Bing Liu and Minister for Immigration, Multicultural Affairs and Citizenship

[2013] AATA 622

[2013] AATA 622  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5320
Re	Bing Liu
APPLICANT
And	Minister for Immigration, Multicultural Affairs and Citizenship
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	30 August 2013
Place	Melbourne

The Tribunal affirms the decision of the Department of Immigration and Citizenship made on 26 October 2012.

........[sgd Egon Fice]................................................................

Egon Fice, Senior Member

CITIZENSHIP – general eligibility for citizenship – general residence requirements – ministerial discretion relating to the spouse of an Australian citizen – overseas absences – close and continuing relationship with Australia

Legislation

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB

Australian Citizenship Act 2005 (Cth)

Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 52

Cases

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Secondary Materials

Explanatory Memorandum to the Australian Citizenship Bill 2005

REASONS FOR DECISION

Egon Fice, Senior Member

30 August 2013

1. Mr Bing Liu, a citizen of the People's Republic of China, lodged an application for conferral of Australian citizenship with the Department of Immigration and Citizenship (DIAC) on 26 June 2012.  His wife, Ms Hong Liu and his son, Mr Ze Chen Liu are both Australian citizens.

2. Under the cover of a letter dated 26 October 2012 DIAC notified Mr Liu that his application was refused.  That was because he did not satisfy the general residence requirement set out in the Australian Citizenship Act 2007 (the Act).  Where a person makes an application under s. 21 of the Act, the Minister for Immigration, Multicultural Affairs and Citizenship (the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen (s. 24).  Where the Minister makes a decision under s. 24 of the Act, a person dissatisfied with that decision may make an application to this Tribunal for review of that decision (s. 52 (1)).

3. Mr Liu lodged an application for review by the Tribunal on 23 November 2012.  The issues which I must determine are whether Mr Liu:

   (a)satisfies the general residence requirements set out in s. 22 of the Act; and

   (b)can take advantage of the discretionary powers contained in s. 22 (9) of the Act.

   GENERAL ELIGIBILITY FOR CITIZENSHIP

4. The general eligibility requirements are set out in s. 21 (2) of the Act.  In so far as it is relevant to Mr Liu's application, it 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…

5. The s. 22 general residence requirement, in so far as it is applicable to Mr Liu's case, is as follows:

   (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 a 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 date the person made the application.

   Overseas Absences

   (1A) If:

   (a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

   (b)the total period of the absence or absences was not more than 12 months;

   then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

   (1B) If:

   (a)the person was absent from Australia for a part of the period of 12 months immediately before the date 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.

   DOES MR LIU MEET THE GENERAL RESIDENCE REQUIREMENTS

6. The 4 year period referred to in s. 22 (1) of the Act commenced on 26 June 2008.  There was no issue about Mr Liu being an unlawful non-citizen during that time and at all times he was a permanent resident, being the holder of a Class BB Resident Return Subclass 155 Visa.  Between that date and the date of his application for citizenship DIAC's records disclose that Mr Liu was present in Australia for 446 days in that 4 year period.  He was absent from Australia for a period of 1015 days.  Quite plainly, his total period of absence was more than 12 months.  Therefore, he does not meet general residence requirement set out in s. 22 (1)(a), even allowing for overseas absences as provided for in s. 22 (1A) of the Act.

7. Mr Liu also has a problem with s. 22 (1)(c) which requires an applicant for citizenship to be present in Australia for the period of 12 months immediately before the day of making the application.  DIAC's records disclose that between 27 June 2011 and 26 June 2012 Mr Liu was present in Australia for only 107 days as a permanent resident.  Given that 2012 was a leap year, that means he spent 259 days outside of Australia during that year.  That means that even taking into account the allowance for overseas absences set out in s. 22 (1B), Mr Liu does not meet the general residence requirement set out in s. 22 (1)(c).

8. It follows I must find that Mr Liu does not satisfy the general residence requirements set out in s. 22 of the Act and is therefore ineligible to become an Australian citizen.  However, Mr Liu submitted that I should exercise the Ministerial Discretion relating to the spouse of an Australian citizen which is provided for in s. 22 (9) of the Act.

   MINISTERIAL DISCRETION – SPOUSE OF AUSTRALIAN CITIZEN

9. 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.

10. Leaving aside for the moment what was intended by the introduction of s. 22 (9) into the Act, and assuming that this subsection applies to Mr Liu in circumstances where his wife accompanied him when he was overseas, the first problem Mr Liu faces is whether he can satisfy the 4 year and 12 month requirements of general residence set out in s. 22 of the Act.  In other words, accepting for the moment that Mr Liu satisfies s. 22 (9)(a) – (d), and therefore treating the time he spent outside Australia during the relevant periods accompanied by his wife as time in which he was present in Australia as a permanent resident, was he able to satisfy the 4 year and 12 month requirements.

11. DIAC's departure and arrival records for the period 26 June 2008 to 26 June 2012 disclose that Mr Liu was outside Australia with his wife for a total of 535 days over that 4 year period.  If I were to treat that period as time spent in Australia and add that to the 446 days which Mr Liu actually spent in Australia, that would give Mr Liu a total of 981 days present in Australia during the 4 year period.  Allowing for a total period of absence of not more than 12 months in accordance with s. 22 (1A), Mr Liu was required to spend no less than 1095 days present in Australia in order to meet the general residence requirement set out in s. 22 (1)(b) of the Act.  He clearly does not.  Given that the requirements set out in s. 22 (1) are conjunctive, even if he satisfies the 12 month period requirement, he cannot be said to have met the general residence requirement.

12. For the sake of completeness, in the period between 27 June 2011 and 26 June 2012

    
    

    Mr Liu was overseas with his wife for a total of 264 days.  He was actually present in Australia for 107 days which results in a total deemed presence in Australia of 371 days.  In order to meet the 12 month period requirement, allowing for overseas absences,

    
    

    Mr Liu was required to be present in Australia for 275 days.  He clearly met this requirement.  However, it does not assist Mr Liu's application because he is required to meet the 4 year period as well as the 12 month period immediately before the day he made his application.

13. Section 24 (1A) of the Act provides:

    (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

14. My findings must clearly result in Mr Liu's application failing because he does not meet the general residence requirement which is essential for eligibility for citizenship under

    
    

    s. 21 (2), even if the Ministerial Discretion relating to spouses is applied in his case.  However, I have concerns whether it can be applied in this case bearing in mind the intention underlying the insertion of the discretionary provision in the Act.

15. Part 5 of the Acts Interpretation Act 1901 (the Interpretation Act) sets out some general interpretation rules. Section 15AA provides:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

16. I should also refer to s. 15 AB of the Interpretation Act which, in so far as it is relevant to this matter, provides:

    (1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

    (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

    (b)to determine the meaning of the provision when:

    (i)      the provision is ambiguous or obscure; or

    (ii)     the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.…

17. Section 15 AB(2) sets out material which may be considered in accordance with (1).  It includes any explanatory memorandum relating to the Bill containing the provision.

18. I should also briefly refer to the common law position regarding statutory interpretation and in particular what was said by the High Court of Australia (Brennan CJ, Dawson, Toohey and Gummow JJ) in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408:

    It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which the statute is intended to cure (46).  Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy (47).  Instances of general words in a statute being so constrained by their context are numerous.  In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (48), if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.  Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternate construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent (49).

19. Read by itself, s. 22 (9) does not disclose its intent or purpose.  In the context in which it appears in the Act, all that is apparent is that an applicant for Australian Citizenship whose spouse is an Australian citizen at the time of making the application, may treat a period during which he or she was absent from Australia as if he or she were present in Australia if he or she satisfies the remaining requirements in that section.  It is also ambiguous in the sense that it is not clear as to whether it applies to the Australian citizen or the non-citizen who, for sound reasons, finds it necessary not to be present in Australia for extended periods of time.  It could apply to either or both.  If it is intended to apply only in circumstances where the Australian citizen finds it necessary to be overseas and is accompanied by the non-citizen spouse, then it cannot apply to Mr Liu.  Otherwise, it does apply to him.  In these circumstances, in order to ascertain the intention and proper meaning of s. 22 (9), it is, in my opinion, necessary to go to the Explanatory Memorandum to the Bill which introduced that provision.

20. The Explanatory Memorandum to the Australian Citizenship Bill 2005 says this about the proposed new subsection (9):

    This new subsection 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 in 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).  As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.

21. Prior to the introduction of the Act, the previous Act which was in effect, the Australian Citizenship Act 1948, contained a provision whereby persons could qualify for Australian citizenship simply by reason that their spouse was an Australian citizen.  The explanation given above accepts that the spouse of an Australian citizen may run into some difficulty in meeting the presence in Australia requirements under the new Act because they have accompanied the Australian citizen who is engaged in overseas service.  Hence the introduction of the discretion in those circumstances.

22. Quite clearly, s. 22 (9) is intended to apply in circumstances where the Australian citizen is required to work overseas and is accompanied by the non-citizen spouse who is the applicant for citizenship.  That is plainly not the case in this matter.  The person required to work overseas in this matter is Mr Liu, not his wife who is the Australian citizen.  Therefore, even if the calculation of the days spent overseas were incorrect, I would nevertheless find that the discretionary provision, s. 22 (9), does not apply in Mr Liu's case.

    CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA

23. Although, given my findings above, it is not necessary to say anything about the substantial volume of evidence which was given to me in the course of the hearing, I simply wish to put on the record that the admitted evidence disclosed Mr Liu has the necessary close and continuing association with Australia.  It is most unfortunate for
    Mr Liu that it is that close and continuing association with Australia which has demanded his presence outside Australia during the relevant periods.

24. In addition to the fact that Mr Liu's son Ze Chen and his wife Hong are Australian citizens, and that he and his wife jointly own property in Melbourne; he has bank accounts in Australia; has paid Australian income tax; and has had a significant and long-standing association with Basketball Australia managing its apparel sponsorship.  Mr Liu has provided significant assistance to Basketball Australia to build a relationship with interests in China. 

25. Mr Andrew Gaze, a prominent former Australian basketball player and currently a board member of Basketball Australia gave evidence of Mr Liu's involvement with the Australian basketball community.  He said Mr Liu was responsible for organising many basketball tours of China; organised a National Basketball league All-Star team in 2008, 2009, 2010 and 2011; and an Australian Basketball Association All-Star team in 2008, 2009 and 2010.  According to Mr Gaze, Mr Liu's contribution to Australian basketball through those tours and his significant involvement with the Australian Men's Basketball Team have been greatly appreciated by Basketball Australia as well as the many players and coaching staff who have been on those tours.

26. Mr Liu's company, Golden Star International Investments Pty Ltd, sponsored the Australian Women's National Team (Opals) during the 4 Nations Tournament in China in June 2011.  Mr Liu has also acted for Basketball Australia to procure sponsorship with companies in China.

27. I also had evidence from Mr Kevin Hu who is the Secretary General of the Federation of Chinese Associations Vic Inc.  Mr Hu said that Mr Liu was closely involved in strengthening ties between Australia and China through his expertise in sports marketing.  Between 2010 and 2012 he worked with the Federation of Chinese Associations building a Sister-State/Province relationship between Victoria and Jiangsu province in sports. 
    Mr Liu was also instrumental in establishing an annual football tournament between Melbourne and Tianjin club in China.  He also referred to Mr Liu's previous role as a board member and vice president of the Melbourne Tigers Basketball Club.

28. It is, in my opinion, most unfortunate that Mr Liu does not meet the eligibility requirement for the conferral of Australian citizenship.  However, standing in the shoes of the Minister for the purposes of this decision, I am bound by the statutory provisions set out in s. 24 (1A) of the Act.

    CONCLUSION

29. I have found that Mr Liu does not meet all of the eligibility criteria for the conferral of Australian citizenship because he does not meet the general residence requirements set out in s. 22 of the Act.  That is so even taking into account the allowance for significant overseas absences provided for in s. 22 (1A) and (1B) of the Act. 

30. I have also found that the discretionary provisions relating to spouses do not apply in
    Mr Liu's case.  Even if those provisions applied to Mr Liu, he would still not meet the general residence requirement in s. 22 (1)(a) of the Act.

31. For the reasons I have set out above, I find that the decision made by DIAC on
    26 October 2012 to refuse Mr Liu's application for Australian citizenship was correct.  I affirm that decision.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice

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

Associate

Dated  30 August 2013

Date of hearing	4 July 2012
Advocate for the Applicant	Mr J Liu
Advocate for the Respondent	Mr D McLaren
Solicitors for the Respondent	Sparke Helmore