WWVK and Minister for Home Affairs (Citizenship)

[2019] AATA 4090

WWVK and Minister for Home Affairs (Citizenship) [2019] AATA 4090 (4 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6071

Re:WWVK

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Mr S Evans, Member  


Date:4 October 2019

Place:Sydney

The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of section 22(9) of the Act. 

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

Mr S Evans, Member 

Catchwords

CITIZENSHIP – eligibility – whether applicant meets general residence requirements in s 22(1) of the Australian Citizenship Act 2007 (Cth) – whether discretion in s 22(9) of the Australian Citizenship Act 2007 (Cth) should be exercised – applicant's home during relevant period was Australia - Australia is the single country the applicant spends the most time in - applicant has long association with Australia - applicant has established home in Australia - applicant's intention is to live in Australia – discretion should be exercised in applicant’s favour - reviewable decision set aside and matter remitted with direction

Legislation

Australian Citizenship Act 2007 (Cth) ss 21(2)(c), 22(1)(a), 22(1)(c), 22(9)(a), 22(9)(b), 22(9)(c), 22(9)(d)

Cases

Galesloot and Minister for Home Affairs [2018] AATA 4450

Kumar v Minister for Immigration and Border Protection [2015] FCA 446

Minister for Immigration and Border Protection v Han [2015] FCAFC 79

Taher v Minister for Immigration and Border Protection [2013] AATA 917

Secondary Materials

Citizenship Policy Instructions Chapter 7

Explanatory Memoranda of the Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Mr S Evans, Member 

4 October 2019

overview

1. 1.        This is an application for a review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2018 to refuse to confer Australian citizenship on the applicant under the Australian Citizenship Act 2007 (Cth) (“the Act”).  

2. 2.        WWVK (“the applicant”) is a citizen of Indonesia who was born in 1973.  He first travelled to Australia as a student in 1987 to complete his studies.  He currently resides in Australia and holds a permanent resident return visa (subclass 155). 

3. 3.        On 19 October 2017 WWVK applied for Australian citizenship by conferral.  On 13 September 2018 a delegate for the Minister for Home Affairs (“the respondent”) refused the application on the grounds that the applicant did not meet the general eligibility requirements in s 21(2) of the Act.  The applicant seeks review of the delegate’s decision. 

4. 4.        The matter was heard on 9 August 2019 in Sydney and the applicant attended the hearing in person and was represented by counsel.  I found the applicant to be a credible witness.  Unless otherwise stated the findings of fact in these reasons are based on the evidence of the applicant. 

5. 5.        For reasons I will explain, I have decided that the reviewable decision should be set aside and the matter remitted to the respondent with a direction that the applicant satisfies the requirements of s 22(9) of the Act.

   the Legislative framework and key issues

6. 6.        To be granted citizenship, the applicant must satisfy the criteria set out in the Act.  Different criteria apply to different types of applicants.

7. 7.        The provisions of the Act tightly control the circumstances for conferral of Australian citizenship.  The legislation is clear that marriage to an Australian citizen, or being the parent of Australian citizens, does not confer an automatic entitlement to citizenship. 

8. 8.        The general eligibility requirements for citizenship are set out in s 21(2) of the Act: 

   2.    2    A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   1.(a) is aged 18 or over at the time the person made the application; and

   2.(b) is a permanent resident:

   1.     (i)     at the time the person made the application; and

   2.     (ii)    at the time of the Minister’s decision on the application; and

   3.(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   4.(d) understands the nature of an application under subsection (1); and

   5.(e) possesses a basic knowledge of the English language; and

   6.(f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   7.(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; and

   8.(h) is of good character at the time of the Minister’s decision on the application.

a.       9.        The requirement that the applicant must satisfy at s 21(2)(c) is known as the general residence requirement and it is defined in s 22(1):

General residence requirement

1.1 Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

1.(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

2.(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

3.(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.

a.       10.      The general residence requirement contemplates an applicant being physically present in Australia for a minimum period (“the relevant period”) before the application.  WWVK was absent from Australia for 1117 days in the four year period immediately before applying for citizenship and therefore does not meet the general residence requirements in s 22(1)(a). The applicant was also absent from Australia for 229 days in the 12 month period immediately before applying for citizenship, meaning he also fails to satisfy s 22(1)(c) of the requirement. This is not in contention. 

b.       11.      Applicants that do not meet the general residence requirement may ask the Minister for Home Affairs to exercise discretion under s 22(9) of the Act: 

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:

1.(a) the person was a spouse or de facto partner of that Australian citizen during that period; and

2.(b) the person was not present in Australia during that period; and

3.(c) the person was a permanent resident during that period; and

4.(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.

a.       12.      The Respondent accepts that the applicant meets the criteria set out in s 22(9)(a) to (d) above. 

Issue for the Tribunal 

a.       13.      Having met the criteria to enliven the discretion afforded by s 22(9) of the Act, the Tribunal must consider whether to exercise the discretion in the applicant’s favour in order to effectively deem him present in Australia during the periods of absence so that he may meet the general residence requirements for Australian citizenship by conferral.  

Background and consideration

a.       14.      The applicant resides in Australia with his wife and two children, all of whom are Australian citizens. He has a long association with Australia having first arrived as a student completing his high school studies.  He also completed his undergraduate degree at an Australian university.  He met his wife in Australia in 1990 and they married in 1998. 

b.       15.      After graduating in 1994 the applicant studied and worked overseas prior to applying for and being granted a skilled migration visa in 1998.  In 2001, following the birth of his son in Australia, the applicant and his family moved to Indonesia to live.  In 2004 the family moved to Singapore.  They continued to reside in Singapore when the applicant began working as the export director of a large Indonesian company in 2007. 

c.       16.      In 2006 the applicant and his wife had applied to become permanent residents in Australia and they were granted permanent residency in 2007. The applicant and his family moved to Australia on 1 January 2009.  From then until now, the applicant and his family have formed a close and continuing relationship with Australia.  The applicant has purchased a property in Australia for him and his family to reside in. The applicant’s children have studied here and have established a clear local pathway for their future education.  Evidence is before the Tribunal which demonstrates the applicant and his family have been active in their local church, community and children’s schools.  On 31 October 2013 the applicant’s wife became an Australian citizen. 

The applicant’s travel

a.       17.      The applicant has been required to travel outside of Australia in his capacity as export director for an Indonesian company.  I have before me travel records which indicate that during the relevant period he has spent approximately one week each month in Australia.  They are consistent with the applicant’s statement that: 

Since 1 January 2009, Australia has become my home. Every month I would typically spend up to 9 days in Australia, and the other days I spent in various countries around the world for my work as an Export Director.

Short school holidays would typically be spent in Australia; I would typically spend up to 2 weeks here.  Longer holidays we travelled to Asia, Europe and North America. 

a.       18.      The applicant’s failure to meet the residence requirement is overwhelmingly as a consequence of time spent overseas for work purposes.  However, the applicant has also provided the Tribunal with a breakdown of time spent overseas with his family during the relevant period which he calculates as 26 days (2013), 22 days (2014), 29 days (2015), 44 days (2016) and 45 days (2017). 

Should discretion be exercised

a.       19.      As mentioned, it is not in contention that the applicant does not meet the general residence requirements in s 22(1)(a) and 22(1)(c) of the Act. Nor is it in contention that the applicant meets the requirements in sections 22(9)(a), (b), (c) and (d) because in the four years prior to his application he was the spouse of an Australian citizen, was not present in Australia, was a permanent resident and maintained a close and continuing association with Australia.  Consequently, it is open to the respondent, or the Tribunal acting as decision maker, to exercise its discretion to treat the applicant’s periods of absence from Australia as periods in which he was present in Australia as a permanent resident.

b.       20.      It is the respondent’s contention that as the discretion in s 22(9) may only be exercised in favour of persons who have, or had, an Australian citizen spouse or de facto partner and that the nature of the relationship between the applicant and the spouse or de facto partner is crucial in the operation of s 22(9).  Specifically of relevance in this matter the respondent submits that the intention of the s 22(9) discretion is to relieve an applicant from meeting the general residence eligibility requirement in circumstances where an applicant’s absence from Australia is associated with the applicant’s spousal relationship with an Australian citizen. 

c.       21.      In support of this proposition the respondent refers to the explanatory memoranda of the Australian Citizenship Bill 2005 (Cth) which states: 

[Subsection 22(9)] 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). 

a.       22.      Indeed, the Citizenship Policy Instructions (“the Instructions”) state that applicants seeking exercise of the residence requirement ministerial discretion will also need to provide ‘evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained a close and continuing association with Australia during that period’. 

b.       23.      The Minister contends that as the applicant’s travel was due to his role as export director of an Indonesian-based company, his periods of absence were work related and not associated with his spousal relationship, and that consequently exercise of ministerial discretion is not warranted.

c.       24.      Counsel for the respondent directed the Tribunal to the comments of Senior Member Fice in Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [36]:

If I am correct in my understanding of the object or purpose of s. 22(9) of the Citizenship Act, then, simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a precondition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and the reasons why the applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.

a.       25.      In considering the respondent’s position, I note that the discretion in s 22(9) is ‘unconfined’.  The Federal Court stated in Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [23]:

…the word “may” permits the Minister to consider any matters, either in favour of or against “treat[ing] a period as one in which the person was present in Australia as a permanent resident”, provided those matters are not “definitely extraneous to any objects the legislature could have had in view”…

a.       26.      Further, in Minister for Immigration and Border Protection v Han [2015] FCAFC 79, the Full Court said in part at [56]:

… “accompanying their Australian citizenship spouse overseas” does not establish that it was intended that s22(9) could only be relied upon where the applicant was overseas in the company of his or her spouse who was an Australian citizen for the entirety of that period.  As the Explanatory Memorandum makes clear, this is simply one example of a situation where the spouse of an Australian citizen may have difficulty meeting the residence requirements.  If falls far short of indicating that proposed s22(9) could have no application unless the spouse who was an Australian citizen accompanied the applicant overseas for the entire time and was an Australian citizen for all of that time. 

a.       27.      The Tribunal notes the Minister’s current position and also advice provided by the Department of Home Affairs in correspondence to the applicant in April 2015.  The letter, written to  the applicant following his first application for Australian citizenship by conferral, also refused as  the applicant did not meet the general residence requirement, stated in reference to s 22(9): 

I am satisfied that you were the spouse or defacto partner of an Australian citizen at the time you made your application for Australian citizenship.  I am also satisfied that since 31 October 2013, you have been the permanent resident spouse or defacto partner of an Australian citizen.  The Ministerial discretion allows periods of time absent from Australia to be treated as periods of time present in Australia when, amongst other criteria, you were the permanent resident spouse or defacto partner of an Australian citizen.  This means that for the purposes of this Ministerial discretion I can treat period of time you have been absent from Australia since 31 October 2013 as periods of time you have been present in Australia.  I find that even with these periods of absence being treated as periods of presence in Australia you still do not satisfy the general residence requirement because of the periods of time spent absent from Australia prior to 31 October 2013. [Emphasis added]

a.       28.      The date nominated, 31 October 2013, was the date on which the applicant’s spouse became an Australian citizen.  The issue of whether an applicant’s spouse was required to be an Australian citizen throughout the relevant period or if it was sufficient the applicant’s spouse or de facto partner be an Australian citizen at the time of application was considered in Minister for Immigration and Border Protection v Han [2015] FCAFC 79, which found the latter applied. The applicant has, not unreasonably, accepted the Department’s advice to mean that from the time his spouse became an Australian citizen, periods absent from Australia would be treated as periods of time that the applicant has been present in Australia. The applicant’s understanding is borne out by the timing of his citizenship application which is the subject of this review, having been submitted four years to the month after his spouse became an Australian citizen.

How should the discretion be exercised?

a.       29.      The applicant’s submission draws the Tribunal’s attention to the case of Galesloot and Minister for Home Affairs [2018] AATA 4450. That decision concerned an applicant who, like WWVK, did not meet the residence requirement and was applying for Australian citizenship by conferral. The successful applicant in that matter had an Australian citizen spouse and two children and had resided overseas for the purposes of taking on a more senior role with his employer. The applicant’s submission reads:

It is submitted that the applicant’s case is more compelling than that of Galesloot as he has spent a greater period of time in Australia and has spent the time in Australia engaged in family and community activities rather than business.  In recent times he has increased his time in Australia…

a.       30.      There are obvious parallels between the matter of Galesloot and WWVK’s circumstances.  The Tribunal accepts that the applicant’s circumstances are in some aspects more compelling than those detailed in Galesloot. Specifically, the applicant has not resided anywhere other than Australia during the relevant period.  Whilst he did travel overseas, he did so primarily for work purposes and his home, or place of residence, during the relevant period was Australia.  He writes that he typically spends nine days each month in Australia, and the remainder he spends in various countries travelling for work.  The Tribunal accepts this and that Australia is the single country that applicant spent the most time in during the relevant period. 

b.       31.      The Tribunal notes that unlike in Galesloot, the respondent accepts that the applicant in the current matter had a close and continuing association with Australia during the relevant period.  There are many factors which support this contention including the applicant’s long association with Australia dating back to his time as a student in the 1980s. He has been residing in Australia continuously since 2009, holding permanent visas since that time.  He has established a home in Australia with his Australian citizen spouse and Australian citizen children.  He has purchased various properties in Australia. 

c.       32.      For these reasons the Tribunal is satisfied that since 2009 the applicant has established home in Australia and his intention is to continue to live in Australia. 

d.       33.      Having regard to the totality of the applicant’s circumstances, I have formed the view that the discretion afforded by s 22(9) should be exercised in the applicant’s favour. 

Decision

a.       34.      The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of section 22(9) of the Act. 

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member. 

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

Associate

Dated: 4 October 2019

Date(s) of hearing:	9 August 2019
Date final submissions received:	12 August 2019
Counsel for the Applicant:	Mr D Godwin
Solicitors for the Respondent:	Mr H Dejean, Australian Government Solicitor