CITIZENSHIP - citizenship by conferral - residence requirement - consideration of discretion in section 22(9) - whether the Applicant had a close and continuing association with Australia during periods of absence - decision affirmed

Australian Citizenship Act 2007 (Cth) ss 21(2)(c), 22(1), 22(9), 24

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Paula v Minister for Immigration and Citizenship [2012] AATA 543

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

Australian Citizenship Instructions (issued 1 January 2015).

1. Ms Kim lodged an application for Australian citizenship by conferral on 30 January 2014. Her application was refused by a delegate of the Minister on the ground that she did not meet the residence requirements for a grant of citizenship.
2. Ms Kim's application for a review of the delegate's decision raises the question of whether the spousal discretion available to the Minister in subsection 22(9) of the Australian Citizenship Act 2007 (Cth) should be exercised.
3. Subsection 22(9) provides that the Minister may treat certain periods of absence as periods in which a person was present in Australia for the purposes of satisfying the general residence requirement.
4. In Han and Minister for Immigration and Border Protection [2014] AATA 846, I decided that subsection 22(9) did not require that an Applicant be the spouse of an Australian citizen throughout the whole of the periods of absence in order to meet the prerequisites for exercise of the discretion.
5. At the commencement of the hearing, the Respondent sought an adjournment on the ground that an appeal to the Federal Court in the Han matter had been lodged that morning. As Ms Kim had travelled from Korea especially for the hearing, I decided that the matter should proceed. I indicated to the representative for the Respondent that I would consider a further application at the conclusion of submissions if necessary.
6. Having heard the evidence, I reached the conclusion that regardless of the outcome in the issue under appeal to the Federal Court, Ms Kim did not meet a further pre-requisite to the exercise of the discretion. I indicated my decision to Ms Kim at the conclusion hearing. The reasons for my decision follow.

1. Ms Kim first arrived in Australia in January 2006. She was granted a permanent resident visa in 2009.
2. In the four years immediately prior to her application for citizenship made in January 2010, Ms Kim was present in Australia for a total of 105 days. During the remainder of this period, Ms Kim resided in South Korea.
3. In 2005, when Ms Kim's family migrated to Australia, she decided to continue to work in Korea in order to financially support the family. She is currently the CEO of a Korean company having previously worked as its General Manager. The company focusses on the sale of commercial property and has a number of extremely valuable commercial relationships in Korea.
4. Ms Kim's movement records indicate that her longest visit to Australia since 2006 was 17 days.[1] From 2010 until her application for citizenship was lodged, she made a total of 17 trips to Australia. Her average visit was from 2 to 6 days in duration.
5. Ms Kim travelled to Australia to visit her family and to be involved in important decisions, such as the purchasing of a new home. Her work commitments meant that she was only able to take short periods of leave to make these visits.
6. On 14 April 2014, Ms Kim was appointed a director of the Australian company Motenashi Pty Ltd. Ms Kim states that the company operates a restaurant and its shares are held by her and her husband. She worked with her husband and son in developing the concept for the business as well as selecting crockery and utensils. She provided the funds for the business but does not play an active role in its management.
7. Ms Kim and her husband previously owned a clothes store in Australia which was run by her husband. She provided all the funds for its purchase. The business has since been sold.

1. Section 21(2) of the Australian Citizenship Act 2007 (Cth) establishes the criteria for general eligibility for the conferral of Australian citizenship. Importantly, subsection 21(2)(c) provides that a person is eligible if the Minister is satisfied that the person satisfies the general residence requirement set out in section 22.
2. Section 22(1) of the Act provides:

(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.

1. The Act gives the Minister discretion to treat a period of absence from Australia as a period in which the person was present for the purposes of satisfying the general residence requirement. Section 22(9) provides:

(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.

1. Ms Kim's husband became an Australian citizen in April 2011. This was after some of the periods in which Ms Kim was absent from Australia in the four years prior to her application, This raises the issue of whether subsection 22(9)(a) requires Ms Kim to show that her spouse was an Australian citizen during each of the periods for which she claims the Minister should exercise his discretion. For the reasons given above, I do not determine this issue.
2. The second issue is whether Ms Kim had "a close and continuing association with Australia" during those periods of absence as required by subsection 22(9)(d). This is the precondition to the exercise of the discretion which I have found not to be satisfied.

CLOSE AND CONTINUING ASSOCIATION DURING PERIODS OF ABSENCE

1. In applying subparagraph 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:
   • (a) "close" means "having a strong or immediate relation or connection";
   • (b) "continuing" means "to remain in existence or unchanged" and
   • (c) "association" means "the act or an instance of associating; fellowship or companionship".

1. The Australian Citizenship Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary_.[2]_
2. In relation to the exercise of the discretion under subsection 22(9) the Instructions relevantly provide:

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

• evidence that the person migrated to and established a home in Australia prior to the period overseas
• Australian citizen children
• long term relationship with Australian citizen spouse or de facto partner
• extended family in Australia
• regular return visits to Australia
• regular periods of residence in Australia
• intention to reside in Australia
• the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
• ownership of property in Australia
• evidence of income tax paid in Australia over the past four year and
• evidence of active participation in Australian community based activities or organisations.

In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.[3]

1. As noted by the Tribunal in Taher and Minister for Immigration and Border Protection:[4]

the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia.

1. Ms Kim has two children who are Australian citizens, both of whom continue to live in Australia. She has been married to her husband since 1983. He is an Australian citizen and resides permanently in Australia. Ms Kim has no extended family in Australia.

Regular return visits and/or residence in Australia

1. Ms Kim travelled to and from Australia on 17 occasions during the four years prior to her application. The primary purpose of these trips was to visit family and to be involved in the making of important family decisions. Each trip was short, with the average trip lasting from 2 to 6 days. Ms Kim conceded that she did not immigrate to Australia despite her intention to do so in 2006.

1. Throughout the relevant period, Ms Kim worked in Korea to provide for a better quality of life for her family in Australia. She stated in a letter dated 31 January 2014:[5]

Now, my children finished their study and got a job. There is no need of financial support anymore. So I am now preparing myself to move in Australia permanently in a short period of time.

1. Ms Kim states that her work in Korea was to prepare for and support her family's life in Australia as well as her future life in this country.
2. However, a letter provided by her company, dated 5 March 2014,[6] states that because of a number of substantial projects, Ms Kim has delayed her resignation. The company at that time had requested Ms Kim to remain for a further five years. At the hearing, Ms Kim stated that these are large projects and will take several years to complete. She is in the process of training two people to take over her role but cannot say how long this will take.

1. Ms Kim is the registered proprietor of the family home, which she purchased in 2010. She completed a tax return for the financial year ending June 2013.[7] The only income Ms Kim earned in Australia that financial year was interest. Ms Kim agreed that she paid $91.75 tax. There is no evidence that Ms Kim has paid tax or even completed a tax return in other income years.

1. Ms Kim formed an online community in 2003-2004 designed to provide Korean people with information about Australia. Ms Kim originally operated the website. Her husband, however, became the main contributor to the running of the site as his residence in Australia meant that he had more information to provide to prospective and existing migrants.

1. Ms Kim was present in Australia for 105 days in the four years prior to her application. Less weight should therefore be given to the factors listed in the Instructions. As stated by the Tribunal in Paula and Minister for Immigration and Citizenship:[8]

The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions "more weight" and "less weight" suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.

1. Physical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia. I regard Ms Kim's limited physical presence in Australia in the four years prior to her application for citizenship as being of particular relevance. When considered in light of her very limited involvement in the Australian community, this outweighs any connection which she does have with Australia.
2. It is clear on the evidence that Ms Kim's connection to Australia is primarily familial. All her immediate family resides in Australia and she travels here regularly to visit them. This connection is undoubtedly strong. Nonetheless, as stated by the Tribunal in Ul Haque and Minister for Immigration and Citizenship,[9] "although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia".
3. Ms Kim's involvement in the Australian community beyond her relationship with her family is very limited. The internet community she established was run by her husband during the relevant periods of her absence from Australia. Significantly, the primary reason for this was that Ms Kim's husband was effectively more connected and informed about Australia than Ms Kim by reason of her absence from the country. She has few friends in Australia and has paid a very small amount of income tax in only one financial year.
4. I note that Ms Kim's actions in remaining in Korea to work are at least partly directed towards establishing a comfortable future life in Australia. I accept that she has purchased a house and intends to join her family at some point in the future. However, her actions in remaining in Korea to work were primarily dedicated towards securing a high quality of life for her family in Australia. This suggests a close connection with her family and a desire to be with them at some point in the future, but not a particularly strong connection to Australia itself.

1. Taking into account all of the factors above, I am not satisfied that Ms Kim had a close and continuing association with Australia during her periods of absence from the country in the four years prior to her application. For that reason, she does not meet the pre-requisite to the exercise of the discretion contained in subsection 22(9)(d).
2. Regardless of the correct interpretation of subsection 22(9)(a), Ms Kim's application cannot be successful. Without the exercise of the ministerial discretion she does not satisfy the residence requirements, and is not eligible for the grant of Australian citizenship.
3. Having reached this conclusion, it is not necessary for me to decide whether Ms Kim is likely to reside or maintain a close and continuing association with Australia if citizenship was granted.

1. The decision of the delegate of the Minister to refuse Ms Kim's application for Australian citizenship by conferral will be affirmed.

1. I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

[1] Exhibit R1, p. 162-166; Exhibit R2.

[2] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634, 645.

[4] [2013] AATA 917 at [47]

[8] [2012] AATA 543 at [31].

[9] [2013] AATA 118, at [52].