PXLS and Minister for Home Affairs (Citizenship)

[2018] AATA 4272

PXLS and Minister for Home Affairs (Citizenship) [2018] AATA 4272 (15 November 2018)

Division:GENERAL DIVISION

File Number:           2018/1678

Re:PXLS  

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:15 November 2018

Place:Sydney

The decision under review made by a delegate of the Minister for Home Affairs on 7 March 2018 is set aside and, in substitution, the Tribunal decides that the applicant, PXLS, satisfies the requirement in paragraph 21(2)(g) of the Australian Citizenship Act 2007. The Tribunal remits the matter to the Minister for Home Affairs for reconsideration in accordance with these reasons.

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Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – refusal of citizenship – general eligibility – applicant spent significant periods outside Australia – whether applicant is likely to reside or continue to reside in Australia – serious intention to reside in Australia – whether applicant maintain a close and continuing association with Australia – association supported by wide range of documents – Department timeframe for processing application not within scope of Tribunal’s review – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(1), (2)(a),(2)(b), (2)(g), ss 22, 22(1A), 22(1B), s 24(5)

CASES

Ho and the Minister for Immigration and Ethnic Affairs

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 

Taher and Minister for Immigration and Border Protection

SECONDARY MATERIALS

Australian Oxford Dictionary

The Citizenship Policy

REASONS FOR DECISION

Dr L Bygrave, Member

15 November 2018

1. The applicant, PXLS, is a citizen of Canada.

2. The applicant first entered Australia in 2005 on an electronic travel authority (subclass 977). She was granted a skilled independent (permanent) (subclass 189) visa on 22 December 2015.

3. On 23 December 2016, the applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The applicant was residing in New Zealand at the date of her application.

4. The application was refused by a delegate of the Minister for Home Affairs (the Minister) on 7 March 2018 because the applicant did not satisfy:

   ·the requirement in paragraph 21(2)(g) of the Act that she be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if her application is approved; and

   ·the requirement in subsection 24(5) that she be present in Australia at the time of the decision and was not eligible for the special resident requirement of Ministerial discretion.[1]

   [1] Exhibit T-T2, pages 19-25.

5. On 3 April 2018, the applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of that decision.

6. The matter was heard in Sydney on 9 October 2018. The applicant had legal representation. She attended the hearing in person and gave oral evidence; she was accompanied by her husband who also provided oral evidence at the hearing.

   RELEVANT LEGISLATION AND ISSUE

7. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

8. The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. The provisions relevant to the determination of this application are as follows:

   (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) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   …

   (g)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…

9. The Tribunal is satisfied that the applicant meets the requirements in paragraphs 21(2)(a) and (b) of the Act; she was aged over 18 years at the time she made the application, and was a permanent resident at the time she applied for citizenship and at the time of the decision by the Minister’s delegate.

10. The general residence requirement is set out in section 22 of the Act. The relevant provisions are as follows:

    22 General residence requirement

    (1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

    (a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

    (b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

    (c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application. [emphasis in original]

11. Pursuant to subsections 22(1A) and 22(1B) of the Act, a person may have some limited periods of overseas absences without impacting on their ability to satisfy the general residence requirement:

    (1A) If:

    (a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

    (b)the total period of the absence or absences was not more than 12 months;

    then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

    (1B) If:

    (a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

    (b)the total period of the absence or absences was not more than 90 days; and

    (c)the person was a permanent resident during each period of absence;

    then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

12. In the four years prior to her application for citizenship, the applicant was present in Australia for a total of 1274 days. At the date of the decision by the Minister’s delegate on 7 March 2018, the applicant had been present in Australia for 294 days as a permanent resident.[2] The Tribunal finds that the applicant meets the general residence requirement in section 22 of the Act.

    [2] Exhibit T-T2, page 21.

13. Relevant to this matter, the Minister’s delegate decided that the applicant did not meet the requirement in paragraph 21(2)(g) that she “was likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if [her] application were to be approved”.

14. In applying paragraph 21(2)(g) of the Act, the words should be given their ordinary meaning within the context used. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”; “continuing” to mean “to remain in existence or unchanged”; and “association” as “the act or an instance of associating; fellowship or companionship”.

    Citizenship Policy

15. The Citizenship Policy offers policy guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

    [3] [1979] AATA 179; (1979) 2 ALD 634.

16. The Citizenship Policy provides the following interpretation of paragraph 21(2)(g):

    Likely to reside, or continue to reside in Australia

    Intention to reside should be investigated further in situations where:

    ·the applicant has spent significant periods outside Australia since becoming a permanent resident or

    ·has requested a citizenship test or citizenship ceremony be conducted overseas.

    If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider where they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision. [emphasis added]

    Maintain a close and continuing association with Australia

    Factors that may contribute to a close and continuing association with Australia include:

    ·Australian citizen spouse or de facto partner

    ·Australian citizen children

    ·length of relationship with Australian citizen spouse or de facto partner

    ·extended family in Australia

    ·return visits to Australia

    ·periods of residence in Australia

    ·intention to reside in Australia

    ·employment in Australia (for example, public or private sector)

    ·ownership of property in Australia

    ·evidence of income tax payment in Australia.

17. As noted by the Tribunal in Taher and Minister for Immigration and Border Protection:

    …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. [4]

    EVIDENCE

    [4] [2013] AATA 917 at [47].

    Periods outside Australia since the applicant became a permanent resident

18. The applicant became a permanent resident of Australia on 22 December 2015. In her application for Australian citizenship, the applicant stated that she departed Australia on 2 October 2016 to “transfer” to New Zealand for her husband’s work. She noted that the length of her proposed travel due to an “overseas work assignment” was two years from 22 December 2016.[5]

    [5] Exhibit T-T7, page 209.

19. At the Tribunal hearing, the applicant explained that her husband is currently employed in a senior executive role with a company that is based in New Zealand. Her husband has been employed in this role since July 2016 earning approximately NZ$900,000 per annum. The applicant and her husband have two children, aged four years old and two years old. The applicant is currently the children’s primary care giver, and she and their children have moved to New Zealand for the short-term because of her husband’s career. The applicant told the Tribunal that she remained in Australia until October 2016 (after her husband had relocated to Auckland in July 2016) to ensure that she would meet the general residency requirements for Australian citizenship.

20. Since December 2016, the applicant has returned to Australia in September 2017, February 2018 and October 2018. These have been short trips to visit friends, attend a wedding and progress plans to redevelop/rebuild their home in Australia.

    Australian citizen spouse/children

21. The applicant’s husband is a citizen of the United Kingdom. While both their children were born in Australia, the applicant’s four-year-old child is a citizen of the United Kingdom and her two-year-old child is an Australian citizen.

22. The applicant does not have any extended family residing in Australia. The applicant’s parents reside in Canada and her parents-in-law reside in England. Siblings of the applicant and her husband reside in Canada, England and New Zealand.

    Periods of residence and intention to live in Australia

23. The applicant has resided in Australia since 2005. The applicant met her (now) husband in 2009 and they married in 2012. Their children have been born in Australia.

24. In the period from 2005 and until the applicant relocated to New Zealand in October 2016, she departed Australia only for short periods (between one week and one month) to undertake work, study or training; to visit family in Canada or the United Kingdom; or to take a holiday.

25. The applicant has provided extensive evidence about her intention to reside in Australia with her husband and children. She told the Tribunal that she feels at home in Australia and enjoys the Australian culture, especially the lifestyle, education and her friendships. The applicant said that she wants to be part of Australia and noted that she could remain as a permanent resident but wanted to participate in the country, including to vote.

26. The applicant and her husband have purchased a home in Australia, which is currently in the process of undergoing a major redevelopment/rebuild. Both the applicant and her husband described this home as their “dream home”. It is anticipated that the plans for the redevelopment will be finalised in the next month, and building will commence in 2019 and be completed by early 2020.

27. The applicant and her husband gave evidence to the Tribunal that they will return to Australia by early 2020. This is so they can live in their new home and their older child can begin school in Australia. The applicant has located schools near their home; her children are currently on a waitlist for a private school and the applicant has made inquiries about her older child enrolling in their local public primary school. The applicant has provided written evidence of correspondence with the private school about her child being on the waitlist.[6]

    [6] Exhibit A11.

28. The applicant’s husband stated that he will look for roles in Australia potentially within the company currently employing him or alternatively, he will consider other employment opportunities. While the applicant’s husband has an employment contract that is “indefinite”, he was adamant in his oral evidence that he did not see employment or seeking a new career opportunity as a barrier to him and his family returning to Australia in early 2020. He said he has maintained a high level of business contacts and connections from his period of employment in Australia between 2008 and 2016; he continues to hold substantial savings, superannuation and assets in Australia; and would be able to undertake consulting work in Australia if he cannot find a suitable career position by late 2019.

29. The applicant provided details about her personal friendships with people in Australia, including information about these friendships and itineraries of activities undertaken during her visits to Australia since October 2016.[7] The applicant filed 17 statutory declarations from friends, with 16 of these statutory declarations written by Australian citizens.[8] These statutory declarations included detailed information about the long-term friendships (that is, more than eight years) between the applicant and her friends, on-going communication between the applicant and her friends since October 2016, and the applicant’s intention for her and her family to return to Australia to reside and for the education of her children.

    [7] Exhibit A16.

    [8] Exhibits A17-A33.

    Employment and evidence of income tax paid in Australia

30. The applicant was employed in Australia at a senior level in a multinational company from 2005 until 2014. Since the birth of her children, she has been their primary care giver. The applicant told the Tribunal that she took a redundancy payment from her employer in July 2014, when her older child was several months old. She stated that she has maintained contacts with business associates in Australia and plans to return to paid employment after their younger child starts school.

31. The applicant provided evidence of income tax returns filed in 2013 to 2016, which show that prior to the birth of her children the applicant was employed as a business analyst, earning a salary between approximately AUS$140,000 and AUS$190,000, and paying tax to the Australian government. The applicant gave evidence to the Tribunal that she had also filed a tax return in 2017, based on her share of income from renting their home in Australia.

    Ownership of property in Australia

32. The applicant and her husband own a home in Australia. As set out above at paragraph 26, the applicant and her husband are in the process of redeveloping and rebuilding this home. The applicant provided extensive documentation about this process, including contracts between the applicant and their architect, email communication between the applicant and their architect, house designs and timelines for the renovations and build.[9]

    [9] Exhibits A3-A8, A10.

33. The applicant and her husband also have substantial financial assets in Australia through both a family trust and a self-managed superannuation fund. The evidence of the applicant’s husband, substantiated by written evidence about the superannuation fund, shows significant financial investment in Australian companies and assets, and he confirmed at the Tribunal hearing that they have assets in Australia in excess of $5-5.5 million.[10]

    [10] Exhibit A13.

    CONSIDERATION

34. In view of the evidence, I must determine whether the applicant is either likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia – not both.

35. In considering whether the applicant is likely to reside in Australia, I find the applicant has spent significant periods outside Australia since she became an Australian permanent resident on 22 December 2015. I particularly note that the applicant had been present in Australia for only 294 days as a permanent resident at the date of the decision by the Minister’s delegate on 7 March 2018. I accept the applicant’s explanation that her departure and absence from Australia has been solely due to her husband’s employment in New Zealand.

36. Based on the evidence before the Tribunal, I am satisfied that the applicant demonstrates a serious intention to reside in Australia with her husband and children by January-February 2020. In making this finding, I rely on the evidence that:

    ·the applicant has resided in Australia for eleven years and been in full-time employment in Australia for nine years;

    ·the applicant and her husband own property (their home) and substantial financial assets in Australia;

    ·the applicant’s younger child is an Australian citizen;

    ·the applicant’s older child will be commencing year one at primary school in 2020;

    ·the applicant has sustained long-term and close friendships with Australian citizens; and

    ·the applicant has not resided in Australia since October 2016 only because her husband was provided with an executive career opportunity that the applicant and her husband view as short-term prior to their return to Australia.

37. I now consider whether the applicant is likely to maintain a close and continuing association with Australia if her application for Australian citizenship is approved.

38. The applicant has provided a wide range of documentary evidence about her association with Australia. This includes extensive and detailed statutory declarations from long-term friends who are Australian citizens or Australian permanent residents; details about earnings, tax paid and financial assets; plans to redevelop and rebuild their home; and communication about potential schools for her children.

39. Beyond the applicant’s physical association with Australia, I also accept her submission that she has a strong emotional association with Australia. The applicant has clearly taken the process of applying for Australian citizenship very seriously as she travelled from New Zealand to attend the Tribunal hearing in person with her husband and children. I also note the applicant does not need to become an Australian citizen; she retains her Canadian citizenship and Australian permanent residency.

40. Representatives for both the Minister and the applicant made submissions to the Tribunal about physical presence in Australia being an important element to developing a close and continuing association with Australia. I concur with these submissions. However, on balance of all the evidence, it is my view that the circumstances of the applicant provide a clear explanation about her relatively short-term absence from Australia, her likelihood of residing in Australia in the future, and her maintenance of a close and continuing association with Australia during her period of absence.

1. Following the hearing, further written submissions were provided to the Tribunal regarding the Department’s timeframe for processing the applicant’s application for Australian citizenship in the context of the decision in Ho and the Minister for Immigration and Ethnic Affairs, which concluded that “likely to reside”:

   …cannot mean “likely to take up residence in 18 months or 2 years time” or “likely to reside sometime 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. [11]

   [11] [1994] AATA 516 at [31].

2. The applicant submitted that, in view of the Department’s current published processing time for citizenship applications and the applicant’s requirement to sit the citizenship test, the applicant will either have returned to Australia or would be six months from permanently returning to Australia after the citizenship certificate is issued.[12]

   [12] Applicant’s Submissions on the decision of Ho and Minister for Immigration and Ethnic Affairs (1994) AATA 516 and processing times for grant of an Australian Citizenship Certificate, dated 18 October 2018.

3. In response, the Minister’s representative provided written submissions that the “length of time that a remitted citizenship application may take to finalise is an operational mater, and any speculation as to that timeframe falls outside the scope of this review”.[13]

   [13] Respondent’s Submissions in reply, dated 26 October 2018, para 4.

4. While I accept that Department’s timeframe for processing applications for citizenship is not within the scope of the Tribunal’s review, I do note that the applicant’s citizenship application was lodged on 23 December 2016, almost 23 months ago, and the Department is still to make further assessments as to whether the applicant meets all the criteria in subsection 21(2) of the Act.

   CONCLUSION

5. On the basis of all of the factors above, I find that the applicant satisfies the requirement in paragraph 21(2)(g) of the Act because she is likely to maintain a close and continuing association with Australia if her application for Australian citizenship is approved.

   DECISION

6. The decision under review made by a delegate of the Minister on 7 March 2018 is set aside and, in substitution, the Tribunal decides that the applicant satisfies the requirement in paragraph 21(2)(g) of the Act. The Tribunal remits the matter to the Minister for reconsideration in accordance with these reasons.

I certify that the preceding 46 (forty - six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 15 November 2018

Date(s) of hearing:	9 October 2018
Date final submissions received:	31 October 2018
Solicitors for the Applicant:	Wayne Parcell, Ernst & Young
Solicitors for the Respondent:	Mia Donald, Sparke Helmore Lawyers