Sun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3408 (23 September 2021)

Bernabo Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 929

Docherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1822

Ullah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 485

Citizenship Procedural Instruction No 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia

Citizenship Procedural Instruction No 33 - Prohibitions on approval

1. The applicant arrived in Australia on a Skilled (Subclass 136) permanent visa on 16 July 2008.[1] On 2 November 2017, more than nine years later, he lodged his application for citizenship.[2]

2. The applicant is married with twin daughters, Mia[3] and Mya,[4] born in 2015 in New South Wales. His wife is a permanent resident and his children are Australian citizens.

3. On 5 November 2017, the family travelled to China where they remain because of travel restrictions associated with the present pandemic. The applicant returned briefly to Australia on 3 June 2019 and attended a citizenship test and interview on 4 June 2019.[5] He then returned to China.

4. One of the requirements of citizenship is that the decision-maker must be satisfied that an applicant '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'.[6] Another requirement is that the applicant is present in Australia at the time the application is approved.[7] On 9 October 2020, a delegate of the respondent decided both issues against the applicant, and therefore refused his application for Australian citizenship.[8] On 10 October 2020, the applicant applied to the Tribunal to review the delegate's decision.[9]

5. The Respondent contends that, because the applicant is not currently present in Australia, the decision should be affirmed. Subsection 24(5) of the Australian Citizenship Act 2007 (Cth) ('the Citizenship Act') provides: '...the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.' The Respondent states there is no discretion in the matter.

6. For the following reasons, I do not accept the Respondent's contention. The departmental processing of his application is not complete. It was interrupted by the adverse finding made under subsection 21(2)(g). There are outstanding matters to assess, including an assessment of character, identity and security matters. The issue before the Tribunal relates only to the delegate's finding regarding the likelihood of future residence or association with Australia. Subsection 24(5) relates to the time of approval. This must surely refer to final approval rather than intermediate steps along the way. There is no question of approving the application in these proceedings, and the applicant's non-presence in Australia at the time of the Tribunal's decision in these proceedings is therefore irrelevant.

7. The present application should not therefore be disposed of by reference to subsection 24(5). In some recent matters, arising from the COVID 'nightmare',[10] the Tribunal has taken this course, although in nearly all cases the principal issue of future residence or association has been considered.[11]

8. I note that in Ullah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 485 ('Ullah'), the delegate had rejected the application, as here, on both grounds, but the Respondent did not rely on subsection 24(5).

The question of whether the prohibition in s 24(5) applies is not in issue in the present review as, in the event that the applicant is successful in his review application, it would be appropriate for the Tribunal to remit the matter to the Minister for reconsideration. In reconsidering the matter, the Minister will assess whether at that point in time, the prohibition in s 24(5) of the Act applies. The Minister also notes that the applicant has not yet been assessed against s 21(2)(h) or the other prohibitions in s 24 of the Act.[12]

9. In Ullah the Tribunal accepted the Respondent's submission and focussed on the question of likely residence in Australia. It is exactly the same in this case. The Delegate has not completed the assessment and there are outstanding matters to be considered, including issues of character and identity.

10. I also note that the Procedural Instructions ('CPI33') recognise that it may be appropriate to delay a decision on the application until the applicant returns to Australia.[13]

6. Person not present in Australia

6.1 Can a decision be delayed until the applicant returns to Australia?

If the applicant is not present in Australia and does not meet the exceptions listed above, the decision-maker must attempt to contact the applicant and seek information on their plans to return to Australia within a reasonable period.

While an individual's circumstances will differ, in this context, a reasonable period may be 10 weeks or less. If the applicant responds and can demonstrate their intention to return to Australia within a reasonable period (e.g. by producing a scan of a return ticket) it may be appropriate to delay the decision until their expected return date.

Delaying making a decision on an application until the applicant returns should only be considered in circumstances where:

• the applicant's non-presence in Australia is the only barrier to the application proceeding; and
• the applicant has demonstrated their intention to return within a reasonable period.

If, after the reasonable period has passed and the applicant has not returned to Australia, a decision should be made on the application as soon as practicable without further attempts to contact the applicant.

11. I also note that there are signs that some easing of restrictions may lie in the not too distant future with the imminent resumption of normal flights between Singapore and Australia. There is light at the end of the tunnel. Hopefully, the applicant will be able to return at relatively short notice at around the time of final processing.

12. I therefore turn to the substantive question, which requires me to find whether, on the objective facts before the Tribunal, the applicant 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.

13. I note the Citizenship Procedural Instructions (CPI 11) Assessing likelihood to reside or continue to reside or maintain a close and continuing association with Australia.[14]

Procedural Instruction

The purpose of this Instruction is 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.

...

3.2. Only one arm of the requirement must be met

An applicant seeking to satisfy subsection 21(2), (3) or (4) of the Act must be likely to:

• reside or continue to reside in Australia;
• or maintain a close and continuing association with Australia if their application were to be approved.

This means the decision-maker must make a finding about the applicant's future plans or intentions. The decision-maker may, if they consider it necessary, seek information relevant to this requirement by interview or a request for further information.

Likely to reside or continue to reside in Australia

The words comprising the phrase 'likely to reside or continue to reside' should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

• 'likely' as probably or apparently going or destined (to do, be, etc.) - in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
• 'reside' as to dwell permanently or for a considerable time; have one's abode for a time - in the context of the requirements of the Act, this means the person's home in which they ordinarily live is in Australia.

...

If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.

Likely to maintain a close and continuing association with Australia

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.

Paragraph 3.3 sets out a list of factors that may be relevant.

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:
  • 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?
  • 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?
  • What are the schooling arrangements for their children 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 reasons for absences from Australia if the person resides in Australia. For example:

• 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;
• 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;
• 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?
• An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decisionmaker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;
• 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:
  • Participation in a community group that provides services or engages in activities of benefit to the community;
  • 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.

14. As noted above, in November 2017, the applicant returned to China, accompanied by his wife and twins. I note that both sets of grandparents (his parents and his wife's parents) live in China.

15. One of the twins suffered from a serious eye condition, and the applicant wished to have her treated according to Chinese medical practices. He and his wife were very worried about her condition and had little confidence in the proposed treatment advice received from doctors in Australia. This treatment involved the use of steroids with potentially harmful side-effects. He was confident that she could obtain better treatment in China. It is not uncommon for new parents to worry a good deal about their children, especially their first born, and even to second guess competent medical advice.

16. I do not intend to traverse the medical matters in any detail. I have read the reports. There is no doubt that it was a serious condition. The applicant's daughter has now received medical treatment in China and he told the Tribunal that she is fully recovered. He is greatly relieved about this.

17. The applicant said that he wanted his children to grow up in Australia. They were Australian citizens. Their lives had been disrupted by COVID but he was hopeful that he would be able to return to Australia in the near future, and before the children started primary school. He said the children were in Kindergarten last year, but they were expected to start school in September in Shanghai.

18. He gave up his job when he returned to China, and since February 2018 he has been working for in Shanghai as the manager of his employer's audit compliance Department.[15] He said that his income in Australia was much higher, even in semi-skilled work. I note that he was working in the CBD is Sydney before he left for China and is confident that he can get a job quickly on his return. The applicant owns a house in North Rocks, New South Wales, which is presently rented out on an informal basis, and managed by a friend. He also has some property at the house, including a motor vehicle and a motor cycle. The lease is informal and could be terminated at short notice.

19. I note that the applicant also owns a house in China but he informed the Tribunal that currency restrictions make it difficult or impossible to send any proceeds of sale to Australia and I accept this at face value.

20. Finally, some statistics. Between the date of his first arrival (16 July 2008) and the date of his family's departure for China (5 November 2017) he spent 70% of that period in Australia.[16] In the four years prior to lodging his citizenship application (on 2 November 2017) he spent 92% of his time in Australia.[17] The remaining 30% was spread over nine visits to China.

21. Since November 2017, he has returned to Australia twice, both times in 2019, once for three days in March, and then for a single day in June. These trips were for the purpose of advancing his citizenship application. Since the beginning of 2020 he has been unable to return to Australia due to travel restrictions associated with the present pandemic.

22. Given the reasons for his trip to China and the uncertainties thrown up by the present pandemic, I am comfortably satisfied that it is more probable that not that he will return to Australia and reside here if his application is approved.

23. Even if I had doubt as to the likelihood of residence in the short to mid-term, I am entirely satisfied that that he is likely to maintain a close and continuing association with Australia if his application for citizenship is approved. I was impressed by his attachment to Australia, and equally impressed by his commitment to the wellbeing of his family. I am satisfied that his reason for returning to China in 2017 was related to his daughter's medical condition, and does not indicate a lack of attachment to Australia.

24. I therefore set aside the decision under review and remit the matter to the Respondent for further processing.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...........................SGD.............................................

[6] Australian Citizenship Act 2007 (Cth) s 21(2)(g).

[7] Australian Citizenship Act 2007 (Cth) s 24(5).

[10] Docherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1822 at [43].

[11] Bernabo Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 929 at [62].

[15]Letter from employer dated 25 February 2018: T10,138.

[16] 2,401 days out of 3,396 days. The overall percentage is of course going down as his absence from Australia grows. At the time of writing it is approximately 50% (2401 out of 4809 days).