[2011] AATA 877

IMMIGRATION & CITZENSHIP - refusal to grant citizenship by conferral - applicant married to Australian citizen - applicant does not meet residence requirements - application of Australian Citizenship Instructions

Australian Citizenship Act 2007 ss 21, 22, 22A, 22B, 23, 24

Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; (2010) 114 ALD 26; (2010) 265 ALR 292; [2010] FCAFC 20

Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688

Re Minhas and Minister for Immigration and Citizenship (2011) 121 ALD 647; [2011] AATA 388

Australian Citizenship Instructions, Chapter 5, 15 September 2011

1. Ms Tan has applied to the Tribunal for a review of a decision of a delegate of the Minister for Immigration and Citizenship to refuse her application for Australian citizenship by conferral on the ground that she did not meet the residence requirements. The issue for the Tribunal is whether this is the correct or preferable decision.

1. Ms Tan, who is aged 45, was born in the Philippines where she is a citizen. She married Robert Tan in 1995. Mr Tan was born in the Philippines but was granted Australian citizen by conferral in 1992. Mr and Mrs Tan have two children, aged 12 and 15, who are Australian citizens by descent. Mr Tan is currently employed as the Chief Operating Officer/Executive Vice-President of CBN (Christian Broadcasting Network) Asia based in Manila where Mr and Ms Tan are living with their two children. He has also previously been posted by CBN to other Asian countries, including serving in Indonesia from 2002 to 2007. Ms Tan states that CBN is an international organisation with headquarters in Virginia Beach in the United States.
2. Ms Tan entered Australia as a visitor in 1995/1996, 2001 and 2003, staying for two or three weeks on each occasion. She became a permanent resident of Australia on 24 January 2004 when she arrived with a BF-100 Permanent Resident Spouse visa which was granted on 26 September 2003. On that occasion, Ms Tan stayed for about a week. Since then, she has visited Australia in 2005/2006 (four weeks), 2008 (a month), and 2010 (four weeks), most recently departing Australia on 21 July 2010.
3. Ms Tan maintains a Commonwealth Bank account in Sydney. She has a sister and a brother who are both Australian citizens and live in Sydney with their families. Ms Tan states that she and her husband plan to move to Australia in late 2014 or 2015 to enable their eldest son to prepare for and undertake tertiary study here.
4. According to movement records maintained by the Department of Immigration and Citizenship (the Department), Ms Tan has been present in Australia for 99 days since she arrived in Australia as a permanent resident on 24 January 2004. In the four years before making her application for citizenship, Ms Tan was in Australia for a total of 60 days, and in the 12 months before making her application for citizenship, she was in Australia for 29 days.
5. On 11 July 2011, Ms Tan lodged an Application for Australian Citizenship by Conferral, which was refused by a delegate of the Minister on 1 August 2011. On 22 August 2011, Ms Tan lodged an application with the Tribunal for a review of this decision.

1. Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, "the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen". Section 21(2) states the general eligibility requirements:

(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 has completed relevant defence service (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.

1. Thus, s 21(2)(c) requires that the applicant must either satisfy the residency requirements set out in ss 22, 22A or 22B, or have completed the relevant defence service described in s 23.
2. Section 22(1) sets out the general residence requirement:

(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 noncitizen 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. Section 22(9) and (10) of the Act state:
   • (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.
   • (10) In subsection (9):

surviving spouse or de facto partner of a person who has died means a person who was the person's spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

1. The Government has developed policy in the form of the Australian Citizenship Instructions (the Instructions) to provide guidance to decision-makers. As the Full Federal Court said in Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at 122, the Tribunal should take such policy into account and accord it appropriate weight. The introduction to the Instructions states that their role is:

... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

1. The Instructions state that the discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when: (i) the applicant was the spouse or de facto partner of a person who was an Australian citizen; (ii) the applicant was a permanent resident; and (iii) the applicant had a close and continuing association with Australia. This discretion would usually only be exercised if the applicant was overseas with their Australian citizenship spouse or de facto partner.
2. The Instructions state that factors that may contribute to a close and continuing association with Australia include: (i) Australian citizen children; (ii) length of relationship with the Australian citizen spouse or de facto partner; (iii) extended family in Australia; (iv) return visits to Australia; (v) periods of residence in Australia; (vi) intention to reside in Australia; (vii) employment in Australia (for example, public or private sector); (viii) ownership of property in Australia; (ix) evidence of income tax payment in Australia; and (x) current bank accounts in Australia.
3. The Instructions state, further:

In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), more weight should be given if they have 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 if they have not been present in Australia for at least this period.

1. Ms Tan concedes that she does not meet the general residence requirement set out in s 22(1) of the Act. The question for the Tribunal, therefore, is whether the Minister's discretion in s 22(9) should be exercised in Ms Tan's favour to treat periods of time spent by Ms Tan overseas as periods of permanent residence. The first issue this raises is whether Ms Tan meets the requirements for the exercise of the discretion in s 22(9) - relevantly, whether she had a close and continuing association with Australia during the relevant period, namely the four years prior to the lodging of her application: 10 July 2007 to 10 July 2011. Secondly, if Ms Tan meets the requirements for the exercise of the discretion, should the discretion be exercised in her favour?

1. Ms Tan and her husband, who are currently in Manila, gave oral evidence by conference telephone at the hearing. Ms Tan said when she and Mr Tan were married in 1995, he was already an Australian citizen. Mr Tan said his whole family - including his parents, his brother and sister - migrated to Australia in the late 1980s, first of all his mother in 1986. Mr Tan moved to Australia in April 1987. His family now live in Melbourne and he has no immediate family in the Philippines. He had various jobs in Australia including working in a supermarket, for an import/export company and latterly for a superannuation company between 1990 and 1993. Mr Tan said he moved to the Philippines in 1993, and subsequently worked for CBN in Cambodia and China before his posting to Indonesia in 2002.
2. Ms Tan said that when she and her husband first met, she was working for HSBC. She stopped work when their first child was born in 1996 and since then has been a housewife, looking after their children, because Mr Tan is usually away for between five and seven days a month as part of his job, which involves humanitarian work in the region. Their plan has always been to return to Australia for their children's education and because they want to live there permanently. They moved to Indonesia in 2002 when Mr Tan was appointed CBN's production manager there, thinking that they might return to Australia after about five years. However, when Mr Tan was offered his present position in Manila, this presented a good career move for him and he decided to accept the offer.
3. Ms Tan said that their current plan is to move to Australia in late 2014 for their older child to finish his final year at school in Australia and enable him to better prepare for university entry. They have not currently enrolled their children in any Australian school, but the children are currently enrolled in an international school in the Philippines which is better suited for children continuing with education in Commonwealth countries.
4. Ms Tan conceded that she has only ever visited Australia and has never lived there. However, this has been because of the nature of her husband's work and her need to keep the family together and care for their children. She and Mr Tan have now been married for 16 years. She is concerned that while her husband and children are all Australian citizens, she is not, and she worries about how she would support them if something happened to her husband, who often travels for his work in areas where he may be at risk. There would be few opportunities for her to work in the Philippines.
5. Ms Tan said that she has a Commonwealth Bank account in Australia into which she makes monthly deposits of their savings in preparation for moving to Australia. There is currently about $9,500 in this account. She acknowledged that neither she nor her husband is paying tax in Australia - because her husband's work is currently in the Philippines. They do not own any property in Australia. Ms Tan said her brother and sister and their families live in Sydney and she has more than 20 uncles, aunts and cousins in Australia. She has few family members in the Philippines - her parents live in the United States.
6. Mr Tan confirmed his and his wife's intention to move to Australia, probably in late 2014, to enable their older child to finish his final year at school here. Because of Mr Tan's 15 years' experience in humanitarian work and television, he does not anticipate any problem in obtaining employment in Australia. He said they do not own any property and apart from their savings account in Australia, they have savings of about US $10,000 in the Philippines.

1. Ms Weston, for the Minister, noted that Ms Tan concedes that she does not meet the general residence requirement. Ms Tan was in Australia for only 60 days in the four years before her application for citizenship was lodged (1,400 days short of the requirement) and only 29 days in the 12 months before lodging the application (336 days short of the requirement). Thus, the issue for the Tribunal concerns the exercise of the discretion in s 22(9) of the Act.
2. Ms Weston said the Minister contends that Ms Tan does not meet the requirement set out in ss 22(9)(d) for a close and continuing association with Australia in the fouryear period prior to lodging her application. Moreover, even if Ms Tan did meet that requirement, the Minister contends that the discretion should not be exercised in her favour. Ms Weston noted that Ms Tan's intention is to reside in Australia in the future but she had no intention to do so in the four years prior to lodging her application. During this period, she only made two visits to Australia, totalling 60 days, and while she has a bank account here and family members here, this is not sufficient to establish a close and continuing association with Australia. For example, Ms Tan did not reside here, did not own property here, was not employed here, and did not pay tax here.
3. Ms Tan noted that she and her husband, her Australian citizen spouse, have been married for 16 years and she has not lived in Australia because of her need to be with her husband and children while her husband has been working overseas. She has not satisfied the general residence requirement for this reason. Ms Tan said she has visited Australia regularly, maintained a savings account in Australia, and many of her family and most of her husband's family are there. She has not paid tax in Australia because she does not currently live there and she and her husband do not currently have the means to buy property in Australia. Her and her husband's intention is to move to Australia to enable their children to complete their secondary education there before seeking entry to university.

1. The first issue for the Tribunal is whether Ms Tan meets the requirements for the exercise of the discretion in s 22(9): relevantly, whether she had a close and continuing association with Australia during the four years prior to the lodging of her application. The Instructions identify a number of factors that may contribute to such an association, and these are set out in paragraph 13 above. The Instructions also say that where a person has been in Australia for less than 365 days in the fouryear period, this tends to weigh against the existence of a close and continuing association.
2. With regard to the factors to which the Instructions refer in assessing whether a person has a close and continuing association with Australia, I note that Ms Tan's husband of 16 years and their two children are all Australian citizens. Ms Tan has made two visits to Australia in the period 10 July 2007 to 10 July 2011, totalling 60 days. Her brother and sister and their families live in Sydney and she also has extended family here. She has not been resident during this period. It is understandable that she has preferred to remain with her husband and children during her husband's posting to Manila which, I accept, was a good career move for him. Ms Tan has not worked in Australia and has not paid income tax. She does not own any property here and says that she does not currently have the means to do so. She does, however, maintain a bank account here into which she and her husband regularly make deposits from their savings. Ms Tan states that she and her husband intend to move to Australia in, probably, late 2014, to enable their older son to complete his secondary education here in preparation for seeking entry to university. She also states that she and her husband intend to remain in Australia permanently.
3. The major stumbling block for Ms Tan is the very limited time she has spent in Australia. It is not unreasonable to expect that a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by at least residing here for an extended period, even if the period falls short of the general residence requirement in s 22(1), and provided there are other factors indicating a close and continuing association. The Instructions suggest, not unreasonably, that a period of less than 365 days should be considered less favourably. In Ms Tan's case, the time she has spent in Australia - 60 days in the relevant fouryear period - falls far short of this. I agree with Ms Weston's submission that in this respect Ms Tan's situation is similar to that of the applicant in Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688, who had spent only 76 days in the relevant fouryear period in Australia. In that case, as in Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388; (2011) 121 ALD 647, the Tribunal was not satisfied that the applicant had a close and continuing association with Australia. In both cases, the applicants were essentially visitors who had spent little time here.
4. To date, Ms Tan has only ever been a visitor in Australia and has spent relatively little time here. In my view, despite the presence of some other indicators of a close and continuing association, in particular, the fact of her husband and children being Australian citizens, this is not of itself sufficient to satisfy me of a close and continuing association with Australia. Since I am not satisfied that Ms Tan satisfies s 22(9)(d) of the Act, the discretion in s 22(9) is not enlivened and its exercise is not open to the decision-maker in her case.
5. This does not close off Ms Tan's rights. She will be able to apply for a further visa on the expiry of her current one and it will be open to her to reapply for citizenship by conferral in the future.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:...........[sgd]...................................................................

Solicitor for the Respondent L Weston, Minter Ellison