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

Chen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4500 (3 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6239
Re:Wai Chun Chen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:3 November 2021
Date of written reasons: 3 December 2021
Place:Sydney

For the reasons given orally at the conclusion of the hearing, the Tribunal decides that:
1. the reviewable decision is set aside.
2. the matter is remitted to the Secretary for further processing with a finding that the applicant satisfies paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth)
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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITZENSHIP- refusal to grant Australian citizenship- delegate not satisfied that the applicant was likely to reside, or to continue to reside, in Australia to to maintain a close and continuing association with Australia if application were to be approved- applicant demonstrated attachment to Australia- more probably than not applicant is likely to continue to reside in Australia- decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth): ss 21, 24
CASES
SECONDARY MATERIALS
Citizenship Procedural Instruction No 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
3 December 2021
WRITTEN REASONS
INTRODUCTION

Mr Chen (‘the applicant’) applied for Australian citizenship on 17 April 2018.[1] His application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the respondent’) on 10 October 2020.[2]
[1] T7/95.
[2] T2/24, 28
The delegate found that the applicant did not satisfy the requirements of paragraph 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (‘the Act’), which provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(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.
The delegate also found that the applicant was not present in Australia at the time of decision and therefore refused the application under subsection 24(5) of the Act.
The applicant now seeks, by way of an application lodged on 15 October 2020, merits review of the delegate’s decision under the Administrative Appeals Tribunal Act 1975 (Cth).[3]
[3] T1/1.
THE HEARING
Ms Campbell, for the respondent, submitted that there were a number of factors supporting the finding that the applicant did not have the necessary intention to remain in Australia or continue an association with the country. She enumerated them as follows:
The first reason [is] that the applicant has been outside of Australia for approximately two years, nine months and around 14 days since lodging his application for Australian citizenship [in] April 2018, so he has therefore, spent much more time out of Australia than he has been present, since lodging it.
Secondly, the bulk of his time in Australia has been between 2013 and 2018 which was for a particular purpose in pertaining tertiary qualifications. And the evidence shows that once he obtained those qualifications in the same month, that’s when he travelled back to Hong Kong to live for an extended period. So his history of residency in Australia is suggestive of a previous, not a future or ongoing close and continuing association with Australia.
Thirdly, the applicant blames the COVID-19 pandemic in part for remaining in Hong Kong for such an extended period. But the flight that was cancelled due to COVID was not a one way flight. The flight – he was meant to travel to Australia for a few days between 28 September 2020 until 3 October 2020, only for a few days. So even at that time, the intention suggests that it was for a short trip to Australia but wasn’t to reside on an indefinite basis.
Fourthly, the applicant’s absence is from Australia, linked to strong family ties and caring obligations in Hong Kong. So there’s a real possibility that the applicant will, once again, feel obliged to return to Hong Kong for an extended period.
And fifthly, besides his employment, which he has been in for a short period of time, the applicant isn’t subject to extensive agreement there’s no evidence of him having any other obligations or assets that would tie him to Australia. Whether it be furniture, a car, dependent, financial obligations.
And there’s no evidence of any participation in the Australian community, whether that be via activities, groups, clubs, or organisations. So for those reasons, and further reasons that I intend to go into in closing, the respondent would contend that the decision under review should be affirmed. [4]
[4] Transcript, 3 November 2021, 8-9.
THE APPLICANT’S EVIDENCE
The applicant said that he completed tertiary education in Australia and after completing his studies in 2018, he went back to Hong Kong to visit his parents. His attempts to return to Australia were impeded by the pandemic. He has strong family ties in Hong Kong, and does not own property in Australia. He said that his parents intended to retire to Australia.
He said that as a child under the age of 18, he visited Australia many times. At around that age, he decided to live in Australia permanently. He was told by his cousins and brothers, who reside in Australia, that there were many employment opportunities in Australia. The applicant has three brothers but only the oldest lives in Australia.
He completed a double degree in Commerce and Science at the University of New South Wales from 2013 - 2016. He undertook postgraduate studies in Quantitative Analysis at The University of Technology, Sydney in 2017-2018. During his studies he worked at Capital Markets CRC as a Research Assistant.
The applicant applied for citizenship in 2018 because he wanted to live here permanently. He said that he liked the culture, and multicultural fabric and democracy, his friends, as well the work-life balance in Australia.
After several years of study, he wanted to go back to Hong Kong for a year or two, to visit friends and family. He stayed in Hong Kong and got a job there. In Hong Kong he worked as an Investment Product Analysist and earned about A$3,300 per month. He said that his plans to return to Australia were affected by COVID and his flights were cancelled.
He is currently employed in Australia as a Financial Risk Analysist at Challenger Group Services Pty Limited. His current Australian salary is $110,000 per annum. He intended to stay in this role for about three years but after that he would be looking at some role in the tech sector. His current office is located in Martin Place and he uses public transport to get to work. He does not own a car but can use his cousin’s car if necessary.
He has lived with his brother and cousins at the same address throughout his residence in Australia. The property is owned by his father and uncles. His brother has been living in Australia for 12 years and became a citizen almost 10 years ago. He has lived here since becoming a citizen.
When asked directly whether he intended to live in Australia, the applicant said “Yes, yes, no doubts”.[5] He has family in Australia, his brother and cousins and maybe ten close friends. His main reasons for wanting to live in Australia were because of its culture, safety, and his friends were moving out of Hong Kong.
[5] Transcript, 3 November 2021, 15.
Bearing in mind that he applied for Australian citizenship in April 2018, Ms Campbell focused on his thinking during the critical period between June 2018 and October 2021 (when he returned to Australia). The cross examination went as follows:
Okay. And why was there such a long delay between you moving to Hong Kong and you obtaining employment? So June 2018 to December 2019?---June 2018 – I can’t really remember what was happening back then but yes, there is some, you know, something happened during that time, that’s about it, that’s why it took quite a long time. But I mean, the role itself is (indistinct).
Okay. And when you did secure this, so in December 2019, there were no COVID cases in Hong Kong, were there?---I think there is no.
Yes, so you looking for work and obtaining employment, COVID wasn’t a factor?---Yes, you can say so.
Okay. This role at Momenta at HSBC, was that a fulltime role?---No.
What was it?---It’s a contract role.
Yes. I mean, the date – did you work five days a week in the contract?---Oh yes, yes, it’s five days, yes, yes.
Okay. So by that point in time, is it fair to say that your mother didn’t need you to provide emotional support on a fulltime basis, you could go to work?---Yes, you can say so. But most of the time it’s remote.
Okay. So at that point in time when your mother didn’t need you to be there on a fulltime basis to provide emotional support, why, at that point in time, did you decide to obtain employment in Hong Kong, rather than return to Australia?---So because this one is a contract one, which is only last for one year, and what my intention is, you know, to obtain some experience in a big firm which would be easier for me to secure more pronounced job in Australia. And that’s what I did now, yes.
So at this point in time you’d been back in Hong Kong for about 18 months so at that point in time, you knew you wanted to stay for at least another year?---Yes.
Okay. So then the contract was meant to go for 12 months, so in December 2020, but it was extended, is that right?---Yes, it was extended for one month.
It was extended for one month, was it?---Yes, yes. So it was because of the COVID, I can’t come back, and then because I have to earn my living. That’s why (indistinct) but I negotiate with my manager (indistinct).
Okay. And you started talking to – we have in the exhibits to your statement that you started talking with Jackie at Momenta about returning to – potentially returning to Sydney for a job in – you spoke – you reached out to her on 4 November 2020, does that sound about right?---September 2020. Yes, would be somewhere around - - -
So it was around November 2020 that you decided that you’d like to return to Australia?---I think – yes, I think that’s the case, you know, I been planning for returning but, you know, the COVID just set me back on that, yes.
But you’d say – when you contacted Jackie at Momenta on 4 November 2020, that’s the first step that you took to enquire (indistinct) jobs in Australia?---Yes, yes. The first time I talked to her about that, yes.
Yes, okay.
SENIOR MEMBER: I’m sorry, the question was slightly different, Mr Chen. I’m sorry, Ms Campbell, can you just rephrase your – just ask your question again because I think Mr Chen answered in a way that suggested an answer to a different question.
MS CAMPBELL: Okay. Mr Chen - - -
SENIOR MEMBER: I think your question was whether that was – whether that was the first time he considered returning to Australia and his answer was that that was the first time he had spoken to Ms Momenta, whoever that was, Jackie at Momenta.
MS CAMPBELL: Well my question is, is that the first time he made effort to obtain (indistinct) - - -?---Obviously not, that’s not – yes, that’s not.
So before you contacted Jackie at Momenta on 4 November 2020, what had you done in terms of inquiring about employment in Australia?---So I had been asking my friends, like, you know, in Australia, how is the, you know, economy market going? And I would like to know about that. And Jackie is, you know, one of the Momenta hiring manager. So she knows more about it, that’s why I asked her as well. But beforehand, I have already asked my friends how is the COVID and how is that impacting other employment in Australia?
Okay, so before contacting Jackie in November 2020, you had just spoken to your friends about what - - -?---Yes.
Okay. And is the reason why you reached out to Jackie on 4 November 2020 because your citizenship application had been rejected a few weeks prior?---No. So – yes, I would say it is indirectly linked, yes.
Indirectly linked?---Yes, so you may find that it is a little bit related but then prior to that, I have already considered – I would move back to Australia.
Okay. But there’s no evidence of you making any attempts to do that?---I would say so, there is, because it’s just chats with my friends.
Okay. And when you were living in Hong Kong, so from June 2018 until you returned in April 2021, did you maintain any connection to the Australian community?---Community, no. [6]
[6] Transcript, 3 November 2021, 17-20.
In re-examination his solicitor, Ms Lenton, asked him about his intentions at the end of his studies. He said:
Okay. Right. In terms of the period that you were absent from Australia, so from June 2018 to April 2021, when you first went overseas, did you have a fixed idea of when you were returning to Australia?---Yes, actually, as I mentioned, it’s a year or two. So what I wanted - - -
A year, or two, so not 12 months only, maybe a year or two years, is that what you’re saying?---Yes, yes.
So - - -?---But that’s tracking longer because of COVID, yes.
Okay, was your intention to move overseas on a permanent and ongoing basis and not return to Australia when you left Australia?---No, I want to say no, no.
Okay, so your intention was to return to Australia at some point in the near future?---Yes.
Okay. When did you initially intend to return, did you have a clear idea, or what were you waiting for to work that out?---So - - -
Tell us your thought processes about when you decided to return to Australia?---Yes, so a number of things happened. So (indistinct) when I first go back to Hong Kong, it was to visit my friends right. And then my mum has her injury in a month time. And then I can’t go back, that’s why I have to, you know, look for a job and most of the time working remotely. And then provide her with emotional support and sometimes bring her to the hospital. And after that, like a years of time, and then when she is recovering and, you know, still someone has to look after her right. So – and then during that time, my brother got married and they used to work in mainland but then he got married and then he moved back to Hong Kong and my mum lived with them. And then just how the thing progressed and then I started thinking about returning to Australia during that time but after a year, or more than that, and I can’t remember exactly the time, sorry. And - - -
So was there anyone else in Hong Kong who could’ve looked after your mum?---Yes, now there is.
Now there is, what about at the time in 2018?---When I was back there, no.
Where were your father, and your brothers?---Yes, all of them are in inland, they are having business on the inland, they can’t – they don’t have time to come back. I mean, look after her on a daily basis, no.[7]
[7] Transcript, 3 November 2021, 30-31.
POLICY CONSIDERATION
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.[8] Relevant extracts are as follows:
[8] ST1/158-163.
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:
...

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:
- 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:
- 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.
CONSIDERATION

The undisputed facts are as follows. The applicant was born in 1984 in Hong Kong. He spent the first 25 years of his life in Hong Kong, visiting Australia regularly during his teenage years. He acquired British citizenship whilst in Australia in 2013.[9]
[9] On 16 July 2013:T7/97.
In 2013, at the age of 29, he enrolled as an international student at the University of New South Wales, and completed a double degree in Commerce/Science. He completed a postgraduate degree in Quantitative Analysis at The University of Technology Sydney. During his studies he worked at Capital Markets CRC as a Research Assistant. He went home to Hong Kong occasionally during the holidays.[10] The applicant acquired a subclass 155 Resident Return Visa on 14 July 2016.
[10] The travel dates in his application do not align with the information in the Movement Records, but I put this down to inadequate record keeping: see T/108.
During his student years, he lived with his brother in a house in Sydney owned by his father and uncle. In June 2018, he departed Australia for Hong Kong. During his time there the applicant’s mother had an accident and he provided care for her. He visited Australia from 14-18 December 2019.
Travel to and from Australia was suspended in early February 2020 and did not resume until October 2021. The applicant returned to Australia in or around October 2021, and is currently employed in a professional capacity in Sydney.
I turn to the more contentious elements. The applicant gave sworn evidence that he intends to remain permanently in Australia. He said that he always intended to return to Australia and that his sojourn in Hong Kong at the end of his studies was open-ended but was not intended to be permanent.
His retrospective account regarding his state of mind when he returned to Hong Kong in June 2018 is somewhat vague. This is understandable. He was after all, a free man at the end of a lengthy period of university education enjoying his newfound liberty between two places - Hong Kong and Australia. My conclusion is that in 2018, the applicant was open to possibilities and returning to Australia was certainly one of those possibilities. As things turned out, his freedom of movement was short-lived, shackled by the pandemic and the unfortunate injury that befell his mother.
The applicant’s decision to remain in Hong Kong to help his mother, especially after his father moved to the mainland, should not be used against him. A person’s loyalty and obligation to family members in the home country, especially parents, should not be seen as a lack of commitment to Australia. To do so would make a mockery of Australia’s commitment to multiculturalism. When COVID struck, his remaining in Hong Kong might reasonably be seen as wholly adventitious.
I also note that he was educated at tertiary level in Australia, including postgraduate studies. Given the number of overseas students in Australia and especially from China this is not a powerful factor on its own, but it does show a familiarity with the life and culture of Australia.
I find that it is significant that he is living with his brother, an Australian citizen, and this increases the probability that they will continue to live in this country.
I was not persuaded that his lack of property in Sydney should be counted against him. He is the fortunate beneficiary of his family’s affluence, which enables him to live rent free in Sydney with his brother. He works in the inner city and does not need a car for personal transportation. He uses hire cars when he needs a car. The lack of these encumbrances (travelling light) is a sign of modern times.
I do not accept the suggestion that his return to Australia is purely contrived, and intended primarily to facilitate his citizenship application. He has a position that pays more than equivalent employment in Hong Kong.
I also note that the applicant has an interest in a company incorporated in Australia but I attach little significance to this.
I also note the political dynamics in Hong Kong, which increase the likelihood that the applicant will remain in Australia, and even if he does not continue to reside here, will retain a strong association with the country.
In short, the applicant is currently employed in Australia in a well-paid job within his area of professional training. He was educated at tertiary level in Australia. He has secure accommodation in Australia. He has strong family ties in Australia. He lives with his brother who is an Australian citizen. Looking back to Hong Kong, the applicant sees a polity undergoing significant and rapid change, and an element of political repression. All these factors provide an objective foundation for a positive finding under paragraph 21(2)(g).
As against this, he has family members including his mother in Hong Kong, and displays a strong bond of loyalty as a son. Were this factor to be seen as negative and elevated to a position of primacy, many, if not most, of Australia’s past and recent arrivals would fail the test.
CONCLUSION
I am satisfied that if the application is approved the applicant is likely to continue to reside in Australia. Moreover, I am equally satisfied that even if, in the future, he were to venture overseas for significant periods, he is likely to maintain a close and continuing association with Australia.
DECISION
I therefore decided to set aside the reviewable decision and remit the matter to the Secretary for further processing with a finding that the applicant satisfies paragraph 21(2)(g) of the Act.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate
Dated: 3 December 2021

Date of hearing: 3 November 2021

Counsel for the Applicant: Ms Lenton

Counsel for the Respondent: Ms Campbell

[2021] AATA 4500

3 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction

Natural Justice

Remedies

Date of hearing:	3 November 2021
Counsel for the Applicant:	Ms Lenton
Counsel for the Respondent:	Ms Campbell