//
[2022] AATA 789
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-04-14
Chris Puplick AM
Original judgment source is linked above.
Leverenz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 789 (14 April 2022)
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
...................................[sgd]....................................
CITIZENSHIP - application for Australian citizenship by conferral - refusal of citizenship - close and continuing association with Australia - applicant likely to reside, or to continue to reside, in Australia - application of Citizenship Procedural Instruction 11 - prohibition under subsection 24(5) of the Citizenship Act - original hearing adjourned - decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A and 40
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Judd v Minister for Immigration [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Li and Minister for Immigration and Border Protection [2015] AATA 270**
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Shi v Migration Agents Registration Authority [2008] HCA 31
Sun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3408
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Yang and Minister for Immigration and Border Protection [2017] AATA 364
Citizenship Procedural Instruction 11 - Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia
1. Mr Marcus Leverenz (the Applicant) has applied to this Tribunal for a review of a decision made by a delegate of the Minister (the Respondent) on 19 January 2021, refusing his application for Australian citizenship by conferral.
2. The Applicant is a citizen of Sweden. He is married to Eva Ulrika Leverenz and they have a son Tycho Lars Jerome Leverenz. Both Eva and Tycho Leverenz are Australian (dual) citizens.[1]
3. The Applicant (who was born in 1964) first arrived in Australia on 29 August 2013 and on 15 March 2016 was granted a subclass EN-186 visa.[2] He applied for citizenship by conferral on 20 April 2018.
4. The basis of the refusal decision was two-fold. In the first instance the Respondent assessed that the Applicant was not likely to reside in or to maintain a close and continuing association with Australia. Secondly the Respondent relied upon a statutory prohibition which prevents the Minister from granting citizenship to a person who, at the time of the Minister's decision is not present in Australia.[3]
5. On 14 February 2021 the Applicant applied to this Tribunal for a review of that decision. The matter was heard using the Microsoft Teams platform on 1 October 2021 in accordance with the Tribunal's COVID-19 protocols. The Applicant appeared from Sweden and arrangements were made to accommodate the time-zone differences for the parties.
6. After hearing the Applicant's oral evidence and after consideration of the various written submissions, the Tribunal decided to adjourn the hearing[4] to 1 April 2022 to allow the Applicant the opportunity to arrange a return to Australia on a permanent basis free from the COVID-19 travel restrictions.
7. This would potentially overcome the otherwise insuperable barrier to this application constituted by subsection 24(5) of the Act (discussed further at paragraphs [65]-[71] of these reasons).
8. There was no suggestion that the resumed hearing on 1 April 2022 had any predetermined outcome. The Tribunal made it clear that the issues of the Applicant's close and continuing association with Australia (and hence his conformity with paragraph 21(2)(g) requirements) would continue to be in issue and would need to be resolved at that time and in accordance with the circumstances as they prevailed on that later date.[5]
9. The Respondent recorded its formal opposition to the adjournment being granted and the Tribunal noted and recorded its position accordingly.
10. Well prior to 1 April 2022 the Tribunal made contact with the Applicant on several occasions to advise that the hearing would proceed as scheduled on that date and to secure the Applicant's participation in the proceedings. The Applicant was provided with an opportunity to make any further written submissions to the Tribunal prior to the scheduled date of hearing.
11. The day prior to the hearing (31 March 2022) the Applicant sent an email to the Tribunal in the following terms:
"I have not returned to Australia since the last time. The Corona situation had relaxed about two months ago and we had booked tickets for a flight to Sydney to prepare for our return. Then, as if the world did not have enough problems, a war was started in in Ukraine.
The situation there has affected us very much. The population in Ukraine is in out [sic] daily thoughts. We have moved together at home, our son gave up his room, in Stockholm and made room for a family of 4, without the father who is serving in the Ukrainian Army.
In a situation like that we have decided that a trip to Australia for fun and enjoyment and house hunting and making plans for the future would be not in sync with world order.
That is very unsatisfactory as an answer, but we have to postpone our decisions about the future until the headlines of the papers do not scream bombing at us.
All that is unfortunate, the money is in the bank, fortunately in cash and not shares. But we can not envisage sitting in Sydney in the sun discussing the pros and cons of certain places while artillery is shelling innocent people. Feeling empathy for others in their hardship is very Australian.
I ask the Senior Member to postpone the hearing for a further 6 months."
12. The Tribunal was not prepared to postpone the hearing for a further six months. It made its first postponement decision on the basis of advice from the Applicant of an intention to return to Australia at an early date, and in this respect overbore the objections of the Respondent and indeed departed from more usual Tribunal procedures which are not to grant such adjournments.
13. The Applicant did not take advantage of the opportunity provided by the Tribunal's initial decision and was not, in its view, entitled to expect that indefinite postponements would be granted to suit the Applicant's convenience regardless of the legitimate expectation of the Respondent for a decision to be made in the matter or for the Tribunal to ensure an orderly processing of its workload in line with the objectives of its own Act.[6]
14. The Tribunal denied the request for a further adjournment and advised the parties by email on 1 April 2022 prior to the scheduled time of hearing. The Tribunal continued to seek the attendance of both parties at the scheduled time to ventilate any remaining issues in this matter, although only the Respondent's representative appeared.
15. At this point, the Tribunal sought the view of the Respondent as to the submission of any further material and, because there was none forthcoming (from either party), indicated that it would proceed to make a determination based on the extensive written material before the Tribunal and the evidence from the transcript of hearing on 1 October 2021.
THE LEGISLATIVE FRAMEWORK: CITIZENSHIP BY CONFERRAL
16. The Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application for citizenship by conferral.[7] The Minister must make a decision on the application and either approve or refuse it.[8]
17. An applicant must meet certain qualifications a specified in the Act[9] and, if they do, they must then undertake and pass the Citizenship Test[10] (unless they are exempted from so doing).[11] Once those steps are complete, a qualified applicant must make the Pledge of Commitment[12] (unless they are exempted from so doing)[13] before their citizenship is granted finally.
18. Eligible applicants for Australian citizenship by conferral must meet the requirements set out in subsection 21(2)[14] of the Act which provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(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
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(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
(h) is of good character at the time of the Minister's decision on the application.
19. To be successful in an application for citizenship by conferral an applicant must satisfy all of the criteria set out in that subsection. As noted, the Minister's delegate was not satisfied that the Applicant met the requirements of paragraph 21(2)(g).
20. In making determinations under the Act, the Tribunal also takes account of the Australian Citizenship Policy Statement and C_itizenship Procedural Instructions_ (CPI) which guides and assists decision-makers, in particular Citizenship Procedural Instruction 11 - Assessing Likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) effective as from 17 April 2019.[15] Unlike previously published departmental policy documents, the CPIs do not contain, in their present iteration, any set of indicia by which a "close and continuing association" is to be assessed. At best they provide some examples of what might be indicative of "participation in the Australian community"; factors related to the living arrangement of the applicant in their current country of residence and some examples which "would not ordinarily be of concern" related to frequent absences overseas of a person ordinarily resident in Australia.
21. In relation to such Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[16] are useful aids to the interpretation of the statute. At best they represent the respondent's opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[17]
[emphasis added]
22. This application turns to some degree upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement, both past and projected. There are two elements in this, the length of time which is a matter of fact and the degree to which he has a "close and continuing association with Australia" which is a matter of judgement and debate.
23. The Tribunal recognises what was said in Ul Haque, namely that "[w]hether Mr Ul Haque had 'a close and continuing association'... is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions."[18] The Tribunal went on to say that "[w]hile physical presence is not determinative, it is nonetheless highly relevant to the nature of a person's association with Australia."[19]
24. It seems to the Tribunal that words such as "close" and "continuing" must lend themselves to varying interpretations if they are to be "objectively assessed", or at the very least differing weight may be accorded to "all relevant factors" with respect to the circumstances of each case.
26. The Macquarie Dictionary,[21] among its many definitions of the word "close" refers to:
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
3. to last or endure.
...
6. to go on with or persist in: to continue an action.
28. In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
29. The CPIs make it clear that the checklists which they provide, list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also stress the necessity of each case being determined on its own particular merits and terms.
30. As the Tribunal has noted, with so many of the key concepts in the Act, the Act itself contains no precise definition of what this formulation means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately, there is no unanimity on that point and different decision-makers have come to different conclusions. What is clear however is that:
[w]hether the applicant had "a close and continuing association" throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.[23]
32. As noted, there are many decisions on this point, the gravamen of which are that "close and continuing" is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are "enough" to satisfy the requirement of a close and continuing association,[26] although what "enough" might be is itself unclear.
33. In Nassif,[27] Kim,[28] Taher[29] and Nicholls,[30] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[31]
34. On the other hand, in Saba, Paula and Judd[32] the Tribunal or Court has been less concerned with the aspect of physical presence and more with the quality of attachment. Indeed, in Judd the Court noted, "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'".[33]
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be "a close and continuing association with Australia." Although that seems simple enough, it begs the question: what is meant by "Australia" in this context? For example:
... > > [32] Asking the question "what is Australia" within the context of this legislation seems as fruitless as Pilate's enquiry about truth (John 18:38). I have found no relevant authority on this point.
36. In Mishra, the Tribunal reinforced a broader evaluative construction of the "close and continuing association" requirement and said:
[52] The language used in section 22(9)(d) namely "close and continuing association with Australia" are not ambiguous and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
[53] In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[35]
37. The term "likely to reside" has also been subject to discussion by the Tribunal.
It can not mean "likely to take up residence in 18 months or two years time" or "likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found". The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of citizenship.[36]
...the intention to which s 21(2)(g) of the 2007 Act refers is one that is to be acted upon within a reasonably short time frame.[37]
40. Even accepting this to be a correct statement of the meaning of "likely to reside", there is still a wide discretion left to the Tribunal to determine, in each case, what might constitute a "short" or "very soon" or "reasonable" time. The Tribunal must deal with matters of the real world and not a set of confected or ideal situations and this requires acceptance that in the "era of COVID-19" there are real constraints on people's movements, their ability to secure flights and the extent to which they may or may not be admitted to Australia. Not only are the constraints real, they vary from time to time, and even from place to place within the Nation.
41. As noted, the Applicant first arrived in Australia in August 2013. His movement record shows that between that date and the date when he lodged his citizenship application (20 April 2018) he departed from and returned to Australia on some 18 occasions. His periods of residency in Australia have varied from a week or so to up to five months. He departed Australia on the same day as his citizenship application was lodged, returning on 15 September 2019 and again departing on 21 September 2019. He has not been in Australia since that date.[38]
42. In the process of assessing the application, on 8 January 2020, the Respondent sought advice from the Applicant about his intentions to reside in Australia and drew his attention to provisions of the Act related to the requirement to be present in the country at the time of any granting of citizenship.[39]
43. The Applicant's response was in the following terms:
"On my citizenship appointment on the 16th of October the interviewer asked me how long I would stay in Sydney. I told her that I would stay for a week and then return to Sweden. I was told that a decision would be made within that week. When I called the 19th of October, I was told that a decision was not made and that I could leave, the decision would be made although I was not in the country. I obviously misunderstood the procedure.
I am likely to reside in Australia within the near future. I have a close association with Australia and want to maintain that association.
My wife Eva Ulrika Leverenz is an Australian citizen (Passport nr. [XXXXX]). My son Tycho Leverenz is an Australian citizen ([XXXXX]). We have been married forever and been a couple since 1985.
We stayed in Sydney from 2013 until 2018. We would have liked to stay longer, but my wife's work at Hennes & Mauritz required her to return to Stockholm, Sweden, where the company's headquarters are. The intention was to stay in Sweden for a year and then return to Australia. Now that project is coming to an end, but another project in E Commerce requires her to stay in Stockholm until the end of that project. My wife will later then implement that E Commerce project in Australia and a few other countries, based in Sydney.
We do not own a property in Australia. We have been looking at a few properties and plan a trip to Australia in April 2020 to by an apartment."[40]
44. The Respondent wrote again (on 2 November 2020)[41] continuing to seek advice from the Applicant about his intentions. He replied, on the same date reattaching his earlier letter and adding:
"Except for the fact that Covid 19 has postponed our plans a bit, the situation has not changed. In the current situation it is impossible to put any date to our plans, but we had hoped to spend New Year's Eve in Sydney. That will certainly not be possible, no one expects the situation to return to normal in the next months."[42]
45. The Respondent obviously found these explanations insufficient to meet the requirements of the legislation as set out in paragraph 21(2)(g) of the Act and hence made a decision to refuse the application.
46. The Applicant set out even more fully his concerns about the refusal decision in his formal application for review in this Tribunal. In the application he writes:
"The decision wrongly assumes that I will not reside in Australia and that I will not maintain a close and continuing association with Australia and that I therefore not satisfy the requirements of paragraph 21 (2) (g) of the Australian Citizenship act.
We lived in Sydney for 5 years, very happy years I have to say. Not a day passes by that we do not talk about memories from our stay.
On the 16th of September 2019 I attended the citizenship appointment. In the interview we talked about the plans for the future. As it is stated in the departments decision, the reason we left Australia was that my wife, who has worked with Hennes & Mauritz since 1990, was asked to return to headquarters in Stockholm to run a project where her expertise was needed. The project was time limited to about two years. After that we would return to Australia, that was the reason for us wanting to buy a property in Sydney. But I also told the interviewer that I would not stay to long in Australia on that occasion, as my wife had business in London the week after and I had to be at home with our son. I have certainly not said that I would depart Australia for three weeks and then be back.
The interviewer told me that she did not see any problems in my timeline, and that a decision would be made by Wednesday, the 18th of September 2019.
On the 28th of January 2020 I was requested to provide evidence of my intent. My response to that was received by the Department on the 2 of March 2020. At that point I had scheduled a trip to Australia for the purpose to look for an apartment. As we all know the Covid 19 situation made traveling impossible.
There was no reply to this letter, all the remarks that the Department now states (top of page 6) where never communicated to me. It would have been easy to ask for proof or further clarifications.
On the 2 of November I got the same letter as I got on the 28th of January. The same questions and not a hint of that my answers from the 2 of March had been taken into consideration. In my answer of the 3 of November I repeated what I had written i March 2020. Furthermore I said that Covid 19 had shaken our plans.
I have not received any requests for further explanation on that letter either.
In the eyes of the Immigration Department I did not show sufficient close association with Australia due to the fact that I did not spend any days in Australia in the 12 months prior to the 19th of January 2021. In the current situation travel for leisure between Sweden and Australia is not advised on, as I can read daily in the Sydney Morning Herald.
Assuming that I have no intent to return to Australia because I have not been in Australia during the Covid 19 pandemic takes reality not into consideration.
That I have not provided a timeframe for our return to Australia is seen as a proof that I am not likely to reside in Australia. Under the current circumstances any plan one makes is likely to fail. We had planed [sic] on to visit 4 weeks over Christmas 2020, but that was not possible. Nobody can tell when life returns to normal, I would hope that by the end of 2021 at least unrestricted travel will be possible. But then virus mutations can postpone that date.
I read the Sydney Morning Herald everyday, I speak to friend in Australia once a week. I spent Australia Day in the Australian pub in Stockholm and we have saved up for that house in Sydney.
I have a wife since 1985 and a son that are Australian Citizens. My son and wife and I want to move as soon as possible, but in the mids [sic] of a pandemic there can not be a timeframe.
At the moment that is all that I can show for a close and continued association with Australia. I can not be the only one that is in this predicament. Basing the decision on circumstances that are outside my control can surely not be right. I have no control over the circumstances that are referred to in the decision. Using these circumstances to dispute my intent of moving back to Australia and my close and continuing association with Australia is wrong.
I ask the AAT to change the decision and to find that I meet the paragraph 21(2)(g) concerning future residence or close and continuing association with Australia.
If I understand it right I need to be present in Australia at the time that the decision is made. I have read that there are online citizenship ceremonies to address the Covid 19 situation. If there are no exceptions to the requirement, I ask the AAT to allow me 12 months to return to Australia."[43]
47. In his email to the Tribunal of 31 March 2021 the Applicant writes that "about two months ago and we had booked tickets for a flight to Sydney to prepare for our return" but unfortunately here is no documentary evidence which supports this claim. "[A]bout two months ago" would have been towards the end of January 2022 and Australia's international borders were re-opened (after a prolonged COVID-related shutdown) on 21 February 2022. The barbaric Russian invasion of Ukraine, the alleged cause of the postponement of a return to Australia, occurred on 24 February 2022. To accept the Applicant's claim in this regard is simply to adduce that at some time between 24 February and 31 March 2022 the decision was made not to travel to Australia on the tickets booked for arrival at some date after 21 February 2022.
48. The Applicant gave extensive oral evidence on 1 October 2021 with particular reference to his time living in Australia, his working life, the arrangements for the education of his son and his continuing ties to Australia.
49. The Applicant informed the Tribunal that it had been his intention to apply for citizenship by conferral at the same time as such (successful) applications were lodged by his wife and on behalf of his son. However, he was advised not to proceed at that point because departmental records suggested that he had been overseas for 91 days in the 12-month period immediately before his date of application. If an applicant is overseas for more than 90 days in the prescribed period they are taken not to have met the requirements of section 21 in terms of establishing themselves as meeting the general residency requirements.
(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.
51. The Applicant personally disputes this finding, claiming that his period of absence was actually 90 days.[44]
52. The Applicant also states that he sat for and passed the Citizenship Test on 17 September 2019.[45]
53. The Applicant advised that his son had been schooled in Australia, both at a local public school and then at the German International School Sydney in Terrey Hills (NSW). His son was born in Hamburg and spent most of his early life there or in London (apparently from about shortly after his birth until arrival in Australia in 2013) and has only lived in Sweden since the family returned there in 2018.
54. The Applicant's wife is a senior executive with the international clothing and fashion company Hennes & Mauritz (trading as H&M) which is based in Sweden. It has world-wide operations including in Australia. His wife's position relates to various e-commerce activities of the Company and involved her working with suppliers and outlets in Turkey, Hong Kong, Bangladesh and elsewhere. She was able to undertake most of her responsibilities based in Australia but was asked to return to the headquarters in Sweden to undertake leadership of further projects requiring her expertise in 2019.[46]
55. The Applicant himself is qualified as a lawyer but has not worked in that capacity for many years and indeed, apart from some involvement in the collection and sale of Chinese art and a degree of involvement in building "a few houses",[47] does not appear to have been in any sort of full-time employment for many years.
56. While in Australia the family lived in rented premises. It was the Applicant's evidence that he or the family own an apartment and holiday home in Sweden and also residences in London, Hamburg and the south of France.[48]
57. The Applicant does not own any property in Australia, although he maintains an Australian bank account and would be able to purchase a property on his return to Australia.
58. The Applicant was not an active participant in community-life or community-based activities to any great extent while in Australia, although he was active with friends in the boating community in Mosman (NSW) where they lived.
59. Since his departure from Australia the Applicant has maintained limited and sporadic contact with his Australian friends through various social media networks, including taking advantage of different time zones to share a drink together.[49]
60. In relation to the citizenship status of his wife and son, the Applicant remarked that his visa conditions were such that the family could return to Australia at any time and he could "live there as their appendix"[50] but that his real desire was to obtain citizenship as Australia was the place he felt "most at home".
61. The Tribunal cannot conclude from the written and oral evidence of the Applicant that he satisfies the test of having a "close and continuing" association with Australia. It accepts that in many ways he feels "Australian" or at least partially "Australian". In his evidence he said:
"I don't know if I can say that I felt Australian or feel Australian. Now I live here in Sweden, and I feel Swedish, too. It is, I think, the idea of that you feel like a citizen that is maybe a little bit from yesterday. Today it's not as exclusive; I am born Australian, I need to be Australian all my life, or I am German or Swedish or something. But of all the places we have lived, Australia was the place we felt most at home. And that is why we aspire to move back there."[51]
62. Similarly, in his email of 31 March 2022 he states that "[f]eeling empathy for others in their hardship is very Australian."
63. So indeed, it may be and indeed may the Applicant so identity. That is not, however, what is required under the Act to establish the sort of close and continuing association specified.
64. The Applicant does not satisfy the requirements of paragraph 21(2)(g) of the Act.
65. It will be recalled that the second basis upon which this application was refused related to the Applicant being overseas at the time of the Respondent's decision being made.
66. Subsection 24(5) of the Act relevantly provides:
(5) If:
the person is covered by subsection 21(2), (3) or (4);
...
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
67. The Tribunal, standing in the shoes of the original decision maker is similarly bound by this prohibition.
68. While considerations under paragraph 21(2)(g) may be open to interpretation, and the Tribunal may take a sympathetic view of applicant's attachment to Australia and the impact of the COVID-19 pandemic on travel plans,[52] subsection 24(5) is both unequivocal and unyielding. It imports no discretion.
69. Many people in this current COVID-19 nightmare have found themselves in much the same position as the Applicant. They have been outside Australia; they desired to return but they could not while the international borders remained closed. That is no longer the case - the border is open, and flights are arriving on a regular basis. The choice to return to Australia lies squarely in the hands of the Applicant and neither the virus nor government policy is preventing him from doing so.
70. The Tribunal cannot set aside the mandatory requirement of subsection 24(5) that, in order to acquire citizenship by conferral, the Applicant must be physically present in Australia at the relevant time. To the extent that he is not, he cannot succeed in his application.
71. This determination in no way prohibits the Applicant from making another application for citizenship by conferral[53] once he satisfies the requirement of subsection 24(5) and has returned physically to the place he says he wishes to call home.
I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.......................................[sgd].................................
[1] Tribunal documents (T-documents) at 84 and 85. Both citizenship grants made on 17 September 2019.
[2] Employer Nomination (Permanent) visa.
[4] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 40(1)(c).
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
[7] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[11] Act ss 21(3)(d) and 21(4)-(8).
[15] CPI 11 - Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia (CPI 11).
[16] These "Instructions" (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement (27 November 2020) in the same terms. See Department of Home Affairs, Australian Citizenship Policy Statement (27 November 2020). The current set of Instructions are a different form of advice to decision-makers.
[17] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
[18] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
[20] T-documents at 129. CPI 11 at 3.2.
[21] Macquarie Dictionary (online at 5 July 2019) 'close' (def 31 and 32) and 'continuing' (def 3 and 6).
[22] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
[23] PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148 at [30].
[24] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]- [38].
[25] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]- [49].
[26] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26].
[27] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[28] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[29] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[30] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[32] Saba and Minister for Immigration and Border Protection [2014] AATA 579; Paula and Minister for Immigration and Citizenship [2012] AATA 543; Judd v Minister for Immigration [2017] FCA 827.
[33] Judd v Minister for Immigration [2017] FCA 827 at [14].
[34] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
[35] Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479. Footnote omitted_._
[36] Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at [31].
[37] Saba and Minister for Immigration and Border Protection [2014] AATA 579 at [50].
[38] Applicant's Movement Records at 1-4.
[44] Transcript of hearing dated 1 October 2021 at 14, lines 18-37.
[45] Transcript of hearing dated 1 October 2021 at 15, line 14.
[47] Transcript of hearing dated 1 October 2021 at 19, lines 12-13.
[52] Sun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3408.
[53] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].