Ji and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 887
•9 November 2016
Ji and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 887 (9 November 2016)
Division
GENERAL DIVISION
File Number
2016/1416
Re
Xuegen Ji
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 9 November 2016 Place Melbourne The Tribunal affirms the reviewable decision.
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Mr Conrad Ermert, Member
CITIZENSHIP - citizenship by conferral - exercise of ministerial discretion - residence requirement - whether applicant has a close and continuing association with Australia - decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Instructions, 1 July 2014
CASES
Re Bates and Minister for Immigration and Border Protection [2015] AATA 492
Lin v Minister for Immigration and Citizenship & Anor (2009) 176 FCR 371
Re Nguyen and Minister for Immigration and Border Protection [2014] AATA 945Re Ul Haque and Minister for Immigration and Citizenship (2013)139 ALD 376
REASONS FOR DECISION
Mr Conrad Ermert, Member
9 November 2016
INTRODUCTION
On 31 July 2014 Mr Xuegen Ji, the Applicant, lodged an application for Australian Citizenship by Conferral – General Eligibility (Electronic Lodgement). On 2 March 2016 a delegate for the Minister for Immigration and Border Protection, the Respondent, refused the application on the basis that the Applicant did not satisfy the residency requirements.
On 10 March 2016 Mr Ji sought a review of the decision to refuse his application.
HEARING
At the hearing, Ms Julia Lucas, of Counsel, represented Mr Ji. Mr Ji gave evidence under affirmation with the assistance of an interpreter. Mr Oliver Young, a solicitor in the employ of Sparke Helmore Lawyers, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and the Supplementary T-Documents (ST-documents).
For Mr Ji I took in as evidence the following:
·Exhibit A1 – Statement by Xuegen Ji dated 9 September 2016;
·Exhibit A2 – Movement records of Mr Ji between 31 July 2011 and 27 May 2014;
·Exhibit A3 – Statutory Declaration by Ms Tianyu Hei dated 10 September 2016;
·Exhibit A4 – Statutory Declaration by Ms Yi Yu dated 9 September 2016; and
·Exhibit A5 – Statutory Declaration by Ms Grace Xie dated 9 September 2016.
I took in for consideration the Applicant’s Statement of Facts, Issues and Contentions dated 12 September 2016.
For the Respondent I took in for consideration the Respondent’s Statement of Facts, Issues and Contentions dated 28 September 2016.
LEGISLATION
The legislation relevant to this matter is contained in the Australian Citizenship Act 2007 (Cth) (the Act). Policy on the application of the provisions of the Act is contained in the Australian Citizenship Instructions, (the Citizenship Instructions) published by the Department of Immigration and Border Protection.
Relevantly, section 21(2) of the Act provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) …
…
(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 issue for determination is whether Mr Ji satisfies the requirements of section 21(2)(g) of the Act.
EVIDENCE
Mr Ji described his current employment position as the International Marketing Manager for Fullshare (Australia) Management Pty Ltd (Fullshare). He described Fullshare as a family business.
Mr Ji said he arrived in Australia in 2008 and undertook studies at the Queensland Institute of Business and Technology and Griffith University. While undertaking his studies, he lived in a house with his cousin in Brisbane. During the breaks from his studies he travelled to resorts in the Gold Coast and Port Douglas which were managed by his father’s company. Mr Ji said he also travelled to Perth, Sydney and Melbourne “for business opportunities”. He travelled with the company’s General Manager, learning from him.
Mr Ji said his role with the company was: to bring clients from China and Singapore to Australia and encourage them to invest in properties; to promote the Fullshare image to the Chinese market; and organise exhibitions and conferences in China. He said he promotes Australia’s environment and healthy lifestyle.
After completing his studies in December 2013 Mr Ji moved to Melbourne to live; but continued to travel frequently to Queensland to spend time with his father’s business interests. He said he “rented a property for six months and then moved to his current address”.
Mr Ji is married and in October 2014 his wife gave birth to their baby daughter. Mr Ji’s mother-in-law came from China and stayed for a month to help with the baby. When the baby was about six months old, his wife and daughter moved back to China so they could receive help with the baby from their family. He said they intended to return to Australia so that their daughter could attend school in Melbourne.
When asked about his financial ties to Australia, Mr Ji said his family trust was in Australia, he held bank accounts here, he paid income tax in Australia, he had a mobile telephone account here, and his car is registered in Australia.
In cross-examination, Mr Ji said his wife and daughter moved back to China for support from her family as they do not have the experience and knowledge to look after the baby. When asked about looking after the baby on their intended return to Australia, Mr Ji said that by then it would be easier as they would know more. When asked if they intended to have more children, Mr Ji said he must work first. When he is travelling overseas, the family trust can arrange helpers for his wife.
Mr Young asked if Mr Ji would be spending a similar amount of time overseas in the future. Mr Ji said that his work involved marketing in South-East Asia as well as looking after Australian projects. When asked whether there were any plans regarding his future work in Australia, Mr Ji said there had been no discussions yet. He added, however, that his father would support his decision to come back to Australia.
In answer to questions from Mr Young, Mr Ji said:
·The rental costs for the Toorak property are $9,934 per month;
·His salary from Fullshare does not cover the rental; however, he draws money from the family trust when he needs it;
·He comes back to the Toorak property every two to three months for about one week at a time;
·When in Queensland, he stays in hotels, the project resorts or with friends;
·His car is still registered at his Queensland address; but he intends to change it to a Victorian registration when it expires.
SUBMISSIONS
Ms Lucas
Ms Lucas contends that the Tribunal needs to be satisfied only that Mr Ji is likely to maintain a continuing and close association with Australia. Ms Lucas contended that a close association does not need a physical presence in Australia, but requires a past and present connection with Australia.
In support of these contentions, Ms Lucas refers firstly to the decision in Lin v Minister for Immigration and Citizenship & Anor (2009) 176 FCR 371 in which, at 393, Joster J found:
“I am of the view that the association limb does not require that the applicant for citizenship maintain a personal presence in Australia.”
Ms Lucas refers also to the decision in Re Ul Haque and Minister for Immigration and Citizenship (2013) 139 ALD 376 in which Senior Member Britton, at 383 defines association as “the act of association … connection or combination”.
Ms Lucas further refers to the finding of Senior Member Handley in the decision of Re Nguyen and Minister for Immigration and Border Protection [2014] AATA 945 at [40] that:
“the words continue, maintain and continuing association suggest a degree of past and present, if not intimacy then at least a connection with Australia – the country, as opposed to some of its citizens – and probably, presence to some degree in Australia.”
Ms Lucas submits that Mr Ji’s connection with Australia is demonstrated by:
·His daughter being born in Australia and being an Australian citizen;
·He and his wife studying in Australia;
·There being a significant family association in Australia;
·His role in Fullshare being to promote Australia to investors in China and Singapore;
·The fact that he likes the Australian environment, its people and lifestyle;
·His receipt of a salary and payment of income tax in Australia;
·His family trust being in Australia;
·His maintenance of bank accounts, telephone accounts, a property lease and car registration in Australia; and
·His statement of an intention to come back to Australia with his wife and daughter for their daughter’s education.
Mr Young submits that Mr Ji has not provided clear practical plans regarding his stated intentions about his family and work.
Mr Young contends that for the Tribunal to be satisfied that Mr Ji is likely to reside or continue to continue to reside in Australia it needs to be satisfied that Mr Ji will reside in Australia soon after becoming a citizen. In support of this point Mr Young cites the decision of Member McCallum in Re Bates and Minister for Immigration and Border Protection [2015] AATA 492. Mr Young submits that the evidence is that the family will move to Australia at best in 12 months time. He submits that the issue of Mr Ji working in Australia is only in discussion with no plans yet made.
Mr Young refers to the Australian Citizenship Instructions which, at 5.7.2, list factors that may contribute to a close and continuing association with Australia. He makes the following comments on listed factors:
·Australian citizen children – Mr Ji’s daughter spent only six months in Australia before being taken back to China;
·Extended family in Australia – the only evidence of extended family in Australia is Mr Ji’s statement that his cousin now lives in Melbourne;
·Return visits to Australia – Mr Ji has taken numerous trips to China and return to Australia;
·Periods of residence in Australia – Mr Ji’s residence in Australia has been sporadic: prior to his visa application Mr Ji spent 41 out of 48 months out of Australia; since then he has spent 570 days out of approximately 800 days out of Australia to date;
·Intention to reside in Australia – Mr Ji’s evidence is that he intends to reside in Australia however these intentions have not yet been considered by his father as his employer;
·Employment in Australia – Mr Ji’s employment did not commence until after his application for citizenship;
·Ownership of property in Australia – Mr Ji owns no property in Australia having spent only sporadic periods in leased property;
·Evidence of income tax payment in Australia – evidence of Mr Ji’s income tax payments is in the T-documents.
Mr Young contends that Mr Ji has not shown enough to satisfy the close and continuing association with Australia.
In her reply to Mr Young, Ms Lucas contends that the Tribunal needs to be satisfied of only the one requirement of the Act, that being the close association with Australia. Furthermore, Ms Lucas contends that the Tribunal does not have to find in regard to the residence requirements.
In regard to Mr Ji’s future residence, Ms Lucas submits that his intention to move and live with his family in Australia is still 12 months away. She points out that the legislation only calls for residence if the application were to be approved.
TRIBUNAL CONSIDERATION
Subsection 21(2) of the Act, provides that a person is eligible to become and Australian citizen if the Minister is satisfied that the person, amongst other things, 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. Ms Lucas does not contend that Mr Ji satisfies the residence requirements. She contends only that Mr Ji is likely to maintain a close and continuing association with Australia if the application were to be approved. Ms Lucas submits that the association is demonstrated by Mr Ji’s:
·family association with Australia,
·employment association,
·financial association, and
·stated intention to return to Australia for the purposes of his daughter’s education and to return to the Australian lifestyle.
The evidence is that Mr Ji’s family associations in Australia are limited to his daughter, an Australian citizen by reason of her birth, and one cousin who resides in Melbourne. Shortly after her birth Mr Ji’s daughter was taken back to China to be looked after by her Chinese family. Apart from his cousin, Mr Ji has no other extended family in Australia or closely connected with Australia.
On balance, I do not accept that Mr Ji’s family association is indicative of a close and continuing association with Australia.
In regard to his employment, Mr Ji’s duties are to promote opportunities for investment in Australia to Chinese and Singaporean citizens. The connection is between the overseas investors and the company’s projects, which are currently located in Australia. There is no evidence that Mr Ji’s functions will not be transferred to any other country where the company may find commercial opportunities.
Mr Ji’s employment connection is with the family company. The family company’s connection with Australia is related to the current availability of investment opportunities. I do not accept that Mr Ji’s employment association is indicative of a close and continuing association with Australia.
Ms Lucas submitted that Mr Ji’s financial connections with Australia were evidenced by: his receipt of a salary and payment income tax in Australia his lease of property; his maintenance of bank and telephone accounts; and the registration of his car in Australia.
Mr Ji’s salary and income tax are a product of his current employment. His property lease, bank and telephone accounts and car registration appear to be for no more than the reasonable requirements of some level of residence in a country. These arrangements are temporary in nature and do not indicate a continuity of association beyond the needs of his current employment situation.
I do not accept that Mr Ji’s financial connections are indicative of a continuing association with Australia.
In his evidence, Mr Ji clearly stated his intention to return to Australia for the purposes of his daughter’s schooling. He added that he liked the Australian environment and way of life. However, there is no evidence of actions or decisions that would support such an intention. Mr Ji said only that he had been involved in discussions with his father in regard to spending more time in Australia for his daughter’s schooling. When asked about the possibility of more children, Mr Ji answered that his work came first. His answer indicates to me that decisions on his future residence in Australia involve a stronger consideration of the company’s needs than of his own intentions.
Absent some evidence to support Mr Ji’s stated intention to reside in Australia, I do not accept that Mr Ji’s intention constitutes a close and continuing association with Australia.
After considering all the evidence, I am not satisfied that Mr Ji is likely to maintain a close and continuing association with Australia.
As there is no argument that Mr Ji is likely to reside or continue to reside in Australia, I cannot be satisfied on this issue.
Consequently, I am not satisfied that Mr Ji satisfies the requirements of subsection 22(2)(g) of the Act.
As I am not satisfied that Mr Ji satisfies all the requirements of subsection 22(2) of the Act, I must affirm the decision under review that he is not eligible to become an Australian citizen.
DECISION
I affirm the decision under review.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert. Member
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Associate
Dated 9 November 2016
Date of hearing 5 October 2016 Counsel for the Applicant Ms Julie Lucas Solicitors for the Applicant James Tan Immigration Consultants Advocate for the Respondent Mr Oliver Young Solicitors for the Respondent Sparke Helmore
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