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

Hudswell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1528 (8 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1284
Re:Kerry Hudswell
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:8 June 2022
Place:Sydney

The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal to grant Australian citizenship – whether applicant likely to reside in Australia or maintain a close and continuing association with Australia – prohibition on approving Australian citizenship where person not present in Australia – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2)(g), 22, 22A, 22B, 24(5)
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]
Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
Citizenship Procedural Instruction 33 – Prohibitions on approval
REASONS FOR DECISION
Dr L Bygrave, Member
8 June 2022

Mr Kerry Hudswell is a citizen of the United Kingdom; he also holds permanent residency for Singapore where he now resides. Mr Hudswell currently holds an Australian residence return (subclass 155) permanent visa that was granted on 23 December 2017.
Mr Hudswell lodged an application for Australian citizenship by conferral in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 21 September 2020. He then departed Australia on 4 October 2020 and has not since returned.
On 5 February 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to refuse Mr Hudswell’s application for Australian citizenship on the basis that he did not satisfy the requirement in paragraph 21(2)(g) of the Act that he was ‘likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia’ if his application were to be approved.[1]
[1] Exhibit T-T2, page 12.
On 4 March 2021, Mr Hudswell applied for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard by the Tribunal in Sydney on 12 April 2022. Mr Hudswell attended the hearing and gave oral evidence by videoconference from Singapore. Mr Hudswell filed further documents following the hearing and, in response, the Minister filed final written submissions dated 17 May 2022.
RELEVANT LEGISLATION
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
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:
General eligibility
(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…
In view of Mr Hudswell’s current residence in Singapore, the Minister made submissions that subsection 24(5) of the Act is also relevant to this matter. This provision 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)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]
The Australian Citizenship [Policy Statement] (Citizenship Statement) outlines overarching legislative requirements for the process of becoming an Australian citizen. The Citizenship Statement also provides context for the relevant Citizenship Procedural Instructions (CPIs) (set out below) when making decisions under the Act.
Although I am not bound to strictly apply the Citizenship Statement and CPIs, these comprise government policy and should be considered unless there are cogent reasons not 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] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) outlines 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.
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
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.
CPI 11 further states that a person’s travel outside of Australia while a permanent resident may indicate their future intention to reside in Australia, and the requirement to maintain a close and continuing association ‘refers to an association with Australia, not with Australians’.[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 3.2.
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 the person is currently renting a home, and if so, when their lease would expire and what options are open to them to break the lease if necessary;
·whether the person has 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 the person has any assets, commitments or ties to a country that may require or incline them to continue to reside in that country, for example, their source of income and/or employment contract;
·the frequency and purpose of the person’s visits to Australia if they reside overseas;
·the frequency and reasons for absences from Australia if the person resides in Australia, for example, whether the absences were of a temporary nature due to work or other activities;
·participation in the Australian community; and
·whether the applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.[6]
[6] 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.
CPI 33 – Prohibitions on approval
CPI 33 – Prohibitions on approval (CPI 33) identifies the circumstances where a decision-maker is prohibited from approving an application to acquire Australian citizenship. This includes that a ‘decision-maker must not approve an applicant for citizenship by conferral … if the applicant is not present in Australia at the time of decision’.[7] [emphasis in original]
[7] CPI 33 – Prohibitions on approval, 31 October 2021, part 6.
CPI 33 considers whether a decision can be delayed until an applicant returns to Australia, and states that this should only be considered in circumstances where:
·the applicant’s non-presence in Australia is the only barrier to the application proceeding; and
·the applicant has demonstrated their intention to return within a ‘reasonable period’, which ‘may be 10 weeks or less’ in this context.[8]
EVIDENCE
[8] CPI 33 – Prohibitions on approval, 31 October 2021, part 6.1.
Periods outside Australia since Mr Hudswell became a permanent resident
Mr Hudswell first arrived in Australia on a temporary working holiday (subclass 417) visa in December 2006. He was granted a skilled independent (subclass 175) permanent visa on 7 December 2012 and subsequently arrived in Australia on 20 December 2012. He currently holds a residence return (subclass 155) permanent visa.
Mr Hudswell’s movement history from the time he became a permanent resident of Australia in December 2012 shows:
·he departed Australia for an eight-month period from February 2013 to October 2013;
·from October 2013 to July 2017, he maintained a pattern of departing Australia approximately twice a year for short periods of up to three weeks;
·from July 2017 to September 2018, he lived overseas for employment purposes but returned regularly (at least monthly) to Australia;
·from October 2018 to October 2020, he departed Australia for short periods on seven occasions; and
·he departed Australia most recently on 4 October 2020 and has not since returned.[9]
[9] Exhibit ST-ST3, pages 13-16.
In a written statement dated 9 January 2022, Mr Hudswell explained he moved to Australia from Singapore with his (then) wife and stepdaughter in October 2013. He stated that from July 2017 to September 2018, he ‘was stationed in Singapore’ for employment; however, his wife and stepdaughter remained in Australia during this period and he regularly returned to their family home in Australia.[10] Mr Hudswell said that his employment was again based in Australia from October 2018. However, he separated from his wife in August 2019 and subsequently relocated to Singapore in October 2020.
[10] Exhibit A1.
Intention to live in Australia / close and continuing association with Australia
Mr Hudswell declared in his written statement dated 9 January 2022 that he is ‘now residing permanently in Singapore’ and does ‘not intend to reside in Australia again in the future’.[11]
[11] Exhibit A1.
In his oral evidence at the hearing, Mr Hudswell acknowledged that his employment contract and residence is now in Singapore, where he intends to stay for at least the next five years. He said that he intends to visit Australia and, now that the international borders have reopened, plans to come to Australia to see friends / associates and his ex-stepdaughter, attend dental appointments and inspect his properties. At the date of the hearing, he had not organised a date to fly to Australia as he was awaiting confirmation of his dental appointments.
Mr Hudswell stated that, while he does not intend to live in Australia in the future, he has maintained, and will continue to maintain, a close and continuing association with Australia through his ownership of residential properties, payment of income tax, participation in the Australian community and relationship with his ex-stepdaughter.
Ownership of property / assets in Australia and overseas
Mr Hudswell owns two residential (mortgaged) properties in Australia. He purchased the first property in February 2013. In October 2016, he bought a second property that became the ‘family home’ and maintained the first property as an investment.[12] Mr Hudswell filed records of rental income and expenses with the Tribunal to show that both properties are currently rented to long-term tenants.[13]
[12] Exhibit A1.
[13] Exhibits A7 and A8.
Mr Hudswell stated he has plans ‘to invest further’ in the Australian property market ‘with a view to developing a holiday rental and tourist services business’.[14] However, he has provided no objective or independent evidence to support these business plans.
[14] Exhibit A1.
Mr Hudswell does not own property or other assets in the United Kingdom and Singapore. He holds bank accounts in Australia, the United Kingdom and Singapore.
Payment of income tax in Australia
Mr Hudswell has provided employment contracts that show he was employed with Australian companies from December 2012.[15] At the hearing, he told the Tribunal that he relocated to the Singapore office of his current employer in October 2020 and signed a new contract, which effectively made his contract with the company in Australia ‘null and void’.[16]
[15] Exhibits A3-A6.
[16] Oral evidence of Kerry Hudswell on 12 April 2022.
Prior to the hearing, Mr Hudswell filed with the Tribunal copies of his taxation returns lodged with the Australian Taxation Office (ATO) in the 2017, 2018, 2019 and 2020 financial years showing considerable taxation payments to the Australian government. At the hearing, he provided oral evidence about ‘activity statements’ the ATO send him every three months regarding payments he is required to make in relation to ‘restricted stock units’ he received as part of his contract with his current employer when he worked in Australia.[17]
[17] Oral evidence of Kerry Hudswell on 12 April 2022.
After the hearing, Mr Hudswell filed with the Tribunal copies of the following documents: his Taxation Estimate for the financial year ended 30 June 2021; an undated Activity statement from the ATO; and an Activity statement from the ATO dated 5 May 2022. These documents show Mr Hudswell has incurred Australian tax liability in the financial years ending 30 June 2021 and 30 June 2022. Relevant to Mr Hudswell’s oral evidence at the Tribunal hearing, his Taxation Estimate for the year ended 30 June 2021 shows he declared shares obtained through an employee share scheme at a discounted price and the amount of this discount (below market value) formed part of Mr Hudswell’s assessable income. Notably, there is no documentary evidence before the Tribunal either in relation to Mr Hudswell’s share vesting arrangement or whether his Australian tax liabilities will continue to arise in the future.
Participation in the Australian community
In his written statement and oral evidence, Mr Hudswell stated that he ‘was involved with community sports’ and ‘contributed to [his] stepdaughter’s school community … through regular volunteer work’.[18] He acknowledged in his oral evidence to the Tribunal that this participation in the community ceased when he left Australia in October 2020.
[18] Exhibit A1.
Family members
Mr Hudswell has maintained a relationship with his ex-stepdaughter, an Australian citizen who is 19 years old and currently attending university in Australia.
Since February 2021, Mr Hudswell has provided his ex-stepdaughter with financial support of approximately $500 per month, which he said will continue for the duration of her (undergraduate) university study. He and his ex-stepdaughter gave oral evidence that they communicate via messaging and occasional telephone calls, and that they intend to see each other when Mr Hudswell returns to Australia for a visit in the future.
For completeness, Mr Hudswell stated he has three cousins living in Australia who he has visited occasionally in the past; however, he acknowledged he does not have a ‘close and continuous’ relationship with these cousins.[19]
[19] Oral evidence of Kerry Hudswell on 12 April 2022.
CONSIDERATION
Paragraph 21(2)(g) of the Act requires that I must consider whether Mr Hudswell is either likely to reside in Australia or to maintain a close and continuing association with Australia.
Is Mr Hudswell likely to reside, or continue to reside, in Australia?
Based on Mr Hudswell’s evidence that he now resides permanently in Singapore and does not intend to reside in Australia, I am satisfied he is not likely to reside in Australia in the future.
Is Mr Hudswell likely to maintain a close and continuing association with Australia?
Guided by the Citizenship Statement and CPI 11, I now consider whether Mr Hudswell is likely to maintain a close and continuing association with Australia if his application for citizenship is approved.
Mr Hudswell submitted that he has maintained a close and continuing association with Australia through his ownership of two residential properties, payments to the ATO and his relationship with his ex-stepdaughter.
The evidence regarding Mr Hudswell’s ownership of two residential properties supports his contention that he maintains a close and continuing association with Australia. However, I place limited weight on this evidence in view of his permanent resident status and current employment in Singapore. I particularly note that Mr Hudswell has openly declared he has no intention to reside in either of these properties, which are currently rented and held as investments, in the future. In these circumstances, it is difficult to differentiate Mr Hudswell’s ownership of these properties from any other investments that he may purchase and sell elsewhere.
Mr Hudswell provided documentary evidence about his employment in Australia prior to October 2020, filing of taxation returns with the ATO and ongoing Australian tax liabilities. I am satisfied this evidence shows Mr Hudswell has made considerable taxation payments to the Australian government in the 2017–2020 financial years and has continued to incur Australian tax liability in the 2021 and 2022 financial years.
I also have had regard to final written submissions dated 17 May 2022 in which the Minister contended Mr Hudswell’s circumstances in relation to the shares he obtained through an employee share scheme ‘reflect a significant benefit’ to him and ‘the incidental tax liabilities do not constitute a close and continuing relationship with Australia’.[20] The Minister also submitted:
Although ongoing tax payments may on one view represent a financial continuation to the Australian community, the Tribunal ought to place limited weight on that consideration in circumstances where an applicant is required to make mandatory payments which arose out of a significant benefit to the applicant himself… [T]here is no evidence that the applicant would be making any such payments if not required to do so by Australian taxation laws.[21]
[20] Respondent’s Further Submissions 17 May 2022, paragraph 10.
[21] Respondent’s Further Submissions 17 May 2022, paragraph 12.
While I find this evidence of tax payments and liabilities shows Mr Hudswell has maintained a close and continuing association with Australia in the 2017–2022 financial years, I note this would likely change if he leaves his place of employment and/or sells his two residential investment properties. Overall, I place limited weight on the extent to which this evidence supports Mr Hudswell’s intention to maintain a close and continuing association with Australia in the future.

In relation to Mr Hudswell’s family circumstances, I am satisfied that he currently maintains a relationship with his ex-stepdaughter (an Australian citizen living in Australia) and provides her with financial support. In terms of other family members, I note Mr Hudswell’s parents and siblings continue to reside in the United Kingdom and, given the paucity of evidence before the Tribunal, I place no weight on his three cousins living in Australia. I find the factor of his ex-stepdaughter’s residence in Australia weighs for Mr Hudswell maintaining a close and continuing association with Australia, but place limited weight on this evidence in view of his other family relationships.
Finally, there is no evidence that Mr Hudswell has participated in the Australian community since he left in October 2020, although I accept his anecdotal evidence that he attended sporting activities and volunteered at his ex-stepdaughter’s school in the period he lived in Australia. I am satisfied this evidence does not show that Mr Hudswell is likely to maintain a close and continuing association with Australia into the future.
The policy guidance in CPI 11 requires that I also consider the frequency of and reasons for Mr Hudswell’s absences from Australia. Mr Hudswell’s movement history (summarised in paragraph 19 above) shows he has spent extended periods residing outside Australia since he was granted a permanent resident visa in December 2012. This includes an eight-month period in 2013 and a 14-month period from July 2017 to September 2018. Mr Hudswell made oral submissions to the Tribunal that his employment in IT has required extensive travel for business reasons. He also explained that both he and his ex-wife lived overseas from their family members and they would travel to visit them.
Ultimately, my consideration of whether Mr Hudswell is likely to maintain a close and continuing association with Australia requires an assessment of his future intentions. Mr Hudswell told the Tribunal that he made his application for Australian citizenship because he feels a strong emotional connection to Australia and its people. It is also clear from the evidence that he has maintained an emotional connection with his ex-stepdaughter.
However, considering all the evidence, I am not satisfied these connections are sufficient to show Mr Hudswell is likely to maintain a close and continuing association with Australia (rather than with an Australian) in the future if his application for citizenship were to be approved. Overall, I find there is insufficient evidence that Mr Hudswell will maintain a close enduring association with Australia into the future. This conclusion is also supported by Mr Hudswell lodging his application for Australian citizenship on 21 September 2020 and subsequently departing Australia to reside in Singapore less than two weeks later.
I have also considered Mr Hudswell’s evidence that he has plans to invest in property in Australia and develop a business for holiday rentals and tourist services. While I accept this may be Mr Hudswell’s intention, I place no weight on this information in the absence of any independent or objective evidence.
CONCLUSION
Weighing all the evidence, I am satisfied Mr Hudswell does not meet the requirement in paragraph 21(2)(g) of the Act that he is likely to reside in Australia or maintain a close and continuing association with Australia if his application for citizenship were to be approved. I note that this conclusion does not preclude Mr Hudswell from making an application for Australian citizenship in the future if his circumstances change.
Finally, I have considered submissions by the Minister regarding the prohibition in subsection 24(5) of the Act. It is not disputed that Mr Hudswell is not present in Australia. He also does not satisfy the special residence requirement referred to in sections 22A or 22B of the Act, or meet the circumstances relevant to subsections 22(9) or 22(11) of the Act. Furthermore, Mr Hudswell has provided no objective evidence that he intends to return to Australia within a ‘reasonable period’ even though he told the Tribunal he is planning to visit Australia. In these circumstances, I am satisfied that I must not approve Mr Hudswell becoming an Australian citizen pursuant to subsection 24(5) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 8 June 2022

Date(s) of hearing: 12 April 2022

Date final submissions received: 17 May 2022

Applicant: In person

Solicitors for the Respondent: Mr E Taylor, Mills Oakley Lawyers

[2022] AATA 1528

8 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction

Standing

Date(s) of hearing:	12 April 2022
Date final submissions received:	17 May 2022
Applicant:	In person
Solicitors for the Respondent:	Mr E Taylor, Mills Oakley Lawyers