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

[2021] AATA 321

Kelly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 321 (25 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2755

Re:Retia Kelly

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:25 February 2021

Place:Sydney

The decision under review is affirmed.

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Senior Member M Griffin QC

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant satisfies general residence requirement – where applicant is spouse of an Australian citizen – whether discretion should be exercised in applicant’s favour – whether demonstrated close and continuing association with Australia in four year period before making application – whether applicant likely to reside in or maintain close and continuing association with Australia – where applicant was offshore 1324 days four years prior to application – where when applicant returning to Australia is unknown – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 22

CASES

Judd v Minister for Immigration and Border Protection [2017] FCA 827

Minister for Immigration and Border Protection v Han [2015] FCAFC 79; 231 FCR 113

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Australian Citizenship [Policy Statement]

REASONS FOR DECISION

Senior Member M Griffin QC

25 February 2021

1. The Applicant seeks review of a decision by the Respondent to refuse her application for Australian citizenship by conferral. That decision was made on the basis that the Applicant did not meet the requirements of paragraphs 21(4)(b), (d) and (e) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. It is not in dispute that the Applicant does not meet the criteria set out in paragraphs 22(1)(a) and (c) of the Act on the basis that she has spent substantial periods of time offshore.

3. At the time of hearing, the matter had resolved itself essentially into two distinct but nonetheless, relatively factual questions:

   (a)Could the Applicant demonstrate a close and continuing association with Australia during the relevant period spent offshore for the purposes of paragraph 22(9); and

   (b)Would the Applicant be likely to reside in or maintain a close and continuing association with Australia.

   The relevant legislation

4. Section 21(4) of the Act provides:

   21Application and eligibility for citizenship

   (4)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (a)    is a permanent resident:

   (i)at the time the person made the application; and

   (ii)at the time of the Minister's decision on the application; and

   …

   (d)    satisfies 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; and

   (e)    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; and

5. Section 22(1) of the Act provides:

   22General residence requirement

   (1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

   (a)    the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

   (b)    the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

   (c)    the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

6. Section 22(9) of the Act provides:

   (9)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.

7. Of relevance to the matters which arise for consideration in this case is the Citizenship Policy which provides guidance for decision-makers in considering paragraph 22(9)(d). At the time of hearing, the Citizenship Policy stated:

   In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:

   ·evidence that the person migrated to and established a home in Australia prior to the period overseas

   ·Australian citizen children

   ·long term relationship with Australian citizen spouse or de facto partner

   ·extended family in Australia

   ·regular return visits to Australia

   ·regular periods of residence in Australia

   ·intention to reside in Australia

   ·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

   ·ownership of property in Australia

   ·evidence of income tax paid in Australia over the past four year and

   ·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 s22(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.

8. Judicial consideration has been given to subsection 22(9) of the Act. It is said to “qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement can be mitigated: Minister for Immigration and Border Protection v Han [2015] FCAFC 79; 231 FCR 113 (Han) per Flick, Murphy and Griffiths JJ at [51].

9. In Judd v Minister for Immigration and Border Protection [2017] FCA 827 (Judd), Perry J stated at [14] that “the concept of a ‘close and continuing association’ is a broad one” which requires the decision-maker to make a “qualitative assessment of the ultimate significance of the applicant’s circumstances” through a “multi-factorial approach”.

10. It is relevant to note that the factors referred to under the Citizenship Policy at paragraph 22(9)(d) are unlimited, which is entirely in accordance with Han and Judd.

    Evidence

11. Evidence before the Tribunal as to the Applicant’s circumstances was uncontroversial and included statements from the Applicant, evidence concerning her relationship with her Australian husband and statements from her stepson, Hayden Kelly, her sister-in-law, and testimonials from others. The Tribunal found no reason not to accept this evidence to its fullest extent.

12. It is also relevant to record that the Applicant’s resident return visa ceased prior to the hearing. That visa was reinstated on 10 November 2020, the day of the hearing, and according to the Applicant’s submission, and the Respondent’s assurance, the Tribunal finds that nothing turns on this matter. Therefore, as at the date of both hearing and decision, the Applicant currently meets the requirements of subparagraph 21(4)(b)(ii) of the Act.

13. As discussed above, the matter for the Tribunal is therefore whether the Applicant meets the pre-conditions for the exercise for the discretion at paragraph 22(9)(d) of the Act in order to meet the general residence requirements.

14. At the time of decision, the Australian Citizenship Policy Statement dated 27 November 2020 replaced the earlier policy statement (the new Citizenship Policy Statement).

15. Both Applicant and Respondent were invited on 27 January 2021 to make any further submissions concerning the effect of the new Citizenship Policy Statement. In the Tribunal‘s opinion, the matters raised in the original hearing, which relate to the entirety of the hearing and specifically to issues concerning the application of the earlier citizenship statement, are not affected by the implementation of the new Citizenship Policy Statement.

    Background

16. The Applicant and Mr Kelly, who is an Australian citizen, met in 1999 and married in 2002. Mr Kelly, with his wife, the Applicant, ran a successful travel business, and together, involved themselves in variety of aspects of the social life of their community. Mr Kelly, with the help of his wife, brought a successful rugby union competition of international proportions to the area in which they lived. I mention this as an example of the level at which both the Applicant and her husband were involved in the community.

17. The Applicant regards herself as being closely associated with her stepson and her sister‑in‑law. Furthermore, a variety of testimonials from associates and friends speak of the love, connection and desire the Applicant has to be an Australian citizen.

18. For many years since their marriage, the Applicant and her husband demonstrated an association which was continuing with Australia by reason of their work, by owning property (three houses) and by paying taxes. There were periods of time up until 2014 when the Applicant and her husband travelled overseas and as the Applicant has expressed in evidence, this was in large part because of the usual operation of the travel business.

    Issues

19. The Tribunal is required to consider whether there is any evidentiary basis for the exercise of the relevant discretion. If that is available, then the Tribunal is required to exercise the discretion taking into consideration whether there is demonstrated in the relevant four-year period, a close and continuing association with Australia and whether the Applicant is likely to reside in or maintain a close and continuing association with Australia.

20. In this case, on the basis that there had been, up until the application for citizenship, an arguable connection to Australia, (evidence of living in Australia for periods of time, together with the evidence presently that there is a bank account in Australia which contains substantial funds, approximately $60,000), the Tribunal is of the view that there is a foundation evidentially to enliven the exercise of the discretion. The question then becomes whether there is sufficient evidence, in that regard, to exercise the relevant discretion in the Applicant’s favour.

21. The starting point is the date of the application for citizenship and the four years preceding that point in time. The application was made on 10 December 2018.

22. As to the operation of section 22(9), the Applicant has spent, in the four years prior to the making of her application, very little time in Australia, most of it being offshore in the United States of America (USA) where commendably, she has, with her husband, been caring for her aged and infirm parents.

23. Clearly, the Applicant does not meet the general residence requirements to be eligible for Australian citizenship by conferral. On undisputed evidence, the Applicant has spent 1324 days “offshore” in the four years prior to her application. The Applicant was present in Australia for 137 days in the four years prior to the citizenship application being made, and in the 12 months prior to her application, was absent from Australia for 340 days. This, however, is not the end of the matter.

24. The Applicant and her husband sold their property in Australia, although they have maintained a bank account which presently holds a sum of $60,000. The bank account and its contents, in the Tribunal‘s view, are matters to be taken into account in the exercise of discretion and are in the Applicant’s favour.

25. As to the Applicant’s presence overseas, the following passage appears in cross‑examination of the Applicant:

    MR MCLAURIN:    So would it be safe to say then that when you left Australia in 2015 you didn't have any idea of when you were coming back?

    APPLICANT:        Well, no, I wouldn't exactly say that. I think that we felt that we'd be able to figure something out, you know, and get my parents into a good living situation. Obviously, they're not as good now as they were five years ago. You know, we had hoped that the situation would be a little better with them again so that we could get them into a safe, secure living arrangement that we could afford, but, again, you know, their health has deteriorated and, again, finances are a factor.

26. Although it is in the Tribunal’s view relevant to consider the connection, association and desire to live in Australia prior to the application being made and, in this case, prior to leaving Australia in about 2015, it is necessary to answer the question as to whether there is evidence of the Applicant having a close and continuing relationship with Australia and/or an intention to reside in Australia. Analysis of this period four years prior to the application being made, in the Tribunal’s opinion, provides the most helpful evidence.

27. The Applicant has chosen to leave Australia and, with her husband, has lived in Florida and Georgia in the USA, with the primary intention of providing support in various ways to her aged parents. Although there is an expressed desire to come back to live in Australia at some time by the Applicant and her husband, it is perfectly clear on the evidence that this is something which is inchoate and depends very much on the Applicant's parents and their own wishes and desires. On the evidence, the Applicant's parents are not only elderly, the mother is suffering from dementia and the father has the father is difficult to manage because of his age.

28. In considering whether there is evidence demonstrating a close and continuing relationship with Australia for the purpose of ameliorating the strict requirements of section 22(9), whilst there may be a degree of subjectivity, the assessment should be made on all the material of the Applicant's particular circumstances, including the objective evidence.

29. On 27 January 2021, the parties were invited by the Tribunal to make further submissions concerning the new Citizenship Policy Statement. The Respondent chose to make no further submissions.

30. The Applicant chose to make further submissions, annexing her marriage certificate. Those further submissions were to the effect that the plans referred to in evidence at the hearing had become rather more clear to the extent that her parents were moving into care and that the Applicant and her husband had plans to purchase a house in the Moreton Bay area on the east coast of Australia, near Brisbane, and reasonably proximate to Coffs Harbour, some hours away.

31. The Applicant’s submissions suggest what the Tribunal had already found in evidence, that is, the Applicant should be accepted as someone who proposed, at some future time, to return to live in Australia.

32. Those further submissions, however, did not materially affect the overall view of the evidence that the Tribunal has formed, that is to say, the significance of the four-year period prior to December 2018 and the absence of the Applicant from Australia during that period.

33. Whilst the Tribunal accepts that, in a general sense, the Applicant would like to return to Australia and at some point has an intention of residing in Australia, those intentions are affected by the circumstances of her family and her aging parents in particular.

34. There are a number of factors that may be taken into account in this matter in the exercise of discretion in the Applicant’s favour. These include:

    ·The Applicant is married to an Australian citizen and has a stepchild who is an Australian citizen,

    ·The Applicant and her husband presently have a bank account in Australia,

    ·The Applicant intends to reside in Australia, although in terms of when that is likely to happen, the time frame is unknown and dependent upon circumstances (her family’s circumstances in the USA).

35. Prior to the relevant period, that is, four years prior to 10 December 2018, the application date, the Applicant paid income tax in Australia and participated in Australian community based activities and organisations. Although prior to the four-year period, the Applicant had established a home in Australia and travelled back to Australia from overseas on a number of occasions in the relevant four-year period, in the relevant four-year period, the Applicant has spent little actual time in Australia.

36. In the Tribunal‘s opinion, the length of time spent in Australia during the relevant four-year period is meticulously significant and important in the determination of the exercise of the discretion.

37. In this case, through force of circumstances, the Applicant has spent very little time in Australia during the relevant four-year period. The Tribunal places considerable weight on this fact. That is a determinative issue in considering the exercise of discretion.

38. There is, on the evidence, nothing which the Tribunal finds to sufficiently establish a close and continuing relationship with Australia in the four years prior to the making of the application, even taking into account the statements concerning living in Australia made by both the Applicant and her husband. In reality, whether the Applicant returns to live in Australia is premised entirely upon what happens with her parents and when those circumstances may change. There is no proper basis to conclude that the Applicant will reside in or will maintain a close and continuing relationship with Australia.

39. In the event, the Tribunal finds that there is, in the exercise of its discretion, no basis upon which the Applicant has established a close and continuing relationship with Australia or an intention to reside in Australia in any real sense.

40. Consequently, the decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate

Dated: 25 February 2021

Date(s) of hearing:	10 November 2020
Date final submissions received:	30 January 2021
Advocate for the Applicant:	Mr P Kelly
Solicitors for the Respondent:	MinterEllison