Li and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 5071

Li and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5071 (16 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0548

Re:Qiong Li

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:16 December 2020

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – Australian citizenship by conferral – refusal – whether Applicant was likely to reside in or continue to reside in Australia or maintain a close and continuing relationship with Australia – Tribunal must not approve – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth) ss 21 and 24

CASES

Corrigan and Minister for Immigration and Border Protection [2017] AATA 2880

Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Taher and Minister for Immigration and Border Protection [2013] AATA 917

SECONDARY MATERIALS

Citizenship Policy (1 June 2016)

Citizenship Procedural Instruction 11

REASONS FOR DECISION

Mr S Evans, Member

16 December 2020

1. Qiong Li (“the Applicant” or “Ms Li”) applied for Australian citizenship by conferral on 6 November 2017. On 14 January 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused her application having found that Ms Li was not likely to reside in Australia and had not demonstrated a close and continuing connection with Australia.

2. Ms Li has applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision to refuse her application for Australian citizenship.

   HEARING

3. The matter was heard on 7 September 2020. The Applicant, her migration agent and the representative for the Respondent appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). The Applicant provided evidence under affirmation at the hearing.

   BACKGROUND

4. Ms Li is a Chinese national who first arrived in Australia in July 2009. Ms Li resided in Australia from July 2009 to mid-December 2017 with the exception of an 18 month period between May 2012 and November 2013 when she relocated to China for work. On 3 November 2013 Ms Li became a permanent resident of Australia.

5. Ms Li had submitted her application for Australian citizenship on 6 November 2017. Shortly after lodgement, she received an offer for a two-year contract for her ‘dream job’ in Hong Kong.

6. The day before she departed, Ms Li notified the Respondent of her intention to relocate to Hong Kong. She wrote in part:

   I am about to take a 2-year contract job offer from my dream company… overseas. In the meantime, I still work for an Australian company which I have served for almost 4 years till now as a casual employee.

   I could come back for my citizenship test and ceremony as request.

   I love Australia and would like to come back after finishing the contract. But I do hope this career decision won’t have impact to the Australian citizenship application that currently in process.

   [errors in original]

7. On 12 December 2017 Ms Li departed Australia for Hong Kong where she still lives. On 14 January 2020 Ms Li was notified that her application for Australian citizenship had been refused. The delegate of the Minister wrote that they were not satisfied that Ms Li was ‘likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia’ if her application were approved. Further, the delegate was not satisfied that Ms Li’s application could be approved whilst she was outside Australia due to the operation of subsection 24(5) of the Australian Citizenship Act 2007 (Cth) (“the Act”) which provides that generally the Minister must not approve a person becoming an Australian citizen when the person is not in Australia.

   RELEVANT LEGISLATION AND POLICY

8. The general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. The provisions relevant to Ms Li’s application are 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.

9. Subsection 24(1) of the Act provides that if a person makes an application to become an Australian citizen subject to section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

10. Subsection 24(1A) of the Act provides that the Minister must not approve an application for citizenship unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8) of the Act. Subsections 21(3)-(8) are not relevant to Ms Li’s application.

11. Amongst other criteria, paragraph 21(2)(g) provides that a person is eligible to become an Australian citizen if the person:

    …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…

12. When considering if a person has an intention to reside in Australia or maintain a close and continuing connection with Australia, such that they meet the requirements set out in 21(2)(g) of the Act, chapter 7 of the Citizenship Policy dated 1 June 2016 (“the Policy”) provides guidance to decision-makers. Decision-makers are expected to apply policy such as the Citizenship Policy unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

13. The Policy sets out the circumstances under which a person’s intention to reside in Australia should be investigated further:

    If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia. Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision.

14. Subject to the Policy, factors which should be considered as they may demonstrate a ‘close and continuing’ relationship with Australia in the context of paragraph 21(2)(g) include:

    Australian citizen spouse or de facto partner

    Australian citizen children

    length of relationship with Australian citizen spouse or de facto partner

    extended family in Australia

    periods of residence in Australia

    intention to reside in Australia

    employment in Australia (for example, public or private sector)

    ownership of property in Australia and

    evidence of income tax payment in Australia

15. Citizenship Procedural Instruction 11 (“the CPI”) provides instruction on how to assess if a person is likely to reside in Australia or maintain a close or continuing relationship with Australia. The CPI details some of the factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place. The factors relevantly include whether the person is currently renting a home, their source of employment and income, the frequency and purpose of visits to Australia, the reasons why an applicant has been away from Australia and participation in the Australian community.

16. The CPI specifically states that being overseas does not in and of itself necessarily preclude an applicant being granted citizenship:

    An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period.

17. Subsection 24(5) of the Act provides that in certain circumstances a person must not be granted Australia citizenship when not present in Australia.

    Person not present in Australia

    (5)       If:

    (a)       the person is covered by subsection 21(2), (3) or (4); and

    (aa)     the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

    (b)       the Minister did not apply subsection 22(9) in relation to the person; and

    (c)       the Minister did not apply subsection 22(11) in relation to the person;

    the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

18. It is not contended by Ms Li that she satisfies 22A or 22B or that subsections 22(9) or 22(11) apply to her.

    ISSUES FOR DETERMINATION

19. The Tribunal must determine whether Ms Li satisfies subsection 21(2) of the Act which provides that a person is eligible for Australian citizenship if they are ‘likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved’.

20. If so, the Tribunal must determine whether it is prohibited from granting Ms Li citizenship at this time on account of subsection 24(5) which provides that generally the Minister ‘must not approve a person becoming an Australian citizen at a time when the person is not in Australia’.

    EVIDENCE

21. The evidence before the Tribunal included the documents that were before the delegate who made the reviewable decision, additional documentation including medical reports, a rental agreement, a Statement of Facts, Issues and Contentions from the Respondent, a statement from Ms Li and a statement from Mr Yin as well as oral submissions from Ms Li during the hearing.

22. Ms Li has been living in Hong Kong since her departure from Australia on 12 December 2017. Since departing, she has returned to Australia on two separate occasions for a combined total of 16 days. Ms Li told the Tribunal at the hearing that it is her intention to return to Australia from Hong Kong with her fiancé, Mr Yin. She and Mr Yin have been together for one year and currently live in rented accommodation in Hong Kong. They are looking for opportunities for Mr Yin to be sponsored so that they may both come to Australia where they intend to purchase property and start a family.

23. Ms Li explained that it was not her intention to leave Australia at the time she submitted her application for Australian citizenship. Acknowledging that in her initial application she had stated that she did not intend to spend time outside Australia in the next 12 months, Ms Li maintains that she received the job offer in Hong Kong the month after submitting her application and that her intention as stated was true at that time.

    Plans to return to Australia

24. Ms Li submits that the emergence of the COVID-19 pandemic interfered with her plans to return to Australia. At the hearing she confirmed that she was planning to return to Australia in early 2020 but her plans changed in January when the pandemic began. Her family lives in the Chinese city of Wuhan where COVID-19 is believed to have originated. She was due to travel to Wuhan to visit her family on the day the city entered ‘lockdown’. She told the Tribunal that she was very concerned about her family and cancelled her flight to Wuhan.

25. On 15 April 2020 Ms Li booked a ticket for both her and Mr Yin to fly from Hong Kong to Sydney on 25 July 2020. Before the Tribunal is also a rental agreement for a studio apartment in Sydney which Ms Li was to rent from 15 July 2020 to 14 July 2021.

26. Ms Li is an accountant and by letter of 17 April 2020 she was offered full-time employment as an ‘operation manager’ with a Sydney based real estate company with a commencement date of 8 August 2020.

27. In May 2020 Ms Li found out that she would be required to have surgery. Ms Li has provided a letter from Dr Li Chin Fai Ng which confirms she had surgery on 10 June 2020. A certificate from Central Integrated Clinic in Hong Kong records she had an operation to remove a haemorrhagic cyst and would be unfit for long distance travel as of 4 July 2020, with further follow up required.

28. Following her surgery Ms Li’s plans to return to Australia were once again placed on hold. Whilst her intention was to return to Australia in July 2020, she was unable to do so as her doctor advised her not to travel long distances. Ms Li told the Tribunal that during the period in which she was recovering from her operation she was unable to sit for long periods and was limited in what she could do physically, meaning she was incapable of taking a long-haul flight from Hong Kong to Sydney.

29. Ms Li and her fiancé had planned to marry in China during 2020, but meeting the quarantine requirements in both Hong Kong and China would require a full 28 days of confinement. Consequently, their plans for a wedding ceremony have been placed on hold.

    Evidence of Long Yin

30. Mr Long Yin is Ms Li’s fiancé. In a written submission to the Tribunal dated 22 April 2020 Mr Yin confirms that he has been living together with Ms Li since June 2019 and that they are planning to get married ‘by next year’, meaning 2020. He writes that both he and Ms Li enjoy their ‘exciting and challenge life in Hong Kong’ but decided to have a more ‘peaceful and quiet life in Australia’ which Ms Li regards ‘as her second hometown’. As Ms Li has been in Australia for so long Mr Yin believes that her mindset is more aligned with how ‘Australian people think’.

31. He writes that Ms Li took him to Australia in November 2019. He said it was a memorable time. He said that after the trip both he and Ms Li began to discuss and prepare their migration plan and to save half of their salaries each month for purchasing property when they moved back to Australia. He confirms that when the exchange rate is favourable, the couple exchange their Hong Kong savings into Australian dollars which they transfer back to Ms Li’s Australian bank account.

32. Mr Yin writes that he is a scientist and a chemist and after completing his postgraduate degree he has been working for a biotechnology company in Hong Kong for seven years. Regarding his potential employment in Australia, he writes that he is obtaining information about research-oriented corporations and universities in Australia from the internet as well as from workmates and former classmates living in Australia to identify potential job and research opportunities. Should he be unable to obtain a job prior to moving to Australia, he states that it is their intention that Ms Li come to Australia before him and he will follow her and apply for research opportunities at universities when Ms Li has settled into Australia.

    CONSIDERATION

33. Based on the evidence, the Tribunal must determine if Ms Li is likely to reside, continue to reside in Australia or to maintain a close and continuing relationship with Australia.

    Is Ms Li likely to reside, or continue to reside in Australia?

34. Ms Li had a job offer with a real estate company which she was due to commence on 8 August 2020. That opportunity has now passed. Ms Li submits that she has casual contract work available to her through an Australian transport provider she previously worked for on a full-time basis when living in Australia. She has additionally performed some work for this company whilst living in Hong Kong. The Tribunal accepts that Ms Li has a good relationship with the transport company but notes that it is not contended by Ms Li that there is a substantive job offer from the company which would provide a full time income or require her to be based in Australia.

35. The Respondent notes that Ms Li is currently living in Hong Kong, which is a region of China. Ms Li has Chinese citizenship and has lived in China from her birth in 1986 until 2009, from May 2012 to November 2013 and from December 2017 to present. It is argued by the Respondent that Ms Li’s Chinese citizenship and the amount of time she has spent living in China, including in recent years, does not support the assertion that Ms Li is likely to reside in Australia.

36. It is also noted by the Respondent that there is little substantive evidence that Mr Yin intends to migrate to Australia or how he might obtain employment here. Certainly, both he and Ms Li have stated that he is searching online for opportunities and in the process of making applications for sponsorship, but it is also apparent that as of the time of the hearing there were no offers of employment or sponsorship forthcoming.

37. Mr Yin is also a Chinese national. He has been working in his chosen field in Hong Kong for seven years. Ms Li contends that he is flexible in terms of his career and accommodating compromises which may be required should they move to Australia. The Respondent notes that Mr Yin appears to have a strong connection to Hong Kong having graduated from Hong Kong Baptist University.

38. In Ms Li’s favour, she and Mr Yin are renting their apartment in Hong Kong and they have a lease which expires in December 2020. She has provided evidence of having $90,000 in an Australian bank account and she has submitted it is the couple’s intention to purchase a property in Australia should they return.

39. Currently Ms Li has no immediate plans to return to Australia and there are many impediments which must be addressed before she can or is likely to return. These include her ability to return to Australia owing to the pandemic and associated travel restrictions; securing employment for herself and possibly also for Mr Yin and the separate issue of the need to reschedule their wedding plans in China.

40. In considering the evidence I am satisfied that Ms Li intended to return to Australia in July 2020 but that her plans were waylaid by her health requirements and subsequently the COVID-19 pandemic. This finding is supported by Ms Li’s Australian savings and that she had made arrangements to relocate in July which included securing employment and entering into a rental agreement for premises in Sydney. Having regard to this intention, I note the observations of DP McMahon in Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664. When considering the meaning of the term “likely to reside in Australia” he said:

    It cannot mean “likely to take up residence in 18 months or two years’ time” or likely to reside sometime in the indefinite future if economic conditions permit and if a suitable job can be found. The juxtaposition of the phrase, with the opening phrase of the paragraph indicates that the Minister must be satisfied that the applicant is likely to reside in Australia immediately or very soon after being granted a certificate of citizenship or within a reasonable time thereafter.

41. The Respondent draws the Tribunal’s attention to the matter of Corrigan and Minister for Immigration and Border Protection [2017] AATA 2880 (“Corrigan”). In Corrigan the Tribunal found that the applicant and his wife were likely to one day reside in Australia. As in this application, the Tribunal found that the applicant would continue to reside outside Australia in the foreseeable future with their return dependent on employment opportunities and life events.

1. In light of these considerations the Tribunal cannot be certain that should Ms Li be granted citizenship she is likely to reside in Australia in the foreseeable future.

   Does Ms Li have a close and continuing association with Australia?

2. Ms Li lived in Australia between 2009 and 2017 with the exception of an 18 month period beginning May 2012 when she returned to China for work. She is a permanent resident. However, since making her application for citizenship Ms Li has only been in Australia for 53 days.

3. In considering the factors which the Policy identifies as indicative of a close and continuing relationship with Australia, it is apparent that few of these factors apply to Ms Li. She does not have Australian citizen children or an Australian citizen spouse, she has no extended family in Australia and she does not reside nor intend to reside in Australia in the foreseeable future. Whilst Ms Li has worked in Australia in the past, and she may do so again, she is not currently employed in Australia. Ms Li told the hearing she last submitted a tax return in Australia when she last worked in Australia, which was in 2017.

4. Ms Li confirmed that she does not own property in Australia, though she stated it is her intention to do so. She has provided statements evidencing a bank account and an investment portfolio which supports her claim that she maintains a financial connection to Australia. She and Mr Yin add to their savings when the exchange rate is favourable.

5. In Taher and Minister for Immigration and Border Protection [2013] AATA 917 the Tribunal held that ‘citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations’. Whilst factors such as Ms Li’s savings and return visits indicate a sincerity in her desire to return to Australia, they fall far short of demonstrating that she has maintained a close and enduring connection with Australia for the purposes of satisfying paragraph 21(2)(g) of the Act. Consequently, the Tribunal finds that Ms Li does not have a close and continuing relationship with Australia.

   Prohibition due to Ms Li not being in Australia

6. In the interests of completeness, the Tribunal has also considered the requirements of subsection 24(5) of the Act.

7. The Respondent contends that Ms Li is prohibited from becoming an Australian citizen whilst outside Australia on account of subsection 24(5) of the Act. Exemptions exist for applicants engaged in activities of benefit to Australia and persons engaged in particular kinds of work requiring regular travel outside Australia. Discretion is able to be applied in some applications relating to surviving spouses or de-facto partners of Australian citizens, but Ms Li does not submit that she meets any of these exemption criteria.

8. The general eligibility requirements in subsection 21(2) apply to Ms Li but none of the exemption criteria set out in section 24(5)(a), (aa), (b) or (c) do. Consequently, even should the Tribunal have found that Ms Li was ‘likely to reside in Australia or had a close and continuing association with Australia’, the Tribunal is prohibited from making a decision that would approve Ms Li’s citizenship by conferral where she is not in Australia.

   CONCLUSION

9. For the reasons stated above, the Tribunal is satisfied that Ms Li does not meet the requirements for Australian citizenship by conferral as she does not satisfy paragraph 21(2)(g) of the Act and further, by operation of section 24(5), the Tribunal must not approve Ms Li’s citizenship by conferral. I note that it is open for Ms Li to reapply for Australian citizenship should she wish to do so again in the future.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated:  16 December 2020

Date of hearing:	7 September 2020
Solicitors for the Applicant:	P Wang, Awesome Migration and Education Centre
Solicitors for the Respondent:	L Hargrave, Clayton Utz