Prasser and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1292
•17 May 2018
Prasser and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1292 (17 May 2018)
Division:GENERAL DIVISION
File Number: 2017/1898
Re:Sonia Prasser
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:17 May 2018
Place:Brisbane
The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
CITIZENSHIP – residency requirements – whether Applicant resided in Australia for four years prior to her application for citizenship – whether Applicant resided in Australia as a permanent resident for the 12 months prior to her application for citizenship – where Applicant did not reside in Australia for the requisite amounts of time – spousal discretion – whether Applicant had a close and continuing association with Australia – where Applicant did not have a close and continuing association with Australia – where Applicant did not meet the requirements for the spousal discretion to be enlivened – decision under review affirmed
LEGISLATION
Citizenship Act 2007 (Cth), ss 21, 22
CASES
Jiang and Minister for Immigration and Citizenship
[2011] AATA 688
Kilpi and Minister for Immigration and Citizenship[2012] AATA 605
Randhay and Minister for Immigration and Citizenship [2012] AATA 323
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2)(1979) 2 ALD 634
Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229
Saba and Minister for Immigration and Border Protection[2014] AATA 579
Sie and Minister for Immigration and Border Protection[2014] AATA 60
Taher and the Minister for Immigration and Border Protection[2013] AATA 917
Tan and Minister for Immigration and Citizenship[2011] AATA 877
Tran and Minister for Immigration and Border Protection[2014] AATA 957
SECONDARY MATERIALS
Citizenship Policy (2016)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
17 May 2018
INTRODUCTION
Ms Sonia Prasser (“the Applicant”) is a Filipino national who has been married to an Australian citizen for nearly fourteen years.[1] The Applicant sought to become an Australian citizen by conferral in an application on 18 November 2016.[2] A delegate of the Minister for Immigration and Border Protection (“the Respondent”) refused this application on 27 March 2017.[3] The Applicant has applied to the Tribunal for review of that decision.
[1] Exhibit 3, T-Documents, T 5, p 120.
[2] Ibid, T4, pp 70-119.
[3] Ibid, T 2, pp 12-20.
The issue in this matter relates to the residence requirements of the Citizenship Act 2007 (Cth) (“the Act”). Under s 22(1)(a) of the Act, an applicant must have been present in Australia for the period of four years immediately prior to their application for citizenship by conferral. Even though s 22(1A) allows for a person to still satisfy the requirements of s 22(1)(a) if they have been absent from Australia for a period of less than 12 months out of that four year period, the delegate found that the Applicant had been absent from Australia for 1146 days in that four-year period,[4] and so was not satisfied that citizenship should be granted to the Applicant.
[4] Ibid, p 13.
Section 22(1)(c) imposes the additional requirement that the person must have been present in Australia as a permanent resident for the period of 12 months immediately before they made their application for citizenship. As with s 22(1)(a), the Act – by way of s 22(1B) – allows for applicants to still meet this requirement even if they have been absent from Australia for some of that period. Specifically, s 22(1B) provides an exception where, if the applicant was absent from Australia for a period of not more than 90 days during the one-year period before they lodged their application, they are still eligible for Australian citizenship. The delegate found the Applicant had been absent from Australia for 286 days in the 12 months prior to her lodging her application for citizenship by conferral, and so determined that she does not satisfy the requirements of s 22(1)(c) either.[5]
[5] Ibid, p 13.
However, there is a further alternative route through which the Applicant may be found to satisfy the requirements of ss 22(1)(a) and 22(1)(c) of the Act: a discretion to treat a person as being present in Australia as a permanent resident under s 22(9). Section 22(9) confers a discretion on the Minister as follows:
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”.
[my underlining]
The final of these requirements is that the person must satisfy the decision-maker that they had a close and continuing association with Australia during the period immediately preceding their application for Australian citizenship. I note at the outset that these are cumulative in effect – the Applicant must satisfy each of requirements (a)-(d) before the discretion can be enlivened. Even if all four factors are enlivened, that is still a discretion that must be exercised, so it does not automatically follow that the period should be treated as one in which an applicant was present in Australia as a permanent resident.
The delegate found that this discretion could not be enlivened because the Applicant could not demonstrate a close and continuing association with Australia in the four years prior to her lodging her application for Australian citizenship.[6] It does not appear that the delegate tried to apply the discretion to show the Applicant satisfied the requirements of s 22(1)(c). While that appears to be an error on the part of the delegate, nothing turns on it for present purposes. As this is a de novo rehearing, I must look at all the evidence afresh and satisfy myself independently of the decision the delegate made.[7] I will now turn to whether I am reasonably satisfied that the Applicant can be granted citizenship by conferral.
CONSIDERATION
[6] Ibid, p 14.
[7] See e.g. Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229.
Matters not in dispute
There is no contest between the parties that the Applicant does not meet the general residence requirements of ss 22(1)(a) and 22(1)(c) of the Act, and that she does satisfy the remaining requirement – s 22(1)(b). However, there is some dispute as to the precise amount of time the Applicant spent in Australia in the four years before her application, and in the 12 months before her application was lodged. The Respondent contends that the Applicant was absent from Australia for a total of 1149 days, of which 285 days were in the 12 months leading up to her application being lodged.[8] This equates to 312 days out of the four-year period, and only 80 days in the 12 month period.[9] The Applicant, meanwhile, says that instead of counting nights stayed in Australia, the Tribunal should also count part-days (i.e. days of arrival and of departure).[10] In her submission:
I actually spent 338 days [in Australia] when including part days. I dispute that 338 days is “significantly below” the requirement of 365 days stated in the Department’s letter.[11]
[emphasis in the original]
[8] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [2.7].
[9] Ibid. Looking at Attachment A to Exhibit 2, and considering that 2016 was a leap year, it seems like the correct calculation – even considering arrival and departure days – is 81 days.
[10] Exhibit 1, Applicant’s Submissions, p 1.
[11] Ibid. I note that these 365 days seem to be referring to the period referred in the Citizenship Policy as a guide for considering how much weight should be given to the factors listed therein to be used when assessing whether the discretion in s 22(9) should be enlivened.
Regardless of the calculation that is to be preferred, it is abundantly clear – and not in dispute – that the Applicant cannot satisfy the requirements of ss 22(1)(a) or 22(1)(c) even if the lower requirements of s 22(1A) and 22(1B) are taken into account without the implementation of the discretion in s 22(9). Therefore, the only basis upon which this application can succeed is if the Tribunal is convinced to exercise the spousal discretion appearing in s 22(9) of the Act. As the Applicant does not satisfy the time periods in either s 22(1)(a) as amended by s 22(1A) or s 22(1)(c) as amended by s 22(1B), for her to be successful, the discretion must be enlivened twice – once for the four-year period required by s 22(1)(a) and once for the 12-month period required by s 22(1)(c),
Enlivening the spousal discretion – “close and continuing association with Australia”
The plain contention of the Respondent is that while the Applicant meets the first three criteria of s 22(9) of the Act, she does not meet the fourth one contained in s 22(9)(d) of the Act.[12] This is because the Applicant is unable to establish a close and continuing association with Australia during each of the relevant periods pursuant to ss 22(1)(a) and 22(1)(c)) of the Act. That is, the Respondent says she must show that she had a close and continuing association with Australia for at least 784 days of the four-year period such that the discretion should be utilised so she can be said to satisfy s 22(1)(a) and 195 days for the 12-month period such that she can be said to satisfy the requirements of s 22(1)(c).[13] The discretion is not enlivened by reference to an isolated day or relatively short period during the stipulated four years. In other words, even if a close and continuing association could be shown for that isolated day or relatively short period, it is necessary to look at whether there was such an association for the balance of that period.
[12] Exhibit 2, Respondent’s SFIC, [2.10].
[13] Ibid, [2.11].
Prior to any fulsome consideration of whether this Applicant can be said to have had a close and continuing association with Australia during the relevant period, it is important to consider the concept or policy of the legislation (the Act) governing this type of decision-making.
As this Tribunal has demonstrated in Taher and the Minister for Immigration and Border Protection [2013] AATA 917 (“Taher”), merely establishing a close and continuing association with Australia is but a pre-condition for the exercise of the discretion. Showing such a connection involves something akin to a forensic examination of exactly what an applicant’s claimed residential time in Australia has involved. As was aptly put by Senior Member Fice in Taher:
…simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a pre-condition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and reasons why the Applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.[14]
[my underlining]
[14] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [36].
In other words, after the initial requirements of having a “close and continuing association with Australia” are met, an applicant’s claim of residency in Australia must be viewed through a holistic prism. This includes considerations such as how much time they have spent here, whether the expenditure of that time arises from a decision to actually have one’s principal place of residence here, whether one’s primary and predominant source of income is here and, more generally, a desire to establish a life in this country.
It was, to my mind, rightly raised by the Respondent that even if these elements cannot be demonstrated by the Applicant via this application, there is nothing preventing her from, at some future point, bringing a fresh application for citizenship at which time it will be more straightforward for her to establish the complete suite of residential requirements.[15] For applications of this type and the residency requirements they mandate, the pivotal question usually involves a finding as to when a given couple – such as the Applicant and her husband – actually formed an intention to return to Australia. If such a decision can be demonstrated at a time sufficiently prior to the bringing of such an application for citizenship and provided the circumstances of the move back to this country are demonstrative of wanting to establish a life here, then the determination of these types of applications becomes a more straightforward exercise.
[15] Exhibit 2, Respondent’s SFIC, [3,3].
The phrase “close and continuing association”, for present purposes, should be given its ordinary meaning. This was made clear by this Tribunal in Randhay and Minister for Immigration and Citizenship [2012] AATA 323 at [39]. In an effort to arrive at an ordinary meaning, the Respondent has had recourse to the Australian Oxford Dictionary and has noted that the words of the phrase mean:
(a)“close” means ”having a strong or immediate relation or connection”;
(b)“continuing” means “to remain in existence or unchanged”; and
(c)“association” means “the act or an instance of associating; fellowship or companionship”.[16]
[16] Ibid, [2.13].
I see no reason why this definition should not be adopted. I therefore so do.
The Citizenship Policy – a basic summary of applicable factors
Chapter 7A of the Citizenship Policy provides guidance in relation to exercise of the spousal discretion contained in s 22(9) of the Act. The Tribunal can have regard to the Citizenship Policy unless there are “cogent reasons to the contrary”.[17] There do not appear to be any in this case.
[17] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
The Citizenship Policy contains certain factors that the Tribunal can take into account in ascertaining whether the circumstances of the case demonstrate a close and continuing association with Australia. They include but are not limited to the following:
·evidence that the person migrated to an 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 their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four year [sic] 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 s 22(9)(d), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the four 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.[18]
[18] See Exhibit 3, T-Documents, p 58; Citizenship Policy (2016), Chapter 7, p 28.
As I understood the evidence, these dot points can, in short form, be answered as follows:
·Did the Applicant migrate to an established a home in Australia prior to the period overseas? Yes, in the early 2000s, around a decade prior to the relevant period.
·Does the Applicant have an Australian citizen spouse? Yes.
·Does the Applicant have an Australian citizen child? Yes.
·What is the length of the relationship with the Australian citizen spouse? The Applicant married her current spouse in the Philippines on 12 January 2004.
·Does the Applicant have extended family in Australia? Yes.
·Has the Applicant frequently returned to Australia? Yes.
·Does the Applicant have regular periods of residence in Australia? No.
·Has the Applicant expressed an intention to reside in Australia? Yes, but there is little evidence supporting her having that intention in either of the relevant periods.
·Has the Applicant been on leave from employment in Australia while accompanying her spouse overseas? No.
·Does the Applicant own property in Australia? No.
·Is there evidence of the Applicant paying income tax in Australia over the past four years? No.
·Is there evidence of active participation in Australian community based activities or organisations? No.
The Citizenship Policy factors – answering dot points is not sufficient
This rather simplistic exercise of answering each of the abovementioned dot points in the Citizenship Policy must be tempered with the approach adopted by Senior Member Fice in the matter of Taher at [47], where he said:
In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.[19]
[my underlining]
[19] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
My initial impression of the evidence is that the preponderance of short trips made to Australia by the Applicant – as opposed to spending longer periods here which would be more indicative of an intention to reside here – strongly weighs against her application. For reasons I will outline below, her presence in Australia for substantially fewer than 365 days (a fact both parties agree upon, although they differ on precisely how many days fewer it is) minimise the weight attributable to the factors in the Citizenship Policy that may, at first blush, indicate a close and continuing association with Australia.
As observed by Senior Member Fice in Taher, individual factors taken alone are not sufficient to demonstrate the necessary close and continuing association with Australia. The Applicant seems both a dedicated wife and mother. Her husband and children are citizens of this country. But these factors, alone, are not sufficient to demonstrate a necessary close and continuing association with this country.
As also observed by Senior Member Fice in Taher, regard must be had to the stated policy purpose around citizenship as detailed in the preamble to the Act. The concept of citizenship involves a consistently demonstrated membership or participation in the community into which an applicant seeks admission, via that grant of citizenship. There must be a commonality of interests between the Applicant and that community together with reciprocal rights and obligations. During the relevant four-year period, the Applicant has been absent from Australia for almost 80% of that time. Similarly, the Applicant was present in Australia for only 81 of the 365 days before she lodged her application for citizenship, which is both below the 90 day threshold suggested by the Citizenship Policy and represents just over 22% of that year. The sheer size and scope of that absence (relative to the applicable four-year and 12-month periods), to my mind, poses grave difficulties for her being able to demonstrate any such claim to commonality and/or reciprocal rights and obligations with the community of which she now seeks to become a citizen.
The Citizenship Policy factors – what does the evidence say?
A more detailed consideration of the evidence on the basis of an ordinary meaning of “close and continuing association” with reference to the factors listed in Chapter 7 of the Citizenship Policy has led me to a conclusion that the spousal discretion, for the purposes of the present application, ought not be exercised.
There can be no doubt that the Applicant’s husband and their daughter are citizens of this country. Similarly, it is clear from the material that the Applicant has close extended family in Australia.[20] The difficulty for the Applicant is that her ties with her extended Australian citizen family are not, in and of themselves, sufficient to demonstrate the necessary close and continuing association. As noted by Senior Member Bell in Jiang and Minister for Immigration and Citizenship [2011] AATA 688:
27. Mr Jiang’s association with Australia falls well short of these cases. Mr Jiang’s commitment to his Australian citizen wife and daughter is not in doubt. Theirs is clearly a strong marriage and loving family, which has been since Mr Jiang and Ms Gong were married more than 20 years ago and would remain so regardless of where they each resided. However, in the absence of close associations with Australia beyond his devotion to his Australian citizen family, I am not satisfied that Mr Jiang’s association with Australia is close and continuing.
[emphasis in original][21]
[20] See Exhibit 1, Applicant’s document titled “Citizenship Appeal Case”: Annexure 5 thereto comprises photographs taken during the early years of the Applicant’s relationship with her husband; Annexure 10 thereto comprises certain family photographs.
[21] Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [27].
As also noted by Senior Member Fice in Taher:
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.
[my underlining]
Applied to the present facts, the Applicant’s making of some 25 short-term trips to Australia (with an average length of, on the Applicant’s estimate, 13.5 days and 12.48 days on the Respondent’s estimate) to visit either her immediate or extended Australian family, if looked at as a factor in isolation, makes it very difficult for her to establish the requisite close and continuing association with this country to warrant exercise of the spousal discretion.
The Applicant has sought to ameliorate this position by providing some evidence suggestive of an intention to establish a home in Australia during the early 2000s, relying on certain attachments to Exhibit 1, the most recent of which was dated 2005 and relates to the Applicant’s daughter, not her. However, such a contention is of little value here because it is said to have occurred some nine years prior to the relevant period and it is clear the Applicant subsequently returned to live in the Philippines.
Following this ‘false start’ of an intention to permanently reside in Australia, the Applicant not only returned to the Philippines but did so as a landlord and manager of a building which she owned there. It should also be noted that at this time, her husband was declaring that he was a resident of the Philippines.[22]
[22] Exhibit 1, Applicant’s Statement with Annexures, Annexure 12.
I cannot find anywhere in the material before the Tribunal any cogent or convincing evidence of regular and lengthy periods where the Applicant resided in Australia during the relevant four-year and 12 month periods. As mentioned earlier, the longest period the Applicant spent in Australia during the four-year period was 28 days. Even the Applicant’s parents-in-law refer to the Applicant making “frequent trips” and having “regularly visited Australia”, rather than residing here.[23]
[23] Ibid, Annexures 7 and 6, respectively.
The corollary of such a finding is that there is little or no evidence that during the relevant four-year period (specifically, 2012-2016), the Applicant intended to reside in Australia. During that time, her focus was clearly on managing and maintaining the apartment building in the Philippines while, at the same time, travelling extensively with her husband on his (mostly) work-related trips.
It is also clear from the material or, more correctly, the chronological sequence revealed in the material, that during this specific period, the Applicant’s husband did not take any steps to either look for or obtain permanent employment in Australia, or to retire here. There was some periodic and contract-based work undertaken by the Applicant’s husband in Australia during this period but it was clearly short term and did not lead to anything permanent.
The Applicant has produced evidence from her husband, his employer and a Singaporean financial planner he employs, indicating that he intended to retire to Australia around 12-18 months from June 2017.[24] However, there are two issues with this evidence: (1) it goes to the state of mind of the Applicant’s husband, not to her own intentions; and (2) it relates to his state of mind at least eight months after the end of the relevant period and after the Applicant’s application for citizenship was initially refused. For these reasons, I give that evidence little weight. Additionally, there is a letter from a Brisbane-based private wealth manager which states that the Applicant’s husband approached him in 2014 to establish an Australian superannuation fund for his eventual retirement here.[25] While that does indicate an intention to eventually move back to Australia on the part of the Applicant’s husband, it does not (1) point to the timeframe in which this would occur; or (2) go to the state of mind of the Applicant. In this context, I have trouble assigning it much weight, either.
[24] Ibid, Annexures 15-17.
[25] Ibid, Annexure 18.
The evidence from this time (2012-2016) is demonstrative of the Applicant and her husband regarding the Philippines as their permanent residential base or home. I therefore think the Respondent’s following contention is a valid one: when the evidence is looked at in a holistic sense, it is not probative of the Applicant’s intention to reside in Australia during this period or shortly thereafter.[26] This is why the Applicant has grave difficulty in establishing such an intention. The intention to reside in Australia must be temporal with or proximate to the grant of citizenship. As observed by Senior Member Handley in Sie and Minister for Immigration and Border Protection [2014] AATA 60 at [32]:
the expression intention to reside in Australia must mean, if not an immediate intention, an intention at least to reside with some reasonable proximity to the grant of citizenship
[26] Exhibit 2, Respondent’s SFIC, [2.19].
Although the Applicant may have had an intention to return to Australia and to settle here for retirement purposes at some future point, such a future-oriented intention – when, as was put on behalf of the Respondent, “the stars align and the circumstances come together” – is not sufficient to establish that during the relevant period, she had a positive intention to reside in Australia nor that she had such intention with “some reasonable proximity” to the grant of citizenship now sought via this application.
On the evidence before me, it appears that the Applicant has never worked in Australia. Similarly, there is a dearth of evidence that during the relevant period or at any other time, the Applicant derived income in Australia or paid any income tax on such income. Neither of these elements satisfy this particular factor in the Citizenship Policy such as to warrant exercise of the spousal discretion.
There is some evidence that the Applicant was involved in community-based activities and organisations in Australia during the relevant period. Such evidence indicates a limited and probably more token participation or involvement and that her trips from the Philippines back to Australia were for the more primary purpose of seeing her immediate and extended family.
The Applicant’s evidence in support of this community-based factor is, to my mind, less than convincing. The Applicant sought to rely on a letter from Ms Cecelia Preachey Lita Bottomley dated 8 June 2017 and which appears as Annexure 22 to Exhibit 1. In this letter, Ms Bottomley says:
Dear Sir/Madam,
My name is Cecelia Preachy Lita Bottomley a long standing friend of Sonya Prasser and her family.
I have known Sonya Prasser for 17 years. I first met her in the gym Runaway Bay Sports Complex, at the time she was a gym junkie which is why we connected as friends.
We were a busy mum’s [sic] since at the time our kids were still young.
Every Sunday we used to go to church (River Of Praise church) and catch up during the week.
Until now, we still keep in touch especially when she is here in Australia.
[my underlining]
As rightly noted by the Respondent, it is difficult to tell from this letter whether the Applicant’s asserted community engagement – via the gym and the church – continued during the relevant period. To my mind, of more significance is the underlined portion of the letter. She says that “until now” she has kept in touch with the Applicant. I can only presume the “now” to be contemporaneous with the date of the letter, that is, June 2017. In addition, the letter points to the Applicant not being in Australia for long periods either contemporaneous with the letter (mid 2017) or, more critically, during the relevant four year period (2012-2016) because of the reference to “we still keep in touch especially when she is here in Australia”. This can only be indicative of the Applicant not having been “here in Australia” and therefore not having been involved with the church or the gym for significant periods prior to June 2017.
The Applicant also produced a letter from the Grand Golf Club in Queensland. The letter states, inter alia, that the Applicant and her husband have been members of the Club for 20 years. This letter dated 6 June 2017 appears as Annexure 24 to Exhibit 1. It reads as follows:
This letter is to confirm that Ross Prasser and his wife Sonia have held a Family Membership with The Grand Golf Club for over twenty years.
They purchased a Foundation Share in this private and exclusive Golf Club and have been members since its’ [sic] inception. Ross and Sonia are held in high regard by the Committee, Members and Staff of our club.
We would have no hesitation in recommending Sonia for Citizenship. If you have any questions or require any further information, please feel free to contact us.
The letter is predominantly concerned with matters of historical interest that are of little or no relevance to the Citizenship Policy factor under consideration. In a historical context, the letter talks about the Applicant and her husband holding a “Family Membership with The Grand Golf Club for over twenty years.” The letter says nothing about the Applicant’s active involvement with the Golf Club either as a playing member or an office bearer or whether she has played any other role or made any other contributions to the affairs of the Golf Club.
If she were a playing member, one would expect to see the usual golfer’s handicap history deriving from actual rounds of golf she played at the Grand Golf Club or other Australia-based clubs. If she were an office bearer or other contributor to the administrative affairs of the Club, one would expect to see a list of the offices she had held or any other assistance she had provided. This is especially so in circumstances where the letter tells us the Applicant and her husband “…purchased a Foundation Share in this private and exclusive Golf Club and have been members since its’ inception.” To my mind, the letter’s silence about any playing or administrative participation points to (1) the Applicant having little or no active involvement with the Club beyond the acquisition of the foundational share; and (2) the likelihood that both she and her husband were not regularly participating in the Australian community during the relevant period (2012-2016) and, most likely, prior to that time.
The Applicant sought to ameliorate the shortcomings of this first letter from the Golf Club (dated 6 June 2017) by obtaining a second letter dated 22 January 2018,[27] approximately a week prior to the Tribunal hearing this matter. The second letter is identical to the first save and except for the addition of this new penultimate paragraph:
Both Ross and Sonia have used the Club’s facilities on a regular basis for the four years leading up to November 2016.
[27] See Exhibit 5, Letter The Grand Golf Club Limited to Mr Ross Prasser dated 22 January 2018.
The self-serving nature of the phrase “…. for the four years leading up to November 2016” is self-evident. It is clearly an attempt to convince the Tribunal of some type of active involvement by the Applicant in community-based activities and organisations within Australia for the purpose of this particular factor in the Citizenship Policy. To my mind, it fails to do so because even though it refers to use of the Club’s facilities “on a regular basis”, there is no reference to the nature of such apparent regular usage. We are not told whether the Applicant was an active and regular player with a handicap or competition history or that she was otherwise active in the Club’s administrative affairs as, for example, an office bearer or other volunteer.
Taking this evidence at its highest, even if the Applicant were to have played a round of golf at the Golf Club every time she visited Australia, that does not reach the necessary level of participation in community-based activities for the purposes of this factor. There is a difference between using a certain set of facilities every time one is in the country and actively participating in Australian community-based activities or organisations. Inherent in the latter is a degree of reciprocity, or giving back to the community, rather than paying for and availing oneself of a service or opportunity.
There is also a tax receipt from Sports Super Centre Runaway Bay, which shows that the Applicant paid for gym membership there for some two months in 2013-2014. This does not show that the Applicant so much as went to the gym, merely that she paid for it. This evidence does not take her far.
Thus, I cannot find that either the letter from Ms Bottomley or the Golf Club letters lend any real weight to a conviction that the Applicant participated in community-based activities and organisations in Australia during the relevant period to any requisite degree.
The Applicant does not own real property in Australia. As mentioned earlier, she owns an apartment building in the Philippines in respect of which the evidence indicates she acts as landlord and property manager. The property she does own in Australia is relatively modest in scope and otherwise unconvincing in terms of making out this particular factor in the Citizenship Policy.
The Tribunal was taken to evidence about the Applicant’s property in Australia comprising (1) indirect interest in certain real property at the Gold Coast; (2) a bank account; and (3) a motor vehicle. Annexure 20 to Exhibit 1 seems to relate to three separate parcels of real property, all in the Gold Coast area. First, there appears a copy of a Certificate of Title for certain real property comprising a unit in Runaway Bay on the Gold Coast. This Certificate of Title records the Applicant’s husband becoming the registered proprietor on 27 May 1993. This is over 10 years prior to the Applicant marrying her husband in the Philippines. Nowhere on this Certificate of Title does the Applicant’s name appear as the holder of any legal or other interest in this property.
Annexure 20 to Exhibit 1 also contains a copy of a letter dated 16 January 2012 addressed to the Applicant’s husband confirming completion of a contract relating to his purchase of certain real property situated in Miami on the Gold Coast. The letter is on the letterhead of solicitors who acted for the husband in that transaction. There is no reference in that letter to the Applicant being a participating purchaser in that transaction or that she otherwise holds a legal or other interest in this property. Interestingly, the letter is addressed to the Applicant’s husband care of an address in the Philippines.
Annexure 20 to Exhibit 1 also makes reference to a third property on the Gold Coast. A Contract of Sale refers to a property situated in Upper Coomera. Also part of this Annexure 20 is a Registration Confirmation Statement recording the Applicant’s husband becoming the registered owner of this property at Upper Coomera on 11 December 2015. There can be no doubt that this Registration Confirmation Statement relates to this Upper Coomera property because it bears the same title reference as the accompanying Contract of Sale. Again, nowhere on this Registration Confirmation Statement (or Contract of Sale) does the Applicant’s name appear as either a participating purchaser or the holder of any legal or other interest in this property.
Consequently, although the Applicant’s husband has significant property interests in Australia, it is apparent that the highest the Applicant’s interests can be put is as being ‘indirect’. The only link between the Applicant and the ownership of these three properties is her husband. This factor therefore does not weigh in favour of the Applicant herself having a close and continuing association with Australia.
The next category of property referred to by the Applicant as evidentially indicative of this particular factor in the Citizenship Policy relates to a relatively modest sum appearing in a bank account with the National Australia Bank. Annexure 14 to Exhibit 1 comprises a copy of a certain National Australia Bank statement for the period 21 February 2017 to 20 April 2017 showing a relatively modest credit balance of $928.08. Several things can be said about this document. First, it dates from a period outside the relevant period. Second, there is no transactional history in relation to this or any other bank account prior to 21 February 2017. Third, even if these relatively modest funds were held during the relevant period, it is beyond argument that liquid funds in a bank account are readily capable of withdrawal at virtually any time and, as noted by the Respondent,[28] there is no evidence that this account was inaccessible to the Applicant while she was overseas.
[28] Exhibit 2, Respondent’s SFIC, [2.24].
The final category of property referred to by the Applicant as evidentially indicative of this particular factor in the Citizenship Policy relates to a certain motor vehicle registered in the Applicant’s name in or about 2014/2015. Annexure 22 to Exhibit 1[29] comprises a Registration Certificate from the Queensland Department of Transport and Main Roads showing the Applicant as the registered owner of a 2001 Mercedes Benz CLK 320 motor vehicle. As noted by the Respondent, there is little or no evidence about how long the Applicant has owned this vehicle and to what extent she may have used it.[30] In any event, and in the absence of any evidence of its value or any personal attachment the Applicant may have to it, I do not consider what was during the relevant periods an approximately fifteen year-old car sufficient to ground the Applicant’s assertion that she has a close and continuing relationship with Australia.
[29] This document also appears in the T Documents: see Exhibit 3, T7, p 122.
[30] Exhibit 2, Respondent’s SFIC, [2.25].
I thus have significant misgivings as to whether (1) the Applicant’s (at best) indirect interest in any real property in Australia; (2) her minimal and highly liquid bank deposit; and (3) the registration of a certain vehicle in her name, alone or combined, lend any weight to a positive finding with regard to this specific factor in the Citizenship Policy with respect to any property she may hold in Australia.
The Citizenship Policy factors – primary finding
I am of the view that the Respondent’s contention is correct.[31] A case can be made that the Applicant did have an interest in Australia and an associated desire to permanently relocate and reside here at some point in the future when the circumstances of her and her husband so permitted. However, upon a consideration of the evidence as a whole, it seems to me that on the balance of probabilities, it is more likely than not that the Applicant’s association with Australia during the relevant four year period arose out of her relationship with her Australian citizen husband, her Australian citizen child and her Australian-based extended family rather than from an association with Australia itself.
[31] See Exhibit 2, Respondent’s Statement of Facts and Contentions, [2.25].
I consider there are three main pillars supporting such a finding. First, in the four years prior to her application for citizenship, she was absent from Australia for 1149 days out of an available 1460 days. Of those 1149 days, 285 of those days were in the 12 months leading up to her application. The Applicant was absent from Australia for almost 80% of the four years preceding the lodging of her application, and for around 78% of the 12 months preceding it. Secondly, I cannot find anything in the evidence and, put another way, the evidence seems to exclude, any rational finding or the reaching of any logical conclusion that the Applicant has demonstrated a consistent involvement and membership or participation in the Australian community into which she seeks admission via her application for citizenship. Thus, these first two pillars cannot lead me to a finding that the Applicant has a close and continuing association with Australia to warrant exercise of the spousal discretion.
Thirdly, a holistic consideration of the range of applicable factors in the Citizenship Policy guiding the Tribunal as to the exercise of the spousal discretion leads me to the conclusion that any connection or attribution the Applicant may have been disposed to make or feel towards Australia is to be found in her relationship with her Australian citizen husband, her Australian citizen daughter and the extended family she has in this country rather than via an association with Australia itself.
Additional considerations
The Respondent points to the Applicant’s physical presence in Australia for less than the statutorily mandated minimum of 365 days across the totality of the relevant period (2012-2016).[32] The resulting contention is that given the Applicant’s failure to meet the 365 day threshold, less weight should be allocated to any factors possibly indicating a close and continuing association between the Applicant and Australia during the relevant period.
[32] The Applicant was physically present in Australia during this period for 312 days.
In particular, the Respondent drew the Tribunal’s attention to the comments of Deputy President Handley of this Tribunal in Tan and Minister for Immigration and Citizenship [2011] AATA 877 at [27]:
The major stumbling block for Ms Tan is the very limited time she has spent in Australia. It is not unreasonable to expect that a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by at least residing here for an extended period, even if the period falls short of the general residence requirement in s 22(1), and provided there are other factors indicating a close and continuing association. The instructions suggest, not unreasonably, that a period of less than 365 days should be considered less favourably.
The Respondent contends that a similar conclusion should be drawn in relation to the Applicant. I agree with that contention and accordingly do so.
Even without drawing that conclusion, I have found that on a holistic consideration, the evidence does not demonstrate the Applicant has a close and continuing association with Australia. I have also found that her association with this country is via her Australian citizen husband, Australian citizen daughter and extended family rather than such association being with Australia itself.
Presumably out of an abundance of caution, the Respondent has also propounded the lawfulness of the Citizenship Policy. It seems clear to me that the Policy is not unlawful or otherwise inconsistent with s 22(9) of the Act. The final factor, relating to the 365 days threshold consideration, does not serve as a precondition in conflict to the terms of s 22(9) of the Act. Rather, it is a guide for the appropriate weighting of various considerations that takes place in a holistic determination of whether the s 22(9) discretion should be utilised.[33] In other words, no inconsistency or error derives from the application of the Citizenship Policy factors to any decision about the exercise of the spousal discretion. As observed by Senior Member Handley of this Tribunal in Kilpi and Minister for Immigration and Citizenship [2012] AATA 605 at [53]:
[The Citizenship Policy] guides, but does not control the making of decisions under s 22(9)… The amount of weight and eventually the way in which the scales tip, when all other factors are considered is a matter for the decision-maker. I am not satisfied that the [Citizenship Policy factors] are unlawful and they do not place a fetter on the discretion in s 22(9) of the Act.
[33] See Saba and Minister for Immigration and Border Protection [2014] AATA 579 at [47].
In a similar vein, Senior Member Ettinger of this Tribunal said in Tran and Minister for Immigration and Border Protection [2014] AATA 957 at [38] that the Citizenship Policy Factors “are not unlawful or otherwise inconsistent with s 22(9) of the Citizenship Act, and must therefore be applied…”. Consequently, the 365-day consideration is a relevant one for the purposes of this decision.
Do the circumstances warrant exercise of the spousal discretion?
I am satisfied about these things: (1) during the relevant four-year period for the purposes of s 22(1)(a), the Applicant has been absent from Australia for 80% of the time; (2) the Applicant was absent from Australia for approximately 78% of the relevant 12-month period for the purposes of s 22(1)(c); (3) the Applicant cannot demonstrate any consistent involvement, membership or participation in the Australian community into which she seeks admission via her application for citizenship, so she does not meet the threshold requirements for the s 22(9) discretion to be enlivened; and (4) a considered application of the Citizenship Policy factors leads me to the conclusion that her connection to this country is to be primarily found in her relationship with her Australian citizen husband, her Australian citizen daughter and the extended family she has in this country rather than in any association with Australia itself. I thus reach the conclusion that in any event I should not exercise the spousal discretion pursuant to s 22(9) of the Act with respect to either s 22(1)(a) or s 22(1)(c).
As observed by the Respondent, it is not open to the Tribunal to make an alternate finding about exercise of the discretion on the basis that the Applicant – via her relationship with her husband – was precluded from meeting the general residence requirements during the relevant period.[34] The evidence does not give rise to any suggestion that the Applicant has failed to meet the general residence requirements as a result of her spousal relationship with an Australian citizen in the sense envisaged by the Act.
[34] Exhibit 2, Respondent’s SFIC, [2.32].
The Applicant cannot sustain an argument that her inability to meet the mandatory residence requirements was due to her removal or absence from Australia as a result of the work or other activities of her husband. The travel she has undertaken occurred while she and the Applicant were based in the Philippines. It is not open to her to now suggest that her inability to meet the general residence requirements arises from her spousal relationship with an Australian citizen.
Therefore, for this further reason, the spousal discretion in s 22(9) of the Act ought not be exercised.
Some additional observations
The Applicant is the holder of a permanent visa and can reside here indefinitely if she wants to. It is open to her to reapply for citizenship in the future after establishing firmer roots in Australia and with the Australian community, or after residing in Australia for a sufficiently long time that she can satisfy the requirements of ss 22(1)(a) and 22(1)(c),
DECISION
The Applicant does not satisfy the general residence requirements in s 22 of the Act. I am not satisfied the Applicant had a close and continuing association with Australia during the relevant period and do not exercise the discretion appearing in s 22(9) of the Act. The Applicant has not sought to rely on the special residence requirements un ss 22A or 22B of the Act and in any event, I am not satisfied that they apply. Consequently, she does not satisfy the requirements of s 21(2)(c) of the Act. She is therefore not entitled to Australian citizenship by conferral.
I consequently affirm the delegate’s decision to refuse the Applicant’s citizenship application pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
....................[sgd]....................................................
Associate
Dated: 17 May 2018
Date of hearing: 30 January 2018 Advocate for the Applicant: Mr Stewart Prasser Advocate for the Respondent: Ms Phoebe Richards Solicitors for the Respondent: Clayton Utz
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