Naughton and Minister for Immigration and Border Protection
[2014] AATA 140
•14 March 2014
[2014] AATA 140
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4523
Re
Gina Naughton
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal RM Creyke Senior Member
Date 14 March 2014 Place Canberra The application under review is affirmed.
...................[sgd]...............................
RM Creyke Senior Member
Catchwords
CITIZENSHIP – General residence requirement – inadequate number of days in Australia to meet legislative requirements - spouse deceased – Ministerial discretion – whether close and continuing relationship with Australia.
Legislation
Australian Citizenship Act 2007 (Cth) sections 21 and 22Cases
Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634Secondary Materials
Australian Citizenship Instructions (1 July 2013)REASONS FOR DECISION
RM Creyke Senior Member
Ms Gina Naughton, a citizen of the Philippines, seeks review of a decision by the Minister for Immigration and Border Protection to refuse her application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (Act).
Ms Naughton is the widow of an Australian citizen who died on 28 January 2012. The couple married on 25 March 2004, but had been in a relationship since 2003. Mr Naughton adopted his wife’s two daughters, who were minors, on 13 October 2006.
On 11 July 2013, Ms Naughton applied for Australian citizenship, an application which was refused on 9 August 2013 on the grounds that she did not satisfy the general residence requirements.
Ms Naughton sought further review by the Tribunal on 6 September 2013. The application for review was heard by the Tribunal on 4 February 2014. The applicant’s legal representative appeared by telephone; the representative of the Minister in person. The applicant was unwell and not able to attend on the day of the hearing, but no request was made for an adjournment of the hearing.
Background
Ms Naughton married her husband, Mr Phillip Naughton, an Australian citizen on 25 March 2004. Ms Naughton visited Australia on several occasions on a visitor’s visa between 2003 and 2009. These visits meant she was in Australia for 81 days in total during this period. On 1 June 2011 Ms Naughton became an Australian resident but since her last visit in 2012, she has not returned to Australia.
Mr Naughton was employed by Leighton Contractors, initially in the Philippines between 1997 and 2008. He next worked as operations manager for the company in Indonesia between 2008 and 2010, and then in Dubai, United Arab Republic from 2010 until his death in 2012. Ms Naughton and her daughters accompanied him on these postings. On January 28, 2012 Mr Naughton died in Dubai, unexpectedly, of a heart attack. His funeral was held in Australia but his ashes have been interred in Manila, the Philippines.
During the couple’s time in the United Arab Republic, they began the process of collecting the documentation so Ms Naughton and her daughters could become Australian citizens but the process was interrupted by his untimely death.
After her husband’s death, Ms Naughton returned to the Philippines where she has obtained work and her daughters are studying. Ms Naughton says she would like to have had her daughters educated in Australia after Mr Naughton died but she could not afford to do so. Nor can she afford to relocate to Australia to seek work.
Ms Naughton has listed seven people in Australia with whom she has maintained contact. The primary relationship with these people had been with her husband but she had shared his friends over the ten years they were a couple. However, at the hearing, it was conceded that the contact was irregular and occasional.
Mr Naughton has family in Australia including his parents and children from a previous marriage. Ms Naughton’s representative said Ms Naughton was in touch with his children and his parents after his death, but she could not indicate, in the absence of her client, as to whether this was more frequent.
Ms Naughton has no property in Australia, has not worked in this country, nor has she paid Australian income tax.
Legislation
The legislation is the Australian Citizenship Act 2007 (Cth) (Act).
Issues
The sole issue is whether the decision to refuse Ms Naughton’s application for Australian citizenship was the correct or preferable decision.
Consideration
The general residence requirement to be met by an applicant for Australian citizenship are set out in section 21(2):
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) 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
(c) satisfies the general residence requirement (see section 22) … at the time the person made the application.
Ms Naughton was over 18 and a permanent resident at the time she applied for Australian citizenship. The principal issue is whether her application satisfies the general residence requirement.
General residence requirements
The general residence criteria, all of which must be met prior to a grant of citizenship, are found in section 22 which states 22(1) … 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.
The person may be absent from Australia for up to twelve months in total during that period including 90 days in the twelve months immediately before making an application.[1] The relevant four year period prior to Ms Naughton’s making her application commenced on 11 July 2009.
[1] Australian Citizenship Act 2007 (Cth) s 22(1A).
Ms Naughton was not present in Australia as an unlawful non-citizen at any time during the 4 year period, nor had she been present for the four years immediately prior to her application. The departmental records indicate that Ms Naughton was present in Australia for a total of only 20 days in the four years prior to lodgement of her application. That means her absence from Australia during that period exceeds the twelve months of allowable absences in the period immediately prior to making the application. Accordingly she did not meet the general residence requirements in section 22(1)(c). Ms Naughton accepted that this was the position.
A further requirement of the eligibility criteria is found in section 21(2)(g) of the Act. That provision requires that the person ‘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’. Ms Naughton provided evidence that while in Dubai she commenced the process for acquiring Australian citizenship and she has also indicated her continuing desire to do so. However, she has employment in the Philippines, her daughters are being educated in that country, and Ms Naughton has indicated that she cannot afford for them to be educated in Australia. So, despite having an intention to move to Australia, there are barriers to her realising that intention. In addition, Ms Naughton indicated there would be financial difficulties for her to relocate and she would need to obtain employment in Australia which may also be difficult.
In the context of whether she had a ‘close and continuing association with Australia’ (section 21(2)(g)), Ms Naughton indicated that although she has nominated some Australian citizens with whom, through her husband, she had contact, and with whom she has maintained occasional and irregular contact, her association with those people is tenuous. Ms Naughton also has no property in Australia, does not pay Australian income tax, and has not maintained contact with her husband’s family in Australia.
So although she has a general desire to reside in this country and is aware of the advantages for her daughters should the family be able to live here, these factors are not sufficient to establish a ‘close and continuing association with Australia’. That means she does not meet the criteria in section 21(2)(g) of the Act. This discussion is also relevant to the discussion of whether the Minister’s general discretion should be exercised in accordance with section 22(9) of the Act.
Therefore, although Ms Naughton does meet some of the eligibility criteria in section 21, she is required to meet all the requirements, and having not been able to satisfy section 21(2)(c) or (2)(g) of the Act she is not able to be granted Australian citizenship by conferral.
Exercise of Minister’s discretion
That is not the end of the matter. Section 22(9) of the Act provides for an exemption from the general residence criteria provided the Minister’s discretion is exercised. Section 22(9) states:
22(9) If the person is the spouse, de factor partner or surviving spouse or de factor 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 the period.
Section 22(10) provides:
In subsection (9):
Surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.
The Australian Citizenship Instructions provide guidance in relation to the exercise of the discretion in section 22(9). Clause 5.18 of the policy provides as relevant:
… this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicant must provide evidence that they maintained a close and continuing association with Australian 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 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 paid in Australia over the past four years 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 section 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 to these factors if they have not been present in Australia for at least this period.
The policy does not bind the Tribunal. Nonetheless, the Tribunal would normally take account of the policy, as relevant, unless it was unlawful.[2]
[2] Re Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634 at 645.
The Tribunal notes that Ms Naughton has had regular periods of time in Australia, has regularly returned to the Australia with her husband, and she has expressed an intention to reside in Australia. She also had a long term relationship with her former Australian citizen spouse, Mr Naughton, over a period of nine years and has accompanied him on his periods of employment overseas. Ms Naughton has not repartnered, her children are her former spouse’s adopted children, and she appears to have had a close and continuing relationship with him until his death. Ms Naughton’s legal representative also gave evidence that Ms Naughton had been associated with the Philippines-Australian society in Manila since her return there.
In summary, these reasons indicate that although Ms Naughton meets some of the factors listed in the policy, she does not meet others. Therefore, although Ms Naughton has resided with Mr Naughton while he was working overseas, and this provides some explanation for her failure to meet the general residence requirements, her periods of residence in Australia, at a total of 20 days, fall far short of the suggested period of 365 days spread over the four years indicated in the policy. Further, she has spent no time in Australia in the last twelve months, nor has she been here for at least 90 days as a permanent resident.
Nor, as the earlier discussion under the general residence criteria indicates does she meet the close and continuing association requirements. As the criteria in section 22(9) must all be satisfied if the Ministerial discretion under the provision is to be exercised, Ms Naughton is unable to make a case that the discretion should be exercised in her favour.
The decision under review is affirmed.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of RM Creyke Senior Member. ......................[sgd]......................
Associate
14 March 2014
Date of hearing 4 February 2014 Advocate for the Applicant Rianne M. Picar-danao Solicitors for the Applicant Fortun Narvasa & Salazar Advocate for the Respondent Amanda Graham Solicitors for the Respondent Clayton Utz
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