Genlin Yu and Minister for Immigration and Border Protection

[2014] AATA 283

[2014] AATA 283 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1734
Re	Genlin Yu
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	9 May 2014
Place	Sydney

The decision under review is affirmed.

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

The Hon. Brian Tamberlin, QC, Deputy President

Catchwords

CITIZENSHIP – Citizenship by conferral – Residence requirements – Ministerial discretion –       whether the Applicant was the de facto partner of an Australian citizen at the time of the application for citizenship – decision affirmed          

Legislation

Acts Interpretation Act 1901 (Cth) s 2F
Australian Citizenship Act 2007 (Cth) ss 21, 22

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

1. The Applicant seeks review of a decision on 18 March 2013 by the Respondent refusing his application for Australian citizenship.

   ISSUES

2. There are two issues raised on this application:

   (a)Whether the Applicant at the time of his application for citizenship on 16 January 2013 was the de-facto partner of an Australian citizen.

   (b)If the answer to (a) is yes, then a second issue arises as to whether the Applicant had a close and continuing association with Australia during periods of absence from Australia.

   BACKGROUND

3. The Applicant is a 52 year old male who was born in the Peoples’ Republic of China.  He first arrived in Australia on 23 June 1990 and was granted a permanent visa on 13 March 1995.  He currently holds a subclass 155 five year resident return permanent visa granted on 4 October 2012. 

4. The Applicant married his now ex-wife on 11 February 1987 and a son was born of the marriage on 2 October 1988.  The marriage took place outside Australia. 

5. On 19 March 1999 the daughter of the Applicant, Li Yu, was born.  In October 2008 the Applicant departed Australia and returned in January 2009.  There has been a series of departures and returns to in Australia.  For long periods of time, he has been absent from Australia. 

6. On 8 August 2011 a divorce order made by the Federal Magistrates’ Court of Australia took effect and the marriage between the Applicant and his former spouse, Ms Chen, was terminated.  At the time this order became effective, the Applicant was absent from Australia having left Australia on 13 July 2011 and he did not return until 18 May 2012 when he remained in Australia for only eight days.  There were further substantial periods of absence. 

7. There is no dispute that the Applicant does not satisfy the general residence requirements for Australian citizenship.  The Applicant’s movement records indicate that he has spent 163 days in Australia during the 12 month period prior to lodging his application. 

8. The Applicant, as noted, made his application for citizenship on 18 January 2013.  This was refused by the Ministerial delegate on 18 March 2013.  On 18 April 2013 he lodged his application for review with this Tribunal.

9. In order to be eligible to obtain Australian citizenship one of the essential ingredients is that the Applicant must satisfy the general residence requirement.  Section 21(2)(c) of the Australian Citizenship Act 2007 (the Act) is one of a number of essential requirements.  Under s 22(1) a person satisfies the general residence requirement if present in Australia for a period of four years immediately before the date the person made the Application, and the person is present in Australia as a permanent resident for the period of twelve months immediately before the day the person made the application. The Act however provides, in s 22(1A) and s 22(1B), that the requirement will be satisfied where the total period of absence is not more than twelve months in the four years before the date the person made the application, and ninety days in the twelve months immediately prior to the application. In the present case, the Applicant does not satisfy any of the cumulative requirements.

10. 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.

11. It can be seen from the above provision that it is necessary for the ministerial discretion to arise that the person should be a “spouse” or “de facto partner” of an Australian citizen as at the date of the application.  Further, the ministerial discretion, if it arises, can only be exercised where the Minister is satisfied that the person has had a close and continuing association with Australia during the period of absence from Australia.

12. The expression “de facto partner” has the meaning given by the Acts Interpretation Act 1901 (the Interpretation Act) which provides that a de facto relationship exists where persons who are not legally married and not related by family, have a relationship as “a couple living together on a genuine domestic basis”. Subsection (2) of s 2F of the Interpretation Act provides:

    (2) In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:

    (a) the duration of the relationship;

    (b) the nature and extent of their common residence;

    (c) whether a sexual relationship exists;

    (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

    (e) the ownership, use and acquisition of their property;

    (f) the degree of mutual commitment to a shared life;

    (g) the care and support of children;

    (h) the reputation and public aspects of the relationship.

13. It is appropriate in this case to have regard to the Australian Citizenship Instructions issued pursuant to the Act. The Instructions provide guidance as to the application of policy in relation to the interpretation of the exercise of powers under the Act and Regulations.  These Instructions include a provision that the discretion will usually be exercised only if the Applicant was overseas with an Australian citizen spouse or de facto partner.

    REASONING

14. The Applicant submits that, as at the date of his application on 18 January 2013, he was the de facto partner of his ex-wife who was an Australian citizen, notwithstanding that both parties had sought and obtained a divorce order from the Family Court which was made on 7 July 2011, and which came on effect 8 August 2011, on the ground that the marriage had broken down irretrievably.  

15. The Applicant contends that the Minister has and should exercise a statutory discretion to treat his lengthy periods of absence from Australia as if he were present in Australia for the purpose of satisfying the general residence requirements.  He contends that during the period of his absence he maintained a close and continuing association with Australia having regard to his relationship with his ex-wife and children here, all of whom are Australian citizens residing in Australia.  He points out that he has personal and real property in Australia with mortgage commitments and debts in respect of his Australian assets, and that he pays some expenses relating to his ex-wife and children.

16. The reason for his absence, he says, was the need for him to work in China which gave rise to the lengthy periods of absence over the four years preceding the date of application.  He has provided some evidence of financial commitments and bank accounts, and of some educational training courses undertaken, together with evidence of his good character and honesty, and his strong intention and wish to remain in Australia as part of the Australian community.

    De facto Relationship

17. In support of the existence of his claimed “de facto” relationship, the Applicant says, among other matters, that he has resided in what was formerly the matrimonial home, that he has regular contact with his adult son who works for a company in Sydney and with his young daughter whom he takes to school.

18. The Applicant has produced a letter from a friend, Ms Li, which testifies to a longstanding friendship with the Applicant over 20 years, in which she refers to him as having a close personal connection with Australia and providing generous support to his former spouse and family.  She states that, although he “suffered considerably” from his divorce, he continues to provide “generous support” for his former spouse and maintains a healthy relationship with his children.  She states that he does as much as he can to support them financially and emotionally.  The letter says nothing significant about any ongoing emotional or domestic relationship with his former wife. The Applicant, in response to questions from the Tribunal, made some vague generalised assertions about this relationship with his ex-wife but gave no specific details as to the way in which he shared finances and expenses with his wife, or as to the precise source from which any support for his wife and daughter originated, or the amounts of such claimed support.

19. Documents were produced by the Applicant as to some contacts within Australia and as to his satisfactory performance as an employee.  One letter suggests that he would make a valuable contribution if he became a citizen and offers sponsorship of his application.  

20. The material before me falls far short of establishing any “de facto relationship” with his wife which could be sufficient to enliven the Minister’s discretion to treat his lengthy periods of absence as being a deemed presence in Australia.

21. Firstly, there is no evidence of any ongoing sexual or emotional relation between the Applicant and his ex-wife since the divorce.

22. Secondly, no satisfactory objective independent evidence is given as to any close continuing domestic relationship whatsoever between the Applicant and his ex-wife.  At its highest, the evidence on this aspect is the letter from Ms Li which only focuses on his relationship with his children and the financial support which she believes has been provided to his ex-wife. Clearly, her belief was based on what the Applicant had told her.

23. Thirdly, the divorce was based on irretrievable breakdown of the marriage and the evidence was that there has been a continuing series of very serious arguments prior to the breakup between the Applicant and his wife. These arguments were sufficiently serious to give rise to the breakdown and no significant evidence of any reconciliation has been proffered.

24. Fourthly, in the year preceding the application for citizenship, the Applicant had been absent for very lengthy periods and had only returned for a short period before the making of the application.

25. Fifthly, no evidence was called from the Applicant’s ex-wife, from either of the children, or from any friends or associates as to the observed and apparent circumstances of the relationship with his ex-wife.  No explanation was offered for not calling any such witnesses.  This lends support to the available inference that there was no de facto relationship after the divorce.

26. Sixthly, I am not satisfied that any allegedly “renewed” relationship was of sufficient duration or closeness to warrant the description of a “de facto relationship” in circumstances where there had been a divorce only a relatively short time previously.  The nature and extent of any reconciliation or common residence is not corroborated by any material furnished by the Applicant.  

27. In reaching my conclusion on the non-existence of the de facto relationship, I have taken into account that there is some evidence as to ownership of property.  However, the Applicant has purchased real and personal estate since the divorce in his own name.  There is no sufficient evidence as to the degree of mutual commitment to any domestic relationship or any shared life as between them.  The issue of the care and support of the children does not apply in relation to the eldest son. In relation to the daughter, it appears that she lives with the ex-wife, but that the Applicant provides some unspecified financial support.

28. There is no evidence as to any publicly or objectively observed aspects of the relationship between the ex-spouses which indicates that they are perceived by outside observers, and acted, as a de facto couple.

29. On examination of all the evidence and circumstances before me relating to the relationship between the parties, I am not persuaded that between the date of the divorce and the date of the application there was any “de facto” relationship between the Applicant and Ms Chen so as to satisfy the condition precedent and enliven the ministerial discretion.

30. Consequently, the ministerial discretion, under s 22(9) of the Act, to treat the lengthy periods of absence as if the Applicant was present in Australia as a permanent resident, does not arise.

31. In the light of this conclusion, it is not necessary or appropriate for me to consider or determine the question of whether the Applicant, during the periods of absence, had a close and continuing association with Australia.

32. For these reasons the reviewable decision is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President

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

Associate

Dated  9 May 2014

Date(s) of hearing	27 March 2014
Date final submissions received	27 March 2014
Applicant	In person
Solicitors for the Respondent	Hervee Dejean; Australian Government Solicitor