Perera and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 4707

Perera and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 4707 (25 March 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2631
Re:Kapuge Perera
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:25 March 2023
Place:Adelaide

The decision under review is affirmed.
....[sgnd]....................................................................
Senior Member K Millar
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether applicant meets residence requirements – general residence requirement – did applicant have a close and continuing relationship with Australia in the relevant period – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Minister for Immigration v Tran [2015] FCA 546
Hammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833
REASONS FOR DECISION
Senior Member K Millar
25 March 2023
INTRODUCTION

Ms Perera is a citizen of Sri Lanka. She first came to Australia in 2007 on a Skilled Independent (Migrant) visa, and she is currently a permanent resident of Australia. On 17 January 2022, Ms Perera applied for Australian citizenship by conferral. Her application was refused, and she has applied for a review of this decision.
To meet the requirements for Australian citizenship by conferral, a person must have been resident in Australia for four years ending on the date of the application. If the person was not in Australia for four years before the date of the application, the period when the person was not in Australia may still be counted as residence if the person has an Australian spouse or de facto partner, and (among other things) the person has a close and continuing association with Australia in that period.
Another requirement for Australian citizenship by conferral is 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 approved.
In considering Ms Perera’s application for Australian citizenship, a delegate of the Minister found that she did not meet the residence requirements, and that that while her husband and daughter are Australian citizens, she has not maintained a close and continuing association with Australia. The delegate was also not satisfied that she is likely to reside in Australia if the application is approved.
The questions to be decided are whether Ms Perera has a close and continuing relationship with Australia, and whether she is likely to reside in Australia if the application is approved.
BACKGROUND
In 2017, Ms Perera was provided a scholarship by her employer, the Central Bank of Sri Lanka (‘CBSL’), to study a Master of Accounting and Finance at the University of Adelaide. This scholarship was granted on condition that she work for CBSL for a period of 8 years and one month after resuming her studies. This period ends on 27 March 2027. If she does not complete this period of service, under a service agreement she has with CBSL (the ‘study bond’) she is required to repay the amount of the scholarship.
Ms Perera arrived in Australia in 2017 to take up her scholarship and has since been granted a series of Subclass 155 (Resident Return) visas.
Ms Perera was admitted to the degree of Master of Accounting and Finance on 9 March 2019, by which time she had left Australia. She returned for a brief period in 2019 and has not been in Australia since. Her husband Mr Liyanage has remained in Australia. Their daughter returned to Sri Lanka with Ms Perera.
LEGISLATIVE SCHEME
The Australian Citizenship Act 2007 (‘the Act’) sets out the requirements for Australian citizenship by conferral.
A person may apply for Australian citizenship under s 21 of the Act. Under s 24(1A) of the Act, approval of the person becoming an Australian citizen must not be given unless (as it applies to Ms Perera) s 21(2) of the Act is met.
Subsection 21(2) of the Act sets out eight requirements, and of these eight, two are in issue in this application. The first is the general residence requirement in s 21(2)(c) of the Act. The second is the requirement in s 21(2)(g) to be likely to reside in Australia or maintain a close and continuing relationship with Australia if the application were to be approved.
General and special residence requirements
Paragraph 21(2)(c) of the Act states that a person is eligible to become an Australian citizen if, among other things, the person satisfies the general residence requirement in s 22 of the Act.
The general residence requirement includes at s 22(1) of the Act that the person was present in Australia for the period of four years immediately before the day the person made the application. Ms Perera applied for Australian citizenship on 17 January 2022. She last departed Australia on 15 September 2019 and has not returned since. As she was not resident in Australia for the period of four years ending immediately before the application, she does not meet the general residence requirement in s 22(1) of the Act.
Subsection 22(9) of the Act provides a discretion that applies to the spouse or de facto partner of an Australian citizen and states:
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.
Ms Perera seeks to meet the residency requirement on the basis that she meets s 22(9) of the Act. The Minister submits that Ms Perera does not have a close and continuing association with Australia and does not meet s 22(9)(d) of the Act.
Paragraph 22(9)(d) requires a satisfaction that Ms Perera had a close and continuing association with Australia during ‘that period’. In the context of the subdivision of the Act, this is the four years immediately before the date of the application for Australian citizenship, and in this case is from 16 January 2018 until 17 January 2022 (‘the relevant period’).
If the person meets paragraphs 22(9)(a) to (d), the decision maker may then consider whether the discretion to treat the period as one in which the person was present in Australia should be exercised.[1]
[1] Minister for Immigration v Tran [2015] FCA 546.
Did Ms Perera have a close and continuing relationship with Australia in the relevant period?
Ms Perera points to various connections she has with Australia in submitting she has a close and continuing relationship with Australia. These are the time she has spent in Australia, her relationship with her Australian citizen husband and daughter, property in Australia, and other associations with the Australian community. The time she has spent in Sri Lanka is explained by reference to her daughter’s study and the requirements of her study bond.
Time in Australia in the relevant period
At the commencement of the four-year relevant period on 16 January 2018, Ms Perera was in Australia completing her study. She remained in Australia for approximately 13 months after the start of the relevant period, departing on 12 February 2019 with her daughter. After adding a later visit of approximately two weeks in September 2019, Ms Perera was in Australia for approximately 403 days in the relevant period. This is approximately 30 per cent of the period that would otherwise be required to meet the requirements in s 22(1) of the Act.
Remaining in Australia in this period was required to complete her study and, Ms Perera’s time in Australia was with spent the expectation that she would return to Sri Lanka to comply with the terms of her study bond rather than in developing a close and continuing association with Australia.
Ms Perera’s attempt to travel to Australia in 2020 was not possible due to the COVID-19 pandemic. Ms Perera otherwise says her daughter has been studying her ‘O’ Level exams and then her ‘A’ Level exams and they have not travelled to Australia as her daughter has been focussing on her studies.
Ms Perera has spent the majority of the relevant period outside of Australia. During the period she was in Australia, she expected to return to Sri Lanka to comply with the terms of her study bond.
Husband and child
Ms Perera has been married to Mr Liyanage for over 18 years, and Mr Liyanage and their daughter are Australian citizens.
Matters relating to Ms Perera’s marriage to Mr Liyanage can be considered in looking at whether she has a close and continuing relationship with Australia.[2] However, a close and continuing relationship must be established with Australia, rather than Australians.[3] In this context, it is Ms Perera’s relationship with Australia, rather than her relationship with her husband and daughter, that is relevant.
[2] Ibid.
[3] Hammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833.
Other than visits to Sri Lanka in 2022 and 2023, Mr Liyanage has remained in Australia since Ms Perera and their daughter returned to Sri Lanka. He has been employed full time in Australia at the Flinders Medical Centre since 2017. That her husband has lived and worked in Australia throughout the relevant period is a connection Ms Perera has with Australia.
Their daughter returned to Sri Lanka with Ms Perera and has remained in Sri Lanka to complete her secondary education. Ms Perera said they want their daughter to start university in Australia from the middle of 2024. As her daughter has also remained outside Australia for the majority of the relevant period, I do not consider that Ms Perera’s connection with her daughter assists in establishing a close and continuing association with Australia.
Property in Australia
Ms Perera, while not holding a title to property in Australia, has contributed to the purchase of three properties held by Mr Liyanage in Australia. She has transferred savings towards the purchase of a property through a bank account she holds in Australia.
On 19 January 2018, a property was purchased in Magill. Ms Perera provided more than 50 per cent of the deposit for this property, transferring savings in Sri Lanka to Mr Liyanage and continuing to contribute funds after purchase of the property.
In November 2019, a second property was purchased in Windsor Gardens, and Mr Liyanage lives at this property.
A third property was purchased in May 2022, with most of the funds for the purchase coming from the offset account of the property in which Mr Liyanage lives. Mr Liyanage manages this property.
Ms Perera’s contribution to these properties is a connection with Australia from the date of purchase.
Other associations with Australia
Ms Perera has a bank account in Australia and some connection with organisations in the community, having joined the Alumni Association for Adelaide University in 2020 and as a member of the Buddhist Temple in Magill, however these associations are necessarily limited while she has not been in Australia, and attract little weight.
Ms Perera submits that her contribution to the Australian community while she was studying and paying university fees should be taken into account. However, the payment for her university fees and living costs were made by CBSL. Deciding to study in Australia and paying fees does not of itself show a close and continuing association with Australia.
Ms Perera is a Director of SA Tax Consultants Pty Ltd, a company that was registered on 19 June 2023. As the company was registered after her application for Australian citizenship it does not show a close and continuing association with Australia in the relevant period, and I have not considered this further.
Ms Perera completed a tax return in Australia in the 2023 financial year showing a taxable income of $725. This is outside the relevant period and does not show her association with Australia in the relevant period.
Ms Perera’s other associations with Australia as addressed above attract little weight in favour of her having a close and continuing connection with Australia.
Reasons for not returning to Australia in the relevant period
Ms Perera’s explanation for not being in Australia in the relevant period is that through a service agreement entered 18 January 2017, her employer CBSL granted two years paid study leave to complete a Master of Accounting and Finance at the University of Adelaide. In return, she agreed to remain employed at CBSL for a period of eight years and one month from the date she resumed her duties. This ends on 27 March 2027. If Ms Perera does not complete her service requirements, she is required to refund CBSL the full amount of expenses incurred by CBSL, including her wages while she was studying.
Ms Perera had other loans from CBSL. In the period 2009 – 2016, Ms Perera borrowed money from CBSL to purchase land and build a house in Sri Lanka, make improvements to the house, purchase a car, and for additional travel and living expenses in Australia. From 2019 Ms Perera has been repaying these other loans and has now repaid the money she borrowed. Having repaid the loans, she owns the property in Sri Lanka outright.
On 14 February 2019, the study bond was added to her other loans from CBSL. Ms Perera said this can only be repaid in full on ceasing work with CBSL before the end of the service period. Ms Perera said she has not returned to Australia because she did not have enough money until December 2023 to pay the study bond and resign from her position with CBSL.
Ms Perera has prioritised repayment of loans for a house and car in Sri Lanka over saving money to repay the study bond. While she states she is now able to pay the study bond and come to Australia, she has not done so, and intends to wait at least until her daughter has finished her secondary education. The study bond provides a strong financial incentive to remain in Sri Lanka until 2027.
While Ms Perera may have a close and continuing association with more than one country, that she has remained in Sri Lanka to meet her employment obligations with CBSL and comply with the study bond, as well as to support her daughter in completing her secondary education, does not support her close and continuing connection with Australia.
CONCLUSION
Ms Perera’s husband has remained living in Australia throughout the relevant period, and her property interests in Australia have increased over the relevant period through purchases in the name of her husband. The purchase of property in Australia has been made with the assistance of Ms Perera’s income and savings in Sri Lanka, and she has some connection with the Alumni Association and the Magill Temple in Australia.
However, Ms Perera has a study bond in Sri Lanka which remains a strong financial incentive to remain in Sri Lanka. She has not been in Australia other than for a short visit since completing her study. Visits to Australia were curtailed by the COVID-19 pandemic, however she has chosen to remain in Sri Lanka with her daughter while her daughter completes her secondary education, and she has prioritised repaying her loans over saving to pay out the study bond.
While Ms Perera has taken preliminary steps to return to Australia, they are preparatory in nature and I am not satisfied that, even when combined with her husband’s ongoing residence in Australia, they show a close and continuing association with Australia as required by s 22(9)(d) of the Act.
As she does not meet the general residence requirements, it is unnecessary to consider if she is likely to reside in Australia or maintain a close and continuing relationship with Australia for the purposes of s 21(2)(g) of the Act.
DECISION
As Ms Perera does not meet the requirements in s 22(9) of the Act for the discretion to be exercised, she does not meet the general residence requirement in s 21(2)(c) of the Act. As this is necessary to be eligible to be an Australian citizen, the decision under review is affirmed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

…[sgnd]……………………………………

Associate
Dated: 25 March 2024

Date of hearing:

23 November 2023 and 11 January 2024

Advocate for the Applicant:
Senaka Dimuthu Panagoda Liyanage
Applicant’s spouse

Advocate for the Respondent: Stanley Mak,
Australian Government Solicitor

Date of hearing:	23 November 2023 and 11 January 2024
Advocate for the Applicant:	Senaka Dimuthu Panagoda Liyanage Applicant’s spouse
Advocate for the Respondent:	Stanley Mak, Australian Government Solicitor