Re Ann Nee Chang and Minister for Immigration and Citizenship
[2009] AATA 14
•8 July 2015
Bates and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 492 (8 July 2015)
Division GENERAL DIVISION File Number(s)
2014/4557
Re
Miranda Bates
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 8 July 2015 Place Sydney The decision under review is affirmed.
.........................[sgd]...............................................
Professor R McCallum AO, Member
CATCHWORDS
CITIZENSHIP – Eligibility – citizenship by conferral – whether the applicant satisfied s 21(2)(g) of the Australian Citizenship Act 2007 – whether the applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(g)
CASES
Re Chang and Minister for Immigration and Citizenship [2009] AATA 14
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645
Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R McCallum AO, Member
8 July 2015
INTRODUCTION
Ms Miranda Bates, the Applicant, is a United Kingdom citizen. She immigrated to Australia in May 2007 on a 457 Visa. On 15 April 2011, Ms Bates obtained permanent residence when she was granted a Subclass BW856 (Permanent) visa.
On 7 January 2014, Ms Bates applied for Australian citizenship by conferral, however, on 7 August 2014 the Minister's delegate refused her application on the ground that she did not meet the criteria in subsection 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). Ms Bates seeks review by this Tribunal of the decision to refuse her Australian citizenship by conferral.
RELEVANT LEGISLATION
Subsection 21(2)(g) of the Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(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...
THE ISSUE BEFORE THIS TRIBUNAL
The sole issue before me is whether Ms Bates fulfills the criteria in subsection 21(2)(g) of the Act. If I find in her favour, the appropriate course of action is for me to set aside the decision under review and to remit the matter back to the Minister to determine the entirety of Ms Bates application. If I find that Ms Bates does not fulfill the criteria, then I shall affirm the decision under review.
There are two limbs to subsection 21(2)(g) of the Act. The first limb is whether Ms Bates is able to satisfy me, as the person who stands in the shoes of the Minister, that she "is likely to reside, or to continue to reside, in Australia". The second limb is whether Ms Bates is able to satisfy me that she will "maintain a close and continuing association with Australia". To succeed, Ms Bates need only satisfy either of these two limbs. Put simply, Ms Bates must show either that she intends to reside in Australia, or that she maintains a continuing and close connection with Australia.
THE HEARING
At the time of the Hearing, Ms Bates was residing in the United Kingdom and she gave sworn evidence by telephone. I found her to be a truthful witness. Mr Guy Perkins, who is the partner of Ms Bates, also gave sworn evidence by telephone from the United Kingdom. I also found him to be a truthful witness.
THE FACTS
There was no dispute concerning the facts before the Tribunal. My findings of fact are drawn from the sworn evidence of Ms Bates and of Mr Perkins, together with the documents before the Tribunal including the emails and documents forwarded to the Tribunal by the parties after the hearing.
Ms Bates immigrated to Australia in May 2007 to take up a position with a major law firm. In late 2007, she began dating Mr Guy Perkins who is an Australian citizen, and in early 2010 they commenced living together and are engaged to be married. In August 2012, Ms Bates gave birth to their son who is an Australian citizen.
In December 2013 Ms Bates learned that her mother had contracted breast cancer. Previously, her father had contracted prostate cancer. Ms Bates’ parents live in Wales in the United Kingdom.
In February/March 2014, Ms Bates was made redundant from her legal position at The Trust Company when it was taken over by another company.
On 5 June 2014, Ms Bates contacted the Department of Immigration and Border Protection to reschedule her citizenship test appointment. She enquired about expediting her citizenship ceremony as she was moving to the United Kingdom.
On 25 June 2014, Ms Bates attended the Department's Sydney office to sit the citizenship test. Ms Bates told a case officer that her mother was in remission following treatment for cancer and that she intended to move to the United Kingdom to help to care for her.
On the application form for Australian citizenship, form 1300t, Ms Bates declared that it was her intention to reside or to continue to reside in Australia.
On or about 3 August 2014, Ms Bates, Mr Perkins and their son moved to the United Kingdom. Before leaving Australia, Ms Bates obtained an offer of employment in the United Kingdom under a three year contract. Mr Perkins traveled to the United Kingdom on a 30 month family visa which is renewable, and he subsequently obtained employment in the United Kingdom.
In her evidence before this Tribunal, Ms Bates said that she and Mr Perkins and their son intended to visit Australia in September/October 2015 to attend the wedding of Mr Perkins’ brother. Ms Bates also said in her evidence that she and Mr Perkins and their son wished to live in Australia in the long term, but at present she needs to be close to her parents. The couple have placed their son on waiting lists in two Sydney private schools for him to commence his secondary schooling in 2025.
IS MS BATES ABLE TO SATISFY ME THAT SHE "IS LIKELY TO RESIDE OR TO CONTINUE TO RESIDE IN AUSTRALIA"?
Under the first limb of subsection 21(2)(g) of the Act, Ms Bates must satisfy me that she is likely to reside or to continue to reside in Australia.
Previous decisions of this Tribunal have examined these words, and the decisions conclude that a state of satisfaction will be reached where the person gives evidence that she or he will reside in Australia soon after becoming a citizen.
In Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664 Deputy President Mr B J McMahon examined these words as they appeared in subsection 13(1)(j) of the now repealed Australian Citizenship Act 1948 (Cth).
In relation to this phrase, the Deputy President said at [31]:
It can not 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 Australian citizenship.
Ho's Case has been followed in subsequent decisions of this Tribunal.
In Re Chang and Minister for Immigration and Citizenship [2009] AATA 14, Senior Member Ms G Ettinger said at [57]-[59]:
I am mindful that in Re Shen and Minister for Immigration and Citizenship [2008] AATA 906, at [23], the Tribunal stated that:
“The expression 'likely to reside', in the context of the 1948 Act has been held to mean 'likely to reside in Australia immediately, or very soon after being granted a certificate of Australian citizenship': Re Ho and Minister for Immigration and Multicultural Affairs [1994] 34 ALD 664 at [31] as applied in Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AAT 425 at [153] and in Alavian and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 421 at [28] and [29].
Mr Galloway submitted that Shen was concerned with a different factual situation because he was an academic, and that Ms Chang worked off shore for the benefit of Australia, and that this should be recognised.
I have considered the submissions of both parties, and the evidence Ms Chang has given regarding her intentions to move to Australia with her children (one as yet unborn), in a few years time, and that she has not yet decided whether it would be to Sydney or to Adelaide. I am satisfied that does not signify as indicated in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, an intention to reside immediately or very soon after being granted a certificate of Australian citizenship.
In her evidence before the Tribunal, Ms Bates said that she intends to return to live in Australia. However, given her mother's medical situation, she does not know when she and Mr Perkins and their son will return permanently to live in Australia. Put simply, at present Ms Bates has not determined a date on which she and her family will return to live in this country. Therefore, Ms Bates is unable to state that if granted Australian citizenship she will return to reside in Australia soon after being granted Australian citizenship. I completely understand that she wishes to remain in England to care for her mother while she is seriously ill. However, I find that in these circumstances, Ms Bates has been unable to satisfy me that she intends to reside or to continue to reside in Australia within the meaning of subsection 21(2)(g) of the Act.
IS MS BATES ABLE TO SATISFY ME THAT SHE MAINTAINS "A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA"?
Under the second limb of subsection 21(2)(g) of the Act, Ms Bates must satisfy me that she will maintain a close and continuing association with Australia.
As Senior Member Ms A K Britton has shown, this phrase is made up of ordinary English words, and my task is to apply this phrase to the facts before me.
Senior Member Ms A K Britton said in Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [45]:
[t]he words that make up the phrase “close and continuing association” 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”.
The Minister has given guidance to decision-makers with respect to the application of the Act and the regulations to various aspects of Australian citizenship. This guidance is to be found in the Australian Citizenship Instructions (ACIs), as at 1 July 2014. In accordance with the decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645, I shall give the ACIs appropriate weight.
With respect to the phrase "a close and continuing relationship with Australia", the ACIs provide as follows at 5.7.2:
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
I shall now examine the evidence before me to determine whether Ms Bates maintains "a close and continuing relationship with Australia”.
The following factors point to Ms Bates’ close relationship with Australia
Ms Bates’ fiancé is an Australian citizen and they have been living together since early 2010. Their son was born in Australia and he is an Australian citizen. For completeness, I should add that their son is also a United Kingdom citizen. In her evidence, Ms Bates said that she had obtained a British passport for their son. I do not regard his dual citizenship detracting from the fact that Ms Bates son is Australian born and holds Australian citizenship.
Mr Perkins does have a large family, and I accept that Ms Bates is regarded as a member of the family. I note for completeness that Mr Guy Perkins’ brother, Mr Jonathon Perkins and his fiancée currently reside in the United Kingdom and have done so since approximately March 2013. I accept they are to be married in Australia in September/October this year. In her letter to the Tribunal dated 11 November 2014, Ms Bates writes that "[m]y brother in law is in London for a period of time but his long term intention is to reside in Australia."
Ms Bates was employed in Australia from 2007 until her redundancy in early 2014. I accept that she paid taxes in Australia and that she has earned superannuation during her employment which is in one or more superannuation funds.
Earlier in these reasons, I have examined the evidence concerning the intention of Ms Bates to reside in Australia.
Ms Bates does not own any property in Australia. I accept that she is a beneficiary under the Perkins family trust which I shall now examine.
The Perkins family have established a family trust. In her letter to the Tribunal dated 11 November 2014, Ms Bates writes: "I have no direct ownership but I am a listed beneficiary under the family trust." However, at the hearing, Ms Bates and Mr Perkins gave evidence that Ms Bates was not a named beneficiary under the family trust. Given that the hearing occurred from 12:00am to 1:00am United Kingdom time, I place no importance on any memory lapses in this matter by Ms Bates and Mr Perkins.
Shortly after the conclusion of the hearing, Ms Bates sent an email to the Tribunal, dated 25 May 2015, which contained a chain of several other emails, together with a photocopy of a schedule which lists Mr Guy Perkins and Ms Miranda Bates as primary beneficiaries of the Guy Perkins Discretionary Trust.
Ms Bates wrote a further email to the Tribunal dated 26 May 2015. Attached to this email were a large bundle of documents dealing with the family trust, including an unsigned copy of the Guy Perkins Discretionary Trust-Trust Deed.
Attached to Ms Bates’ email was an email from Mr Guy Perkins to Ms Bates dated 26 May 2015. Mr Perkins explains that he and his two brothers have units in the Percan Unit Trust and are also directors of Percan Pty Ltd which is the trustee company. Mr Perkins writes:
The beneficiaries of the Percan Unit Trust are three individual discretionary trusts, one for each brother. You [that is Ms Bates] are a named beneficiary of the Guy Perkins Discretionary Trust.
Mr Perkins further writes in this email that "no distributions being anticipated in the short to medium term."
The Respondent sent two emails to the Tribunal commenting upon the emails and documents from Ms Bates. The Respondent emails were dated 26 May 2015 and 4 June 2015.
Ms Bates emailed the Tribunal seeking permission to respond to the Respondent's email dated 4 June 2015. On 5 June 2015, pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), I made the following Direction:
By 12 June 2015, the Applicant to file and serve submissions in reply which are strictly limited to addressing those matters raised in the Respondent’s submissions dated 4 June 2015 and are to be no longer than one page in length.
On 12 June 2015, Ms Bates forwarded to the Tribunal her one page response in which she gave further details about the Percan Family trust.
I accept that Ms Bates is a named beneficiary of the Guy Perkins Discretionary Trust. I further accept that the Guy Perkins Discretionary Trust owns 33.3% of the units of the Percan Discretionary Trust which is worth approximately $1.3 million. I also accept that Ms Bates has not received any distributions from the Guy Perkins Discretionary Trust.
I accept that Mr Perkins and his two brothers own a property in Queensland.
The following factors point against Ms Bates’ maintaining a close relationship with Australia
Ms Bates, Mr Perkins and their son left Australia for the United Kingdom on or about 3 August 2014.
Ms Bates and Mr Perkins have obtained employment in the United Kingdom. At the date of the hearing, 25 May 2015, Ms Bates gave evidence that she had completed eight months of her three year contract. Thus her contract of employment still has two years and four months to run.
I accept that Ms Bates, Mr Perkins and their son intend to visit Australia this September/October to attend the wedding of Mr Perkins’ brother. I accept Ms Bates’ evidence that she and her family will remain in the United Kingdom while her mother requires care. I further accept Ms Bates’ evidence that in the long term she and her family wish to live in Australia. This could mean that the family may not relocate to Australia for several years. I give little weight to the fact that Ms Bates son is on the waiting lists of two Sydney private schools for 2025, for this is almost ten years hence.
Ms Bates does not own any property in Australia, however she is a beneficiary under the Guy Perkins Discretionary Trust.
In relation to employment, Ms Bates did not give any evidence of plans for future employment in Australia, or of any steps she could take to obtain employment in Australia. Of course, Ms Bates wishes to remain in the United Kingdom to be close to her family at this time of need, but the fact remains that she gave no evidence of any plans to obtain future employment in Australia.
Weighing up all of the factors which I have analysed, I find that the factors pointing against Ms Bates retaining a close and continuing relationship with Australia outweigh the factors pointing in favour of her maintaining a close and continuing relationship with Australia.
I place most weight on Ms Bates current residence in the United Kingdom. Ms Bates is unable to be more precise about her intention to return to live in Australia with Mr Perkins and their son, other than to state that this is her long term intention.
I place weight on the fact that Ms Bates does not own any property in Australia. I place less weight upon her being a beneficiary of the Guy Perkins Discretionary Trust.
I also place weight on the fact that Ms Bates has not given evidence of any plans to enable her to obtain future employment in Australia.
I give weight to the facts that Ms Bates’ fiancé is an Australian citizen and that he has spent most of his life living in Australia. I give less weight to the facts that their son was born in Australia and is an Australian citizen. He left Australia with his parents just before his second birthday and is currently residing in the United Kingdom.
I give a small amount of weight to the fact that Mr Perkins’ family regard Ms Bates as a family member.
Balancing all of these factors, I find that Ms Bates has not satisfied me that she will “maintain a close and continuing relationship with Australia” within the meaning of subsection 21(2)(g) of the Act.
In my judgement, Ms Bates has failed to satisfy me that she complies with either limb of the criteria set forth in subsection 21(2)(g) of the Act.
When Ms Bates returns to live in Australia, she will be able to apply for the grant of Australian citizenship by conferral, provided she fulfills all of the relevant citizenship criteria.
DECISION
I affirm the decision under review.
I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member .....................[sgd]................................................
Associate
Dated 8 July 2015
Date(s) of hearing 25 May 2015 Date final submissions received 12 June 2015 Applicant In person Counsel for the Respondent T Reilly Solicitors for the Respondent Australian Government Solicitor
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