Rasiah and Minister for Immigration and Border Protection (Citizenship)

Case

[2015] AATA 630

25 August 2015


Rasiah and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 630 (25 August 2015)

Division

GENERAL DIVISION

File Number(s)

2014/6065

Re

Renata Rasiah

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal

Ms S Taglieri, Member

Date 25 August 2015  

Place

Hobart

The reviewable decision is set aside and the matter remitted to the Respondent to give effect to this decision.

........................................................................

Ms S Taglieri, Member

CATCHWORDS

Citizenship – application by spouse of Australian Citizen; failure to meet general residency requirements; whether discretion should be exercised to treat periods of absence from Australia as being present in Australia; preferable to exercise discretion and grant Citizenship.

LEGISLATION

Australian Citizenship Act 2007 ("the Act") sections 21(2)(c), 22(1), 22(9)

CASES

Kumar v Minister for Immigration and Border Protection (2015) FCA 446

Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Taher v Minister for Immigration and Border Protection (2013) AATA 917
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Minister for Immigration and Border Protection v Tran (2015) FCA 546
McCoy v Minister for Immigration and Border Protection (2014) AATA 771
Wong v Minister for Immigration and Border Protection (2013) AATA 710
Sie v Minister for Immigration and Border Protection (2014) AATA 60

Sabumei v Minister for Immigration and Border Protection (2014) AATA 648

SECONDARY MATERIALS

Australian Citizenship Instructions (ACI's)

REASONS FOR DECISION

Ms S Taglieri, Member

  1. This application relates to review of a decision dated 10 November 2014,[1] to refuse citizenship to Mrs Rasiah.

    [1] T2 pages 7 to 15 of the T Documents in evidence

  2. The Respondent refused to grant citizenship to Mrs Rasiah on the grounds that Mrs Rasiah did not satisfy the residence requirements in section 21(2)(c) of the Australian Citizenship Act 2007 (“the Act”).

  3. Mrs Rasiah agreed that she did not meet the requirements of section 21(2)(c), but argued that the Respondent ought to exercise the discretion available in section 22(9) of the Act, and treat her absences from Australia in the periods referred to in section 22(1), as periods in which she was present in Australia, so to meet the general residence requirement and grant her citizenship.

  4. In view of the above, the only issue for determination by the Tribunal is whether it was correct or preferable for the Respondent to exercise the discretion in section 22(9) of the Act.

    THE NATURE OF THE DISCRETION AND THE CONTENTIONS

  5. Section 22(9) of the Act allows the Respondent, or his or her delegate, to treat a period as one in which the person was present in Australia as a permanent resident if four pre-conditions are satisfied. On the facts in this case it was common ground that all but one of these was satisfied.

  6. The Respondent found that the fourth condition required Mrs Rasiah to have a close and continuing association with Australia during the relevant period. Mrs Rasiah contended otherwise.

  7. Regardless of the dispute referred to in paragraph 6, the Respondent also argued that the correct legal approach to section 22(9) of the Act involved two stages. First, for the decision maker to determine whether the conditions in subsection 22(9) were met. Secondly, if they were, to determine whether the discretion available should be favourably exercised.

  8. The Respondent’s contention in paragraph 7 is plainly correct, as is apparent from the authorities of Kumar v Minister for Immigration and Border Protection[2], followed in Minister for Immigration and Border Protection v Tran.[3] 

    [2] [2015] FCA 446 at paragraphs 23 and 24 per Edmonds J

    [3] [2015] FCA 546 at paragraph 23 per Jagot J

  9. The Respondent relied upon Ho v Minister for Immigration and Ethnic Affairs[4], and argued that even if all preconditions in section 22(9) were satisfied, the discretion ought not be exercised favourably to Mrs Rasiah because her own evidence was that she would not be residing in Australia sooner than 2019.

    [4] (1994) 34 ALD 664 at paragraphs 30 and 31 and Taher v Minister for Immigration and Border Protection [2013] AATA 917 at paragraphs 35 and 36

  10. Counsel for Mrs Rasiah, did not challenge the proposition that there were two stages required to correctly apply section 22(9), but argued that the discretion ought to be favourably exercised upon the second stage regardless because:

    (a)there were definite plans to return to live in Australia when Mr Rasiah completed his work in Germany which would be in 2019; and

    (b)in Minister for Immigration and Ethnic Affairs v Tran, the Federal Court did not overturn the decision of Senior Member Ettinger and the facts had been that Ms Tran had never lived in Australia.

  11. Although not expressed directly, the Tribunal understood Counsel to be submitting that the principles expressed in Ho v Minister for Immigration & Ethnic Affairs, about lack of immediacy of intent to live in Australia, were not determinative as to whether the discretion should be exercised, if satisfied a person had a close and continuing association with Australia.

  12. The Respondent referred to and relied upon the Australian Citizenship Instructions[5] (ACI’s) and submitted that they were a guide to assist in determining whether a person has a close and continuing association with Australia.[6]  That is also undoubtedly correct, and as conceded by the Respondent, they are not exhaustive or solely conclusive of the issue.[7]

    [5] T4 of the T documents

    [6] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640

    [7] Per Edmonds J in Kumar v Minister for Immigration and Border Protection at paragraph 20

    THE EVIDENCE ABOUT CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA

  13. The evidence received from Mrs Rasiah, her husband and mother-in-law was set out in statements received in evidence and oral evidence at the hearing. A friend of the Rasiahs’, Mrs Wendy Shepherd also gave oral evidence and her written statement was also received.[8]

    [8] Exhibit A20

  14. The substance of the evidence before the Tribunal was as follows:

    (a)Mrs Rasiah first came to Australia in late 1999/2000 on a tourist Visa. During this time, she studied an English course and lived with her mother-in-law. During part of this time, Mr Rasiah was undertaking Naval Reserve service. It appears that in total Mrs Rasiah was in Australia for six months.

    (b)Mrs Rasiah owns land at Lyndon Road, jointly with her husband. This was acquired in 2002.

    (c)Rosemary and lavender plants are grown on the land at Lyndon Road. It is cropped for essential oil production, intended for sale overseas and locally. The plants and property are maintained by Mr and Mrs Marchant. There are also plans to build the family home on this property and relevant approvals are in the process of being sought.

    (d)There is a property at Dover, which is owned by her husband and others. They grow hazelnut trees on the land, which are predominantly cared for by Mr and Mrs Shepherd.  The parties intend that the hazelnuts be sold or made into liqueur or other edible products. Mr and Mrs Rasiah provide finance towards the establishment of the hazelnut crop and the running of the property. Mrs Rasiah and Mrs Shepherd have had discussions about also planting saffron and garlic here. Mrs Rasiah has made hazelnut liqueur from the hazelnut crop on one occasion.

    (e)Mr Rasiah had a property in Sandy Bay but that was sold last year. They lived there for a short time in 2003, then Mrs Rasiah moved to her mother-in-law’s home at Claremont until the family moved to Germany in October/November 2004.

    (f)Mr Rasiah has a one third interest in the property at Claremont which is permanently lived in by Mrs Rasiah Snr. This is the property at which the family’s belongings are kept and where Mr and Mrs Rasiah and their children stay when visiting Australia.

    (g)Mr and Mrs Rasiah have a business known as FISHX Pty Ltd. It owns fishing licences which are leased to others for use. The Rasiahs intend to run a fresh fish export business with the catch from the licenses, but this is not occurring yet. The business is intended to be an online business and Mrs Rasiah is developing the website for it, including devising recipes, listing condiments etc.  Mrs Rasiah works on this project outside of her commitments with the home and children, in Germany.  The website is not yet up and running, but is intended to be in October 2015. Mrs Rasiah agreed the business made a small profit in 2014 and a small loss in 2015. There had been no sales from the export business as it was still in the concept stage. The catch from the licenses have been sold by the fisherman to whom the licenses are leased.

    (h)Regarding the essential oils produced from the crops at Lyndon Road, Mrs Rasiah said that they had obtained a high quality and small volume of oil, which she was using to develop beauty products, such as facial scrubs, lip balms and massage oils. Mrs Rasiah said this was still in the development and trial phase and she had not sold any products.  This activity is conducted in Germany from oils taken there by her from the Lyndon Road crops.

    (i)The Rasiah family have usually lived in Germany since 2008. The two children attend school there full time. Mr Rasiah is a Naval Architect and works for a German company in project management of ship building. It is a high demand role and Mrs Rasiah’s functions are as the homemaker and to assist her husband do what he does and involves a lot of travel.

    (j)Mrs Rasiah and her family have purchased various property (eg. Trailer, furniture, toys, plant & equipment, cars).

  15. When cross-examined Mrs Rasiah said she is a Brazilian citizen and holds a Brazilian passport. She also obtained a Portuguese passport due to her grandparents being Portuguese as it would enable her to live and work in Europe, which Mrs Rasiah had done for some time prior to meeting Mr Rasiah.

  16. Sometime after meeting Mr Rasiah, Mrs Rasiah commenced living with him and they married in 2001. They lived together overseas wherever Mr Rasiah worked, until coming to Australia in about April 2003. At this time Mrs Rasiah was seven months pregnant with their first child. They first rented a house, then moved into the Sandy Bay flat owned by her husband. After her daughter, Gabriella was born on 5 June 2003 Mrs Rasiah had obtained a job as a dental assistant, but then did not take it up because her husband found work and Mrs Rasiah had to stay home to care for their child, who was very young.

  17. In September 2004 Mrs Rasiah went to live with Mrs Rasiah Snr for about one month with Gabriella. Around this time Mr Rasiah’s work required him to be based in Bristol and in November 2004 Mrs Rasiah and Gabriella then moved there.

  18. They lived in Bristol in the UK for four years, until 2008.  During this time, Mrs Rasiah came to Australia at Christmas 2005 and then March 2007, when Mrs Rasiah returned to have their second child, Isabella, born 5 May 2007. While here, Mrs Rasiah again stayed with Mrs Rasiah Snr at Claremont and she returned to Bristol with the children by the end of July 2007.

  19. In 2008, her husband’s work was transferred to Hamburg and they have lived there since. Mr Rasiah’s employer pays for one return airfare per year for the family.

  20. Mrs Rasiah could not recall if she was absent from Australia between 2007 and 2010, but agreed that she had visited Brazil in that time to visit her family and have Christmas with them.

  21. Mrs Rasiah agreed that she had applied for Citizenship to overcome difficulties she has been told she will have about extending her permanent residency.  When asked if there were other reasons, Mrs Rasiah said, her kids were born here, her husband is Australian and Mrs Rasiah has family and land here. Mrs Rasiah said she wants to live here with her family.

  22. Evidence was given that Mrs Rasiah remained in contact with family and friends in Australia, either by phone or email when not present in Australia.

  23. Mrs Rasiah admitted she could apply for other kinds of Visa permitting her to stay in Australia, but she was fearful that they would be rejected, as they had been in the past.

  24. It was admitted that her husband’s work, and in turn the family, is likely to be kept in Germany until 2019/2020. Despite this Mrs Rasiah said Australia is home, and that is where she and her family will return in 2019/2020.

  25. Mr Rasiah gave evidence in detail about the nature of his work and the ship building projects he is engaged in. He was adamant that the family would return to Australia to live in 2019/2020. He said that he was confident the Australian Government would facilitate policy that meant ship building projects for the Australian Navy were undertaken in Australia and that his qualifications, specialised knowledge and experience would be invaluable.

  26. The impression sought to be given was that he would command the terms upon which he would be engaged in such projects in Australia and that they were likely to come to fruition after 2019. This was the effect of all the documents tendered as part of Mr Rasiah’s evidence, comprising of documents from the Senate Economics Reference Committee[9],  Newspaper article[10], employment records[11], Navy Officer performance report[12] and reference letter from Lance Marshall.[13]

    DID MRS RASIAH HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA IN THE FOUR YEARS PRIOR TO APPLYING FOR CITIZENSHIP?

    [9]  Exhibit A23

    [10] Exhibit A24

    [11] Exhibit A28

    [12] Exhibit A27

    [13] Exhibit A29

  27. In addressing this issue, the Tribunal ought to consider, but not be confined to, the indicia contained in the ACI’s.

  28. On the evidence received, I am satisfied that Mrs Rasiah migrated to Australia in 2003 and established a home here, albeit only for about eighteen months. The fact that the home address changed from a rental property to the unit in Sandy Bay and then briefly the property at Claremont, does not detract from the fact that Mrs Rasiah and her husband had returned to Australia to make a home for themselves and their expected child, Gabriella.

  29. It appears that the only reason Mrs Rasiah and her daughter left Australia in late 2004, was to be with Mr Rasiah, who had found employment in the UK.

  30. Both Gabriella and Isabella, the children of Mr and Mrs Rasiah are Australian Citizens.

  31. As Mr Rasiah is an Australian Citizen, Mrs Rasiah clearly has a long term relationship with an Australian citizen spouse. Indeed she has preserved such long term relationship by following Mr Rasiah to the UK and Germany, to keep the family unit together.

  32. Mrs Rasiah does not have any of her biological family in Australia, but is clearly fond of her “in-laws”. From Mrs Rasiah Snr’s evidence, it seems the feelings are mutual.

  33. There is evidence of fairly regular but not frequent return visits to Australia. After 2004, when Mrs Rasiah gave up the home in Australia to be with Mr Rasiah, she returned to visit and stay in Australia as follows:

    December 2005 -       3 weeks

    October 2006    -       3 weeks
    March 2007        -       almost 3 months (birth of Isabella)
    December 2010 -       4 weeks
    October 2011    -       3 weeks
    December 2013 -       3 weeks

    December 2014 -       about 3 weeks

  34. Although Mrs Rasiah did not visit Australia at all in 2008, 2009 and 2012, in overall context, the return visits were annual, except for these three years. In 2008 as the family had a new child, not surprisingly Mrs Rasiah had gone to Brazil so that part of her family could meet her.

  35. There is no specific evidence about why Mrs Rasiah went to Brazil in 2009 or if she did in 2012. Despite this, since 2004 there have been a number of return visits to Australia.

  36. During the stays in Australia referred to in paragraph 32, it could not be said that Mrs Rasiah resided in Australia, rather she was visiting. As such, the Tribunal is not satisfied that Mrs Rasiah has had regular periods of residence in Australia in the relevant four years before her application for Citizenship dated 30 June 2014.[14]

    [14] T26 at page 70 onward of the T Documents

  37. The Tribunal is persuaded on the evidence of Mrs Rasiah and her husband that there is an intention to reside in Australia in the future. It accepts their evidence that eventually they wish to resettle in Australia and that their present intention is to do so in 2019 or 2020.

  38. Despite this, there are no definite plans about returning to live in Australia.  Both Mr and Mrs Rasiah admitted they had not considered the age of their eldest child and the fact that she would be completing Secondary education in 2019.

  39. The tenor of their evidence was that because Mr Rasiah’s work in Germany would probably cease in 2019, they would invariably return to Australia then. This was in stark contrast with the history of Mr Rasiah’s work and his decisions about employment in the past, which have been primarily determined on the basis of his career and financial considerations.[15]

    [15] Exhibit A 22 page 6 onwards

  40. The Tribunal is convinced on the evidence before it that when and if they return to Australia, will be entirely dependent on Mr Rasiah’s employment and financial decisions made around that. He is the sole “bread winner” for the family and committed and passionate about his career progression in an elite field of ship building.

  41. It is apparent to the Tribunal from Mr Rasiah’s oral and written evidence,[16] that in his chosen field and profession, opportunity in Australia is less and also dependant on future Government policy. In the past, he has chosen to take work opportunities that permitted his career progression and provided good income.  There is no reason in the Tribunal’s view, why this would alter in the future and it is not persuaded that there is a high chance or indeed a probability of Mr Rasiah taking employment in Australia in 2020 or earlier.

    [16] Exhibit A22, pages 6 to 19

  42. In turn, the Tribunal is not persuaded that Mrs Rasiah would live separately from him and take up residence in Australia without him.

  43. There is ample evidence that Mrs Rasiah owns property and other belongings in Australia and this weighs in her favour when considering the nature of her association with Australia.

  44. There is no evidence of personal income tax paid by Mrs Rasiah, but it appears that the company in which she has an interest, FISHX Pty Ltd may pay company tax.  It is difficult to see this as a factor weighing in her favour.

  45. There is no evidence of Mrs Rasiah being involved in Australian community based activities or organisations.

  46. The ACI’s direct that more weight is to be given to the indicia addressed above, where the Applicant has been in Australia for 365 days in the last four years. This is not the case for Mrs Rasiah. It follows that they have less weight when measured against the requirement of presence in Australia in the four year period and, whether the discretion should be exercised favourably, even if the Tribunal is satisfied of a close and continuing relationship with Australia.

    EVALUATION AND CONCLUSION

  47. This case presents a very difficult conundrum. On the one hand, Mrs Rasiah presents as genuine, well intentioned and committed to her Australian family and having a life in Australia.  On the other hand, she has spent very little time in Australia in the relevant period prior to applying for citizenship and frankly admits no immediate return to live here.

  48. The facts found however, demonstrate far less than 365 days in Australia in the last four years prior to lodging her application in June 2014.  The clear reason for her absence is that she has chosen to keep the family unit together and live wherever Mr Rasiah pursues his career and works.

  49. Of the eleven indicia in the ACI’s, based on the above findings, the Tribunal is satisfied that seven weigh in favour of Mrs Rasiah having a close and continuing relationship with Australia.  The seven being:

    ·Establishment of a home before period overseas.

    ·Australian citizen children.

    ·Long term Australian spouse.

    ·The relations with Mr Rasiah’s family, which can be taken into account and favour Mrs Rasiah and ought to in my view.[17]

    ·There is a rough pattern of return visits to Australia. “Regular” is a relative term and taking all the evidence in context the Tribunal is satisfied this indicia weighs in Mrs Rasiah’s favour. The indicia required is “regular” as distinct from “frequent” visits.

    ·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[18] 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”.

    ·There is ample evidence of joint property ownership in Australia by Mrs Rasiah. This is capable of weighing favourably and does in my view.[19]

    [17] Minister for Immigration and Border Protection v Tran [2015] FCA 546

    [18] [2014] AATA 771, at paragraphs 40 to 43

    [19] Minister for Immigration and Border Protection v Tran [2015] FCA 546

  1. If the exercise of discretion was merely a mathematical or mechanical exercise, because seven of eleven indicia are satisfied and Mrs Rasiah had a genuine desire to make Australia home, the Tribunal would be minded to allow the application.  However, it is not such an exercise as has been repeatedly stated in many authorities.[20] Further, because Mrs Rasiah has been absent for the vast period of four years prior to applying for citizenship, the favourable considerations have less weight.

    [20] For example, Taher v Minister for Immigration and Border Protection, Wong v Minister for Immigration and Border Protection, McCoy v Minister for Immigration and Border Protection, and Sabumei v Minister for Immigration and Border Protection.

  2. Evaluating all the evidence and accepting Mrs Rasiah as a credible witness, I have reached the view that she had a close and continuing association with Australia in the relevant period. The Tribunal is conscious that the relevant state of satisfaction must be in regard to the four year period prior to applying for citizenship.[21]

    [21] Wong v Minister for Immigration and Border Protection [2013] AATA 710 at paragraphs 18 and 19

  3. In arriving at this conclusion I have taken into account the ACI’s and the meaning which has been attributed to the words “close and continuing”. In decisions of this Tribunal, which I respectfully follow, guidance has been obtained from the plain English meaning of these words. In Wong v Minister for Immigration and BorderProtection[22], Senior Member Britton said:

    “The phrase “close and continuing association” is not defined in the Act. The words in that phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the Act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating ... connection or combination”.[23]

    [22] [2013] AATA 710

    [23] At Paragraph 46 of Wong v Minister for Immigration and Border Protection; Also, see McCoy v Minister for Immigration and Border Protection [2014] AATA 771

  4. The factors referred to in paragraph 49 have all existed since 2004 at the latest and have persisted since. They reasonably and properly ought to be described as continuing. I am of the view that they also ought to be described as close, as the meaning of the word close in ordinary English includes a strong relation or connection. Mrs Rasiah impressed me as being exceptionally connected to her husband, their children, his family and their Australian friends like the Shepherds. Further, she referred to Australia as “home”. She owns property here and conducts activities with hazelnut trees, Fishex Pty Ltd and crops that make positive contributions to Tasmania by engaging persons in labour and work, even though they do not make profit or much profit.

  5. Having arrived at this conclusion, it is necessary to consider if the discretion available pursuant to section 22(9) ought to be exercised. This is not a simple task, as the length of time Mrs Rasiah has been absent from Australia in the relevant period is significant, and further, she plainly will not be present living in Australia for at least four or more years.

  6. Despite the state of affairs identified in paragraph 54, in my view the preferable decision is to exercise the discretion in Mrs Rasiah’s favour.  In so concluding, I have closely scrutinised the reasons why Mrs Rasiah seeks to rely upon the discretion. The sole reason she must do so is because of her devotion as a wife and mother, which has compelled her to be outside of Australia in order to keep her family unit together. 

  7. I regard this reason to be within the scope of “something about her relationship with her Australian citizen spouse”, which warrants the discretion to be enlivened.[24] The facts are distinguishable from similar factual scenarios where the non-citizen spouse chooses to work outside of Australia, but his family is Australian and living either here or overseas.[25]

    [24] Per Senior Member Walsh, paragraph 54 of Sabumei v Minister for Immigration and Border Protection.

    [25] Sabumei v Minister for Immigration and Border Protection, and Wong v Minister for Immigration and Border Protection [2013] AATA 710

  8. In Mrs Rasiah’s case, I formed the view on all the evidence that it is not her decision or preference to live away from Australia, but that this was dictated by her husband. The Tribunal specifically raised this with Mrs Rasiah when she was giving evidence and she responded in a manner of resignation by saying, “I understood the importance of his career” but then added that they made their decisions together.  Her initial response was far more telling in my view.

    CONCLUSION

  9. Mrs Rasiah’s absence from Australia has everything to do with her spousal relationship and so in contrast to what was concluded in Taher v Minister for Immigration and Border Protection[26] and Ho v Minister for Immigration & Ethnic Affairs, and because I am satisfied that she has a close and continuing association with Australia, the application is allowed.

    [26] At paragraph 61

  10. The Tribunal is conscious of a line of authorities that citizenship should be refused where the Applicant for citizenship is not going to live in Australia in the near foreseeable future.  It seems that those authorities turned on section 21(2)(g) of the Act and its previous statutory counterpart,[27] rather than specifically the spousal discretion in section 22(9) of the Act.

    [27] Section 13(1)(j)Australian Citizenship Act 1948

  11. The discretion afforded by section 22(9) exists to enable spouses of Australian citizens to overcome inability to meet the general residency requirements in the four year period prior to application. The focus of enquiry required is whether the Applicant had in the past four years a close or continuing association with Australia. At the stage of considering whether the discretion should be exercised, the statutory provision itself does not require that the Tribunal be satisfied that the person will actually reside in Australia in the near or distant future. The enquiry does not arise and is not relevant, except in relation to considering the ACIs.

  12. If it is determined to exercise the discretion favourably, the general residence requirement is taken to be satisfied, but the decision maker must then be satisfied of all other requirements in section 21(2) of the Act, before granting citizenship.  Of particular relevance to this matter is whether section 21(2)(g) is satisfied. Actual residence or likelihood of actual residence or maintenance of a close and continuing association with Australia in the future is required.

  13. In Mrs Rasiah’s case, she plainly will not reside or be likely to reside in Australia in the foreseeable future. However, I am satisfied that she will maintain a close and continuing association with Australia because she has done so for many years in the past and there is no suggestion that will adversely change. Satisfaction of this or any one of the other alternatives, residence or likely residence, is sufficient to meet the requirements of section 21(2)(g).

  14. The reviewable decision is set aside and the matter remitted to the Respondent to give effect to this decision.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member.

........................................................................

Administrative Assistant

Dated

Date of hearing 7 July 2015
Counsel for the Applicant Mr Murray Gerkens
Counsel for the Respondent Mr David Brown
Solicitors for the Respondent Mr David Wilson, AGS