Lidan Shao and Minister for Immigration and Citizenship
[2012] AATA 709
•15 October 2012
[2012] AATA 709
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4784
Re
Lidan Shao
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 15 October 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – applicant married to Australian citizen – applicant does not meet residence requirements – exercise of discretion – application of Australian Citizenship Instructions – whether applicant has a close and continuing association with Australia – whether applicant has a permanent or enduring physical or mental incapacity – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21(2), 21(3), 22, 22(1), 22(2), 22(2A), 22(9)
SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
15 October 2012
Lidan Shao applied for Australian citizenship on 1 June 2010, having first arrived in Australia in 1998 with her husband and three children. Her husband and children are now citizens of Australia, by conferral. She has held a permanent resident visa.
Mrs Shao’s application was refused on the grounds that she does not meet the general residency requirement for conferral of citizenship and that she does not have a basic knowledge of the English language and could not sit the Australian citizenship test.
ISSUES
To be entitled to Australian citizenship, a person must satisfy all of the requirements of section 21(2) of the Australian Citizenship Act 2007. Among those requirements are a general residence requirement, a likelihood the person will reside in Australia or maintain a close and continuing association with Australia, and possession of a basic knowledge of the English language.
The general residence requirement is set out in section 22(1):
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
There is no dispute that Mrs Shao, who was present in Australia for no more than eight days in the 12 months preceding her citizenship application and for 49 days in the four years prior to her application for citizenship, does not satisfy the residence requirement in section 22(1) and, according to section 22(2), is not eligible to become an Australian citizen.
However, section 22(9) of the Act provides for a discretion in some circumstances to treat a period as one in which a person was present in Australia as a permanent resident:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
There is no dispute that Mrs Shao’s husband is an Australian citizen and that theirs is a genuine marriage. Nor is it in dispute that Mrs Shao was a permanent resident at the relevant time. The essential issue is therefore whether Mrs Shao had a close and continuing connection with Australia during the relevant period and, if so, whether the discretion should be exercised.
Section 22(2A) provides that the requirement for a basic knowledge of the English language will only be satisfied if a person has successfully completed a prescribed test. It is also not in dispute that Mrs Shao does not possess a basic knowledge of the English language and has not successfully completed the prescribed test. This makes her ineligible for Australian citizenship.
However, section 21(3) provides for eligibility where, among other things, a person:
…
(d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
The issues for me to consider are therefore whether Mrs Shao:
(i)had a close and continuing association with Australia during her absence during the relevant period; and
(ii)is likely to reside in Australia or to maintain a close and continuing association with Australia; and
(iii)had a permanent and enduring physical or mental incapacity when she applied for citizenship.
DID MRS SHAO HAVE A CLOSE AND CONTINUING RELATIONSHIP WITH AUSTRALIA?
The Australian Citizenship Instructions contain the following introduction:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
In relation to the discretion contained in section 22(9) of the Act, the Instructions say:
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
Factors that may contribute to a close and continuing association with Australia include:
· Australian citizen children
· length of relationship with Australian citizen spouse or de facto partner
· extended family in Australia
· return visits to 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
· evidence of income tax payment in Australia and
· current bank accounts in Australia.
In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.
Mrs Shao gave evidence that her husband resides in China and looks after his business there. She has been a director of that company since 1998. She said she lives in China to assist her husband with his business, looking after the factory there. The family no longer has business interests in Australia. Her 15 year-old son is studying in the UK, her daughter has just graduated from high school in the UK and will study at university in Hong Kong and her oldest son is living in China and is involved in the company. Mrs Shao said they all “call Australia home.” They are all Australian citizens. It was unclear whether they also hold Chinese citizenship. She later said that her husband and her children “are not here anymore.” She agreed that since 2001 she has never spent more than one month in Australia at a time.
Mrs Shao said it is expected that her sons will take over her role in the company. She said her preference is to live in Australia because the air is cleaner and it is more peaceful here. She said her doctors advised her she should live here because it is better for her health. However, she cannot do that at present because of her responsibilities in the company. She said this was the reason she had to move back to China soon after she first came to Australia.
Mrs Shao said she and her husband own a house at Cabarita worth “$2 or $3 million.” She could not remember when it was purchased. She said her husband’s secretary managed all of that. She thought it may have been purchased before 2000. She said that her husband’s secretary deals with any issues about expenses for the Sydney property. She said it was rented for a while but she was not sure because the secretary handles that. She said she has an Australian bank account but she does not know what the balance is because her account is managed by her secretary. She is not sure whether she still has a car in Australia.
Mrs Shao said she currently holds a permanent resident visa and this has been granted three times.
I note that Mrs Shao lodged a tax return in Australia in 2009.
Mrs Shao said one of her sisters lives in Australia and so does one of her husband’s uncles. She said she has friends here but gave no details of them. Her other two sisters, to whom she is close, and her husband’s other uncles live in China.
While Mrs Shao’s husband and children are Australian citizens, it seems that none of them have spent significant time in Australia in the four years preceding her application for citizenship. None of them reside here now.
She has two family members in Australia and more in China. Her return visits to Australia have been very short and infrequent – just eight days in the year preceding her application for citizenship and 49 days in the four years preceding her application. After 1999 Mrs Shao was never present in Australia for more than a few weeks at a time. Her longest period of continuous residence in Australia was four months in 1999. Mrs Shao states an intention to reside in Australia in the future but the shortness and infrequency of her past visits to Australia do not lend support to this assertion.
There is no evidence of Mrs Shao ever having been employed in Australia. She owns a property in Australia with her husband but her lack of knowledge about related expenses, its value, date of purchase, and whether and when it has been rented indicate she is remote from knowledge of and dealings with the property. She has lodged one or two tax returns here. There is no evidence of her having paid tax in Australia, but I accept that would ordinarily follow a tax assessment. She has a current bank account in Australia but she does not know the balance.
These connections with Australia do not strike me as “close.”
The matter is not taken any further by the statements filed on behalf of the Hon. Nick Bolkus, Martin Chen and Bechara Khouri, some aspects of which appear to be in conflict with the evidence given by Mrs Shao to the Tribunal.
Mr Khouri, in oral evidence, said he sees Mrs Shao’s husband every time he comes to Australia – about five or six times per year for the last 13 or 14 years. Mr Khouri said he is a business development consultant and has business interests in China. He said their relationship is a mix of business and social. He said Mr Shao’s husband would generally be accompanied by one or other of his children and they would stay at the house at Cabarita.
Mr Khouri said the family company, PanAsia, is currently “on hold” because it became subject to anti-dumping laws and is involved in a long legal process with Customs. He described the business in China as “massive.” Mr Khouri agreed that he cannot speak Cantonese or Mandarin and so has never had a direct conversation with Mrs Shao.
Martin Chen, in oral evidence, described himself as a “family friend” since the late 1990s. He said he speaks to the family in Mandarin about family and social matters. He said the family has a rental property at Cabarita which, he said, they bought off the plan. Mr Chen, who is involved in the aluminium industry, said he would assist the family commercially if they settle in Australia.
After considering these witnesses’ evidence and the evidence given by Mrs Shao, I remain unpersuaded that Mrs Shao has a close and continuing association with Australia. I do not consider she has a close and continuing association with Australia.
IS MRS SHAO LIKELY TO RESIDE IN AUSTRALIA OR TO MAINTAIN A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA?
For the same reasons that I am not satisfied Mrs Shao has a close and continuing association with Australia, I am not satisfied it is likely she will develop one or that she is likely to reside here. In particular, I am mindful of her continuing responsibilities as a director of the family company in China, her husband’s continued residence in China and the absence of her children studying and working overseas.
DID MRS SHAO HAVE A PERMANENT AND ENDURING PHYSICAL OR MENTAL INCAPACITY?
Mrs Shao said that after her first daughter was born in 1993, she began to have trouble sleeping. She saw a Chinese doctor (Bao Tien Chen) who gave her Chinese herbs “to calm (her) down.” She said she took this medication until 2001. After that she took other Chinese herbal medication and had acupuncture and massage from a practitioner called Qing Dong. She said she has had no other treatment, except for medication from a doctor in Hong Kong about three or four years ago whose name she cannot recall. She said she only took the medication for two days because it upset her stomach. She said she thought the medicine was for depression.
Mrs Shao said she still has insomnia now and still has acupuncture and massage. She said she had never been diagnosed with anything. She said her husband was very busy and not available to look after her.
Mrs Shao said, through the interpreter, that her English is not good and she never worked in Australia, but conducted business here through an interpreter.
She said she attended a large English class on Broadway with her children in 1998 or 1999 for a few months on and off but because of her sleep problems she could not learn. She said that memorising vocabulary made her sleep worse. She took Chinese herbal medication she obtained in Australia to deal with it.
Mrs Shao said she had an English tutor in China for a few months for 45 minute lessons four or five days each week. She accepted that, were she to spend more time in Australia, she would be likely to pick up some English language.
When asked whether she was aware of the details of the English test for citizenship, Mrs Shao said she did not intend to do the test because it would make her sleep worse. She said she did not look into what the test involved because she was already busy with her work and did not want the additional stress.
The report of Dr Leila Kavanagh, psychiatrist, dated 23 November 2010, begins with a proviso that she had no access to corroborative history from family or treating professionals and her opinion is derived entirely from the information given to her by Mrs Shao.
Dr Kavanagh diagnosed Major Depressive Disorder based on the history given to her by Mrs Shao. That history included that Mrs Shao was unemployed; that she was “forced” to return to China six months after arriving in Australia because of difficulties in adapting to Australia; that she had attempted to learn English on numerous occasions over the years; that she saw a psychiatrist on a few occasions and took anti-depressant medication for six months; that she has not been able to work “using her brain” since the birth of her first child; that she is prevented from remaining in Australia because the pressures and stress associated with learning English make for the “constant deterioration of her mental state;” and that she intends to reside in Australia “in the family home” with her husband. This history conflicts with the evidence given by Mrs Shao to the Tribunal. In particular, Dr Kavanagh’s misapprehension, according to Mrs Shao’s contrary evidence to the Tribunal, that Mrs Shao has not worked in any significant way since the birth of her daughter, that her reason for spending so little time in Australia was her stress rather than her business responsibilities and the overstatement of the psychiatric treatment she has undertaken, seriously undermine the weight that can be given to Dr Kavanagh’s opinion.
Dr Kavanagh considered that Mrs Shao’s being “forced” to learn English perpetuated her illness. Dr Kavanagh characterised this as “an enduring mental incapacity.” She opined:
In Mrs Shao’s particular case, her having been confronted with being forced to learn English as a prerequisite to attain Australian citizenship and her inability to do so [despite her significant efforts], has been the main catalyst for the perpetuation of her illness and its sequelae.
This is a confusing and circular conclusion.
Dr Kavanagh also concluded that:
Mrs Shao’s psychiatric illness, perpetuated by her inability to learn English [despite her best efforts to do so], has caused her such distress that she has been separated from her family for a ten year period, with her having had to be content with infrequent, yearly, short term intervals. I note the longest period of time Mrs Shao has spent in Australia has been three to four months.
This sheeting home of responsibility for Mrs Shao’s separation from her family to her difficulties with learning English is surprising. It appears to be based on an assumption that Mrs Shao’s family has been residing in Australia, waiting for Mrs Shao to summon the courage visit them here. On Mrs Shao’s own evidence to the Tribunal this is not true. Rather, on her evidence, she has been in China with her husband, attending to her business responsibilities as a director of the family company and her children have been studying in the UK.
This fundamental misconception means I can give no weight to this opinion.
I note that the Australian Citizenship Instructions contain the following paragraph:
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
There is no evidence that Mrs Shao has been seeing any relevant specialist on a regular basis.
I cannot be satisfied that Mrs Shao has a permanent and enduring mental incapacity generally and I cannot find that she has one that, specifically, means she cannot learn the English language.
DECISION
The Tribunal affirms 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 Ms N Bell, Senior Member. ...[Sgd].....................................................................
Associate
Dated 15 October 2012
Date of hearing 30 August 2012 Solicitors for the Applicant Robert Balzola and Associates Solicitors for the Respondent Australian Government Solicitor
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