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

[2020] AATA 4124

Lu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4124 (21 September 2020)

Division:GENERAL DIVISION

File Number:          2020/0427

Re:Yue Lu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:21 September 2020

Date of written reasons:        15 October 2020

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – citizenship by conferral – approval of citizenship cancelled under section 25 of the Australian Citizenship Act 2007 – whether the Applicant likely to maintain a close and continuing association with Australia – where Applicant overseas at time of decision – family ties – ownership of property – decision under review affirmed

Legislation

Australian Citizenship Act 2007

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Mr A. Maryniak QC, Member

1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons thereof were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

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

Associate

Dated: 15 October 2020

Date of hearing:	21 September 2020
Advocate for the Applicant:	Ms Betty Zhang
Advocate for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Clayton Utz

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. This is a review of an application for review by the Applicant of the decision of a delegate of the Respondent, which cancelled the approval of the Applicant’s application for Australian citizenship on 24 December 2019.  That decision was made relevantly under section 25 of the Australian Citizenship Act 2007.  Section 25 provides the Minister with power to cancel an approval of an application for citizenship, where under section 25(1) the person has not become an Australian citizen under section 28 and either of the following situations apply, and relevantly, in section 25(2):

   (b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

   (ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.

2. And that is the subsection on which the Minister acted which brought about the reviewable decision.  Looking at the components of section 25(2)(b)(ii), the requirement of continuing to reside in Australia cannot apply, because the Applicant was not residing in Australia at the relevant time, and the key questions for the Tribunal on this application go to whether, in the light of all the evidence before the Tribunal and the submissions made, it is likely that the Applicant will reside in Australia or is likely to maintain a close and continuing association with Australia. 

3. The evidence, which has comprised all of the written documents and the documentary evidence tendered before the Tribunal, together with the oral evidence of the Applicant, who was cross‑examined, the evidence establishes that on 18 September 2018 the applicant lodged an application for conferral of Australian citizenship.  Much was made during the cross‑examination of the Applicant’s response to this form, including the notation that the Applicant intended to travel overseas for a period of seven months.  The Applicant says that it was her intention to return in July, and hence that is why she said seven months.  The Tribunal comes to a neutral position on that as to whether the Applicant should have said more or given more information on that form, but the Tribunal cannot ignore the additional instances where sufficient detailed information was not provided to the relevant individuals of the Respondent, and those instances occur around the interview which took place of the applicant on 22 July 2019. 

4. It certainly is relevant, so far as the Tribunal is concerned, that the Applicant did not inform the relevant individual of the Respondent that the Applicant intended to leave Australia three days after that interview, and whilst there is an explanation from the Applicant as to providing the date range of 1 December 2019 and 30 January 2020, objectively, on balance, the Tribunal finds that the Applicant should have provided more detail during that interview process.  Equally troubling is the fact that the Applicant, for whatever reason, and the Tribunal accepts that the Applicant cannot remember all the detail and the dateline, et cetera, but the reality is that the Applicant, for whatever reason, elected not to respond to the important letter from the Respondent, which is dated 28 October 2019.  The Tribunal notes there is no allegation that the Applicant misled the Department, and there is no suggestion from the Tribunal that there is any finding in that regard.  However, the evidence on balance does point to a position where there seems to have been a lack of full cooperation and engagement with the process by the Applicant, causing various vagaries and discrepancies and inconsistencies within the body of information acquired by the Department, such information only being able to be provided by the Applicant. 

5. So the position is that the Tribunal is to look at the body of evidence before it today in reviewing whether the reviewable decision was correctly made at that time, because in a sense the Tribunal now stands in the delegate’s shoes to make a fresh decision based on evidence before it.  The Tribunal accepts that certainly the Applicant’s tertiary education took place in Melbourne, Australia, and accepts that she has a genuine desire to study at a Japanese university and to learn graphic design there and to learn the Japanese language, but the difficulty the Applicant faces is against the backdrop of the process by which the citizenship application was dealt with by the Applicant, and the fact the she is not due to return to Australia until March 2024 does make it difficult for the Tribunal to reach a decision on the evidence that it is likely that she will reside in Australia.  The Tribunal accepts the submissions of the Respondent as to authorities on this point and finds that there is just simply not sufficient evidence to convince the Tribunal that the Applicant is likely to reside in Australia. 

6. Equally, with respect to the maintenance of a close and continuing association with Australia, the Applicant has already been absent from Australia for some considerable time and is not due to return to reside in Australia until after March 2024, some years from now on the current plan of the Applicant.  The Tribunal accepts that normally the Applicant’s mother, being an Australian citizen, does reside in Australia, although the Tribunal notes that at the moment both the Applicant’s mother and father are living in China.  The question of property ownership in Australia is an important one, and the Applicant was cross‑examined in some detail about this.  The Tribunal notes that the property transfer occurred after the decision of the delegate was made in December of last year, and without any criticism of the Applicant, it is unclear to the Tribunal as to the motivations of that property transfer, and in any event, to have that 30 per cent ownership in a property without more, against the backdrop of the evidence of the Applicant’s engagement with the Respondent during process of the citizenship application, or perhaps lack of engagement in some respects, particularly with respect to the important letter of 28 October 2019, putting that property ownership and the timing of it into the body of evidence, particularly the fact that the Applicant is not returning to Australia to reside till at least March 2024, the Tribunal is unable to come to a finding that it is likely that the Applicant would maintain a close and continuing association with Australia.

7. As I have indicated, there is no criticism of the Applicant in this process. She has fully cooperated with the Tribunal and it is obvious that she has had some difficulties in recalling certain events, but the Tribunal has analysed the evidence and looked to the preponderance of evidence as to what findings can and cannot be made. The Tribunal should indicate to the Applicant, as was the question put to Mr Morris for the Respondent during the hearing, that the finding of the Tribunal today does not shut her out should it be her intention at any future time to make a fresh application for Australian citizenship, and the Tribunal does note that the Applicant is a permanent resident of Australia. In all of the circumstances of this matter, in light of the findings on balance on the evidence, the Tribunal affirms the reviewable decision pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act.