Hung Minh Le and Minister for Immigration and Border Protection
[2014] AATA 382
•18 June 2014
[2014] AATA 382
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4033
Re
Hung Minh Le
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 18 June 2014 Place Melbourne The Tribunal sets aside the decision of the Respondent made on 22 July 2013.
The Tribunal remits the matter to the Respondent to determine the Applicant’s eligibility to become an Australian citizen taking into account the Tribunal’s findings that the Applicant satisfies the general residence requirement in s. 22(1) and the eligibility criteria in s. 21(2)(g) of the Australian Citizenship Act 2007..........[sgd Egon Fice]...............................................................
Egon Fice, Senior Member
CITIZENSHIP – Application for Australian Citizenship – General residence requirement – Exercise of the discretion under s. 22(9) of the Australian Citizenship Act 2007 – Close and continuing association with Australia – Section 22(2)(g) requirements – Applicant is the de facto partner of an Australian citizen – Overseas absence as a result of accompanying an Australian Citizen
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 52
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Bill 2005 (Cth) Revised Explanatory Memorandum
Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013)
REASONS FOR DECISION
Egon Fice, Senior Member
18 June 2014
Mr Hung Minh Le, a Vietnamese citizen, lodged an application for Australian citizenship with the Department of Immigration and Citizenship (as it then was, now the Department of Immigration and Border Protection) on 13 May 2013. On 22 July 2013 a Citizenship Officer from the Department wrote to Mr Le informing him that his application for Australian citizenship under the Australian Citizenship Act 2007 (the Citizenship Act) had been refused. The Citizenship Officer found that Mr Le did not meet the general residence requirement for Australian Citizenship set out in s. 22 of the Citizenship Act.
Section 52(1)(b) of the Citizenship Act provides for applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under s. 24 to refuse to approve a person becoming an Australian citizen. On 15 August 2013 Mr Le lodged an application for review with the Tribunal. He contended that the Minister should exercise his discretion under s. 22(9) of the Citizenship Act which modifies the general residence requirement.
The issues which I am required to determine are:
(a)
whether Mr Le meets the prerequisites for the exercise of discretion under
s. 22(9); and
(b)if the answer to (a) is in the affirmative, whether the ministerial discretion should be exercised in this case.
ELIGIBILITY FOR CITIZENSHIP
The general eligibility requirements for the grant of citizenship are set out in s. 21(2) of the Citizenship Act. Those provisions relevant to the determination of this application are as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and…
(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; and…
The general residence requirements are set out in s. 22 of the Citizenship Act. Essentially, they provide for a 4 year period and 12 month period where presence in Australia is required. An allowance is made for both periods where there have been overseas absences. The relevant provisions are as follows:
22 General residence requirement
(1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Allowing for the overseas absences in s. 22(1A) and (1B) of the Citizenship Act, the
4 year requirement is reduced to 1095 days and the 12 month requirement to 275 days. There was no dispute between the parties that Mr Le did not meet these requirements. In the 4 year period preceding his application for citizenship, Mr Le spent a total of 77 days in Australia. In the 12 month period immediately preceding his application, Mr Le spent 15 days in Australia.In order to overcome the deficiencies in the time he spent in Australia in the 4 year period preceding his application for citizenship, Mr Le sought to have the Minister exercise his discretion under s. 22(9) the Citizenship Act.
OPERATION OF SECTION 22(9)
Section 22(9) of the Citizenship Act provides:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(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.
First requirement – spouse or de facto partner of an Australian citizen
The first requirement to meet the preconditions for the exercise of the ministerial discretion in s. 22(9) is that the applicant be a spouse or de facto partner of an Australian citizen at the time the person made the application.
In a statutory declaration made on 6 February 2014 which was taken into evidence,
Mr Le said that he was in a long-term committed relationship with Mr Simon Perkins. He said that the relationship had existed for over 11 years. Mr Perkins also made a statutory declaration on 6 February 2014 confirming that to be the case. In an earlier statutory declaration made by Mr Perkins on 5 March 2013, he said that he first moved to Australia from the UK in June 1995 as a result of his employment with British Telecom. He obtained permanent residency in Australia on 27 March 2001 and became an Australian citizen on 26 January 2008. I had in evidence a copy of Mr Perkins’ Australian Citizenship certificate which is dated 26 January 2008.
Mr Perkins said that his relationship with Mr Le began in Vietnam in December 2002. He said they have lived together since 8 March 2004. In October 2005 they both moved to Melbourne. Mr Le was granted a student visa in February 2006 and commenced full-time studies a Diploma of Arts (Interior Design and Decoration) at RMIT University.
Mr Perkins had full-time employment as the CEO of Silk Telecom. He said they intended to make their home in Australia and to live here indefinitely. Mr Le and
Mr Perkins jointly rented an apartment in Melbourne for two years between 16 December 2005 and 17 December 2007. Mr Perkins then purchased an apartment in Elizabeth Street Melbourne and he and Mr Le moved into that apartment on 17 December 2007.
Mr Perkins said that in April 2008 he and Mr Le obtained a Relationship Declaration with the City of Melbourne by registering their relationship under the Domestic Relationship Act 2008. I had a copy of the Relationship Declaration Certificate and a certified copy of entry of that civil partnership registration in evidence.
On 7 June 2009 Mr Perkins took up a position as CEO for Hello Axiata, a mobile telecommunications company based in Cambodia. Mr Le accompanied him to Cambodia. Mr Perkins said this was intended to be a three-year contract but has now been extended twice, at first for one year up to the end of 2013, and then for a further six month period. Mr Le and Mr Perkins lived together in an apartment in Phnom Penh. While in Phnom Penh, Mr Le was responsible for the administration of matters related to their assets in Australia. In his second statutory declaration made on 6 February 2014, Mr Perkins said that Mr Le was responsible for liaising with the letting agent and tenants of the apartment in Melbourne as well as managing their bank accounts and investments. He travelled regularly to Australia in connection with those matters, sometimes accompanied by Mr Perkins.
In his second statutory declaration made on 6 February 2014, Mr Le said that in November 2013 he purchased an investment property in Lonsdale Street Melbourne. That apartment is let to tenants on a short-term basis as he said that he and Mr Perkins planned to use this as a temporary base in Melbourne on their return before moving to the Elizabeth Street apartment when the tenants occupying that apartment vacate the property in the middle of this year.
In my opinion, the above evidence, which was not disputed by the Minister, clearly establishes the fact that Mr Le was the de facto partner of Mr Perkins, an Australian citizen, at the time Mr Le made his application for the grant of Australian Citizenship.
Furthermore, I find the evidence establishes that Mr Le was the de facto partner of
Mr Perkins throughout the 4 year period immediately before Mr Le made his application for Australian Citizenship, that is between 12 May 2009 and 12 May 2013. He therefore satisfies the requirements set out in s. 22(9)(a) of the Citizenship Act.
Second requirement – not present in Australia during that period
The period which Mr Le seeks to be treated as a period when he was present in Australia while he was living outside Australia is between 7 June 2009 and 12 May 2013. In fact, the period is slightly reduced because Mr Le was present in Australia for 59 days during that period.
Third requirement – permanent resident during that period
Mr Le applied for Australian Permanent Residency and became an Australian permanent resident on 14 April 2010.
Given that Mr Le was not granted permanent residency in Australia until 14 April 2010, at first glance, it may appear that even if the ministerial discretion in s. 22(9) were to be exercised in his favour, he would nevertheless not meet the 4 year general residence requirements. That is because between 7 June 2009 and 14 April 2010 (which is in the
4 year period prior to his application for citizenship) Mr Le was not a permanent resident of Australia. For reasons I explain below, I am of the opinion that the ministerial discretion in s. 22(9) can only be applied to a period of time when the applicant was a permanent resident of Australia.
In order to ensure that I have correctly interpreted s. 22(9), I have examined the Revised Explanatory Memorandum which accompanied the Australian Citizenship Bill 2006. Although the Bill was first introduced into the House of Representatives in 2005, amendments were made to that Bill and a Revised Explanatory Memorandum accompanied the revised Bill. Regarding the proposed s. 22(9), the Revised Explanatory Memorandum stated:
This provision allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the period overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the period spent overseas.
This makes clear that periods spent overseas by a spouse that may be counted towards time spent in Australia for the purposes of the residence requirement, must be as a permanent resident of Australia.
Allowing for overseas absences, the general residence requirement is that the person was present in Australia for a period of three years immediately before the date the person made the application and, included in that three year period, the person making the application must have been present in Australia for no less than 275 days in the
12 months immediately prior to making the application. To satisfy the general residence requirement, both aspects of presence in Australia must be met. However, s. 22(9) provides for the Minister to exercise his or her discretion to treat a period (which seems to be a reference to a period in the four years prior to making an application for citizenship when the applicant was outside of Australia) as a period in which the person was present in Australia as a permanent resident. That interpretation is further supported by s. 22(9)(c) which requires the applicant to have been a permanent resident during that period (once again a reference to a period of time the applicant spent overseas in the
4 year period immediately prior to the application which he or she wishes to have treated as a period when they were present in Australia).
In my opinion, a grammatical construction of s. 22(9) discloses that although the ministerial discretion may be exercised in order to deem any period of time an applicant for citizenship was outside Australia in the 4 year period prior to an application being lodged as time spent in Australia, unlike the general residency requirements where the applicant is only required to be a permanent resident in the 12 month period immediately preceding the application, an applicant seeking the exercise of the discretion can only do so in respect of the period of time when he or she was a permanent resident.
The 12 month period requirement is disregarded entirely. That construction is supported by the Revised Explanatory Memorandum.
Therefore, if an applicant for citizenship was not a permanent resident of Australia for any period during the four years immediately preceding his or her application, the ministerial discretion in s. 22(9) cannot be used to deem any such period as time spent in Australia. Given that Mr Le only became a permanent resident on 14 April 2010, the discretion cannot be used to deem him to have been present in Australia between 7 June 2009 and 13 April 2010 (a period of 10 months).
However, that does not take into account the overseas absence allowance provided for in s. 22(1A) of the Citizenship Act. That section provides that where the absence or absences was not more than 12 months in the four-year period immediately prior to lodging an application for Citizenship, then for the purposes of the general residence requirement, the applicant is taken to have been present in Australia during each period of absence. In effect, it means that the overseas absence allowance in s. 22(1A) would deem Mr Le to have been present in Australia between 7 June 2009 and 13 April 2010, provided of course that the discretion was exercised in respect of his remaining period of absence in the 4 year period, being 14 April 2010 to 12 May 2013.
Given that I have found that Mr Le was the de facto partner of an Australian citizen in the relevant period between 14 April 2010 and 12 May 2013; that he was not present in Australia during that period save for 42 days; and that he was a permanent resident during that period, the only remaining matter which must be satisfied to enliven the Minister’s discretion is that Mr Le had a close and continuing association with Australia during that period.
Fourth requirement - close and continuing association with Australia
In his statement of facts, issues and contentions, the Minister referred to Chapter 5 the Australian Citizenship Instructions (ACIs). The ACIs dealing with s. 22(9) of the Citizenship Act were relied on by the original decision maker who determined that Mr Le did not meet the requirements to establish that he maintained or, more accurately, had, a close and continuing association with Australia during his periods of absence.
In particular, the officer who made the decision noted that he gave less weight to factors which would ordinarily be considered to establish a close and continuing association with Australia because Mr Le had been present in Australia for only 77 days which was much less than the 365 days in the 4 year period immediately before making his application as prescribed by policy.The ACIs are not made under the Citizenship Act but they are said to support it. The ACIs state that the instructions contained therein provide guidance on policy in relation to the interpretation of and the exercise of powers under the Citizenship Act and the Regulations.
Brennan J, the then President of the Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 said this about a guiding policy, at 640:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such policy.…
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…
His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the minister on his own initiative.
Chapter 5 of the ACIs is concerned with citizenship by conferral. Paragraph 5.18 deals with ministerial discretion in relation to a spouse, de facto partner et cetera of an Australian citizen. It sets out factors which may demonstrate a close and continuing association with Australia. They are not exclusive. The factors are as follows:
·Australian citizen children
·long-term relationship with the Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·intention to reside in Australia
·employment in Australia where a person has been on leave to accompany their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four years
·evidence of active participation in Australian community based activities or organisations
Paragraph 5.18 also states:
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors [the factors referred to above] if they have not been present in Australia for at least this period.
Mr C Horan of counsel, who appeared on behalf of Mr Le, submitted that the direction in the ACIs regarding more weight be given where the applicant for citizenship was present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship, including at least 90 days as a permanent resident, constituted a fetter on the discretion. With respect, I do not agree. That is because the factor set out in s. 22(9)(d) is simply a pre-requisite which must be met to enliven the Minister’s discretion. It does not impact on the exercise of that discretion but rather, only on whether an applicant can establish a close and continuing association with Australia in the period he or she seeks to have counted as having been present in this country. If an applicant for citizenship satisfies the four criteria set out in s. 22(9), the Minister, or in this case, the Tribunal, must examine the reasons why the applicant has not been able to meet the general residence requirements and whether those reasons are appropriate for the grant of special consideration.
The factors set out in the ACIs which it is said evidence a close and continuing association with Australia are by no means exclusive. There are many other factors which may evidence the requisite relationship. In fact, in this case, there seems to be one very significant factor which has been completely ignored by the Minister. That is the time Mr Le spent living in Australia with Mr Perkins prior to them going to Cambodia in June 2009 on account of Mr Perkins’ contract with Hello Axiata. Mr Le first came to Australia to live in October 2005 and studied as a full-time student at RMIT University, graduating in December 2007. In other words, Mr Le lived together with Mr Perkins in Australia for some three years and eight months before departing for Cambodia.
During the three-year and eight month period spent in Australia, Mr Le said that while Mr Perkins was involved with his work, he took on the responsibility for finding an apartment which they rented in Docklands. He organised their move from Vietnam to Australia and was responsible for buying furniture needed for the apartment. Mr Le and Mr Perkins had friends from Vietnam who were living in Australia including Ms Lisa West, who gave evidence at the hearing. Mr Le set up their bank accounts, insurance, utilities and moved his savings to Australia from Vietnam.
Mr Le’s evidence was that he registered for a tax file number in March 2006 because he anticipated paying tax on income while working. After graduating in 2007, Mr Le worked part-time for several design firms in and around Melbourne. In February 2009 he began working part-time as a shop assistant and design consultant for Cote Maison, an interior design and decoration showroom on High Street, Prahran. He testified that he had declared all of this income earned during that time and paid income tax. He also set up a superannuation fund.
The significance of the general residency requirements in the Citizenship Act is explained in the Revised Explanatory Memorandum where it deals with Clause 22.
It states:The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration program over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.
In addition, it is important to note that Australian citizenship is a privilege not a right.
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.
Given Mr Le’s quite lengthy period of residence in Australia between 2005 and 2009; the fact that he studied and worked in Australia; and that he assisted Mr Perkins in establishing a home when the Elizabeth Street apartment was purchased in 2007, I find that Mr Le has become familiar with the Australian way of life and does appreciate the commitment he is required to make to become a citizen. Furthermore, Mr Le established a circle of friends in Australia which, I have no doubt, has also imbued him with the Australian culture. The evidence indicates he has maintained that circle of friends.
While the evidence I have referred to above clearly establishes that Mr Le had a close and continuing association with Australia between 2005 and 2009, I am of course aware that s. 22(9)(d) requires an applicant for citizenship to have had a close and continuing association with Australia during the period which that person seeks to have treated as if he or she was present in Australia. Given his close association with Australia prior to departing for Cambodia, it is correct to say, as does the Minister, that Mr Le must demonstrate that he has maintained that close and continuing relationship while overseas.
Mr Le’s evidence was that when he and Mr Perkins decided to move to Cambodia, it was so that he could provide support to Mr Perkins during the course of his contract with Hello Axiata. Mr Perkins in fact moved overseas first while Mr Le undertook the administrative work to move all of their personal effects into storage, secure tenants for their apartment and any other administration which was necessary for their intended three-year stay in Cambodia.
Mr Le said in evidence that while in Cambodia, he maintained his connections with Australia which included managing all of their affairs in Australia. He said that he was the contact point for the tenants who had been secured for their apartment; their letting agent; bank managers and their accountant. I also had in evidence a letter from an Australian based bank dated 8 April 2013 stating that Mr Le had maintained a banking relationship since 9 March 2008 and that he was of good standing and maintained the accounts in a satisfactory manner. Furthermore, as Mr Le said in evidence, he had maintained a substantial sum of money on term deposit with that bank.
All of the bank account statements which were in evidence confirmed Mr Le’s statement. I had in evidence a letter from the superannuation company which confirmed he was a member of that fund and also a letter from the Australian Taxation Office dated
30 March 2006 advising him of his tax file number. I also had in evidence a letter from a Real Estate agency dated 9 April 2013 confirming that the agency was interviewed by
Mr Le for the purpose of finding an agent to lease and manage the Elizabeth Street apartment. The agency also confirmed that Mr Le was their point of contact in managing the property and that Mr Le visited Melbourne a number of times a year for the purpose of discussing the progress of the property and to inspect its condition and meet with the tenants.
Ms West made a statutory declaration on 26 February 2013 and also gave oral evidence at the hearing. She said she had known Mr Le since December 1999 and were good friends since. She said that since Mr Le and Mr Perkins moved to Cambodia in June 2009, Mr Le had made regular visits to Melbourne (on average twice in a year) when she caught up with him and Mr Perkins, when he accompanied Mr Le. I also had in evidence two further statutory declarations, one from Ms Robin Johnson and Richard Sloan, and the second from Mr Paul Rothin and Ms Marianne Trinder. Those statutory declarations also support Mr Le’s claim to have maintained a close and continuing relationship with Australia while residing in Cambodia.
In his second statutory declaration, Mr Le testified that in November 2013, he acquired an investment property in Lonsdale Street Melbourne. Finance for the purchase of this property came from the same bank where Mr Le held his term deposit. Mr Le said the apartment was currently let on a short-term basis because he and Mr Perkins planned to use this as a temporary base in Melbourne on their return before moving into the Elizabeth Street apartment when the current tenants vacate.
Mr Le also said that they intended to return and settle in Melbourne in the middle of 2014. Mr Le said he intended to undertake further studies having contacted the Architecture Faculty at RMIT University to put into effect the application process for a course commencing in September/October 2014. In his second statutory declaration
Mr Perkins said that he intended to continue working in Australia on his return, on a consultancy basis. He said that he had engaged and had been in contact with a number of consultancy agencies to explore possible sources of work in Australia. He has maintained a membership of the Australian Institute of Company Directors and Institution of Engineers Australia.
Having regard to the evidence given by Mr Le and Mr Perkins regarding a close and continuing association with Australia, evidence which was not impeached in the course of cross-examination nor contrary to documentary evidence, I find that Mr Le has maintained his close and continuing association with Australia during the period of time he spent residing in Cambodia with Mr Perkins.
However, in a Supplementary Statement of Facts and Contentions, the Minister contended that Mr Le could not satisfy s. 21(2)(g) of the Citizenship Act. Ms M Gangemi, a solicitor with the Australian Government Solicitor (AGS) who appeared on behalf the Minister, submitted that Mr Le’s stated intention to return to Australia with
Mr Perkins to reside on a permanent basis was not bona fide.
SECTION 21(2)(g) REQUIREMENTS
As I have indicated above, s. 21(2) is concerned with an applicant’s eligibility to become an Australian citizen. The matters which I have dealt with above under s. 22(9) deal only with the exercise of the Minister’s discretion to allow periods when an applicant has been outside of Australia to be counted as if he or she were resident in Australia so as to satisfy the general residence requirement. That is one of a number of eligibility criteria found under s. 21(2). Section 21(2)(g) contains additional requirements which look forward in the event that citizenship were granted.
If the applicant at the time of application does not reside in Australia, there must be evidence which discloses that the applicant is likely to reside in Australia or that he or she will maintain a close and continuing association with Australia if the application were to be approved. If the applicant was resident in Australia at the time of application, he or she must then satisfy the Minister that they will continue to reside in Australia or, if they do not, that they will maintain a close and continuing relationship with Australia. These eligibility criteria are plainly in addition to the general residency requirements.
Whether Mr Le could satisfy the requirements set out in s. 21(2)(g) arose as an issue from Mr Perkins’ second statutory declaration where he said:
Previously, my employment contract with the Axiata Group was scheduled to finish on 8 June 2013. However, my contract was extended to 31 December 2013. Whilst I was offered a longer-term extension, I declined that offer, in anticipation of our return to Australia in 2014. I relinquished my position as CEO of Hello Axiata in Cambodia, and I am currently working on a project basis for Axiata Group, with a focus on Myanmar. I am now Chief Representative for Axiata Group Myanmar Branch. I have agreed to continue working for Axiata until this project is completed, or for six months, whichever is sooner, meaning we will return to Australia no later than the middle of this year when my work for Axiata will cease.
Ms Gangemi also referred to Mr Perkins’ testimony in his second statutory declaration where he said he had been appointed as an Executive Director on the Board of Axiata’s business in Cambodia and that he would continue in this role while living in Australia. That would require him to attend Board meetings on a quarterly basis. She also referred to his LinkedIn profile which, contrary to his second statutory declaration, states that he ceased the position of CEO of Hello Axiata and commenced as Executive Director of Smart Axiata as well as Axiata’s Chief Representative in Myanmar in February 2013. Ms Gangemi also referred to the fact that Mr Perkins’ LinkedIn profile recorded that in February 2014 he was appointed to the Board of Samart I-Mobile, a company listed on the Stock Exchange of Thailand. Mr Perkins did not mention this in his statutory declaration.
According to Ms Gangemi, this evidence discloses that Mr Perkins has a long-term association with the telecommunications industry in Southeast Asia indicating that he was unlikely to reside in Australia either in the immediate future or very soon after any conferral of Australian citizenship on Mr Le.
When these concerns were put to Mr Perkins in cross-examination and re-examination, he clarified his position as follows:
(a)technically, he remained the CEO of Hello Axiata following its merger with Smart Mobile although the company ceased to trade following the merger which was completed in February 2013 and he would remain in that position until it was dissolved;
(b)the merged entity was rebranded following the merger and is now referred to as Smart Axiata and he agreed to go onto its Board as an executive director;
(c)he agreed that what is stated in the LinkedIn entry is not, strictly speaking, accurate;
(d)he agreed to an extension of his original contract with the Axiata Group up to June 2013 because he wished to maintain a good relationship with Axiata to enable him to be considered favourably for directorships at a later time;
(e)he also agreed to remain as the Chief Representative Myanmar until June 2014 or when that task was completed, whichever occurred first; and
(f)
he did not mention the Myanmar position in his statutory declaration made on
5 March 2013 because that was still under discussion in early March/April 2013, however, that was stated in his second statutory declaration.
As far as existing directorships are concerned, Mr Perkins said in his evidence in chief that essentially they required him to attend quarterly meetings and, if he was required to be there in person, it would only be for a few days at any one time. Otherwise, he would be required to review papers and he could vote on resolutions by email. In other words, he could conduct that work from Melbourne as the location was not relevant.
Ms Gangemi also raised concerns about the fact that Mr Le and Mr Perkins now resided in a home owned by Mr Le in Vietnam. In his second statutory declaration, Mr Le testified that he ceased his employment in Cambodia at the end of September 2013 and that he and Mr Perkins had given up their rented accommodation in Cambodia and moved in with his family in Vietnam. Mr Perkins also mentioned the fact that he and
Mr Le were living with Mr Le’s family in Ho Chi Minh City.
Ms Gangemi put into evidence some photographs which Mr Le agreed were photographs of the family home in Vietnam. In cross-examination, he agreed that he was the owner of that property. According to Mr Le, he was instrumental in the design and refurbishment of that property which is, from the photographs, exceptional. According to Mr Le, the work was carried out over about one year and started in about 2011.
As I understood Ms Gangemi’s submissions, the nature and extent of the refurbishment of the Vietnam property was an indication that Mr Le and Mr Perkins did not intend to reside in Australia for any extended period of time. This was despite the fact that
Mr Le’s evidence was that the property had been rented to tenants while he and
Mr Perkins resided in Cambodia. With respect to Ms Gangemi, the extensive and no doubt expensive refurbishment of the Vietnam property does not necessarily indicate an intention not to reside in Australia were Mr Le granted citizenship. That submission is, in my opinion, speculative.
Against that submission is the evidence of both Mr Le and Mr Perkins that they view the Elizabeth Street apartment as their home and it was their principal place of residence prior to their move to Cambodia to enable Mr Perkins to complete his contract with Axiata. In his third statutory declaration which was made on 30 April 2014, Mr Perkins testified that during their absence from Australia, the Elizabeth Street apartment had been rented and that their personal belongings and a great deal of furniture was placed into storage. Mr Perkins attached to his statutory declaration inventory sheets disclosing the furniture removed to storage as well as tax invoices and a certificate of insurance for the stored goods. Also attached to Mr Perkins’ third statutory declaration was a letter from the letting agent, to the current tenants of the Elizabeth Street property. That letter states:
We acknowledge your notice to vacate the above property [Elizabeth Street] on 5/06/2014.
In order to ensure smooth departure, please return all sets of keys, including remotes on this day. Rental will continue to be charged until such time as all keys and remotes are returned, regardless of the nominated vacate date.
There was no evidence to support Ms Gangemi’s submission that Mr Le and Mr Perkins intend to reside anywhere other than Australia after Mr Perkins’ contract as Chief Representative in Myanmar is concluded.
I also had in evidence a chronological account of what is described as the relationship history of Mr Le and Mr Perkins. That history discloses a significant number of trips overseas after Mr Le and Mr Perkins relocated to Cambodia. Those trips were to Bangkok, the United Kingdom, Europe, Beijing, Saigon, Kuala Lumpur, Shanghai, Tokyo, Taipei, Singapore, Rome, and the USA. There were also a number of trips back to Australia in that time.
As I understood Ms Gangemi’s submissions regarding the extensive travel, this evidence somehow suggested that Mr Perkins was comfortable operating in Southeast Asia and was likely to continue doing so despite his stated intentions to return to reside in Australia on a permanent basis. Once again, the evidence of travel does not necessarily support that contention. Without more, it is speculative.
I find that the evidence regarding the s. 21(2)(g) requirements supports Mr Le’s contention that he and Mr Perkins intend to return to Australia this month and take up permanent residence in Melbourne. Furthermore, even though it is unnecessary, I find the evidence supports the contention that even if Mr Le and Mr Perkins do not return immediately to reside in Australia, they will maintain a close and continuing association with Australia if Mr Le’s application for citizenship were approved.
Given my findings based on the evidence I have referred to above, I cannot agree with the Minister’s contentions that if Mr Le’s application were to be approved, he would not be likely to reside in Australia or to maintain a close and continuing association with Australia. I find that the evidence before me on the hearing of this matter upholds Mr Le’s contention that he is likely to reside in Australia were his application to be approved or that he will maintain a close and continuing association with Australia.
CONCLUSION
I have found that Mr Le satisfies the four preconditions in s. 22(9) for the exercise of the ministerial discretion to treat a period when he was overseas as a period in which he was present in Australia as a permanent resident. The period for which Mr Le requires the discretion to be exercised in order to meet the general residence requirement set out in
s. 22 of the Citizenship Act is between 7 June 2010 and 12 May 2013. Throughout this period, Mr Le was a permanent resident of Australia.There was no issue about the fact that Mr Le was the de facto partner of Mr Perkins, an Australian citizen, at the time he made his citizenship application and that continued to be the case while Mr Le accompanied Mr Perkins overseas. Mr Perkins was appointed by the Axiata Group, an international mobile telecommunications entity, to complete a merger. That required Mr Perkins to enter into a three-year contract with Axiata and to be based in Cambodia. Although his contract was extended on two occasions, the first for 12 months and the second extension taking his contract to 31 December 2013, it cannot be said that Mr Le and Mr Perkins intend to remain overseas indefinitely. In fact, Mr Perkins made it clear in his evidence that his work as the Chief Representative for the Axiata Group Myanmar Branch would end in June 2014.
In those circumstances, it is clear to me that Mr Le has been unable to meet the residence requirements for the grant of Australian citizenship because of his de facto relationship with Mr Perkins. It is, in my opinion, reasonable that Mr Le accompanied Mr Perkins while he was working overseas for Axiata. Accordingly, I find that the Minister’s discretion set out in s. 22(9) of the Citizenship Act should be exercised in this case such that the period I have referred to above be treated as a period when Mr Le was present in Australia as a permanent resident.
I have also found that Mr Le satisfies the eligibility criteria set out in s. 21(2)(g). The evidence in this case favours a finding that Mr Le is likely to reside in Australia were his application to be approved and, in any event, I have found that he is likely to maintain a close and continuing association with Australia were that not to be the case. This is so even if Mr Perkins takes up other Board positions with companies in Southeast Asia because I accept that while those positions may require Mr Perkins to travel overseas, those trips are likely to be of short duration. Furthermore, given the present availability of electronic communications including videoconferencing, it may be the case that much of such work can be completed by Mr Perkins remaining in Australia.
There was no issue about the fact that Mr Le satisfied the general eligibility requirements set out in s. 21(2)(a) and (b). He was not assessed against the requirements in s. 21(2) (d), (e), (f) and (h).
I find that the Minister’s decision made on 22 July 2013 was not the preferable decision regarding Mr Le’s application for Australian Citizenship. I set aside that decision and remit the matter to the Minister to determine Mr Le’s eligibility to become an Australian citizen taking into account I have found, in exercising the discretion provided for in
s. 22(9) of the Citizenship Act, that Mr Le satisfies the general residence requirement in s. 22(1); and that he also satisfies the eligibility criteria in s. 21(2)(g).
I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ...[sgd].....................................................................
Associate
Dated 18 June 2014
Date of hearing 1 May 2014 Counsel for the Applicant Mr C Horan Solicitors for the Applicant AJH Lawyers Advocate for the Respondent Ms M Gangemi Solicitors for the Respondent Australian Government Solicitor
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