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

[2024] AATA 964

Fricke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] AATA 964 (28 March 2024)

Division:GENERAL DIVISION

File Number(s):      2023/4644

Re:Richard Carl Fricke

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 March 2024

Place:Sydney

The decision under review is set aside and remitted with the direction that the spousal discretion under subsection 22(9) of the Australian Citizenship Act 2007 (Cth) is enlivened and should be exercised in favour of the applicant, with the consequence that he is deemed to have met the general residence requirement.

.......................[SGD].................................................

Senior Member A Poljak  

Catchwords

CITIZENSHIP – Application for citizenship by conferral – Whether the applicant meets the general residence requirement – Permanent resident – Whether applicant has a close and continuing association – Substantial periods of absence – Spouse or de facto – Intention to reside – Purchase of property – Continual employment – Engagement in community – Decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth)

Secondary Materials

Australian Citizenship Policy Statement 

Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member A Poljak

28 March 2024

1. Mr Fricke, the applicant, is a citizen of South Africa. He first arrived in Australia on 14 November 1996 and remained in the country for one month as the holder of a Tourist visa, departing on 14 December 1996. Between that date and January 2016, the applicant made 21 trips to Australia. From June 2002, the applicant has held seven Resident Return (Subclass 155) visas, with the most recent granted on 16 October 2022.  

2. On 11 November 2000, the applicant married Kelly Mae Fricke, also a citizen of South Africa. On 29 June 2011, Mrs Fricke acquired Australian citizenship.

3. On 19 June 2020, whilst living in the United States of America (USA), the applicant lodged an application for citizenship by conferral, relying on a partial exemption from the residence requirements in the Australian Citizenship Act 2007 (Cth) (Act) as the spouse of an Australian citizen (spousal discretion).

4. On 1 June 2023, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused to approve the applicant’s citizenship application. The delegate found:

   (a)the applicant did not meet the residence requirements in paragraph 21(2)(c) of the Act and did not have a close and continuing association with Australia during the four-year period prior to his application so as to enliven the spousal discretion in subsection 22(9);

   (b)the applicant was not likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia if the application were approved, as required by paragraph 21(2)(g) of the Act; and

   (c)the prohibition an approval in subsection 24(5) of the Act applied because the applicant was not present in Australia at the time of the decision and did not satisfy the special residence requirement nor was the subject of the exercise of any Ministerial discretions.

5. This is the decision under review in these proceedings.

6. The applicant still currently resides in the USA. He was in Australia at the time of hearing.

   Issues

7. The issues for determination in these proceeding are as follows:

   (a)Whether the applicant is likely to reside in Australia or maintain a close and continuing association with Australia, if the citizenship application is approved (pargraph21(2)(g)); and

   (b)Whether the spousal discretion under subsection 22(9) is enlivened and should be exercised in favour of the applicant; or

   (c)If the spousal discretion is not exercised, whether the prohibition to approval under subsection 24(5) currently applies to the application.

   Relevant Legislative Provisions

8. Section 22(1) of the Act provides that 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.

9. Subsection 22(9) of the Act provides that if a person is the spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat periods of time that a person is absent from Australia as periods of time that the person is present in Australia as a permanent resident if:

   (a)the person was a spouse or de facto partner of that Australian citizen during that period;

   (b)the person was not present in Australia during that period;

   (c)the person was a permanent resident during that period; and

   (d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.

10. The Australian Citizenship Policy Statement (Policy Statement) and the Revised Citizenship Procedural Instructions (CPIs) provide further guidance in relation to the ‘close and continuing association’ criterion in paragraph 22(9)(d).

11. An additional primary requirement of the conferral of citizenship under the general eligibility criteria is that the Minister is satisfied that the person is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved (paragraph 21(2)(g)).

12. Section 24 of the Act sets out the circumstances in which the Minister is permitted or required to refuse an application. Relevantly, subsection 24(5) states that where a person is subject to the eligibility requirements under subsections 21(2), (3) or (4), the Minister must not approve a person becoming an Australian citizen at a time when the person is not present in Australia, subject to certain exceptions. Those exceptions include where the person satisfies the special residence requirement in sections 22A or 22B or where the discretion in subsections 22(9) or 22(11) is enlivened.

    Consideration

13. There is no dispute in this case that the applicant fails subsection 22(1) as he does not meet the three cumulative requirements of that provision, as in the four years immediately prior to the day on which he made the application, being 19 June 2016 to 18 June 2020 (relevant period), the applicant was only in Australia for 12 days.

14. It is also not disputed that the applicant satisfies the criteria in paragraphs 22(9)(a)-(c) of the Act. The applicant has been married to an Australian citizen since 11 November 2000 (paragraph22(9)(a)); he was not in Australia during the relevant period (pargarph22(9)(b)); and he was a permanent resident during the relevant period (paragraph22(9)(c)).

15. I now turn to whether the applicant had a close and continuing association with Australia during the relevant period (paragraph 22(9(d)).

16. The applicant states that he and his wife have always considered Australia their home and have every intention of living and working in Australia again.

17. The applicant’s evidence is that the main reason he moved to the USA, was to take up an ‘amazing career opportunity’ and position with Westfield Corporation as the Financial Director for the World Trade Centre Retail development in Downtown Manhattan. He was offered the role in New York City and relocated to the USA in October 2012. Prior to this, the applicant had worked for Westfield in Australia for 12 years, most recently as the Property Finance Manager on the Westfield Sydney inner-city mixed-use project, also managing all project finances.

18. In a written statement dated 15 August 2023, the applicant explained:

    The World Trade Center retail project was originally scheduled for a period of 5 - 7 years for the delivery of all stages which would have concluded been between 2017 and 2019. A further 12 – 18 months would be required for stabilization. However, the project has run into many issues with very long delays along the way with the final stage only being delivered in late 2022 after which Westfield still had to complete its own construction work. The delay caused many financial, operational, and legal issues that needed to be resolved between all interested parties. Considering my extensive knowledge of the Project and relationships with external partners, Westfield then requested that I extend my initial commitment in the US. This initial commitment for was supposed to be for a period of 3-5 years. Since commencing the resolution of the many issues between the various parties at the World Trade Center, we have made significant progress in the last 24 months. We are now down to 5 unresolved issues, mainly with our JV partner, a US Public entity. There is not an exact end date for final resolution although we hoped that it would be done sooner, so currently I anticipate being here for another 18 months.

19. At hearing, the applicant explained that he and his wife have no fixed date for returning to Australia but do intend to return once he has fulfilled his work commitments to a point where he would be content to leave the project. With current estimates, the applicant said that the earliest exit would be in one year and the maximum three years. He accepted that the project had suffered significant delays and it was difficult to identify the exact date for project conclusion.

20. The applicant said he has no concrete career plans in Australia but has reached out to some ex-colleagues and has had broad discussions about work in Australia. He said it was not essential that he had a job or project lined up before his return.  

21. The applicant and his wife have purchased two properties in Australia, one in 2001, being a property in Lane Cove, and the other in 2004, an investment property. They consider their property in Lane Cove as their home. They resided in the property from when they purchased it, to when they relocated to the USA. The applicant’s evidence is that they intend to reside in the property when they return to Australia and are currently planning renovations on the property, having engaged an architect to design and submit plans to council. The applicant and his wife currently receive rental income from their two properties, which are managed by Australian real estate agents.

22. At hearing the applicant explained that he and his wife have a condo in Colorado which is a rental property/business. He said he would like to look into replicating this in Australia in the future, most likely in a ski resort area.

23. The applicant and his wife have regularly transferred a significant amount of funds to Australia to reduce their mortgages on their properties; one now being almost at zero, and the other mortgage on the investment property has been reduced by half. They have also accumulated funds in savings and a significant investment in their superannuation funds in Australia and have continued to add to that investment while in the USA. The applicant and his wife say that this investment in property and superannuation in Australia is because they intend to return and reside in Australia. 

24. The applicant has continued to meet his tax obligations in Australia while residing in the USA. I also note that the applicant has maintained private health insurance cover in Australia with BUPA since 2000.

25. The applicant’s wife, Mrs Fricke, has provided evidence in these proceedings in support of the applicant’s claims for Australian citizenship. She reiterated their intention to return to Australia once the applicant concludes aspects of his current role in the USA. Mrs Fricke explained that her business could be easily transferred to Australia. Although she would need to find new clients, her current skills are in demand. Mrs Fricke said that her current clients in the USA need her present at the moment but once they move to Australia, she can assist her clients remotely.

26. The applicant’s limited period of Australian residence in the four years prior to his application for citizenship does cast doubt on the justification for a conclusion that he has a “close and continuing association with Australia”. However, from when the applicant migrated to Australia, he plainly set up a life for himself and his wife over some 12 years. Having purchased and resided in the family home in Lane Cove, obtaining continual employment, investing financially in property in Australia and engaging with the Australian community through recreational groups and clubs. The applicant participated in swimming teams, cycling groups and tennis. The applicant’s departure in 2012 was to pursue a significant career opportunity in the USA. It has resulted in a prolonged absence due to project delays. Despite this, the applicant and his wife have maintained ties with colleagues and friends in Australia. The applicant’s significant assets remain in Australia, and they have sought to secure themselves a future in Australia by contributing to superannuation and paying off their mortgages. In addition, they have active plans to renovate their family home in Lane Cove with the intention of residing in the property. These particular considerations, sufficiently evidence a “close and continuing association with Australia”.

27. I am persuaded on the evidence of the applicant and his wife that there is an intention to reside in Australia in the future. I accept their evidence that eventually they wish to resettle in Australia and that their present intention is to do so within the next three years.  This is despite there being no definite plans about returning to live in Australia as a result of the uncertainty surrounding the applicant’s current role in the completion of aspects for the World Trade Centre Retail development in Downtown Manhattan.  While the applicant will not reside or be likely to reside in Australia in the foreseeable future, I am satisfied that he will likely reside in Australia and will continue to maintain a close and continuing association with Australia, as he has done so in the past.

    Decision

28. I find that the applicant has demonstrated a close and continuing connection with Australia in the four years preceding his citizenship application and that he is likely to reside in Australia or will maintain a close and continuing association with Australia should citizenship be granted.  

29. The decision under review is set aside and remitted with the direction that the spousal discretion under subsection 22(9) of the Australian Citizenship Act 2007 (Cth) is enlivened and should be exercised in favour of the applicant, with the consequence that he is deemed to have met the general residence requirement.

    
    
    
    
    

30.     I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..................................[SGD]....................................

Associate

Dated: 28 March 2024

Date of hearing:	6 February 2024
Solicitor for the Applicant:	Mr R C Turner, Ray Turner Immigration Lawyers
Solicitor for the Respondent:	Mr A Taverniti, Sparke Helmore Lawyers