Watkins and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 224

Watkins and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 224 (10 February 2022)

Division:GENERAL DIVISION

File Number(s):     2021/3729

Re:Lucy Watkins

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:10 February 2022

Place:Canberra

The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

CITIZENSHIP - application for citizenship by conferral – citizenship application refused – whether the applicant is likely to reside or continue to reside in Australia and maintain a close and continuing association with Australia – spouse of Australian citizen - lengthy periods of absence from Australia in four year period before citizenship application - whether discretion should be exercised to treat Applicant as having been present in Australia as a permanent resident during periods of absence – Tribunal not satisfied Applicant had close and continuing association with Australia – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 29(7), 37, 42A(4), 43(1)(a)
Australian Citizenship Act 2007 ss 20, 21, 22, 22A, 22B, 24 52(1)(b)
Superannuation Act 1990 s 79B

Superannuation Industry (Supervision) Regulations 1994 part 6

Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Judd v Minister for Immigration [2017] FCA 827
Nassif and Minister for Immigration and Border Protection [2018] AATA 677
Taher and Minister for Immigration and Border Protection [2013] AATA 917

Yang and Minister for Immigration and Border Protection [2017] AATA 364

Secondary Materials

Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Member W Frost

10 February 2022

1. The Applicant, Ms Lucy Watkins, applied for Australian citizenship by conferral in 2020. A delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused her application on the grounds that Ms Watkins was not a permanent resident at the time of that decision and she did not meet the general residence requirements under the Australian Citizenship Act 2007 (Citizenship Act).

2. Ms Watkins applied to the Administrative Appeals Tribunal (Tribunal) for review of the refusal decision. Together with the submissions and evidence provided at the hearing, the Tribunal has considered all of the documents in two bundles filed by the Minister in this proceeding as required pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)[1], the three tranches of supporting documents filed in the proceeding by Ms Watkins[2] and the parties’ respective written submissions. 

   [1] Exhibits 1 and 2.

   [2] Exhibits 3 to 5.

   ISSUE

3. The issue in this proceeding is whether Ms Watkins had a close and continuing association with Australia in the relevant period before her application for citizenship such that the discretion under subsection 22(9) of the Citizenship Act should be exercised in her favour to allow her to satisfy the general residence requirement pursuant to subsection 21(2)(c) of the Citizenship Act.

4. For completeness, the Tribunal notes that the status of Ms Watkins’ permanent residency is no longer in issue because she was granted a Resident Return (subclass 155) visa on 20 April 2021 and is therefore presently a permanent resident of Australia. 

   BACKGROUND

5. Ms Watkins is 40 years old and a citizen of the United Kingdom.[3]

   [3] Exhibit 1, T3, pages 17 and 51.

6. On 12 September 2007, Ms Watkins first arrived in Australia as the holder of an Electronic Travel Authority (Visitor) (subclass 976) visa.[4] She departed Australia on 6 October 2007.

   [4] Exhibit 2, S1, pages 3 and 4; S2, page 5; Exhibit 1, T2, page 9.

7. From 2009 to April 2012, Ms Watkins was in Australia for a total of 53 days during three separate visits.[5]

   [5] Exhibit 2, S1, page 3.

8. From 26 May 2012 to 12 April 2013, Ms Watkins was in Australia on a Temporary Work (Skilled) (subclass 457) visa.[6] In total, from May 2012 to December 2015, Ms Watkins was in Australia for approximately 36 of 43 months.[7]

   [6] Exhibit 2, S1, page 3; S2, page 5.

   [7] Exhibit 2, S1, pages 2-3.

9. On 27 April 2013, Ms Watkins married her husband, Mr David Edge, in the United Kingdom.[8]

   [8] Exhibit 1, T3, page 52; Exhibit 3, item 4.

10. On 23 December 2015, Ms Watkins was granted an Employer Nomination Scheme (subclass 186) visa making her a permanent resident of Australia.[9] Mr Edge was also granted an Employer Nomination Scheme (subclass 186) visa on the same date.[10]

    [9] Exhibit 2, S2, page 5; Exhibit 1, T2, page 9.

    [10] Exhibit 3, item 6.

11. From January to August 2016, Ms Watkins was in Australia for 21 days over four separate visits.[11]

    [11] Exhibit 2, S1, pages 1-2.

12. From 5 to 19 March 2017, being 15 days, Ms Watkins was in Australia.[12]

    [12] Exhibit 2, S1, page 1.

13. In May 2017, the citizenship application of Ms Watkins’ English-born husband, Mr David Edge, was approved and he made his Pledge of Commitment to become an Australian citizen in September 2017.[13]

    [13] Exhibit 3, item 3.

14. From 16 March to 1 April 2018, being 17 days, Ms Watkins was in Australia.[14] From 1 April 2018, Ms Watkins did not return to Australia until 14 January 2022, being a period of more than three years and nine months.[15]

    [14] Exhibit 1, T3, pages 64-66; Exhibit 2, S1, page 1.

    [15] Exhibit 5, item 85.

15. In 2018, Mr Edge returned to the United Kingdom.

16. On 19 November 2020, Ms Watkins applied to the Department of Home Affairs for Australian citizenship by conferral.[16] At this time, Ms Watkins was a permanent resident of Australia by way of the Employer Nomination Scheme (subclass 186) visa issued on 23 December 2015.[17] In her citizenship application, Ms Watkins confirmed that she was relying on the discretion under subsection 22(9) of the Citizenship Act for a spouse of an Australian citizen to meet the general residence requirements where they would not ordinarily do so, most relevantly because she claimed to have had a close and continuing association with Australia during the relevant fur year period from 18 November 2016 to the day before her application in November 2020.

    [16] Exhibit 1, T3, pages 16-50.

    [17] Exhibit 2, S2, page 5; Exhibit 1, T2, page 9.

17. On 23 December 2020, Ms Watkins’ Employer Nomination Scheme (subclass 186) visa, granted five years earlier, ceased and she was no longer a permanent resident of Australia.[18]

    [18] ibid.

18. On 7 January 2021, a delegate of the Minister refused Ms Watkins’ application for Australian citizenship because the delegate was not satisfied that she was a permanent resident or met the general residence requirements under the Citizenship Act.[19] As previously mentioned in these reasons, Ms Watkins’ permanent residency is no longer in issue as this was obtained by way of a Resident Return (subclass 155) visa granted after the delegate’s refusal decision on 20 April 2021. However, the delegate was also not satisfied that Ms Watkins met the requirements of subsection 21(2)(c) of the Citizenship Act because she did not satisfy subsection 22(1)(a) and (c) of the general residence requirements; specifically, the delegate was not satisfied that Ms Watkins was present in Australia for the period of four years immediately before the day she made her application for Australian citizenship and that she was present in Australia as a permanent resident for the period of 12 months immediately before the day she made her application. Furthermore, the delegate was not satisfied that Ms Watkins had a close and continuing association with Australia for the purpose of subsection 22(9)(d) of the Citizenship Act, which would otherwise allow the relevant periods of time spent outside Australia to be treated as periods of time in which Ms Watkins was in Australia.

    [19] Exhibit 1, T2, pages 9-15.

19. In February 2021, Mr Edge returned to Australia for work.

20. On 3 February 2021, Ms Watkins applied to the Tribunal for review of the decision to refuse her application for Australian citizenship by conferral. In June 2021, the Tribunal, differently constituted, dismissed the application pursuant to subsection 42A(4) of the AAT Act, because the Tribunal did not have jurisdiction to review the decision in circumstances where Ms Watkins was not a permanent resident of Australia at the relevant time under the Citizenship Act.

21. On 20 April 2021, Ms Watkins was granted a twelve month Resident Return (subclass 155) visa, being classed as a permanent resident visa for Australia, which expires on 20 April 2022.[20]  

    [20] Exhibit 2, S2, page 5; Exhibit 3, item 2.

22. On 7 June 2021, pursuant to subsection 29(7) of the AAT Act, Ms Watkins applied to the Tribunal for an extension of time to make a new application of the same date for review of the delegate's refusal decision from January 2021.[21] The Minister did not oppose Ms Watkins’ request and the Tribunal granted the extension of time in July 2021.

    [21] Exhibit 1, T1, pages 1-8.

23. On 14 January 2022, Ms Watkins arrived in Australia on her Resident Return (subclass 155) visa.

    LEGISLATION & POLICY

    Citizenship Act

24. Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen.

25. Section 20 of the Citizenship Act relevantly states that a person becomes an Australian citizen if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen. Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Subsection 24(1A) relevantly states that the Minister ‘must not approve the person becoming an Australian citizen’ unless the person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.

26. Subsection 21(2) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in relation to the person, including that: they are aged eighteen or over at the time of the application; they are a permanent resident both when making the application and at the time of the Minister’s decision; and, most relevantly in this proceeding, they satisfy the ‘general residence requirement’ in section 22 of the Citizenship Act.

27. Section 22 of the Citizenship Act relevantly states that:

    (1) 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.

    Overseas absences

    (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.

    (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

    (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.

28. For completeness, the Tribunal notes that subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen. Accordingly, the Tribunal has jurisdiction in relation to Ms Watkins’ application to review the decision to refuse her application for Australian citizenship.

    Citizenship Policy

29. The Tribunal will generally follow policy guidance from the government in reviewing a decision, unless cogent reasons are demonstrated for it not to do so.[22] The Minister’s Department has issued the Revised Citizenship Procedural Instruction (Citizenship Instruction), which provides guidance in relation to the interpretation, and exercise, of the powers under the Citizenship Act.[23] The Tribunal is not aware of any cogent reasons why it should not apply the Citizenship Instruction in this proceeding.

    [22] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

    [23] Exhibit 2, S3, pages 6-28.

30. Chapter 8 of the Citizenship Instruction states that the discretion under subsection 22(9) of the Citizenship Act:[24]

    … allows periods of time spent outside Australia as a permanent resident to be counted as time spent in Australia for the purposes of meeting the requirements in paragraph 22(1)(a) and paragraph 22(1)(c) of the Act in circumstances where the applicant has exceeded the allowable absences set out in subsection 22(1A).

    The discretion can only be applied to periods where:

    ·     the applicant was a spouse, de facto partner of the Australian citizen during that period; and

    ·     the applicant was not present in Australia during that period; and

    ·     the applicant was a permanent resident during that period; and

    ·     the applicant had a close and continuing association with Australia during that period. Refer to CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.

    [24] Exhibit 2, S3, page 12.

31. Chapter 8 of the Citizenship Instruction further notes that applicants seeking the application of the ministerial discretion under subsection 22(9) of the Citizenship Act will need to provide evidence of their relationship with their spouse or de facto partner and that person’s Australian citizenship.[25]

    [25] Exhibit 2, S3, page 13.

32. The purpose of Chapter 11 of the Citizenship Instruction is said to ‘set out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were to be approved’. Most relevantly, Chapter 11 of the Citizenship Instruction states that:[26]

    Under subsection 22(9) of the Act Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen, an applicant must have had, amongst other things, a close and continuing association with Australia during the period to which the discretion is to be applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions). This means that the consideration of ‘close and continuing association with Australia’ for the purpose of the discretion concerns a time that has already passed, rather than a time in the future, as in paragraphs 21(2)(g), 21(3)(e) and 21(4)(e) of the Act.

    [26] Exhibit 2, S3, page 25.

33. Chapter 11 provides assistance in considering whether a person had a ‘close and continuing association’ with Australia during a relevant period of time, which is necessarily ‘a time that has already passed’, as follows:[27]

    The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

    • ‘maintain’ as to keep in existence or continuance; preserve; retain;

    • ‘close’ as near, or near together, in space, time, or relation;

    • ‘continuing’ as to last or endure;

    • ‘association’ as the act of associating … connection or combination.

    It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/ extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.

    [27] Exhibit 2, S3, page 25.

34. Chapter 11 of the Citizenship Instruction further provides that:[28]

    [28] Exhibit 2, S3, pages 25-27.

    Following are examples of factors that may be relevant when assessing whether an applicant is likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia should their application be approved. These may be explored in an interview or through a request for further information. Decision makers must be mindful that the following factors are a guide only and that each case must be assessed on its facts.

    Living arrangements and citizenship/migration status in their current country of residence

    A person’s living arrangements and citizenship/migration status in their country of residence (whether that is Australia or elsewhere) may be indicators of their intention to reside in that country and whether they could act on that intent.

    Authority to reside in a particular place could be derived from the citizenship of that country, or by a visa or other form of permission that allows the person to reside and work in the country long-term (that may be extended if for a fixed period) or indefinitely.

    Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include but are not limited to:

    • Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;

    • Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;

    • Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country. For example:

    o What is the person’s source of income? Are they subject to an employment contract and what arrangements do they have in relation to that contract? If the contract is for a defined period of time, do they have an option of extending the contract? Have they indicated they would they do so? Do they operate a business that requires their physical presence or could they run that business remotely? Do grandparents or other relatives provide childcare so the parent/s can work?

    o If the person has been caring for an elderly or sick relative, what arrangements would be made for the care of that relative if the person becomes an Australian citizen? Does the relative still need care or are they recovered or have they died?

    o What are the schooling arrangements for their child/ren and what are the implications of or plans to change those arrangements? For example, if the child is enrolled in a school that had a long waiting list and requires prepayment of fees, is there an intention to leave the child in that school and what would be the care arrangements for the child? Is the child at a stage of their education where relocation would have an adverse impact and so the parent claims any relocation will occur after the child has completed that stage (for example, if the child has entered a program equivalent to year 11 and 12)?

    • Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?

    • Frequency and reasons for absences from Australia if the person resides in Australia. For example:

    o A person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was:

    §  undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;

    §  accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;

    §  participating in Australian cultural activities;

    §  promoting Australia overseas; or

    §  enrolled at an overseas university where equivalent studies are not available in Australia;

    o A person’s absence/s from Australia because they have continued to work in the same overseas position or for the same employer they had prior to obtaining permanent residence may be an indicator that they have not been residing in Australia and are unlikely to do so;

    o What has been the person’s motivation for international relocations? Is the person motivated to pursue life opportunities, career or financial advancement regardless of location or are they primarily motivated to pursue those opportunities in Australia?

    o An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;

    o Departmental movement records may be used to establish periods of residence. Passenger cards, where available, may assist in identifying reasons for being outside Australia.

    • Participation in the Australian community. For example:

    o Participation in a community group that provides services or engages in activities of benefit to the community;

    o Membership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.

    • Note: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes. For example, distinction could be made between activities to improve the facilities of a golf club for the benefit of the community, and playing golf at that club.

    • The applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.

    CONTENTIONS

    Ms Watkins

1. Ms Watkins accepted that she did not meet the general residence requirement criteria set out in subsections 22(1)(a) and (c) of the Citizenship Act, requiring her to have been present in Australia for the four years immediately before applying for Australian citizenship and being present in Australia as a permanent resident for the 12 months before her application. For the avoidance of doubt, there was no dispute that Ms Watkins met subsection 22(1)(b) of the Citizenship Act, because she was not present in Australia as an unlawful non-citizen at any time during the relevant four year period from November 2016 to November 2020.

2. It was contended that the decision under review was wrong, that Ms Watkins has a close and continuing association with Australia and that the discretion available under subsection 22(9) of the Citizenship Act should be exercised in her favour to enable Ms Watkins to satisfy the general residence requirements under subsections 22(1)(a) and (c). Ms Watkins submitted that she satisfied the requirements of the ministerial discretion because of, among other things, periods of time spent in Australia, her intention to reside in Australia in the future, her husband's employment and residence in Australia, ongoing relationships with family and friends in Australia, frequent travel to Australia and personal effects, bank accounts and superannuation funds located in Australia.

   Minister

3. The Minister contended that Ms Watkins failed to demonstrate that she had a close and continuing association with Australia during the relevant period, being from November 2016 to November 2020, for the purpose of meeting subsection 22(9)(d) of the Citizenship Act. Most relevantly, the Minister submitted that Ms Watkins was absent from Australia for 1,429 days in the four year period and was also absent for all of the last 12 months prior to making her application for citizenship. The Minister further submitted that none of the other factors raised by Ms Watkins satisfied the requirement under subsection 22(9)(d) of the Citizenship Act of her having a close and continuing association with Australia during the four year period ending in November 2020. Accordingly, the Minister contended that the decision under review should be affirmed.

   EVIDENCE

   Ms Lucy Watkins

4. Ms Watkins provided a signed statement in this proceeding dated 8 November 2021, which has been considered by the Tribunal.[29] Ms Watkins also gave evidence at the hearing and told the Tribunal that the content of her statement was true and correct to the best of her knowledge. She provided both her United Kingdom and Australian addresses when asked for her place of residence.

   [29] Exhibit 4, item 66.

5. She has been married to her husband, Mr David Edge, for nine years. They left Australia to hold the ceremony in the English village where Ms Watkins grew up. The wedding party was in the United Kingdom, followed by another in Australia for family and friends in this country. Ms Watkins said approximately 30 to 40 people were at the Sydney event and a number of those attendees have provided written statements in support of her citizenship application. Ms Watkins told the Tribunal she has maintained continuous relationships with those friends.

6. Since 2008, Ms Watkins has been an interior designer with a United Kingdom-based company. She loves her job and is currently an Associate Director, which was described as a stepping stone to becoming a director. Ms Watkins also described the work and her colleagues in very positive terms. Before arriving in Australia in 2012, Ms Watkins had an ‘honest discussion’ with her employer about relocating to Australia and the directors had proposed that, rather than resigning, she work remotely, which was not commonplace at that time. It was agreed Ms Watkins would undertake a trial period of one month, but it was said not to be conditional on her returning to the United Kingdom. 

7. Ms Watkins first visited Australia in 2007 and said it had always been a dream to come to this country. She travelled with her now husband and visited her brother living in Darwin with his family. Ms Watkins said she and Mr Edge had talked about emigrating long before they moved to Australia in 2012, and as early as their first trip in 2007; Mr Edge had looked at possible jobs and Ms Watkins researched educational opportunities for her to pursue interior design. However, Ms Watkins said, by 2012 everything was in place and they were ready to move to Australia. This decision was brought about by the illnesses and subsequent deaths of her father and sister. Ms Watkins described being ‘incredibly close’ to her sister, they lived together on several occasions after university, including at the family’s apartment in Wimbledon, and it was understandably ‘very tough not to have her around’. Ms Watkins told the Tribunal the bereavement at this loss was an ‘enormous part’ of the decision to move to Australia with a ‘fresh start’.

8. Ms Watkins confirmed that she migrated to Australia in May 2012 as a secondary applicant to her husband on a 457 visa. The couple threw themselves into life in Australia and settled in quickly. They bought a car so they could go camping and walking in various locations. Ms Watkins said that they viewed this not as a holiday but moving to Australia; they knew they wanted to set up their life in Australia. Ms Watkins referred to this early time in Australia as the ‘lottery months’, because they were very thankful for the experiences in Australia and also the ability to save money when staying with friends and family. Ms Watkins told the Tribunal that during this time they attended the cricket, rugby, went bushwalking, travelled by car from Sydney to Adelaide, met with friends, and attended festivals and art exhibitions.

9. Ms Watkins remained employed with the United Kingdom-based company and said it ‘worked much better than envisaged’. She worked Australian business hours and was therefore able to see Australian friends and family after work. However, after one year, Ms Watkins realised she had to go back for ‘short trips’ to meet with clients and manage projects. She also hired a workspace in Sydney with an interior designer friend who also worked for the same business.

10. During this period, Ms Watkins fitted out three Nando’s restaurants in Australia, which came about from previous work for that business in the United Kingdom. However, Ms Watkins said that, after a ‘couple of years’ she realised she needed to work on ‘larger onsite projects’ to progress in the company and as an interior designer. She told the Tribunal that it is easier to work remotely as a designer than at the more senior associate level because the latter is managing a team and project work, which requires physical presence for them and clients.  In this regard, Ms Watkins agreed that being in Australia was inhibiting her career progression, there was more scope for work in the United Kingdom and Europe and she also did not take a role with an Australian company because of her loyalty to her employer.

11. The two directors of the company visited Ms Watkins in Australia in approximately 2014 and discussed her future. Ms Watkins said she could not further establish a presence in Australia in her then role as a designer because she needed to run a team as an associate and gain a better understanding of the business and its clients, which would be obtained from her United Kingdom-based directors. Ms Watkins told the Tribunal there was no ‘explicit discussion’ with the directors about her returning to Australia, but that they understood it was a difficult decision to leave this country and were happy to be flexible and see what happened. In 2015, Ms Watkins decided to leave Australia, which she described as ‘heartbreaking’, but did not consider it would be permanent; she always wanted to return.

12. In 2018, Ms Watkins visited Australia to spend time with family and friends in Darwin and Sydney. Ms Watkins did not visit Australia in 2019, but said it was contemplated, although she could only take a week’s leave. She did visit other countries, including a ‘last minute’ trip to Mexico and a holiday to Portugal with friends. Unlike Australia, the former entailed a single flight and ‘less jet lag’.

13. Ms Watkins was asked about the ownership of real property in London. She told the Tribunal that ‘95%’ of the reason for selling the family apartment was that she ‘didn’t want to live’ in it due to the painful memories of her sister’s battle with a terminal illness. Ms Watkins was asked why she did not buy property in Australia and she said they ‘knew the London market’ and it was good to have a ‘foothold’ in the United Kingdom, although they also hoped to ‘buy elsewhere’. In this regard, Mr Edge had investigated Australian property and mortgages for ‘investment purposes’ in 2017.

14. Ms Watkins told the Tribunal she thought she would be in the United Kingdom for ‘a couple of years’ from 2016, however it was not until 2019 that she was appointed a creative director of the business due to various internal issues. As a result of the advent of the COVID-19 pandemic in 2020, Ms Watkins said she could not return to Australia and ‘everything stalled’, including the retirement of one director which was to have seen Ms Watkins made a director. Ms Watkins said a director can be in the office weekly or ‘not at all’. One of the United Kingdom-based directors was said to live three hours from the London office.

15. Ms Watkins told the Tribunal that in mid-2020 she decided to move back to Australia, but there were always ‘moving goalposts’. She said she should have applied for Australian citizenship ‘much earlier’ than late 2020 and this was the source of ‘much regret’, although was a step in the process of returning to Australia.

16. In 2021, Ms Watkins was concerned about entering Australia, because she would have been unable to leave the country without an exemption under the then travel regulations. Ms Watkins explained that her employment requires flexibility and she could not spend all of her time in Australia as it requires interaction with clients and being on-site in the United Kingdom when required. Ms Watkins was asked whether she attempted to return to Australia when she was granted a permanent resident visa in April 2021. She answered, ‘No’. Ms Watkins again said she was concerned about her ability to return to the United Kingdom, therefore was ‘reticent’ about travelling to Australia. Additionally, the cost of flights was an issue. In mid-2021, Ms Watkins booked a flight to return to Australia in October 2021. This flight was cancelled by the airline. She again booked for an early December 2021 flight, however this flight was re-scheduled because she was a close contact of someone with COVID-19 and had to quarantine in the United Kingdom. Ms Watkins ultimately arrived in Australia on 14 January 2022.    

17. Ms Watkins told the Tribunal that her husband had a finite period on his secondment in Australia, but working for a global business made a possible extension feasible. Mr Edge was said to have talked to the firm’s partners about an extension to his time in Australia, which is currently scheduled to end in April 2022.

18. Ms Watkins was asked about her current plans. She told the Tribunal she will probably be in Australia for ‘one month or so’ before returning to the United Kingdom for family and work-related reasons. Ms Watkins said she will then return to Australia and start ‘splitting’ her time between the two countries, but ‘more weighted’ towards Australia. She estimated that 9 months of 2022 would be spent in Australia and 3 months in the United Kingdom. Ms Watkins told the Tribunal that the ‘hope’ is to expand the interior design business to Australia.

19. The London property owned by Ms Watkins is not tenanted and this is where she currently resides when in the United Kingdom. Ms Watkins said it was nice to stay there when she returned and a future short-term lease arrangement, such as offered by Airbnb, provides greater flexibility than a long-term lease.

20. Ms Watkins confirmed that her family in Australia are her brother, sister in law and two nieces and a nephew in Darwin and their extended family. She said she wanted to become an Australian citizen because she already feels like one. Ms Watkins wants the opportunity to integrate and give back, do things citizens can, such as vote, and call herself an Australian. It would also be less burdensome than having to renew her current 12 month Resident Return visa each year.

21. Under cross-examination from the Minister’s representative, Ms Watkins told the Tribunal that she would have visited galleries during the relevant period from November 2016 to November 2020, but could not recall whether she attended sporting events. Ms Watkins was taken to the movement record of her visits to Australia. In March 2017, she arrived and departed from Sydney. In March and April 2018 she arrived and departed from Darwin. The purpose of this latter visit was to visit Mr Edge, her family in Darwin and friends. She stayed with her brother in Darwin and with Mr Edge in Sydney.

22. Ms Watkins was asked why she did not return between 2018 and 2020, including in circumstances where Mr Edge returned in April 2021. Ms Watkins said that she could not get ‘time off work’. Ms Watkins confirmed that she was promoted to associate director on 1 January 2020. She was confident about her ability to work remotely in Australia. Ms Watkins said she did not continue to work for Australian clients when she returned to the United Kingdom and her last Australian-based project ended in December 2015.

23. Ms Watkins confirmed she paid income tax in the United Kingdom and was unaware of any superannuation contributions being made in Australia.

24. Ms Watkins was asked about the status of her plans to open an Australian branch of the United Kingdom-based interior design business. She said she will start re-engaging with existing clients that may look to commence business in Australia. It was put to Ms Watkins that plans for an Australian branch would likely not come to fruition despite holding them for almost a decade. She said it was her intention to set up a branch.

25. Ms Watkins told the Tribunal that if she was granted citizenship, she planned to live in Australia, with visits to the United Kingdom approximately every 3 months where she would live in her London property. It was further put to Ms Watkins that having spent 32 days in Australia during the relevant four year period, where she visited family and friends in Australia, she was no more than a tourist in this country. Ms Watkins said she thought a tourist would not see anyone whilst visiting, but that she had ‘integrated’ into Australian life with family and friends.

26. The Minister’s representative also put to Ms Watkins that it could not be said that she maintained a residence in Australia before the relevant period because her accommodation was then temporary, such as rented property or staying at her brother’s house before ceasing to live in a rented property. Ms Watkins said that her husband is an Australian citizen and the home currently rented in Sydney is theirs together.

27. It was also put to Ms Watkins that while she was working in Australia between 2012 and 2016, she was employed by a United Kingdom-based company and had no superannuation contributions made in Australia, such that it was hard to conclude that prior to 2016 she was more than staying temporarily in Australia and working remotely. Ms Watkins told the Tribunal it was the best thing to do at the time and she still felt like a resident of Australia.

28. By way of re-examination, Ms Watkins said that she believed an Australian branch of her interior design company would be successful.

29. The Tribunal put to Ms Watkins that, according to her application for Australian citizenship and the movement history of her visits to Australia, she had spent more days in the United States of America (USA) and Mexico than Australia during the relevant four year period under consideration. Ms Watkins agreed. She also agreed that since leaving Australia in 2016, she had spent 30 days in the USA and Mexico compared with none in Australia until she recently returned on 14 January 2022.   

    Mr David Edge

30. Ms Watkins’ husband, Mr David Edge, provided a statement in this proceeding dated 9 November 2021.[30] Mr Edge gave evidence at the hearing and told the Tribunal that he adhered to his statement and it was true and correct.

    [30] Exhibit 4, item 65.

31. Mr Edge is a senior manager at Deloitte. He confirmed his marriage to Ms Watkins and that she had returned to Australia last week and is residing with him in Sydney. She had been offshore since 2018.

32. Mr Edge was referred to the content of his employment contract stating that he was to return to the United Kingdom after completion of his twelve month secondment. He told the Tribunal there is a verbal understanding from a partner at the firm that he will continue in Australia after his secondment formally concludes in April 2022. Mr Edge detailed his role and the likely increase in demand for his services in Australia.

33. Mr Edge told the Tribunal that he and Ms Watkins’ relationship began in 2005. Mr Edge said it was Ms Watkins’ decision to move to Australia. They had visited several times before migrating in 2012. Despite the trauma surrounding the deaths of Ms Watkins’ father and sister, the couple viewed this as an opportunity for a ‘fresh start’ in Australia. Ms Watkins tendered her resignation from the interior design business in the United Kingdom, but the directors proposed that she work remotely from Australia. Mr Edge told the Tribunal his wife had no agreement with her employer to return to the United Kingdom.

34. While Mr Edge could not recall his visa status in 2012, he said the couple had no particular ‘long-term plans’, they were just grateful to be in Australia to start a new life. Ms Watkins ‘loved’ working remotely and they had a ‘very enjoyable time’ living in Australia for four years. The couple had ‘no intention’ to return to the United Kingdom. Mr Edge said they felt more a part of Sydney and life in Australia, they had experienced London and Europe and wanted to build a life in Australia. They only had Australian friends and Ms Watkins’ family were in Darwin.

35. Ms Watkins’ representative asked Mr Edge for the reasons behind her return to the United Kingdom in 2016. Mr Edge said it was an opportunity for his wife to gain more work experience; Ms Watkins’ employers wanted her to return to increase her experience. The couple viewed this as a two-year ‘window’ before she would return to Australia, where Mr Edge remained. He confirmed that Ms Watkins had planned to return. Some of their goods were placed into a friend’s storage space, they terminated the lease on their rental property and Mr Edge rented a room from friends and also on a private rental basis. Ms Watkins did not leave consumables in Australia, but larger items such as a bed, television, linen, kitchen items and domestic furnishings. Mr Edge told the Tribunal that when Ms Watkins visited Australia in 2016, 2017 and 2018, she stayed with him and they met with friends.

36. Mr Edge said he loaned Ms Watkins £215,000 to buy property in London. The money was available from the sale of the Wimbledon property. Mr Edge told the Tribunal it was easier for Ms Watkins to buy property in her name while he resided in Australia. He said their intention is to maintain residency in both Australia and the United Kingdom. Mr Edge told the Tribunal that the ‘significant’ reason for selling the apartment was due to the memories Ms Watkins holds of her deceased sister living at this location. He put this element at 80% of the reason, with the other 20% being because Ms Watkins had already renovated the apartment. Mr Edge was asked why they did not buy Australian property. He said they were ‘quite risk averse’, and it was a big thing to move substantial amounts of money between countries. They also wanted to retain a property in London. Mr Edge looked into Tasmanian property and established the couple’s borrowing potential for this purpose. He told the Tribunal he had an offer-in-principle for a loan to purchase property in Hobart in 2017.

1. Mr Edge was asked why he returned to the United Kingdom in 2018. He said he had obtained Australian citizenship and was missing Ms Watkins. Mr Edge had been waiting for his wife’s work situation to resolve, but it was taking longer than expected and they wanted to be together. When Mr Edge returned to the United Kingdom he left behind items from the apartment he had rented with Ms Watkins.

2. Mr Edge told the Tribunal that his Australian bank account had a substantial amount of money in it, which was at times drawn down to pay for the refurbishment of the London property. When it was not required, the couple loaned a significant amount of money to an Australian friend to assist with her mortgage. When it was required, the money was returned when requested. Mr Edge said he considered withdrawing his Australian superannuation funds when he left this country, but consciously decided not to do so because he wanted to be here in the future and in retirement. Mr Edge said he consulted with Ms Watkins regarding these financial decisions and they share everything equally. She is named as sole beneficiary of his Australian superannuation funds.

3. Mr Edge told the Tribunal that he applied for citizenship because of his love of Australia and a desire to cement his commitment to this country. He saw himself returning when he departed Australia. The timeframe was said to be ‘one year or so’, but it was ‘unclear’ due to Ms Watkins’ work situation and ultimately ‘slightly out of our hands’.

4. Mr Edge said he and Ms Watkins discussed the possibility of returning to Australia in mid-2020, but the COVID-19 pandemic ‘presented difficulties’. The plan was said to be for the couple to leave for Australia in ‘early 2021’, but this did not happen ‘predominantly’ due to the status of Ms Watkins’ visa and citizenship application. Mr Edge said they thought Ms Watkins could return to Australia in March 2021, however she was unable to enter Australia without a permanent resident visa, which had expired at the end of 2020.     

5. Ms Watkins’ representative asked her husband why she would make a great Australian citizen. He said that Ms Watkins was a ‘wonderful person’ who has a lot of Australian values and virtues. He is immensely proud of his wife and her professional achievements.

6. Under cross-examination from the Minister’s representative, Mr Edge confirmed that he became an Australian citizen in September 2017. Mr Edge was referred to Ms Watkins’ Australian travel movement records and was asked about her recent visits to Australia in 2017 and 2018. In 2017, Ms Watkins arrived in Sydney and in 2018 she arrived in Darwin. Mr Edge said he suspected Ms Watkins stayed with her brother on the later trip and travelled internally to Sydney.

7. Mr Edge told the Tribunal that he resided at the couple’s United Kingdom property when he returned in 2018. It is not rented and they have ‘left it as is at the moment’. Mr Edge’s uncle is very unwell and he is shortly planning to return to the United Kingdom. He said it was ‘nice to have the option’ of staying at their London property, and they may use it for short-term lease arrangements in future.

8. Mr Edge confirmed that he had purchased additional household items since returning to Australia in 2021, such as a sofa, table and other smaller items.

9. Mr Edge said he considered Ms Watkins would follow a ‘similar pattern’ to when she resided in Australia between 2012 and 2016 and split her time between Australia and the United Kingdom.

10. Mr Edge told the Tribunal that Ms Watkins’ other travel since being in Australia comprised of holidays with friends from the United Kingdom. He also confirmed that he entered Australia in February 2021 and Ms Watkins did not accompany him because she did not at that stage have a permanent resident visa. Mr Edge said he supposed Ms Watkins could have travelled on a short term visa, but did not envisage it would be ‘such a long break’ until she could return to Australia in 2022.   

    CONSIDERATION

11. There was no dispute that Ms Watkins did not satisfy the general residence requirement under subsection 22(1) of the Citizenship Act. That is, Ms Watkins was not present in Australia for the period of 4 years immediately before the day she made her application for citizenship and was not present in Australia as a permanent resident for the 12 month period immediately before the day she made that application. Ms Watkins also did not meet the overseas absence exemptions in subsections 22(1A) and (1B) of the Citizenship Act. Ms Watkins was absent from Australia for more than 12 months in the four years immediately before she made her application for citizenship and was absent for more than 90 days in the 12 months immediately before the day she made that application.

12. Accordingly, Ms Watkins relied on the ministerial discretion in subsection 22(9) of the Citizenship Act in order to meet the general residence requirement in section 22. Subsection 22(9) of the Citizenship Act contains four preconditions which must all be present to enliven the ministerial discretion to treat the relevant period as one in which a person was present in Australia as a permanent resident. The Tribunal is satisfied that Ms Watkins meets the requirements under subsections 22(9)(a) to (c) of the Citizenship Act because: she was the spouse of an Australian citizen during the relevant four year period from November 2016 to November 2020; she was not present in Australia for 1,429 days in the four year period prior to lodging her citizenship application and was also absent for the 12 months prior to lodging her application; and she was the holder of a permanent resident visa during the relevant period. These elements were not in dispute in this proceeding. However, for the following reasons, the Tribunal is not satisfied that Ms Watkins had a ‘close and continuing association with Australia’ during the four year period before she applied for Australian citizenship. As a result, Ms Watkins does not satisfy subsection 22(9)(d) of the Citizenship Act and cannot meet the general residence requirement set out at section 22 of the Citizenship Act for the purposes of subsection 21(2)(c).

13. The Tribunal in Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [30] (Taher), set out the background to the current Citizenship Act and the discretion at subsection 22(9), as follows:

    On the introduction of the Australian Citizenship Bill 2005, which it was proposed would replace the Australian Citizenship Act 1948, the Explanatory Memorandum accompanying the Bill explained that the proposed new subsection (9) provided for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen. The Explanatory Memorandum then said:

    This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.

    However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.

14. The importance of physical presence in Australia to establish a close and continuing association was emphasised in Taher (at [47]-[48]), as follows:

    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.

    I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.

15. In Judd v Minister for Immigration [2017] FCA 827, the Federal Court of Australia held at [14] that:

    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”.

16. In Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26], the Tribunal noted at [26] that:

    Previous decisions of this 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, the factors listed in the Policy. The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”, or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied. 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”. In that assessment the fact and extent of the applicant’s periods of Australian presence were highly relevant considerations.

17. In Nassif and Minister for Immigration and Border Protection [2018] AATA 677 (Nassif), the applicant had been present in Australia for 37 days in the four years before his citizenship application and for 9 days in the 12 months before that time. The Tribunal found (at [37]) that:

    There is no doubt that physical presence in Australia is an important element to developing a close and continuing association with Australia. I regard Mr Nassif’s extremely limited physical presence in Australia in the four years, and the 12 months, prior to his application for citizenship as being of particular relevance.

18. Based on the evidence in this proceeding, the Tribunal finds that Ms Watkins did not have the requisite close and continuing association with Australia during the relevant four year period from November 2016 to November 2020. While the Tribunal accepts that Ms Watkins has had a connection to Australia over many years, including most significantly when she resided in this country between 2012 and 2016, the Tribunal is not satisfied that her association with Australia was ‘close and continuing’ during the relevant period from 2016 to 2020.

19. Most fundamentally, while acknowledging that Ms Watkins made regular visits to Australia from 2007, totalling 18 trips over a 14 year period in which she spent 1,184 days in Australia, Ms Watkins was only physically present in Australia for a total of 32 days in the relevant four year period between 2016 and 2020. As the Tribunal said in Taher, in reference to 168 days, this amount of time is ‘plainly negligible’. These 32 days comprised two short trips of 15 days in 2017 and 17 days in 2018 to visit family and friends. Ms Watkins did not return to Australia after April 2018, noting that she applied for citizenship in November 2020, until a matter of days before the Tribunal hearing in January 2022. In this regard, Ms Watkins was not present in Australia at all during the relevant 12 month period prior to lodging her citizenship application and was absent from Australia for a total of 1,429 days during the relevant four year period. The Tribunal agrees with the assessment in Nassif, that extremely limited physical presence in Australia during the relevant four year period is ‘of particular relevance’.

20. Despite not returning to Australia since April 2018 in the relevant period ending in November 2020, Ms Watkins travelled to other countries during this time, such as the USA and Mexico, in addition to multiple European countries. Indeed, during the relevant period, Ms Watkins spent more days in the USA and Mexico, being 36 days, than she did in Australia, a total of 32 days. Additionally, 30 of those days Ms Watkins spent in the USA and Mexico were after she last left Australia in 2018 and this travel continued into early 2020. While the Tribunal accepts that travelling from the United Kingdom to Australia is not necessarily as straightforward as travelling to other countries, for the purpose of demonstrating a close and continuing association with this country, Ms Watkins’ recent travel during the relevant period does not establish that connection. In addition, although the COVID-19 pandemic has created many difficulties with overseas travel, three of the four years in the relevant period were not disturbed in this manner. There was no evidence before the Tribunal that Ms Watkins had attempted to permanently return to Australia during the relevant period, including during the time Australia’s international borders were closed from March 2020 to the date of her citizenship application in November 2020, such as proof of flight bookings in or around early 2020, noting that Ms Watkins held a permanent resident visa during this time. Moreover, Ms Watkins did not accompany Mr Edge on his return to Australia in early 2021. It was not until 14 January this year that Ms Watkins arrived in Australia after being absent since April 2018, a period of almost four years, having first purchased an airfare in June 2021 to return to Australia in October 2021, being after the relevant period.

21. Ms Watkins left Australia in 2016 having predominantly resided in this country for four years, with some periods of time spent in the United Kingdom. She returned to London to progress her career with her United Kingdom-based employer after working remotely in Australia since 2012, again with periods of time ‘on-site’ in the United Kingdom. In this regard, one of the directors of the company wrote in November 2020 that Ms Watkins worked for the business from 2012 until the end of 2015 in Sydney.[31] The letter also stated that, from January 2016, Ms Watkins was ‘required to work from the UK due to company and on-site commitments’. A further letter from Ms Watkins’ employer dated 6 November 2021 stated that it had made her the following offer:[32]

    if she were to return to the United Kingdom and work for us in…an Associate position, we could then groom her to take over [one of the Director’s] position. The understanding that Lucy being based back in the United Kingdom was to be temporary and once Lucy had the experience to work as a Director she could then return to Australia, splitting her time between the United Kingdom and Australia.

    Initially it was envisioned that it would take another two to three years for Lucy to reach the point where [she] could manage Fusion, and this was a role that she could once again work in remotely. She could then return to Australia and commute as necessary…Although the initial plan for this [was] only to be a couple of years ultimately this was unrealistic…Although it did end up taking more time than anticipated true to our word by 2020 we had promoted Lucy to the position of Associate Director. 

    [31] Exhibit 1, T3, page 62. 

    [32] Exhibit 4, item 7.

22. Ms Watkins is plainly a dedicated, loyal and accomplished employee and interior designer, having commenced employment with the United Kingdom business in 2008. This employment continues and Ms Watkins pays income tax in the United Kingdom with no superannuation contributions being made by her employer to an Australian-based fund. To this end, there was minimal evidence regarding Ms Watkins’ employment connection to Australia during the relevant period. She worked, and continues to work, for a United Kingdom owned company. Ms Watkins did undertake a project for a global business designing three restaurants in Australia, however this was before the relevant period under consideration in this proceeding and, since 2015, she has not worked on an Australian-based project. Additionally, Ms Watkins established an office space in Sydney for a period of time when she previously resided in this country, but the foreshadowed Australian branch of the business has not yet been established in the almost ten year period since she first resided here in 2012.

23. The Tribunal acknowledges that Ms Watkins is the sole beneficiary of her husband’s Australian superannuation funds and they are rightly considered a joint asset given their marriage. Despite not seeking to do so, Mr Edge’s superannuation funds would have been unable to be withdrawn when he left Australia in 2018 because he was by then an Australian citizen and, as a result, could not access these funds until he either reaches the preservation age and retires or reaches age 65, unless an exception for early access applies (which does not permit early access on the grounds of residing overseas for permanent residents and Australian citizens).[33] By way of completeness, the Tribunal notes that the Australian bank account provided as evidence of Ms Watkins’ financial association with this country was held in the name of Mr Edge, including during the relevant period, and not jointly held with Ms Watkins. In any event, between October 2020 and March 2021, the savings in this account were loaned to one of the couple’s friends, which indicates that they did not have established plans to return to Australia during this period and use those funds during that time, which aligns with the timing of Mr Edge’s return to Australia in February 2021 and Ms Watkins’ purchase of a flight in June 2021.

    [33] Section 79B of the Superannuation Act 1990 and part 6, including regulation 6.05, of the Superannuation Industry (Supervision) Regulations 1994.

24. While the Tribunal does not seek to detract from Ms Watkins’ admirable traits as an employee or her personal ambitions, she did not seek employment with an Australian-based interior design business to provide a more permanent base in this country or act on her long-held plans to establish an Australian branch of the United Kingdom-based company. Ms Watkins remained in the United Kingdom to attain a promotion with the company, which occurred in January 2020, which was partly to allow her greater flexibility to work remotely from Australia. However, on the available evidence, she did not take formal steps to return to this country until eighteen months later when, in mid-2021, she booked a flight to Australia for October that year. Due to that flight being cancelled and her own subsequent COVID-19 quarantine requirements, Ms Watkins did not arrive in Australia until January 2022.          

1. Accordingly, for the reasons set out above, the total duration of time Ms Watkins spent in Australia during the relevant period weighs heavily against a finding that she had a close and continuing association with Australia. Moreover, while not determinative of the issue before the Tribunal because it is outside of the relevant period of time, it is noted that the fact Ms Watkins is now planning to return to the United Kingdom after only being in Australia for approximately one month, and told the Tribunal that she would be spending around one quarter of this year in the United Kingdom, evidences the difficulty in her establishing a close and continuing association with Australia without sustained physical presence in this country.   

2. In relation to property, Ms Watkins and her husband own a house in London. This was purchased with funds from the sale of Ms Watkins’ family apartment in Wimbledon. Mr Edge also gifted Ms Watkins some funds in 2017 for her to make this purchase while he was in Australia and she resided in the United Kingdom, which Ms Watkins had done since leaving Australia in 2016, albeit for two short visits in 2017 and 2018.[34] Despite claiming to have purchased this property for investment purposes, Ms Watkins has lived at this property since its purchase, it is not currently tenanted and Ms Watkins plans to continue residing there when in the United Kingdom, although the couple may let it out on short-term leases when they are not in London. Both Ms Watkins and Mr Edge told the Tribunal that they purchased property in the United Kingdom because they knew the London property market and wanted to retain a foothold in that country. However, this purchase was made when Mr Edge resided in Australia. In this regard, the couple did not purchase real property in this country while they both resided here between 2012 and 2016 and when Mr Edge, as a then Australian citizen, lived and worked in this country in 2017 when the couple purchased their London property. They do not presently own any real property in Australia. There was evidence of Mr Edge investigating the possibility of purchasing a property in Tasmania for investment purposes in 2017, but nothing seemingly came of this exploration and no further enquiries appear to have been undertaken to purchase property in Australia. This factor weighs against exercising the discretion on Ms Watkins’ favour.

   [34] Exhibit 3, item 10.

3. While the couple have leased residential property during their time in Australia, the evidence of such arrangements pre-dated the relevant period commencing from November 2016. For example, the Tribunal had documentary evidence of three consecutive twelve month residential tenancy agreements for the same premises in Sydney between November 2012 and November 2015. The couple placed furniture and other household items into storage when Ms Watkins left Australia in early 2016 to reside in the United Kingdom. To this end, the Tribunal is satisfied that Ms Watkins’ prior residence and the establishment of a home in Australia during this time weighs in her favour. However, there was no evidence of Ms Watkins maintaining a residence or holding any lease in Australia during the relevant period of time from November 2016 to November 2020. Mr Edge rented a room and had other accommodation while he remained in Australia for work up until returning to the United Kingdom in 2018, but this was solely for his benefit during a period of employment based in this country. Additionally, the evidence of a lease held in the name of Mr Edge between March and May 2021 (which, on the evidence, is ongoing) post-dates the end of the relevant period in November 2020. This lease was entered into by Mr Edge to allow him to reside in Sydney while working on a twelve month secondment in this country from April 2021. Ms Watkins is not named on this lease and as previously noted in these reasons, she did not formalise plans to return to Australia until mid-2021 when she booked a flight for October 2021. These factors weigh against Ms Watkins’ application.

4. However, the Tribunal finds that the evidence of Ms Watkins having stored possessions in Australia when she returned to the United Kingdom in 2016 weighs in her favour. The Tribunal was told that the couple continue to use these items in their rented premises in Sydney. While the Minister contended that these items were insufficient to re-establish life in Australia, the Tribunal does not accept this characterisation; the fact of leaving the items in Australia demonstrates some ongoing commitment to this country however, of itself, it does not establish that Ms Watkins had a close and continuing association with Australia during the relevant period between 2016 and 2020.

5. The Tribunal finds that Mr Edge’s continued residence and employment in Australia during part of Ms Watkins’ absence in the relevant period weighs marginally in her favour. Following Ms Watkins leaving Australia in 2016, Mr Edge remained in this country but returned to the United Kingdom in 2018 to, understandably, reside with his wife as they had not contemplated such a lengthy time apart from each other, which occurred due to Ms Watkins’ work commitments in the United Kingdom. The Tribunal gives no weight to Mr Edge’s return to Australia in March 2021 to live and work on a then twelve month secondment because this occurred after the relevant period ending in November 2020 and did not result in Ms Watkins travelling to Australia at this time. Based on the documentary evidence before the Tribunal, Mr Edge’s current employment in Australia is in the nature of a twelve month assignment and he is expected to return to his current position and office in the United Kingdom following its completion on 1 March 2022.[35] Despite this, the Tribunal accepts the evidence that Mr Edge is seeking to remain working in Australia beyond the end of his current assignment, although he told the Tribunal he intends to briefly return to the United Kingdom to visit an ill relative.

   [35] Exhibit 3, item 53.

6. There was substantial evidence of the significant links Ms Watkins has to family and friends in Australia. While the Tribunal notes that the requirement is to maintain a close and continuing relationship with Australia, not Australians, it is satisfied that the maintenance of these relationships over many years weighs in favour of Ms Watkins demonstrating a close and continuing association with Australia. Ms Watkins is married to an Australian citizen, her brother and his family live in Australia as citizens, including her nieces and nephew, also noting that she is the godmother to one of those nieces. Ms Watkins has a range of friends from her multiple visits and period of residence in this country. Some of these friends provided letters of support for Ms Watkins’ citizenship application, which the Tribunal has considered in reaching its decision.[36] The letters overwhelmingly describe Ms Watkins’ strong links to Australia, her desire to live in this country and her personal qualities. However, despite these longstanding relationships, they alone, or in conjunction with other factors weighing in Ms Watkins’ favour, cannot establish the requisite standard of connection with Australia. Furthermore, while the Tribunal has considered Ms Watkins’ many personal qualities, together with her deep affection for Australia, its people and its culture, these are not solely determinative of whether she had a close and continuing association with Australia during the relevant period between 2016 and 2020, as required by the Citizenship Act. The Tribunal finds, on the totality of the evidence, that Ms Watkins has not met that requisite threshold.

   [36] Exhibit 3, items 28, 29, 31, 50 and 51; Exhibit 4, items 61 to 64 and 67.

7. For the foregoing reasons, the Tribunal is not satisfied that Ms Watkins has demonstrated that she had ‘a close and continuing relationship with Australia’ during the relevant period for the purposes of subsection 22(9)(d) of the Citizenship Act, and consequently, she does not meet the general residence requirement under subsection 21(2)(c) and section 22 of the Citizenship Act.

8. For the avoidance of doubt, the Tribunal rejects the submission made on behalf of Ms Watkins that she should be allowed greater flexibility in respect of the general residence criterion under the Citizenship Act because of her professional talents. Ms Watkins referred to a public statement made by the Minister regarding the special residence concession to all distinguished talent visa holders and to Australian athletes. However, this proceeding, and Ms Watkins’ application for citizenship, concerned her eligibility under the general residence requirement of the Citizenship Act and not the special residence criteria at sections 22A and 22B of the Citizenship Act. While the Tribunal has considered Ms Watkins’ circumstances, it is not satisfied that the special residence criteria or the related policy are applicable in this proceeding.

9. Having regard to all the evidence, the Tribunal is not satisfied that Ms Watkins had a close and continuing association with Australia during the relevant period from 18 November 2016 to 18 November 2020, as required by subsection 22(9)(d) of the Citizenship Act, in order for the discretion to be exercised in her favour. At this time, the Tribunal is not satisfied that Ms Watkins meets this requirement to be eligible for conferral of Australian citizenship.

   CONCLUSION

10. For the reasons set out above, the Tribunal is not satisfied that it should exercise the discretion under subsection 22(9) of the Citizenship Act to treat the relevant periods as one in which Ms Watkins was present in Australia for the purpose of the general residence requirement under the Citizenship Act. Ms Watkins is therefore not eligible at this time to be conferred Australian citizenship, because she does not meet all of the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.

11. While the Tribunal’s decision will be disappointing for Ms Watkins and her family and friends, it does not seek to diminish the connection and affection she does have for this country, nor her desire to reside here in future and make a positive contribution to Australian life. In this way, the Tribunal also does not seek to dissuade Ms Watkins from again seeking Australian citizenship at a time when she is eligible pursuant to the relevant legislative requirements.

    DECISION

12. The decision under review is affirmed pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 106  (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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

Associate

Dated: 10 February 2022

107.    Date(s) of hearing: 

108.    18 January 2022

109.    Date final submissions received:

110.    11 January 2022

111.    Applicant’s representative:

112.    Mr Ben Watt, Watt Migration

113.    Solicitor for the Respondent:

114.    Ms Emily Hill, Minter Ellison Lawyers

115.