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

[2020] AATA 2650

Guo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2650 (7 August 2020)

Division:GENERAL DIVISION

File Number:          2019/8630

Re:Jinchao Guo

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:7 August 2020

Place:Melbourne

The Tribunal decides to set aside the decision dated 23 December 2019 and remits it to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of s 21(2)(g) of the Australian Citizenship Act 2007.

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

Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – whether applicant likely to reside or to continue to reside in Australia – whether applicant likely to maintain close and continuing association with Australia – where applicant overseas at time of decision refusing citizenship – decision under review set aside

Legislation

Australian Citizenship Act 2007 (Cth)

Other Materials

Department of Foreign Affairs and Trade, Country Information Report People’s Republic of China (3 October 2019)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

Department of Immigration and Border Protection, Citizenship Procedural Instruction        (17 April 2019)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

7 August 2020

BACKGROUND

1. On 25 December 2019, Mr Guo applied for review of the decision of a delegate of the Respondent Minister, dated 23 December 2019, refusing his application for Australian citizenship.

2. Mr Guo is a thirty-year-old Chinese national who has resided in Australia as a permanent resident since 2008, having pursued tertiary studies here. He applied for citizenship in February 2019 and subsequently travelled back to China two days after lodging his application, where he remained until his return on 25 December 2019. He has travelled regularly to China during his time in Australia.

3. A delegate of the Minister contacted Mr Guo in November 2019 informing him of the requirement that he must satisfy the decision maker of his intention to reside in Australia, or to maintain a close and continuing association with Australia were he to be granted citizenship and requesting that he provide supporting evidence. In December 2019, Mr Guo provided a statement and proof of employment in response to the delegate’s request.           Mr Guo’s application for citizenship was refused on the basis that he did not meet these requirements.

4. Mr Guo was represented at the hearing, which was conducted by telephone. Evidence was given by Mr Guo, his girlfriend, Ms Hou, his cousin, Mr Ni, and his family accountant,            Ms Wang. Two bundles of documents were lodged with the Tribunal on Mr Guo’s behalf (Exhibits A1 and A2), and ‘T’ documents were lodged on the Respondent’s behalf.

   LEGISLATION

5. Under the Australian Citizenship Act 2007 (the Act), a person may apply for citizenship by conferral (see Subdivision B), and in doing so must satisfy eligibility criteria established in s 21(2). The specific provision relevant to this matter is that found in s 21(2)(g) of the Act which states that the Minister must be satisfied that 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 application were to be approved”.

6. Accordingly, the sole issue in this matter is whether I can be satisfied that Mr Guo’s circumstances meet one of the two limbs of s 21(2)(g), based on the evidence before me.

7. The Respondent’s Statement of Facts, Issues and Contentions makes reference to the Citizenship Policy and Citizenship Procedural Instructions, said to be issued for use by delegates in making assessments with respect to the questions in issue. These materials are also included in the T documents.[1]

   [1] Citizenship Policy Chapter 7 at T3, pp 52-93; Citizenship Procedural Instruction 11 at T3, pp 94-99.

8. The Citizenship Policy includes the following:

   Intention to reside should be investigated further in situations where:

   ·the applicant has spent significant periods outside of Australia since becoming a permanent resident or

   ·has requested a citizenship test or citizenship ceremony be conducted overseas.

   If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia.

   …

   Factors that may contribute to a close and continuing association with Australia include:

   ·Australian citizen spouse or de facto partner

   ·Australian citizen children

   ·length of relationship with Australian citizen spouse or de facto partner

   ·extended family in Australia

   ·return visits to Australia

   ·periods of residence in Australia

   ·intention to reside in Australia

   ·employment in Australia (for example, public or private sector)

   ·ownership of property in Australia and

   ·evidence of income tax payment in Australia.

9. The Citizenship Procedural Instruction includes the following:

   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 … 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

   …

   ·It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians …

   EVIDENCE

   Applicant

10. Mr Guo stated that he currently resides in a property in Melbourne’s eastern suburbs owned by his mother, and has done so for some eight to nine years. His girlfriend, Ms Hou, sometimes stays with him and sometimes with her own parents who live in the same street. Her parents visited earlier in the year and have been forced to stay due to the current COVID-19 situation. Mr Guo stated that he likes Australia because of the general lifestyle and natural environment. He had worked in China and found the long days to be stressful and stated that in Australia there is more time to do what you want.

11. Mr Guo stated that over the next two to three years, he intends to satisfy his parents’ wish that he continue to gain work experience in China and with the family’s Chinese business partners. After this he stated that he intends to spend more and more time in Australia, transfer ‘resources’ here and establish a real estate business. Mr Guo stated he has been looking for land and hopes to build on the real estate experience of friends who work in this sector in China. Mr Guo explained that resources included financial resources and customers who may wish to invest in Australia through his business.

12. Mr Guo obtained his Australian Permanent Residence in 2008 and was asked why he waited until 2019 to apply for citizenship when he had become eligible to apply in 2012.       In response, Mr Guo gave evidence that he thought about applying ‘every year’ but that it had been very hard to decide because he would have to give up his Chinese citizenship. He decided to do so last year in 2019. Mr Guo stated that losing Chinese citizenship may make it ‘a little bit’ harder to conduct business in China but that most of his family, including a brother, were in China and could help him. Mr Guo stated he has only one cousin living in Australia but gave evidence that ‘staying in Australia is more important for me and my family’.

13. Mr Guo was asked about the reason for his recent purchase of a property in the Melbourne CBD.[2] He replied that there were a ‘couple’ of reasons for this. Mr Guo stated that because he lived in his mother’s house in Glen Waverly he had been planning to buy a property for some years. Mr Guo stated this was his first purchase but would not be his last.   The purchase was originally in the name of a family member, but he later decided it was best bought under his own name and settlement is now to take place in August 2020.            Mr Guo stated that he expected that he would use the CBD apartment for occasions when he was in the CBD for work or when spending time with friends and not wanting to drive back to his mother’s house. He said that he spends up to two to three days in the CBD each week.

    [2] Mr Guo paid a deposit for the purchase of an apartment (as Nominee) in January 2020, Exhibit A1, pp 15-17.

14. Mr Guo acknowledged that he had travelled to China between March and December 2019 following the submission of his application for citizenship. He stated that this was because his parents wanted him to get work experience in China and to know their Chinese customers and business partners. This would be helpful for doing business in Australia in the future. When asked why on his application form he stated that he would be absent for 30 days but was then absent for longer, Mr Guo stated that he thought gaining experience would be easy but it actually involved a lot of work and took more time than expected.           Mr Guo stated, when asked, that he missed Australia during his time away, and stated that the work was quite stressful.

15. When asked why he returned on 25 December 2019, Mr Guo stated that this was because he received notification of the refusal of his application. The original plan was to come back at the end of the month although he had purchased tickets to return on several prior occasions. I asked Mr Guo whether he had proof of these earlier bookings and he said that they had been made by staff at his parent’s company. Mr Guo accepted that in              December 2019 he had advised the Respondent that he intended to return to Australia after 18 months.

16. Mr Guo stated that were he to receive Australian citizenship his plans include further travel to China due to the nature of his business. He stated that he would spend ‘most of his time’ in Australia and would return to China for work or to visit his parents. I asked Mr Guo where his parents usually reside and he stated that they are ordinarily resident in China but travel to Australia ‘more than twice a year’. Mr Guo stated that, in addition to his cousin, he has ‘lots of friends’ in Australia and most already have Australian citizenship. His girlfriend also lives in Australia and Mr Guo stated that she spends about half her time living with him.

17. Mr Guo explained that he is involved with two import/export companies. One is his family’s company which is a furniture business, the other is his own company which has exported wine to China. Mr Guo stated that in the future he intended to focus more on real estate. His involvement in the furniture company is in the form of making local decisions, signing documents and being in contact with the company accountant. Mr Guo stated that he continued to fulfil this role while travelling in China in 2019. He also stated that he maintained contact with friends in Australia during this time and kept up with Australian news. Mr Guo confirmed that in January 2020 he made a $200 donation in relation to the Australian bushfires.

18. Mr Guo expressed in evidence his desire to remain in Australia over the long-term and to marry his girlfriend, who intends to obtain her Permanent Residency. If she is unable to obtain this, he stated his intention was to apply for a partnership visa. Mr Guo stated that he wants to start a family here. He expects that Ms Hou would remain primarily in Australia, for example, ten months of the year, while he would continue to travel for work to China ‘and other countries’. I asked Mr Guo to explain his reference to other countries and he stated that he has a part share in a property in Japan and may in the future travel to or through Singapore where he has friends and may develop business interests.

19. In cross-examination Mr Guo stated that he first came to Australia with his family in 2005 for a holiday and at that time his parents already owned their property here. After finishing high school Mr Guo commenced tertiary studies in Australia. At that time his brother and cousin were already here, and a number of other relatives also studied in Australia.

20. Mr Guo was asked to confirm the frequency and length of trips out of Australia listed in his citizenship application form. Mr Guo could not recall if he had made eighteen trips to China but stated that he made both longer and shorter trips (some two weeks, some two months) as well as trips to Singapore, Fiji and Indonesia. His visits to China were sometimes to visit family and friends and sometimes for work. Mr Guo stated that a visit of 114 days between 2017 and 2018 was to obtain work experience in a bank, arranged by his parents.            When asked why the trip was described as ‘visit family’ he replied that sometimes his trips were for multiple reasons. Mr Guo stated that in total he had made three visits to China for work-related reasons, in 2012, 2018 and 2019.

21. When asked to describe the family business interests in China, Mr Guo stated that his parents were engaged in the furniture business, but this had declined over a period of about ten years. His family is also currently involved in the real estate business focussing on shopping malls and apartment development. Mr Guo stated his work with the family business was in the role of manager or assistant manager and that he is still sometimes in contact with the business from Australia. He stated his ongoing commitment to   family-related business in China would reduce as current projects concluded. Mr Guo accepted the proposition that a grant of Australian citizenship would not prevent him from continuing to travel to China.

22. With reference to his 2019 trip, Mr Guo was asked to clarify when his planned 30-day visit was extended. He stated that he originally thought it would be a shorter visit but that his parents proposed he become involved in some projects. Mr Guo stated that he had also informed his girlfriend he would return to Australia earlier, but she came to China when this did not occur. Asked why he flew back to Australia on 23 December Mr Guo stated that he wanted ‘to explain his intention to live in Australia’ following the refusal of his citizenship application.

23. Mr Guo denied that he only purchased a property in January 2020 because of the refusal decision. He did not dispute that the apartment was originally purchased in the name of another buyer and stated he did not know this person. He was offered the apartment by a friend who is an agent. Mr Guo was asked why he decided to establish his company which, in response to a question from myself, he stated was registered in December 2019. Mr Guo confirmed this was for his own business purposes and was not just in response to the refusal decision. He accepted he had only conducted one export shipment but stated the wine trade had been affected by the Coronavirus pandemic. Mr Guo gave evidence that his income was derived entirely from foreign sources and primarily from Chinese interests.

24. In his written statement, dated 3 April 2020 (Exhibit A1, pp 1-2), Mr Guo states that his parents both have Australian permanent residency and that his brother is an Australian citizen. In his statement Mr Guo also states that he studied at both undergraduate and postgraduate levels between 2009 and late 2018 and worked for his parent’s business during this period. Mr Guo states that he travelled to China in March 2020 as he had been unable to find work opportunities in Australia after completion of his studies. Mr Guo also acknowledges in his statement that he would forfeit Chinese nationality were he to be granted Australian citizenship.

25. The facts set out above regarding the residency and citizenship status of Mr Guo’s family members are consistent with the family data in Mr Guo’s application for citizenship               (T4, pp 106-110). In his application form, Mr Guo also sets out information regarding overseas travel outside Australia since the age of eighteen (T4, pp 112-115). He nominates 21 trips to China between February 2010 and March 2019 of which 15 are longer than            14 days in length, including six that are 30 days or longer in length. This travel appears to have occupied an estimated 583 days over the years in question and there is no travel to any other destination listed.

    Other witnesses

26. Ms Hou gave evidence that she met Mr Guo in around 2009 at university and that they had been together for ‘a long time’. She herself has been in Australia for eleven years and she stated that she looked forward to settling here. Ms Hou estimated she had spent over 80% of her time in Australia since arrival and she has obtained multiple degrees having studied both business and early childhood education. Since 2013 she has been engaged with a livestock export business but is exploring investment opportunities in the early childhood sector.

27. Ms Hou stated she currently has a working holiday visa until early 2021 and is undergoing skills assessment in early childhood education and accounting for her Permanent Residency application. She stated that the ‘worst case’ scenario would be to apply for a partnership visa; this would not be just to stay in Australia, ‘it’s for life’. Ms Hou stated that she is looking forward to staying in Australia and buying another property. She stated she considers Australia safer than China and agreed that it is more her home than China.              In response to a question from myself, Ms Hou confirmed that she and Mr Guo plan to marry.

28. In cross-examination, Ms Hou stated that she spends part of her time living with her own parents in another property owned by Mr Guo’s family. This is because her parents visited Australia and have been unable to return to China due to the Coronavirus pandemic.            Ms Hou stated that she first moved in with Mr Guo in 2013 or early 2014. I asked Ms Hou about her intentions for a future in early childhood education and she stated that this would be primarily her own business and therefore did not specifically form part of Mr Guo’s own stated business interests.

29. Mr Ni gave evidence that he has a very close relationship with Mr Guo and lives around five to ten minutes’ drive away from him. He stated that the pair see each other at least twice a week and that Mr Guo is close to his own children. Mr Ni confirmed that Mr Guo had plans to develop his own business interests in Australia which they had discussed. He stated that Mr Guo is in a stable relationship with Ms Hou and that they plan to marry this year.

30. Ms Wang stated in evidence that she had been the family accountant since 2005.                   She stated that she communicated with Mr Guo about the family business activities because his parents could not speak English and this made it easier. Ms Wang stated that she deals with Mr Guo in relation to two companies and ordinarily consulted him about their BAS statements. She confirmed that Mr Guo is an office holder for both companies and that she had been in frequent contact with him about his parents’ property activities, including the purchase of warehouses. Ms Wang stated that Mr Guo loves Australia, has a girlfriend here and wants to establish a family in Australia.

1. I note that signed statements from each of the witnesses were provided (Exhibit A1).

   CONSIDERATION

2. It was submitted on behalf of the Applicant that choosing to obtain Australian citizenship was in itself evidence of his intention to reside in Australia long-term. Adoption of Australian citizenship would also put him at a relative disadvantage when compared to his rights to travel to China as a Chinese citizen. It was submitted that the best guide to Mr Guo’s future intentions was his past actions and he had spent the vast majority of his time since moving to Australia (just over 78%) in this country. The evidence at the hearing, it was submitted, demonstrated that Mr Guo:

   (a)has lived for a significant portion of his life in Australia following the completion of secondary school;

   (b)attended university in Australia and speaks fluent English;

   (c)has friends and family connections in Australia;

   (d)stated a preference for the Australian lifestyle;

   (e)has assets in Australia including a property, which would settle shortly, as well as funds, a car, and personal effects;

   (f)is involved with Australian companies requiring his attention, and intends to undertake further commercial activity here; and

   (g)has a partner who has been present in Australia for at least ten years who is a Permanent Resident and who considers Australia her home.

3. It was further submitted on the Applicant’s behalf that he presented as a credible and consistent witness with respect to the intention to reside in Australia. Mr Guo’s absence from Australia in 2019 should be considered a temporary absence which followed a long period of ongoing residence interspersed primarily with short trips back to China.              Finally, Mr Guo was presently in Australia and would be at the time of the Tribunal’s decision. Mr Guo, it was submitted, satisfies the first limb of s 21(2)(g) of the Act, and if this was not found to be the case, he should be considered to satisfy the second limb of close and continuing connection.

4. The Respondent’s representative noted reliance upon the Statement of Facts, Issues and Contentions lodged with the Tribunal. It was also submitted that the Citizenship Policy and Citizenship Procedural Instructions guide the interpretation and implementation of the Act and should be applied unless there are cogent reasons to the contrary. The relevant issue in question was not the Applicant’s intentions with respect to residence in Australia but rather whether the Tribunal is satisfied that Mr Guo meets the requirements of s 21(2)(g).       It was submitted that the Applicant had departed for China after submitting his citizenship application, later stated that he intended to stay away for one and a half years, and only returned to Australia when informed of the adverse decision. In short, Mr Guo’s stated intention to reside in Australia should not be considered genuine, and could not be considered so until a longer period of time had passed.

5. It was specifically submitted on the Respondent’s behalf that:

   (a)this matter did not involve an Australian citizen’s spouse and therefore Mr Guo’s partnership should be given less weight;

   (b)there are no children resident in Australia;

   (c)most of Mr Guo’s family resides in China;

   (d)Mr Guo had a history of consistent absences from Australia of increasing length;

   (e)Mr Guo has limited employment history in Australia and while he has plans for business activity the majority of his income is derived from China; and

   (f)it appeared the purchase of a property was accelerated after the refusal decision, and Mr Guo had no clear intention to stay in that property, therefore it should be given less weight.

   In summary, Mr Guo had not demonstrated that it was likely he would reside or continue to reside in Australia, nor that he could demonstrate a close and continuing connection to Australia.

6. It was submitted by both parties that Chinese law does not permit dual citizenship.               The Respondent’s representative cited the Department of Foreign Affairs and Trade Country Information Report, and the Applicant’s representative cited the relevant Chinese legislation.[3] It was further submitted on behalf of the Respondent that this fact alone does not indicate that Mr Guo would be unable to reside or be employed in China, or to travel for a variety of personal and work related purposes to China; in short, the legal situation is not evidence of intent relevant to the application of the provision in question.

   [3] Department of Foreign Affairs and Trade Country Information Report People’s Republic of China, 3 October 2019 at 5.60.

7. I consider Mr Guo’s own evidence at the hearing to be particularly relevant to this matter.     I found his oral evidence to be clear, direct, and consistent with other material lodged. I also found his evidence to be consistent with that given by the other witnesses. Mr Guo’s evidence was not subject to any substantive challenge on the Respondent’s part.                   One obvious difference arises with respect to his reference in evidence to travel to a wider range of countries than disclosed in his application for citizenship. I also note that Mr Guo has given slightly different accounts of his reason for travel to China in March 2020. I do not consider these apparent inconsistencies to be material, and they were not the subject of discussion at the hearing. I observe that Mr Guo appears not to have accurately recorded the purpose of all his visits and stated at the hearing that there were at times multiple purposes.

8. I am satisfied that Mr Guo has spent the majority of his time in Australia engaged in study and in pursuit of his family business interests. There is no evidence of any substantive local income to date. I am satisfied that the estimate of time he has spent in Australia provided by his legal representative in closing, as a percentage of his time in residence here overall, is accurate given the information found in his application for citizenship. That is, Mr Guo has spent a significant majority of his time in Australia despite some, at times, lengthy return trips to China. For much of this time Mr Guo was in fact engaged, it appears, primarily in study.

9. Mr Guo made no secret of his intentions in the future. He stated that he expected to continue to travel to China for business, and possibly to other countries. This was in the context of a desire to make a life in Australia founded on citizenship. Mr Guo, and the other witnesses, attested to his desire also to make a life in Australia with his girlfriend, Ms Hou, and to raise a family here with her. Mr Guo, and indeed Ms Hou, both stated that they had plans to establish businesses here. Mr Guo has made efforts in this regard already, but the evidence indicated that he wishes to move in a different direction to the modest steps taken so far.

10. I accept that gaining Australian citizenship would not in itself be an impediment to Mr Guo’s future travel to China for business and personal reasons. However, I consider it relevant that the grant of citizenship is a matter of some consequence. That is, the application process appears to have arisen as a matter of personal choice, with knowledge of the legal and practical implications.

11. I find that the evidence is sufficient to satisfy the legislative requirement of a likelihood that Mr Guo will reside, or, in his case in fact, continue to reside in Australia. I do not consider the policy documents quoted to be inconsistent with the legislation. Equally, I do not consider that they add greatly to the interpretation of s 21(2)(g) which is expressed in clear language. I am also not persuaded that the primary argument raised on the Respondent’s behalf has any great merit. I do not consider the ‘genuineness’ of Mr Guo’s intentions to have been successfully challenged to any degree. Moreover, I am not certain that any of his actions to date have necessarily cast meaningful doubt on his intentions.

    DECISION

12. For the reasons given above the Tribunal decides to set aside the decision dated 23 December 2019 and remits it to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of s 21(2)(g) of the Australian Citizenship Act 2007.

I certify that the preceding 42        (forty-two) paragraphs are a true copy of the written reasons for the decision herein of Dr Stewart Fenwick, Senior Member.

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

Associate

Dated: 7 August 2020

Date of hearing:

14 July 2020

Advocate for the Applicant:

Solicitors for the Applicant:

Mr J. Hammond

Hammond Taylor

Advocate for the Respondent:

Ms E. Cannon

Solicitors for the Respondent:

Clayton Utz