Li and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 3211
•6 October 2022
Li and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3211 (6 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/6258
Re:Jiajun Li
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member A Poljak
Date:6 October 2022
Place:Sydney
The decision under review is affirmed.
...............................[SGD].........................................
Senior Member A Poljak
Catchwords
CITIZENSHIP – application for citizenship by conferral – whether the applicant is likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia – relevant law, policy and material considered – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Secondary Materials
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Senior Member A Poljak
6 October 2022
Ms Jiajun Li, the applicant, is a citizen of China. She first arrived in Australia on 1 March 2007. She is currently the holder of a resident return (subclass 155) visa granted on 8 September 2017. On 18 November 2017, the applicant departed Australia.
On 21 November 2017, the applicant lodged an application for Australian citizenship by conferral.
On 3 July 2019, the delegate requested the applicant to provide information. In particular, the applicant was requested to provide evidence of her return to Australia, her intention to reside in Australia or her close and continuing association with Australia. The delegate also informed the applicant of the prohibition in subsection 24(5) of the Australian Citizenship Act 2007 (Cth) (the Act). On 30 July 2019, the applicant’s representative provided documents in response to the request.
The applicant returned to Australia on 12 September 2019 to attend a citizenship interview on 13 September 2019, and again departed Australia on 14 September 2019.
On 16 September 2020, the delegate refused the application for citizenship. The reason for decision was that the delegate was not satisfied the applicant met paragraph 21(2)(g) of the Act and further the prohibition under subsection 24(5) applied as the applicant was not present in Australia at the time of decision. This is the decision under review in these proceedings.
At the time of hearing, the applicant was not present in Australia, however, while the decision was reserved, the applicant returned to Australia on 20 May 2022 and a subsequent hearing was held. As such, the prohibition under subsection 24(5) of the Act does not apply to the applicant currently.
Issues
If her application for citizenship by conferral were to be approved, whether, for the purposes of paragraph 21(2)(g) of the Act, the applicant is:
(a)likely to reside in Australia or
(b)likely to maintain a close and continuing association with Australia.
Relevant Legislative Provisions
Section 21(2) of the Act relevantly provides:
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.The Citizenship Procedural Instruction 11: Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) provides a non-exhaustive list of factors relevant to the consideration. Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place, include:
(a)Whether they have purchased a property in their country of residence, and whether they reside in the property
(b)Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country
(c)Frequency and purpose of visits to Australia if the applicant resides overseas
(d)Frequency and reasons for absence from Australia
(e)Participation in the Australian community.
Consideration
The applicant’s evidence is that she has a very deep affection for Australia. Since 2007, she studied a Bachelor of Commerce and Master of Science and Technology at the University of Sydney and University of NSW. After graduating, she worked as a finance officer for International Finance Australia and Star View Pty Ltd and founded a financial consulting company Sunsis Holdings Pty Ltd in 2015. The applicant claims that she has many friends, colleagues and social connections in Australia and plans to return in the near future. She said she had purchased investment properties in Sydney and intends to further develop in real estate finance in Australia.
While the applicant plainly has a desire to be an Australian citizen, the applicant does not have any immediate plans to reside in Australia after her citizenship application is approved. My reasons for reaching this conclusion are as follows.
Prior to her recent arrival in Australia and since applying for citizenship on 21 November 2017, the applicant has spent a mere 3 days in Australia. I do note that the outbreak of the COVID-19 pandemic led to the imposition of travel restrictions and quarantine requirements which resulted in a delay to the applicant’s planned return to Australia in 2021. The applicant also submits that after leaving Australia for the United Kingdom (UK) in 2017, she fell pregnant and gave birth in 2018. She suffered numerous pregnancy complications. The applicant contends that this resulted in her inability to travel long-distance thereby was not able to return to Australia due to her health conditions.
The applicant’s husband and children currently reside in the UK. Her husband and children are not Australian citizens and do not hold any Australian visas or passports. On 13 September 2019, at her citizenship interview the applicant said she relocated to the UK with her husband who is working in the UK. At hearing she said she had planned to return to Australia in 2020 and her husband would join her later. However, she fell pregnant again and stayed in the UK to have the baby, ‘then COVID-19 hit’. The applicant jointly owns and has a mortgage for the family home in the UK with her husband in which they currently reside. This does suggest that the applicant will be inclined to continue residing in the UK.
The applicant owns properties in Australia at Breakfast Point, Turramurra, and North Ryde. All of which are currently rented out and managed by agents who maintain the properties. The applicant pays all utilities. The property at Breakfast Point is rented as an Air B&B.
I do accept that the applicant is currently staying at the Breakfast Point property while in Australia, but the evidence does not support a finding that she currently resides there. While the evidence of an active connection of electricity and gas, and a strata levy notice indicate that the applicant owns the property, there is no indication that she either currently resides in that property or is likely to reside in that property for any period of time. Paying bills for the property is expected of any property owner in Australia.
While the applicant has submitted an enrolment form for her son to attend a childcare in Breakfast Point, it is noted that the applicant ticked ‘No’ when asked ‘Does the child live with you?’ The applicant then provides that ‘I left [son] for around 1 month now, he is with daddy at home in London’. The applicant has provided no evidence that either of her sons have an intention of residing in Australia. Further, the email correspondence from the childcare indicates that the centre does not have any availability for older children, and that the centre is currently fully enrolled in all ages. The applicant’s completion of the enrolment form is therefore not indicative of her intention to remain in Australia, particularly when she has provided no evidence that her children will be travelling to Australia, nor that they have been granted placement in a day-care in Australia.
The applicant does currently have a Westpac bank account. She has had the bank account since at least 2016. The account was active when the applicant moved to the UK and was temporarily blocked in 2018. When the applicant visited Australia in 2019, she unblocked the account. It has since been blocked again; however, the applicant has reactivated the account since returning to Australia in 2022.
As for business interests, the applicant was appointed as Secretary of Starton Australia Pty Ltd since 22 September 2015. She has maintained the position while living in the UK. As for the applicant’s role in the company Sunsin Holdings Pty Ltd, the applicant said that while in the UK she has not been actively involved. For the first two years, she still provided finance consulting services but not for any new projects. The applicant stated at hearing that she was in the process of applying to renew her business licence and real estate licence as her personal one expired in August. The applicant has not provided any other evidence that she is employed in Australia. The email correspondence from Golden Nest Australia dated 12 June 2022 does not provide any indication that the applicant is employed by the organisation.
The applicant has been enrolled in the CPA program in Australia since 2018. It is noted that the CPA program is a distance education learning program. The applicant’s current enrolment does not consist of any study but is merely an exam. The applicant’s enrolment in the CPA program is not indicative of residency in Australia, particularly when she can complete the program online from the UK. The applicant emphasised at hearing that the course would not be of any use other than in Australia and that she was completing the course because she wanted to return to Australia to live and work.
The support letters provided by the applicant provide no indication of any steps the applicant has taken to reside in Australia, they merely note her desire to live in Australia.
The applicant’s evidence that she has been named as a beneficiary in the will of Mr Andriy Havryliv does not indicate that she will likely reside, or intends to reside, in Australia. The applicant has the ability to be named as a beneficiary of an Australian citizen, regardless of her place of residency. At hearing, Mr Havryliv expressed how the applicant loves Australia and absorbs the Australian culture. He considered the applicant a model citizen.
In Judd v Minister for Immigration and Border Protection [2017] FCA 827, at [14] Perry J said:
While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
While in the UK the applicant has maintained contact with her friends, including Mr Havryliv, via telephone. A couple of the applicant’s friends have also visited the applicant in the UK over the years. In this regard, CPI 11 notes:
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/ extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
Having considered the available evidence regarding the applicant’s investment properties, business interests, previous and current education and social ties in Australia, I am not convinced that this is indicative that a close and continuing association will exist in the future should the applicant be granted Australian citizenship. The bulk of the evidence is not ‘forward looking’ and relates to the applicant’s past residence, education and employment in Australia. The applicant’s circumstances have undoubtably changed since 2017, when she left Australia for the UK, where she married her now husband and started a family. She has since acquired a family home in the UK in which she resides with her family. While the applicant still maintains a strong affiliation with Australia and a desire to return, her close and continuing relationship with Australia has diminished. The applicant has maintained some social connections with Australia, holds investment properties here and has some business interests, but I am not satisfied that this is sufficient in the circumstances to establish that she has and will maintain a close and continuing relationship with Australia should her application for citizenship be granted.
Decision
The decision under review is affirmed.
Confidentiality Request
The applicant has requested a confidentiality order, which was made orally at the resumed hearing on 16 August 2022 and confirmed in writing. The applicant wishes information provided by the parties during the hearing not to be made public. It appears that the reason for this request is so that the information is not misused.
Subsections 35(3) and 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) allows the Tribunal to give directions prohibiting or restricting the disclosure of information tending to reveal the identity of, relevantly, a party to or witness in a proceeding before the Tribunal, and, relevantly, information that comprises evidence or information about evidence.
Subsection 35(5) of the AAT Act provides:
In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information. [Emphasis added]
There does not appear to be any cogent reason for the applicant’s request that would displace the ordinary rule that decisions should be published. The applicant appears to have concerns that the information provided at hearing and in these reasons will be misused but it is unclear as to how there would be any misuse of her private information.
For these reasons, the applicant’s request for a confidentiality order is refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.............................[SGD]...........................................
Associate
Dated: 6 October 2022
Date(s) of hearing: 9 December 2021 & 16 August 2022 Date final submissions received: 25 August 2022 Advocate for the Applicant: Mr T Chen, Aussie Immigration Services Solicitor for the Respondent: Ms K Gawidziel, AGS
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