Chen and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 308

Chen and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 308 (29 February 2024)

Division:GENERAL DIVISION

File Number(s):      2022/8236

Re:Yihong Chen

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Antoinette Younes

Date:29 February 2024

Place:Sydney

The Tribunal affirms the decision under review.

....................................[SGD]....................................

Deputy President Antoinette Younes

CATCHWORDS

CITIZENSHIP — Approval of Australian citizenship by conferral — Whether to cancel the approval of citizenship under subsection 25(2) of the Australian Citizenship Act 2007 (Cth) — Where Applicant has an Australian business with cousin — Whether Applicant is likely to reside in Australia or maintain a close and continuing association with Australia — Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Procedural Instruction 11 — Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019)

REASONS FOR DECISION

Deputy President Antoinette Younes

29 February 2024

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 14 September 2022 to cancel the approval of the Applicant’s application for Australian citizenship by conferral (the delegate’s decision).

2. The delegate cancelled the approval on the basis that the Applicant no longer satisfied the eligibility criteria for Australian citizenship by conferral because it appeared that she was not likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia, as contemplated by s 25 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. On 8 October 2022, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

4. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   RELEVANT LEGISLATION

5. Section 25 of the Act provides that:

   (1)  The Minister may, by writing, cancel an approval given to a person under section 24 if:

   (a)  the person has not become an Australian citizen under section 28; and

   (b)  either of the following 2 situations apply.

   Eligibility criteria not met

   (2)  The first situation applies if:

   (a)  the person is covered by subsection 21(2), (3) or (4); and

   (b)  the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

   (i)  not a permanent resident; or

   (ii)  not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

   (iii)  not of good character.

   Failure to make pledge of commitment

   (3) The second situation applies if:

   (a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

   (b) the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

   Citizenship Policy

6. The Australian Citizenship Policy and the Citizenship Procedural Instructions provide guidance to decision-makers regarding interpretation and exercise of power under the Act. As a decision-maker, the Tribunal is required to give regard and apply policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no cogent reasons not to apply the policy.

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.

7. Relevantly, the Citizenship Procedural Instruction 11 (CPI 11) provides guidance as follows:[2]

   [2] Department of Immigration and Border Protection, Citizenship Procedural Instruction 11 — Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (17 April 2019).

   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.

   The person's intention to reside in Australia should be investigated if the applicant has indicated they will:

   • be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas; or

   • reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.

   Past international movements may also indicate that a person's intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have the ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered In the light of evidence about the person's intended residence. 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.[3]

   [3] Ex 12, 60.

   BACKGROUND

8. The Applicant is a citizen of the People's Republic of China (China). She first arrived in Australia on 15 September 2007 on a temporary student (subclass 571) visa.[4] On 8 August 2017, she was granted a permanent Skilled Independent (subclass 189) visa.[5] On 27 September 2019, the Applicant lodged an application for Australian citizenship by conferral,[6] which was approved on 18 December 2020.[7]

   [4] Ex 12, 24.

   [5] Ex 12, 24.

   [6] Ex 12, 64-85.

   [7] Ex 12, 119-120.

9. On 21 December 2021, the Department sent to the Applicant a Notice of Intention to Consider Cancellation (NOICC) of her approval for Australian citizenship on the basis that she may no longer satisfy the eligibility criteria for Australian citizenship by conferral because it appeared that she may no longer be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.[8] Relevantly, the NOICC noted that on 18 December 2020, during the Applicant's citizenship test interview, no extended overseas travel or residence was declared. However, on 20 December 2020, the Applicant departed Australia and at the time of the NOICC, had not returned, nor provided an intended return date or any evidence of her attempts to return to Australia. It was further noted that on 14 December 2021, the Applicant asked to postpone her citizenship ceremony because she was working overseas. The NOICC provided the Applicant with an opportunity to comment and provide documents in support.

   [8] Ex 12, 121-130.

10. On 9 January 2022, the Applicant sent an email outlining her personal ties and business ties to Australia.[9] She stated that:

    • In 2007, she moved to Australia and she has spent 13 years living, studying and working in Australia. She has developed personal and professional associations in Australia.
    • She relocated to Shanghai in December 2020 for work and career opportunities.
    • She sponsored her parents for Contributory Parent visas with the plan to move to Australia upon their retirement.
    • Although not currently working in Australia, she owns 50% of the shares of an Australian investment company. She plans to execute as a member of the investment company with her cousin, Ms Chen Chen, who currently resides in Australia.
    • Her current work contract in China finishes in June 2022. She intends to return to Australia after that date.

    [9] Ex 12, 132.

11. The Applicant provided documents relating to HXCH Pty Ltd (HXCH) and HXCH Pty Ltd As Trustee of HXCH Trust.[10] These documents include, but are not limited to, an ASIC Certificate, Consent to Become a Member and Resolution by Way of Memorandum of Minutes of the Sole Director. The Applicant also provided a letter to the Department dated 27 April 2021 in relation to a Contributory Parent (subclass 143) visa for her mother.

    [10] Ex 12, 133-199.

12. Following a request on 27 April 2022 from the Department,[11] the Applicant responded on the same day indicating that she was not returning in April 2022 due to surgery for a malignant thyroid tumour and difficulties in renewing her passport. She provided the following documents:[12]

    ·     An offer of employment from MVRDV Shanghai Office to start on 12 April 2021 for 12 months. 

    ·     The Applicant’s passport with an expiry date of 6 May 2022.

    ·     Letter from the Department dated 27 April 2022 confirming the grant of a Resident Return (subclass 155) visa (RRV).

    ·     Letter from the Applicant’s cousin, Ms Chen Chen, dated 27 April 2022 with documents relating to her property ownership in Australia.

    [11] Ex 12, 211.

    [12] Ex 12, 212-319.

13. On 20 May 2022, the Applicant provided an ultrasound report dated 12 February 2022 confirming the existence of a thyroid nodule suspected of being malignant.[13]

    [13] Ex 12, 321-325.

14. On 14 September 2022, the delegate notified the Applicant of the cancellation of the approval of her application for Australian citizenship by conferral on the basis that the Applicant was not likely to reside, or to continue to reside in, Australia or maintain a close and continuing association with Australia.[14]

    [14] Ex 12, 97-99.

15. In her application for review to the Tribunal, and in response to the question “Why do you claim the decision is wrong?” the Applicant indicated:

    My citizenship application approval has been cancelled as the officer believed that I’m not likely reside in Australia. However, I have been really wanting and trying to move back to Australia as I have spent almost half of my life in Melbourne and have built most of my personal and professional relationships there. I had not decided to leave Melbourne when my citizenship application was approved, and due to some unexpected circumstances I had to leave very soon after.

    The original plan was to stay overseas for a short period of time and move back to Melbourne after, however, I had some health issues and COVID restrictions in China has been and is still very strict that I couldn’t travel outside Shanghai (where I am living now) at all. In the meantime my passport has expired and I couldn’t get it renewed due to all the COVID restrictions.

    I have been actively applying for jobs in Australia and have recently received a job offer which I have accepted. I have also booked a flight from Shanghai to Melbourne on the 26^th of November (ticket costs are extremely high and I couldn’t really afford any flights earlier this year). Upon my return to Melbourne, I will be living with my cousin Chen Chen at her property … (I have submitted a letter from her stating that she’s willing to offer her accommodation to me for free and certificate of her ownership to the property. If it’s needed, I can provide photos of us or any other documents as requested to prove our family relationship). As noted to the officer before, I am also member of an investment company in Australia together with my cousin.

    Again, I really wish to move back to Australia and become an Australian citizen. I have not been able to travel due to lots of difficult situations but have not made my plan to go back now and I sincerely wish you could re-consider the decision regarding my citizenship approval.

    I have attached both the job offer and my flight lientery. I am happy to provide any other documents as needed.[15]

    [15] Ex 12, 7.

    Material provided to the Tribunal

16. The Tribunal has the following material before it: 

    • The Respondent’s Statement of Facts, Issues and Contentions dated 3 July 2023 (Exhibit 1).
    • Applicant’s Individual Tax Return for the year ending 30 June 2021 (Exhibit 2).
    • Applicant’s Income Tax Lodgement Record (Exhibit 3).
    • Applicant’s Westpac proof of account balance as of 26 February 2023 (Exhibit 4).
    • Commonwealth Bank statement dated 26 February 2023 (Exhibit 5).
    • Copies of documents previously provided to the Department relating to HXCH (Exhibit 6).
    • Applicant’s undated personal statement (Exhibit 7).
    • Letter from Ms Chen Chen dated 27 March 2023, expressing support for the Applicant and confirming that she and the Applicant are cousins who are members of an investment team (Exhibit 8).
    • Photographs of the Applicant with Ms Chen Chen, and other family members, and screenshots of conversations from the Applicant’s investment group (Exhibit 9).
    • Respondent’s letter to the Applicant requesting further evidence dated 2 March 2023 (Exhibit 10).
    • The Applicant’s movement records as of 19 February 2024 (Exhibit 11).
    • T-Documents filed on 8 November 2022 (Exhibit 12).

17. In her undated statement, the Applicant indicated that:

    ·     She has spent a significant portion of her life in Australia and has a strong sense of attachment to Australia.

    ·     Her cousin, Ms Chen Chen and her cousin’s mum are both permanent residents of Australia. Ms Chen Chen and her family moved to Melbourne in 2009 following the Applicant’s relocation to Melbourne in 2007. They lived together for a few years.

    ·     China’s local bureau does not provide proof of family relationship between cousins, but she has attached photographs of Ms Chen Chen and other family members, a copy of Chen Chen’s passport and a supporting letter from Ms Chen Chen. The Applicant and her cousin spent a lot of time growing up together and they have been business partners since 2021.

    ·     Due to health reasons, she has not been able to work full-time. She is however a member of an investment group that has successfully invested in several projects in Australia. The projects have generated profitable returns that have been beneficial to all members of the group. They communicate about potential investments primarily through WeChat. An attached bank statement confirms the financial transactions made by the group.

    ·     Due to the extreme lockdown restrictions in China, she was unable to travel or renew her passport. Moreover, after undergoing surgery for the malignant tumour, she had further health issues. She had COVID-19, which worsened her health. She has been undergoing therapies and taking Chinese medicine that require trips to the local hospital in Shanghai. Once her health improves and she no longer requires constant treatment, she plans to reside in Melbourne.

    ·     In 2022, she experienced an “extremely rigid and inhumane lockdown” in Shanghai, which raised deep concerns about human rights issues. The pandemic has shown the importance of having a stable and efficient healthcare system and a resilient economy like Australia.

    ·     She is confident that living in a country that prioritizes decency and human rights would be the ideal place for her and her family to establish their roots. As a citizen, she could have a say in Australia’s governance, access its superior healthcare services, and participate in its diverse culture. She would like to become an Australian citizen and continue to be part of the community.

    HEARING

18. On 21 February 2024, the Applicant and her cousin, Ms Chen Chen, attended the hearing and gave evidence via Microsoft Teams. 

    ISSUE

19. The issue before the Tribunal is whether the Applicant satisfies subsection 25(2)(b)(ii) of the Act, namely, whether the Applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia.

    FINDINGS & REASONS

20. The Applicant contends that she is likely to reside in Australia and maintain a close and continuing association.

21. In the course of the hearing, the Applicant explained that she was working as an architect in Melbourne, but she stopped working around November/December 2020 because of the COVID-19 lockdown, and the property market was not doing well in Victoria, unlike in China at the time. She stated that she was working from home and was not feeling well. She felt she was struggling, was homesick, her grandmother had health issues, and she had not visited her family in China for a while. She felt she was not in a good position to keep working.

22. The Applicant stated that she received the employment offer from Shanghai in December 2020 and wanted to see her family in China. She made a quick decision after she left her job and departed Australia in December 2020. She stated that she needed financial support whilst she was in China, so she took up the role which was offered for 12 months with a 3-month probationary period. She stated that she was not sure if she would work in China for the 12-months period but was concerned about lockdowns and having to isolate in case she returned to Australia. She gave evidence that whilst in China, she accessed funds from financial accounts in China and did not access her Australian accounts. She entered into a residential lease agreement in China for 12 months.

23. In relation to the citizenship interview on 18 December 2020, the Applicant accepted that she did not disclose her potentially planned travels to China. She stated that she was not sure if she should travel, although she had bought an airline ticket. The Tribunal is concerned about the lack of disclosure when it would have been prudent to advise the Department of her potentially planned trip. However, lack of disclosure does not necessarily mean that the Applicant is not likely to reside in Australia or to maintain a close and continuing association with Australia.

24. The Applicant remained outside of Australia during 2021. She said she was unsure about the situation in Melbourne and she did not want to put herself through another lockdown. On 14 December 2021, the Applicant wrote to the Department requesting a postponement of the citizenship ceremony on the basis that she was working overseas. On 21 December 2021, the Department sent the NOICC to the Applicant. The Applicant responded on 9 January 2022, advising among other things that she intended to return to Australia after her employment contract finished in June 2022. However, she advised on 27 April 2022 that due to her health, she was unable to return. The Applicant returned to Australia for 22 days between 25 February 2023 and 18 March 2023, and more recently on 10 February 2024. She gave evidence that she is returning to China in March 2024. In total therefore, since December 2020, the Applicant has resided outside of Australia for over 1100 days, that is for more than 3 years.

1. The Tribunal accepts that the Applicant has had health concerns and that she continues to take medication. She also consults a practitioner in Chinese medicine monthly. Although she has discussed health care services availability with Ms Chen Chen, the Applicant gave evidence that she has not made specific enquiries from any health care provider or services in Australia. As raised in the hearing, given the nature of the Applicant’s illness and the regular care she receives in China, the Tribunal is concerned that not making enquiries from professionals in Australia could suggest that the Applicant is not likely to return to Australia. 

2. The Tribunal has given regard to the Applicant’s contentions that since 2007, she has lived, studied, and worked in Australia. There was discussion in the course of the hearing about the Applicant’s current involvement in HXCH. In oral evidence, the Applicant stated that she did not know whether or not she has been appointed as a director of HXCH. She appeared not to know the nature of a director’s role. The Applicant contended and gave evidence that HXCH is profitable, whereas Ms Chen Chen stated that the profits were not so good, although the Applicant explained that the different views were due to the relative perceptions of profit. She explained that Ms Chen Chen is a big investor unlike the Applicant, who referred to the regular profit of over $1,300 derived from HXCH’s investments. The Tribunal is persuaded by that explanation and has not used this aspect in an adverse manner to the Applicant.

3. The Applicant has provided extensive material relating to HXCH and HXCH as Trustee. The Applicant gave evidence about her role. On the evidence, the Tribunal is satisfied that the Applicant is a 50% shareholder of HXCH. The Tribunal is also satisfied that Ms Chen Chen is the other shareholder, the shares are worth $1.00 each, Ms Chen Chen is the only Director of HXCH, Ms Chen Chen is the Secretary, Ms Chen Chen is the Public Officer, and that Ms Chen Chen and the Applicant are Members.

4. The Applicant provided screenshots of conversations of the investment group, but the screenshots do not detail the extent or nature of the Applicant’s level of involvement. It is also noteworthy that prior to February 2024, and except for 22 days at beginning of 2023, the Applicant was outside of Australia the entire period HXCH has been in existence. Although the Tribunal accepts that the Applicant and Ms Chen liaise about investments, the evidence is that Ms Chen Chen is the Sole Director, Public Officer, and Secretary of HXCH.  Moreover, Ms Chen Chen is the sole signatory to the HXCH’s Commonwealth Bank account.

5. In those circumstances, the Tribunal is persuaded by the Respondent’s submissions that the Applicant was able to contribute from outside of Australia, and her current involvement is not necessarily an indication of an intention to remain in Australia. On balance of the evidence, the Tribunal is not satisfied that the Applicant’s involvement in HXCH means that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia.

6. The Tribunal is satisfied that the Applicant owned an investment property which she sold in 2019. She does not currently own any property. She has a substantial sum of money in a Westpac account. 

7. The Tribunal accepts that Ms Chen Chen and her mother are both permanent residents of Australia, and that the Applicant lived with Ms Chen Chen for a few years. The Applicant expressed an intention to live with her cousin who is supportive of her doing so. However, that intention needs to be viewed in the context of the totality of the evidence. In any case, that intention does not mean that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. Her connection with her cousin and her cousin’s family in Australia does not show a close and continuing association with Australia.

8. The Tribunal has taken into account the fact that the Applicant has been granted the RRV and that her parents have applied for Contributory Parent visas, which are pending processing. Although the RRV is evidence that the Applicant may return to Australia within the next five years, the grant does not demonstrate that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. The Tribunal has taken into account the parents’ applications for Contributory Parent visas, but the applications have not been approved. Therefore, it is difficult to see any tangible difference the applications would make as far as the Applicant’s likelihood to reside in Australia or to maintain a close and continuing association with Australia.

9. The Applicant does not reside in Australia. Although there is some evidence to support the Applicant’s contentions, the Tribunal is not satisfied that the totality of the evidence demonstrates to the required level of satisfaction, that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. On the evidence, the Tribunal is satisfied that it is possible rather than probable that the Applicant would reside in Australia.

10. For the above reasons, the Tribunal affirms the delegate’s decision to cancel the approval of the Australian citizenship by conferral.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................

Associate

Dated: 29 February 2024

Date of hearing(s):	21 February 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers