Guillen Manzanilla and Minister for Home Affairs (Citizenship)
[2019] AATA 962
•22 May 2019
Guillen Manzanilla and Minister for Home Affairs (Citizenship) [2019] AATA 962 (22 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1654
Re:Cristina Mariana Guillen Manzanilla
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Kira Raif
Date:22 May 2019
Place:Sydney
The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of s 22(9) of the Australian Citizenship Act 2007 (Cth) and satisfies s 21(2)(c) of the Act.
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Senior Member Kira Raif
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – general residence requirement – where applicant spouse of Australian citizen – where applicant has two Australian citizen children – where applicant had extended periods of absence from Australia in four years immediately before the citizenship application – where applicant was not present in Australia as a permanent resident for the period of 12 months immediately before the citizenship application – ministerial discretion to treat periods overseas as a period in which the applicant was present in Australia as a permanent resident – whether close and continuing association with Australia during period of absence – where applicant had established a home in Australia prior to travelling overseas – where applicant’s intention was to reside in Australia – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 23
CASES
Judd v Minister for Immigration [2017] FCA 827
Kwun Kiu Lo and Minister for Immigration and Border Protection (2014) 144 ALD 450
Minister for Immigration and Border Protection v Han (2015) 231 FCR 113
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Taher and Minister for Immigration [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, 1 July 2016
REASONS FOR DECISION
Senior Member Kira Raif
22 May 2019
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The applicant is a national of Mexico, born in March 1986. She entered Australia in February 2013 as a holder of the temporary Partner Class UF visa and was granted a Partner (Migrant) Class BC visa on 20 May 2014 on the basis of the sponsorship of the applicant’s spouse.
The applicant made the application for Australian citizenship by conferral on 20 April 2017. On 13 March 2018 the delegate of the Minister for Home Affairs refused that application because the delegate formed the view that the applicant did not meet the residence requirements in s 21(2) of the Act. The applicant seeks review of the delegate’s decision.
Legislative framework
Section 21 of the Act deals with the general eligibility to become an Australian citizen. Relevantly, s 21(2)(c) relates to the residency requirement and provides that an applicant must satisfy:
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
Section 22 of the Act sets out the general residence requirements. Relevantly, s 22(9) allows ministerial discretion to be exercised and states:
If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was 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; and
(b)the person was not present in Australia during that period; and
(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.
ISSUES FOR DETERMINATION
The issue before the Tribunal is whether the applicant satisfied the general residence requirement, the special residence requirement or the defence service requirement at the time the application was made, as required by s 21(2)(c) of the Act. If the applicant does not meet the residence requirements, the Tribunal must determine whether, for the purpose of s 22(9)(d) of the Act, the applicant had a close and continuing association with Australia during the period of her absence from Australia. If the Tribunal so finds, the Tribunal must consider whether to exercise the discretion in the applicant’s favour.
For the following reasons, the Tribunal has concluded that the applicant meets the general residence requirements and that the decision under review should be remitted for reconsideration.
Does the applicant meet the special residence requirement or the defence service requirement?
The special residence requirements are set out in ss 22A and 22B of the Act.
There is no evidence, and the applicant does not claim, that she is seeking to engage in an activity specified under s 22C(1). The Tribunal is not satisfied the applicant meets s 22A(1)(a).
As the applicant does not meet s 22A(1)(a), the ministerial discretion set out in s 22A(1A) does not apply. There is nothing to suggest the applicant was confined in a prison or psychiatric institution (s 22A(2)) and there is no evidence of any administrative error (s 22A(4)). The remaining exceptions in s 22A do not apply to the applicant. The Tribunal finds that the applicant does not meet the special residence requirements in s 22A.
There is nothing before the Tribunal to indicate that at the time when the application was made, the applicant was engaged in work of a kind specified under s 22C(3). The Tribunal is not satisfied the applicant meets s 22B(1)(a) and the special residence requirements in s 22B.
The defence service requirement is set out in s 23 of the Act. There is no evidence before the Tribunal that the applicant has completed relevant defence service or that she is a member of the family unit of a person who has completed relevant defence service. The Tribunal is not satisfied the applicant meets the defence service requirement in s 23.
The Tribunal is not satisfied the applicant meets the special residence requirements in
ss 22A and 22B and the defence service requirement in s 23.
Does the applicant meet the general residence requirements?
The general residence requirements are set out in s 22 of the Act. Essentially, the applicant must have been present in Australia for a period of four years immediately before the day the application was made, pursuant to s 22(1)(a) of the Act, and present in Australia as a permanent resident for a period of 12 months before the application was made, pursuant to s 22(1)(c) of the Act.
The periods of the applicant’s presence and absences from Australia are set out in the primary decision record. It indicates that the applicant was absent from Australia for a total of 374 days in the four years immediately before making the application for citizenship. Further, the applicant was absent from Australia for a total of 205 days in the 12 months immediately before applying for citizenship. The Tribunal is not satisfied the applicant was present in Australia for the period of four years immediately before the day she made the application. The applicant does not meet s 22(1)(a). Further, the applicant was not present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application. She does not meet s 22(1)(c).
The Tribunal finds that the total period of the applicant’s absence or absences was more than 12 months. The applicant does not meet s 22(1A). Further, the total period of the applicant’s absence or absences in the 12 months immediately before the application was made exceeded 90 days. The applicant does not meet s 22(1B).
There is no evidence that the applicant was confined in a prison or a psychiatric institution. She does not meet s 22(1C) and s 22(5A). There is no evidence that the applicant was born in Australia or was an Australian citizen before making the application and she does not meet s 22(2). There is no evidence that the applicant was an unlawful non-citizen because of an administrative error and there is no evidence of any administrative error. The applicant does not meet s 22(4A) and s 22(5). The applicant was not present in Australia for the relevant period other than as a permanent resident and the Tribunal is not satisfied the applicant meets s 22(6).
There is no evidence that the applicant holds a permanent visa granted because she was in an interdependent relationship with an Australian citizen. The applicant does not meet
s 22(11).
The applicant relies on the discretion set out in s 22(9) of the Act.
The parties’ claims
The applicant entered Australia as a holder of a Class UF Partner visa in February 2013 and was granted a Class BC Partner visa in May 2014 on the basis of her relationship with her partner. The Tribunal is satisfied that the applicant has been a spouse of an Australian citizen from at least the date of marriage in March 2012 and at the time when she made the application for citizenship. The Tribunal further finds that the applicant has been a permanent resident from May 2014. The Tribunal finds that the applicant meets ss 22(9)(a), (b) and (c).
The applicant argues that she has a close and continuing association with Australia, as required by s 22(9)(d).
In Judd v Minister for Immigration [2017] FCA 827, Perry J stated at [14]:
While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that 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”.
In her statement to the delegate dated 10 April 2017 the applicant stated that she is a permanent resident of Australia and her husband and child are Australian citizens living in Australia. The applicant states that they have purchased their own property and intend to relocate to their own home in the near future. The applicant states that during the period of her absence from Australia with her daughter, her husband could not obtain leave from work and they had daily Skype conversations. The applicant states that her husband is employed in Australia and, having purchased their own house, they have no intention of leaving. Their child attends weekly learning sessions and the applicant noted that she was pregnant with their second child. The applicant states that upon arrival to Australia, she had taken English lessons and has been of good character.
In a further statement dated 10 April 2017 the applicant stated that her child was born in October 2015. She and her husband arranged for her mother to travel to Australia to help as they have no close relatives. After a few months, her mother had to return to Mexico and the applicant states she accompanied her mother as she does not have the support she needs while her husband is at work. Her husband travelled to Mexico and they all returned to Australia in November 2016.
The applicant presented with her citizenship application a number of documents, including birth certificates for her two children, a copy her husband’s Australian passport and a rate notice with respect to a property in Potts Hill NSW.
In her communication with the Department of 9 March 2018 the applicant states that her departure from Australia was unexpected. She received news that her grandfather was terminally ill and she wanted to be by his side. She departed Australia with her mother and two children but her grandfather passed away at the time of her arrival. With respect to her trip in December 2015, the applicant states that she arranged her son’s baptism in the presence of extended family. She and her husband decided that she remain in Mexico for an unspecified period as she would have the support and care of her extended family to assist in raising the children as her husband is away most days and they have no other support in Australia. The applicant indicated her plan to return to Australia in the later part of the year.
The delegate was not satisfied that the applicant had a close and continuing association with Australia during the periods of her absence from Australia. The delegate acknowledged that the applicant had an Australian citizen partner and children and made regular visits to Australia, but the delegate noted that the applicant had no extended family in Australia, no intention to reside in Australia, past or present employment in Australia, no evidence of payment of income tax or of active participation in Australian community based activities or organisations. The delegate noted that the applicant travelled separately and independently of her husband in 2015/2016 and found that the discretion cannot be applied for that period of travel.
The applicant set out the reasons for the application in her application for review. In her Statement of Facts, Issues and Contentions (SFIC) the applicant identified the issues as the delegate’s failure to communicate or request additional evidence, to exercise due diligence in assessing and considering the evidence and refusal to accept the integrity of the provided evidence. The Tribunal notes, however, that it conducts a review de novo and any errors in the primary decision, even if such were established, need not result in the matter being remitted. The applicant provided to the Tribunal passport copies and birth certificates for her children and her partner, evidence of her relationship with her husband, evidence of property ownership, evidence relating to the applicant’s past study in Australia, her Tax File Number, PAYG summaries, bank records and evidence of employment and a number of statements.
In his statement to the Tribunal dated 27 July 2018 the applicant’s partner, Mr Georgiev states that the applicant migrated to Australia in February 2013 and established a home in Australia prior to her residence overseas. Mr Georgiev notes that the couple have been in a long term relationship, having married in March 2012, and have two children who are Australian citizens. Mr Georgiev states that the applicant has extended family in Mexico and has always been close to her family but she has friends in Australia. Mr Georgiev states that the applicant departed Australia on two occasions, both of which were unexpected and for valid reasons. In December 2015 her grandfather became ill and she travelled with her mother. Once he was scheduled for leave, he travelled to Mexico and the family returned to Australia together. In December 2017 the applicant’s grandfather became ill again and passed away before the applicant reached Mexico. On both occasions, the applicant arranged baptisms for the children while in Mexico. Mr Georgiev states that other than vacations in January 2014 and the two departures, the applicant had been present in Australia as a lawful and permanent resident. Mr Georgiev states that the applicant migrated to Australia with the intention to reside in Australia permanently. They have purchased a parcel of land and intend to build their own home once they can finance the builder. Mr Georgiev states that when the home was purchased, the applicant was outside of Australia and could not be named on the title or loan documents but the property has been purchased as a couple. He has been working with the Department of Transport for over 22 years and has no intention to undertake an alternative career path. His mother is ill and requires long term care and he has no intention of leaving his mother without his care. They have no intention of leaving Australia. Mr Georgiev states that it has been difficult for him to obtain leave from his employer and he has spent his leave vacationing with his family in Mexico. Mr Georgiev states that the applicant worked in Australia but her income was below the tax threshold, so no tax was paid. She also completed a TAFE course but stayed at home after the birth of the children. Due to her family commitments, she does not have much time to participating in community activities.
The Respondent submits in the SFIC dated 28 October 2018 that it is more difficult to establish a ‘close and continuing association’ if the applicant has not been physically present in Australia for significant period of time (Kwun Kiu Lo and Minister for Immigration and Border Protection (2014) 144 ALD 450 at [23] and Safi Taher and Minister for Immigration [2013] AATA 917 at [19]). The Respondent addresses the requirements set out in the Citizenship Policy, which are set out below. The Respondent’s submission is that the applicant has not spent enough time in Australia to establish the relevant association either through involvement in Australian activities or through employment and other factors.
Did the applicant have a close and continuing association with Australia?
Chapter 7A of the Department of Immigration and Border Protection Citizenship Policy (“the Departmental Policy”) sets out factors that are relevant to the consideration of
s 22(9). These include:(a)evidence that the person migrated to and established a home in Australia prior to the period overseas
(b)Australian citizen children
(c)long term relationship with Australian citizen spouse or de facto partner
(d)extended family in Australia
(e)regular return visits to Australia
(f)regular periods of residence in Australia
(g)intention to reside in Australia
(h)the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
(i)ownership of property in Australia
(j)evidence of income tax paid in Australia over the past four year [sic]
(k)evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
The Departmental Policy details a non-exhaustive list of factors for the decision-maker’s consideration. The Tribunal is not bound to apply the Departmental Policy however should give regard to, and apply the Departmental Policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). The Tribunal is not aware of any cogent reason why it should not take the Departmental Policy into consideration in this case.
In Taher and Minister for Immigration and Border Protection [2013] AATA 917, the Tribunal held at [47]:
In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
In Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 Senior Member A K Britton stated at [44]:
Whether or not [the applicant] 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.
The Minister submits that it is the intention of the legislation to ensure that those seeking citizenship meet the residence requirements and the provisions in s 22 are exceptions. In Minister for Immigration and Border Protection v Han (2015) 231 FCR 113 the Court stated at [54]:
The passages emphasised above indicate that it was intended that spouses of Australian citizens should generally meet the same criteria as other adult applicants and not merely rely on a spousal relationship. It is equally evident, however, that it was intended to ameliorate this policy by conferring discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.
Having regard to the applicant’s circumstances and the relevant Departmental Policy in relation to the application of s 22(9), the Tribunal makes the following findings.
The applicant was granted a permanent visa and travelled to Australia to live with her partner. She has spent considerable time in Australia from February 2013 until December 2015 with a short period of absence of two months between January and March 2014. The Tribunal accepts the applicant’s evidence that the primary purpose of her returning to Mexico was to seek help with caring for the young child, as there was little help available in Australia, as well as to be with her elderly relatives in Mexico. Prior to departing Australia, the applicant had completed a number of courses in Australia. The applicant’s evidence to the Tribunal is that she had made friends while undertaking these courses and maintained connections with these friends. The Tribunal accepts that the applicant had migrated to Australia and had established a home prior to the period of overseas residence.
The applicant has two children who are Australian citizens. She also has a long term relationship with her Australian citizen spouse. The applicant does not have extended family in Australia.
The applicant did make visits to Australia. Since her departure, she has been living in Australia for approximately one year from November 2016 to December 2017. Her evidence to the Tribunal is that during her residence in Mexico, she did not work but took care of the child and spent time with relatives. Similarly, the applicant’s evidence is that during her residence in Mexico in 2017 – 2019, she did not work but spent time with her family. It does not appear that after migrating to Australia in February 2013, the applicant had any intention of maintaining long term residence in Mexico.
The Tribunal has accepted the applicant’s evidence that she travelled to Mexico to be with her extended family and to have help in caring for the children. As the applicant’s spouse was unable to spend equal amount of time overseas due to work commitments, the Tribunal accepts that it was always the couple’s intention that the applicant would return to Australia to be with her partner and for the applicant’s partner to be with the two children. The Tribunal is satisfied that the applicant always had the intention to reside in Australia.
There is documentary evidence of the applicant’s employment in Australia prior to her first departure and there is a bank statement showing income from employment and a PAYG summary confirming such employment. The Tribunal accepts that the applicant did carry out some work in Australia prior to departing Australia. There is no evidence that the applicant has been on leave from employment in Australia. There is before the Tribunal evidence that the applicant had obtained a Tax File Number in February 2013, consistently with her claim that she intended to work in childcare in Australia. These matters support the applicant’s claim that she sought to establish residence in Australia.
The family own a property in Australia. They presently live with the father of the applicant’s partner and the applicant told the Tribunal they have a close relationship. The applicant’s name does not appear on the paperwork associated with the property. The evidence of the applicant’s spouse to the Tribunal is that the loan could not be arranged in both names because the applicant did not have a visa and was not in Australia but it is their clear understanding that the property is shared and belongs to both. The evidence is that this property will be used, once built, as a family home. The Tribunal accepts that it is the intention of the applicant and her spouse that the property be jointly used and that the applicant’s name does not appear on the mortgage papers because the applicant was absent from Australia when the mortgage was arranged.
While there is little evidence of the applicant’s participation in community activities, the Tribunal accepts the applicant’s evidence that it is difficult for her to find time to do that, given the young age of her children. The Tribunal also accepts the applicant’s evidence that during her residence in Mexico, she maintained communication with her husband and took care of her two children, who are Australian citizens. She also maintained connections with her Australian friends via Facebook.
The Tribunal also accepts that the applicant intends to reside in Australia. Her evidence is that she intends to be with her partner and children. The children attend playgroups and the couple have explored schooling options for the older child. They also made plans for their future living arrangements. The Tribunal is satisfied the applicant’s intention is to remain in Australia.
The Respondent contends that the applicant’s main association with Australia is through her husband and children and that is not sufficient. However, the Tribunal does not accept that assessment. The Tribunal has formed the view that the association has been wider than the association with Australians. As noted above, the applicant sought to establish residence in Australia prior to her departure, she did engage in employment in Australia and has ceased employment only due to her parental responsibilities. She did form and maintain friendships in Australia other than with relatives and does participate in some activities, even if in relation to the children. Thus, the applicant’s connections to Australia are wider, in the Tribunal’s view, than her association with her Australian partner and children.
Having regard to the totality of the applicant’s circumstances, the Tribunal has formed the view that the applicant did maintain a close and continuous association with Australia during the periods of her absence from Australia and the Tribunal finds that she meets s 22(9)(d). The Tribunal has decided that discretion should be exercised in the applicant’s favour. The Tribunal finds that the applicant meets the requirements of s 22(9).
CONCLUSION
The Tribunal is satisfied that the applicant had a close and continuing association with Australia for the purpose of s 22(9)(d), and the Tribunal found that applicant meets
s 22(9)(a), (b) and (c). The Tribunal has formed the view that the discretion should be exercised in the applicant’s favour. Accordingly, the applicant meets the requirements of
s 22(9) and the general residence requirements for the purpose of s 21(2)(c).
DECISION
The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of s 22(9) of the Act and satisfies s 21(2)(c) of the Act.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif
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Associate
Dated: 22 May 2019
Date(s) of hearing: 16 May 2019 Applicant: In person Solicitors for the Respondent: A Nanson, Australian Government Solicitor
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