Kelly Nicholls and Minister for Immigration and Border Protection

[2014] AATA 196

[2014] AATA  196

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2708
Re	Kelly Nicholls
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	8 April 2014
Place	Adelaide

The Tribunal affirms the decision under review.

...........................[Sgd].............................................

Senior Member R W Dunne

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – sub class 801(Partner) visa – permanent resident –

application for Australian citizenship by conferral –  applicant married to an Australian citizen –

applicant does not meet general residence requirement – application of Australian Citizenship Instructions – whether the applicant had, and will maintain, a close and continuing association with Australia – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(2), 22(1) and 22(9) 

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Chakass v Minister for Immigration and Citizenship [2013] AATA 375
Paula v Minister for Immigration and Citizenship [2012] AATA 543
Plange and Minister for Immigration and Border Protection [2013] AATA 837
Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

REASONS FOR DECISION

Senior Member R W Dunne

8 April 2014

INTRODUCTION

1. The applicant in this case is Kelly Nicholls, who is a citizen of the United States of America.  She was granted permanent residency on 20 July 2009 and applied for Australian citizenship by conferral on 5 February 2013.  This is the “Relevant Period” referred to in these reasons.  A delegate of the respondent Minister refused her application on the ground that she did not satisfy the general residence requirement of the Australian Citizenship Act 2007 (“Act”).  Ms Nicholls has applied to this Tribunal for review of the delegate’s decision.  As Ms Nicholls and her husband were overseas, the proceedings were largely conducted by telephone.

2. At the hearing, Ms Nicholls was represented by Ms Jane Nunan and the respondent was represented by Ms Stephanie Wende.  I received into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   ·chart setting out time spent in various countries by the applicant; [2]

   ·witness statement of Kelly Malia Nicholls dated 9 October 2013;[3]

   ·witness statement of Michael Donald Nicholls dated 9 October 2013;[4]

   ·statutory declaration of Joanne Lea Williams dated 3 July 2013;[5]

   ·statutory declaration of Rod McGarvie dated 12 June 2013;[6]

   ·letter dated 5 July 2013 from Mr Harley Beck; [7] and

   ·current Australian Citizenship Instructions.[8]

   [1] Exhibit R1.

   [2] Exhibit A1.

   [3] Exhibit A2.

   [4] Exhibit A3.

   [5] Exhibit A4.

   [6] Exhibit A5

   [7] Exhibit A6.

   [8] Exhibit R2.

   THE RESIDENCE REQUIREMENT

3. A person is eligible for conferral of Australian citizenship if, among other things, they satisfy the general residence requirement (s 22 of the Act), the special residence requirement (s 22A or s 22B), or the defence service requirement (s 23), at the time the person made the application for citizenship (s 21(2)).  Ms Nicholls did not meet any of these requirements when she lodged her application for citizenship.

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

   “General residence requirement

   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.”

5. By s 22(1A), a person is taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day they made the application was not more than twelve months.  By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the twelve month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence. 

6. These deeming provisions do not assist Ms Nicholls because in the four years before making her application for citizenship she was present in Australia for a total of 205 days and she was not present in Australia for any period in the 12 months immediately before making that application.  There is no dispute that Ms Nicholls does not satisfy the residence requirement in s 22(1) and, according to s 22(2), is not eligible to become an Australian citizen.

   BACKGROUND AND EVIDENCE

7. The following facts are based on the outline of evidence of Ms Nicholls and on the documents before me.

8. In April 1998, Ms Nicholls came to Australia on a youth trip and met her future husband, Michael, for the first time.  He came to California, where Ms Nicholls lived with her family, in May 1999.  They were married on 23 August 2003.  They were both interested in being missionaries involved in Bible translation, but did not think of California as home.  Later, they looked into training programs for missionaries skilled in linguistics.  They took a trip to Australia in August 2005 and Ms Nicholls obtained a student visa and arrived in Australia on 3 January 2006.  She applied for a partner migration visa in October 2006 and, in November 2006, she moved to Adelaide with her husband and became involved in the Oakden Baptist Church. 

9. Ms Nicholls and her husband have been members of Whycliffe Australia, which is a missions organisation involved in Bible translation projects, since early 2007 and have been on assignment in Musoma, Tanzania since 1 August 2007.  Mr Nicholls’ work in Tanzania was requested by local churches and the project was “partnered with the [Tanzanian] government for some of the work”.  The Tanzanian government wanted help in educating its people to read and write in their first language, and then to transition into Swahili.  Swahili is the national language of Tanzania and about 50 million people live in that country.  The languages that they were covering account for about one and a half million people in Tanzania.  Many of them speak Swahili, but many also only speak their own language.  Only a very low percentage of Tanzanians speak English, and those who do, do not speak it very well.    

10. In her witness statement, Ms Nicholls said that the bulk of the work in Tanzania would be finished by 2020, when she and her husband intend to return to Australia.  Beginning on 1 October 2013, her husband is now Translation Co-ordinator for the whole of the translation team in Musoma.  Ms Nicholls’ role is considered support work because she does not do any linguistic work.  Mainly, she is a wife, mother and home maker.  In paragraph 28 of her witness statement, she says:

    “…but I also work part-time as the hospitality  coordinator, for which I help make sure the rest of the team is aware of work-related visitors to the project so they can find comfortable accommodation while in Musoma and be invited over to dinner at the missionaries’ homes, practical care coordinator, for which I help orientate new missionaries with SIL to the area and make sure they are able to access what they need and get settled in well and also to facilitate care being provided for SIL missionaries in need, be it illness, travel issues, etc, and finally I am a classroom helper for reception-year1, two days a week in the home school cooperative.”

11. Ms Nicholls normally travels back to Australia each three years for 6 to 9 months on furlough, which begins at the end of the three year period.  With her last furlough in December 2010 to September 2011, she spent six months in Australia, but then spent three months in the United States.  She has chosen three year terms, which means that three years in Tanzania is followed by home assignment or furlough.  Three year terms allow her to visit Australia frequently enough so she doesn’t feel completely isolated from it.

12. In the four years immediately before she applied for citizenship (between 20 July 2009 and 5 February 2013) she has only been in Australia twice.  The first time was for a week in July 2009 to get her partner migration visa.  She travelled with her 9 month old daughter Malia and stayed with her husband’s parents.  The second time was for her first furlough/ home assignment and she was in Australia from 7 December 2010 until 21 June 2011.  Between June 2009 and March 2013, she and her husband have had Australians stay with them in Musoma.  The three year term of Ms Nicholls and her husband ends in mid September 2014 and they are due to return to Australia.  As Mr Nicholls fills a crucial role in Musoma, everyone expects he will return after his furlough and it is indeed their intention to do so.  She says she definitely intends to reside in Australia and doesn’t intend to reside in Tanzania for the rest of her life.  She says she believes her work in Tanzania is work of which Australians would be proud and which brings credit to Australia.  She and her husband are working toward equipping the minority language groups in the Mara region of Tanzania with a written language, literacy training and tools, and written materials in their languages.

13. In giving their evidence, the other witnesses (Ms Williams, Mr McGarvie and Mr Beck) spoke of their close and ongoing friendship with Ms Nicholls and her husband.  In the case of Ms Williams, she has been a friend of the applicant since 2004 and they have a lot of mutual friends.  Her children were born in the same hospital as the applicant’s children, they have grown up and gone to kindergarten or school with the applicant’s children, and they have attended Oakden Baptist Church with the applicant and the applicant’s children.

14. In the case of Mr McGarvie, he first met Ms Nicholls at Kangaroo Ground, Victoria where she and her husband were doing linguistic training in 2006.  He said she had closer contact with Australia because there were cultural barriers to developing contacts with Tanzanians.  Ms Nicholls’ support base was in Australia, largely through correspondence with friends and her extended family, and from financial support she received from donors. 

15. In the case of Mr Beck, he said he is Deputy CEO of Wycliffe, which is an Australian community-based organisation.  He has been working for Wycliffe for 28 years and has been a missionary himself.  He said he believed the work of Mr and Ms Nicholls in Tanzania was beneficial to the Australian community and is something that Australians would be proud of.    

    THE DISCRETION

16. Section 22(9) of the Act provides for a discretion in some circumstances for the Minister to treat a period as one in which a person was present in Australia as a permanent resident.  Section 22(9) reads:

    “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.”

17. There is no dispute that Mr Nicholls is an Australian citizen and that he and Ms Nicholls married on 23 August 2003.  Nor is it in dispute that Ms Nicholls has been a permanent resident since 20 July 2009.  The essential issues are therefore whether Ms Nicholls had a close and continuing association with Australia during the Relevant Period and, if so, whether the discretion conferred by s 22(9) should be exercised in her favour.

18. The Minister has issued the Australian Citizenship Instructions (“the ACIs”) to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”.  Unless there are cogent reasons not to do so, the Tribunal must take the ACIs into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[9] 

    [9] (1979) 2 ALD 634).

19. The ACIs contain the following introduction:

    “The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.”

20. In relation to the discretion contained in s 22(9) of the Act, paragraph 5.18 of the ACIs that were relevant at the time Ms Nicholls applied for citizenship said:

    “Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.

    In all cases, applicants must provide evidence that they maintained a 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:

    ·     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

    ·     employment in Australia where the person has been on leave to accompany their spouse or partner overseas

    ·     ownership of property in Australia

    ·     evidence of income tax payment 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 22(9)(d), it is policy that more weight should be given if the person has 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.”

    DISCUSSION ON CLOSE AND CONTINUING ASSOCIATION

21. In terms of s 22(9)(d) and whether Ms Nicholls “had a close and continuing association with Australia during that period” (being the Relevant Period), as stated above, the ACI’s provide guidance on the exercise of the discretion listing factors that may demonstrate a close and continuing association. 

22. In considering whether an applicant had a close and continuing association with Australia, there have been numerous decisions of the Tribunal.  In some decisions, on the facts found, the question has been answered in the positive.  In others, the question has been answered in the negative.  Some of those decisions will now be discussed.

23. In Taher and Minister for Immigration and Border Protection,[10] Senior Member Fice, when referring to paragraph 5.18 of the ACIs, said 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.”

    [10] [2013] AATA 917.

24. In Taher, on the facts of the case, Senior Member Fice found that there was not a close and continuing association with Australia and the discretion was not exercised. 

25. In Abh Zafor Reza Ul Haque and Minister for Immigration and Citizenship,[11] Senior Member Britton said at [52]:

    “Mr Ul Haque has a close and continuing relationship with his wife and daughter, both of whom, as Australian citizens, have a close and continuing relationship with Australia.  But, although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia.  He spends little time here and does little work of business here.  He makes very little contribution to Australian society.  Apart from his family, he has very few personal connections with Australia.  Weighing these considerations discussed above I am not satisfied that Mr Ul Haque’s association with Australia could be described as close and continuing.”

    Senior Member Britton decided that the preferable decision was to affirm the decision to refuse to approve Mr Ul Haque’s application for Australian citizenship.

    [11] [2013] AATA 118.

26. In Wassim Chakass v Minister for Immigration and Citizenship,[12] Senior Member Bell found that, as Mr Chakass had spent only 50 days in Australia during what was the relevant period in spite of his desire to settle here eventually, he did not have a close and continuing association with Australia of the kind anticipated by the ACI’s.  She could not exercise the discretion in s 22(9) in his favour.

    [12] [2013] AATA 375.

27. In Bianca Pereira Da Costa Paula v Minister for Immigration and Citizenship,[13] Ms Paula was a citizen of Brazil and was married to an Australian citizen.  She was completing legal studies in Brazil and wanted to practice law in Australia when she arrived here.  Senior Member Bell found that Ms Paula had a commitment to the goal of practicing law in Australia with a qualification from an Australian university.  The consistently focused actions she took towards that goal established a close and continuing association with Australia throughout the relevant period.  Senior Member Bell concluded that Ms Paula had a close and continuing association with Australia and she saw no reason not to exercise the discretion in her favour.

    [13] [2012] AATA 543.

28. In re Nii-K Plange and Minister for Immigration and Border Protection,[14] in applying for citizenship, Dr Plange had only spent 131 days in the four years prior to his application for citizenship.  He had worked as an advisor to AusAID based in Port Moresby, PNG, providing guidance and technical assistance to the PNG-Australia HIV Aids program.  He previously worked with the United Nations in the same field in both PNG and Geneva.  He was married to a Fijian born Australian citizen with whom he has an Australian born citizen child.  Senior Member Bell concluded that Dr Plange’s long marriage to an Australian citizen and the peculiar demands of the work he undertook on the part of AusAID pointed to a continuing association with Australia throughout the relevant period.  She saw no reason not to exercise the discretion in his favour.

    [14] [2013] AATA 837.

    CONSIDERATION

1. It is clear that Ms Nicholls does not meet the general residence requirement provided for in s 22(1)(a) and (c) of the Act, because she was not present in Australia for the period of four years immediately before she made her application for citizenship, and in addition she was not present in Australia as a permanent resident for the period of 12 months immediately before the day she made the application for citizenship.

2. However, under s 22(9) of the Act, the Minister has a discretion (which may be exercised by this Tribunal on reviewing decisions of the Minister or his delegate) to treat a period as one in which the non-citizen was present in Australia as a permanent resident if the conditions referred to in ss 22(9)(a) to (d) are met.  It is common ground that Ms Nicholls meets the requirements of ss 22(9)(a) to (c). 

3. I referred in paragraph 20 above to the non-exhaustive list of factors which, according to the ACI’s, may contribute to a close and continuing association with Australia.  Ms Nicholls satisfies a number of the factors:  she has three Australian citizen children, a long relationship with an Australian citizen spouse, extended family in Australia, and periods of residence in Australia in the four years prior to applying for citizenship (205 days).  She and her husband jointly own a bank account in Australia, she has close friendships with many Australians and regularly communicates with them by email, Facebook and Skype.  Several of her friends have given evidence of her close association with them and the ongoing contact that she has with them.  However, Ms Nicholls does not meet other factors referred to in the ACI’s, namely, she has never been employed in Australia and has not paid income tax in Australia.     

4. In weighing the various factors to which I have referred, I am required by the ACI’s to give “more weight” if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship.  According to the ACI’s, “less weight” should be given if a person has not been present for at least 365 days.  As I have said above, Ms Nicholls was present in Australia for only 205 days in the four years prior to her application for citizenship.  The use of the expressions “more weight” and “less weight” suggest a “sliding scale” of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the Relevant Period.  If such a sliding scale applies (and I am not sure it should be), Ms Nicholls’ 205 days place her at the lower end.  While the fact the Australian citizenship of her husband and her children is significant, Ms Nicholls’ connection with Australia remains a distant one because of the little time she has spent in Australia.  There is no doubt that she has some association with Australia and that she wishes to further that association and eventually live here.  However, the ACI’s make it clear that physical presence in Australia is an important factor in determining whether the required association exists.

5. I agree with the Tribunal in Taher that the whole of a person’s association with Australia must be considered including the factors listed in paragraph 5.18 of the ACIs. I also agree with the Tribunal in Ul Haque that a close and continuing relationship with family in Australia is not the same thing as having a close and continuing relationship with Australia, although it is obviously an important factor. Moreover, inevitably, the nature of the association will be affected by the extent of the time the person has spent in Australia.

6. If I were to consider exercising the discretion in s 22(9), a further question remains as to whether Ms Nicholls is “likely to reside in Australia … or maintain a close and continuing association with Australia”.  This is a criteria of eligibility under s 21(2)(g) and was a basis of the reviewable decision to refuse Ms Nicholls’ application for citizenship.

7. In re Ho v Minister for Immigration and Ethnic Affairs[15] Deputy President McMahon considered the meaning of “likely to reside in Australia”.  At [31], the learned Deputy President said:

   “It can not mean ‘likely to take up residence in 18 months or two years time’ or ‘likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found’.  The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship. …”

   On the evidence, it seems clear that, if Ms Nicholls is granted citizenship based on her application, she is not likely to reside in Australia immediately or very soon after the grant.

   [15] (1994) 34 ALD 664.

8. In submissions for the respondent, Ms Wende argued that the Tribunal must consider two distinct time periods.  Paragraph 22(9)(d) of the Act is concerned with a person’s association with Australia during periods of absence in the four years immediately before making an application, while s 21(2)(g) of the Act asks the question of whether a person will maintain a close and continuing association with Australia if her application for citizenship is granted.  Accordingly, the Tribunal must be satisfied that the applicant both had, and will maintain, a close and continuing association with Australia.  Thus, even if the applicant is considered to have had a close and continuing association with Australia during extensive periods of absence in the past four years, additional considerations will apply in assessing whether she will maintain that association into the future.  Ms Nicholls has expressed an intention to spend between 6-9 months of her next furlough in Australia before returning to Australia permanently, anticipated to be 2020.  Accordingly, she intends to spend approximately 182-273 days in Australia in the next 7 years.  Further, if she spends 6-9 months in Australia before returning to Australia in 2020, she will spend a total of 523-614 days[16] in Australia since being assigned to Tanzania in 2007.  The respondent contends that the ties the applicant has had with Australia will be significantly diminished as a result of a lack of time spent in Australia.  The applicant will not maintain a close and continuing association with Australia if her citizenship application is approved.  For these reasons, the respondent contends that the applicant’s citizenship application must be refused.

   [16] Paragraph 62 of respondent’s statement of facts, issues and contentions.

9. It has been suggested that the work Ms Nicholls and her husband are doing in Tanzania will bring credit to Australia and be beneficial to the Australian community.  Certainly, the missionary and linguistic work they are doing is admirable and will be seen as such.  However, on the evidence, their work (or certainly the work of Mr Nicholls) in Musoma will likely benefit the Tanzanian community, more so than Australia or the Australian community.

10. As Ms Nunan has correctly pointed out, the ACIs are not exhaustive and other factors may be relevant in a particular case.  In this regard, I note that the ACIs which she (and Ms Wende) provided to the Tribunal are current (re-issued 23 November 2013).[17]  In my view, the ACIs that would apply to Ms Nicholls’ application would be those applicable at the time her application was made, namely, the ACIs as at 1 January 2013.  The difference between the two versions is minor and is not relevant here.   

    [17] Exhibit R2.

    SHOULD THE DISCRETION BE EXERCISED?

11. In paragraphs 22-28 above, I have referred to some of the positive and negative decisions of the Tribunal dealing with whether an applicant had a close and continuing association with Australia.  It seems to me that the positive decisions in which the Tribunal has examined s 22(9) of the Act have involved particular factual backgrounds which have enabled the Tribunal to exercise the discretion favourably.

12. Having reached the conclusion that Ms Nicholls did not have a close and continuing association with Australia throughout the Relevant Period, I cannot exercise the discretion in her favour.

    DECISION

13. The Tribunal affirms the decision under review.

14. I note that it is available to Ms Nicholls to lodge another application for citizenship at any time.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 8 April 2014

Date(s) of hearing	18 December 2013
Advocate for the Applicant	Ms J Nunan
Solicitors for the Applicant	Jane Nunan & Associates
Advocate for the Respondent	Ms S Wende
Solicitors for the Respondent	Sparke Helmore, Canberra