Quilatan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 417
•8 March 2024
Quilatan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 417 (8 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/1067 and 2023/1074
Re:Myra Joy Quilatan and Alfonso Jess Fernando Quilatan
APPLICANTS
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:8 March 2024
Place:Perth
The Respondent’s decision dated 9 December 2022 is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the first-named Applicant satisfies s 21(2)(g) of the Australian Citizenship Act 2007 (Cth).
....[Sgd]............................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – s 21(2)(g) of the Australian Citizenship Act 2007 – refusal to approve the Applicant becoming an Australian citizen – delegate not satisfied that first-named applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continued association – second-named applicant (child under 16) applied for citizenship on same application – meaning of “likely to reside” – spouse of Australian citizen – property and bank accounts in Australia – no temporal limitation to a finding that an applicant is likely to reside in Australia – satisfied that applicant intends to reside in Australia – decision set aside and matter remitted with direction that first-named applicant satisfies s 21(2)(g) of the Act.
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 3, 6(1)(a), 21(2), 21(5), 21(2)(g), 21(5)(a), 21(5)(b), 24, 24(2)
Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 29(7), 37
Family Law Act 1975 (Cth)
CASES
Anjum and Minister for Home Affairs [2019] AATA 2510
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Hamshari and Minister for Immigration and Border Protection [2017] AATA 2160
Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Kwun Kiu Lo and Minister for Immigration and Border Protection [2014] AATA 736
Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Sapronov and Minister for Immigration and Citizenship [2011] AATA 126
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3215
SECONDARY MATERIALS
CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
CPI 4 - Australian Citizenship by Conferral – Person under 18
REASONS FOR DECISION
Deputy President Boyle
8 March 2024
THE APPLICATION
The Applicants seek review of related decisions made by a delegate of the Respondent (the Minister) on 9 December 2022 to refuse their applications to become Australian citizens by conferral.[1]
[1] R1/315.
Separate applications for review were made by each of the Applicants. By order made on 1 June 2023 the applications were joined and were thereafter programmed and heard together.
The delegate refused the application for citizenship of the first-named Applicant (Myra) on the basis that she did not satisfy s 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (the Act), as the delegate was not satisfied that she was likely to reside in or continue to reside in Australia, or to maintain a close and continuing association with Australia. As Myra’s application was refused, the application of her son, the second-named Applicant (Alfonso) was assessed against the policy guidelines for children aged 15 years and under applying in their own right. The delegate exercised the discretion under s 24(2) of the Act to refuse to approve Alfonso’s citizenship application.
BACKGROUND
The following background facts are largely taken from the Minister’s Statement of Facts, Issues and Contentions dated 10 August 2023 (Minister’s SFIC). The facts are not disputed.
Myra is a 48-year-old citizen of the United States (US). She first arrived in Australia on 20 August 2009 as the holder of an Electronic Travel Authority (subclass 976) visa and was granted a Resident Return (subclass 155) visa on 20 June 2018, and on 27 June 2023 a subsequent Resident Return visa.
On 14 June 2017, Myra lodged an application for conferral of Australian citizenship.[2] Alfonso, as Myra’s son, was listed as a secondary applicant in that application.
[2] R1/28-65.
Alfonso is a 20-year-old citizen of the US. He first arrived in Australia on 25 July 2010, and was granted a Resident Return (subclass 155) visa on 20 June 2018. Like Myra, he was granted a subsequent Resident Return visa on 27 June 2023.
By decision dated 9 December 2022, the delegate of the Minister refused the Applicants’ applications for citizenship. The Applicants lodged an application for the review of the delegate’s decision with the Tribunal on 21 February 2023, which was outside the time prescribed by s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for lodgement of applications for review of such decisions.
By order made on 31 March 2023 pursuant to s 29(7) of the AAT Act,[3] the time for lodgement of the application for review was extended to 21 February 2023.
[3] R1/26.
THE DELEGATE’S DECISION
The following summary of the delegate’s decision as set out in the Decision Record is taken largely from the Minister’s SFIC.[4] Again, the summary was not disputed by the Applicants and, in my view, fairly sets out the delegate’s findings.
[4] R1/8-26.
The delegate gave substantial weight to the fact that Myra had an Australian citizen spouse, owned a residential property in Western Australia, and was eminently employable in Australia. However, the delegate was not satisfied that this evidence alone translated into an intention to maintain an ongoing close and continuing association with Australia, or that the Applicants intended to return to Australia anytime in the near future.
The delegate gave little weight to evidence of Myra’s financial interest in savings and residential property, as these did not require her to reside in Australia, and therefore did not, in and of themselves, demonstrate ongoing close and continuing ties with Australia.
The delegate noted Myra’s submissions that she was unable to return to Australia for an extended period due to COVID-19 restrictions and quarantine requirements. The delegate noted that Myra had returned to Australia on 16 July 2022, departing two weeks later on 31 July 2022, and had not returned to Australia since. The delegate acknowledged that the pandemic imposed severe travelling restrictions, however, also noted that a number of permanent residents, citizens and their families returned to Australia during this period.
The delegate placed significant weight on the fact that Myra’s spouse is an Australian citizen, however, was unable to be satisfied of a close and continuing association on this evidence alone.
The delegate noted that Myra had provided no evidence of an end date to her employment in the US, therefore her prospects of returning to Australia to continue her education and further employment was not guaranteed. The delegate was not satisfied that would occur in the foreseeable future and placed minimal weight on this claim.
The delegate gave weight to the fact that Myra had acquired employment in the US, and that her Australian citizen spouse had acquired a residence permit/visa in the US as an intention to reside outside Australia for the foreseeable future.
As Myra had not provided a definitive return date to Australia, the delegate was not satisfied this would occur in the foreseeable future and placed minimal weight on Myra’s claim that she wished to move back to Australia.
The delegate noted that from the date of lodgement, Myra had spent 1,591 days outside of Australia, and gave her recent movement history considerable weight in the assessment of her close and continuing association with Australia. Consequently, the delegate was not satisfied that Myra met the requirements in s 21(2)(g) of the Act.
In relation to Alfonso, the delegate was satisfied that he met the criteria in ss 21(5)(a) and (b) of the Act. However, the delegate went on to consider Alfonso’s application against the policy guidelines for children aged 15 years and under applying in their own right in circumstances where his mother had been refused citizenship.
The delegate found that Alfonso was not covered by any of the policy guidelines that supported the grant of citizenship, namely that the child was living in Australia with a responsible parent and that parent had consented to the application. Like his mother, Alfonso had been absent from Australia for well over 1,500 days since the date his citizenship application was lodged. The delegate considered whether any refusal of the application would not be in Alfonso’s best interests and found that because he was a permanent resident, any refusal would not affect his right to stay in Australia, access to services and the protection of Australian laws or separate him from his mother.
Consequently, the delegate refused to approve Alfonso becoming an Australian citizen on a discretionary basis under s 24(2) of the Act.
THE LEGISLATIVE FRAMEWORK
The Preamble to the Act states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21(2) of the Act provides that:
(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
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; 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; and
(h) is of good character at the time of the Minister's decision on the application.
Section 21(5) of the Act relevantly provides:
(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;
Section 24 of the Act relevantly provides:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
THE ISSUES
Both the Applicants’ SFIC and the Minister’s SFIC identified the issue in relation to Myra as being whether she satisfies s 21(2)(g) of the Act. That is, whether I should be satisfied that Myra is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application for citizenship were to be approved. I agree that that is the issue for determination in relation to Myra.
The Applicants’ SFIC identified the issue in relation to Alfonso as being whether he is covered by any of the relevant policy considerations, such that his application should not have been refused under section 24(2) of the Act. While the Minister’s SFIC also identified that issue, it also correctly noted that Alfonso’s application will be affected by the result of Myra’s application for citizenship in that if I am satisfied that Myra satisfies the requirements of s 21(2) of the Act, in particular s 21(2)(g) of the Act, then Alfonso’s application will also be successful. I agree that the issues for determination in relation to Alfonso are as identified by the Minister.
THE HEARING AND THE EVIDENCE
The application was heard on 24 October 2023. The Applicants were represented by Ms S Manera and the Minister was represented by Mr J Papalia. Both Applicants gave evidence at the hearing and the Applicants also called Erica Dawn Smith, Myra’s spouse. The Applicants and Ms Smith had also provided witness statements. A bundle of documents filed by the Applicants was admitted into evidence as A1. These included letters from Ms Smith, Professor Shail Mehta, Rhiannon Amy Marie Smith (Myra’s niece by marriage) and Ray Smith, Myra’s brother-in-law. These documents also included a land rates notice for a West Australian property addressed to Myra and Ms Smith, a lease agreement in respect of that property identifying Myra as “Lessor 2”, bank statements from Bankwest on accounts in the name of Myra and Myra and Ms Smith and a GESB Superannuation member statement for a superannuation fund in Myra’s name. The documents filed by the Minister pursuant to s 37 of the AAT Act were admitted into evidence as R1.
THE PARTIES’ CONTENTIONS
The Applicants
The Applicants’ SFIC made contentions to the following effect in relation to Myra:
(a)According to the Citizenship policy, 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; and
·evidence of income tax payment in Australia.
(b)Myra migrated to Australia as the partner (now wife) of Ms Smith, who is an Australian citizen by birth. They have been in a relationship since September 2013 and will be celebrating their 10-year anniversary shortly. They married on 1 October 2019 in the US.
(c)Myra has been obliged to reside in the US to support Ms Smith’s US fiancée visa application and subsequent US Green Card and citizenship applications.
(d)Myra temporarily moved to the US for Ms Smith’s to obtain a US fiancée visa as they intended to marry in the US. Myra was prevented from residing in Australia as she was required to obtain employment in the US to sponsor her partner for a US fiancée visa.
(e)Ms Smith was granted a US fiancée visa in 2019 and was granted a Green Card (US permanent residence) in April 2022.
(f)Currently Myra and her partner are residing in the US so that the Ms Smith can obtain US citizenship as soon as she meets the US citizenship residence requirement. Ms Smith must reside continuously within the US from the date of filing her application until the date she is naturalised as a US citizen. Without US citizenship, it may be difficult for Ms Smith to travel regularly and easily between Australia and the US.
(g)Whilst Myra and her partner have recently been prevented from residing in Australia due to her partner’s US migration process, she and her partner intend to return to Australia once her partner’s US citizenship is approved. Their intention is to spend their time travelling and working between Australia and the US. Within the next five years, they intend to spend approximately half their time in Australia and half their time in the US. They hope to retire in Australia.
(h)Myra maintains several Australian bank accounts with Bankwest. She also maintains an Australian superannuation account with GESB Superannuation. As at 30 June 2022, her superannuation balance was $79,655. She has Death and Total and Permanent Disability insurance cover in Australia.
(i)Myra and Ms Smith own a house in Western Australia. This house is currently being rented out at a rate of $550 per week to an Australian family of five at a reduced rental. Myra is thereby assisting with the significant housing crisis in Australia by putting her house in the rental market at an affordable price.
(j)When visiting Australia, the Myra, Alfonso and Ms Smith stay in the granny flat at the property.
(k)Myra last paid taxes in Australia for the financial year ended 30 June 2022.
(l)The Applicant’s cite Sapronov and Minister for Immigration and Citizenship.[5]
(m)Myra’s financial ties to Australia (including maintaining Australian bank accounts, paying taxes and owning and renting out a property in Australia) constitute strong evidence that she maintains a close and continuing association with Australia.
(n)Over the past four years, Myra has intended to return to Australia to have her citizenship application approved. However, due to the COVID-19 pandemic, Australia’s closed borders and the significant cost of flights, she could not travel to Australia. It was only after Western Australia’s borders re-opened in March 2022 that Myra was able to travel to Australia. On 16 July 2022 she returned to Australia with her son to visit friends and family.
(o)Myra continues to maintain an intention to spend her life living between Australia and the US, once her wife’s US citizenship application is approved.
(p)Myra has maintained friendships with Australian citizens including her neighbours, colleagues and her partner’s family members in Australia. She has also had Australian friends and family visit her in the US, including her brother-in-law and his family in 2019, and her niece (by marriage) Rhiannon Smith visiting in September 2023.
(q)In 2018 and 2019, Myra had various friends from Australia visit her in the US. Myra and her partner intended to host more friends in 2020, but they were prevented from doing so due to the Covid-19 pandemic and they had planned more trips to Australia in 2019 but were prevented from travelling due to two deaths in the family.
(r)Myra completed her Master of Philosophy degree with the University of Notre Dame, Fremantle campus, in 2020. She intends to commence a PhD with the University of Notre Dame upon her return to Australia. She maintains communication with her former academic supervisor, Professor Shail Mehta.
[5] [2011] AATA 126.
The Applicants’ SFIC made the following contentions in relation to Alfonso:
(a)Alfonso satisfies the policy considerations that applied at the time his application for Australian citizenship by conferral was made on 14 June 2017.
(b)At the time of his application, Alfonso was 14 years old. He was living with a responsible parent, namely his stepmother Ms Smith, who is an Australian citizen. Ms Smith is a ‘responsible parent’ under s 6(1)(a) of the Act.
(c)Child includes a stepchild (s 3 of the Act). Alfonso is Ms Smith’s stepchild. Ms Smith has adopted a parental role in his life. It is conceded that Ms Smith has never had parental responsibility of Alfonso under the Family Law Act 1975 (Cth), however, this does not prevent Ms Smith from meeting the definition of ‘responsible parent’.
(d)At the time of application on 14 June 2017, Alfonso was living with an Australian citizen, namely his stepmother Ms Smith, and Ms Smith consented to the application.
The Minister
The Minister’s SFIC made contentions to the following effect:
(a)The Revised Citizenship Policy Instructions (CPIs) provide guidance relating to applications for Australian citizenship. The Minister cites CPI 11, and the non-exhaustive list of factors set out therein, that may indicate whether a person intends to reside in a particular place or will maintain a close and continuing association with that place.
(b)CPI 11 states that it is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians.
(c)CPI 4 at 7 set outs a number of factors which are relevant in making a decision under s 24(2) of the Act. The stated intent of this policy is that the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved.
(d)Neither Applicant intends to reside in Australia in the immediately foreseeable future and neither has a close and continuing association with Australia.
(e)The Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2);[6] and Minister for Home Affairs v G.[7]
[6] [1979] AATA 179; (1979) 2 ALD 634 at [640].
[7] [2019] FCAFC 79; (2019) 266 FCR 569 at [64]-[67] at [65].
(f)For Myra to meet the first limb of s 21(2)(g), having regard to the ordinary meanings of ‘likely’ and ‘reside’, the Tribunal must be satisfied that, if her application for citizenship were granted, she would probably live in Australia permanently or for a considerable period of time.
(g)The Minister cites Ho and Minister for Immigration and Ethnic Affairs,[8] and Saba and Minister for Immigration and Border Protection as guidance on the meaning of the term ‘likely to reside in Australia’.[9]
[8] (1994) 34 ALD 664 at [31].
[9] [2014] AATA 579 at [50].
(h)The evidence does not persuasively show a reasonable likelihood of Myra residing in Australia citing:
(i)Myra’s movement history shows regular and frequent travel out of Australia since her arrival in 2009;
(ii)Most recently, she departed Australia on 30 July 2019 and remained in the US, only returning to Australia on 16 July 2022 for a period of 16 days. The Covid – 19 pandemic did not make travel impossible in this period, particularly form 2022 onwards.
(i)Myra is presently residing in the US to facilitate her partner being granted US citizenship. She says that she intends returning to Australia within the next five years. She has not provided a definitive timeframe for her residing in Australia.
(j)Myra has not shown that she currently maintains a close and continuing association with Australia, or relatedly, that she is likely to maintain a close and continuing association with Australia into the future. The evidence relied on by Myra is not sufficient:
(i)Bank accounts in Australia can be maintained from overseas.
(ii)She is currently employed in the US and has not provided evidence of future employment in Australia. While she says that it is her intention to complete a PhD in Australia, no evidence has been provided to support that claim.
(iii)It is well established that having a close and continuing relationship with family is not the same thing as having a close and continuing relationship with Australia.[10]
(iv)Little weight should be given to Myra having an Australian citizen spouse in circumstances where they have been residing in the US since 2018 for the stated purpose of the spouse obtaining permanent residence and then citizenship in the US.
(k)In relation to Alfonso, the Minister contended that the delegate’s decision was correct (see [20] above).
[10] Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118.
CONSIDERATION
As noted by the Minister, I am bound to take into account any relevant statement of governmental policy (Drake and Minister for Home Affairs v G: see [31] above). The relevant policy in this case is the CPIs.
CPI 11 is titled “Assessing the likelihood to reside or continue to reside in or maintain a close and continuing association with Australia”. Relevantly, CPI 11 makes the following statements relative to assessment of whether an applicant intends to reside or continue to reside in Australia:
(a)The words should be given their ordinary meaning. In the context of the Act, “likely” “means it is probable rather than possible that the person will reside in Australia” and “reside” means “to dwell permanently or for a considerable time” (para 3.2).
(b)Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include:
(i)Whether they are currently renting a home
(ii)Whether they have purchased a property in their country of residence
(iii)Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country.
(c)A person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;
(d)An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period.
34.It is not disputed by Myra that she has spent the majority of the last several years living in the US. As noted by the Minister, at the time of the Minister’s SFIC most recently Myra had departed Australia on 30 July 2019 and remained in the US, only returning to Australia on 16 July 2022 for a period of 16 days. She had returned most recently to attend the hearing of this application.
In her statement dated 11 July 2023 (included in A1), Myra explained that the reasons that she returned to the US in 2018 were, firstly to establish her son, Alfonso, in school “in order to prepare him for college in the US”.[11] The second reason given for her return to the US was to marry per partner (Ms Smith) “so that she could obtain her US Citizenship” as this “…would allow us full rights to each other’s properties and be able to move freely to visit our families in both countries.” Her evidence in that statement was that “(m)y wife and I live in our jointly owned house in Oakland California with our dog Bella. My son Alfonso lives with us when he is not away at college”.
[11] A1/16 at para 6.
In relation to her future plans relating to Australia, Myra’s statement of 21 July 2023 said that she planned “…to pursue my Doctor in Philosophy degree in order to become an associate professor and teach at the University of Notre Dame upon our return to Australia”.
Myra’s evidence at the hearing was to the same effect as her written statement. Her evidence was that she and Ms Smith intended returning to Australia when Ms Smith obtains US citizenship. Asked by her counsel when that was likely to occur, Myra’s evidence was Ms Smith would “…be eligible to apply on the 4th of the 4th in 2025, or 90 days prior to that date”.[12] She expressed concern at the uncertainty as to the future status of her marriage caused by recent political developments in the US. She said that:[13]
… we are fully aware that our rights as a couple is not 100 per cent guaranteed at all times. It depends on the political climate; and right now, the political stance in the – in the US is very fragile. And I know that, you know, there's – there can be a lot of discrimination and prejudice about the LGBTQ family. And so I feel that, you know, like, having citizenship in both countries will actually solidify with whatever happens – if there's a pandemic, we could stay together wherever we're at instead of having a barrier because one of us is not a citizen of that country.
[12] Transcript at 13.
[13] Ibid.
Myra’s evidence at the hearing was that she thought that Ms Smith would obtain US citizenship in “about 2027”.[14]
[14] Transcript at 14.
Ms Manera asked Myra why she would “not simply reapply for Australian citizenship in the future”. Myra’s response was:
Look, I know I could, but on the basis of, you know, like, what we set our heart when we first came here, and this is something that our family has always wanted. And because, again, of the pandemic, like you just never really know what's going to happen in the future. I could be sick. You know, working in the healthcare industry, you could – you could – anything can 10 happen. So I feel like this is something that we started when my son was 14 years old. He's 20 years old now. He looks like a man. He's not a – he's not a child anymore. And I feel like we don't want to create any more (indistinct) because it has been so stressful. Just going back and forth, financially it's been hard. And just, you know, with the discrimination and prejudice about being in that type of community is just – is just hard. So yes, I could, but I feel like we did all the right things in the beginning. Yes, it might be our fault that we didn't, like, stay longer and waited, but I thought – we were just trying to secure our family's – you know, we just want to be together and be safe in that security.
Ms Smith’s statement dated 12 July 2023 explained the intent behind Myra wanting Australian citizenship as follows:
As Joy and I felt secured in our connection with Australia, we thought it would be important that I also get established in the USA, as Joy still has a lot of family and connections in the States. This need felt even more dire during the Pandemic as we both realized that in order for us to guarantee our equal rights as a married couple, we both need to have citizenship in each country so that there will be no additional hindrance should another emergency state arise, making it difficult for us to be together. We travelled back to Australia as soon as the borders were freely opened last March 2022.
Ms Smith’s evidence at the hearing was that it “…is our intention absolutely to spend some time in America”, but that it was her intention to retire in Australia.[15]
[15] Transcript at 24.
The concern raised by the Minister is that the Minister, and I, cannot be satisfied that if Myra were granted citizenship, she would probably live in Australia permanently or for a considerable period of time (see [31(f)] above). The Minister cited the following passage from the decision of DP McMahon in Ho:
It cannot mean “likely to take up residence in 18 months or 2 years time” or likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of citizenship or within a reasonable time thereafter.
The Minister also cited SM Taylor’s decision in Saba wherein the Senior Member found that “…the intention to which s 21(2)(g) of the 2007 Act refers is to one that is to be acted upon within a reasonable short time frame”.
I note that more recently some Tribunals have adopted a different approach to that taken in Ho. Deputy President Constance in Kwun Kiu Lo and Minister for Immigration and Border Protection,[16] disagreeing with approach taken in Ho, at [21] observed that the Act “does not place any temporal limitation upon a finding that an applicant is likely to reside in Australia”. Constance DP, while not placing any temporal test on the implementation of the applicant’s claimed intention to reside in Australia, found that, irrespective of the likely timing, the applicant’s plans to return to Australia to reside were conditional on, among other things, commercial conditions being suitable. Constance DP found that he could not be satisfied “that, at any time, it is likely that he will reside in Australia were his application to be granted”.
[16] [2014] AATA 736.
The approach taken by Constance DP in Kwun Kiu in not applying a temporal condition was followed by Senior Member Puplick in Anjum and Minister for Home Affairs.[17] At [54] Puplick SM found that the approach taken in Kwun Kiu to be “…more persuasive of the position which it should adopt. It agrees that were there to be a temporal requirement to be satisfied it would have been given legislative status”.
[17] [2019] AATA 2510.
Puplick SM referred to the decision in Hamshari and Minister for Immigration and Border Protection.[18] In that case the Tribunal accepted that the applicant had an intention to reside in Australia notwithstanding that such intention was conditional on getting a job in Australia. Looking at the decision in Hamshari, Puplick SM in Anjum found:
Taking into account the recent decisions of the Tribunal and the express wording of the subsection of the Act, the Tribunal is not persuaded to attach any element of temporality to the test of the Applicant’s intention to reside in Australia.
[18] [2017] AATA 2160.
In Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[19] Puplick SM further considered the competing approaches taken by various tribunals to the imposition of some temporal qualification to the intention to reside in Australia. At [45] he noted that:
This approach has been both followed in other cases,[20] and expressly disagreed with in others.[21]
[19] [2021] AATA 3215.
[20] Citing Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103; Gettings and Minister for Immigration and Border Protection [2014] AATA 357; Sie and Minister for Immigration and Border Protection [2014] AATA 60.
[21] Citing Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [49]; McCoy and Minister for Immigration and Border Protection [2014] AATA 771 at [41]).
At [48] of Zhang, Puplick SM found:
This Tribunal is persuaded of the logic and correctness of the decision in Rasiah where the Tribunal stated:
Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The Tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration and Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration and Border Protection and Sie v Minister for Immigration and Border Protection, that the intention must be “immediate or with some reasonable proximity”. If that were so, the phrase in the ACI’s would state “immediate or reasonably proximate intention to reside in Australia”.
(Footnote omitted)
I note that in Hamshari the applicant had relied, in part, on the increased ease with which he would be able to come and go if he were granted citizenship. A similar argument is raised in the present matter. That was dismissed by the tribunal as being a sufficient basis for granting citizenship at [44]:
Tribunal accepts the Respondent’s submission that the inconvenience, expense and ease of entering and exiting Australia with his family is not a sufficient basis for the grant of citizenship…
Similarly, I do not accept that the Applicants finding it easier to come and go from Australia if they were granted citizenship as being a relevant factor, either to the issue of whether the Applicants are likely to reside in Australia or, more generally, as to whether they are entitled to citizenship. It is obvious that an Australian citizen finds it easier to come into Australia that a non-citizen. That is nothing more than a statement of the obvious and would apply to every non-citizen. It is not a reason to grant someone citizenship.
In the end, however, the test is whether I am satisfied that the Applicants, or more particularly, Myra, “is likely to reside … in Australia or to maintain a close and continuing association with Australia if [she] were to be granted citizenship.” I am satisfied on the evidence, particularly that of Myra and Ms Smith that it is their intention to reside in Australia, if not in the next few years, certainly once Ms Smith has obtained US citizenship. I have no reason to disbelieve either Myra or Ms Smith in that regard. A number of the factors identified in CPI 11 as being indicators of whether a person intends to reside in a particular place are present (bank accounts, real property, educational links). Myra and Ms Smith have over an extended period made significant efforts for the Applicants to obtain Australian citizenship. That is consistent with their unequivocal evidence both written and oral at the hearing, that it is their intention to return to and live in, and in Ms Smith’s case, retire in Australia. It is also consistent with the statements of support provided by friends and professional and academic colleagues (see [28] above).
Both Myra and Ms Smith were honest and convincing witnesses. I have no reason to disbelieve their unequivocal written and oral evidence that it is their intention to return to and reside in Australia. I appreciate that the relevant consideration under s 21(2)(g) of the Act is whether Myra “is likely to reside” in Australia, rather that that just being her intention, however, in the present case I have no reason to doubt that that intention will be put into practice.
I agree with the approach taken by Deputy President Constance in Kwun Kiu and by Senior Member Puplick in Anjum and the other cases to which I have referred above, of not placing a temporal qualification on the non-citizen residing in Australia. That is not to say that the timing of the intended take-up or continuation of residence is not relevant; it is something to be taken into account in assessing the likelihood of that occurring as are other potential conditions on or impediments to the intention to take up residence. Those are all factors that must be taken into account in the exercise of considering whether it “is likely” that the non-citizen will reside or continue to reside in Australia. Obviously, the longer the period before the intended residence is to commence and the more conditions that must be satisfied or contingencies that must be addressed before that happens, the harder it is to be satisfied that it “is likely” (as that term is defined) that the non-citizen will reside in Australia.
In the present case, it might be a number of years before Myra and Ms Smith take up residence in Australia. Myra’s estimate was 2027 (see [38] above). I also accept that circumstances might change between now and that time which might impact Myra’s ability or desire to reside in Australia. That, however, is speculation and while the effluxion of time makes any prediction less certain, I am mindful of the direction provided by PCI 11 that, in the context of the Act, likely means it is probable rather than possible that the person will reside in Australia (see [33(a)] above), Based on the evidence before me, I am satisfied that it is at least probable that Myra will reside in Australia, most likely in the next three to four years.
Myra
I am, accordingly, satisfied that Myra satisfies s 21(2)(g) of the Act.
Alfonso
As noted at [27] above, the Minister’s SFIC correctly noted that Alfonso’s application will be affected by the result of Myra’s application for citizenship in that, if I am satisfied that Myra satisfies the requirements of s 21(2) of the Act, in particular s 21(2)(g) of the Act, then Alfonso’s application should also be successful.
DECISION
For the above reasons, I set aside the Minister’s delegate’s decision dated 9 December 2022 and remit the matters for reconsideration with the direction that the first-named Applicant satisfies s 21(2)(g) of the Act.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[Sgd].........................
Associate
Dated: 8 March 2024
Date(s) of hearing:
24 October 2023
Solicitors for the Applicant:
Ms Sophie Manera
Solicitors for the Respondent:
Mr Jon Papalia
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