Jeremy Bay Wong and Minister for Immigration and Border Protection

[2015] AATA 847

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/0618
General Division  )

Re: Jeremy Bay Wong
Applicant

And: Minister for Immigration and Border Protection
Respondent

DIRECTION

TRIBUNAL:   Mr P W Taylor SC, Senior Member

DATE:            19 November 2015

PLACE:         Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. Where at paragraph 4 the decision reads

“But it would also be necessary to take into account the fact that the actual wording of the ACA 2007 s 22(9) discretion does condition its permissible exercise on any period of actual Australian residence”,

the decision shall now read

“But it would also be necessary to take into account the fact that the actual wording of the ACA 2007 s 22(9) discretion does not condition its permissible exercise on any period of actual Australian residence”.

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

Mr P W Taylor SC, Senior Member

Wong and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 847 (4 November 2015)

Division	General Division
File Number(s)	2015/0618
Re	Jeremy Bay Wong
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Mr P W Taylor SC, Senior Member
Date	4 November 2015
Place	Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

Catchwords

CITIZENSHIP – eligibility – general residence requirement not met – whether discretion should be exercised in applicants favour – whether applicant had a close and continuing association with Australia – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 22

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

4 November 2015

1. Mr Wong is a 43 year old Singaporean national who lives in Hong Kong.   A ministerial delegate refused his 7 October 2014 citizenship application.  The delegate’s principal findings were that Mr Wong (i) did not satisfy the general residence requirement in the Australian Citizenship Act 2007 (Cth) (“ACA 2007”) ss 21(2)(c) & 22(1), and (ii) was not entitled to have that requirement relaxed, by the exercise of the discretion conferred by ACA 2007 s 22(9).  Mr Wong wants the Tribunal to review that 16 January 2015 decision.

2. The “general residence requirement” in ACA 2007 s 21(2) ordinarily requires four years Australian residence, including the last 12 months as a permanent resident, immediately preceding their application:  see ACA s 22(1).  Mr Wong has lived in Hong Kong since early October 2009, and does not satisfy that residence requirement.  But his wife has been an Australia citizen since March 2003.  And he has had permanent residence status since February 2006 – originally as a result of being granted a “Skilled — Independent (Migrant) (Class BN)” subclass 136 visa).  On 15 December 2010 Mr Wong was granted a “Return (Residence) (Class BB), subclass 155 (five year return) visa.  He contends the statutory discretion in ACA 2007 s 22(9) should be exercised in his favour. 

3. The ACA 2007 s 22(9) discretion conditionally permits periods of absence by an Australian citizen’s permanent resident spouse (or de facto partner), to be treated as periods of qualifying Australian residence.  One of the relevant threshold conditions for the exercise of the discretion, and the one in contest in the present proceedings, is satisfaction that the spouse had a “close and continuing association” (ACA 2007 s 22 (9)(d) with Australia during the period of their absence.

   The “close and continuing association” discretion

4. The concept of “close and continuing association” involves an evaluative characterisation of a person’s circumstances and conduct in relation to Australia.  The existence of the “general residence requirement” clearly implies the importance, ordinarily, of a citizenship applicant being able to point to a significant period of recent physical presence in Australia.  In the exercise of the ACA 2007 s 22(9) discretion, with its emphasis on the extent and quality of a person’s association with Australia, it would be consistent with that implication to regard the fact and duration of a person’s Australian presence as a potentially important consideration.  But it would also be necessary to take into account the fact that the actual wording of the ACA 2007 s 22(9) discretion does condition its permissible exercise on any period of actual Australian residence.  The discretion could be exercised, in appropriate circumstances, to apply to the whole of a spouse’s overseas absence during any relevant period preceding their application.  

5. A guide to the proper exercise of the various powers contained in ACA 2007 is contained in the Australian Citizenship Instructions (“ACI”).  They are part of a system of departmental instructions that provide a policy exegesis intended to inform the consistent and principled administration of ACA 2007.  ACI Chapter 5 deals generally with the topic of “citizenship by conferral” (in contrast to citizenship entitlements that may arise from birth, adoption or descent).  ACI ss 5.7.2 and 5.18 deal with the concept of “close and continuing association with Australia”.  ACI s 5.7.2 lists ten matters that “may contribute” to the characterisation of a person’s relationship with Australia as “close and continuing”.  ACI s 5.18 includes those matters, and some others, in specifically addressing the considerations potentially relevant to the exercise of the discretion conferred by  ACA 2007 s 22(9).

6. An extract of the relevant content of ACI section 5.18 is set out below.  In that extract I have used the ü symbol to indicate the factors Mr Wong claims, both in his evidence and in the submissions advanced on his behalf, to have been able to satisfy at the date of his October 2014 application.

   … applicants must provide evidence that they maintained close and continuing association with Australia while overseas.  Factors that may demonstrate this close and continuing association with Australia include but are not limited to:

   üevidence that the person migrated to and established a home in Australia prior to the period overseas

   ·Australian citizen children

   ü   long term relationship with Australian citizen spouse or de facto partner

   ü   extended family in Australia

   ü   regular return visits to Australia

   ·regular periods of residence in Australia

   ü   intention to reside in Australia

   ·where the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

   ·ownership of property in Australia

   ·evidence of income tax paid in Australia over the past four years and

   üevidence of active participation in Australian community based activities or organisations

   In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d), it is policy that more weight should be given to the above factors 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 if they have not been present in Australian for at least this period.

7. Consistent with the implication to which I referred in paragraph 4, the latter part of the extract from ACI s 5.18 places considerable, but not determinative, emphasis on the fact, and the extent, of Australian presence in the period before a person’s citizenship application.  This is evident in its comparative warning that “more weight” or “less weight” must be accorded to various factors, depending upon the length of the person’s Australian presence.  That emphasis, and the comparison it involved, was a matter of significance for the ministerial delegate in refusing Mr Wong’s application. 

8. The ministerial delegate accepted Mr Wong’s marital status, and that he had an extended family presence in Australia.  But the delegate dismissed as insubstantial, other matters on which Mr Wong relied.  The delegate considered those matters were not probative of a close connection with Australia.  In so doing, the ministerial delegate referred to “the discretionary benchmark of 365 days” in the ACI policy.  The delegate considered that this “benchmark” required “less weight” be given to factors indicating a relevant association where the person had a limited period of actual Australian residence.  The delegate ultimately concluded that Mr Wong had “simply … not spent enough time in Australia in the relevant four year period to justify the use of the Ministerial discretion”.

9. The ministerial delegate’s dissatisfaction that Mr Wong had a “close and continuing association with Australia” in the relevant period prior to his citizenship application (based on Mr Wong’s limited recent presence in Australia, and his current domestic arrangements in Hong Kong) led to a similar finding in relation to Mr Wong’s likely future conduct.  The ministerial delegate was not satisfied that Mr Wong would either maintain such a future relationship with, or reside in, Australia.  This dissatisfaction provided a further reason for rejecting Mr Wong’s citizenship application:  see ACA 2007 s 21(2)(g).

   Mr Wong’s Australian presence

10. In a letter accompanying his October 2014 application Mr Wong referred only to his arrival in Australia in 2006 and claimed that he then “stayed short of a few months to fulfil the then 2 years residence requirement”.  (This was one aspect of the general residence requirement under the Australia Citizenship Act 1948 (Cth).)  The former statement reveals only part of the relevant information.  The latter statement, with Mr Wong’s recollection of the length of time he stayed in Australia in 2006, is simply incorrect.  The broad details of Mr Wong’s past presence in Australia are summarised in the following Table.  The Table includes details of his actual visa status, some particulars relating to his wife’s citizenship status, and details of his Australian travel after the October 2014 citizenship application.

11. As the Table information shows, Mr Wong spent little time (only about 46 days) in Australia in the four years preceding his citizenship application.  In the immediately preceding 12 months, he visited only once, for an 8 day period at Christmas time in 2013.  Other notable features of the information summarised in the Table include the following.

    (a)Mr Wong’s connection with Australia began almost 20 years ago, when he studied in Sydney, and lived in shared accommodation in the Haymarket area.

    (b)He did not return to Australia, for any significant period, until March 2008.

    (c)From March 2008 to September 2009 Mr Wong lived and worked in Melbourne for a total (but broken) period of just over a year.

    (d)Mr and Mrs Wong did not formally marry until October 2012, but probably began their domestic partner relationship by early October 2009, at the latest.

    (e)Neither Mr nor Mrs Wong had lived in Australia since September 2009.

    (f)Between October 2010 and October 2014 Mr Wong had made five visits to Australia.  All of those visits were short.  Only one visit was for much more than a week. 

    Mr Wong’s Association claims

12. The ministerial delegate did accept that Mr Wong had a close and continuing association with his Australian citizen spouse.  The delegate also appears to have accepted, although I think somewhat uncritically and not entirely consistently, that Mr Wong had a close and continuing association with his Australian resident extended family.  But the delegate thought that Mr Wong in fact satisfied few of the factors listed in ACI s 5.18.  The delegate noted that Mr Wong had provided some evidence of Australian bank statements, insurance and business registration.  The totality of the information did not, however, satisfy the delegate that Mr Wong’s association with Australia was relevantly “close and continuing”.

13. In his October 2014 application, and in submissions in the present proceedings, Mr Wong advanced a number of matters to justify the exercise the ACA 2007 s 22(9) discretion.  These were as follows.

    (a)Various asserted financial and commercial associations with Australia.

    (b)His permanent resident status, and presence in Melbourne for large parts of 2008 and 2009.

    (c)Mrs Wong’s Australian citizenship, their extended family in Australia, and their various holiday visits to Australia.

    (d)Mr and Mrs Wong’s involvement in a Hong Kong business that provides services to overseas students interested in studying in Australia and conducts an English language school using an Australian curriculum and texts.

    (e)Mrs Wong’s enrolment in a master’s degree course at the University of Tasmania, and her commitment to undertaking the practical component of that course on the Gold Coast from October to December 2014.

    (f)A contention that he left Australia, and continues to reside in Hong Kong, only because of his (and Mrs Wong’s) commitment to look after her elderly parents.

    (g)Mr and Mrs Wong’s joint intention to reside in Australia, and the claim that on most of their visits they have been looking for a residence to purchase.

    Financial and commercial associations

14. Mr Wong’s financial and commercial associations with Australia are minimal.  When he worked in Melbourne in 2008 and 2009 he had his wages paid into a bank account.  He has kept the account, and used it during his occasional visits to Australia.  The account balance has fluctuated over time and, in any event, is not large.  Mr Wong estimated that the account balance has typically only been, at best, a couple of thousand dollars.

15. Mr and Mrs Wong hold other Australian joint bank accounts.  There is a joint online savings account with the Commonwealth Bank of Australia.  Its credit balance as at March 2012 was $48, and only $160.59 as at 23 September 2014.  The only evidence of account transactions related to the period between 24 June & 23 September 2014.  Those transactions were merely the debiting of account fees.  Mr and Mrs Wong’s Citibank Australia joint account had a nil balance as at January 2012, and $450 as at May 2012.  Another Citibank Australia joint account had a $24,428.20 credit balance as at 30 September 2014.  This included a $20,000 deposit on 9 September 2014.  There was no evidence revealing the history and extent of other account transactions.

16. This limited information provides no substantial evidence of any close and continuing association with Australia.  Neither does the fact of Mr and Mrs Wong’s respective membership of the automobile organisations NRMA and RACQ.  Neither of them owns cars in Australia.  Mrs Wong’s evidence suggested that she has maintained her NRMA membership because of her ultimate desire to return to live in Australia, and a belief that she will somehow be advantaged by being able to point to a long period of membership of the association.  But neither the fact of her membership nor her reasons for maintaining it, are relevantly probative of Mr Wong’s close and continuing association with Australia.  The same proposition applies in determining the significance of Mr Wong’s RACQ membership.

17. During their very short December 2010 visit to Australia, Mr and Mrs Wong registered an Australian business name “Miniopoliz” with a postal and business address in the Gold Coast area in Queensland.  Miniopoliz was the name of a Hong Kong incorporated company of which Mrs Wong had been the sole owner (and I would infer, shareholder and director).  It conducted the Hong Kong business referred to in paragraph 13(d) above.  Mr Wong said that this registration occurred because they had in mind to expand the Hong Kong business and set up operations in Australia.  This suggestion was not fully consistent with Mrs Wong’s somewhat different explanation.  She said the registration had been for the purpose of facilitating the purchase of supplies and resource materials in Australia, for use in connection with the Miniopoliz business in Hong Kong.  Mrs Wong also explained that, apart from purchasing supplies in Australia, Miniopoliz had never conducted any activities in Australia.

18. Mr and Mrs Wong are apparently also members of an Australian organisation with the name “Professional International Education Resources” (“PIER”).  This is an organisation for people involved in recruiting overseas students and preparing them for studies in Australia.  PIER membership provides online access to information and resources for Australian educational courses.  It also provides a listing or referral source, for overseas students, identifying appropriate teaching and training organisations.  Mrs Wong explained that although PIER offered some kind of accreditation, neither she or her husband had undertaken the relevant qualifying course.  She had not done anything more than pay for their membership, for the purpose of deriving the online access and identification that PIER membership provided.  Her evidence suggested that their PIER membership was primarily intended to serve as a means of advertising the services offered by “Miniopoliz” in Hong Kong. 

    The Hong Kong business

19. Mrs Wong described Miniopoliz as operating an educational resources centre.  She had started the business from scratch in about 2010 and was its sole owner.  But she did not personally conduct the business.  That was done by a manager and one or two full time teachers.  Mrs Wong said that her only involvement in the day to day operation of the business was occasional, when a regular staff member was sick or otherwise unavailable.  She said that Mr Wong (contrary to some of the details included in the September 2014 letter accompanying his application) was only involved in occasional administrative support roles.

20. In the early days of its operation neither Mr Wong nor Mrs Wong had received a salary from the business.  In more recent years she had started to be paid a salary.  But the practical reality was that the business had never really operated profitably.  She had in fact sold it in about mid 2014 – apparently some months before (although not referred to in) Mr Wong’s October 2014 application.   Mrs Wong said she could have continued to operate the business, and she could perhaps have increased its value, with further personal effort and financial support from her parents.  But she said she was not prepared to make that personal commitment.  An example of that lack of personal commitment was the fact that she had not completed the PIER accreditation course – to which I alluded in paragraph 10.  Mrs Wong expected that obtaining accreditation would have been likely to benefit Miniopoliz.  But she felt she did not have the time to devote to undertake and complete the accreditation course.  And although she described her parents as wealthy, she did not want to just keep taking money from them to support a venture to which she felt unable to commit herself fully.

21. Mrs Wong’s evidence gives a quite different picture, from that suggested in Mr Wong’s September 2014 letter, of the nature and significance of the Hong Kong business, and of the Wongs’ personal involvement in its operation.  Given the information provided by Mrs Wong, including the sale of the business in 2014, I am not satisfied that it contributes anything of significance to the assessment of the nature and extent of Mr Wong’s association with Australia.

    Permanent resident status & residence in 2008 and 2009

22. After completing his media course in Sydney in 1996 Mr Wong returned to Singapore.  He continued to live and work there for the next twelve years, until early 2008.  In the intervening 12 year period Mr Wong made only three visits to Australia (in 2002, 2004 and 2006).  Each visit was only short.  None was for much more than a fortnight.  Within the same twelve year period Mr Wong made occasional holiday trips to Hong Kong.  He had no business or work interests there but those trips were presumably rather more frequent than his visits to Australia – especially after (the future) Mrs Wong moved to Hong Kong in 2003.

1. However in early 2008, a little more than two years after obtaining his class BN (Skilled – Independent (Migrant) permanent residence visa, Mr Wong moved to Melbourne.  There he began working, as a casual employee, for a media company involved in public exhibition projects.  He lived at Glen Iris, in a unit rented by one of his friends.  Mr Wong said that he had intended this to be a permanent move to Australia.  But it was interrupted by a five month return to Singapore.  Mr Wong said his return to Singapore in mid 2008 was prompted by his mother’s health problems.  (He said she developed kidney disease and required dialysis.)  In any event, he returned to Melbourne in early October 2008.  There he continued on working for the media company, and sharing the accommodation at the Glen Iris unit.

2. Mr Wong’s evidence that he had intended his 2008 move to Australia would be permanent is arguably corroborated by the facts that he held a migrant visa and, on 25 August 2009, successfully undertook the Australian Citizenship Test.  However, the argument is somewhat undermined by both the paucity of the evidence of his circumstances at the time and, more significantly, by the fact that within three weeks he had left Australia and gone to Hong Kong.  There he lived with (the future) Mrs Wong and her parents.  He said that this was in an endeavour to help her with her parents care, and that he intended to return to live in Australia.  But he has never acted on that intention.  As the Table in paragraph 10 indicates, Mr Wong’s visits to Australia between September 2009 and October 2014 were infrequent, few, and typically very short. 

   Australian family relationships

3. After his 1996 return from Australia, and until early 2008, Mr Wong lived with his parents in Singapore.  They are still alive, and still live in Singapore.  Mr Wong also has two siblings, both of whom also live in Singapore.  Mr Wong’s sister is not married.  She lives with their parents, and looks after them.  His brother also lives in Singapore. 

4. Mr Wong’s parents’ and siblings’ residence in Singapore tends, taken on its own, to detract from satisfaction that he has a close and continuing association with Australia.  It contributes to an appreciation of Mrs Wong’s Australian citizenship as a potentially important consideration in assessing the nature and extent of his association with Australia.  But that consideration requires more information than the bare fact of Mrs Wong’s citizenship status. 

5. Mrs Wong was born in Canada.  Her parents moved shortly afterwards to Hong Kong, where she was raised and completed her early schooling.  In about 1993 she was sent to school in Australia.  She completed her secondary schooling in Australia, remained living here for about 10 or 11 years.  In 2003 she obtained her Australian citizenship.  Soon afterwards, however, she returned to live with her parents in Hong Kong.  In the time since then, and particularly in the 11 or so years before Mr Wong’s October 2014 citizenship application, she has continued to live with her parents in Hong Kong.    Like Mr Wong, her visits to Australia in the four years immediately preceding his citizenship application were limited to occasional, and comparatively, brief holiday visits.

6. It is against this background, of Mr and Mrs Wong’s long absence from Australia, and continued residence in Hong Kong with her parents, that consideration must be given to the nature and extent of Mr Wong’s familial connections in Australia.  The written submissions provided to support Mr Wong’s review application included a table setting out details of extended family members, mainly relatives of Mrs Wong, who live in Australia.  These family members included

   (a)approximately 5 aunts or cousins who live in Perth.

   (b)a cousin who lives with her family in Melbourne.

   (c)a cousin who lives with his family in Canberra.

   (d)three families, comprising perhaps at least 14 aunts and cousins, who lived at Darling Harbour, Chatswood and Lane Cove, in Sydney

   (e)two other families about whose Sydney address Mr Wong was unsure.

7. Apart from the bare listing of the names, relationship and capital city location of these various relatives, Mr and Mrs Wong gave evidence that they have visited at least some of the Sydney relatives on their five visits between 2010 and 2014.  They produced one photograph of a family outing at Darling Harbour that they attended in January 2012.  In addition, Mrs Wong gave evidence that she purchased text books for her Hong Kong business from some of the Sydney relatives who conducted a book store business.

8. However, neither Mr nor Mrs Wong gave any significant additional or detailed evidence to substantiate the nature and extent of his actual relationship, and interaction with, these various members of their extended family.  In addition to the general paucity of the evidence Mr Wong admitted that he had never visited either Perth or Canberra, and the relatives who lived there.   Furthermore, few (if any) of the family members resident in Sydney appear to have visited Mr and Mrs Wong in Hong Kong. 

9. The paucity of Mr and Mrs Wong’s evidence about the nature and extent of their relationship with the members of their extended family in Australia appears to gain some additional significance from their evidence about ineffective attempts they have made to acquire an appropriate Australian residence.  Mr Wong emphasised that their property searching had been hampered by the fact that they had not really formed any definite view about where (ie in which Australian State or city) they wanted to live.  That indecision tends to point against the likelihood that he has any close and continuing relationship with his Australian resident relations.  In addition, the only place where Mr and Mrs Wong appear to have actually done anything specific about attempting to acquire a property was on the Gold Coast in Queensland.  Only one family amongst their extended relations lives in Queensland.  But that family lives in Mackay.  Mackay is over a thousand kilometres away from the Gold Coast. 

   Intention to reside in Australia

10. Although Mr Wong, and Mrs Wong, were insistent in stating that they wanted to live in Australia, their actual conduct requires that intention to be characterised as no more than aspirational – at least in the relevant period preceding his October 2014 citizenship application   Mr Wong said that during their few trips to Australia since 2010 he and his wife had constantly been looking for a residence to purchase.  In particular he pointed to unsuccessful purchase offers he and Mrs Wong had made (in December 2010 and in November 2014) to purchase two properties in the Gold Coast area in Queensland.  Mr Wong claimed that there were other occasions when he had made offers to buy, or expressed interest in buying, other residential properties.  But he provided no specific evidence to detail those occasions.

11. This evidence of Mr and Mrs Wong’s desire to purchase a residence in Australia was insubstantial and unpersuasive.  Its apparently limited significance was highlighted by the four year gap between the two offer documents, the absence of any other specific evidence, and by other more general evidence given by both Mr Wong and Mrs Wong. 

12. Mr Wong said that he and his wife’s attempts to purchase a property had been thwarted largely because they had not really decided where in Australia they would prefer to live.  He said he and his wife had expressed differing opinions.  Also, despite claiming that he had been looking to purchase a property to be used exclusively as their own personal residence, he acknowledged that their ability to return to Australia was really dependent on the willingness of either Mrs Wong, or her parents, to leave Hong Kong.  That willingness was unlikely, in the case of Mrs Wong’s parents, because they were elderly, unwell and appeared to prefer the familiarity of Hong Kong.  In Mrs Wong’s case, her willingness to leave her parents in Hong Kong was quite uncertain.  The reasons for that uncertainty emerged from Mrs Wong’s evidence.

13. Mrs Wong said that she and her husband have always wanted to come back to Australia.  That desire and intention had acquired some additional poignancy since the very recent birth of their son.  They wanted him to grow up, and be educated, in Australia.  But she said that any actual decision to return to Australia was “on hold because of my parents”.  She said she and her husband just did not have any choice in the matter – because her father was “unwilling to let us go for long periods”.  She hoped that her father’s disinclination would change with time.  But the first requirement for change was to find someone else to care for him.  Mrs Wong thought that it would take some time before her father would accept such a change.  She and Mr Wong were unlikely to return permanently to Australia against her father’s wishes.  This was partly because of his poor health, and current dependence on them.  It was also partly because they were themselves dependent on him for financial support.  Mrs Wong said that her father was, in practical reality, paying them to look after him.  That payment was, in reality, their only substantial current source of income.  She apprehended that her father’s financial support was contingent on her continued residence with him in Hong Kong.

    Mrs Wong’s Master’s Degree course

14. In March 2003 Mrs Wong enrolled in an online postgraduate course (“Master of Teaching (Primary)”) at the University of Tasmania.  By March 2014 she had apparently completed 13 course units.  At the time of Mr Wong’s citizenship application she planned to undertake the professional experience component of that course on the Gold Coast from mid-October to November 2014.  And, as the details in the Table in paragraph 10 suggest, Mr and Mrs Wong came to Australia at that time, and she did undertake that part of her course.

15. I accept that Mrs Wong’s university course was something she undertook with a view to returning permanently to Australia.  I accept also that the course, and the intention which apparently underlies her commitment to it, is a relevant connection with Australia.  However, in the light of the other matters I have taken into account, it does not contribute significantly towards satisfaction that Mr Wong has a “close and continuing association with Australia”.

    Care obligations in Hong Kong & Singapore

16. In his 30 September 2014 submission to the Minister, Mr Wong’s evidence in these proceedings, and in the submissions made on his behalf, much was sought to be made of the ill health of Mrs Wong’s 79 year old father and, to a lesser extent, of both Mrs Wong’s 65 year old mother and Mr Wong’s mother.  The thrust of the submission was that Mr Wong only left Australia in 2009, and has only continued to reside in Hong Kong, because of a perceived need to look after Mrs Wong’s parents, and in particular her father.  He has a 10 year history of heart disease, impaired hearing and dementia.  A September 2014 report from the Penang Adventist Hospital, describes Mrs Wong’s father as requiring constant care and home nursing.

17. It was said that Mrs Wong is an only child and that, in Mr and Mrs Wong’s respective familial backgrounds, children are expected to care for their parents as long as they can.  Mr Wong fully supports Mrs Wong’s commitment to her parents, and is directly involved in their care.  Their shared responsibility for parental care was said to be the only reason for their prolonged absence from Australia.  This was characterised as the conduct of dutiful, responsible and respectful children.  The asserted altruism of their conduct was said to provide a significant reason favouring the exercise of the ACA 2007 s 22(9) discretion. 

18. I accept the general proposition that the reasons for a person’s absence from Australia must be taken into account in assessing the significance of that absence.  Those reasons may also colour the significance properly to be attached to other aspects of a person’s relationship with Australia.  But that general acceptance is of limited assistance in relation to the assessment of Mr Wong’s association with Australia.

19. Mr Wong’s mother has a kidney condition and, at least until she underwent a transplant operation in 2013, required regular dialysis.  Mr Wong explained that his mother’s deteriorating health, and his familial responsibility to support her, was the reason he left Melbourne in May 2008 and returned to Singapore for about five months.  But that limited period, Mr Wong’s subsequent return to Australia, and later move to Hog Kong, all combine to suggest the unlikelihood that Mr Wong has been significantly involved in his mother’s care since that time.  His two Singapore resident siblings, particularly his sister, provide the principal support for their parents. 

20. In relation to Mrs Wong’s parents the Respondent noted that another September 2014 report from the Penang Adventist hospital, which opined only that Mrs Wong’s mother should refrain from carrying weight (because of chronic shoulder and neck pain) did not demonstrate her need for residential care.  And in relation to Mrs Wong’s father, the Respondent questioned Mr Wong about the reason why his medical conditions were reported on by a Malaysian hospital, rather than from clinicians practising in Hong Kong.  Mr Wong’s explanation – that Mrs Wong’s parents owned a property in Penang, liked to visit Malaysia at least once a year, and preferred to have the Penang Adventist Hospital as their main health consultant – led the Respondent to doubt the extent to which Mr Wong’s past, and likely indefinite future, residence in Hong Kong was really, or wholly, a response to the medical and care needs of Mrs Wong’s parents.

21. It is neither possible nor, in my view, useful to attempt to determine the extent to which Mr Wong’s willingness to move to Hong Kong, and to continue to reside there, is primarily motived by (i) support for his wife, (ii) the care needs of her parents, or (iii) the financial support Mr and Mrs Wong receive from her parents.  Each of those matters is likely to have been important, and to continue to be important, in their decision making about where to live.  It is, I think, sufficient to say that the complexity of those factors, and their apparent effect in influencing Mr Wong to refrain from embarking on a definite course of conduct in relation to his Australian residence, does not meaningfully assist in the characterisation of his relationship “with Australia”.  If that relationship would not otherwise be characterised as “close and continuing” (and I find that it would not), Mr Wong’s suggested altruism and commitment in continuing to care for Mrs Wong’s parents in Hong Kong, and in delaying action to return to Australia, would not provide a sound basis for reaching a contrary conclusion.

    Conclusion

22. Both the Applicant and the Respondent canvassed in their submissions a number of prior decisions of this Tribunal, and of the Federal Court of Australia, relating to the exercise of the ACA 2007 s 22(9) discretion.  It is neither necessary nor appropriate to review those submissions.  Ultimately the parties appeared to differ only in relation to two points.  The Applicant submitted that his ability to satisfy at least some of the permissibly relevant considerations in ACI section 5.18 established his “close and continuing association with Australia”.  The Applicant also submitted that his commitment to caring for his and his wife’s parents provided “compelling and compassionate factors” motivating his absence from Australia.  The Respondent disputed that the ACI section 5.18 could be used as any kind of qualifying “check list”.  The Respondent also submitted that Mr Wong’s asserted compassionate motives tended to demonstrate his association with Hong Kong, rather than providing significant evidence of his association with Australia.  However, the parties competing submissions on these points were really directed at a level of generality.  I have instead considered each of the matters raised to support Mr Wong’s application.  I have also identified those aspects of the ACI section 5.18 factors which Mr Wong did not even claim to have satisfied.  Having taken all of those claims into account, I have reached a firm conclusion that Mr Wong has not demonstrated any factors that satisfy me his association with Australia, during his periods of absence in the four years preceding his application, was “close and continuing”.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 4 November 2015

Date(s) of hearing	16 October 2015
Solicitors for the Applicant	Northam & Associates
Solicitors for the Respondent	SPARKE HELMORE