Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 624
•19 August 2016
Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 624 (19 August 2016)
Division
General Division
File Number(s)
2015/5817
Re
Joshua Neoh Weng Fei
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 19 August 2016 Place Canberra The decision under review is affirmed.
...............[sgd].........................................................
Mr S. Webb, Member
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – general residence requirements – construction of legislation – requirement for person to be ‘present in Australia’ for 4 years prior to application – deeming provision – taken to be present if absent from Australia for less than 12 months in the 4-year period – meaning of ‘absent from Australia’ and ‘absence’ – applicant not present in Australia 4 years before application lodged – prior presence in Australia – ‘absence’ from Australia not made out at commencement of the 4-year period – not present in Australia for 4 years prior to application – decision affirmed
LEGISLATION
Acts Interpretation Act 1901, s 15AA
Australian Citizenship Act 2007, ss Preamble, 2A, 3, 12, 21, 22, 22A, 24
Australian Citizenship Act 1948, s 13
Australian Citizenship (Transitionals and Consequentials) Act 2007, Schedule 3Migration Act 1958, s 4
CASES
Lin v Minister for Immigration and Border Protection [2009] FCA 494
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Port of Brisbane Corporation v Commissioner of Taxation [2004] FCA 1232
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Lo and Minister for Immigration and Border Protection [2016] AATA 579SECONDARY MATERIALS
Australian Citizenship Instructions, 25 February 2015Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Mr S. Webb, Member
August 2016
Joshua Neoh Weng Fei applied for Australian citizenship by conferral. A delegate of the Minister refused his application on residence grounds. Not content with this decision, Mr Neoh applied for review.
Brief facts
Mr Neoh was born in Malaysia.
On 22 June 2006, Mr Neoh was granted a TU 573 student visa. He enrolled in a Bachelor of Laws course at the Australian National University (ANU).
He first entered Australia on 11 July 2006.
Mr Neoh departed Australia for short absences during this course of study.[1]
[1] T5.
He graduated on 16 July 2010.
On 23 July 2010, Mr Neoh departed Australia to continue his studies, enrolling in a Master of Laws course at the Yale University Law School. The ANU contributed to pay for his flight to the United States to take up this course.
On 10 September 2010, Mr Neoh’s student visa was cancelled as he had completed his course of study.
Mr Neoh completed his course at the Yale Law School in May 2011 – his Master of Laws degree was conferred on 1 June 2011.[2]
[2] T4 folio 148.
On or about 25 May 2011, he departed from the United States and travelled in Asia for some months without a fixed address.
Mr Neoh’s evidence is that he applied for a tenured position at the University of Adelaide in Australia – he says that this was the only job application he made at that time. He obtained an interview and returned to Australia for the period of 1 week for that purpose. He thought that this occurred in or about August 2011 – he was travelling on a Malaysian passport and recalled obtaining an “electronic travel authority” covering his entry and short-term presence in Australia. The Departmental records of his movements in and out of Australia do not reveal details of Mr Neoh arriving in and departing from Australia at or about this time. This anomaly is not explained. If this travel occurred, a question arises about Mr Neoh’s lawful presence in Australia as a non-citizen at that time. It may well be that Mr Neoh obtained an ‘electronic travel authority’ as he alleges, but on the present materials I am unable to resolve this question. I note that the Minister does not take issue with Mr Neoh’s evidence, and he does not assert that Mr Neoh was unlawfully present in Australia as a non-citizen at any time. For reasons that will appear, I do not need to go any further on this point.
From 27 September 2011 to 12 January 2012, Mr Neoh resided in the United Kingdom.[3] During this period he undertook a Visiting Fellowship at Oxford University.
[3] Ibid, folio 120.
On 15 December 2011, Mr Neoh was granted a UC 457 temporary skilled visa.
On 13 January 2012, he entered Australia. He took up employment in the role of Associate Lecturer in Law at the University of Adelaide.
On 15 January 2013, Mr Neoh took up employment in the role of Lecturer in Law at the ANU.
On 2 December 2013, Mr Neoh was granted a permanent resident RN 187 regional sponsored migration visa.
On 13 May 2015, Mr Neoh lodged a claim for conferral of Australian citizenship.[4]
[4] T4.
Mr Neoh’s movement records over the preceding 4 years are as follows:
Date Movement Days absent from Australia 23 July 2010 Departure 13 January 2012
Arrival
539
3 July 2013
Departure
14 July 2013
Arrival
11
23 December 2013
Departure
19 January 2014
Arrival
27
29 June 2014
Departure
18 July 2014
Arrival
19
13 December 2014
Departure
16 January 2015
Arrival
34
21 March 2015
Departure
28 March 2015
Arrival
7
On 15 October 2015, a delegate of the Minister refused Mr Neoh’s citizenship application.
On 8 November 2015, Mr Neoh applied for review of that decision.
Issues
Mr Neoh’s application for conferral of Australian citizenship is to be determined under relevant provisions of the Australian Citizenship Act 2007 (the Citizenship Act) – under s 24(1) the Minister must approve or refuse to approve the application.
The general eligibility provisions for conferral of citizenship are set out in s 21(2) –
(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.
As can be seen, these are conjunctive criteria – to be eligible for conferral of citizenship, all of these criteria must be satisfied.
The issue, presently, is whether Mr Neoh is able to satisfy the ‘general residence requirement’ under s 21(2)(c). It was to this point the parties’ attention and submissions were directed in the course of the proceedings.
The ‘general residence requirement’ test is set out in s 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.
Sections 22(1)(a) and (c) are subject to deeming provisions in respect of certain absences from Australia –
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
The parties agree, correctly, that Mr Neoh satisfies the permanent resident component of the ‘general residence requirement’ test under s 22(1)(c) with reference to the deeming provision in s 22(1B). Mr Neoh was granted a permanent resident visa more than 12 months before he applied for conferral of Australian citizenship and he was absent from Australia for 60 days (less than 90 days) in the 12 months immediately before he lodged his application.
The central issue is whether Mr Neoh satisfies the requirements of s 22(1)(a) with reference to the deeming provision in s 22(1A). For this purpose, it is necessary to consider the correct construction of these provisions.
Before doing so, I should say that the exceptions, discretions and provisions set out in s 22(1C) to (11) are not presently controversial or applicable in the circumstances. In view of Mr Neoh’s reference to ‘significant hardship or disadvantage’ in his application form, I should say immediately that the discretion conferred by s 22(6) is confined to periods of permanent residence for the purposes of s 22(1)(c) –
Ministerial discretion—person in Australia would suffer significant hardship or disadvantage
(6) For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
As can be seen, this discretion does not apply generally to the general residence requirement test, and it is only enlivened if ‘the person was present in Australia as a permanent resident’ during the particular period. Even if significant hardship or disadvantage was established, and it is not, it would only assist Mr Neoh in respect of the period from 2 December 2013 to 13 May 2015, in which he was a permanent resident. This point was not pressed at hearing.
How is the legislation to be construed?
Mr Neoh’s representative, Professor Rubenstein, asserts that the legislation does not expressly require a person to be physically present in Australia 4 years before applying for conferral of Australian citizenship – the deeming provision in s 22(1A) allows for absences of up to 12 months within the 4-year period preceding lodgement of an application. In effect, this imposes a 3-year minimum requirement for a citizenship applicant to be present in Australia prior to making an application for conferral. In her submission there is no call to go beyond or outside the plain language of the text – had the Parliament intended to impose a requirement that a prospective citizen must be present in Australia 4 years prior to making an application for conferral, it could have included words to that effect.
Professor Rubenstein says that there is no firm basis to construe ‘absence’ for the purposes of the deeming provision set out in s 22(1A) to mean absence with a valid visa or absence following prior presence in Australia. In her submission, the issue of a visa is relevant to a non-citizen being lawfully present in Australia for the purposes of the Migration Act 1958, as the objects set out in s 4 of that Act provide. But considerations of this kind are not relevant to the ‘general residence requirement’ test for the purposes of ss 21(2)(c), 22(1)(a) and (1A) of the Citizenship Act. These provisions, so the argument goes, do not expressly or impliedly condition ‘absence’ from Australia in that way.
Professor Rubenstein maintains that if there is ambiguity in the text of the particular provisions, considering s 15AA of the Acts Interpretation Act 1901 (the Interpretation Act), it is appropriate to consider the objects and purposes of the Citizenship Act. She argues that the purposes of s 22(1)(a) and (1A) are to confine eligibility for conferral of citizenship upon persons who can establish a sufficient residence connection with Australia – a close and continuing association with Australia and commitment to become a full and formal member of the Australian community. This, she maintains, is completely consistent with the inclusive character of the Citizenship Act, as is expressed in the Preamble –
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
This inclusiveness, Professor Rubenstein says, is carried forward in the construction of the residence requirements. She argues that the residence requirements are constructed to make allowance for different kinds of connection with Australia - permitting connection to Australia to be established through activity as well as residence, by reference to the special residence requirements set out in s 22A for example. Thus, in her submission, the legislation is sufficiently broad to allow for a person to establish a connection with Australia, perhaps even a virtual presence in Australia, while geographically absent at the commencement of the 4-year period prior to making an application. Furthermore, albeit not a central consideration, Professor Rubenstein argued that the interests of Australia should be taken into account when considering the conferral of citizenship – the significance of the person’s contribution, on the one hand, and the potential harm (or absence of it), on the other, weigh in the balance.
Professor Rubenstein cavilled with the policy expressed in the Australian Citizenship Instructions (ACIs) and the new Citizenship Policy which was promulgated on 1 June 2016. The policy requirement for a citizenship applicant to have a valid visa or a permanent visa if absent from Australia 4 years prior to lodging an application for conferral, she asserts, is not consistent with the Citizenship Act – it is unlawful and it should not be followed or applied by the Tribunal.
Counsel for the Minister, Mr Knowles, says the construction of the legislation is not appropriately assisted by the policy documents. Furthermore, in his submission, these policies are not applicable on any view in this case – Mr Neoh did not have a visa of any kind 4 years before he applied for Australian citizenship by conferral.
Mr Knowles argued that s 22(1)(a) and (1A) are to be read together. It is not permissible, in his submission, for the deeming provision in s 22(1A) to be construed in a manner that undermines the operation of the primary provision in s 22(1)(a). If the deeming provision is construed to permit a citizenship applicant to be absent from Australia for up to 12 months from the start of the 4-year period immediately prior to lodgement of an application for conferral, this would undercut the 4-year requirement in the primary provision. On this construction, a person would be able to meet the general residence requirement test by arriving in Australia for the first time only 3 years before applying for conferral of citizenship – this, he says, is not consistent with the terms and purposes of s 22(1)(a). The purpose of s 22(1A), he argues, is to ameliorate difficulties that might arise from imposition of the 4-year test in the wide variety of circumstances that may cause citizenship applicants to be absent from Australia temporarily during such a period.
With regard to the meaning of the word ‘absent’, Mr Knowles referred to dictionary definitions, contending that ‘absent’ in is some regards synonymous with ‘away’. In his submission, the conception of being absent or away from a place implies a connection with or relationship to that place which is usual or normal. Two things flow from this in his submission. Firstly, the proper construction of s 22(1)(a) requires a citizenship applicant to be present in Australia 4 years before making an application for conferral. And secondly, the deeming provision relates only to subsequent absences from Australia within that 4-year period.
Mr Knowles agreed with Professor Rubenstein that the purpose of the general residence requirement is to establish a sufficient connection to Australia to establish eligibility for conferral of citizenship. But, In Mr Knowles submission, the test is an objective one, struck in purely temporal terms – either a person meets the threshold requirement, or not. It is not open to construe the test as one involving subjective assessment or the exercise of discretion where none is expressly or impliedly conferred. It is for this reason that Mr Knowles argued that prior visits to Australia, prior to commencement of the 4-year residence requirement, are not relevant: they fall outside the period specified by s 22(1)(a) and the legislation cannot be construed to allow events outside the 4-year period to be taken into account in a particular case. The ‘general residence requirement’ set out in s 22(1) has the character of a legal definition that is separate to the conception of residence itself; it is a definition cast in terms of presence in Australia.
In Mr Knowles submission, the tenets of the current Citizenship Policy (or the previous ACIs) do not bear on consideration the proper construction of the legislation. Furthermore, he argued that the present Policy is not appropriately applied in a case such as this – it is one thing for an officer of the Minister’s Department to apply the policy expressing the Minister’s view on a particular point; it is entirely another for the Tribunal, which is bound to formulate its own view as to the correct interpretation of the statute.
At this point, it is germane to consider the principles by which the task of construction is to be guided. I am assisted in this task by what Flick, Murphy and Griffiths JJ had to say on this point in Minister for Immigration and Border Protection v Han[5] at [26] to [31]. Those remarks are authority for the correct approach to be adopted.
[5] [2015] FCAFC 79.
The existence of policy does not bear upon and is not relevant to the task of construction, which is directed to the text, context and purposes of the legislation.[6] Policy may set out the Minister’s view about the scope or meaning of the legislation, but this is not binding on the Tribunal – the Tribunal must satisfy itself as to the proper construction of the provisions it must apply.
[6] Port of Brisbane Corporation v Commissioner of Taxation [2004] FCA 1232 at [26].
In this instance, the text of the legislation is quite clear – to meet the ‘general residence requirement’, a citizenship applicant must have been ‘present in Australia for the period of 4 years immediately before the day the person made the application’. The words ‘present in Australia’ in this context refer to presence in ‘Australia’ as geographically defined in s 3(1).
A person may be assisted to meet this requirement by the deeming effect of s 22(1A), which allows a citizenship applicant to be taken to be present in Australia while absent for ‘a part of the period of 4 years immediately before the day the person made the application’, if the absence or absences do not exceed 12 months in total.
These provisions must be read together – the deeming provision serves the purposes of the primary provision.
The ‘mischief’ the deeming provision addresses is the difficulty an inflexible 4-year rule might cause if strictly applied to the wide variety of circumstances of people applying for Australian citizenship by conferral. The provision allows for some flexibility in cases where a person is temporarily ‘absent from Australia’ for some reason in the 4 years before applying for conferral of Australian citizenship. The ameliorative purpose of this provision allows for a person to be constructively taken as ‘present in Australia’ even though, actually, they were ‘absent from Australia’ for part of the 4 year period prior to applying for citizenship.
Key to operation of the provision is the phrase ‘absent from Australia’ - for the provision to be enlivened the person must be ‘absent from Australia’ for ‘a part of the period of 4 years’.
The nature and purpose of the general residence requirement is unavoidable when construing the proper meaning of the deeming provision and the words ‘absent from Australia’, in particular.
The general residence requirement requires actual or constructive presence in Australia during the 4-year period immediately before applying for conferral. There is no proviso in respect of the start day or the end day of the 4-year period, such that an applicant would have to be actually ‘present in Australia’ on either of those days.
In circumstances where a citizenship applicant is not present in Australia for a period on and after the commencement of the 4-year period, for s 22(1A) to apply, it must be established that the person was ‘absent from Australia’, such that the person’s ‘absence’ from Australia is properly capable of being treated as presence in Australia.
The words ‘absent’ and ‘absence’ are not given any special meaning in the Citizenship Act. They should be construed according to their meaning in ordinary usage, as provided in dictionary definitions. The Macquarie Dictionary (2015 edition) defines ‘absent’ to mean “1. Not in a certain place at a given time; away (opposed to present) ...”. The Oxford English Dictionary (2016 online edition) defines ‘absent’ to mean “1.a. Not present in a place or at an occasion; away …” and ‘absence’ to mean “1.b. The state of being absent or away from a place. 1.c. An occasion on which a person is absent; a period of absence. …”. It is quite clear that ‘absence’ from a place has a temporal or periodic character in reference to prior presence in the particular place. Thus, properly understood, ‘absent from Australia’ means more than simply not present in Australia.
This construction is consistent with the language of s 22. The section refers to a person being: ‘present in Australia’; ‘not present in Australia as an unlawful non-citizen’; ‘not present in Australia during that period’; and ‘absent from Australia for a part of the period’. The phrase ‘present in Australia’ refers to actual or constructive presence in Australia, geographically. Actual presence in Australia has a physical character.[7] This is subject to a test of lawfulness under s 22(1)(b) - ‘not present in Australia as an unlawful non-citizen’. The word ‘not’ in this context refers to actual presence in Australia as an unlawful non-citizen. The phrase ‘not present in Australia during that period’ is found in ss 22(9)(b) and (11)(d). It refers to a period in which the person was not actually present in Australia - in this context, the word ‘not’ refers to presence in Australia. Non-presence of this kind is a factor relevant to enlivenment of the discretion to treat a period in which the person was not present in Australia as one in which the person was present in Australia as a permanent resident. These phrases each deal with presence or non-presence in Australia.
[7] Lin v Minister for Immigration and Border Protection [2009] FCA 494 at [60].
The phrase ‘absent from Australia’ in ss 22(1A) and (1B) departs from this binary language. It means more than ‘not present in Australia’. Although, clearly, one is not present in a place when being absent from it, to be ‘absent from Australia’ a person must previously have been present in Australia. This construction is consistent with the Tribunal’s recent decision in Re Lo and Minister for Immigration and Border Protection,[8] in which the Tribunal concluded that “the phrase “absent from Australia” in s 22(1A)(a) of the Citizenship Act should be read as meaning “absent after having been present in Australia”.[9] I respectfully agree.
[8] [2016] AATA 579
[9] Ibid, at [25].
In addition to the dictionary definition, the periodic or temporary nature of the phrase ‘absent from Australia’ arises from the qualifying words to which it relates in the legislative text. The words ‘absent’ ‘for a part of the period of 4 years’ and ‘the period of the absence’ convey the intention of the Parliament in this regard. Thus it can be seen that absence from Australia for the purposes of s 22(1A) has a temporary or periodic character.
Furthermore, the temporary or periodic nature of ‘absence’ is important for another reason: it implies an intention to return to and a continuing connection with the place from which the person is absent.
Thus, for the purposes of s 22(1) and (1A), for a period in which a person is ‘absent from Australia’ to be treated as one in which he or she is taken to be present in Australia, the absence or absences must:
(a)be of less than 12 months’ duration (in total) within the 4-year period immediately before the person applied for conferral of Australian citizenship; and
(b)follow a period in which the person was present in Australia;
(c)have a temporary character during which the person intended to return to and maintained a continuing connection with Australia.
If the person was not present in Australia on the day 4 years before applying for conferral of citizenship, each of these characteristics of ‘absence’ must be established for the deeming provision to apply. That said, these are matters of fact and degree which must be assessed in the particular circumstances of each case.
At this point, it is desirable to say some things about the conception of ‘residence’ for the purposes of the ‘general residence requirement’ test. The word ‘residence’ is not given any special meaning. In this context, ‘residence’ has the quality of residing in Australia. It is for this purpose that a person must be actually or constructively present in Australia. ‘Residence’ is somewhat fluid; it allows for temporary absences from the particular place in which the person resides. Allowing for absences of this kind is the purpose of the deeming provision in s 22(1A).
The ‘general residence requirement’ was inserted when the Citizenship Act was enacted, replacing previous provisions under the Australian Citizenship Act 1948 (the Old Act). Under s 13(1)(e) of the Old Act a citizenship applicant was required to be present in Australia as a permanent resident for not less than 2 years within the 5 years immediately preceding the application. This was amended by operation of Item 8 of Part 1 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 such that a citizenship applicant was required to be present in Australia as a permanent resident for 1 year in the period of 2 years before the person made the application and for 2 years in the period of 5 years before the application was made.
As can be seen, the ‘general residence requirement’ in s 22 of the Citizenship Act maintained the 1-year requirement in respect of permanent residence, albeit during a 4-year period rather than a 2-year period, and it replaced the requirement for a 2-year period of permanent residence within 5 years with the requirement that a person must be present in Australia for 4 years before applying for conferral of citizenship.
These changes and legislative antecedents do not compel a different construction than that I have adopted.
To the extent that the purposes and intentions of the legislation are expressed in the Preamble and the outline set out in s 2A, those provisions also do not compel any different interpretation.
To my mind, the extent to which a person might contribute to Australia, or the possibility of harm to Australia’s interest in any particular case are not matters that bear directly upon the proper construction of the legislation. It would not be appropriate to construe the legislative provisions on the facts or circumstances of any particular case. To do so could be expected to lead to inconsistency and difficulty over time – the legislation must be construed according to its text, context and purposes, such that it may be applied consistently and fairly to any case as a standard.
Insofar as Professor Rubenstein contended that constructive presence in Australia might extend to include a virtual presence, through the use of a computer system or online networks, I think that this stretches the meaning of ‘present in Australia’ too far. Furthermore, it is not consistent with the construction adopted by Foster J in Lin v Minister for Immigration and Citizenship[10] at [60]. I accept that electronic media may provide increasing capabilities for a person to engage with others remotely, across territorial borders. While the frequency and purpose or content of such interactions might, to some extent, illuminate the quality of a person’s continuing connection with a place, I do not think that such interactions are within the meaning of ‘present in Australia’ for the purposes of s 22(1)(a).
[10] [2009] FCA 494.
Is it appropriate to apply the policy?
I need say little about the ACIs and the new Citizenship Policy. These documents express a view about the interpretation of the legislation. The Tribunal is not bound by such documents. But for completeness and clarity I will address the issues raised.
The ACIs provide –
5.15.4 Calculation of the 4-year lawful residence period when a person has been absent from Australia on the day 4 years immediately before applying
…
Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4 years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4-year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa).
If these conditions are met, then the person may use the full 4-year period immediately before applying towards meeting the general residence requirement.
For the purposes of the residence calculator, the lawful residence date will be the date that the ‘in effect visa’ that was held ‘on the day 4 years immediately prior to the day of application’ came into effect….
Example
Mr Smith entered Australia on 01/01/2006 on a subclass 457 visa. He departs a week later, and re-enters on 01/01/2008 on the same subclass 457 visa. He remains in Australia, becomes a permanent resident on 01/01/2010 and applies for citizenship on 01/01/2011.
Mr Smith’s 4-year lawful residence period starts on 01/01/2007 (4 years before applying) because although he was outside Australia on this date, he had been previously in Australia and was the holder (sic: of a) subclass 457 visa.
Mr Knowles informed me that the new Citizenship Policy replaces the previous ‘valid visa’ requirement with a requirement that the absent person must hold a ‘permanent visa’ at the time.[11]
[11] Citizenship Policy 2016, Chapter 7, page 17.
Professor Rubenstein says these aspects of policy are ultra vires the Act.
It is not necessary, and it may not be appropriate, for me to draw any firm conclusions on that point – strictly, ruling on the lawfulness of policy of this kind is a matter for the Courts.
That said, albeit perhaps trite, for the policy set out in the ACIs and the Citizenship Policy to be lawful, the policy must be consistent with the Act. Reference was made to the oft cited case of Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[12] in which Brennan J discussed issues of this kind in reference to the exercise of discretion. Even though the present case has a slightly different character, which does not involve the exercise of discretion in respect to the general residence requirement under s 22(1) and (1A) (the only discretion to be exercised is in respect of s 24 of the Citizenship Act and, as will appear, that point is not yet reached), it is germane to consider some of what his Honour said –
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
In fulfilling its function the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful Ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision….
If the Tribunal applies Ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear at the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions and comparable cases, and one of the most useful aids in achieving consistency is a guiding policy. …
…
These considerations warrant the Tribunal's adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of Ministerial policy would work an injustice in a particular case, a cogent reason would be I shown, for consistency is not preferable to justice….
…
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review…
[12] (1979) 2 ALD 634.
The policies set out in the documents I have been given purport to impose visa requirements upon a person who was not present in Australia 4 years before applying for conferral of Australian citizenship for the purposes of s 22(1A). No such restrictions are expressly or impliedly mandated by the legislation.
Nonetheless, holding a valid or permanent visa may be a relevant consideration when determining if non-presence in Australia at a particular time or during a particular period is within the meaning of ‘absence’ for the purposes of the deeming provision and the general residence requirement. A non-citizen holding a visa permitting lawful return to Australia may be evidence of an intention to do so. But it does not follow this would be so in all cases. Furthermore, holding a valid or a permanent visa is not the only way of establishing an intention to return after an ‘absence’ from Australia. I was not taken to cases in which the visa requirement policies have been applied with any authority. And I was not taken to authoritative judgements of a Court in respect of the lawfulness of the policies.
For these reasons, I would not apply the visa requirement set out in the present and former policies in a restrictive or exclusive manner in this case. Mr Neoh did not possess a valid or permanent visa 4 years before applying for conferral of Australia citizenship. But this, alone, is not fatal to his application.
Was Mr Neoh ‘present in Australia’ for 4 years immediately before his application?
Counsel for the Minister, Mr Knowles, says the answer to this question is No. This is because Mr Neoh was not present in Australia 4 years before he applied for conferral of citizenship and, at that time, he was not in possession of a visa allowing him to be present in Australia.
In Professor Rubenstein’s submission, Mr Neoh was present in Australia prior to the 4-year period immediately preceding his application for conferral of citizenship, while undertaking his Bachelor of Laws at the ANU. He departed to undertake further studies at the Yale Law School and remained connected to Australia, returning after completing his studies to take up a tenured academic position at the University of Adelaide Law School. In these circumstances, under s 22(1A), Mr Neoh’s absence from Australia without a valid visa from 13 May 2011 to 15 December 2011 should be taken to be a period in which he was present in Australia for the purposes of s 22(1)(a).
The facts are clear enough – Mr Neoh was absent from Australia for periods totalling 336 days within the 4-year period immediately before his application for conferral of Australian citizenship. He was not present in Australia on 13 May 2011, 4 years prior to his application, and he did not return until 13 January 2012 – 245 days later. Thereafter, it is accepted that he was not present in Australia for 98 days in total - 4 periods of 34 days or less.
At first blush, it would appear that the totality of the periods in which Mr Neoh was not present in Australia in the 4 years before his application for conferral of Australian citizenship may be within the express terms of the deeming provision set out in s 22(1A).
On deeper consideration, however, I am satisfied that the evidence and the circumstances compel a different conclusion. The question is whether periods in which he was not present in Australia are periods in which he was ‘absent from Australia’ for the purposes of ss 22(1)(a) and (1A). His actions, his intentions and his connections to Australia are relevant considerations when determining if he was ‘absent from Australia’ on and after 13 May 2011 for the purposes of those sections.
At this point there are four things I should say. Firstly, there is only scant evidence in respect of Mr Neoh’s activities following completion of his studies at the Yale University Law School on or about 25 May 2011 and his re-entry into Australia on 13 January 2012. I addressed my perception of evidentiary deficiencies at the hearing and, ultimately, Mr Neoh decided to give oral evidence. This notwithstanding, there remain significant gaps in the evidence. I must deal with the evidence at hand and do the best I can with it.
Secondly, the phrase ‘absent from Australia’ has two important characteristics – it follows a period in which the person was present in Australia and it is periodic or temporary in nature. These matters were traversed at hearing. The facts of Mr Neoh’s case satisfy the first of these characteristics, but do not satisfy the second.
Thirdly, when determining whether time spent by a person outside Australia is an absence, having a periodic or temporary nature involves consideration of two elements. The first of these is whether the time spent outside Australia is expected to be finite, with an end point able to be identified or an arrangement made. The second is whether the person had a clear intention to return to Australia. Evidence to support relevant findings is required.
Fourthly, much of the hearing was spent addressing party submissions in respect of the construction issue. Much was said about the meaning of ‘absence’, for example. As I have said, Mr Neoh gave oral evidence, but gaps remain. There is very scant evidence in respect of Mr Neoh’s intentions at various times. Considering this, and whether any issue of unfairness might arise, I am satisfied that Mr Neoh’s application is properly capable of proceeding on the present evidence. And I am satisfied that the parties have been duly heard, each having adequate opportunity to present their case, on determinative issues.
Mr Neoh departed Australia to further his studies on 23 July 2010. He did so with assistance from the ANU, paying for his flight to the United States.[13]
[13] Exhibit 1.
Mr Neoh’s previous student visa came to an end on 10 September 2010. He did not apply for any other visa that would permit his lawful return to Australia as, by his own account, he did not require one at that time – he was undertaking a full-time course of study at the Yale Law School.
Mr Neoh’s assertion that he departed Australia in July 2010 to further his studies in order to obtain a tenured academic position in Australia is not supported by evidence. It is possible that this was his intention at the time, but the available evidence does not establish that he intended to return to Australia on completion of his course at the Yale Law School. On completion of that course of study on or about 25 May 2011, Mr Neoh did not return to Australia. He travelled in Asia before taking up a Visiting Fellowship at Oxford University in the United Kingdom.
He says he returned to Australia in or about August 2011 in order to undertake an employment interview. He did so without applying for a visa, utilising a short-term travel authority. As I have said, there is no record of this in the available evidence. It is not established that he intended to remain in Australia at that time. His alleged use of a short-term ‘electronic travel authority’ supports this finding. He departed from Australia and took up the Visiting Fellowship at the Oxford University. At some point he applied for and was offered employment in Australia at the University of Adelaide. When these events occurred I cannot determine on the present evidence. On 15 December 2011, he obtained a 457 visa in order to take up this employment. Subsequently, he entered Australia on 13 January 2012 for that purpose.
The present materials establish that Mr Neoh retained a UniSuper account and a National Australia Bank (NAB) account in Australia after departing in July 2010.[14] It appears that no contributions were made to his UniSuper account from 28 July 2010 to 30 June 2011. There is no present evidence of the contents of his NAB bank account, although it appears the account was open until at least September 2011. The evidence does not establish that he held other assets or property in Australia, or that he had a residence or home in Australia, or family members residing in Australia.
[14] Exhibits 2 and 3.
I accept that Mr Neoh maintained academic links to Australia. Shortly before leaving Australia on 23 July 2010, he presented “The Complicated Case of Stern Hu” at the ANU on 21 July 2010 in collaboration with Professor Rubenstein and Professor Rothwell. It appears that this was subsequently published in the 2010 Journal of the Law Association for Asia and the Pacific and in the Allegiance and Identity in a Globalised World in 2014.[15] Considering Mr Neoh’s curriculum vitae in Exhibit 5, it appears that he was not involved in notable academic activities in Australia after he left in July 2010 until he returned to take up employment at the University of Adelaide in January 2012.
[15] Exhibit 4.
On 13 May 2011, 4 years before he applied for conferral of Australian citizenship, he was studying full-time at the Yale Law School. He was not present in Australia on that day and the period in which he would not be present in Australia was open-ended – academic ties notwithstanding, he did not have a job, a course of study, a family or anything much of substance to cause him to re-enter Australia at that time. By his own account and on the present materials, at the time and over ensuing months, Mr Neoh was engaged in activities in other places – travelling in Asia and undertaking a Visiting Fellowship at the Oxford University.
That being so, on the present evidence, I am reasonably satisfied that the period in which Mr Neoh was not present in Australia from 13 May 2011 to the date he was offered employment in Australia and subsequently obtained a UC 457 visa, prior to returning on 13 January 2012, was not an ‘absence’ from Australia within the meaning of the deeming provision in s 22(1A). This period was not one in which he was temporarily absent from Australia.
Even if I accepted that Mr Neoh re-entered Australia for one week in or about August 2011, it would not change the result. The evidence does not establish that his aspiration to obtain employment in Australia had crystallized at the time – this did not occur until he obtained employment in Australia and a UC 457 visa permitting him to return for that purpose.
Furthermore, even if it is accepted that his intention to return to Australia was clearly present when he applied for employment at the University of Adelaide, the date on which he did so is not established by evidence. Furthermore, the period in which he was not present in Australia from 13 May 2011 did not have a periodic or temporary character for present purposes until he obtained employment in Australia and a UC 457 visa permitting him to return.
His presence in Australia before July 2010 as a student does not compel a different conclusion. Like many young non-citizens, Mr Neoh came to Australia to undertake tertiary study at a university and, on completing his undergraduate course, he departed from Australia. He undertook studies elsewhere. He did not require a visa for such purpose after his student visa elapsed. He did not seek to obtain a visa permitting his presence in Australia until he decided to take up an offer of employment in Australia, commencing in January 2012.
The period in which Mr Neoh was not present in Australia after completing his course of study at the ANU in July 2010, and in particular from 13 May 2011 to the (unknown) dates on which he applied for and subsequently accepted employment in Australia, does not have the character of an ‘absence’ that is periodic or temporary.
For these reasons, I am not persuaded that Mr Neoh was ‘absent from Australia’ under s 22(1A) during the period from 13 May 2011 to in or about December 2011 such that he can be taken as ‘present in Australia’ while he was studying, travelling and residing elsewhere during that period.
If it be said that Mr Neoh was not heard on questions of intent, the issue then would be whether a different result would be obtained were he to be given a further opportunity. To my mind, as will appear, no different result would be obtained. Simply put, the time in which Mr Neoh was not present in Australia from 13 May 2011 was not a periodic or temporary absence because, at that time, it was an open-ended absence without an end point being established by evidence until 15 December 2011.
Whether Mr Neoh harboured a long-term intention to return to Australia is not presently established, although that is possible. I accept that he aspired to obtain employment in Australia at some point in the future. To my mind, Mr Neoh’s retention of superannuation accounts, albeit without contributions being made, his ongoing academic links and his publication of an academic paper weighs in favour of this conclusion.
Nevertheless, an open-ended, imprecise or vague aspiration to return to Australia is not consistent with a clear intention to return at the end of a period of temporary absence. His actions speak of his intentions at the time. And on that basis, I am satisfied that any intention to return to Australia did not crystallize until in or about December 2011, when he obtained a UC 457 visa following receipt of an offer of employment in Australia which had not, hitherto, existed.
Even if it were to be established that Mr Neoh intended to return to Australia on completion of his studies, and his aspiration to obtain employment in Australia may meet that test, it would not change the result. The period in which he was not present in Australia from 13 May 2011 until 15 December 2011 was not one that had a periodic or temporary character.
It follows, that Mr Neoh was not ‘present in Australia’ for 4 years immediately before applying for conferral of Australian citizenship. For this reason, he does not satisfy the general residence requirement under s 22(1)(a) and the general eligibility requirement under s 21(2)(c).
Conclusion
Mr Neoh’s application for conferral of Australian citizenship must be rejected as he was not eligible when he lodged his application and, that being so, there is no option but to refuse the application under s 24 of the Citizenship Act.
The decision under review is affirmed.
I certify that the preceding 102 (one and two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ...........[sgd].............................................................
Associate
Dated 19 August 2016
Date of hearing 12 August 2016 Date final submissions received 23 May 2016 Advocate for the Applicant Professor Kim Rubenstein Counsel for the Respondent Patrick Knowles Solicitor for the Respondent Clayton Utz
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