated 23 December 2022, to refuse her application for Australian citizenship by conferral. The decision was made under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the basis that the Applicant did not satisfy the general residence requirement.
The hearing was held on 12 April 2023 by telephone. The Applicant was self-represented. The Respondent was represented by Mr Adam Cunynghame, a solicitor with Sparke Helmore Lawyers.
For the following reasons the Tribunal affirms the decision under review.
INTRODUCTION
4. The Applicant is a 57-year-old citizen of the United Kingdom, who first arrived in Australia on 5 January 1972 when she was five years old. Her son was also born here in January 1997.[1] For much of the last 25 years, the Applicant and her son have mostly lived in Indonesia (Bali) and the United Kingdom. The Applicant is the holder of a Resident Return (Subclass 155) Visa, which was last granted to her on 15 March 2019. Over the years she has undertaken frequent but relatively brief visits to Australia.[2] In the approximately 20-year period between 21 December 2000 and her last arrival in Australia in November 2019, the Applicant was only physically present in Australia for a total of 50 days as follows:
[1] Exhibit R1, 30.
[2] Ibid 117-120.
DATE ARRIVAL / DEPARTURE 21 December 2000 Arrive in Australia 3 January 2001 Departed Australia 8 March 2001 Arrived Australia 12 March 2001 Departed Australia 13 October 2002 Arrived in Australia 17 October 2002 Departed Australia 29 October 2011 Arrived in Australia 4 November 2011 Departed Australia 26 December 2016 Arrived in Australia 18 January 2017 Departed Australia 18 November 2019 Most recent arrival in Australia
On 22 November 2022, the Applicant applied for Australian citizenship by conferral. This was approximately three years since her last arrival in Australia.
On 23 December 2022, a delegate of the Respondent refused the citizenship application, on the basis that the Applicant did not satisfy the general residence requirement under s 22(1)(a) of the Act. This requires an applicant to have been present in Australia for a period of four years immediately prior to the day they make their application.[3]
[3] Ibid 7-22.
On 5 January 2023, the Applicant asked the Tribunal to review the citizenship refusal decision.[4]
[4] Ibid 1-6.
LEGISLATIVE FRAMEWORK
Section 24(1) of the Act provides that ‘If a person makes an application under section 21, 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 the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)’.
Under s 21(2)(c) of the Act, an applicant must either satisfy the general residence requirement under s 22 of the Act or the special residence requirements under ss 22A or 22B of the Act, at the time of their application.
Section 22 of the Act provides for the exercise of discretion regarding the general residence requirement providing certain conditions are met:
General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
…
Section 22B of the Act provides:
Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia
(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; …
Section 22C(3) of the Act confers power on the Minister to specify kinds of work for the purposes of s 22B(1)(a) of the Act. The Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021, enacted by the Minister on 11 October 2021, defines ‘specified kinds of work’ for the purposes of s 22B (1) (a) of the Act.
Section 52(1)(b) of the Act is the source of the Tribunal’s jurisdiction to review decisions made by the Minister or their delegate under s24 of the Act.
The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPIs) (reissued 26 February 2021) provide guidance for decision-makers exercising power under the Act. Although Ministerial policy is not binding on the Tribunal, as held in Drake,[5] decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’ The Tribunal has not identified any reason arising from the Applicant’s circumstances why the Policy and the CPIs, which supplement the Policy, should not be applied. In doing so, however, the Tribunal is mindful not to exercise delegated powers and policy inflexibly.
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUE BEFORE THE TRIBUNAL
The issues to be determined by the Tribunal are whether the Applicant has met the residence requirement at s 22(1)(a) of the Act and, if not, whether there is any discretion to approve her application to become an Australian citizen.
EVIDENCE
Documentary evidence
The Respondent provided a bundle of documents numbering 171 pages;[6]
[6] Exhibit R1.
The Applicant tendered the following documents, which were taken into evidence:
(a)Extract of the Applicant’s resume;[7]
[7] Exhibit A1.
(b)Decision by Senior Member John Longo of this Tribunal dated 15 November 2022, setting aside a decision by the Chief Executive of Centrelink, to recover a Family Tax Benefit debt from the Applicant;[8]
[8] Exhibit A2.
(c)Newspaper article regarding the Applicant’s involvement in a poetry competition;[9]
[9] Exhibit A3.
(d)Extracts of a book written by the Applicant regarding mental health issues;[10]
[10] Exhibit A4.
(e)Certificate regarding the Applicant’s adoption of a dog;[11]
(f)Emails from the Applicant to the Respondent dated between February 2023 and screenshots from her online immigration account;[12]
(g)Emails and letters from the Applicant’s family members and friends in Australia and the United Kingdom;[13]
(h)A letter from a former employer in the United Kingdom;[14]
(i)Notice from East Sussex Healthcare dated 22 September 2017 regarding a surgical procedure;[15]
(j)Medical letter dated 11 October 2018 regarding the Applicant’s right shoulder symptoms, which were assessed as ‘rotator-cuff related shoulder pain’;[16]
(k)Three sick certificates from the United Kingdom, each for three months, dated between August 2018 and January 2019 stating that the Applicant was unfit for work variously due to ‘shoulder pain’ and ‘chest infection’;[17]
(l)Physiotherapy discharge summary dated 14 March 2019 regarding the Applicant’s attendance at physiotherapy sessions since August 2018 for a right shoulder condition. The notice states the Applicant had received a steroid injection and ‘progressed well’;[18]
(m)Four photographs of the Applicant in various settings in which she claims to be assisting refugees in Greece;[19] and
(n)A letter from the office of the Duke and Duchess of Sussex thanking the Applicant for her well wishes and gift of a book following their son’s birth.[20]
[11] Exhibit A5.
[12] Exhibit A6.
[13] Exhibit A7.
[14] Exhibit A8.
[15] Exhibit A9.
[16] Exhibit A10.
[17] Exhibit A11.
[18] Exhibit A12.
[19] Exhibit A13.
[20] Exhibit A14.
Applicant’s evidence
In oral evidence, the Applicant accepted her travel records in evidence were accurate and that she therefore does not satisfy the four-year general residence requirement. Her submissions instead centred on the close connections she has established in Australia through schooling, and with her family and friends. The Applicant stated: ‘I believe I am an exception to the [general residence] rule’. When asked to identify the provision in the Act that allows for such an exception, the Applicant did not do so.
The Applicant recounted her early years in Australia and why she has always ‘identified as Australian’. She said the father of her child is a British citizen who has lived and worked predominantly in Indonesia and spent no more than ‘six days in total’ in Australia. The Applicant referred to past ‘custody issues’ as one reason why she lived overseas. She said her son only lived in Australia for a short time after his birth in 1997, before they relocated to Bali Indonesia where he commenced his education. They lived in Bali for several years prior to 2008 and then in the United Kingdom between 2008 and 2019, where the Applicant’s son undertook secondary and university education.
The Applicant said she ‘always intended’ to reside in Australia permanently but was prevented from doing so by ‘legal reasons’, ‘custody reasons’, ‘health problems’, COVID-19, and her son’s education overseas. The Applicant said she returned to Australia to care for her parents after her son completed his degree. Her son now lives and works in Indonesia, but the Applicant said he visited Australia ‘three times in the last six months’.
The Applicant claimed that several of the Respondent’s employees and an unnamed lawyer told her she could qualify for Australian citizenship after three years instead of four, and this advice had been witnessed by her parents. She referred to a period in 2018 and 2019 when she did not hold any Australian visa but attributed this to the Respondent’s delay in processing her visa renewal application. She said the Respondent asked for additional information that she believed was not required and unnecessarily delayed her visa approval.
During cross-examination by Mr Cunynghame, the Applicant discussed her life overseas. She referred to working in the United Kingdom, including as a community nurse. When asked about doctor’s certificates dated August 2018, October 2018, and February 2019, each for three months, which stated she was unfit for work, the Applicant said these related to a work injury for which she received social security benefits from the British Government. She also received physiotherapy and other support under the National Health Service.
CONSIDERATION
The Act requires a person to be physically present in Australia in the four years immediately prior to making their citizenship application, with limited exceptions. The Applicant spent her childhood in Australia and subsequently lived here for extended periods prior to the mid 1980’s. She retains close associations, particularly with her parents and some friends.
The Applicant’s evidence about Australia being her home, and characterisation of absences during the 11 years between 2008 and 2019 as ‘Visit Family’ in the United Kingdom,[21] is difficult to reconcile with the available evidence. This discloses frequent departures from Australia and relatively short return visits. For example, the Applicant has only been physically present in Australia for 50 days in the 20 years prior to her most recent arrival in 2019. She has instead lived predominantly in Indonesia and the United Kingdom during the last 25 years. During the eleven years prior to 2019, she lived, worked, raised her child, and received medical treatment and income support payments in the United Kingdom. Her son was born in Australia but became a citizen of the United Kingdom within months of his birth in 1997.[22] He attended primary school in Indonesia, undertook secondary and tertiary education in the United Kingdom, and continues to live overseas to the present day.[23]
[21] Ibid 42.
[22] Ibid 30-31.
[23] Ibid 69; 110.
In the first of four years prior to making her citizenship application, the Applicant was absent for 361 days. This was part of a total absence of 1034 days dating back to 2017. The Tribunal is not satisfied this absence was temporary or periodic. This includes because the Applicant did not hold any visa from 19 September 2018, until reacquiring Australian permanent residency on 14 March 2019. The Applicant attributes this to unnecessary delay by the Respondent when processing her application. It is noteworthy, however, that she only lodged her visa renewal application within a few days of visa expiry, which also appears to have been a contributing factor to the break in her visa status.
CONCLUSION
The Applicant does not satisfy the general residence requirement under s 21(1)(a) of the Act. Prior to her most recent arrival in 2019, she was ordinarily resident in the United Kingdom for 11 years. The Tribunal does not accept she was ‘absent from Australia’ in the first of four years prior to lodging her citizenship application, within the meaning of s 22(1A) of the Act. Her absence was not temporary, but an open-ended arrangement that encompassed a life overseas for much of the 25 years prior to her latest arrival in Australia. On these facts she was not ‘present in Australia’ for the purpose of the general residence requirement.[24]
[24] Lin v Minister for Immigration and Border Protection [2009] FCA 494, [60]; [72]; [74]; [78]; [106] (Foster J).
The Applicant makes no claims about the discretions available at ss 22(1C), (2),(4A), (5), (5A), (6), (9), (10), or (11) of the Act, and the Tribunal is satisfied these do not apply. The Tribunal is also satisfied the Applicant does not meet the special residence requirements under s 22A of the Act and the relevant Schedule.
The Applicant does not satisfy s 22B(1)(a) of the Act because she is not engaged in a permissible type of work in Schedule C, which is an exhaustive instrument. The Applicant referred to work as an author, but to satisfy this provision of the Instrument, she must be employed as a Chief Executive Officer or an Executive Manager of an S&P/ASX All Australian 200 listed company. That is clearly not the case and there is no discretion to expand the permissible types of work under Schedule C or apply other factors.
On the Tribunal’s calculation, the Applicant will satisfy the general residence requirement on 18 November 2023 if she remains in Australia and re-applies for citizenship. The success of her application, however, turns on other eligibility criteria the Minister is yet to determine. This includes ‘the knowledge requirement’ at ss 21(2)(d)-(f) of the Act, the close and continuing association requirement at ss 21(2)(g) of the Act, and the good character requirement at s 21(2)(h) of the Act.
DECISION
The Tribunal affirms the reviewable decision.
31.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC
……………[sgd]…………………….
AssociateDated: 14 April 2023
Date of hearing: 12 April 2023 Applicant, self-represented: Ms Rachel Edwards Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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