Jennifer Kelaart and Minister for Immigration and Citizenship
[2012] AATA 849
•3 December 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0769
General Administrative Division )Re: Jennifer Kelaart
Applicant
And: Minister for Immigration and Citizenship
RespondentDIRECTION
TRIBUNAL: Mr S. Webb, Member
DATE: 5 December 2012
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.at paragraph 6 replace “s 21(2)” with “s 21(4)”;
2.at paragraph 7 replace “s 21(2)” with “s 21(4)”;
3.at paragraph 10 replace “s 21(2)” with “s 21(4)”; and
4.at paragraph 18 replace “s 21(2)(c)” with “s 21(4)(d)”.
................................[sgd].........................
Mr S. Webb, Member
[2012] AATA 849
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0769
Re
Jennifer Kelaart
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Mr S. Webb, Member
Date 3 December 2012 Place Canberra The decision under review is affirmed.
......................[sgd]........................................
Mr S. Webb, Member
CITIZENSHIP – application for conferral of citizenship – permanent residence – general residence requirements – extensive absences from Australia within 4 year period prior to application – periods of absence exceed statutory thresholds – discretion – spouse of an Australian citizen – meaning of “close and continuing association with Australia” – consideration of circumstances – family ties to Australia – ill health – age – overseas responsibilities, assets and business interests – association with Australia not close and continuing – decision affirmed
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Re Kilpi and Minister for Immigration and Citizenship [2012] AATA 605
Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388
Re Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Tan and Minister for Immigartion and Citizenship [2011] AATA 877
REASONS FOR DECISION
Mr S. Webb, Member
3 December 2012
Jennifer Kelaart is 74 years old. She is a Sri Lankan national with a permanent residence visa in Australia. Her husband and members of her family are Australian citizens. Ms Kelaart applied for conferral of Australian citizenship. The Minister refused her application on grounds that she did not have a close and continuing association with Australia during the four-year period prior to the application. Ms Kelaart applied for review.
Ms Kelaart did not attend the hearing in person. She gave oral evidence by telephone from her home in Colombo, Sri Lanka.
At the outset of the hearing I ordered under s 35(2) of the Administrative Appeals Tribunal Act 1975 that the personal information of named persons in documents lodged with the Tribunal and tendered in evidence, including details of passports and bank accounts, are not to be published, and access to these documents is restricted to the parties and their representatives, and to members and officers of the Tribunal, for the purposes of these proceedings, subject to further order.
On the uncontroversial facts of this case, the issue to be decided has a narrow compass. It concerns exercise of the discretion conferred under s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Act) to treat a period of absence from Australia as one in which the person was present in Australia as a permanent resident in certain circumstances.
The relevant facts are as follows:
(a)Ms Kelaart is a citizen of Sri Lanka. She was born in 1939.
(b)She married Thomas Kelaart in 1959 and they remain married.
(c)Ms Kelaart and her husband have three adult children, two of whom, a son and a daughter, reside in Australia with their respective spouses and children[1]. These members of Ms Kelaart’s family are Australian citizens. Both families reside in suburbs of Canberra. Ms Kelaart and her husband’s other son resides with his family in the United States of America.
[1] Exhibit A1, Document 2.
(d)Mr Kelaart has resided in Australia since 1989. He was granted Australian citizenship on 18 August 1991. He presently resides in a suburb of Canberra in a rental property.
(e)Ms Kelaart first visited Australia on 10 December 1991[2]. She was granted a permanent residence visa on 11 April 1996, and this has been renewed a number of times, without lapse.
[2] Exhibit R1.
(f)On 31 October 2000, Ms Kelaart gave power of attorney to Julius and Creasy, Attorneys-at-Law & Notaries Public in Colombo, Sri Lanka[3].
[3] Exhibit A1, Document 1 at paragraph 2.
(g)In the 1990s Ms Kelaart purchased a property in Westmead, but this was later sold. She purchased another property in Wanniassa[4], in the Australian Capital Territory, but in or about 2007 it, too, was sold. Thereafter to the present Ms Kelaart has not owned property in Australia.
[4] Exhibit A1, Document 4.
(h)Ms Kelaart retains a bank account in Australia in her name. On 4 June 2009 the balance of this account was $6.13 and on 4 March 2011 the balance was $24.92[5]. I note that on 14 January 2011, 2 days before Ms Kelaart departed Australia, $16,200 was withdrawn from the account by international telegraphic transfer.
[5] Exhibit A1, Document 5.
(i)Ms Kelaart had one sibling, a brother, now deceased, who practised as an Ear, Nose and Throat Consultant at the Alice Springs Hospital. His wife and children reside in Australia and hold Australian citizenship.
(j)Ms Kelaart is the only remaining member of her immediate family in Colombo, Sri Lanka. Her father, Vernon van den Driesen, suffered a stroke and Ms Kelaart cared for him prior to his death. Mr van den Driesen’s two sisters were childless and Ms Kelaart cared from them, too, before they died. Ms Kelaart was the executor of the estates of her father and her two aunts. The estates were settled in or before 2007.
(k)Ms Kelaart inherited a number of assets, including money, shares, four houses in Colombo and a half share in a fifth house in that city. In or about 2010, she gifted a house in Colombo to each of her three children. She retains ownership of her remaining assets and properties in Colombo, although Ms Kelaart informed me that the two remaining houses are presently for sale. She informed me that she spent a lot of time in and after 2010 renovating each of the five properties into offices, but that process is now complete and the office accommodations are tenanted.
(l)In September 2007, Ms Kelaart obtained treatment in Colombo for a non-malignant fibro oedema, but she was diagnosed with a duct carcinoma in May 2008 and underwent surgical, chemotherapy and radiotherapy until November 2008[6]. Paget’s Disease was confirmed on 20 December 2008. On the evidence of Dr Balawardane, a senior consultant oncologist, Ms Kelaart suffered from triple negative breast cancer that does not respond to conventional hormonal medications, requiring instead regular monthly check-ups and testing to August 2009, and quarterly checks and testing thereafter. This is presently ongoing.
[6] Exhibit A2.
(m)Ms Kelaart’s Australian entry records are in Exhibit R1. As can be seen, in the period from 10 December 1991 to 21 January 2012, she spent a total of 848 days in Australia. The following table sets out records from January 2006 onwards[7] –
[7] Exhibit R1 and T7 folio 55.
Entry/ Departure Date Departure 21 January 2012 Entry 15 December 2011 Departure 16 January 2011 Entry 10 December 2010 Departure 16 July 2009 Entry 11 July 2009 Departure 2 June 2009 Entry 2 May 2009 Departure 6 July 2007 Entry 2 March 2007 Departure 7 January 2006 (n)Mr Kelaart’s records from 19 August 2007 to 6 December 2012 follow[8] –
[8] T7 folio 56.
Entry/ Departure Date Entry 17 September 2011 Departure 23 April 2011 Entry 3 August 2010 Departure 8 June 2010 Entry 17 August 2009 Departure 16 July 2009 Entry 11 July 2009 Departure 2 June 2009 Entry 13 February 2009 Departure 4 June 2008 Entry 26 August 2007 Departure 19 August 2007 (o)On 10 October 2011, Ms Kelaart lodged an application for conferral of Australian citizenship[9].
(p)On 8 December 2011, a delegate of the Minister refused the application[10].
(q)On 21 March 2012, Ms Kelaart lodged an application for review. This was accepted following the grant of an extension of time.
[9] T4.
[10] T9.
The eligibility criteria that apply to the conferral of Australian citizenship are set out in s 21. Under s 21(2), which is presently applicable, eligibility requires satisfaction of the general residence requirement set out in s 22, in the following terms:
Sect 22 General residence requirement
(1) Subject to this section, for the purposes of s 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;
(c)then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
[…]
Ministerial discretion – spouse […]
(9) If the person is the spouse […] 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 the spouse […] 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.
If the discretion under s 22(9) is enlivened and exercised, the residual discretion to refuse the grant of citizenship under s 24(2) must then be considered. If the s 22(9) discretion is not enlivened and the person does not meet the general residence requirement for the purposes of s 21(2), eligibility for Australian citizenship by conferral is not established and the application must be refused under s 24(1A).
During the hearing, I was informed that the parties agree that:
(a)The four-year period immediately before the day on which Ms Kelaart lodged her application commenced on 10 October 2007 and that from 10 October 2007 to 9 October 2011 Ms Kelaart was present in Australia for 76 days.
(b)The 12-month period immediately before the day on which she lodged her application commenced on 10 October 2010 and that from 10 October 2010 to 9 October 2011 Ms Kelaart was present in Australia for 32 days.
(c)Ms Kelaart is not within the terms of s 22(1A) or s 22(1B).
(d)Ms Kelaart satisfies the requirements of ss 22(9)(a), (b) and (c).
I am reasonably satisfied that these concessions are well-made, and I find accordingly.
Two issues remain for determination –
(a)Did Ms Kelaart have a close and continuing association with Australia during the period to which s 22(9) refers?
(b)And if so is it appropriate to exercise the residual discretion under s 24(2) to refuse conferral of citizenship even though the eligibility criteria under s 21(2) have been satisfied?
Close and continuing association with Australia
I note the extensive submissions Mr Kelaart filed on his wife’s behalf on 5 and 26 November 2012.
Ms Kelaart asserts that she maintained a close and continuing association with Australia throughout the four-year period immediately prior to lodging her application. There are three key bases underlying this assertion. Firstly, she says that the Australian Citizenship Instructions (ACI) set out a number of indicators, each of which she fully satisfies or is not applicable to her circumstances. In her submission it is pivotal that most members of her immediate and extended family reside in Australia, including her husband, two of her children, four grand-children and a number of cousins – she is the only one remaining in Sri Lanka. She represents the bond she has with these family members as strong and enduring, and indicative of a close and continuing association with Australia. Ms Kelaart pointed to her previous ownership of two properties and the fact that she retains a bank account in Australia in support of this contention.
Secondly, Ms Kelaart says that two critical factors prevented her from spending more time in Australia from 2007 – illness and legacy issues. She was diagnosed with a life-threatening condition that required urgent and ongoing treatment, including an extended period of intensive treatment followed by years of regular monthly and quarterly check-ups and testing by her treating oncologist. The legacy issues involved caring for her ailing father and two aged aunts (all deceased) and fulfilling her legal responsibilities as executrix of their estates. This responsibility was rendered more difficult by the war and by related domestic and financial difficulties – it was not possible to sell property, for example, at a time of such great uncertainty in Sri Lanka.
Thirdly, Ms Kelaart informed me that all these matters are now resolved, although two properties remain to be sold. She intends to move to Australia at the end of February 2013, making investments in property and deriving a line of income to ensure financial security. In her submission, her age and her health are such that she increasingly requires the care and support of her family in Australia. She asserts that for many years, every day, she has wanted to move to be with her husband and children, but events have conspired against her. Nonetheless, she says that she has spent 884 days in Australia since first arriving in 1991 – she has attended the schools her grand-children attend and she has attended community and church activities when in Australia.
For these reasons, Ms Kelaart says that she has maintained a close and continuing association with Australia over many years and the Minister’s decision should be set aside.
The phrase “close and continuing association with Australia” is given no special meaning under the Act. Chapter 5 of the ACIs provides the following policy guidance –
Factors that may contribute to a close and continuing association with Australia include:
· Australian citizen children
· length of relationship with Australian citizen spouse or de facto partner
· extended family in Australia
· return visits to Australia
· periods of residence in Australia
· intention to reside in Australia
· employment in Australia (for example, public or private sector)
· ownership of property in Australia
· evidence of income tax payment in Australia and
· current bank accounts in Australia.
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.
This expression of policy does not constrain the discretion conferred by s 22(9) and it is not binding or exhaustive, as the introductory preamble to the ACIs makes clear. Nevertheless, it may be considered and given appropriate weight when making an independent assessment of the present materials in order to determine the correct or preferable decision in the particular circumstances[11]. The issue of relative weight is raised on the basis of temporal considerations in respect of the person’s physical and lawful presence in Australia during the four-year period immediately prior to application. This aspect of the policy does not control the decision-making process under s 22(9)(d) and it should not be applied inflexibly or in a manner that may impede independent assessment of the merits of each case, balancing the desirability of consistent decision-making with the service of justice in the particular circumstances.
[11] Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 at [40]-[44].
Considering the general residence requirement for conferral of citizenship under s 21(2)(c) and s 22(1), and the discretion to count periods of absence from Australia as periods in which the person was present in Australia under s 22(1A) and 22(1B), it is quite clear that a person who seeks Australian citizenship by conferral is expected to demonstrate a commitment to Australia by residing or living here for a reasonable time, being present in Australia, in the four-year period immediately prior to making the application, as specified.
In the circumstance that the applicant’s spouse is an Australian citizen, and the primary criteria of the general residence requirement are not met. Section 22(9) confers discretion to treat “a period” in which the person was not present in Australia as one in which he or she was present, if the person had a close and continuing association with Australia during the period. The policy guidance in the ACIs on this point refers to presence for at least 365 days in four years, including 90 days as a permanent resident, and “periods of residence” as factors that may indicate that association; an application based on less time would carry less weight than an application based on more time spent in Australia. This is not inconsistent with the Act. I note that in recent decisions the Tribunal has arrived at similar conclusions[12]. Ms Kelaart has not raised any cogent reasons why the policy should not be applicable in her case.
[12] Re Kilpi and Minister for Immigration and Citizenship [2012] AATA 605 at [53]; Re Paula and Minister for Immigration and Citizenship [2012] AATA 543 at [28].
Clearly enough, simply spending less than 365 days in a four-year period does not mean that the application must be rejected – a rigid application of policy guidance in that manner would be an abrogation of the independent merits review function of the Tribunal; all of the circumstances must be weighed and considered when assessing whether or not the person has maintained a close and continuing association with Australia.
Ms Kelaart asserts that she “amply and overwhelmingly”[13] meets all of the factors set out in the ACI policy. It is quite clear that this is only partly correct. Considering the four years immediately prior to lodging her application for conferral of citizenship, I find that she did not own property in Australia and she did not pay tax in Australia; nor was she employed in Australia. I note that Ms Kelaart is 74-years old, and a person of that age would not usually be expected to engage in paid employment. Nevertheless, by her own account, she has been engaged in time-consuming activities in Sri Lanka relating to the development of her properties in Colombo, and those she gifted to her children in 2010, as offices for commercial rental purposes. She informed me that once the properties in Colombo are sold, she intends to purchase an apartment block in Australia in order to generate an income stream on which to support herself. That may be so, but during the four-year period prior to her application she did not make arrangements or engage in any activity of this kind in Australia.
[13] Applicant’s submissions, 26 November 2012, page 1.
Ms Kelaart informed me that her assets include substantial sums of money and shares. In those circumstances, want of money would not be an impediment to her travelling to Australia or acquiring property (Mr Kelaart informed me that he resides in public rental accommodation) or other assets in Australia. But she did not acquire assets in Australia during the four years immediately prior to lodging her application. And during this period, Ms Kelaart travelled to Australia on three separate occasions, spending a total of 76 days in Australia – she was present in Australia from 2 May to 2 June 2009, from 11 July to 16 July 2009 and from 10 December 2010 to 16 January 2011. Ms Kelaart was not present in Australia when she lodged her application for Australian citizenship.
On the other hand, members of Ms Kelaart’s family are Australian citizens residing in Australia, including her spouse, two of her children and four grand-children. She has retained a bank account in Australia. These circumstances weigh in favour of her having a close and continuing association with Australia.
On balance, I am reasonably satisfied that Ms Kelaart did not have a “close and continuing association with Australia” during the periods in which she was not present in Australia during the four-year period immediately preceding her application. It appears to me that the relatively short period of time she has spent in Australia during three short visits in the four years immediately prior to lodging her application is a clear indication of this. In Re Kilpi and Minister for Immigration and Citizenship[14] the Tribunal said “it is difficult to see how a person who is very infrequently physically present [in Australia] could, without more, demonstrate that they have had a close and continuing association”[15]. Even though the facts of this case are somewhat different, I agree.
[14] [2012] AATA 605.
[15] Ibid at [69].
But, alone, this is not determinative. During the four-year period, Ms Kelaart owned no property or assets of any significance in Australia and there is no evidence that she made any effort to transfer any of her Sri Lankan assets to Australia (even though she apparently gifted properties in Colombo to her children). She was not involved in any business or employment here, and she paid no Australian taxes. She adduced no compelling evidence to support any circumstance indicating an association with Australia other than her familial connections with Australian citizens and one bank account, the purpose and usage of which is not clear. To my mind, when these associations with Australia are viewed through the narrow window of time Ms Kelaart has spent in Australia since October 2007, they are not sufficient to establish that she has maintained a close and continuing association for the purposes of s 22(9).
It appears to me that Ms Kelaart’s visits to Australia are simply that – they are short visits that are not properly characterised as periods of residence in Australia. This has not changed during the period following her application – she visited Australia from 15 December 2011 to 21 January 2012 and she has not returned again. She was not present in Australia when this hearing was conducted. In this regard her case is similar to other recent cases the Tribunal has decided in which the shortness of time spent in Australia prior to an application for conferral of Australian citizenship was a significant factor[16].
[16] Re Tan and Minister for Immigartion and Citizenship [2011] AATA 877; Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688; Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388.
I accept that Ms Kelaart suffered a serious illness that required treatment and that this prevented her from travelling for a period of months from May to November 2008. I note that Mr Kelaart cared for her from June 2008 to February 2009 and that they travelled between Sri Lanka and Australia together in 2009. In the period from July 2009 to the date of her application, Ms Kelaart visited Australia for 32 days over Christmas in 2010. On the evidence of her treating oncologist, she required 3-monthly health checks and testing during this period. Ms Kelaart explained that she was engaged in developing family properties in Colombo following the end of the war, readying them for sale. She told me that she intends to move to Australia in February 2013, and I accept that may be so.
These factors may have constrained Ms Kelaart’s ability to travel for a time and this may affected her decisions in respect of moving to Australia. But the discretion conferred by s 22(9) is not enlivened or expanded by explanations or extenuating circumstances of this kind. To the extent that they are relevant when assessing whether Ms Kelaart had a close and continuing association with Australia during the periods in which she was not present in Australia prior to her application, they may be taken into account. But they do not excuse the requirement to establish an association with Australia that is close and continuing through those periods.
In sum, I am satisfied that in the period from 10 October 2007 Ms Kelaart did not have a “close and continuing association with Australia”. Even though she has continuing familial ties with Australian citizens and a bank account here, those are not sufficient to enliven the discretion conferred by s 22(9).
It follows that her application must be rejected under s 24(1A). The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ..............................[sgd]..................................
Associate
Dated 3 December 2012
Date of hearing 26 November 2012 Advocate for the Applicant Mr T. Kelaart Advocate for the Respondent Mr S. Kikkert, Litigation and Opinions Branch, Department of Immigration and Citizenship
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