The applicant (PMYL) and and Minister for Immigration and Border Protection

[2014] AATA 148

[2014] AATA  148

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4012
Re	The applicant (PMYL)
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

File Number(s)	2013/4015
Re	Master A (MLFN)
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	18 March 2014
Place	Sydney

The Decisions under review are affirmed.

......................[SGD]..................................................

Senior Member A K Britton

CATCHWORDS

MIGRATION—Citizenship application — Residency requirement not met — Application of government policy by AAT —Whether close and continuing association with Australia — Applicants under the age of 16 who apply for citizenship

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 3; 21(2)(c)); 21(5); 22(1)(a); 22(1)(c); 22(1A), 22(1B); 22(9)

CASES

Budilay v Minister for Immigration and Citizenship [2011] FCA 508

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20

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

Re Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689

Re Tanko and Minister for Immigration and Citizenship [2011] AATA 122

Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315

SECONDARY MATERIALS

Australian Citizenship Instructions, 1 July 2013

REASONS FOR DECISION

Senior Member A K Britton

18 March 2014 (as amended 29 April 2013)

1. The applicant was born in, and is a citizen of, Russia. She married Australian citizen, Mr B, in 2007. Since their marriage the applicant and Mr B have been living overseas, initially in the United Kingdom, and since July 2008 in the United Arab Emirates. The applicant holds an Australian permanent partner visa which was granted in April 2008.

2. In July 2013 a delegate of the Minister for Immigration and Border Protection refused the applicant’s application for the grant of Australian citizenship by conferral. The stated ground for that decision was the applicant’s failure to satisfy the “residence requirement”, one of the criteria for the grant of Australian citizenship. The delegate decided not to exercise the discretion to count periods the applicant spent overseas as periods she was present in Australia (s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)). The applicant seeks review of that decision by the Administrative Appeals Tribunal.

3. The primary issue to be determined is whether the discretion conferred by s 22(9) can and should be exercised. To exercise that power I must be satisfied that the applicant had “a close and continuing association with Australia” throughout those periods she was not present in Australia in the four years prior to making her application for citizenship, 12 July 2009 to 12 July 2013.

4. The applicant’s son from a previous marriage, Master A, was included in her application for citizenship. That application was also refused. Through his mother, he seeks review of that decision. It is agreed that the success or otherwise of Master A’s application turns on the decision made by the Tribunal about the applicant’s application.

   (1) THE APPLICANT’S APPLICATION FOR CITIZENSHIP

   THE RESIDENCE REQUIREMENT

5. To be eligible for conferral of Australian citizenship a person must, at the time they made their application for citizenship, satisfy the general residence requirement, the special residence requirement or the defence service requirement (s 21(2)(c)). There is no argument that the applicant does not satisfy the special residence requirement or the defence service requirement.

6. The general residence requirement will be satisfied if, among other things, the citizenship applicant was present in Australia during the four years immediately before the day he or she made an application for citizenship (s 22(1)(a)). The applicant does not satisfy that requirement because in the four years prior to making her application for citizenship, (the relevant period), she was present in Australia for a total of 49 days.

7. By s 22(1A), a person is taken to satisfy s 22(1)(a) if they were not absent from Australia in the relevant period for more than 12 months (in total). By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the 12-month period immediately before the day he or she made the application for citizenship was not more than 90 days, and, he or she was a permanent resident during each period of absence.

8. These provisions do not assist the applicant because during the relevant period she was absent from Australia for more than 12 months, and, in the 12 months immediately before making her application for citizenship, she spent no time in Australia.

   THE DISCRETION

9. The Act confers on the Tribunal acting as substitute decision-maker the power to treat the residence requirement as having been met in certain circumstances. Section 22(9) provides:

   If the person is the spouse … 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. [emphasis added]

10. The applicant satisfies paragraphs (a), (b) and (c) and therefore the discretion can be exercised if the Tribunal is satisfied that the applicant had “a close and continuing association with Australia” during those parts of the relevant period she was absent from Australia.

11. The Minister issued the Australian Citizenship Instructions (“the Instructions”) to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. The Instructions state (at [5.18]):

    5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))

    ….

    Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.

    In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:

    oAustralian citizen children

    olong term relationship with Australian citizen spouse or de facto partner

    oextended family in Australia

    oregular return visits to Australia

    oregular periods of residence in Australia

    ointention to reside in Australia

    oemployment in Australia where the person has been on leave to accompany their spouse or partner overseas

    oownership of property in Australia

    oevidence of income tax paid in Australia over the past four years and

    oevidence of active participation in Australian community based activities or organisations.

    In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given if the person has 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 to these factors if they have not been present in Australian for at least this period.

    ….

    Factors listed in the Instructions as relevant to the nature of the applicant’s association to Australia

12. Long term relationship with Australian citizenship spouse: The applicant and Mr B met in 2004. They have been married since 2007. I accept they enjoy a strong and close relationship.

13. Australian citizen children: The applicant and Mr B have a five-year-old daughter, who was born in Dubai. The child is an Australian citizen.

14. Extended family in Australia: The applicant’s parents live in Russia. She has had little contact with her father since she was a child and describes her relationship with her mother as close but strained. She has no siblings and no living grandparents.

15. Through her marriage to Mr B, the applicant has a large extended family residing in Australia. The family is close and many live in close proximity to where the applicant and Mr B plan to live on their return to Australia. The applicant’s mother-in-law and various relatives have provided statements in support of the applicant’s application for citizenship and attest to the closeness of their relationship with the applicant. The applicant’s mother-in-law has visited the applicant and her family in Dubai on two occasions. The applicant’s sister-in-law also visited the family in Dubai.

16. Regular periods of residence in, and return trips to, Australia: The applicant first visited Australia in February 2003 and stayed for five months, returning in August 2003 for three months. She returned again in January 2004 and stayed for 12 months while undertaking a Master of Laws at the University of Technology, Sydney. She returned to Australia in 2005, 2006 and 2008, staying on each occasion for about three weeks. The applicant spent a total of 660 days in Australia prior to the commencement of the relevant period.

17. In the relevant period the applicant travelled with her immediate family to Australia in the Christmas/New Year period in 2010/2011 and 2011/2012, on each occasion staying for about three weeks. While in Australia the family stayed with the applicant’s mother-in-law and socialised with family and friends.

18. Mr B has lived outside Australia since March 2006, initially in the United Kingdom. In May 2007, shortly after their marriage, the applicant joined her husband in the United Kingdom. In July 2008 the applicant accompanied her husband to Dubai where he had been offered employment. They continue to live in Dubai with Master A and their daughter.

19. Intention to reside in Australia: The applicant and Mr B claim that they have decided to return to Australia in time for commencement of the 2015 school year when Master A will enter Year 7. They have secured Master A’s admission to a Sydney secondary school and paid a significant admission fee. Their daughter has been enrolled in a Sydney school since she was three months old.

20. The applicant understands that her husband is able to leave his current position in Dubai, which he commenced in March 2013, with a couple of months’ notice. According to Mr B, for a number of years he and the applicant have given serious consideration to returning to Australia. He claims that since 2011 he has taken active steps to find a suitable position in Australia, including contacting recruitment agencies. From that experience he understands that to secure a position in his field he needs to be present in Australia and able attend job interviews. He admits that his intention has fluctuated in the past, but says he and his wife are now firmly committed to returning to Australia and “have drawn the line” at the end of 2014. He admits that over the past five years he probably could have found some work in Australia but claims the significant drop in income factored into his decision to remain in Dubai. He says that family and friends are now more important to him than career progression and he intends to return to Australia by the end of this year, regardless of his employment situation.

21. According to the applicant, one of the reasons she is committed to returning to Australia is because in her opinion, there is no community life in Dubai. She shares her husband’s opinion that it is now time to return to Australia to spend time with their extended family and to enable their children to be educated in Australia. She claims that if her husband cannot secure employment immediately on return to Australia, the family will live off the money set aside to cover that contingency.

22. According to the applicant, she has no intention of returning to Russia. The applicant claims that she spent a considerable amount of time and effort improving her English to ensure her smooth transition to Australia. She also claims that in making arrangements for the education of her children she has assumed that the family will return to live in Australia and remain indefinitely.

23. Employment in Australia: The applicant has not been in paid employment in Australia or the United Arab Emirates in the relevant period. She was employed on a casual basis when she lived in Australia in 2003 and 2004.

24. Business interests in Australia and overseas: The applicant has no business interests in Australia or any other country.

25. Ownership of property in Australia: In December 2009 the applicant and Mr B purchased a residential property in Sydney which they hold as joint tenants. Each claim they purchased the property with the intention of making it the family home on their return to Australia. The property is tenanted and according to the applicant will remain so until the family returns to Australia.

26. Money invested in Australia: Prior to the purchase of that property the applicant transferred all her savings from Russia to a savings account in Australia. The money was used to purchase the residential property.  The applicant holds no money or assets in Russia.

27. The applicant and Mr B have held a joint Australian bank account since at least 2010. According to the applicant any money saved from her husband’s current salary is remitted to that account.

28. Evidence of income tax paid in Australia in respect of the relevant period: The applicant pays tax in Australia on the rental income received from the residential property she owns with her husband.

29. Evidence of active participation in Australian community-based activities or organisations: During the relevant period apart from the baptism of her children in the local church attended by the extended family, the applicant has had no involvement in Australian community-based organisations. She and her husband have maintained reasonably regular contact with friends in Australia. A large number have prepared letters in support of the applicant’s application for citizenship.

    Did the applicant have a close and continuing association with Australia throughout the relevant period?

30. Whether the applicant had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.

31. 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”.

32. In the exercise of its review function the Tribunal must take into account any relevant statement of governmental policy, in this case the Australian Citizenship Instructions, unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The applicant submits the Instructions should not be strictly applied and that there is no requirement that “exceptional circumstances” be found before there can be a departure from the stated policy:

    In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given if the person has 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).

33. The Instructions are not intended to dictate how a discretionary power, such as that conferred by s 22(9), is to be exercised (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J). While the tribunal is not under a statutory duty to regard itself bound by the policy, it is entitled to treat the policy as a relevant consideration (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 at paragraph [41]). The tribunal, while having regard to relevant policy and the desirability of consistency in decision-making, must not abdicate its functions of determining whether the decision under review was, on the material before it, the correct and preferable one having regard to the justice of the outcome in the individual case (Hneidi at paragraphs [41] - [45]; Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315 at paragraph [43]).

34. The applicant argues that this is an appropriate case to depart from the Instructions, given the evidence of her close and continuing association with Australia as demonstrated by: her long term relationship with her Australian citizen husband; her Australian citizen daughter; her large extended Australian family with whom she maintains regular and meaningful contact; her firm intention to return to Australia with her immediate family within a year; the significant decision to transfer her life savings to Australia; her ownership of a residential property in Sydney, where she will live with her family on their return; her contribution to Australian society through the payment of income tax; her association with Australia through a network of friends, and some association with the Australian community through the Catholic church where her children were baptised.

35. While the applicant concedes that she has spent relatively little time in Australia she contends that this is not determinative. Further she contends that her extended absence from Australia was the result of a combination of circumstances, including: her mother’s poor health which necessitated travel to Russia; the difficulty and cost of travelling between Dubai and Sydney with two children; and, the limited opportunity to travel on account of her husband’s employment in Dubai.

36. The applicant contends that the notion implicit in the Instructions that in the context of s 22(9) the word “Australia” carries a limited geographical sense, should be rejected. In support she points to the definition contained in s 3 of the Act – ‘“Australia’ when used in a geographical sense, includes the external Territories”. She submits that in the context of s 22(9) Australia should not be given a narrow geographical meaning but rather interpreted to encompass the notion of identity as created by, among other things, Australia’s political, social, cultural and linguistic systems and customs. She contends that current technologies enable her to maintain seamless and instantaneous contact with friends and family resident in Australia and the Australian cultural and political landscape and maintain a meaningful association with Australia even while not physically present.

1. She submits that in the evaluation of her association with Australia, her association prior to the relevant period should also be taken into account. This includes her travel, studies, and association with friends.

2. The Minister contends that the applicant has “not come close” to satisfying the residency requirement, having spent only 49 of the 1460 days in the relevant period, in Australia. Consistent with the Instructions, the Minister submits that less weight should be given to those factors which taken together might favour a finding that the applicant has a close and continuing association with Australia. The Minister submits the applicant is not assisted by the cases cited in support of her application, pointing out that while in each case the Tribunal exercised the discretion in s 22(9), each applicant had spent considerably more time in Australia than the applicant:

   Re Tanko and Minister for Immigration and Citizenship [2011] AATA 122, where the applicant spent 203 days in Australia in the four years prior to making his application for citizenship

   Re Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689 where the applicant spent 498 days in Australia in the four years prior to making his application for citizenship

3. I accept that the applicant and her husband are committed to returning to Australia by the end of this year. It is apparent that for a period their return was contingent upon Mr B being able to secure suitable employment in Australia. I accept that the pull of Australia is such that they are now prepared to return without a guarantee of employment and with the attendant risk of being without income for a period. Their actions in putting aside money to fund this contingency and enrolling their son to start secondary school, is further evidence of their intention to return to Australia in the near future. I accept the applicant’s claim that she has no intention of returning to live in Russia or remaining in the United Arab Emirates, and is now deeply committed to making Australia her home.

4. I also accept that the applicant’s absence from Australia throughout the relevant period does not indicate any ambivalence towards, or lack of commitment to, Australia but rather is the result of a combination of circumstances which have made it impractical for her to spend any significant time Australia in the relevant period.

5. There can be no doubt that throughout the relevant period the applicant maintained continuing contact with Australia. The real issue is whether the nature of that association can be described as “close and continuing” in circumstances where the applicant has spent little time in Australia. I agree with the applicant that physical presence is not the sole but rather one of a number of indicia of association. I also agree that the applicant satisfies many of the factors listed in the Instruction.

6. The Instructions must not be inflexibly applied and do not create a de facto rule that a person who has not been present in Australia for at least 365 days in the relevant period cannot be found to demonstrate “a close and continuing” association with Australia. Nonetheless the Instructions are a relevant factor to be taken into account in reaching the preferable decision. In my opinion despite the powerful arguments advanced by the applicant this is not an appropriate case to depart from policy which requires less weight to be given to the factors listed at cl 5.18 of the Instructions where the person has not been present in Australia for at least 365 days in the relevant period. Adopting that approach and having regard separately and together to those factors which support a finding that the applicant has an association with Australia, I am not persuaded that during the relevant period that association could be described as one that is “close and continuing”. I must therefore affirm the decision under review.

7. In reaching this decision I have confined myself to an evaluation of the nature of the applicant’s association for the purpose of exercising the discretion conferred by s 22(9). I have no reason to doubt as attested by the many people who provided letters in support of the applicant’s application to the AAT that she is a person of good character who is likely to make a significant contribution to the Australian community. That however is not the question before me. The question I must decide is whether she had the requisite association with Australia during the relevant period.

   (2) MASTER A’S APPLICATION FOR CITIZENSHIP

8. Section 21(5) of the Act deals with applications for citizenship by persons under 18 years of age.

   Person aged under 18

   (5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged under 18 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

9. The Instructions provide:

   5.11.1 The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines

   …

   5.11.5 Applicants under the age of 16

   …

   Children under the age of 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

   …

   ·are under 16 years of age when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (see section 5.17 Ministerial discretion - significant hardship or disadvantage (s 22(6)) or

   …

   In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

   …

   Children under the age of 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s 24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

   ·the child was living in Australia with the relevant responsible parent and

   ·the relevant responsible parent consented to the inclusion of the child in their application.

   …

   In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.

   …

   Note: If a child under the age of 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed against the policy guidelines for children under the age of 16 applying individually in their own right.

   …

10. Master A holds a permanent Australian visa and has spent a total 66 days in Australia. He does not satisfy the guidelines in the Instructions applying to children under 16 years who apply for citizenship on the same form and at the same time as a parent because at the time his application for citizenship was made, he was not living in Australia with his mother. Nor does he satisfy the policy applying to children under 16 who apply for citizenship in their own right because there is no evidence and nor is it suggested, that Master A would suffer any significant hardship or disadvantage if his application for citizenship was refused.

11. It follows that the preferable decision is to affirm the decision made by the Minister to refuse to grant citizenship.

    Confidentiality orders

12. After this decision was handed down the applicant requested the tribunal not to publish its reasons for decision. She contended that her husband’s employment in the UAE might be jeopardised if his employer were to learn of his intention to return to Australia.  The Minister opposed the application.

13. The applicant’s primary concern as I understand it is the electronic publication of the decision.  Decisions of the AAT are routinely published on the Australasian Legal Information Institute website, which provides free internet access to judgements and decisions of most courts and tribunals in Australia.

14. Section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) confers power upon the Tribunal to make directions to restrict the publication of the names of the parties to the proceedings and to allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149.

15. While not the most compelling reason for seeking a restriction on publication, I accept that the applicant’s husband has legitimate concerns about the ramifications if his current employer were to learn of his stated intention to return to Australia. Despite the presumption in favour of openness enshrined in s 35 of the AAT Act I have therefore decided to prohibit the publication of his name. I have also decided to prohibit the publication of the applicant’s name as her identification might disclose the identity of her husband. In any published reason for decision the applicant will be referred to by the pseudonym “PNYL”, and the husband, as “Mr B”.

16. These orders are in addition to those that were made at the hearing with the consent of the parties prohibiting the publication of the names of the applicant’s children.   

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

.................[SGD].......................................................

Associate

Dated 18 March 2014 (as amended 28 April 2014)

Date(s) of hearing	6 January 2014
Date final submissions received	24 March 2014
Advocate for the Applicant	Lenord Cordaro
Solicitors for the Joined Party	Australian Government Solicitor