Leong and Minister for Home Affairs (Citizenship)
[2019] AATA 3641
•18 September 2019
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 (18 September 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0509
Re:Man Sin Leong
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 September 2019
Place:Sydney
The decision under review is set aside and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of subclause 21(2)(g) of the Act.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP - application for citizenship by conferral - refusal of citizenship – whether applicant is likely to reside or continue to reside in Australia - whether applicant maintains a close and continuing association with Australia - application of Citizenship Policy - decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Al-Khalidi v Minister for Home Affairs [2019] AATA 700
BOY19 v Minister for Immigration and Border Protection [2019] FCA 57
Bulrice v Minister for Home Affairs [2019] AATA 1871
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Ho v Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664
Home Affairs v G [2019] FCAFC 79
Hutchinson v Comcare [2019] FCA 1440
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Lin v Minister for Immigration and Citizenship [2009] 176 FCR 371
McCoy v Minister for Immigration and Border Protection [2014] AATA 771
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Rasiah and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 630
Re Drake and minister for Immigration and Ethnic Affairs (No. 2) [1979] 2 ALD
Shi v Migration Agents Registration Authority [2008] HCA 31
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
SECONDARY MATERIALS
Citizenship Policy (effective 1 June 2016)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 September 2019
Ms Man Sin Leong (the Applicant) seeks a review of a decision made by the Delegate of the Minister (the Respondent) to refuse her application for citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (the Act).
BACKGROUND
The Applicant was born in November 1988 in Macau which is a Special Administrative Region of the People’s Republic of China.[1]
[1] Section 37 Tribunal Documents at [31].
She first arrived in Australia in August 2005. On 18 November 2014 she was granted a Subclass AH-101 (Permanent) visa.
On 10 April 2017 the Applicant lodged an application for citizenship by conferral but while that application was on foot she departed from Australia on 4 July 2017 and did not return until 8 October 2018.
During that period of absence the Department sought further information from the Applicant, specifically seeking details of her intended date of return. The Applicant advised that she intended to return on 8 October 2018, which she did. However she then departed again on 13 October 2018 and again remained outside the country until 21 April 2019.
On 11 October 2018 the Department again sought further information from the Applicant about her intentions to reside in Australia on a permanent basis. The Applicant responded to these enquiries on 12 October 2018 advising that “we are coming back to Australia for good by end of the year (2018)”.[2] The Applicant did not return until 21 April 2019. She then departed again on 30 June 2019, returning on 2 September 2019.
[2] Ibid at [85] referring to herself and her mother.
On 3 January 2019 the Minister’s Delegate refused the application in question on the basis of not being satisfied that the Applicant was likely to reside in Australia or maintain a close and continuing association with Australia under section 21(2)(g) of the Act.
The Applicant sought a review of that decision on 30 January 2019 and the matter was heard by the Tribunal on 12 September 2019.
LEGISLATIVE FRAMEWORK
Applications for citizenship by conferral are made under section 21 of the Act which provides, that after making the application a person is eligible for citizenship if they meet all the requirements set out in section 21(2) which is as follows:
General eligibility
(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
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; 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
(h) is of good character at the time of the Minister's decision on the application.
Each of the 8 requirements must be met to qualify for citizenship. Subsections (d), (e) and (f) are met when an Applicant successfully completes the Citizenship Test as mandated in other sections of the Act.
When the Delegate assessed Ms Leong’s application he found that she met the requirements of subsections (a) to (f) inclusive. However the Delegate found that she did not meet the requirement of subsection 21(2)(g) and, having made that finding did not proceed to consider subsection 21(2)(h).[3]
[3] Ibid at [23]-[25].
Furthermore the Delegate noted the provision of subsection 24(5) that “the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.”
As of 3 January 2019 the Applicant was not present in Australia and hence this provision of the legislation applied in her case. Although section 24(5) contains certain possible exemptions from this requirement, none of them applied to the Applicant at the time (or indeed at any time).[4]
[4] See sections 22A and 22B of the Act.
The question to be addressed by the Tribunal is whether or not it is satisfied that the Applicant meets the requirement of section 21(2)(g) of the Act, and if so, what determination or orders it should make as a consequence.
DECISION DATE
It is necessary to deal first with the refusal of the application under the provisions of section 24(5) of the Act which provides that citizenship by conferral cannot be granted unless the applicant is resident in Australia at the time of the decision being made (with certain exemptions, none of which apply in this case).
There is no doubt that, at the time of the original decision, the Applicant was disqualified by this provision.
However as of 2 September 2019, the Applicant is resident in Australia. This engages the obligation imposed on the Tribunal to make its decision on the basis of the information which is before it at the time of its decision-making, regardless of what might have been the case for the original decision-maker.
In a recent decision, the Federal Court set out the position of the Tribunal in the following terms:
[3] In cases like the present, the Tribunal is entrusted with a statutory jurisdiction to exercise all the powers and discretions conferred on the original decision‑maker: s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The High Court considered the nature of that jurisdiction in its recent decision in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [51].
[4] When acting under s 43 of the AAT Act, the Tribunal exercises the same statutory power as was exercised by the original decision‑maker. Its task is not to consider whether there was specific error in the reasoning or approach of the original decision‑maker or to undertake the exercise of a different decision making power (even if it might have been undertaken by the original decision‑maker). Rather, the Tribunal makes its own decision in the exercise of the same power exercised by the original decision‑maker. It is in this sense that the Tribunal stands in the shoes of the original decision‑maker. It undertakes a fresh exercise of the same power. In doing so, it is not confined to the material that was before the original decision‑maker. Rather, the Tribunal makes its decision on the basis of the material presented to the Tribunal and does so as at the time the matter is considered by the Tribunal. It undertakes anew the same statutory task through fresh eyes aided by the Tribunal's own process and procedures.[5]
[5] Hutchinson v Comcare [2019] FCA 1440 per Colvin J.
This follows the clear exposition of this position by the High Court which has stated:
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[6]
[6] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
The Tribunal, unlike the original decision-maker is thus not constrained by the provisions of section 24(5) in making its own, de novo, decision on the application.
Section 21(2)(g), the section contains two distinct elements to be considered
·Whether the applicant is likely to reside, or to continue to reside in Australia, or
·Whether the applicant is likely to maintain a close and continuing association with Australia.
The conjunctive word in the section is “or”. It is sufficient that one of the two elements is satisfied.
DOES THE APPLICANT INTEND TO RESIDE IN AUSTRALIA?
The Respondent questions the Applicant’s intention to reside in Australia based upon her frequent and lengthy absences from the country. These are outlined in the Respondent’s submissions[7] as follows:
Relevantly, the applicant departed Australia:
17.1 On 3 separate occasions in 2012, which included a 5 month period outside Australia from 20 November 2012 to 6 April 2013
17.2 On 2 separate occasions in 2013, which included a 3 month period outside Australia from 26 May 2013 to 31 August 2013
17.3 On 3 separate occasions in 2014
17.4 On 1 occasion in 2015
17.5 On 1 occasion in 2016
17.6 On 4 occasions in 2017, which included a 15 month period outside Australia from 4 July 2017 to 8 October 2018
18. On 13 October 2018, 5 days after arrival, the applicant again departed Australia. The applicant returned 6 months later on 21 April 2019. As per the most recent Movement Records, the applicant departed Australia again on 30 June 2019 and has not returned since.
[7] Respondent’s statement of Facts, Issues and Contentions at [17].
As noted above, the Applicant has subsequently returned to Australia (2 September 2019) and claims that she has no intention to travel for at least two years.
In response to the Respondent’s statements, the Applicant submitted a graph showing her time resident in Australia.[8] Transposed into a table it shows her periods of residence in Australia:
[8] Tribunal Evidence at A1.
2005
151 days*
2010
364 days
2015
335 days
2006
364 days
2011
364 days
2016
327 days
2007
349 days
2012
295 days
2017
112 days
2008
365 days
2013
167 days
2018
5 days
2009
347 days
2014
346 days
2019
73 days
*of a total of 151 days since arrival on 2 August 2005.
In her accompanying statement, she writes:
I started living in Australia since I was 17, I came to Australia on 02 AUG 2005. I got my PR on 18 NOV 2014.
In March 2015, our dad was diagnosed with stage 3 lung cancer in Macau, stage 4 is the end stage.
Mum started to have depression, she received psychological treatment since NOV 2015.
In February 2017, dad passed away, we all flew back to Macau for the funeral, mum’s health deteriorated, she could not care for herself and attempted suicides for more than 5 times, with 3 times ambulance attentions.
Mum did not want to leave “dad”, she did not want come back to Australia with us, until today she still would not tell people that her husband has passed away, she tells people her husband still alive but just left her for another woman instead, but dad has in fact passed away.
After dad’s funeral, mum’s mental condition has gone way worse, she lost her ability to live, it affected her personal hygiene. This was the reason I had go back to care for her as a female.
I cared for mum since dad passed away in Feb 2017 for 2 years, mum’s PR expired 23 Jul 2018. Mum rehabilitated gradually with my care.
In Dec 2018 I was supposed to come back to Australia, I was unwell and I went for a medical check up, I was 10 week pregnant, since pregnant I felt very unwell and I gave up my travel plan.
Once my pregnancy stabilised, I helped mum to lodge her resident return visa on 17 Apr 2019, we thought it would be granted within 2 days (it usually does) but it did not, I left mum, I flew one way (Qantas QF118) back to Australia for good, we thought mum could catch up in a few days.
In June 2019, mum’s return visa was still not granted, almost 3 months after lodged, mum started to become very anxious again, alone in Macau. I knew that her visa should have had been granted soon, therefore I flew back to get her and by the way to bring some baby stuffs that I have left behind.
But mum’s return visa was not granted until 09 Jul 2019, by the time, I was not longer allowed to fly on any commercial flight.
I could not come back to Australia, on 13 Aug 2019, our daughter Lia was born in Macau, with all my best I could, I managed to get Lia’s birth certificate in 8 days, Lia’s passport in 6 days and Lia’s Austrian (sic) visa in 2 days and; we and mum departed for Australia on the day after which was 01 Sep 2019 (all one way ticket Virgin Australia VA82). We now all live in Australia for good with no plan to travel for at least 2 years.
The details of the Applicant’s period of residence in Australia since 2005 show a consistency up until 2016 of being, effectively, a full-time resident. From 2017 her periods of time outside Australia seem, to the Tribunal, explained fully by her commitment to provide care for her mother in Macau and she is now back residing in Australia and her mother is with her. There are no reasons not to accept her assurances of her intention for continued residence in this country.
The Applicant has provided a medical certificate from the public health authorities in Macau attesting to the diagnosis and treatment of the Applicant’s mother at a Macau health facility since 23 November 2015.[9]
[9] Applicant’s Evidence at A2.
The Tribunal is satisfied that the first limb of s 21(2)(g) is satisfied by the Applicant.
It would be sufficient, given the fact that an Applicant has to satisfy only one of the two criteria in section 21(2)(g) – in this case a likelihood of residence in Australia – for the Tribunal not to feels itself bound to consider the other criteria – a close and continuing association.
However for the sake of completeness it will do so.
CITIZENSHIP POLICY GUIDANCE
The Respondent drew attention to the provisions in the Australian Citizenship Policy.
The Minister has promulgated a Citizenship Policy (effective 1 June 2016) the role of which is:
“to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”[10]
[10] Citizenship Policy (1 June 2016) at [1].
The Tribunal notes that prior to the introduction of the Policy as from 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs), That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read: “Decision makers should be mindful that policy must not be applied inflexibly.”
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Citizenship Policy had superseded the ACIs, stated:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”[11]
[11] Home Affairs v G [2019] FCAFC 79 at [18].
The same caveat applies to the Citizenship Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act 1958 where legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are binding upon such decision-makers.
The Respondent urges the Tribunal to take primary notice of the set of criteria laid out in the Citizenship Policy which lists various tests to establish the presence or otherwise of a close and continuing association with Australia. It does so on the basis that the authority in Drake[12] is to the effect that any decision-maker (including this Tribunal) is obliged to give due regard and significant weight to policy instructions such as these.
[12] Re Drake and minister for Immigration and Ethnic Affairs (No. 2) [1979] 2 ALD 634 at [640].
However a Policy is just that – policy. It is not law although it rightly commends great respect from decision-makers. In Gboujeh, the Federal Court stated:[13]
(39) At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly. In Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 506-7 Hely J summarised the position as follows:
“The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will ‘normally’ be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”
[13] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883.
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[14]
[14] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [23].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[15]
[15] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
In relation to both the Policy and the Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
“I do not accept the Australian Citizenship Instructions[16] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[17]
The Policy itself states clearly: “Policy cannot constrain the exercise of delegated powers under the Act or the Regulations”[18] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the facts pertinent to each individual case.
As stated above, this application turns upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement. There are two elements in this, the length of time which is a matter of fact and the degree to which he has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haq that “Whether or not [the applicant] has a “close and continuing association” … is a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions.”[19]
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
[16] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[17] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
[18] Citizenship Policy (1 June 2016) at page [1].
[19] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
The relevant parts of the Citizenship Policy appear on pages 70 and 71 of that document and, in relation to tests of a “close and continuing association with Australia” they refer to evidence about:
1)Australian citizen spouse or de facto partner
2)Australian citizen children
3)Length of relationship with Australian citizen spouse or de facto partner
4)Extended family in Australia
5)Return visits to Australia
6)Periods of residence in Australia
7)Intention to reside in Australia
8)Employment in Australia
9)Ownership of property in Australia
10)Evidence of income tax payment in Australia.
The Tribunal has already considered items (5),(6) and (7) and does not need to repeat anything in that regard.
The Respondent states that there is no evidence that the Applicant has ever been employed[20] in Australia nor that she has ever paid income tax in Australia (items (8) and (10)). However this does not appear to be entirely correct. In evidence at the hearing the Tribunal was told that the Applicant had worked both prior to her period of university study and occasionally thereafter in casual jobs at K-mart and Pancakes on the Rocks. The Applicant tendered taxation Notices of assessment for 2016/17 and 2017/18.[21] The Tribunal was told that other tax assessments from earlier years were available if required.
[20] Respondent’s Statement of Facts, Issues and Contentions at [35].
[21] Applicant’s Evidence at A3.
In relation to items (1) and (3): having an Australian citizen spouse or partner: the Tribunal has evidence before it in the form of a Statutory Declaration from Mr Tony Huynh that he has been in a de facto relationship with the Applicant for a period of nearly four years (since December 2015)[22]. Mr Huynh is an Australian citizen.[23] His statement is supported by Statutory Declarations (in identical terms) from both of his Australian citizen parents[24] and is confirmed by the Applicant’s sister and a personal friend.[25]
[22] Section 37 tribunal Documents at [9].
[23] Ibid at [10].
[24] Ibid at [11] and [3] respectively.
[25] Ibid at [15] and [17] respectively.
The Respondent draws attention to the fact that this relationship is not mentioned in the Applicant’s response to departmental enquiries for further information[26] in her statement of 12 October 2018,[27] however the Tribunal sees no reason as at not to accept the existence of this qualifying relationship. In her written submission to the Tribunal the Applicant stated:
“… my relationship with my partner was not disclosed, not because it was not genuine, it was because my parents did not approve it (personal reason cited) and because of that I and my parents fought a lot. We did not want bring (sic) it up over and over again so we just left it the way it has been – ‘not talk about it’ / very hidden.”[28]
[26] Respondent’s statement of Facts, Issues and Contentions at [28].
[27] Section 37 Tribunal Documents at [85].
[28] Applicant’s Evidence at A2.
In relation to item (2): Australian citizen children: the Applicant has provided details of the birth of her child Lisa in August 2019.[29] The birth certificate shows Tony Huynh to be registered as father of the child. In her written submission the Applicant has explained why she did not make an immediate application for her child to be granted citizenship by descent. These reasons were connected to her state of health after the delivery of her child and the need to travel physically to Hong Kong with the child to make the application. Understandably, given the current situation in Hong Kong, the Applicant was reluctant to do so. Instead she obtained an on-line visitor visa for the child. There is evidence, by way of a letter from the Department of Home Affairs that such an application for grant of citizenship had been received (on 1 September 2019) and is in the process of being considered.[30]
In relation to item (9); ownership of property in Australia: there is evidence before the Tribunal to the effect that on 21 June 2019 the Applicant completed the purchase of a property in Ermington, New South Wales.[31]
[29] Birth Certificate issued by Macau Civil registry Office. Applicant’s Evidence at A2.
[30] Ibid.
[31] Applicant’s Evidence – notification of completed purchase dated 21 June 2019.
In relation to item (4): extended family in Australia: The Applicant states that she has two elder brothers and a younger sister who are all Australian citizens. She and her mother hold permanent resident status. From evidence given at the hearing it appears that the Applicant’s brother and his wife and two children live in Oatley (NSW) and that her mother now also resides there. Her younger sister also lives separately in Oatley. Her other elder brother apparently travels extensively between Australia and China and apparently does not maintain a full-time residency in this country. The Australian citizen parents of her partner (Tony) live in Australia. The Applicant has no family members living in Macau.
The Applicant attended University in Australia and graduated with two degrees – a Masters in Accountancy and a Masters in International Business granted by the Central Queensland University through their Sydney and Rockhampton campuses.
The Tribunal notes that the Applicant submitted a copy of her Certificate of Criminal Record from Macau which shows that “nothing is reported against” her,[32] and there is no suggestion that she has any adverse criminal record in Australia.
[32] Applicant’s Evidence at A3 submitted by email 12 September 2019. The Certificate is dated 30 August 2019.
Based on all the details now before it, the Tribunal thus concludes that the second limb of s 21(2)(g) is also satisfied by the Applicant.
ADDITIONAL RESPONDENT SUBMISSIONS
The Respondent also seeks to support the Delegate’s decision by reference to principles laid down in three other cases.
In relation to Ho v Minister for Immigration and Multicultural Affairs[33] the Respondent asserts that the failure of the Applicant to return to Australia in a reasonable period of time should be considered.[34] This line of attack fails both given the return of the Applicant after the Respondent’s submission was made and because, as I explained in Al-Khalidi[35] I do not accept the interpretation of section in question in Ho for the very cogent reasons given in both McCoy[36] and Rasiah[37].
[33] Ho v Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664.
[34] Respondent’s Statement of Facts, Issues and Contentions at [22].
[35] Al-Khalidi v Minister for Home Affairs [2019] AATA 700 at [49]-[53].
[36] McCoy v Minister for Immigration and Border Protection [2014] AATA 771.
[37] Rasiah and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 630.
In Taher[38] the Tribunal distinguished between a close and continuing association with “Australia” and a close and continuing association with “Australians”. Again, I discussed the difficulty of interpretation here in my decision in Bulrice[39] but rather than repeat that, the Tribunal finds it sufficient to note that the Applicant’s almost continuous residence in Australia from 2005 to 2016 – 3774 days out of 4166 (in excess of 90%) – clearly demonstrates that, in that period, her association with Australia was close and continuing. The change in her circumstances since the death of her father in February 2017 have been outlined above. They do not detract from a conclusion in favour of the Applicant on this point.
[38] Taher and Minister for Immigration and Border Protection [2013] AATA 917.
[39] Bulrice v Minister for Home Affairs [2019] AATA 1871 at [31]-[37].
The Respondent put to the Tribunal[40] that the statement in Lin[41] to the effect that:
Although in s 21(2)(g) there may be some overlap between the first limb and the association limb and the second limb and the association limb, I am of the view that the association limb does not require that the applicant for citizenship maintain a personal presence in Australia. Indeed, in my view, the association limb is intended to cover at least the circumstance that the citizenship applicant is not likely to reside and not likely to continue to reside in Australia but is nonetheless likely to maintain a close and continuing association with Australia if the citizenship application were to be approved. That limb may also cover other circumstances.
should be qualified by the fact of the Applicant’s lengthy absence from Australia in the last two years. However, the Tribunal sees no basis to depart from what was said by Foster J in relation to the maintenance of a “personal presence in Australia”.
[40] Respondent’s Statement of Facts, Issues and Contentions at [41].
[41] Lin v Minister for Immigration and Citizenship [2009] 176 FCR 371 at [111].
The Respondent raised what might be characterised as issues of honesty or credibility in the Applicant’s dealings with the immigration and citizenship authorities. In particular the Respondent drew attention to two submissions by the Applicant.
The first of these was the Applicant’s statement of 12 October 2018.[42] In this the Applicant had detailed an intention to return to Australia by the end of 2018 and that she was in the process of obtaining medical certificates for her mother’s application for a return resident visa. This application was not actually made until April 2019, nor did the Applicant return within that time frame. The Applicant replies that her delay in returning was occasioned by delays in the processing of her mother’s visa and her own condition of being pregnant at the relevant time prior to the both of her daughter in August 2019.
[42] Section 37 Tribunal Documents at [85].
The Tribunal also takes note of the fact that in her statement the Applicant writes that the medical certificates were being obtained “for mum’s forthcoming return resident visa application”. (emphasis added) The term “forthcoming” implies some degree of futurity and does not imply immediate action. Even if the Applicant were dilatory in making such an application this would in no way count against her in the current circumstances as recently held in the Federal Court.[43]
[43] BOY19 v Minister for Immigration and Border Protection[2019] FCA 57.
The other issue raised was the Applicant’s email to the Tribunal dated 8 August 2019.[44] In this the Applicant makes three claims, namely that she has purchased a house in Ermington (NSW), that she has started to reside there since June 2019 and that she will shortly be giving birth to a child she was having with an Australian citizen. Each of these claims is true. The Ermington property was purchased in April 2019 and settled on 21 June 2019.[45] The Tribunal was told that the Applicant commenced living there as of that latter date prior to her most recent departure from Australia on 30 June 2019, albeit for a very short period. The Applicant’s child was born on 13 August 2019.
[44] Applicant’s Evidence.
[45] Applicant’s Evidence – notification of completed purchase dated 21 June 2019.
The Respondent put it to the Tribunal that in failing to declare that the email was being sent from Macau where the Applicant was then residing to care for her mother, this was somehow misleading and was an attempt to create a false impression that the Applicant was actually resident in Australia in her own home. The Tribunal does not accept this characterisation of the email which was not in any material respect false or incorrect and in general correspondence by email its location of despatch is frequently (perhaps usually) not given.
ADDITIONAL APPLICANT SUBMISSIONS
The Applicant was represented at the Tribunal hearing by her brother as she was medically unfit to attend in person.
On her behalf the Applicant’s brother gave a detailed explanation of the need for his sister to spend time in Macau to attend to the needs of their mother after the death of their father in February 2017.He explained that following the father’s death the mother became suicidal and suffered major mental health issues. These led to her also becoming unable to care for her own physical needs. He explained that he had spent some time in Macau to support her, as the eldest in the family but that as her person needs become more acute it was necessary that intimate personal support be provided by a female member of the family. Hence, the Applicant travelled to Hong King to perform this filial duty. This explanation for the Applicant’s absence from Australia can hardly be gainsaid.
Similarly the Applicant’s brother was frank and forthright in discussing the nature of their parent’s objections to the Applicant’s relationship with Tony Huynh and the strain which this out on all members of the family. His account was significantly corroborative of the statements made by the Applicant in her reasons for being less than fully forthcoming about this relationship in submissions to the Department.
It was also put on behalf of the Applicant that her absences from Australia over the last four years, and the last year in particular, would make it difficult for her to meet the residency requirements set out in sections 22 (1A) and 22 (1B)[46] of the Act were this application to be refused and the Applicant required to lodge a new application as was suggested by the Respondent’s representative. Hence, the Applicant contended she should not be put in that potentially prejudicial position vis-à-vis the requirements now pertaining to her current application.
[46] These sections specify the time an Applicant is permitted to be outside Australia in both the preceding four years and the preceding 12 months prior to lodging an application.
The Tribunal accords this submission some recognition and weight.
CONSIDERATION
The Respondent’s refusal of the original application turns primarily upon the two issues, the absence of the Applicant from Australia at the time of the making of the decision and concerns about the amount of time which the Applicant had spent out of the country in recent years or her genuine intention to reside in Australia.
The first of these objections is rendered irrelevant by the return of the Applicant and her presence in Australia at the time of the Tribunal’s decision-making. There is thus no section 24(5) impediment to approval of the application.
The weight of evidence supports the Applicant’s stated intention to reside in Australia. She has family here and no family outside Australia; her dependent mother now resides with her in Australia; she owns and occupies her own home in Australia and is in a de facto relationship with a resident Australian citizen with whom she has had a child. The Respondent’s assertion that her mother might want to return to Macau and that, should she do so, her daughter would perforce follow, is entirely speculative.
The Applicant’s absences have, to the satisfaction of the Tribunal, been explained in terms of the responsibility accepted by the Applicant, in her role as eldest daughter in the family, to provide needed care for her mother following the death of her father. In any event, those absences in just the last two years must be viewed within the overall context of the Applicant’s residential history in Australia since her arrival in August 2015. In that period she has been predominantly resident in Australia. This ground for rejection of the application is unpersuasive to the Tribunal.
Equally, during her period of residence in Australia, the Applicant has demonstrated a close and continuing association with Australia through numerous activities including her education and moreover has close ties with family members who are Australian citizens and residents, although there is no evidence of any other extensive or detailed involvement in the broader life of the Australian community.
In all other material respects the Applicant complies with the conditions for citizenship set out in section 21(2)(a) to (f) of the Act, although the Tribunal notes that the Delegate did not consider the question of the Applicant’s good character (section 21(2)(h)). There is nothing before the Tribunal to suggest that the Applicant is not a person of good character.
Nevertheless, this is a matter which still requires formal assessment by the Respondent, and cannot be determined in these proceedings by the Tribunal, before all necessary requirements of the Act for citizenship by conferral can be regarded as having been satisfied.
DECISION
The decision under review is set aside and the matter remitted to the Respondent for reconsideration with the direction that the Applicant satisfies the requirements of subclause 21(2)(g) of the Act.
I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 18 September 2019
Date(s) of hearing: 12 September 2019 Advocate for the Applicant: Mr Man Fong Leong Solicitors for the Respondent: Ms Kate Gawidziel, Australian Government Solicitor
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