McCoy v Minister for Immigration and Border Protection

[2014] AATA 771

[2014] AATA 771  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1490
Re	Alexis McCoy
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date	24 October 2014
Place	Sydney

The decision under review is set aside and the matter is remitted for reconsideration in accordance with this decision. 

.............[sgd].........................

Senior Member J Toohey

CATCHWORDS - CITIZENSHIP – application for citizenship – applicant lived in Australia from 18 months old – permanent resident – married to an Australian citizen – children Australian citizens – applicant educated and employed in Australia – ordained Anglican priest in Sydney diocese – posting to Hong Kong – applicant did not satisfy general residence requirement – whether applicant had a close and continuing association with Australia during the relevant period – applicant and family planned to return to Australia – Tribunal satisfied applicant had close and continuing association during absence from Australia – decision under review set aside

Legislation

Australian Citizenship Act 2007 ss 21, 22

Australian Citizenship Act 1948 s 13 (1)(j)

Cases

Re Taher and Minister for Immigration and Border Protection [2013] AATA 917

Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516

Chaliiya Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103

Bhavani Gettings and Minister for Immigration and Border Protection [2014] AATA 357

Secondary Materials

Australian Citizenship Instructions

The Australian Oxford Dictionary, 1999, Oxford University Press.

REASONS FOR DECISION

Senior Member J Toohey

Background

1. Reverend Alexis McCoy was born in, and is a citizen of, the United States.  He arrived in Australia with his parents in 1976 when he was 18 months old.  He grew up in Sydney and completed his primary, secondary and tertiary education here.  In 2006, he became a deacon in the Anglican Diocese of Sydney.  He was ordained an Anglican priest in Sydney in February 2009.  Except for two periods spent overseas, he has lived in Australia all his life. 

2. Reverend McCoy has been a permanent resident since 1981.  He married an Australian citizen in 2000.  They have a ten-year old son and seven-year old twin boys who were all born in Sydney and are Australian citizens.

3. In March 2014, Reverend McCoy applied for Australian citizenship.  At the time, he and his family had been in Hong Kong for four years where, by arrangement with the Anglican Diocese of Sydney, he was employed as an Associate Minister at St Andrew’s Church in the Anglican Diocese of Western Kowloon.  His absence from Australia in the four years immediately prior to making his application for citizenship meant he did not satisfy the general residence requirement which is one of the criteria for eligibility in s 21 of the Australian Citizenship Act 2007 (the Act).

4. There is discretion in the Act to approve an application for citizenship in some circumstances where a person does not meet the general residence requirement.  They include where a person is married to an Australian citizen and maintains a close and continuing association with Australia during the relevant period. 

5. A delegate of the Minister for Immigration and Citizenship was not satisfied that Reverend McCoy had a close and continuing association with Australia during the period and refused his application for citizenship.  Reverend McCoy seeks review of that decision.

   The Australian Citizenship Act 2007

6. By s 22(1) of the Act, a person satisfies the general residence requirement if:

   the person was present in Australia for the period of four years immediately before the day he or she made the application; and

   the person was not present in Australia as an unlawful non‑citizen at any time during that four year period; and

   the person was present in Australia as a permanent resident for the period of 12 months immediately before the day he or she made the application.

7. By s 22(1A), a person may be taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day he or she made the application was not more than 12 months.

8. By s 22(1B), a person may be taken to satisfy s 22(1)(c) if the total period of any absence in the period of 12 months 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.

9. Reverend McCoy was present in Australia for a total of 63 days in the four years immediately before lodging his application for citizenship.  He was present for 21 days in the twelve months immediately preceding his application.  It is common ground that he does not satisfy the general residence requirement, and cannot be taken to have done so.

   The discretion in s 22(9)

10. Section 22 contains a number of exceptions, exemptions and discretions.  Reverend McCoy relies on the discretion in s 22(9).  I am satisfied that none of the other discretions applies in his case.

11. Section 22 (9) provides:

    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.

12. The Act does not specify “a period” for the purposes of s 22(9).  The Australian Citizenship Instructions (ACIs), which provide decision-makers with “guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”, take the relevant period to be the four years immediately preceding the application.

13. It is not clear to me what legislative purpose is served by reading the period in s 22(9) as the four years immediately preceding the application.  The discretion in s 22(9) is to treat a period during which a person meets the specified criteria as one in which the person was present in Australia as a permanent resident.  The requirement to be present as a permanent resident is in 22(1)(c), that is, to be present as a permanent resident for 12 months immediately prior to the application; it does not require a person to be present in Australia as a permanent resident for the four years prior to the application. 

14. Nothing in this case turns on this point because, in any event, for the four years immediately preceding his application, Reverend McCoy satisfied three of the four criteria for the exercise of the discretion in s 22(9) to be triggered: he was married to an Australian citizen; he was a permanent resident; and he was not present in Australia for most of that period.  For the reasons that follow, I am satisfied that he also had a close and continuing association with Australia throughout the four years immediately preceding his application. 

    The meaning of a close and continuing association with Australia

15. The words “close and continuing association” are ordinary words and should be given their ordinary meaning.  Close means “having a strong or immediate relation or connection”.  Continuing means “to remain in existence or unchanged”: The Australian Oxford Dictionary, 1999, Oxford University Press.

16. The ACIs describe the factors that may demonstrate a close and continuing association with Australia as including, but 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 the spouse or partner overseas

    ·ownership of property in Australia

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

    ·evidence of active participation in Australian community based activities or organisations

17. The Tribunal has commented in the past on the importance of not treating these factors in isolation or simply “ticking them 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”: Re Taher and Minister for Immigration and Border Protection [2013] AATA 917.

18. The information before the Tribunal about each of these factors is as follows.

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

19. Reverend McCoy is aged 38.  He has lived in Australia since the age of 18 months.  Except for two and a half years from 1981 to 1983 when his father, who worked for the Bank of America, was transferred to Indonesia, all of his primary and secondary education was in Sydney.  From 1993 to 1995, he attended the University of New South Wales where he completed a Bachelor of Arts.  From 1997 to 1998, he did a Masters degree in Teaching at the University of Sydney.  From 2002 to 2005, he attended Moore Theological College, which is the training seminary of the Diocese of Sydney in the Anglican Church of Australia.  Up until January 2010 when he went to Hong Kong with his family to take up the position at St Andrew’s Church, he had lived all of his life in Australia.

20. As to how he came to take up the position in Hong Kong, Reverend McCoy gave evidence that he had various connections with Hong Kong: his wife, whose parents were medical missionaries, was born in Hong Kong and lived there until she was eight years old when her family moved back to Australia; when he was a school chaplain, he made a number of trips to Hong Kong with year 11 students where they undertook community service with a local charity.  During these trips, he says, the vicar of St Andrew’s talked to him about the need for priests in Hong Kong.

21. A letter dated 17 September 2014 from Reverend John Menear, the vicar of St Andrew’s Church, is reproduced here in full:

    The Reverend Alex McCoy is employed by St Andrews Church, Kowloon, Hong Kong as an associate minister

    St Andrew’s Church is a large international church, with over 1500 people attending church services weekly, and we have a very active midweek program of education, community development, children’s and youth work, as well as social and welfare ministries.

    Given that a large number of Australian citizens live in Hong Kong, and form a sizeable part of our church, Revd McCoy was especially recruited from Australia to serve this expatriate community, not exclusively but certainly substantially.

    In addition, it is a condition of contract employment with the Anglican Church here in Hong Kong that, that (sic) Revd McCoy is released from a home Anglican Diocese, to which he shall return at the end of his contract.

    In Revd McCoy’s case, this is the Anglican Diocese of Sydney, and he attends an annual conference in Sydney as part of his ongoing professional education.  His appointment here is effected by means of being an associate of the Church Missionary Society of Australia, and so is seconded through them to St Andrew’s Church.  Such status and secondment is only given to Australian citizens or those considered permanent residents of Australia.

    Revd McCoy’s contract of employment approved by the HK Immigration department specifies Sydney as his home, and St Andrew’s will repatriate him and his family at the conclusion of his employment with us.

    Revd McCoy has an active and successful ministry among Australians in Hong Kong, spiritually and socially, as well in a number of welfare and support ways.  I consider him an emerging church leader in the Australian Anglican Church, and will do all I can to facilitate his return to Australia as and when he determines the time is right.

    As an Australian citizen myself I wholeheartedly support his application for Australian citizenship.

    Australian spouse and Australian citizen children

22. Reverend McCoy married an Australian citizen in 2000.  Their children were born in Sydney and are Australian citizens.

    Extended family in Australia

23. Reverend McCoy and his wife have an extensive network of family members in Australia who are Australian citizens.  His mother and her partner, and his sister and brother-in-law, live in Australia and are Australian citizens.  His wife’s parents, and her two brothers and sisters-in-law, live in Australia and are Australian citizens

    Regular return visits to Australia

24. Except for the first year when they were in Hong Kong, Reverend McCoy and his family have returned to Australia for approximately three weeks each Christmas.  His visit coincides with a church conference in Sydney in each year which he is expected to attend.  The family has a trip booked for the coming Christmas and will stay three weeks.  His wife has made an additional eight trips to Sydney during their time away.

25. For the Minister it is submitted that this factor does not weigh in Reverend McCoy’s favour because his visits coincide with the church conference that he is required to attend.  However, Reverend McCoy says, and I accept, that it is a costly exercise to bring a family of five to Australia more often than once a year.  The fact that it is convenient to bring the family and stay at the same time as the conference cannot weigh against him; it might be different if he came alone and the family spent holidays somewhere else overseas each year.

    Regular periods of residence in Australia

26. Since he has been in Hong Kong, Reverend McCoy has had no periods of residence in Australia other than briefly at Christmas each year. 

    Intention to reside in Australia

27. Reverend McCoy gave evidence that he and his wife intend returning to live in Australia by January 2016 when his current contract ends, if not sooner.  He says Australia is their home and they have always intended returning.  They want their sons to receive their high school education in Australia and the oldest son is due to commence high school in January 2016.  One of their younger sons has special needs and is currently being educated at a special school in Hong Kong.  He will continue to need special education which will necessitate the family’s return to Australia rather than anywhere else.

28. Reverend McCoy gave evidence that he and his wife consider Australia to be their home; their children identify as Australian.  It has always been their intention to return to Australia.  They identify with Australian culture and values and want to continue to contribute to the Australian community.  He has no intention of residing in the United States; he has not lived there since 1976 and has not visited there since 1984. 

29. Reverend McCoy gave evidence that the vicar of St Andrew’s Church, where he is currently working, is due to retire in June 2015, and he may return to Australia then as his continuing employment at St Andrew’s would depend on the incoming vicar.  He cannot discount entirely the possibility that he would be offered the position himself but he believes it is most unlikely and, in any event, his wish is to return to Australia.  In any event, he would return by January 2016 when his contract expires.  He says any future employment as an ordained Anglican Minister must be in Australia as he is an ordained priest in the Anglican diocese of Sydney. 

30. For the Minister it is submitted that the element of uncertainty as to when, or even if, he will return means that Reverend McCoy cannot be taken to have a clear intention to reside in Australia.  Further that, by his own evidence, the earliest he would return to Australia would be June 2015 when the current vicar retires, but it could be as late as January 2016.  It is submitted that he fails to meet the test enunciated by the Tribunal in Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516. This submission is considered further below.

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

31. This factor does not apply.

    Ownership of property in Australia

32. Reverend McCoy and his wife have never owned real estate in Australia.  He says, and I accept, that they had hoped to buy a property before now but their investments were hit by the global financial crisis.  They are planning to look for an investment property during their forthcoming trip at Christmas with a view to living in it when they return to Australia.  They have quite substantial sums invested in Australia, including in superannuation, which have remained invested here throughout their time in Hong Kong.  They have a savings account and credit card accounts in Hong Kong but otherwise have no assets there.

33. For the Minister it was submitted that the fact he does not own real estate in Australia weighs against Reverend McCoy.  I do not agree.  There is no reason to limit “property” for these purposes to “real property”; many Australian citizens do not own real estate.  The fact is that, other than everyday bank accounts in Hong Kong, the family’s assets, which are not insubstantial, have remained in Australia.

    Evidence of income tax paid in Australia over the past four years

34. Reverend McCoy has paid income tax in Australia for over 15 years including during his first year in Hong Kong.  He has paid some tax on income earned from his investments while he has been in Hong Kong.

    Evidence of active participation in Australian community based activities or organisations

35. For the Minister it is submitted that Reverend McCoy’s involvement in the church in Hong Kong does not amount to active participation in the Australian community based activities or organisations and that this factor therefore cannot weigh in his favour.  It is true that, during his absence, he has not participated directly in any community based activities or organisations in Australia.  However, his contract in Hong Kong relies on his association with, and endorsement by, the Anglican Diocese in Sydney and the letter from Reverend Menear makes clear that he has been actively involved with the expatriate community in Hong Kong throughout his time there.  

    Does Reverend McCoy have a close and continuing association with Australia?

36. For the Minister it is submitted that Reverend McCoy fails to meet the majority of the factors in the ACIs.  I do not agree.  As discussed above, a decision-maker should not approach the factors in the ACIs in a mechanical way but, approaching them that way for now, I find that Reverend McCoy positively meets seven (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; intention to reside in Australia; regular return visits to Australia; ownership of property in Australia); that two are just made out (evidence of income tax paid in Australia over the past four years; evidence of active participation in Australian community based activities or organisations); that one weighs positively against him (regular periods of residence in Australia); and that one does not apply (the person has been on leave from employment in Australia while accompanying the spouse or partner overseas).

37. The ACIs instruct:

    In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), it is policy that more weight should be given [to the factors set out in para 16 above] 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 to these factors if they have not been present in Australia for at least this period.

1. It is true that Reverend McCoy was not present in Australia for at least these periods in the four years preceding his application.  However, his association with Australia during that period has to be viewed in context.   Unlike an applicant who has lived much of his or her life overseas and then seeks to rely on an association established by whatever means with Australia, Reverend McCoy has lived here all his life; for all practical purposes, his association with Australia has been the same as any other citizen.

2. It is unarguable that, up until he and his family went to Hong Kong in January 2010, Reverend McCoy had maintained a close and continuing association with Australia all his life; he had lived his whole life in Australia and been a permanent resident for nearly 30 years; apart from the brief period when he was a child, he had never lived anywhere else.  In these circumstances, when considering whether he had a close and continuing association with Australia while overseas, the question becomes whether he has maintained that association or whether it has in effect been severed by his absence overseas.

3. For the Minister it is submitted that the Tribunal should apply the test enunciated in Ho (above). In that case, the Tribunal had to decide whether Mr Ho met the requirements of paragraph 13(1)(j) of the Australian Citizenship Act 1948 which required that the Minister be “satisfied that if granted a certificate of Australian citizenship, a person was likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia”. Deputy President McMahon considered the meaning of “likely to reside” in that context. At [31] he said:

   It can not mean “likely to take up residence in 18 months or 2 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.  In my view, that has not been shown in this case.  Indeed the positive evidence of Mr Ho is that this requirement, as I understand its meaning, will not be met.

4. The decision in Ho has been cited in other Tribunal decisions: see, for example, Chaliiya Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103; Bhavani Gettings and Minister for Immigration and Border Protection [2014] AATA 357. With respect, I do not agree with the application of the test in Ho in this case.

5. In Ho, the Tribunal considered the relevant provisions in the Australian Citizenship Act 1948, s 13(1) of which made it a criterion for eligibility that a person be likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if the application was approved.

6. A requirement in identical terms is one of the criteria for eligibility in s 21(2) of the current Act.  Importantly, in both cases the requirements are stated in the alternative.  As I read the current Act, it is not necessary to find both a likelihood of residence or continuing residence and a close and continuing association to satisfy s 21(2)(g). Moreover, the ACIs state only that a factor to be considered in determining whether a person has a close and continuing association with Australia for the purposes of s 22(9) is whether they have an “intention to reside in Australia”.

7. The circumstances of the applicants in Ho, Supunyachotsakul and Gettings (above) were clearly distinguishable from the present case.  None had the strength or continuity of association with Australia that Reverend McCoy has and none had clear plans as to when they were likely to reside in Australia if granted citizenship.  Indeed, the Tribunal found that Mr Ho’s plans for future residence were “quite uncertain”.

8. For the Minister it is submitted that, by his own evidence, the earliest that Reverend McCoy would return to Australia is in June 2015 but it is more likely to be in January 2016 and, even then, there is a chance that he would not return.  By his own evidence, that appears to be so.  It is submitted that even a very  small chance that he would stay longer in Hong Kong weighs against a finding that he has a close and continuing association with Australia.  I do not agree.  The fact that there is an outside chance that something might delay for some time his return says no more than that plans can never be 100 per cent guaranteed.  I am satisfied that was the substance of his evidence on this point.

9. I have no hesitation in accepting Reverend McCoy’s evidence that he and his wife intend to return to Australia for their children’s education and that the overwhelming probability is that they will do so within the next 16 months.  I am satisfied that he maintained a close and continuing association with Australia throughout the four years immediately preceding his application for  citizenship, that he continues to do so and that will do so in future.   

   Conclusion

10. For these reasons, I am satisfied that Reverend McCoy has had a close and continuing association with Australia throughout the four years immediately preceding his application for citizenship and the discretion in s 22(9) should be exercised in his favour.  The decision under review is set aside and the matter is remitted for reconsideration in accordance with this decision. 

48.       I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

...............[sgd].....................

Associate

Dated 24 October 2014

Date(s) of hearing	17 October 2014
Representative for the Applicant	Self-represented
Representative for the Respondent	Mr Chloe Hillary, Solicitor