Re Kilpi and Minister for Immigration and Citizenship - [2012] AATA 605

[2012] AATA 605

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5550
Re	Veli Kilpi
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	7 September 2012
Place	Melbourne

The decision under review is affirmed.

(sgd) John Handley

Senior Member

CITIZENSHIP – application by spouse of an Australian citizen – general residence requirement – applicant not present in Australia since 1995 save for limited periods – whether the discretion in section 22(9) exempts spouses of Australian citizens from the general residence requirement – whether policy ultre vires – whether applicant has had a close and continuing association with Australia.

LEGISLATION

Australian Citizenship Act 2007 ss 21, 22(1) and 22(9)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Shams v Minister for Immigration and Citizenship (2011) 199 FCR 423

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Mr John Handley, Senior Member

7 September 2012

Mr Kilpi, the applicant in these proceedings, is a Finnish national who first came to Australia in 1984 with his wife and infant daughters Sohvi and Llydia. They remained here for one year and then returned to Finland. He and his family returned to Australia again in 1990 and stayed for 5 years. Prior to returning to Finland in 1995, his wife was conferred with Australian citizenship. Mr and Mrs Kilpi with their two children have been living in Finland since 1995.
On 24 August 2011 Mr Kilpi applied for conferral of Australian citizenship. His application was refused by a delegate of the Minister for Immigration and Citizenship (the Minister) on 1 December 2011 who decided a) he did not satisfy s 21(2) of the Australian Citizenship Act 2007 (the Act) and b) the discretion within s 22(9) should not be exercised. He applied to the Tribunal for review of that decision on 21 December 2012.
At the hearing, Mr Kilpi was represented by Ms Rubenstein and the Minister was represented by Mr Mosley, both of counsel. The Tribunal heard evidence from Mr Kilpi and his wife.
Mr Kilpi challenged the Minister’s decision to refuse his application on the bases that a) the policy applied by the Minister’s delegate is ultra vires; b) the policy placed a fetter on the discretion available in s 22(9) and c) the Minister did not make the correct or preferable decision.

LEGISLATION

Eligibility for Australian citizenship will be satisfied, in the present application, if s 21(2), s 22(1) and s 22(9) of the Act are satisfied.
Relevantly, s 21(2)(c) requires the applicant to satisfy the general residence requirement. The meaning of that expression is found in s 22(1), reproduced as follows:
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.
Section 22(9) is especially relevant in this review. It is reproduced as follows:
If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
A close and continuing association with Australia is not defined in the Act. However, the Australian Citizenship Instructions (the ACIs) provide guidance to decision-makers when exercising the discretion in s 22(9) of the Act. In particular, the ACIs set out factors that may contribute to a close and continuing association with Australia. Those factors are:
·Australian citizen children
·Length of relationship with Australian citizen spouse
·Extended family in Australia
·Return visits to Australia
·Periods of residence in Australia
·Intention to reside in Australia
·Employment in Australia
·Ownership of property in Australia
·Evidence of income tax payment in Australia
·Current bank accounts in Australia
The ACIs also provide that when:
… assessing whether a person has a close and continuing association with Australia … more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident) (T7, p 42)
The issues before me are:
(a)whether Mr Kilpi has had a close and continuing association with Australia; and
(b)whether the ACIs are ultra vires and a fetter to the discretion available in s 22(9) of the Act.

EVIDENCE

Mr Kilpi

Mr Kilpi prepared a witness statement on 5 March 2012 (Exhibit A1) and confirmed the contents of it in evidence. He stated that he first came to Australia in 1984 on a Rotary Foundation scholarship. He completed a Masters of Arts at Monash University and returned to Finland with his wife and children in 1985. In 1990 he and his family returned to Australia as permanent residents. During that second visit, he completed a PhD in Philosophy and a Graduate Diploma in Applied Finance and Investment.
Mr Kilpi stated that the completion of his qualifications in Australia cemented his bond to this country. He envisaged spending significant time here with a view to eventually becoming a citizen. He considered that his Australian qualifications and the professional networks that he had established were an investment in his future because it has been his intention to work in the Australian financial industry.
In 1995, his wife was conferred with Australian citizenship. Mr Kilpi explained in his statement that he would have qualified for citizenship at that time but chose not to apply because he would have been required to renounce his Finnish citizenship which would have limited his employment opportunities in Finland. Specifically, he would have been precluded from working in the public service in Finland and holding public office. Without his Finnish citizenship, he would have been prohibited from owning property, shares in companies or running his own business. In evidence, he explained that he would have been required to obtain a working permit and a special permit to run a business (Transcript, p 13). Mrs Kilpi was prepared to renounce her Finnish citizenship because she knew that she would be permitted to return to Finland as his spouse.
Mr Kilpi and his family returned to Finland in 1995. He stated that his wife wanted to remain and establish a dental surgery in Australia but their daughters missed their grandparents and he had been offered a good job as a stockbroker in Finland. While living permanently in Finland since 1995, Mr Kilpi has returned to Australia on four occasions. In 2002, he returned with his wife to attend her graduation ceremony when she was conferred with a PhD in dentistry.
Mr Kilpi stated that although he has lived in Finland for the last 15 years, he has maintained strong and ongoing ties with Australia during that time (Exhibit A1 at [11]). Mr Kilpi was a Fellow of the Securities Institute of Australia from 1996 until 2005 when he became a Fellow of the Financial Services Institute of Australia. Upon payment of fees, his membership entitles him to vote in elections of the Board (which he does by post) and to receive regular newsletters and publications. He said that membership is essential for anyone who intends to work in the Australian financial services sector as a licensed professional. To further support his ongoing ties with Australia, Mr Kilpi stated that he and his wife have an Australian bank account.
In his statement, Mr Kilpi recorded that he has been unable to return to Australia since 1995 because of family and work commitments. He and his wife had elderly relatives who were diagnosed with Alzheimer’s disease and needed care (but have subsequently died) and Lyydia was completing her final years of secondary school. Since returning to Finland in 1995, Mr Kilpi has been operating a consultancy business. He and his wife have also been involved in a mining project in Finland. Albeit brief, he stated that during his visits to Australia in December 2007 and 2010, he continued to feel a continuing association with Australia (Exhibit A1, at [13]). In evidence he said that when he returned to Australia he felt like he was coming home and that he feels more like an expat in Finland (Transcript, p 14).
Mr Kilpi stated that he and his wife now want to spend more time in Australia. He intends to establish a consultancy business to facilitate Finnish-Australian trade, commerce and investment (Exhibit A1, at [16]). He also hopes to attract Australian partners to his mining project. His wife is a qualified dentist and after renewing her registration with the Australian Dental Examination Council Inc, she intends to work in a private dental surgery in Australia or at the School of Dentistry at the University of Melbourne.
Lyydia, their youngest daughter now aged 22, is a permanent resident but her visa was due to expire in mid-2012. She is currently living and studying in Finland. Although she considered studying in Australia, she discounted that possibility because she did not qualify for funding. Mr Kilpi stated that Lyydia may decide to return to live with him and his wife in Australia. Sohvi is 30 years of age, is married with a young child in Finland and is likely to remain there (Exhibit A1, at [17]).
Mr Kilpi recorded that he now wants to take up Australian citizenship because of his deep and abiding affection for the country (Exhibit A1, at [18]). He regrets not acquiring Australian citizenship sooner. Despite his lengthy absence from Australia, he continues to identify closely with Australia and bonds with Australia daily (Exhibit A1, at [19-20]). He is a keen follower of Australian politics and the economy. He loves Slim Dusty and is emotional when he hears Waltzing Matilda. The family owned an Australian terrier between 1997 and 2010 which reminded him of Australia every day. Quarantine regulations prohibited Mr Kilpi from bringing the family dog to Australia which was another reason he did not return.
Mr Kilpi stated that he has maintained a strong connection with Australia through his wife who is an Australian citizen. When he decided to complete his studies, he chose to do so in Australia even though he could nominate any country in the world (Transcript, p 12). He understands that Australian citizenship is a privilege and hopes to begin to give something back to the country which has given [him] so much over [his] lifetime (Exhibit A1, at [24]).
In cross-examination, Mr Kilpi agreed that since returning to Finland in 1995, he has not resided in Australia for any length of time and has returned on four occasions, each during the Christmas break. He was in Australia for four weeks in 1996/1997, two weeks in 2002/2003, 19 days in 2007/2008 and four weeks in 2010/2011.
He has never owned real estate in Australia. He was employed between 1990 and 1995 as a tutor at Monash University, either part-time or casual, and paid income tax (although upon further questioning he could not recall the exact details of his employment or whether he had lodged an income tax return). He said that non‑resident withholding tax was and continues to be deducted from interest earned on a joint bank account he has held with his wife since 1990. That account did not give them access to internet banking so they opened two new accounts on 10 December 2010 which had a credit balance, at the date of the hearing, of $22,000.
Mr Mosley noted in cross-examination that that the new accounts were opened 5 days before Mr Kilpi prepared his first statutory declaration for these proceedings (T9, p 64-67). He also noted that the application for citizenship was made 8 months later (on 24 August 2011). Mr Kilpi said a permanent residency visa was reissued to him in 2007 and was then valid only for three and a half years at December 2010. He was advised of a four year permanent residency requirement, before an application could be made, hence the delay in making his application (Transcript, p 18).
Mr Kilpi was asked about his business interests in Australia and Finland. He said that in addition to his association with the Australian Financial Services Institute, he also trades in Australian stocks. In Finland he runs his own business and is involved in a mining project on land owned by his wife. He and his wife also own a domestic dwelling.
Mr Kilpi was questioned about the residence of family members. He said his mother and mother-in-law are both living in Finland. When asked about the need to care for them, he said that he and his wife each have a brother in Finland and both are able to care if the need arises. Lyydia may decide to return to Australia even though she has not been here in the last four years.
Mr Kilpi said that he and his wife now intend to reside in Australia and set up a home here (Transcript, p 21). That has also been their intention during the four years prior to making his application for Australian citizenship. However, their intention has not come to fruition because the European financial crisis has made it difficult to turn their property into liquid assets which would facilitate the relocation. He is currently in the process of renewing [his] mining claim which [he] hopes to sell (Transcript, p 22).
When asked whether he can see himself moving here at any time in the future, Mr Kilpi said, here I am (Transcript, p 22). Mr Mosley referred Mr Kilpi to the nature of his visits to Australia in the past, namely, 28 days in 2010/2011, 19 days in 2007/2008 and before that it was five years, and before that six years (Transcript, p 22). In response, Mr Kilpi said [w]e are now on our own. Our kids have moved out… we are financially independent from Finland (Transcript, p 22).
In response to a question from me, Mr Kilpi said that he arrived in Australia the week prior to the hearing which was convened on 5 June 2012 and he was booked to leave on 9 June 2012. He explained that it was more economical to book a return flight and that it was open to him to change his departure flight. However, he had to return to Finland by 1 July 2012 because he was presenting a paper in Brussels on 11 July 2012. If he did extend his stay, the duration of his visit to Australia would be a maximum of 5-6 weeks.

Mrs Kilpi

Mrs Kilpi prepared a witness statement on 5 March 2012 in support of her husband’s application for Australian citizenship (Exhibit A2). She confirmed the contents of her statement in evidence and corroborated her husband’s evidence.
Mrs Kilpi was born in Finland and married Mr Kilpi in 1981. She became an Australian citizen in 1995 at which time she renounced her Finnish citizenship but regained it in 2003 when Finland permitted dual citizenship.
She started a PhD in dentistry at the University of Melbourne between 1992 and 1995 and then returned in Finland. Her doctorate was completed by research and she graduated in 2002. She has her own dental surgery in Finland and hopes to continue her profession in Australia either in a private practice or in education.
Mrs Kilpi wanted to remain in Australia in 1995 when she acquired Australian citizenship but she was outnumbered by the other members of her family. She said she promised to buy her children a dog if they agreed to remain in Australia, even though she is not a dog person (Transcript, p 30).
Mrs Kilpi said that her home is wherever she works and presently it is in Finland. However, if she establishes a practice in Australia, she and her husband will purchase a home and will live here (Transcript, p 32). Mrs Kilpi said if her mother was unhappy about her moving to Australia, she would invite her to live in Australia with her.
Mrs Kilpi said that she and her husband each have a bank account in Finland. They also have an account for the mining venture with a credit balance of $100,000. She did not dispute that in addition to family, they have established careers, undertaken investments and generated income in Finland. While she said that she and her husband are keen to relocate to Australia, the emphasis appeared to be on the weather and her friends and associates. When asked why she would leave all that she has in Finland, she said it is not something that can really be explained totally in words (Transcript, p 39). She explained that moving is a big effort, both professionally and personally (Transcript, p 40). When she first arrived in Australia she had to start again – she had to find a bank, a hairdresser and a doctor. She had to do the same when she returned to Finland. She also worked hard in Finland to build up her career as a female in a male dominated profession.
When I asked Mrs Kilpi whether she and her husband would relocate to Australia immediately, if his application was successful, she said she would need one year to sell her practice, their business venture and property. When they do move to Australia, it would be to re-establish their careers and their lives here. It is not her intention to spend more time in Australia and travel between the two countries.

CONSIDERATION OF THE ISSUES

Mr Kilpi was granted permanent residency whilst in Australia between 1990 and 1995 but that status lapsed in 1999. He was granted permanent residency, again, on 15 June 2007 and he applied to the Minister for conferral of Australian citizenship on 24 August 2011 in accordance with s 21(1) of the Act. He had therefore, been a permanent resident for 4 years at the date of application.
Mr Kilpi had been present in Australia for an aggregate period of 47 days in the four years preceding his application for citizenship and present for 28 days, as a permanent resident, in the 12 months preceding the application. He does not satisfy sub-s 22(1)(a) and (c) (sub-s (1)(b) is not relevant). Sections 22(1A) and (1B) respectively, offer the opportunity, in appropriate circumstances, to ameliorate the requirements of sub-s 21(1)(a) and (c) but not in this application.
As Mr Kilpi is the spouse of an Australian citizen, s 22(9) of the Act is relevant in these proceedings. He does satisfy sub-s (9)(a), (b) and (c). Section 22(9)(d) requires the applicant to demonstrate a close and continuing association with Australia.
The expression a period appears in sub-s (9) and the expression that period which appears in each of paragraphs (a) to (d) of sub-s (9), refer to a period which the Minister may treat…as one which the applicant was present in Australia as a permanent resident. Those expressions are not defined.
Mr Mosley who appeared on behalf of the Minister submitted that the period may be identified by reference to the general residence requirement in s 22(1)(a) and s 22(9). He submitted that the period commenced on 24 August 2007 and concluded four years later on 23 August 2011 on the day before the applicant applied for citizenship. Accordingly, it was his submission that the Tribunal needed to determine whether a close and continuing association existed in that four year period (Transcript, p 56).

Ms Rubenstein submitted that the period was the four years during which time the applicant held a permanent resident visa. She did not make specific reference to the period of four years found within s 22(1)(a). Additionally, she submitted when consideration is given to whether the applicant has had a close and continuing association with Australia, regard should also be given to periods of time before 24 August 2007 during which there were occasions when the applicant was present here and asserted a connection with Australia (Transcript, p 11, 49, 51 and 53).
Although for different reasons, both representatives agree that the period extends over the four years immediately before 24 August 2011 during which the applicant was the holder of a permanent resident visa.
It is not clear, in the absence of a definition, what would constitute the duration of a period in s 22(9) of the Act. Arguably, it would be the period during which the applicant was the spouse of an Australian citizen which, in the circumstances of this case would have commenced in 1995. From that time, save for very limited periods, the applicant was not present in Australia and he was a permanent resident only from 15 June 2007. But he was not a permanent resident for the entirety of the period that his wife was a citizen. The expression during that period appearing in each paragraph of s 22(9) is, in context, ambiguous. On balance, I prefer an interpretation of the period to be four years ending on 24 August 2011 when the applicant applied for citizenship, during which he was the spouse of an Australian citizen, he held a permanent resident visa and, save for very limited periods, he was not present in Australia.
The next issue is whether I can be satisfied that the applicant had a close and continuing association with Australia during that period. That question cannot be answered without consideration being given to the evidence heard, the submissions made in this review and the Minister’s policy (the ACIs).

The Australian Citizenship Instructions

In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J, in discussing the role of policy, stated (at 640-41):
… a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created…
…
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact…
In addition to the factors that may contribute to a close and continuing association with Australia, chapter 5 of the ACIs also provides:
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.
It was submitted in the applicant’s Statement of Facts and Contentions that:
…the policy in relation to s.22(9) is unlawful in that it imposes undue weight on the expectation of certain number of days as proof of “close and continuing association.” This is not consistent with the discretion provided for in the legislation and the object of the 2007 Act and as such is ultre vires (at [58(i)]).
Referring to the history of the Act and its predecessor, the Australian Citizenship Act 1948 (the 1948 Act), it was submitted that the spousal relationship is significant and the focus of s 22(9) is on whether there is a close and continuing association with Australia, not with residence. In closing submissions, Ms Rubenstein argued that the essence of the discretion is to replace physical presence with other forms of association. By reintroducing residence when it is not required in sub-s (9), it was submitted that the ACIs are inconsistent with the underlying purpose of that provision (Transcript, p 9).
To further support the argument that the ACIs are inconsistent with s 22(9) and therefore, ultra vires, it was submitted that s 22(9) provides for different residence criteria “if the person is a spouse … of an Australian citizen” (at [31] and [73] of the Applicant’s Statement of Facts and Contentions). In her closing submissions, Ms Rubenstein argued:
The applicant affirms that the residence requirements for spouse (sic) are different … than for general eligibility in the provision that section 22(9) provides (Transcript, p 73).
It is clear that the general residence requirement of s 22(1) cannot be satisfied by the applicant. I am satisfied that sub-s (9) is not concerned with having to satisfy that requirement. All other subsections of s 22 are referable or subject to or for the purposes of s 22(1). Section 22(9) is not. It provides an opportunity for the Minister to exercise discretion where an applicant, being a spouse of a citizen and the holder of a permanent resident visa, has not been present in Australia. The force behind the deeming of presence in Australia found within sub-s (9) becomes apparent.
A person being present, that is, attending or being at a place or vicinity is, in my view, different to a person who is residing that is, living, if not permanently, for an extended period (Macquarie Dictionary 5^th Ed.). Section 22(9)(b) specifically refers to a person not being present. There is no reference to residing.
A person who has spent considerable periods in Australia is more likely to attract greater weight than a person who has spent less or infrequent periods. Presence or residence in Australia and their respective duration are one of many factors in the ACIs each of which attract weight. It is not inconceivable that a person who has spent little time here but has many other factors establishing a connection might aggregate sufficient weight to tip the scales in favour of a grant of citizenship. Absence of residence will not defeat s 22(9) but residence is not insignificant and is one of the factors, as discussed earlier, recorded by the ACIs in assessing whether a close and continuing association existed during the period under examination.
I agree with the submissions of Ms Rubenstein that if the ACIs are applied as if a person was required to be residing for defined periods, it would be ultra vires the Act. Although the ACIs do record periods of residence as a factor (amongst many) when deciding whether there has been a close and continuing association with Australia, they are not expressed absolutely or to be applied inflexibly. They are intended to guide and assist decision-makers in the exercise of the discretion in s 22(9). Specific reference is recorded to the application of weight when the discretion is exercised. The ACIs do not record that only exceptional circumstances would permit departure from the policy, as the decision-maker found (T4, p 10). That approach is inconsistent with and a fetter to the caution against inflexibility in application of the policy and therefore, the obligation to ensure a proper and balanced exercise of the discretion.
Chapter 5 of the ACIs in relation to s 22(9) provides that for the purpose of exercising the discretion in s 22(9), more weight should be given if the person was physically present in Australia for 365 days in the 4 years (including at least 90 days as a permanent resident). Less weight should be given if they have not been present for at least this period. I am satisfied that this instruction guides, but does not control the making of decisions under s 22(9) (Re Drake No.2). The amount of weight and eventually the way in which the scales tip, when all other factors are considered is a matter for the decision-maker. I am not satisfied that the ACIs are unlawful and they do not place a fetter on the discretion in s 22(9) of the Act.
Ms Rubenstein submitted that the decision-maker did not give any meaningful consideration to the applicant’s circumstances or balance relevant factors. However, the issue to be determined by me is not whether the decision was the correct or preferable decision on the material before the decision-maker. Rather the question is whether that decision was the correct or preferable one on the material before the Tribunal (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589). Kirby J reaffirmed that function and obligation in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37] in his analysis of the role of the Tribunal in merits review and decided:
… But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal's obligation to conduct a true merits review.

Does Mr Kilpi have a close and continuing association with Australia?

Among the factors to be considered in deciding whether to exercise the discretion in s 22(9), is the extent of the person’s association with Australia. In deciding whether a close and continuing association exists, the time spent physically present in Australia is a relevant consideration. Although presence is not a requirement of satisfying s 22(9), it is difficult to see how a person who is never or very infrequently physically present, could demonstrate that they have a close and continuing association without all or any other factors being considered.
Ms Rubenstein submitted that the most profound association with Australia is Mr Kilpi’s marriage to his Australian wife. Mrs Kilpi has been an Australian citizen since 1995 and Mr Kilpi has been her spouse during the four year period. I accept that his marriage to an Australian citizen does amount to an association or connection to Australia.
I accept, as submitted (refer Applicant’s Statement of Facts and Contentions at paragraphs 23 – 24 and Transcript, p 51), that citizenship should go beyond practical and material notions (Shams v Minister for Immigration and Citizenship (2011) 199 FCR 423 at [56] and [57]). The Preamble to the Act states that Australian citizenship represents a full and formal membership to the community of the Commonwealth of Australia. But the applicant's permanent residency status does not give him membership of the Australian community. It is premature to focus on the potential of the applicant having a communal relationship with Australia before citizenship is granted. A communal relationship will be a consequence of the acquisition of citizenship and only then will the applicant be entitled to enjoy the rights and benefits of that privilege.
The issue for me is whether Mr Kilpi had a close and continuing association with Australia in the four year period before making his application.
In addition to his marriage, Mr Kilpi has two bank accounts in Australia and is a member of the Banking and Finance Institute of Australia. He owned an Australian terrier until 2010 and becomes emotional when he hears Waltzing Matilda and Slim Dusty singing.
Ms Rubenstein submitted that citizenship should be about a deep emotional and personal bond that is grounded in a real and meaningful connection to Australia (Transcript, p 48). She submitted that Mr Kilpi’s bond and connection to Australia began in 1984 and has continued to this very day (Transcript, p 48). Mr Kilpi chose to study in Australia in 1984 and returned in 1990 to complete further studies, where he remained for five years. It was also submitted that his connection to Australia was formalised in 1995 when his wife became an Australian citizen. Ms Rubenstein referred to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 which provides (at 38):
The government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.
She submitted that Mr Kilpi’s presence in Australia between 1990 and 1995 with his wife enabled him to become familiar with the Australian way of life and to appreciate the commitment required (Transcript, p 49). Although he did not apply, with his wife, in 1995, he has maintained a close and continuing association with Australia through his membership of a professional association and his not insubstantial bank account (Transcript, p 49). That connection has been affirmed by him making his application for Australian citizenship.
Ms Rubenstein submitted that Mr Kilpi’s residence in Australia between 1990 and 1995, even though outside the four year period, supports his close and continuing association (Transcript, p 51). However, since 1995, he has been living in Finland on a permanent basis and has returned to Australia on four occasions, two of which were during the relevant four year period and then for a total of 47 days.
The evidence, on balance and for the following reasons suggests that a close and continuing association did not continue after 1995 and consequently within the four year period.
Mr Kilpi declined to apply for Australian citizenship in 1995, unlike his wife, because he was not prepared to renounce his Finnish citizenship. To have done so would have severely limited his employment and investment opportunities in Finland. Twelve years later he applied, again, for permanent residency and it was granted.
There is merit in the submission that connection to more than one country (including dual citizenship as the Act has recognised since 2002) will not undermine or detract from a finding, if made, of a close and continuing association with Australia (Transcript, p 51). However, this submission assumes that such an association with Australia does exist. I disagree.
Mr Kilpi has had a continuing connection to Finland in the four year period. He and his wife have a home in Finland where he has established his career and has been running his own consulting business. He has managed and exploited investment opportunities. His children and extended family members reside in Finland.
The ACIs contain a list of factors that may contribute to a close and continuing association with Australia. The applicant does meet some of those factors namely, the length of his relationship with his wife who is an Australian citizen, the expression of his intention to reside in Australia and holding bank accounts. However, he does not have children who are Australian citizens nor does he have extended family here. He has visited Australia on four occasions, twice in the last four years but then for 47 days in total. He has not resided in Australia, as opposed to being present. He engaged in some work at Monash University between 1990 and 1995 but not subsequently. He has never owned real estate in Australia. He believed that he may have paid income tax from earnings from his employment at Monash University.
I do not regard the list of factors in the ACIs as being exhaustive. Additionally, there is nothing to indicate that the applicant has ever employed persons in Australia or has he engaged in commerce or investment.
The time spent physically present in Australia is a relevant consideration to the extent of adding weight to an association or connection. Whilst absence from Australia may be treated as if a person had been present, it is difficult to see how a person who is very infrequently physically present could, without more, demonstrate that they have had a close and continuing association.
Mr Kilpi spoke about his love for Australia and his deep and abiding affection for the country. He also explained that family and other personal commitments in Finland prevented him from relocating to Australia. But it is difficult to understand why he has not exploited opportunities to visit here and engage with the community he aspires to join. He is self-employed and would not be subject to limited periods of annual leave at the discretion of an employer. He is not impoverished and the cost of travel and accommodation would be well within his means.
The connection to Australia was frequently put at an emotional level. Mr Kilpi and his wife indicated they are now able to commit to relocating to Australia, establishing a home, obtaining work and investigating investment opportunities. If that occurs, a new citizenship application may well result in the discretion within s 22(9) being favourably exercised. Alternatively, Mr Kilpi may qualify for conferral of Australian citizenship under one of the other provisions in the Act.
An examination of the applicant’s circumstances in the last four years satisfies me that in that period, a close and continuing association has not existed with Australia.
For all of the above reasons, I am satisfied that the factors advanced by the applicant do not attract sufficient weight to permit a finding of him having had a close and continuing association with Australia during the four year period.

DECISION

The decision under review will be affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

............................[sgd]...........................

Associate

Dated 7 September 2012

Date(s) of hearing	5 June 2012
Counsel for the Applicant	Ms K. Rubenstein
Advocate for the Applicant	Ms K. Anderson
Solicitors for the Applicant	Clothier Anderson & Associates
Counsel for the Respondent	Mr W. Mosley
Advocate for the Respondent	Ms K. Darcy
Solicitors for the Respondent	The Director of Litigation, Department of Immigration and Citizenship