Vasiunina v Minister for Immigration and Border Protection
[2018] AATA 943
•19 April 2018
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 (19 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5591
Re:Valeriia Vasiunina
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:19 April 2018
Place:Sydney
The decision under review, being the decision made on 31 August 2017 to refuse the Applicant’s application for Australian citizenship, is set aside. The decision is remitted to the Minister with the direction that he reconsider the decision in accordance with these reasons.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP - application for citizenship by conferral - refusal of citizenship - whether applicant maintains a close and continuing association with Australia - application of Citizenship Policy - decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 22
Migration Regulations 1994 (Cth), Schedule 2, cl 155.212 (3A)
CASES
Al-Hadethi v Minister for Immigration and Border Protection [2016] AATA 447
Corrigan v Minister for Immigration and Border Protection [2017] AATA 2880
Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634
Ho v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 664
Jacobellis v Ohio, 378 US 197 (1964)
Jiang v Minister for Immigration and Border Protection [2011] AATA 688
Judd v Minister for Immigration [2017] FCA 827
Kilpi v Minister for Immigration and Citizenship [2012] AATA 605
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Li v Minister for Immigration and Border Protection [2015] AATA 270
Minister for Immigration and Border Protection v Han [2015] 231 FCR 113
Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] 29 ALD 656
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Rasiah v Minister for Immigration and Border Protection [2015] AATA 630
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Saba v Minister for Immigration and Border Protection [2014] AATA 579
Surjanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689Taher v Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492Yang v Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (John Cobb)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 April 2018
THE MATTER FOR DETERMINATION
The question before the Tribunal is a relatively simple one: are the facts in this particular case such that the Minister should exercise his discretion to grant Ms Valeriia Vasiunina citizenship by conferral despite her not meeting the residency requirements of s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act)?
The Tribunal in answer finds: Yes, for the reasons set out below.
PERSONAL DETAILS
The Applicant, Valeriia Vasiunina, is a citizen of the Russian Federation.
Ms Vasiunina is in a spousal relation with Mr Philippe Baudry, an Australian citizen whom she first met in Chelyabinsk (Russian Federation) in April 2006. Theirs has been an on-going genuine relationship since that date and has been recognised by the grant of a Permanent Partner (Migrant) visa in 2011. She was previously granted a Partner (Provisional) visa in September 2008.
They are parents of a child, Mark, born in the Russian Federation in 2014. Mark is entitled to Australian citizenship by descent.[1] As of this time he has not acquired that citizenship. In her Statement, Ms Vasiunina explained that this is due to bureaucratic delays in the Russian Federation regarding registration of his birth, suggesting that once these are overcome, the necessary application will be made.[2]
[1] Australian Citizenship Act 2007 (Cth), s16(2).
[2] Statement of Valeriia Vasiunina (15 December 2017) at [29].
MATTERS IN ISSUE
On 21 April 2016 Ms Vasiunina made an Application for Citizenship by conferral under s 21(2) of the Australian Citizenship Act.[3]
[3] Tribunal Documents at 126-137.
On 31 August 2017 the delegate of the Minister made a determination refusing the application.[4]
[4] Tribunal Documents at 8-20.
The grounds for the refusal were that the applicant failed to satisfy two of the conditions which must be met under s 21(2) of the Act, namely sections which require that “the person”:
21(2)(c) satisfies the general residence requirement … or the specific residency requirement …, or satisfies the defence service requirement … at the time the person made the application; and
…
21(2)(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 Respondent finds that the Applicant has met all of the other requirements in subsections (a), (b), (d), (e), (f) and (h) of the Act, the details of which are of no further material.[5]
[5] Tribunal Documents at 19.
The basis of the Respondent’s decision is grounded in its assessment that the amount of time which Ms Vasiunina has actually spent in Australia is insufficient to meet the requirements of s 21(2)(c) and that her history indicates that she “is not likely to reside in Australia, continue to reside in Australia or maintain a close and continuation association with Australia” to meet the requirements of s 21(2)(g).
The Applicant accepted that Ms Vasiunina was not able to meet the residency requirements[6] in terms of the time spent in Australia and so this matter was not further explored by the Tribunal.
[6] Applicant’s Statement of Facts, Issues and Contentions at [3].
That left only one question for determination: does Ms Vasiunina have “a close and ongoing association with Australia”, such that, if it is so established the Minister should exercise his discretion to set aside the residence requirement and grant the Applicant citizenship by conferral.
THE APPLICANT’S VISA STATUS
·Between 2006 and 2008 Ms Vasiunina held a number of Tourist (Short Stay) (subclass 676) visas.
·In September 2008 she was granted a Partner (Provisional) (subclass 309) visa.
·On 6 January 2011 she was granted a Permanent Partner (Migrant) (subclass 100) visa.
·On 12 April 2016 she was granted a Resident Return (subclass 155) visa which she has not used since she last departed Australia on 27 January 2013.
·On 30 June 2017 she was granted a second Resident Return (subclass 155) visa which is in effect until 30 June 2018.
TIME SPENT IN AUSTRALIA: THE LEGISLATIVE CONTEXT
Although the Applicant concedes that she does not meet the residency requirements, it is necessary to explore this matter a little further in order to establish how the matter of ministerial discretion arises in cases such as this and because some of the earlier data will be relevant in my further considerations.
In the period from first meeting her partner in Chelyabinsk (Russian Federation) in June 2006 until 21 April 2012, Ms Vasiunina made five trips to Australia[7] accompanied by Philippe, several of which were in order to meet his family and plan their wedding. This wedding was put “on hold” due to Philippe’s transfer to Beijing.
[7] 26 December 2006 - 17 January 2007; 5 December 2007 – 24 January 2008; 26 December 2008 - departure date unspecified; 3 July 2011 – 16 July 2011; 11 April 2012 – 16 April 2012. Applicant’s Statement of Facts, Issues and Contentions at 2-3.
The date of 21 April 2012 is important because it establishes the relevant date four years prior to the Applicant’s citizenship application.
Decisions on applications such as this are not only subject to the requirements of the legislation itself, but also to a series of what are called “Ministerial Discretions” as set out in the Citizenship Policy (the Policy). This document (dated 1 June 2016) provides ministerial guidance to decision makers as to how to exercise those discretions which are available under the Act.
LEGISLATION: THE AUSTRALIAN CITIZENSHIP ACT
The Australian Citizenship Act regulates the processes by which individuals acquire and retain citizenship of Australia. The relevant sections which bear upon this application are set out below.
Overseas absences
22(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
22(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Ministerial discretion--spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
22(9) 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.
POLICY
Relevantly, in Chapter 7A of the Policy, in reference to the tests to be met under sections 22(9) and 22(10) of the Act related to applications by “spouse and de factor partners”, it is provided that:
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:
·evidence that the person migrated to and established a home in Australia prior to the period overseas
·Australian citizen children
·long term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four year and
·evidence 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 s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four 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 Australia for at least this period.
It is conceded that in the four years from 21 April 2012 to 4 April 2016, Ms Vasiunina was present in Australia only on one occasion, from 27 January to 11 February 2013. After February 2013 the Applicant did not visit Australia again until 28 March 2018, which was for the purpose of attending the Tribunal hearing for this matter.
Policy, however, is not the same as law. As this Tribunal said in Aston, “[p]olicy is not law. A statement of policy is not a prescription of binding criteria.”[8]
[8] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 (6 November 1985) at [21].
Indeed, I note the comment of Senior Member McCabe (as he then was) in Kumar to the effect:
I do not accept the Australian Citizenship Instructions[9] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation.[10] (emphasis in original)
[9] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1.
[10] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 (18 December 2014) at [7].
Nevertheless, I must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions such as those arising here.[11]
[11] Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634, at 644-645.
Australian Citizenship Bill 2005
Subdivision B – Citizenship by conferral (sections 20-24 of the Act) was incorporated into the Act by passage of the Australian Citizenship Bill 2005 (Cth).
It is clear from both the Explanatory Memorandum and the Second Reading Speech that the object of these new provisions were to make it more onerous spouses to obtain grants of citizenship by conferral. This policy was made explicit:
However, as announced in July 2004, spouses of Australian citizens will need to meet the same requirements as other applicants. And, as announced by the Prime Minister on 8 September, the residential qualifying period of not less than two years in Australia in the previous five years is being extended to three years. There will be no change to the requirement to have spent one year in Australia in the two years immediately prior to making the application.
…In the future, up to two years spent outside Australia as a permanent resident or in Australia as a temporary resident may be treated as time spent in Australia as a permanent resident, provided the person has been involved in activities beneficial to Australia. These applicants will therefore need to have spent a minimum of 12 months in Australia as a permanent resident.
There will be only two circumstances in which a person will be exempt from the requirement to spend at least 12 months as a permanent resident.
The first circumstance involves the spouse of an Australian citizen. Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas—for example, in association with their spouse’s employment. The definition of ‘spouse’ for the purpose of this provision will include a de facto spouse.[12] (emphasis added)
[12] Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (Hon John Cobb MP).
This deliberate tightening up was remarked upon by the Federal Court in Han[13] in the following terms:
[51] One of the obvious purposes of the Act, which is manifest in ss 21 and 22(1), is to specify the criteria which have to be met for a person to obtain Australian citizenship by conferral. Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.
[13] Minister for Immigration and Border Protection v Han [2015] 231 FCR 113..
This tighter regime was enacted with the provision that the Minister, by use of his or her personal discretion, could “ameliorate” this policy by waiving part or all of the residence requirements. Again in Han:
[54] The passages emphasised above indicate that it was intended that spouses of Australian citizens should generally meet the same criteria as other adult applicants and not merely rely on a spousal relationship. It is equally evident, however, that it was intended to ameliorate this policy by conferring discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.[14]
CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA VERSUS CLOSE AND CONTINUING ASSOCIATION WITH AN AUSTRALIAN
[14] Ibid at [54].
A crucial element of the Applicant’s case is put squarely in her Statement of Facts, Issues and Contentions, which reads as follows:
The applicant contends that the delegate, at p. 15 of the T-Documents, was in error to make a distinction between a close and continuing association with Australians and a close and continuing association with Australia, with the suggestion – frequently made by the Tribunal – that having a close and continuing association with an Australian is not the same as having a close and continuing association with Australia. There is no warrant in the Citizenship Act to make such an artificial distinction, and it is contended that the Tribunal is entitled to give weight to a person’s close and continuing association with an Australian; for example through marriage or a de facto relationship, as a factor to be take into account in deciding whether that person had “a close and continuing association with Australia.”[15]
[15] Applicant’s Statement of Facts, Issues and Contentions at [8]. Footnote omitted.
Further, the Applicant contends in relation to a spousal relationship:
There is no reason why the spouse of an Australian citizen who has spent minimal time – or even no time - in Australia during the relevant period cannot, as a matter of fact, be regarded as a person who has had a close and continuing association with Australia within the meaning of s 22(9)(d) of the Citizenship Act, since the purpose of the provision is to give an opportunity to the Minister to exercise discretion where the applicant has not been present in Australia.[16]
[16] Ibid at [10] (emphasis added, footnote omitted). See also Kilpi v Minister for Immigration and Citizenship [2012] AATA 605.
It will be necessary to set out the authorities on this question which has come before the Tribunal and the courts on numerous occasions and because, typically, the phrase “close and continuing association” is not defined in legislation.
The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
·does it mean merely a physical place on the face of the plant, a continent girt by sea?; or
·does it mean the concept of Australia as a nation – diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
There is nothing to be gained by searching elsewhere for a useful definition of what is meant by “Australia” in this context. The Acts Interpretation Act 1901 (Cth) for example merely states:
“Australia” means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.[17]
[17] Acts Interpretation Act 1901 (Cth), s 2B.
Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
Equally, the question “what is Australia” must include more than, in the words of US Supreme Court Justice Potter Stewart (in admittedly an entirely different context), reaching the conclusion that it is hard to define, “[b]ut I know it when I see it.”[18] If, as I have suggested, there is no judicial or legislative answer to this question, is it to be taken that some sort of mystical or metaphysical answer is expected to emerge, although from sources unknown? To date, the public/political debate about what Australia is or what its defining values might be, has been less than edifying.
[18] Jacobellis v Ohio, 378 US 197 (1964). “I shall not today attempt any further to define the kind of material I understand to be embraced within the shorthand … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”
This leaves me with nothing but a physical/geographical definition under which all that is needed in order to satisfy a “close and continuing association”, is, as I have said, a physical presence in a geographic space at a particular time. So, is it enough simply to be present in the country for a specified period of time without having any personal or emotional involvement in the community or the life of the nation?
If so, does it mean that a person held indefinitely in some form of immigration detention inside the migration zone (either at Villawood, NSW or on Christmas Island[19]) for a number of years qualifies as having a “close and continuing relationship with Australia”? Would a member of a foreign airline crew who lay-over in Australia for several days each month for several years qualify? That surely cannot be the case. I believe the Parliament must have intended something more substantial and less ethereal than that.
[19] Christmas Island is included in the definition of “Australia” in the Acts Interpretation Act 1901 (Cth) at s 2B.
Equally, it seems to me that words such as “close” and “continuing” import some degree of emotional commitment or attachment. They require involvement, participation, commitment or investment.
The Applicant contends that for a number of reasons, which I shall examine later, Ms Vasiunina qualifies as having this “close and continuing association” without being physically present in Australia for the time required. The Respondent disputes this.
The authority in this area is far from unambiguous.
In Taher v Minister for Immigration and Border Protection [2013] AATA 917, the Tribunal held:
[47] In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
On the face of it, this is not favourable to the Applicant. However, the phrase “in every case” clearly indicates that in some cases there may be a basis for adopting a different position and the fact that ministerial discretion is available to waive residency requirements also indicates that failure to meet them is not necessarily fatal to an application.
This point was made in this Tribunal’s decision in Paula[20] where Senior Member Bell held that:
[30] The Instructions say that “more weight” should be given if a person has been lawfully and physically present in Australia for 365 days in the four years immediately before the person applied for citizenship. According to the Instructions “less weight” should be given if the person has not been present for at least 365 days.
[31] The Instructions do not raise a failure to be present for 365 days in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally.
[20] Paula and Minister for Immigration and Citizenship [2012] AATA 543.
In Paula, the Tribunal established that the length of time in Australia could be assessed on a “sliding scale” when considering the exercise of discretion.
In Jiang v Minister for Immigration and Border Protection [2011] AATA 688, the Tribunal found:
[26] In cases where the Tribunal has exercised the discretion in s 22(9) in favour of an applicant, additional aspects of association with Australia have been present, including:
• property ownership; studies at an Australian University; membership of professional associations; multiple applications for employment or
• ownership of, and work on, a farm; substantially more time spent in Australia in the relevant period; AusAID supported humanitarian work in family-unfriendly locations as the reason for absence from Australia; or
• a senior position in an Australian export company; ownership of residential and investment property in Australia; payment of taxes in Australia; close friendships with Australians; and substantially more time spent in Australia in the relevant period.
[27] Mr Jiang’s association with Australia falls well short of these cases. Mr Jiang’s commitment to his Australian citizen wife and daughter is not in doubt. Theirs is clearly a strong marriage and a loving family, which has been since Mr Jiang and Ms Gong were married more than 20 years ago and would remain so regardless of where they each resided. However, in the absence of close associations with Australia beyond his devotion to his Australian citizen family, I am not satisfied that Mr Jiang’s association with Australia is close and continuing.
Again, although not on the face of it favourable to the Applicant, it is nevertheless accepted that there are a range of factors which might be taken into account in assessing the “close and continuing association” requirements, none of which was available to Mr Jiang but which may be to Ms Vasiunina.
In Yang v Minister for Immigration and Border Protection [2017] AATA 364, Senior Member Cotter remarked:
[34] On behalf of the Minister, it is submitted that a close relationship with Australian family members does not equate to a close and continuing association with Australia.
[35] I accept the Minister’s submission on that point. It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia.”[22]
[22] Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25] (SM Walsh). See also Taher and Minister for Immigration and Border Protection [2013] AATA 917at [47] (SM Fice); and Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52] (SM Britton).
I take this to be prima facie a statement that having a close personal association with an Australian citizen or Australian family is not – in and of itself – sufficient to attract the “close and continuing association” requirement. Nevertheless, that association can be a material fact in making such an assessment.
The question of fact is important. In Ul Haque, SM Britton stated:
Whether or not [the applicant] has a “close and continuing association” … is a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions.[23]
[23] Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [44].
In other words, both the factual material before the Tribunal and the Policy are to be taken into account.
In Judd v Minister for Immigration [2017] FCA 827, Perry J determined:
[14] The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances ”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
Again, I read this as authority for taking a broad approach, including many factors, in determining what constitutes the “close and continuing association” requirement, whereby I am to rely on “the ultimate significance of the applicant’s circumstances.”[24]
[24] Li v Minister for Immigration and Border Protection [2015] AATA 270 at [27].
THE EVIDENCE OF WITNESSES
I turn now to the evidence of witnesses. The applicant called a number of witnesses to assist the Tribunal.
Hon Timothy Fischer AC[25]
[25] When I was notified, the day before the hearing, that the Applicant proposed to call Hon Tim Fischer AC as a witness, I contacted both parties to inform them that I knew Mr Fischer personally from a previous professional association. I offered them the opportunity to object to my sitting under those circumstances. Both parties indicated that they raised no such objection; both in writing prior to the hearing and orally at the commencement of proceedings.
Hon Timothy Fischer AC is a former Deputy Prime Minister of Australia who has held numerous ministerial and parliamentary offices and has served as Australian Ambassador to the Holy See. Mr Fischer was able to give evidence about the nature of Mr Baudry’s business dealings in China, Russia and Mongolia. He told the Tribunal of the value of Mr Baudry’s work in the mining sector through his company Runge Pincock Minarco (RPM) which supplies advanced industry software for mining operations. He indicated that Mr Baudry (who is his nephew) and Ms Vasiunina had been guests of his on several occasions during his time at the Holy See and that they had also spent time together in Australia. He was aware of Ms Vasiunina’s current visa status and history and gave strong support to the proposition that the couple regarded Australia as their home and had every intention to return here to reside permanently.
Mr Philippe Baudry
Mr Philippe Baudry gave evidence about the nature of his business activities in China and Russia in particular. He told the Tribunal that he was a shareholder in RPM. He affirmed that he owns a property (home) in Perth but would like to return to live in Sydney. I might, parenthetically, note that the Respondent placed some weight on the fact that Ms Vasiunina is herself not listed as a joint owner of the Perth property, but that is a fact to which I give little or no emphasis. Not all family homes are jointly owned in a legal sense. He was challenged on the basis that if circumstances changed, especially given the volatile nature of the mining industry, he might continue to reside overseas for much longer but to this he answered that he had had enough of living in China for the last nine years and that having a new young son was further incentive to return to Australia within the next 18 or so months. He indicated that he was a tax-payer in both the Russian Federation and China (which has a double taxation arrangement with Australia).
Ms Valeriia Vasiunina
Ms Valeriia Vasiunina gave evidence in support of her application. She outlined that she was working in the Russian Federation as a medical (and alternative medicine) practitioner and had sought to have her medical degree (she graduated after six years study with distinction from the Chelyabinsk State Medical Academy of the Federal Agency of Public Health and Social Development)[26] recognised in Australia. She emphasised the fact that until Mr Baudry was transferred to Beijing in September 2008 she had made several trips to Australia to meet his family and to plan their wedding (which did not take place due to the transfer). She outlined the assistance which she provided to Mr Baudry in his business activities especially in the Russian Federation. She emphasised the extent to which she would like her son Mark to gain Australian citizenship once bureaucratic hurdles had been overcome in the Russian Federation. She has never worked in Australia, and hence never been an Australian taxpayer. When pressed by the Respondent, Ms Vasiunina stated that she regarded Australia “as home” but agreed that if circumstances changed for her partner, she would continue to reside overseas with him, which of course, is perfectly understandable. In the meantime, she said that she and Mr Baudry had been saving money through a managed fund[27] as the basis for acquiring property in Sydney upon their return.
[26] Statement of Valeriia Vasiunina at [5].
[27] Statement of Valeriia Vasiunina at [37]. Also Tribunal Documents at 203. There is, in addition a joint NAB bank account (Tribunal Documents at 196) and joint coverage health insurance (Tribunal Documents at 197).
I found all three witnesses to be people of a high degree of credibility. Their evidence was direct and cogent and I have no reason to doubt or gainsay any of it.
The Applicant had proposed to call Mr Baudry’s CEO, Mr Richard Mathews, but he was unavailable. However, he had provided a written statement, which, by agreement between the parties, was accepted unchallenged. The relevant part of the statement includes the following:
Philippe’s current role is global and due to his ongoing close relationships with some of our key Asian and Russian clients Philippe is required to continue to be based in China and Russia.
Due to Philippe’s shift towards a more corporate focused role it is likely that in the coming years Philippe will be required to spend more time and eventually will be required by RPM to relocate back to Australia on a full time basis.[28]
[28] Tribunal Documents at 188/189.
There is one other letter of support which I regard as worth quoting. This is from Mr David Meldrum who wrote:
In our discussions with Valeriia and Philippe it is clear that whilst they are overseas for Philippe’s employment, they have always considered Australia as home and intend to return to Australia once Philippe’s role overseas is complete. To that end we once spent a day driving around Sydney showing them how great a city it is and why they should return to Sydney rather than Perth where they have a house.[29]
[29] Tribunal Documents at 187.
Taking this combination of evidence and authority into account, I am led to make the following findings in relation to Ms Vasiunina:
(a)She is in a long-term continuing relationship with an Australian citizen;
(b)She has a son who is entitled to Australian citizenship by descent and for whom she will be seeking that citizenship once bureaucratic paperwork delays are sorted out in the Russian Federation;
(c)Since the commencement of her relationship with Mr Baudry, and prior to his physical relocation to Beijing, she made several visits to Australia to meet his family and to plan their wedding;
(d)She has maintained and ongoing degree of contact with members of Mr Baudry’s immediate and extended family[30] a matter tested under examination before the Tribunal and not called into question;
(e)Following her spouse’s relocation she has remained with him working in both China and the Russian Federation;
(f)She has been an active contributor to Mr Baudry’s business activities[31] which themselves have been valuable to the Australian economy and the development of Australian business interests in China in particular.[32] This is reminiscent of the older test in the Migration Act as it was back in 1994, where “activities beneficial to the interests of Australia” were seen as a positive factor in assessing citizenship applications;[33]
(g)Her spouse owns property in Australia and as a couple they are intending to acquire property in Sydney, they have specifically arranged to save for that event, and they have inspected potential home sites;
(h)She and her spouse have several joint financial accounts;
(i)Her bona fides have, in the past, resulted in the grant of a Permanent Partner (Migration) visa and a Resident Return visa;
(j)She has a genuine desire, as does her spouse, to return to Australia within a reasonable period of time; and
(k)She regards Australia as the place where she wants to live and raise her family.
[30] Statement of Valeriia Vasiunina at [27].
[31] Ibid at [26].
[32] Tribunal Documents at 188-9.
[33] Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] 29 ALD 656,660 (Einfeld J); and Ho v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 664.
I should comment further on just two aspects of the above.
In relation to the business connections and their value, I accept the claim made by the Applicant that:
In much the same way, a non-citizen may satisfy the requirement for a subclass 155 Resident Return visa that he or she have “substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia” without having entered Australia in the preceding five years.[34] The Procedural Advice Manual (PAM) guideline on this provision notes that, since the word “substantial” is not defined in migration law, its ordinary meaning applies, so as to mean ties which are “considerable”. It is highly relevant that the applicant satisfied this requirement in order to be granted her subclass 155 visa on 12 April 2016.[35]
[34] Migration Regulations 1994, Schedule 2, cl 155.212 (3A).
[35] Applicant’s Statement of Facts, Issues and Contentions at [13] (citations omitted).
I note that 12 April 2016 falls within the four year period during which Ms Vasiunina’s residency status was being determined.
I also note that this aspect of Ms Vasiunina’s application was the focus of the persuasive and cogent evidence given by Mr Fischer whose previous experiences at the highest level of Australian government qualify him to pronounce on such issues.
The other question is the timing of any prospective return to Australia. In this respect, the Respondent sought to press the point that this was described by both the Applicant and her spouse in rather vague terms, for example being “in the order of 18 months or so.” Given the nature of Mr Baudry’s business I accept this as a reasonable proposition, and the evidence from Mr Mathews is that his company is planning for his return and that under their direction he is making arrangement to “transition some of his key customer relationships (while still retaining the most senior ones) to local employees who better understand the culture and idiosyncrasies within the country.”[36] I also recall Mr Baudry’s comments in evidence that living in China for nine years was “enough”, especially that he now has a child.
[36] Letter of Mr Mathews dated 23 March 2018, supplied as an attachment to an email of 27 March 2018 addressed to the Tribunal. This document was handed to the Tribunal during the hearing.
In Rasiah v Minister for Immigration and Border Protection [2015] AATA 630, the Tribunal determined that the Applicant had met seven of the then eleven indicia required[37], including
[49] Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration and Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration and Border Protection and Sie v Minister for Immigration and Border Protection, that the intention must be “immediate or with some reasonable proximity”. If that were so, the phrase in the ACI’s would state “immediate or reasonably proximate intention to reside in Australia.
[37] Under the then Australian Citizenship Instructions which preceded the current Citizenship Policy.
This is the construction which I adopt. I find that the plans enunciated by Ms Vasiunina and Mr Baudry, supported by the external evidence of Mr Mathews, are such to allow me to conclude that the applicant has a genuine “intention to reside in Australia” in the terms that are used in the test set out in the Policy.[38]
[38] The facts in this case allow it to be distinguished clearly from the findings upon which this Tribunal based its decision in Corrigan v Minister for Immigration and Border Protection [2017] AATA 2880.
Given I have made these findings, how do they inform the outcome in a correct and preferable decision?
In Yang, Senior Member Cotter encapsulated this as follows:
[26] Previous decisions of the Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including but not limited to, factors listed in the Policy.[39] The forming of an opinion as to whether a person has demonstrated the requisite association is ‘not a simple mechanical exercise to be undertaken merely tallying the relevant factors”,[40] or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied.[41] What is required is:
… a qualitative assessment of the ultimate significance of an applicant’s circumstances and whether or not they merited characterisation as evidence of a “close and continuing association with Australia.[42]
[39] Surjanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689 at [28]; Al-Hadethi v Minister for Immigration and Border Protection [2016] AATA 447 at [36].
[40] Surjanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689 at [28].
[41] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[42] Li v Minister for Immigration and Border Protection [2015] AATA 270 at [27].
In other words, there is a balance to be struck here. In the words of this Tribunal in Taher, “[i]t is the combination and association of these factors which may demonstrate a close and continuing association with Australia.”[43]
[43] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [47].
If I turn to consider my findings in relation to Ms Vasiunina as set against the criteria which are outlined in the Policy and which are set out in para [18] above, I start by noting with approval the comment made by Senior Member Taylor SC in Saba v Minister for Immigration and Border Protection:[44]
[48] Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions[45] themselves. There are eleven factors listed. Five of those factors … are essentially concerned with personal relationships. Three of them are concerned with the [sic] either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership or tax obligations. Only one factor, the last one listed, refers to participation in ‘Australian community based activities and organisations”.
[44] [2014] AATA 579.
[45] These “Instructions” have since been replaced by the Citizenship Policy (1 June 2016) in the same terms.
When I compare Ms Vasiunina’s position against those eleven criteria I find that she clearly satisfies:
·Australian citizenship children (eligible);
·Long term relationship with Australian citizen spouse or de facto partner;
·Extended family in Australia;
·Regular return visits to Australia (prior to Mr Baudry’s overseas positing); and
·Intention to reside in Australia.
I would give her some credit on:
·Ownership of property in Australia (albeit in the name of her partner)
I am not sure whether or not her active participation in assisting Mr Baudry in his business qualifies as being related to the criteria of “active participation in Australian community based activities or organisations” as his employer is an Australian company. I am not in a position to make any finding on this.
As she has never worked in Australia, she cannot have been a tax payer. This also prevents her from being considered as being “on leave from employment in Australia while accompanying their spouse or partner overseas.”
It is conceded that she has not “migrated to an established home” in Australia – although her partner does own one in Perth; and that she has not had “regular periods of residence in Australia.”
Given this, I am nevertheless content to find that taking into account:
·the “combination and association of factors” (Taher);
·the “qualitative assessment of the ultimate significance of an applicant’s circumstances” (Li);
·the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach” (Judd); and
·“a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions” (Ul Haque)
on balance, Ms Vasiunina satisfies the test of having a “close and continuing association with Australia.”
MINISTERIAL DISCRETION
In terms of s 22(9) of the Act, ministerial discretion is “…in reality, an exceptional power, a power to relieve someone of the consequences of failing to comply with the general rule.”[46]
[46] Kumar v Minister for Immigration and Border Protection [2014] AATA 944 at [18] (SM McCabe).
“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.”[47]
[47] Kilpi v Minister for Immigration and Citizenship [2012] AATA 605 at [49] (SM Handley).
The Exercise of Ministerial Discretion
“The discretion reposed in the Minister by s 22(9) is ‘unconfined’ in the sense referred to by the Tribunal … (in) its reasons: ‘[T]he Act does not set out criteria that govern the exercise of the discretion.’”[48]
[48] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [20] (Edmonds J) citing Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505.
Indeed, it would almost suggest that this is precisely the sort of case referred to in the Second Reading Speech (highlighted above at [24]) where an applicant/spouse is overseas in association with their spouse’s employment.
Under these circumstance I have no doubt that the Minister is empowered to exercise his discretion in favour of Ms Vasiunina and I believe that this is the course of action which he should take.
THE OBJECTIVE OF IT ALL
Finally, I pause to reflect on the ultimate object of the Australian Citizenship Act. There is no precise objective stated in the legislation but we know from a series of government policy statements which date back to the earliest days of the first federal parliament that citizenship is integrally about nation building, bringing together people committed to a common set of values and aspirations. The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
Equally, the Citizenship Policy (1 June 2016) states:
Citizenship is a cornerstone of Australia’s inclusive and pluralist democracy.
Australian citizenship is the unifying bond for all Australians and is fundamental to a cohesive, multicultural society with shared rights and responsibilities. It is also an important step in a migrant’s journey to becoming a full member of the Australian community.[49]
[49] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 15.
It seems to the Tribunal that for these aspirations to be achieved, something more than mere physical presence in a geographic space at a particular time is required.
“Citizenship” has to mean more than that. It has to import an element of engagement – at least to some degree. The activity of belonging, of contributing, of being committed, and the sense of common membership and shared values are the basis upon which citizenship is built.
I find these to be present in Ms Vasiunina’s application.
DECISION
The decision under review, being the decision made on 31 August 2017 to refuse the Applicant’s application for Australian citizenship, is set aside. The decision is remitted to the Minister with the direction that he reconsider the decision in accordance with these reasons.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 19 April 2018
Date(s) of hearing: 28 March 2018 Counsel for the Applicant: Mr N Poynder, Barrister Solicitors for the Respondent: Mr T Aviram, Clayton Utz
[21] Citations omitted.
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