Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2023] AATA 90
•6 February 2023
Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 90 (6 February 2023)
Division:GENERAL DIVISION
File Number(s):2022/2611
Re:Sheau Shan Lim
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
Decision
Tribunal:Senior Member G Lazanas
Date:6 February 2023
Place:Sydney
The decision under review is affirmed.
..............................[SGD]..........................................
Senior Member G Lazanas
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – where applicant has a spouse who is an Australian citizen – whether applicant has a close and continuing association with Australia – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
Cases
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tran and Minister for Immigration and Border Protection [2014] AATA 957
Yang and Minister for Immigration and Border Protection [2017] AATA 364
Secondary Materials
Australian Citizenship [Policy Statement]
CPI 8 – Residence Requirements and Discretions
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
Explanatory Memorandum to the Australian Citizenship Bill 2005
REASONS FOR DECISION
Senior Member G Lazanas
6 February 2023
introduction
Ms Sheau Shan Lim (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs being the Respondent made on 14 March 2022 refusing Ms Lim’s application for Australian citizenship by conferral. The Respondent determined that Ms Lim did not meet the residence requirements of s 22(1) of the Australian Citizenship Act 2007 (Cth) (the Act) and refused to exercise the Ministerial discretion under s 22(9) of the Act.
Ms Lim argued that she had a ‘close and continuing association with Australia’ during her period of absence from Australia such that the discretion in s 22(9) allows for her period of time spent outside Australia as a permanent resident to be counted as time spent in Australia. Ms Lim urged me to exercise the discretion in her favour as she wants to have a common identity, namely, Australian citizenship, the same as her husband and only child.
For the reasons set out below, I am not satisfied that Ms Lim had a ‘close and continuing association with Australia’ during the period of 4 years immediately before the day Ms Lim made the application for Australian citizenship by conferral. It follows, that it is not appropriate to exercise the discretion to treat a period of absence as one in which she was present in Australia.
FACTUAL AND PROCEDURAL BACKGROUND
Ms Lim became a permanent resident of Australia on 25 November 2017. She is currently the holder of a Partner (subclass 100) visa which was most recently renewed for a further term of five years in or about September 2022.
Ms Lim is currently residing in Singapore having last departed Australia on 18 February 2018.
Her most recent movement history with respect to Australia is as follows:
Arrival to Australia Departure from Australia 15 February 2018 18 February 2018 25 November 2017 27 November 2017 6 June 2016 12 June 2016 31 May 2003 7 June 2003
On 8 February 2022, Ms Lim applied for Australian citizenship by conferral. In the application form, Ms Lim sought Ministerial discretion under s 22(9) of the Act.
On 14 March 2022, the Respondent refused to exercise the Ministerial discretion under
s 22(9) of the Act.
On 30 March 2022, Ms Lim filed an application for review to the Tribunal.
the EVidence
Ms Lim and her husband, Captain Lawrence Liao, gave oral evidence at the hearing and were cross-examined. Ms Lim also provided several documents, as set out further below.
Ms Lim is 48 years of age, married with one child. She was born in Malaysia but has lived most of her life in Singapore and is also a permanent resident of Singapore. She first arrived in Australia in November 1992. She married her husband, Captain Liao, in 1999. Captain Liao and her son are both Australian citizens.
Ms Lim is presently a housewife. Captain Liao described Ms Lim as “dedicated to her Australian family” and “a devoted mother”. He also stated that “their happy marriage bears testament to [Ms Lim’s] continuous bond and association with Australia through me and our son in all aspects of our life away from home”. In the past, Ms Lim worked as an airline hostess for Singapore Airlines (SA) and as a retail assistant for an international clothing store.
Captain Liao is a full-time airline pilot working with SA. Ms Lim and her family have been residing in Singapore due to her husband’s employment with SA since June 1994. Singapore is self-evidently the base of SA.
Captain Liao also stated that as their son is an Australian citizen, their son has never taken up permanent residence in Singapore and, therefore, is on a foreign student visa which means they have to pay higher school fees for his schooling. Ms Lim and Captain Liao stated that their son will ideally undertake further schooling and tertiary education in Australia.
Neither Ms Lim nor Captain Liao own any real property or other assets in Australia although Captain Liao had a residential property in Brisbane which was sold over 15 years ago. They own a house in Singapore.
Ms Lim provided the following evidence in support of her claim:
(a)A letter from Captain Liao dated 5 January 2022 enclosing a letter from the Australian Federation of Pilots dated 25 November 2021 together with a Notice of assessment of Income Tax issued to Captain Liao for the year ended 30 June 2021 from the Australian Taxation Office dated 6 August 2021;
(b)A tax receipt from the Australian Federation of Pilots dated 15 June 2021;
(c)A letter from Captain Liao dated 11 June 2022; and
(d)An email from the Australian International School in Singapore to Captain Liao dated 31 July 2021.
As indicated in [6] above, Ms Lim has spent only 3-4 days in Australia in the 4 years immediately before making her application for conferral of Australian citizenship, and she has spent no time spent in Australia in the 12 months immediately before making her application. Ms Lim explained that the COVID pandemic meant travel to Australia had been very difficult in the past years. She cited the Australian border restrictions introduced by the Australian government on or about 20 March 2022 pursuant to which the Australian borders were closed except for Australian citizens, residents and immediately family members as one of the reasons which galvanised her to apply for Australian citizenship.
Captain Liao stated that even prior to the lockdown, it was not reasonable or consistent with Australian family values for Ms Lim to leave their child and him behind to travel and spend time in Australia. He added that “a tourist on frequent visits to Australia is not any closer to Australia that one who is dedicated to her Australian family round the clock while living abroad” (bolding is emphasis in original). He also submitted that “frequent home visits are simply unaffordable to many” (bolding is emphasis in original).
Ms Lim also added that even though her husband worked for SA, she and her family were practically only able to travel when their son was on school holidays, and they usually travelled to destinations where her husband was travelling for work. This limitation as well the fact that their respective extended families live in neighbouring countries meant Ms Lim and her family tended to visit Malaysia and Hong Kong where they have family, Japan, Taiwan and Thailand for holidays and, on special occasions, they went to to the United Kingdom and The Netherlands.
RELEVANT LAW AND Principles
Section 20 of the Act relevantly states that a person becomes an Australian citizen if the Minister decides under s 24(1) to approve the person becoming an Australian citizen.
Sub-section 24(1) of the Act provides that if a person makes an application to become an Australian citizen, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Pursuant to s 24(1A) of the Act, the Minister must not approve an application to become an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2)-(8) of the Act.
Relevantly, s 21(2) of the Act sets out the criteria for general eligiblity for the conferral of Australian citizenship:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(c)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
(d)….
(bolding is emphasis added)
Section 22 of the Act further relevantly provides as follows in relation to the general residence requirement:
General 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.
(bolding is emphasis added)
Ms Lim was present in Australia for 3-4 days in the 4-year period immediately before making her application for Australian citizenship and she was not present at all during the 12 months prior to her making the application. Therefore, she does not meet the general residence requirements in s 22(1). Nor do the exceptions for overseas absences in ss 22(1A) (1B) apply as she has been overseas for more than 12 months prior to making her application.
Subsection 22(9) of the Act provides the Minister discretion to treat a period of absence from Australia as a period in which the person was present for the purposes of satisfying the general residence requirement. Subsection 22(9) states, as follows:
Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(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.
(bolding is emphasis added)
The Respondent accepts that Ms Lim satisfies. paragraphs (a) to (c) of s 22(9) (see extract immediately above) but contends that Ms Lim did not have ‘a close and continuing association with Australia’ during the requisite period.
Citizenship Policy
The Australian Citizenship [Policy Statement] (the Policy Statement) and the Revised Australian Citizenship Procedural Instructions (the CPIs) provide policy guidance to decision-makers on the interpretation and exercise of powers under the Act. The Tribunal is not bound to apply policy as it is not law. However, it is generally acknowledged that policy should be given proper consideration and weight by the Tribunal unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Relevantly, CPI 8 – Residence Requirements and Discretions (CPI 8) explains that the discretion under s 22(9) of the Act:
… allows periods of time spent outside Australia as a permanent resident to be counted as time spent in Australia for the purposes of meeting the requirements in paragraph 22(1)(a) and paragraph 22(1)(c) of the Act in circumstances where the applicant has exceeded the allowable absences set out in subsection 22(1A).
The discretion can only be applied to periods where:
othe applicant was a spouse, de facto partner of the Australian citizen during that period; and
othe applicant was not present in Australia during that period; and
othe applicant was a permanent resident during that period; and
othe applicant had a close and continuing association with Australia during that period. Refer to CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.
CPI 11 - Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia (CPI 11) provides assistance in considering whether a person had a ‘close and continuing association with Australia’ during a relevant period of time. Relevantly, it provides, as follows:
Under subsection 22(9) of the Act 'Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen', an applicant must have had, amongst other things, a close and continuing association with Australia during the period to which the discretion is to be applied (refer to Citizenship Instruction 8 - Residence Requirements and Discretions). This means that the consideration of ‘close and continuing association with Australia’ for the purpose of the discretion concerns a time that has already passed, rather than a time in the future, as in paragraphs 21(2)(g), 21(3)(e) and 21(4)(e) of the Act.
…
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
·‘maintain’ as to keep in existence or continuance; preserve; retain;
·‘close’ as near, or near together, in space, time, or relation;
·‘continuing’ as to last or endure;
·‘association’ as the act of associating … connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
(Bolding is emphasis added)
Paragraph 3.3 of CPI 11 sets out the following list of factors that may be relevant:
3.3. Factors that may be relevant
Following are examples of factors that may be relevant when assessing whether an applicant is likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia should their application be approved. These may be explored in an interview or through a request for further information. Decision makers must be mindful that the following factors are a guide only and that each case must be assessed on its facts.
Living arrangements and citizenship/migration status in their current country of residence
A person’s living arrangements and citizenship/migration status in their country of residence (whether that is Australia or elsewhere) may be indicators of their intention to reside in that country and whether they could act on that intent.
Authority to reside in a particular place could be derived from the citizenship of that country, or by a visa or other form of permission that allows the person to reside and work in the country long-term (that may be extended if for a fixed period) or indefinitely.
Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include but are not limited to:
·Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;
·Whether they have 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 they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country. For example:
oWhat is the person’s source of income? Are they subject to an employment contract and what arrangements do they have in relation to that contract? If the contract is for a defined period of time, do they have an option of extending the contract? Have they indicated they would they do so? Do they operate a business that requires their physical presence or could they run that business remotely? Do grandparents or other relatives provide childcare so the parent/s can work?
oIf the person has been caring for an elderly or sick relative, what arrangements would be made for the care of that relative if the person becomes an Australian citizen? Does the relative still need care or are they recovered or have they died?
oWhat are the schooling arrangements for their children and what are the implications of or plans to change those arrangements? For example, if the child is enrolled in a school that had a long waiting list and requires prepayment of fees, is there an intention to leave the child in that school and what would be the care arrangements for the child? Is the child at a stage of their education where relocation would have an adverse impact and so the parent claims any relocation will occur after the child has completed that stage (for example, if the child has entered a program equivalent to year 11 and 12)?
·Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?
·Frequency and reasons for absences from Australia if the person resides in Australia. For example:
oA person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was:
§undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;
§accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;
§participating in Australian cultural activities;
§promoting Australia overseas; or
§enrolled at an overseas university where equivalent studies are not available in Australia;
oA person’s absence/s from Australia because they have continued to work in the same overseas position or for the same employer they had prior to obtaining permanent residence may be an indicator that they have not been residing in Australia and are unlikely to do so;
oWhat has been the person’s motivation for international relocations? Is the person motivated to pursue life opportunities, career or financial advancement regardless of location or are they primarily motivated to pursue those opportunities in Australia?
oAn intention to remain temporarily overseas for work related reasons is not fatal to the application if the decisionmaker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;
oDepartmental movement records may be used to establish periods of residence. Passenger cards, where available, may assist in identifying reasons for being outside Australia.
·Participation in the Australian community. For example:
oParticipation in a community group that provides services or engages in activities of benefit to the community;
oMembership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.
oNote: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes. For example, distinction could be made between activities to improve the facilities of a golf club for the benefit of the community, and playing golf at that club.
·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.
In Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [48]-[56], the Full Court of the Federal Court reviewed the legislative history of s 22(9) of the Act and referred to the Explanatory Memorandum to the Australian Citizenship Bill 2005 at 29, which states as follows:
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
(bolding is emphasis added)
The Full Court considered the purpose of s 22(9) of the Act in Han at [51] and [54] to be as follows:
Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement. …
…It is equally evident, however, that it was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.
The contextual background to s 22(9) of the Act was also recognised by the Tribunal in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [31]:
It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.
I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.
(bolding is emphasis added)
The above decisions, and the references to the intention of Parliament as expressed in the Explanatory Memorandum to the Australian Citizenship Bill 2005, support the view that the intended purpose of the discretion in s 22(9) of the Act is to ameliorate the strictness of the general residence requirement for non-citizens who accompany their Australian citizen spouse overseas so they can maintain their cohabitation when the spouse is working overseas. It is necessary to now address the meaning of the expression ‘close and continuing association with Australia’ in the Act.
‘Close and continuing association with Australia’
There is no definition of ‘close and continuing association’ in the Act. In Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14], Perry J stated:
While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration & Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.’
In Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26], Senior Member Cotter described the Tribunal’s approach to determining the question of whether a person had a ‘close and continuing association with Australia’ for the purposes of s 22(9) of the Act in the following way:
Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy. The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”, or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied. What is required is:
... a qualitative assessment of the ultimate significance (of) an applicant's circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant's periods of Australian presence were highly relevant considerations.1
(footnote omitted)
The factors in CPI 11 listed above are relevant considerations when undertaking a qualitative assessment of whether Ms Lim’s circumstances demonstrate a ‘close and continuing association with Australia.’ The Tribunal also accepts, as emphasised by Ms Lim at the hearing, that it has to make a decision on the basis of the evidence before it, considered in a holistic way. It is for this reason that other Tribunal cases are not especially helpful as the facts and circumstances differ in every case.
As Ms Lim made the application for Australian citizenship by conferral on 8 February 2022, the relevant period of 4 years is the period 8 February 2018 to 8 February 2022. During that period Ms Lim was present in Australia for a total of 3-4 days.
The importance of physical presence in Australia to establish a close and continuing association was emphasised by the Tribunal in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47]-[48]:
… 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.
I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.
On the other hand, Ms Lim and Captain Liao referred to the decision of Tran and Minister for Immigration and Border Protection [2014] AATA 957 to support her case that the period of time spent in Australia was only one of many factors to be taken into account. In Tran, although the applicant had spent only 38 days in Australia in the preceding 4-year period before her citizenship application, she was held to have a ‘close and continuing association with Australia’ based on other considerations which corroborated her strong connections with Australia. Amongst other things, the evidence disclosed that Ms Tran and her husband’s investments and financial affairs were entirely Australian-based. Also, Ms Tran had worked in the Australian Embassy in Hanoi and continued to maintain contact with persons there and had learnt about Australian culture. She had also completed real estate studies with a view to finding employment in Australia and was preparing for the family’s relocation to Australia.
DOES MS LIM HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIDA And should the tribunal exercise the discretion?
Ms Lim was in Australia for a total of 3-4 days in the 4-year period immediately before applying for citizenship. She resides in Singapore with her husband and child and is a permanent resident of Singapore. Her husband, Captain Liao, is the breadwinner for their family and works for SA which is based in Singapore. Their only child attends school in Singapore. In the same 4-year period, Ms Lim had visited various countries including Malaysia for 5 days, Japan for 7 days, Hong Kong for 6 days, Japan for a further 6 days, Hong Kong for a further 4 days, and Hong Kong for a further 6 days.
Ms Lim’s extended family lives in Malaysia and Captain Liao’s extended family live in Hong Kong and partly explains the frequent visits to those places. She has spent very little time in Australia. Moreover, her evidence was that she spent that time in Australia as a holiday taking their son to some of the popular tourist places. Those activities are transient leisure activities and different to ongoing participation in the Australian community. Ms Lim’s involvement with the Australian community is non-existent. Moreover, while she referred to a friend in Australia whom she had met through Captain Liao’s work, their evidence suggested that Ms Lim and Captain Liao were not regularly in contact with the friend.
Ms Lim’s attachment and dedication to her Australian citizen spouse and child are unquestionably close, but the close and continuing association that is in issue under the Act, is with Australia, rather than Australians. Although Ms Lim provided explanations as to why she had not spent more time in Australia including due to COVID-19 border restrictions, the fact is that Ms Lim had also not spent much time in Australia beforehand. She did not visit Australia at all in the period of more than 2 years before the pandemic. Additionally, her most recent visits to Australia in 2018, 2017 and 2016 were for 3 days, 2 days and 6 days, respectively. Prior to June 2016, Ms Lim had not visited Australia for about 13 years.
The documents provided in support, including the nil tax assessment issued to Captain Liao by the Australian Taxation Office and the receipt from the Australian Federation of Pilots for Captain Liao’s registration do not advance Ms Lim’s situation as they do not establish her involvement in the Australian community.
The extremely limited presence of Ms Lim in Australia and her lack of participation in the Australian community especially compared to her and her family's participation in the Singapore community where they reside lead to the conclusion that Ms Lim does not have a ‘close and continuing association with Australia’. There was very little evidence to support Ms Lim’s assertion that she has a close and continuing association with Australia. In all the circumstances, it is not appropriate to exercise the discretion in her favour to treat her overseas absence as one in which she was present in Australia.
It is acknowledged that Ms Lim and her family may relocate to Australia in the future, especially as they would like their son to possibly study in Australia. However, that is not relevant to the spousal discretion in s 22(9), which is concerned with whether Ms Lim had a ‘close and continuing association with Australia’ during the relevant period.
DECISION
Ms Lim has failed to demonstrate that she had a ‘close and continuing association with Australia’ during the period 4 years immediately before the day she made the application for Australian citizenship by conferral. Accordingly, the Tribunal should not exercise the discretion under s 22(9) and the decision under review is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas...............................[SGD].........................................
Associate
Dated: 6 February 2023
Date of hearing: 21 October 2022 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Ms N Chandra, HWL Ebsworth Lawyers
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